Heard the learned counsel for the revisionist and the learned Additional Government Advocate for the State as well as perused the documents available on record.
This criminal revision under Section 397 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the accused-revisionist against the impugned order dated 09.9.2010 passed by the learned Chief Judicial Magistrate, Lakhimpur Kheri in Misc. Criminal Case No. 1221/2010 (Manoj Kumar Singh Vs. Saimuddin) by which the learned Chief Judicial Magistrate has allowed the protest petition filed by the complainant against the final report submitted by the Investigating Officer (Inspector, CBCID) in case Crime No. 439/2005, under Section 51 Wild Life Protection Act and ordered for re-investigation of the case.
The relevant facts emerge out of the materials available on record in brief are that Sri Manoj Kumar Singh, the then S.I., O.P., Misrana, P.S. Kotwali Sadar, Lakhimpur Kheri on 09.02.2005 left the out post along with Harendra Kumar Tyagi, H.C.O.P.L.R.P., Head Constable-A.P.Satnam Singh, Constable-Bhagirath Sharma, Constable-Adesh Kumar Sharma, Constable-Shakeel Ahmad, Constable-Jagdish Tiwari and Constable-Devendra Pal Singh Yadav in Government Jeep No. UP-31C-6501 which was being driven by Driver-Lakhan Singh Yadav, in search of notorious criminals namely Rinku Mishra @ Prema Prakash and Shiv Kumar who were hardened criminals and were carrying price on their head for their arrest. When he reached near the Bhandariya Railway Crossing, an informer met him there and informed him that a person who was involved in smuggling of skins of wild lives was about to come he could be caught hold along with skins of wild lives he was carrying with him. Sri Singh believing the informer left the place and proceeded with the force to spot indicated by the informer in search of the person informed about. He reached with the police force and the informer near a temple situated along Dev Kali Road. The informer informed him that the person involved in smuggling the wild lives skin might be caught hold near that place. Sri Singh accordingly parked his jeep in a grove near the temple and stayed there to wait the person informed about. A person was seen coming from the Dev Kali Road, he flashed torch light on him. The informer pointed out towards him that he was the person who is involved in smuggling of wild lives skin. Sri Singh tried to stop him but he retracted his steps and tried to escape away. Sri Singh with the help of police force caught hold him. He interrogated him, who on interrogation told his name as Samiuddin, S/o Alauddin Shastri, R/o Sidhnagar, P.S. Hazra, District Pilibhit. He was having two plastic bags when Sri Singh inquired about the things he was having in his two plastic bags, he informed that he was having horn of Rhinoceros, piece of sandle wood, nails of tiger and skins of crocodile. Sri Singh thereafter searched the two bags which the person was carrying after observing the requisite formalities provided under the Code. He on search found therein one horn of rhinoceros which were in two pieces weighing about two and half kg. The international price of said horn was about Rs. 10.00 lakh. He further found one skin of crocodile which was about 5 cubit long. The international price of said skin was about Rs. 2.50 lakh. He also found one piece of sandle wood which was more than one cubit long. The international price of sandle wood was about Rs. 1.00 lakh. He also found two nails of tiger whose international price was about Rs. 50, 000/-. The accused failed to produce any document for having wild lives skin, horn, sandle wood, etc. Sri Singh thereafter seized the articles found in the two plastic bags and sealed them in the same bag from which they were recovered and got a recovery memo prepared. He took the accused to P.S. Kotwali Lakhimpur Kheri and lodged him there in the police lock-up and handed over the recovered articles along with recovery memo to Head Constable-Rajendra Prasad of P.S. Kotwali, Lakhimpur Kheri who on the basis of recovery memo prepared chik F.I.R. and registered two separate cases at Crime No. 439/2005, under Section 51 of Wild Life Protection Act and at Crime No. 440/2005, under Section 4/10 of U.P. G.T.P. Act for investigation.
The case was being investigated by the Investigating Officer of Civil Police, later on it was transferred by the State Government to the CBCID for investigation. The Investigating Officer of the CBCID during the course of investigation of the case recorded the statement of the persons acquainted with the facts and circumstances of the case and found that no independent witness was called upon by the complainant (Seizing Officer), therefore, their statements (police personnel only) were not sufficient to show the involvement of the accused in commission of the offecne. The Investigating Officer thereafter submitted final report in favour of the accused.
The complainant-S.I., Manoj Kumar Singh thereafter filed a protest petition on 16.6.2007 against the final report submitted by the Investigating Officer before the learned Chief Judicial Magistrate, Lakhimpur Kheri. It appears that the application was transferred by the Chief Judicial Magistrate to the court of First Additional Chief Judicial Magistrate, Lakhimpur Kheri for disposal. The complainant thereafter filed another protest petition on 30.5.2009 before the Chief Judicial Magistrate, Lakhimpur Kheri against the final report submitted by the Investigating Officer. The first protest application was recalled by the Chief Judicial Magistrate from the court of First Additional Chief Judicial Magistrate on the written request of the complainant and both the protest applications were considered by the learned Chief Judicial Magistrate who by the impugned order dated 09.9.2010 allowed the applications and quashed the final report submitted by the Investigating Officer. He ordered for re-investigation of the case. The accused being aggrieved by the impugned order has filed the present criminal revision.
The first submission of learned counsel for the revisionist is that the complainant Manoj Kumar Singh had lodged the First Information Report in the capacity of Sub Inspector on behalf of the State but he had moved the protest petition in his personal capacity. On the first protest petition, the First Additional Chief Judicial Magistrate had observed that Manoj Kumar Singh had lodged the First Information Report on behalf of the State. He had no personal locus standi to move the protest petition, therefore, he ordered to issue notice to the District Magistrate. This order was not challenged by the complainant, therefore, this order had become final. Both the protest petitions filed by the complainant were, therefore, not maintainable. The impugned order allowing both the protest petitions is, therefore, illegal and liable to be quashed.
The second submission of learned counsel for the revisionist is that the learned Chief Judicial Magistrate while setting aside the final report has ordered for re-investigation of the case while Section 173 (8) of the Code provides for only further investigation of the case, therefore, the impugned order passed by the learned Chief Judicial Magistrate for re-investigation of the case is illegal and liable to be quashed.
Learned counsel for the revisionist in support of his argument has placed reliance on cases Ramachandran Vs. R. Udhayakumar and Others reported in (2008) 5 Supreme Court Cases 413 and Reeta Nag Vs. State of West Bengal and Others reported in [2010 (70) ACC 571] decided by the Hon'ble Apex Court.
Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate although did not dispute the submission of the learned counsel for the revisionist. He argued that a Magistrate cannot order for re-investigation of a case after submission of final report by the Investigating Officer in view of the provision contained under Section 173 (8) of the Code. He further argued that in this case the learned Magistrate by the impugned order has ordered for re-investigation of the case it will be simple a mistake of using word 're-investigation' in place of 'further investigation'. The order of re-investigation passed by the learned Magistrate will be treated as further investigation. The order passed by the learned Magistrate may accordingly be modified. Sri Dwivedi in support of his argument has placed reliance on cases Gopi Singh Vs. State of U.P. & Anr. reported in [2009 (1) JIC 861 (All)] decided by this Court and Ramachandran Vs. R. Udhayakumar and Others (Supra) decided by the Hon'ble Apex Court.
I have given thoughtful consideration to the submissions advanced by learned counsel for the revisionist and learned A.G.A.
As regards the first submission of the learned counsel for the revisionist, Sri Manoj Kumar Sing, S.I. is the seizing officer of the articles found in possession of the accused. He had got seizure memo prepared. On the basis of seizure memo, a case was registered by the police of P.S. Kotwali, Lakhimpur Kheri against the accused. He being seizing officer is the complainant of the case. He, therefore, could very well move the protest petition against the final report submitted by the Investigating Officer. It will hardly make any difference that he had filed the protest petition engaging private counsel. The integrity of the complainant was at stake if the final report was accepted by the learned Chief Judicial Magistrate and the learned prosecuting officer appearing for the State was not moving any protest petition to reject the final report submitted by the Investigating Officer. The complainant could, therefore, move the protest petition against the final report submitted by the Investigating Officer. I, therefore, do not find any force in the first submission of the learned counsel for the revisionist.
As regards, the second submission of the learned counsel for the revisionist, in the case of Reeta Nag Vs. State of West Bengal and Others (Supra), the facts were that the Investigating Officer after investigation of the case submitted charge-sheet against the accused before the Sub Divisional Judicial magistrate who took cognizance of the offence and framed charges against the accused. The de-facto complainant moved an application for re-investigation of the case and the learned Magistrate ordered for re-investigation of the case which was challenged by the accused before the Calcutta High Court by filing petition under Section 482 of the Code. The High Court allowed the petition of the accused and observed that the Magistrate could not order for re-investigation of the case especially when he had framed charges against the accused. The proper course for him was to have recourse Section 319 of the Code. The complainant challenged the impugned judgment passed by the High Court before the Hon'ble Apex Court by filing SLP (Crl.) No. 3062 of 2007 which was dismissed by the Hon'ble Apex Court with the observation that the Magistrate was not competent to order for re-investigation of the case especially when after taking cognizance of the offence on the police report had framed charges against the accused for trial.
In the case of Ramachandran Vs. R. Udhayakumar and Others (Supra), the complainant had filed a petition before the High Court of Madras for transfer of the investigation of the case to some other Investigating Agency. The court allowed his petition and transferred the investigation to CBCID for investigation afresh. The order passed by the High Court runs as under:
"Under the above facts and circumstances of the case in the interest of justice, the case Crime No. 39/2004 on the file of the fourth respondent stands transferred to the Deputy Superintendent of Police, CB CID, Madurai who shall entrust this case to a competent and efficient Inspector of Police for the purpose of reinvestigation in this case. The Inspector of Police who is nominated by the Deputy Superintendent of Police, CB CID shall afresh investigate the matter and file the final report within a period of three months from the date of receipt of a copy of this order from this Court. The fourth respondent shall forthwith hand over the case records in Crime No. 39/2004 to the officer nominated by the Deputy Superintendent of Police, CB CID, Madurai. The petitioner stands ordered accordingly. Consequently, connected miscellaneous petition is closed."
The accused being aggrieved by the order passed by the High Court filed SLP before the Hon'ble Apex Court. The Hon'ble Apex Court disagreed with the order passed by the High Court for fresh investigation. The Hon'ble Apex Court held that as per provision contained under Section 173 (8) of the Code, the court can order for further investigation not for re-investigation. The Hon'ble Apex Court allowed the appeal with the observation instead of fresh investigation there can be further investigation, if required under Section 173 (8) of the Code.
In the case of Gopi Singh Vs. State of U.P. & Anr. (supra), the fact of the case in nutshell were that the petitioner had lodged a written report at P.S. Gonda, District Aligarh against the accused. The police of P.S. Gonda on the written report of the petitioner registered a case under Section 420 IPC against the accused for investigation. The Investigating Officer did not find prima facie evidence in support of the offence alleged to have been committed by the accused consequently he submitted final report in favour of the accused. The complainant filed protest petition against the final report submitted by the Investigating Officer. The learned Magistrate allowed the protest petition and ordered for re-investigation of the case. The accused thereafter challenged the order passed by the learned Magistrate in revision which was allowed by the learned Additional Sessions Judge and the order passed by the learned Magistrate was set aside. The learned Additional Sessions Judge observed that the learned Magistrate could not order for re-investigation of the case; rather he could order for further investigation of the case under Section 173 (8) of the Code. The complainant challenged the order passed by the learned Additional Sessions Judge before this Court under Section 482 of the Code. The matter came up before the Court for consideration as to whether a Magistrate is empowered to pass an order for re-investigation or further investigation? The Court after going through the number of case laws decided by the Hon'ble Apex Court on the point in issue, held that a Magistrate cannot order for re-investigation of the case; rather he can order for further investigation of the case in view of the provision contained under Section 173 (8) of the Code. The Court thereafter modified the order passed by the learned Magistrate to the extent that instead of re-investigation of the case there will be further investigation of the case.
So far as law laid down by the Hon'ble Apex Court in the case of Reeta Nag Vs. State of West Bengal and Others (Supra), the facts were different. In that case, the Hon'ble Apex Court found that the Sub Divisional Judicial Magistrate taken cognizance of the offence on the basis of police report and framed charges against the accused for trial. The Hon'ble Apex Court held that when a Magistrate takes cognizance on a charge-sheet and frames charges against the accused, thereafter he cannot order for re-investigation of the case. In this case, the learned Magistrate has not taken cognizance of the offence; rather he has ordered for re-investigation.
In the case of Ramachandran Vs. R. Udhayakumar and Others (Supra) the Hon'ble Apex Court and in the case of Gopi Singh Vs. State of U.P. & Anr. (supra) this court have specifically held that a Magistrate has no power to order for re-investigation of the case; rather he can order for further investigation of the case in view of the provision contained under Section 173 (8) of the Code.
In the the case of Ramachandran Vs. R. Udhayakumar and Others (Supra), the Hon'ble Apex Court disapproved the order passed by the High Court for fresh investigation of the case; rather observed that there can be further investigation of the case as provided under Section 173 (8) of the Code. The relevant observation of the Hon'ble Apex Court finds place in para 8 of the judgment which is being extracted below:
"In view of the position of law as indicated above, the direction of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by CB CID as directed by the High Court."
In the case of Gopi Singh Vs. State of U.P. & Anr. (supra) this Court followed the principle of law laid down by the Hon'ble Apex Court in the cases referred therein has held that a Magistrate under Section 173 (8) of the Code cannot order for re-investigation of the case; rather he can only order for further investigation of the case as provided under Section 173 (8) of the Code. The court accordingly modified the order passed by the learned Magistrate for re-investigation of the case and ordered for further investigation of the case in view of the provision contained under Section 173 (8) of the Code.
In view of the law laid down by the Hon'ble Apex Court as well as by this Court in the above cited cases, the revision may be disposed of by modifying the impugned order passed by the learned Chef Judicial Magistrate, Lakhimpur Kheri to the extent that the case will not be re-investigated; rather it will be further investigated by the Investigating Officer to whom the investigation of the case has been entrusted.
With the aforesaid observation, the criminal revision stands disposed of.
December 16th, 2010 Santosh/-