Court No. - 81
Case :- CRIMINAL REVISION No. - 2061 of 2021 Revisionist :- State of U.P. Opposite Party :- Ram Karan Patel Counsel for Revisionist :- G.A.
Hon'ble Shamim Ahmed,J.
Learned counsel for the revisionist prays for and is permitted to make necessary correction in the prayer clause during the course of the day.
Heard Sri Manish Goyal, learned Additional Advocate General assisted by Sri Arunendra Kumar Singh and Sri Abhijeeet Mukherjee, learned A.G.A.
This revision has been preferred on behalf of the State to set aside the judgment and order dated 10.08.2021 passed by learned Additional Sessions Judge, FTC First-Mirzapur in Misc. Case No. 483 of 2021 (State Vs. Ram Karan Patel) arising out of Case Crime No. 33 of 2021, under Section 8/20 N.D.P.S. Act, P.S. Kotwali Dehat, District Mirzapur.
Learned counsel for the revisionist submits that the facts of the case in short is that police of police station Kotwali Dehat registered a case as Case Crime No. 0033 of 2021, under Section 8/20 of NDPS Act at Police Station Kotwali Dehat, Ditrict Mirzapur against Vikram Singh Soni, Rakesh Singh Yadav & Amit Patel on 04.02.2021 and a vehicle bearing no. UP70FL4342 which was carrying 50 kg Marijuana was seized. It was further argued that after investigation, the police has submitted charge sheet bearing charge sheet no. 01 of 2021 in the aforesaid case against Vikram Singh Soni, Rakesh Singh Yadav & Amit Patel. Thereafter, the Superior Officer of the police unit being not satisfied with the earlier investigation had ordered for further investigation on 03.04.2021 and specific direction was given to further investigate the matter regarding the involvement of the owner of the vehicle.
Learned counsel for the revisionist further submits that after the order of Superior Officer, the police had started thorough investigation in the matter and proceeded to record the statements of Sanjay Kumar Patel and nanhe Lal Patel who are the resident of the same village of the accused. Thereafter, the aforesaid persons have given statement against the accused. He further submits that the accused was arrested on 18.06.2021 and thereafter, he has moved his bail application before the court below on 24.06.2021. During the pendency of the bail application, charge sheet was submitted against him on 19.06.2021.
It was further argued that the counsel for the accused namely Sri Vinod Kumar Mishra has appeared before the court below and filed an application 3Ka on 22.07.2021 against the police officials with a delay of more than one month at the stage of taking cognizance on the charge sheet dated 19.06.2021 which was considered by the court below. A bare perusal of the application 3Ka moved by the counsel for the accused would demonstrate that the application contains independent allegation against the officials which do not relate to any offence in the present case in which police have filed charge sheet against the accused. It was further submitted that the application 3Ka containing different set of allegations against the police by an independent person could have been treated as an independent case at best.
Learned counsel for the revisionist further submits that the impugned order dated 10.08.2021 passed by the court below is without jurisdiction. He further submits that the court below has completely failed to consider the case and has passed the impugned order at the stage of taking cognizance on the charge sheet dated 19.06.2021 while considering the extraneous material filed by the counsel for the accused on his personal capacity and after relying on the said material. He further submits that the material so produced by the accused-opposite party before the court below was considered and as such the impugned order was passed merely on the basis of an application dated 22.7.2021 which was filed in a personal capacity by the Advocate of the accused which is not permissible under the law. It was further argued that the court below has completely failed to consider that the counsel for the accused-opposite party had filed the application in his personal capacity and he is not effected party in the present case, hence, in the absence of any locus of the counsel for the accused-opposite party who move an application on his behalf, the court below was not just and proper to pass the impugned order. He further submits that the court below has exceeded its jurisdiction for which it was not empowered of. In support of his argument, learned counsel for the revisionist has placed reliance on the judgment of Hon'ble Apex Court in the case of Vinay Tyagi Vs. Irshad Ali (2013) 5 SCC 762 and has referred paragraph 40, 41, 42, 43, 46, 49, 50 and 51 of the aforesaid judgment which is reproduced hereinbelow :
40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :
1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173(6) of the Code.
3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.
41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to173(6) would be applicable to such reports in terms of Section 173(8) of the Code.
42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of Section 227 of the Code.
43. At this stage, we may also state another well-settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo', and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
46. The Code does not contain any provision which deals with the court competent to direct 'fresh investigation', the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a 'fresh'/'de novo' investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon 'further investigation' or a report upon 'fresh investigation', shall have to be construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction.
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8)have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct 'further investigation' or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct 'further investigation' and file 'supplementary report' with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct 'further investigation' and/or to file a 'supplementary report' will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
50. Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore- noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.
51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct 'further investigation' on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms ofSection 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further substantiate its charge sheet.
The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this court in the case of Sivanmoorthy and Others v. State.
Learned counsel for the revisionist further submits that the impugned order was passed without application of mind and is wholly illegal, improper, arbitrary and against the settled proposition of law and is purely based on imagination. He further submits that in the operative portion of the impugned order certain directions were issued for which the court below has no jurisdiction to pass such directions and the directions contained in paragraph 55, 56, 57 and 58 are totally without jurisdiction as the court below was only exercising power to take cognizance on the charge sheet but from the perusal of the directions, it appears that the court below has decided the case on merits. As far as the directions issued in paragraph 53 of the order impugned is concerned in which the court below has confined the investigation only to the directions issued in paragraph 44 which is illegal whereas the scope for further investigation is unlimited to come to the correct conclusion of the facts of the case. The same be done in accordance with law.
After considering the arguments as advanced by Sri Manish Goyal, learned Additional Advocate General and in view of the law laid down by the Hon'ble Apex court in the case of Vinay Tyagi (supra), this court is of the view that the court below certainly exceeded its jurisdiction in passing the direction contained in paragraph 55, 56, 57 and 58 of the impugned order dated 10.08.2021. So far as the directions issued in paragraph 53 of the impugned order is concerned, the Investigating Officer is directed to further investigate the matter afresh in accordance with law without being influenced by the observations made in paragraph 53 of the impugned order.
Matter requires consideration on law and facts both. Admit.
Issue notice to the opposite party by R.P. (A.D.). Steps be taken within ten days.
Opposite party may file counter affidavit within a period of three weeks after service of notice. Rejoinder affidavit, if any, may be filed within a period of two weeks thereafter.
Put up this case on 22.11.2021 in the additional cause list before the appropriate Bench.
Till the next date of listing, the effect and operation of the impugned order dated 10.08.2021 shall remain stayed. So far as it relates to the directions contained in paragraph 55, 56, 57 and 58 of the impugned order and further the Investigating Officer is directed to investigate the matter in accordance with law without being influenced by the observations made in paragraph 53 of the impugned order dated 10.08.2021.
Order Date :- 30.9.2021 SA