HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE No.683 OF 2012 Dated 20-1-2014 Between:
Simhadri Satyanarayana and others.
…Petitioners.
And:
State of A.P. represented by its Public prosecutor, High Court of A.P., Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISON CASE No.683 OF 2012 ORDER:
This revision is preferred against judgment dated 27-3-2012 in Crl.M.P.No.289 of 2012 in C.C.No.937 of 2011 on the file of Chief Metropolitan Magistrate, Vijayawada whereunder trial judge permitted the Investigating Officer to investigate further and alter section of law by adding Section 3(1) (ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Attrocities) Act, 1989 (For short ‘Act’).
2. The brief facts leading to this revision are as follows:
Revision petitioners are accused in C.C.No.937 of 2011 on the file of Chief Metropolitan Magistrate, Vijayawada who are facing a charge for the offence under Section 326 read with 34 I.P.C. The prosecuting agency filed petition before the trial court contending that the victim is a member of Scheduled caste and the incident attracts the provisions of the Act and investigation has to be conducted by competent authority i.e., Assistant Commissioner of Police, Vijayawada and therefore, prayed the trial court to accord permission.
3. Revision petitioners opposed the petition on the ground that the victim was never threatened or abused in the name of his caste and none of the prosecution witnesses stated anything attracting the provisions of the Act. It is further contended that the petition is filed intentionally and purposefully to harass the accused. On considering the contentions and rival contentions of both parties, the trial court allowed the petition and aggrieved by which, the present revision is preferred.
4. Heard both sides.
5. Advocate for revision petitioners contended that Section 173(8) Cr.P.C. would attract only when the officer-in-charge of Police Station obtains further evidence oral or documentary but here in this case, the fact that victim belongs to Scheduled Caste is not a new fact and it is already available on record. He submitted that in the statement recorded by the Investigating officer, caste of victim is clearly recorded and there is also clear statement from the victim and other witnesses that the accused abused in the name of caste and therefore, the question of making further investigation does not arise. It is submitted that provisions of Section 173 (8) Cr.P.C. are no way applicable and the trial court ought to have dismissed the petition and by allowing it, the court below committed illegality.
6. On the other hand, it is the contention of learned Public Prosecutor that prosecuting agency can further investigate with the permission of the court and there is nothing wrong in according permission.
7. Now the point that would arise for my consideration in this revision is whether the order of the court below is legal, correct and proper?
8. POINT:
Admittedly, after due investigation, respondent- police filed charge sheet against the revision petitioners for an offence under Section 326 read with 34 I.P.C. It is also clear from the record that the petition under Section 173(8) Cr.P.C. is filed when the matter is at the stage of furnishing copies to the accused. To appreciate contentions and rival contentions of both parties, it is necessary to verify Section 173 (8) Cr.P.C. which reads as follows:
“Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).”
9. From a reading of the above provision, it is clear that further investigation is permitted. The only condition is that after filing of a final report, the Investigating Officer should collect further evidence either oral or documentary, then only he can forward the same to the court under Section 173(8) Cr.P.C.
10. The Honourable Supreme Court in RAMA
[1]
CHAUDHARY v. STATE OF BIHAR ( ) has distinguished the word ‘fresh investigation’ from the word fresh investigation or ‘re-investigation’. In that decision, the Honourable Supreme Court held that the police has a right to further investigation but not fresh investigation or re-investigation under Section 173(8) Cr.P.C. and defined the word further as additional, more or supplemental.
11. Here in our case, the material was already there but Investigating Officer has not verified with the material before preparing final report and now under the guise of Section 173(8) Cr.P.C., wants to conduct further investigation which ultimately amounts to re-investigation.
The offence under the Act have to be investigated by police officer not below the rank of Deputy Superintendent of Police, So, now the prosecution wants to get the matter investigated through an officer of the rank of Assistant Commissioner of Police which would amount to re- investigation. Since re-investigation is not permissible as rightly pointed out by advocate for revision petitioners, the trial court committed error in permitting the prosecuting agency.
12. For these reasons, I am of the view that the impugned order is liable to be set aside.
13. Accordingly, this Criminal Revision Case is allowed at the admission stage.
14. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
Dated 20-1-2014.
Dvs KUMAR JUSTICE S.RAVI HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL REVISON CASE No.683 OF 2012 Dated 20-1-2014 [1] (2009) 6 SCC 346