State of Bihar v. N. Nagmani — 1976 DIGILAW 118 (PAT)

JUDGMENT Nagendra Prasad Singh, J. This application has been filed on behalf of the State of Bihar under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code)' for quashing an order, dated the 20th April 1976 passed by the Additional Sessions Judge, Fourth Court, Patna, during the course of trial of the accused-opposite party for offences under section 302, read with section 201 of the Indian Penal Code. 2. From the statements made in the application it appears that a case was registered by the Bukhtiarpur police station on the 3rd March, 1973 in connection with the alleged murder of the wife of the accused opposite party in the night of 2nd/3rd March, 1973. After investigation, a final form, in accordance with the provisions of section 173 (I) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'old Code' was submitted on the 21st January, 1974, in the court of the Sub-divisional Magistrate, Barh. In due Course the accused-opposite party was summoned to stand his trial and thereafter an inquiry under Chapter XVIII of the old Code was started. While the Commitment inquiry was pending, the Code of Criminal Procedure, 1973 came into force on the 1st April, 1974; and in view of the proviso to sub-section (2) of section 494 or the Code, an order of commitment was passed in accordance with the provisions of section 209 of the Code. Sessions trial of the accused-opposite party was taken up on the 19th August, 1975, when charges under section's 302 and 201 of the Indian Penal Code were framed against him. According to the petitioner, the 24th November, 1975 was a date fixed for examination of the prosecution witnesses, and thereafter several witnesses were examined on behalf of the prosecution. It has been stated in paragraph 8 of the application filed before this court that, during the course of the trial, it transpired that certain facts required further clarification and it was thought desirable to hold a further investigation under section 173 (8) of the Code. It has been further stated that accordingly, the investigating officer of the case submitted a supplementary diary which had been recorded during the further investigation. It has been further stated that accordingly, the investigating officer of the case submitted a supplementary diary which had been recorded during the further investigation. A petition, together 'with the supplementary case diary, was filed on the 14tb April, 1976 before the learned Additional Sessions Judge, saying that further investigation bad been held in the case by the investigating officer, who had forwarded a report regarding the evidence collected by him copies whereof had been furnished to the accused opposite party, and it was being filed in Court in accordance with the provisions of sub-section (8) of section 173 of the Code. A prayer was, therefore, made that the materials produced by the investigating officer may be taken into evidence and the prosecution may be allowed to lead evidence on the basis thereof. 3. During the hearing of the application in this Court a copy of the said petition was produced by the learned counsel appearing for the petitioner, along with which a copy of the report of the investigating officer, referred to above, is also enclosed. The relevant portion of the report says that, in course of the trial of the case in the Sessions Court, during the cross-examination one prosecution witness Lakhan-Prasad, who was the Secretary to the then Health Commissioner (Accused), had introduced an ambiguity by his answer to a question put on behalf of the accused that the mother of the accused-opposite party was hospitalized and operated upon in the Patna Medical College Hospital in March, 1973. That had created some confusion in the sequence of events and as such, it was necessary to make further investigation in the matter. Thereafter, he reported what he had found on further investigation, about the admission and the operation of the mother of the accused in March, 1973. 4. The learned Additional Sessions Judge, after hearing the parties, by the impugned order, rejected the said petition, taking the view that, once the sessions trial had commenced, the investigating officer could not hold further investigation in connection with the said case and that also for taking away the effect of the statement made during the cross-examination of a prosecution witness. 5. Learned counsel appearing (or the petitioner has submitted that the reason given for rejecting the petition filed on behalf of the prosecution cannot be sustained in law and is against the provisions of the Code. 5. Learned counsel appearing (or the petitioner has submitted that the reason given for rejecting the petition filed on behalf of the prosecution cannot be sustained in law and is against the provisions of the Code. According to the learned counsel, under the Code a power has been specifically vested in the investigating officer to make further investigation even in respect of an offence where a final form has already been submitted in accordance with the provisions of section 173 of the old Code or the Code. In this connection reliance was placed on sub-section (8) of section 173 of the Code, which reads as follows ;- "(8) 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 shal1 forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of subsection (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)." There was no such sub-section in section 173 of the old Code. Now, in view of sub-section (8) of section 173 of the Code, even after the sub• mission of the final form, the investigating officer can make further investigation in respect of the offence concerned and later forward a report to the Magistrate concerned regarding the evidence collected by him during the course of the further investigation. Subsection (8), however, does not speak about the stage up to which this power can be exercised by the investigating officer whether such further report can be submitted to the Magistrate concerned before he passes an order under section 204 of the Code or even during the pendency or continuance of the trial. Even if it is assumed that this power of submitting a further report after further investigation is available to the investigating officer during the pendency or continuance of the trial a further question has to be answered, that is, as to whether any such report can be submitted to the Court of Session while the sessions case is pending trial or is being heard from day-to-day. So far as the present case is concerned, we are directly concerned with this aspect of the matter. 6. Learned counsel for the petitioner has submitted that sub-section (8) of section 173 of the Code does not prescribe any limit and a further report after further investigation can be submitted even to the Court of Session as has been done in the instant case. Whenever a final form is submitted in accordance with the provisions of section 173, it is open to the Magistrate concerned to take cognizance in accordance with section 190(1)(b) of the Code and, having taken cognizance, he has to issue processes in accordance with section 204 of the Code, if he is satisfied that there are materials to proceed against the accused. Under section 207, a Magistrate, who has passed an order under section 204, or the Magistrate, to whom the case has been transferred for disposal, has to furnish to the accused copies of the police report, the first information report, statements of witnesses recorded during the course of investigation and certain other papers as mentioned in report, statements and certain other papers as mentioned in section 207 of the Code. Up to this stage the procedure in respect of a case triable by a Court of Session or by a Magistrate of the First Class, in accordance with the Warrant chapter, is common. If the case is to be tried as a warrant case by the Magistrate, then, in accordance with section 238, the Magistrate before whom the accused is produced or appears, has to be satisfied that the provisions of section 207 has been complied with and thereafter he has to proceed in accordance with the provisions of Chapter XIX of the Code. If, however, the offence alleged is one which is exclusively triable by a Court of Session, then, under section 209, the Magistrate, before whom the case is pending, has to pass an order of commitment. After passing the order of commitment, the Magistrate has to remand the accused to custody during and until the conclusion of the trial. The Magistrate has also to forward the record of the case and documents etc. to the Court of Session. Thereafter the provisions of Chapter XVIII, of the Code become applicable which prescribes the procedure for trial before the Court of Session. The Magistrate has also to forward the record of the case and documents etc. to the Court of Session. Thereafter the provisions of Chapter XVIII, of the Code become applicable which prescribes the procedure for trial before the Court of Session. There is nothing in Chapter XVIII of the Code from which it can be inferred that the investigating officer can submit a report regarding further investigation directly to the Court of Session where the trial is pending or is continuing. As such, it has to be seen, with reference to the other provisions of the Code, as to whether this is permissible. 7. Section 173(8) states in clear words that the Officer-in-charge of the police station "shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed". The word Magistrate "used in this sub-section has to be read to mean the Magistrate contemplated in sub-sections (2) to (6) of section 173, because sub-section (8) itself says that the provisions of sub-sections (2) to (6) shall, as far as may be, apply to such report as they apply in relation to a report forwarded under sub-section (2). A. such, in my opinion even if it, is assumed that an investigating officer can further investigate in connection with the offence alleged in respect of which cognizance has been taken and the accused has been summoned, still he cannot submit the result of such investigation directly to the Court of Session. Learned counsel for the petitioner, however, submitted that, when the word "Magistrate' has been used in this sub-section, it should be read as "Court", which will include even the Court of Session. In my view, it is difficult to accept this contention. I have already pointed out that the word "Magistrate" in sub-section (8) means a Magistrate who bas been referred to in sub-section (2) to (6) of section 173 and in that context, by no stretch of imagination, a Court of Session can be included. A report under sub-section (2) cannot be forwarded to a Sessions Judge because it says in so many words that, after completion of the investigation, the Officer-in-charge of a police station "shall forward to a Magistrate empowered to take cognizance of the offence on a police report" . 8. A report under sub-section (2) cannot be forwarded to a Sessions Judge because it says in so many words that, after completion of the investigation, the Officer-in-charge of a police station "shall forward to a Magistrate empowered to take cognizance of the offence on a police report" . 8. Learned counsel for the petitioner then submitted that, even if it is held that a report under sub-section (8) of section 173 cannot be forwarded directly to the Court of session, it can be forwarded through the Magistrate who took cognizance of the offence. Learned Counsel, however, conceded during the course of arguments that there is no specific provision under the Code contemplating any such procedure; but submitted that, if it is held that it is open to the investigating officer to further investigate into the case, which is pending before the Session Court, then, it should be held that the result of such investigation can be forwarded to the Court of Session through proper channel. In this connection learned counsel referred to sub-section (2) of section 309 and sub-section (I) of section 319 of the Code, Sub-section (2) of section 309 reads as follows :- "(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable and may by a warrant remand the accused if in custody." "Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time :" "Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing," "Explanation 1-- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand." "Explanation 2- The terms of which an adjournment or postponement may be granted included, in appropriate cases, the payment of costs by the prosecution or the accused." Learned counsel submitted that, in view of this sub-section even after the commencement of a trial, the trial can be adjourned from time to time for a reasonable cause; and, in view of explanation, if further evidence is likely to be obtained then, it will be deemed to be a reasonable cause. According to learned counsel, because of this explanation investigation can be done even when the trial has commenced and this provision, according to learned counsel, is applicable to all trials, including a trial by the Court of Session. In this sub-section there is no mention about the Court of Session; rather, in the proviso to the sub-section there is a specific mention about a Magistrate only. Adjourning a case for a reasonable cause does not mean that explanation, which is illustrative of a reasonable cause, is also applicable to a sessions trial. This sub-section makes provisions regarding adjournment of a case taking cognizance and about the remand of an accused person. Adjourning a case for a reasonable cause does not mean that explanation, which is illustrative of a reasonable cause, is also applicable to a sessions trial. This sub-section makes provisions regarding adjournment of a case taking cognizance and about the remand of an accused person. There fore, it will be reasonable to hold that at a certain stage a case can be adjourned so that further evidence may be obtained; but, it cannot be said that this can be done even up to the stage when the sessions trial has commenced. 9. In the case of Natabar Parida and other v. State of Orissa AIR 1975 SC 1465 , the Supreme Court while examining section 309 and trying to point out the difference between section 309 of the Code and section 344 of the Old Code, observed as follows :- "Section 309(2) is attracted only after cognizance has been taken or commencement of trial has proceeded. In such a situation what is the purpose of ExpJanation-1 in section 309 is not quite clear." From the aforesaid observation of the Supreme Court it is apparent that their Lordships were not able to comprehend what was the purpose of explanation I even in context of a trial which was pending before a Magistrate. 10. So far as the provision of sub-section (I) of section 319 is concerned, it is as follows :- "319 (I) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed." This is a general provision which is applicable to any inquiry or trial. But, the question is, whether this power can be exercised even by a Court of Session. I have already pointed out that, so far as trial by a Court of Session is concerned, there are separate provisions. But, the question is, whether this power can be exercised even by a Court of Session. I have already pointed out that, so far as trial by a Court of Session is concerned, there are separate provisions. In respect of trial by the Magistrate it is almost settled by different decision of this Court as well as of the Supreme Court that the Magistrate to whom the case is transferred for trial can summon any other accused person who appears to be involved in the crime, which is the subject-matter of the trial, and the fact that such an accused was not summoned at the stage of passing an order under section 204 is no bar. Reference in this connection may be made to the judgment of the Supreme Court in Raghubans Dubey v. State of Bihar AIR 1967 SC 1167 But, whether such power can be exercised even by the Court of Session, is to be examined. In this connection, in my opinion, section 209 of the Code is relevant. Now, the procedure for commitment has been simplified, none the less the order of commitment has to be passed under that section when the accused appears or is brought before the Magistrate. Section 209 reads as follows ;- "209. When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit the case to the Court of Session; (b) subject to the provisions of this ~ode relating to bail, remand the accused to custody during, and until the conclusion of the trial. (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public prosecutor of the commitment of the case to the Court of Session." While passing an order of commitment, the Magistrate had to remand the accused to custody during, and until the conclusion of the trial. The Magistrate has also to forward the record of the case and documents which are to be produced in evidence before the Court of Session. Before an accused person is to be put on trial before the Court of Session, this procedure is to be followed. The Magistrate has also to forward the record of the case and documents which are to be produced in evidence before the Court of Session. Before an accused person is to be put on trial before the Court of Session, this procedure is to be followed. If it is held that the Sessions Judge, during the course of trial, can summon any accused person against whom no order of commitment has been made, it will lead to an anomalous position because section 226 of the Code says that, when an accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the Prosecutor shall open the case. It does not speak about summoning an accused for standing the trial before the Court of session. In this connection section 193 is also relevant, which is in these words :- "193. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." This also Jays emphasis on there being an order of commitment by a Magistrate to the Court of Session. Then if it is assumed for the purpose of argument that any such power rests with the Court of Session also, it is purely academic, so far as the facts of the present case arc concerned. Here, the Court of session has not exercised, or refused to exercise, any such power. Here the question which falls for consideration is as to whether the report of a further investigation can be submitted directly or through the Magistrates concerned to the Court of Session in exercise of the powers conferred by sub-section (8) of section 173 of the Code and the Court of Session can treat it as a report under sub-section (2) of section 173 containing statements of witnesses. I have already held that no such report can be forwarded directly to the Court of Session. So far as the question of sending the report through the Magistrate, who took cognizance, is concerned, in my opinion, that is also not permissible. I have already held that no such report can be forwarded directly to the Court of Session. So far as the question of sending the report through the Magistrate, who took cognizance, is concerned, in my opinion, that is also not permissible. Before an order of commitment under section 209 is to be made, or trial is to commence, the procedure prescribed by section 207 is to be followed. Now a duty to furnish copies of the police report, first information report and statements of witnesses recorded under sub-section (3) of section 161 of the Code rests on the Magistrate concerned. Under the old Code, the Magistrate concerned had only to satisfy himself that the documents referred to in section 173 of the old Code bas been furnished to the accused, and if he found that the accused had not been furnished with such documents, or any of them, he had to cause the same to be furnished. In the present situation, if the supplementary case diary is sent to the Magistrate who took cognizance and summoned the accused, or to the Magistrate who passed the order of commitment under section 209 of the Code, they cannot furnish the same to the accused because the accused is not before them. Under what provision those Magistrates will send the records of the Supplementary case diary to the Court of Session, learned counsel for the petitioner could not point out. The problem can be properly appreciated by taking an example. If after further investigation, the investigating officer finds that some more accused persons are involved in the crime, which is pending trial before a court of Session, or in respect of which the trial is proceeding before the court of session, then, can those accused persons straightway be forwarded to the Court of Session for being put on trial along with the other accused persons already committed to the Court of Session, without observing the procedure of sections 207 and 209 of the Code Similarly, if the argument of the learned counsel for the petitioner is accepted, then, any supplementary case diary naming the witnesses and the materials collected, can be sent to the Court of Session even after the prosecution has closed its case and the accused has been examined and has entered upon defence in accordance with section 2:15 of the Code. In my opinion, although the police has statutory power to investigate into a case, still, if the sessions trial has commenced, then, no such report, as contemplated by section 173 (8) can be forwarded to the court of Session directly or through the Magistrates who had taken cognizance and had summoned the accused persons, or had committed the accused to the Court of Session. This does not mean that the prosecution is precluded from examining any witness or from producing any document which may have been discovered during the pendency of the trial. Such witnesses can be examined and such documents can be put in, but without any reference to any case diary, so as to attract the provisions of section 162 of the Code. In that view of the matter, it was not open to the investigating I officer in the present case to submit the supplementary case diary before the court of Session. 11. Learned counsel for the petitioner, in support of his contention that even after the issuance of summons and while the matter is pending trial, the power of further investigation into the matter was upheld even under the old Code, in absence of a provision like sub-section (8) of section 173 of the Code, made a reference to the following cases, namely Public Prosecutor V. O. S. Pachiappa Mudaliar AIR 1958 Mad 595, In Re Shantilal and others AIR 1959 M.P 590 , State v. Baikunthanath Mohanth and others AIR 1960 Ori 150 , State v. Raghunath AIR 1963 Raj 85, The State v. Jagadish Pandey AIR 1958 Cal 311 and In the matter of State. Except in the case reported in 1973 Cr. L. J. 1288, in the other cases referred to above question arose about the effect of sub-section (4) of section 173, as it stood under the old Code, which said that, after forwarding the report regarding investigation, the Officer-in-charge of police station shall, "before the commencement of the inquiry or trial furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely", including the statements of witnesses recorded under sub-section (3) of section 161, whom the prosecution proposed to examine as witnesses. In the afore• said cases it was held that this sub-section (4) is not mandatory, and copies of documents, referred there, as well as copies of the statements of witnesses recorded under sub-section (3) of section 161 of that Code, could be furnished even during the trial. This view was taken in pursuance of sub-section (7) of section 251 A of the old Code, which said that "on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution". It was held that many of the documents might not be available during the investigation, and, if they are to be taken during the trial, then it should be held that it is permissible to furnish copies of some of the documents to the accused even during the trial. In none of those cases the question regarding further investigation had arisen, much less while the matter was pending before the court of Session for trial. In the case reported in 1973 Criminal law Journal 1288, a Bench of the Kerala High Court held that there was no bar over the power of police for further investigation even after filing the report under sub-section (1) of section 173 of the old Code, and, after further investigation, a supplementary report against some accused persons could be filed. This view was taken even in absence of a provision like sub-section (8) of section 173 of the Code. In my opinion, this case also is not of much help, so far as the question of submission of supplementary report by the police to the Court of Session is concerned. There is a vital difference between trial before a Magistrate and that before the Court of Session, which I have already indicated. The trial before a Magistrate is held by a Magistrate who has summoned the accused~ or to whom the case had been transferred for disposal. It is well settled that such transferee Magistrates have all the powers that the original Magistrate had. This cannot be said as a proposition of law, so far as the Court of Session is concerned. 12. It is well settled that such transferee Magistrates have all the powers that the original Magistrate had. This cannot be said as a proposition of law, so far as the Court of Session is concerned. 12. Learned counsel for the petitioner has also placed reliance on a judgment of the Gauhati High Court in Ved Kumar Seth v. The State of Assam 1975 CrLJ where it was observed by a Bench of that Court that, under sub-section (8) of Section 173 of the Code, there can be a further investigation in respect of offence in respect of which a report had already been submitted under sub-section (2) of section 173. As I have already pointed out, that is not of much help for the question at issue. While examining the applicability of sub-section (8) of section 173 of the Code, another aspect has to be taken note of. Sub-section (8) says that nothing in that 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. Sub-section (2) referred to in this sub-section obviously refers to sub-section (2) of section 173 of the Code. In the instant case, as I have already mentioned above, the earlier police report had not been submitted under sub-section (2) of section 173, but under sub-section (1) of section 173 of the old Code. In such a situation, can a part of the investigation in connection with the same offence be carried on in accordance with the old Code and the other part in accordance with the Code? In my opinion, this may lead to an anomalous position. But, in view of my finding recorded above, there is no necessity to decide this question. 13. Learned counsel for the petitioner has taken exception to the observation made by the learned Additional Sessions Judge that, while the matter Is pending before the Court of Session, no further investigation can be done. In my opinion, there is no necessity of deciding this question in this application. 14. Learned counsel for the accused-opposite party has challenged the maintainability of the application in this Court. As no preliminary objection was raised, the application was heard on merits and has been decided on merits. But, in my opinion, there is substance in the contention of the learned counsel for the accused-opposite party on this account also. 14. Learned counsel for the accused-opposite party has challenged the maintainability of the application in this Court. As no preliminary objection was raised, the application was heard on merits and has been decided on merits. But, in my opinion, there is substance in the contention of the learned counsel for the accused-opposite party on this account also. The petitioner in this case has asked this court to quash an interlocutory order passed during the course of the trial of the Sessions Case. No revision against this order can be entertained by this Court in view of sub-section (2) of section 397 of the Code, which place a bar on the exercise of the revisional power of this Court in relation to an interlocutory order passed in a trial. Although this application has been labelled as an application under section 482 of the Code, as stated earlier, for invoking the inherent power of this Court; in my opinion, it will not be a sound exercise of discretion in entertaing an application under section 482 which is specifically barred under section 397 (2) of the Code. The matter will be quite different where but for such interference in exercise of the inherent power, a grave miscarriage of justice is likely to result, or a further proceeding in pursuance of such order will be an abuse of the process of the Court. In my opinion, in those situations such inherent power can be exercised, in spite of there being a bar under sub-section (2) of section 397. In my view, this is not such a case where any of the contingencies referred to above are likely to Occur. In that view of the matter, 1 am of the opinion that the petitioner is not entitled to invoke the inherent jurisdiction of this Court for the relief sought for. 15. In the result, the application fails and is dismissed. It is, however, made clear that it will be open to the prosecution to examine any such witness, or to produce any such documents which has been discovered in course of the further investigation, of course, in accordance with law. Application dismissed.