SURENDRABHAI BABUBHAI PATEL v. STATE — 1984 DIGILAW 285 (GUJ)

M. B. SHAH, J. ( 1 ) THE petitioner was working as an Accountant in Dharamsinh Desai Foundation since 1971. Against him one Vithalbhai S. Patel filed a complaint before the Chief Judicial Magistrate Nadiad. The Chief Judicial Magistrate passed an order under sec. 156 (3) of the Criminal Procedure Code for investigation by the police. In the complaint it was alleged that the petitioner had committed an offence punishable under sec. 408 of the Indian Penal Code as he had misapp- roptiated the amount alleged in the complaint. The investigating officer submitted the charge-sheet on 18-1-83 for the offence punishable under sec. 408 of the Indian Penal Code Thereafter the case was registered as Criminal Case No. 350 of 1983. It is the say of the petitioner that his plea was recorded and some evidence was also taken by the learned Magistrates ( 2 ) THEREAFTER an application Ex. 31 was filed on behalf of the prosecution contending that investigating officer had not seized certain important documents and that it was necessary that investigating officer may be directed to make further investigation in the matter and should be directed to submit further charge-sheet in the interest of justice and till then further proceedings in the matter may be stayed. This application was resisted by the petitioner-accused. It was contended by him that on behalf of the Prosecution the complainant is examined and he leas produced certain documents on record. He further submi- tted that by granting the application filed by the prosecution the accused would he prejudiced. After considering the fact that the inves- tigating officer has not recorded the statements of the important witnesses and that important documents were not seized the learned Chief Judicial Magistrate ordered on 1-10-84 that investigating officer should make further investigation and submit his further report. Against the said judgment and order the petitioner has filed this revision application. In this revision application it was vehemently contended by the petitioner that once the Court had taken cognizance of the matter the Court has no jurisdiction to direct the investigating officer to make further investigation in the matter and make further report or charge-sheet. ( 3 ) IN my view the said contention of the learned advocate is without any substance because under sec. ( 3 ) IN my view the said contention of the learned advocate is without any substance because under sec. 173 (8) of the Criminal Proc- edure Code it has been made clear that after a report under sub-sec (2) of sec. 173 is forwarded to the Magistrate it would not preclude further investigation in respect of an offence for which a report is already submitted. The said sub-section empowers the investigating officer to obtain further evidence oral or documentary and it further requires that he shall forward a further report or reports regarding such evidence in the form prescribed under the provisions of suh-secs. (2) to (6) as they apply in relation to a report forwarded under sub- sec. (2 ). In Special Criminal Application No. 293 of 1984 decided by me on 21/08/1984 I have taken the view that even after taking cognizance of the matter the Court is entitled to direct the investi- gnting officer to make further investigation in the case. In the aspect Ram Lal Narang v. State (Delhi Adnan.) A. I. R. 1979 Supreme Court 1791 the Supreme Court has held that notwithstanding than a Magis- trate haul taken cognizance of the offence upon a police report submitted under sec 173 of the Code (old) the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. The right to further investigation is specifically given by sub-sec. (8) of sec. 173 of the Criminal Procedure Code. The Court has taken into considera- tion 1st report of the Law Commission with regard to this aspect which is reproduced as under:"14. 23 A report under sec 173 is normally the end of the investigation. Sometimes however the police officer after submitting the report under sec. 173 comes upon evidence bearing on the guilty 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 sec. 173 has been sent the police cannot touch the case again and cannot reopen the investigation. 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 sec. 173 has been sent the police cannot touch the case again and cannot reopen the investigation. This view places a himself 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 sec. 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"the Supreme Court in paragraph 20 had disapproved the Full Bench decision of the High Court of Punjab and Haryana in the case of State v. Mehar Singh reported in 1974 Cri. L. J. 970 wherein the Full Bench had held that the police became function office once the Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible. It further held that it would be open to the Magistrate to suspend cognizance and direct the police to make further investi- gation into the case and submit a report. In paragraph 21 the Court has held that after all the investigating agency has greater resources at is command than a private individual. Similarly; where the invol- vement of persons who are not already accused comes to the notice of the investigating agency the investigating agency cannot keep quiet refuse to investigate the fresh information. Thereafter it is further held as under:"it is their duly to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence but has not proceeded with the enquiry or trial he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single euquiry or trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is d matter best left to the discretion of the Magistrate. . . . . . . . . . . . . . . That the final word is with the Magistrate is sufficient safeguard against any excessive Use or abuse of the power of the police to taken further investigation. . . . . . . . . . . . . . . . . . We think that in the interests of the in- dependence of the magistracy and the judiciary in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various arrived and institutions entrusted with different stages of such administ- ration it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come so light". From this decision it is clear that the permission of the Magisterial in charge of the matter the investigating officer can make further investigating. Therefore if the investigating officer is entitled to carry on further investigation with the permission of the Court there would be already any reason to hold that the Magistrate is not empowered to direct the investigating officer to make further investigation once he takes the cognizance In my opinion that would be a totally unreasonable view. ( 4 ) IN the case of State of Bihar v. J. A. C. Saldanna A. I. R. 1980 Supreme Court 326 the Supreme Court after considering the provi- sions of sec. 3 of the Indian Police Act and sec. 173 (8) of the Criminal Procedure Code has been that there is no conflict between the two provisions power to direct investigation or further investigation is earlier difficult from the mentioned and procedure of investigation and the competence of the person to investigate. The Supreme Court held that sec. 3 of the Indian Police Act and sec. 173 (8) of the Criminal Procedure Code has been that there is no conflict between the two provisions power to direct investigation or further investigation is earlier difficult from the mentioned and procedure of investigation and the competence of the person to investigate. The Supreme Court held that sec. 3 of the Police Act empowers the State Government to direct further investigation into the case to the Police officer-in-charge of a Police Station or by a superior officer in rants to the officer-in- charge of a police station. The Court held that the superior officer could also direct further investigation under sec. 173 (8) of the Code or the superior officer himself could as been undertake further investigation on his own. In paragraph 19 the Court has further held that the power conferred upon the Magistrate under sec. 156 (3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. ( 5 ) THE learned advocate for the petitioner however submitted that in the case of Tula Ram v. Kishore Singh A. I. R. 1977 Supreme Court 2401 the Supreme Court has laid down that once the Magistrate has taken cognizance of the offence he has no jurisdiction to direct the investigating officer to make further investigation. In my view this contention of the learned advocate is totally misconceived because in the said case the Supreme Court has not considered the ambit and scope of sec. 173 (8) of the Criminal Procedure Code. The question which was considered by the Supreme Court was whether the Magistrate was at all in law entitled to revive the complaint and take cognizance of the matter after having referred the matter for investigation to the police and having received the report. After considering the provisions of secs. 156 (3) and 190 of the Criminal Procedure Code and the various Supreme Court decisions the Court laid down the following legal propositions in paragraph 14 of the judgment : 1 That a Magistrate can order investigation under sec 156 (3) only at the pre-cognizance stage that is to say before taking cognizance under secs. 156 (3) and 190 of the Criminal Procedure Code and the various Supreme Court decisions the Court laid down the following legal propositions in paragraph 14 of the judgment : 1 That a Magistrate can order investigation under sec 156 (3) only at the pre-cognizance stage that is to say before taking cognizance under secs. 190 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under sec. 156 (3) though in cases not falling within the proviso to sec 202 he can order an investi-- gation by the police which would be in the nature of an enquiry as contemplated by sec. 202 of the Code. 2 Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with she requirements of sec. 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or investigation by the police. 3 In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. 4 Where a Magistrate orders investigation by the police before taking cogni- zance under sec. 156 (3) of the Code and receives the report thereupon he can act on the report and discharge the accused or Straightway issue process against the accused or apply his mind to the complaint filed before him and take action under sec. 130 as described above. This decision nowhere lays down that under sec. 173 (8) Court has no jurisdiction to direct further investigation if necessary once the cognizance of the case is taken. 130 as described above. This decision nowhere lays down that under sec. 173 (8) Court has no jurisdiction to direct further investigation if necessary once the cognizance of the case is taken. ( 6 ) THE learned Magistrate in this case has rightly relied upon the decision of this Court Act the case of Bachubhai v. State reported in 25 G. L. R. 897 where the Court has also taken the similar view of the provisions of sec. 173 (8) and held that if there is an authority which is competent to make additional report or reports there does not appear to be any reason why the Court should not have power to direct the authority to make further report. In the case of Deepak Dwarkadas v. State reported in 21 G. L. R. 135 the Court has negatived the contention that after submitting a charge-sheet the investigating officer becomes functus officio and held that an additional charge-sheet could be submitted by a Police Station Officer if and only if there was further investigation in the course of which some further evidence oral or documentary was available. The Court further held that sec. 173 is added to negative such controversy being raised and to set at rest the earlier controversy that once a charge-sheet was held a Police officer becomes functus officio. ( 7 ) IN the result the revision application is rejected. Rule discharged. Application rejected. .