JUDGMENT Vinod Prasad, J.
1. Both - Criminal Miscellaneous Application No. 16591 of 2005 filed by Ajay Kumar and Criminal Miscellaneous Application No. 335 of 2006 filed by Vinay Kumar, Aditya Kumar, Lalla Babu, Radhey Lal Tiwary and Siya Ram, under Section 482 Cr.P.C., have the common prayer viz.-to quash the charge sheet submitted by C.B.C.I.D. being C.B. No. 609 of 2002 (Crime No. 158 of 2002), under Sections 147, 148, 149, 307, 302 I.P.C., P.S. Thathiya, district Kannauj, pending before C.J.M. Kannauj and for stay of further proceeding of the lower court in pursuance of the aforesaid charge sheet hence both the above Criminal Miscellaneous Applications were clubbed together and are being disposed off by this single common order which is to be taken to be an order passed in both the above applications.
2. The proceeding facts necessary for adjudication of both the above applications are briefly stated here. Neelesh Kumar son of Bhagwan Das resident of Rikkhapurwa, P.S. Thathiya, district Kannauj lodged a F.I.R. on 7.10.2002 at 2.45 P.M. at P.S. Thathiya, district Kannauj, under Sections 147, 148, 149, 307, 302 I.P.C. vide Crime No. 158 of 2002 with the allegations that the informant along with his father Bhagwan Das aged about 55 years, mother Smt. Lajjawati aged about 50 years, brother Awadesh Kumar, Rajesh Kumar, Sarvesh Kumar and cousin brother Bhagirath Kumar and Amit Kumar were sitting at the door of their aforesaid cousin brothers Bhagirath Kumar and Amit Kumar then, at 2.00 P.M. that day (7.l0.2002) the accused Vinay Kumar, Ajay Kumar, Aditya Kumar all sons of Lalla Babu @ Ram Gopal Awasthi, accompanied by their father Lalla Babu @ Ram Gopal, Radhey Lai Tiwari, and Siya Ram driver came to that place armed with rifle, gun and contrymade pistols and opened indiscriminate firing on the informant and his family members. Accused Ajay was armed with rifle. As a result of firing Bhagwan Das father of the informant sustained bullet injury and died on the spot, Smt. Lajjawati, mother of the informant also sustained bullet injuries. Carrying his injured mother to the police station the informant lodged the F.I.R. at the police station Thathiya which was registered as crime number and above offences mentioned. The mother of the informant also succumbed to the injury subsequently. The registration of FIR was followed by investigation by S.O. K.R. Bhartiya of P.S. Thathiya who conducted the investigation till 27.10.2002. How ever on 28.10.2002 the investigation was transferred by superintendent of Police Kanauj to Santosh Kumar, S.O. Police Station Tirwa as it transpires that the named accused persons were not arrested by that date by the then investigating officer K.R. Bhartiya. Subsequently, it transpires that the aforesaid investigation was re-transferred by the Government to CBCID vide fax No. 8723 B/5- pu-32002-11531 V/2002 dated 18.11.2005 sent by Joint Secretary Government of U.P. The investigation was transferred to C.B.C.I.D. at the behest of Smt. Ram Kishori wife of Lalla Babu accused on her application dated 19.10.2002 addressed to The Chief Minister, U.P. C.B.C.I.D. hence forth conducted the investigation and submitted a charge sheet in the court on 31.8.2005 vide charge sheet No. 16 of 2005 for offences under Sections 147, 148, 149, 302, 307 I.P.C. against the accused applicants Aditya Kumar, Vinay Kumar, Ajay Kumar, Siya Ram, Radhey Lai Tiwari and Lalla Babu @ Ram Gopal . Awashti. First of all accused Ajay Kumar (applicant in Criminal Miscellaneous Application No. 16591 of 2005) approached this Court under its inherent jurisdiction under Section 482 Cr.P.C. for quashing of the aforesaid charge sheet in which this Court on 14.11.2005 passed an interim order stopping coercive steps against the applicant while issuing notice to the opposite party No. 2 and granting time to him to file a counter affidavit. Armed with the aforesaid order other accused persons Vinay Kumar, Aditya Kumar, Lalla Babu @ Ram Gopal Awasthi, Radhey Lai Tiwari and Siya Ram also filed Criminal Miscellaneous Application No. 335 of 2006, but no interim order was passed in their favour, How ever both the above applications were ordered to be connected on 23.1.2006 by me and both the applications are being disposed off by this common order.
3. I have heard Sri Dharmendra Singhal, learned Counsel for the applicants in both the cases and leaned A.G.A. in opposition at a great length and have gone through the record of both the applications.
4. It is contended by learned Counsel for the applicants that initially the investigation in the crime was conducted by K.R. Bhartiya, S.O. P.S. Thathiya, district Kannauj and subsequently it was conducted by Santosh Kumar S.O. Police station Tirwa who had completed all the investigation but for filing the charge sheet. He further contended that meanwhile the investigation was transferred to C.B.C.I.D. On 18.11.2002 by the state government and the Inspector C.B.C.I.D. conducted a re-investigation/de-novo investigation, which is not permissible in law in view of Section 173(8) Cr.P.C. and therefore, the charge sheet submitted by the C.B.C.I.D. in the court of C.J.M. Kannauj is absolutely illegal and deserves to be quashed as the C.B.C.I.D. had no power to make reinvestigation. The submission advanced is that Section 173(8) Cr.P.C. prohibits re-investigation. It only sanctions further investigation. Concluding the submission learned Counsel for the applicants contended that the charge sheet submitted in pursuance of re-investigation/ de novo investigation does not have the sanction of law and deserves to be quashed.
5. Learned A.G.A. on the contrary contended that Section 173(8) Cr.P.C. does not engulf within its purview an investigation stage when the charge sheet has not been submitted in the court and consequently the applications is merit less and deserves to be dismissed as before the C.B.C.I.D. the local police had not submitted any charge sheet in the court.
6. For considering the rival submissions a brief legislative history of Section 173 Cr.P.C. is necessitated. Present Section 173 Cr.P.C. is preceded by the same Section 173 Cr.P.C. of the code of 1898 (Old Code). It was felt by the legislators that hindrance was being caused to the investigating agency on discovery of new or additional material in the crime for offences where it had already submitted its report-charge sheet to the Magistrate in making further investigation. Because of the aforesaid felt difficulty The Law Commission in its 41st report vide para 14.21 to 14.23 at pages 78 and 79 of its report recommended for arming the police with the power to make further investigation on discovery of the new/ additional material after submission of it's report in the court. The said recommendation of The Law Commission is reproduced below:
A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused, it should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.
7. The said report yielded in enactment of Section 173(8) Cr.P.C. in the code of Criminal Procedure Code 1973 (new code). Section 173(8) Cr.P.C. had no paramateria under the old code. The new Section 173(8) Cr.P.C. is referred to below:
Section 173(8) Cr.P.C. : 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 subsection (2).
8. For the sake of brevity, only the aforesaid addition has been referred to by me in this order though there were other changes also enacted in the aforesaid Section 173 Cr.P.C. of the old code eg : section 173(7) of the new code is also a new addition which was not there under the old code. Thus, the report of The Law Commission resulted in enactment of present Section 173(8) Cr.P.C. in the new code.
9. From the perusal of the phraseology of Section 173(8) Cr.P.C it transpires that the following words in the said subsection are contained in one sentence without any comma or full stop -- "nothing in this Sections shall be deemed to preclude further investigation in respect of offence after a report under Sub- Section (2} has been forwarded to the Magistrate and'. (emphasis supplied), A perusal of the aforesaid portion of sub- section (8) of Section 173 clearly indicates that Section 173(8) Cr.P.C. is infused with life only when the report under Sub-section (2) of Section 173 Cr.P.C. has been forwarded to the Magistrate. The said sub section does not have any application whatsoever before that stage. This interpretation is in consonance with the reasoning that so long as the matter is not brought before the Court through a report under Section 173(2) Cr.P.C. the question of further investigation does not arise at all as the offence/ crime continues to be under Investigation with the police and hence there is no further investigation which is to be conducted. Till the stage of submission of charge sheet the investigation continues to be in progress and is governed by Regulation 104, 105, 106 of U.P. Police Regulations. The applicability of the said regulation comes to an end only after the charge sheet is laid before the Magistrate concerned. The aforesaid regulations do not contemplate any further or reinvestigation. For the sake of clarity Regulations 104, 105 and 106 of the U.P. Police Regulations are quoted below:
104. When a report of a cognizable offence is received, the officer-in-charge of the station must decide whether an investigation is desirable. In exercising the discretion allowed by Section 157(1)(b) of the Code of Criminal Procedure, he should consider whether the case is for the civil rather than for the criminal Courts and whether action by the police is necessary in the interest of administration or expedient for the preservation of law and order.
No investigation should be made if the subject-matter of the complaint appears to fall within the scope of Section 95 of the Indian Penal Code, or if the complainant appears to be setting up a technical offence or exaggerating a trivial occurrence in order to obtain the help of the police in persecuting a quarrel.
No investigation should be made in the following circumstances, except on the order of the Superintendent of Police, in any particular case, or with the concurrence of the Deputy Inspector General, in respect of any particular class of offence in any particular area :
(1) In cases of petty theft or burglary, unless there is reason to believe that professional criminals have been concerned, or the criminal has been arrested and the complainant desires a prosecution.
(2) In cases under Sections 324 and 325 of the Indian Penal Code.
(3) In cases under Section 147 of the Indian Penal Code, unless grievous hurt has been caused or there is danger of a further serious breach of the peace.
(4) In cases under Sections 341 to 344. (Unless the confinement continues at the time when the report is made) 454, 347 and 448 of the Indian Penal Code.
(5) In cases under Sections 406 and 420 of the Indian Penal Code, when there is prima facie evidence that case is of a civil nature.
105. Whenever the officer-in-charge of a police station decides that a cognizable case will not be investigated, he must, in order to comply with the provisions of Section 157(2) of the Code of Criminal Procedure, enter on the original and triplicate copies of the first information report his reasons for not investigating the case. He must also note on the duplicate copy, which will be given to the person who has made the report, the fact that no investigation will be made. Whenever he makes or orders an investigation otherwise than on the order of the Superintendent of Police into any case or any of the classes enumerated in Clause (3) of Paragraph 104 he must record in the general diary his reasons for doing so.
106. Investigation should ordinarily be carried out and completed on the spot, except in cases falling under Section 157(1)(a) of the Code of Criminal Procedure. If, however, the scene of the offence is close to the police station, as in towns, and the case is not covered by Section 157(1)(a) the investigating officer may/ after visiting the spot, return to the police station to complete the investigation. Any police officer proceeding on an investigation of a serious offence is permitted by the railway authorities to travel by the first available train. Passenger or goods but he may not stop it out of course.
10. Thus from the above discussion it is perceptibly clear, without any ambiguity, that Section 173(8) Cr.P.C. applies only when a report under Sections 173(2) Cr.P.C. is laid before the Magistrate concerned and not prior to it.
11. Now turning to the facts of the present case and applying the said legal principle on the facts of the present case it is undisputed that in crime number 158 of 2002 no charge sheet was laid by the I.O. of police station Thathiya, or second I.O. of Police station Tirwa who had conduced earlier investigations. They had not even framed the charge sheet. Consequently, at the time when the investigation was handed over to C.B.C.I.D. the charge sheet (report under Section 173(2) Cr.P.C.) had. not even been prepared and the crime was still under investigation. It was C.B.C.I.D. who had framed the report under Section 173(2) Cr.P.C. and had submitted it before the Magistrate on the basis of which cognizance has been taken by C.J.M. Kannauj. In this view of the factual matrix the contention of the learned Counsel for the applicants that there was further investigation or de novo investigation by the C.B.C.I.D. does not hold good and deserves to be rejected and I hereby reject the same. It is to be noted that the Apex Court in case of Ram Lal Naranq v. State (Delhi Administration) reported in 1979 SCC (Cr.) 479 has held that even after submission of charge sheet the police has got a statutory right to make further investigation under Section 173(8) Cr.P.C. It has held:
In our view notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of 1998 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light.
12. In AIR 1945 P.C. 18 King Emperor v. Khwaza Nazir Ahmad it has been held by the Privy Council that the function of the Court starts only when the investigation is over. The function of the police and the Court is complementary to each other. The areas of activity of the police as well as of the Court falls in different spheres- investigation is within the realm of the police and the function of the Court starts only when the police has submitted it's report to it. Thus, in view of what has been stated herein before the contention of learned Counsel for the applicant cannot be accepted.
13. Summing up both the Criminal Miscellaneous Applications, being Criminal Miscellaneous Application No. 16591 of 2005 Ajay Kumar v. State of U.P. and Anr. and Criminal Miscellaneous Application No. 335 of 2006 Vinay Kumar and Ors. v. State of U.P. and Anr., lacks merit and are dismissed . The stay order granted by this Court in Criminal Miscellaneous Application No. 16591 of 2005 Ajai Kumar v. State of UP and Anr., vide order dated 14.11.2005 is hereby vacated.
14. Let a copy of this order be sent to the trial court within a week from today for it's intimation and further action. The trial court will do well to expedite the trial of the case as the offence is of the year 2002.