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1988 DIGILAW 119 (MAD)

State v. Gopakumar

1988-02-26

PADMANABHAN

body1988
Order: This unfortunate and protracted case presents some novel positions. A senior I.A.S. Officer met with an accident or 27-6-1981 involving two automobiles and serious injuries to him. C.C.No.134 of 1982 was charge-sheeted before the Additional Judicial First Class Magistrate-II, Trivandrum against two persons for offences punishable under Ss 279 ,337 and 338 of the Indian Penal Code andS.89(a) of the Motor Vehicles Act When the case was pending trial, the Sub Inspector of Police, City Traffic (C.W.I5) submitted a report purporting to be underS.258 of the Code of Criminal Procedure requesting the Court to stop further proceedings since “In the peculiar circumstances of the case it is revealed that a reinvestigation in the above is absolutely essential in the interest of justice”. Though in his order the Magistrate said “the report filed by the S.I. does not disclose and valid reason for conducting a re-investigation” and “The A.P.P. has not filed any report in this court showing the reason for conducting a re-investigation”, he allowed the prayer stating “But since the counsel appearing for both the accused submitted that they are not opposing the report”. He also released the accused underS.258, Crl.P.C. 2. EvidentlyS.258 was not provision which had to be relied on by the investigating officer or the Magistrate.S.258 is the provision to be applied in a summons case instituted otherwise than upon Complaint. (This is evidently such a case) in exceptional circumstances where the Magistrate thinks that the proceedings ought not to be continued under special and unusual situations which make it difficult or impossible to proceed in the normal way underS.254and arrive at a finding on the guilt; or innocence of the accused. The order under that section is one which could be passed by Magistrate on his satisfaction alone without hearing the accused or the prosecution. The order could the passed at nay stage and a judgment need not be pronounced. When the proceedings is stopped under the section two courses alone are open to the Magistrate. If it is after the principal witnesses are examined the only course is to pronounce a judgment of acquittal irrespective of the evidence. Otherwise the accused will have to be released and such release shall have the effect of discharge. That may bar a fresh prosecution for the same offence. If it is after the principal witnesses are examined the only course is to pronounce a judgment of acquittal irrespective of the evidence. Otherwise the accused will have to be released and such release shall have the effect of discharge. That may bar a fresh prosecution for the same offence. The only course open to the investigating agency in this case was to submit further report or reports regarding further evidence provided such further evidence was obtained. That will not involve invoking the provisions ofS.258. But these questions may not arise because the order of the Magistrate was set aside in Cr.M.C.No.98 of. 1984 filed by the de facto Complainant and the case was remanded. The case was thus brought back to life. 3. The investigating agency thereafter filed a fresh report without any further investigation and without collecting any further evidence. On the original materials themselves a new report was filed deleting one accused and charge sheeting the other alone. The case was then taken to file as S.T.No.4 of 1984. The sole accused then filed an application stating that the subsequent report is bit by S.167(5) of the Cr.P.C. and hence the cognizance is illegal. Accepting that contention on the basis of the decision in 984 KLT 849 the Magistrate released the accused again under S.258of the Cr.P.C. itself. That was by order dated 24-10-1984 which is challenged by the State in this revision. It is rather unfortunate that though Cr.M.C.No.98 of 1984 was disposed of only on 9-4-1987 when this Cr.R.P. was pending that fact was not brought to the notice of the court so that both could have been disposed of together. 4. The Magistrate cannot be blamed for adopting that course for the reason that at time David's case, 1984 KLT.849 held the field and it said that investigation in violation ofS.167(5) and cognizance taken on the basis of a report submitted as a result of such Investigation are both invalid. But that decision was overruled by a Division Bench in Baskaran Nair v. State of Kerala Baskaran Nair v. State of Kerala 1986 KLT. 485 holding that violation ofS.167(5) by the investigating agency will not in any way effect the jurisdiction of the court to take cognizance of the offence and try the case. For that reason alone the order of the Magistrate must be set aside. 5. 485 holding that violation ofS.167(5) by the investigating agency will not in any way effect the jurisdiction of the court to take cognizance of the offence and try the case. For that reason alone the order of the Magistrate must be set aside. 5. But that will not he an end of the matter. Now there are two police reports before the same magistrate regarding the same incident. The magistrate has taken cognizance of the same offence twice and two cases are pending before him, one against two accused and the other against one of them alone. Both the reports are on the same materials without any addition and witnesses are also the same. The situation will be embarrassing to the Magistrate and there will be an element of illegality also. Without proper directions there is the possibility of the case, which is already more than sufficiently old, being protracted further. Therefore that aspect also requires consideration and directions. 6. The police is having the statutory right and duty to ‘register’ every information relating to the commission of cognizable offences and submit reports before court. That right and duty extends even regarding circumstances where commission of such offences are suspected. Those rights and duties are not circumscribed by any power of superintendence or interference by courts. Sanction of courts is also not required for that purpose. No authority from any judicial functionary is required for the discharge of that statutory right and duty which must be free from judicial interference also. The functions of judiciary and police are Complimentary and not overlapping. The combination of individual liberty with due observance of law and order is only to be obtained leaving each to exercise its own functions. Judicial interference is only when the police exceeds its functions and acts illegally or mala fide. The function of the courts begins only when the charge is laid and till then it is the realm of the police. Even in the Code of 1898 there was no prohibition against the police in the matter of investigation even after a charge is laid underS.173 if fresh facts came to light requiring further investigation even though there was no specific enabling provision. But the normal case is that a report underS.173 is the end of the investigation and thereafter it is the exclusive province of the court 7. But the normal case is that a report underS.173 is the end of the investigation and thereafter it is the exclusive province of the court 7. At least on rare occasions courts have taken the narrow view that once a report underS.173 has been sent, the police cannot touch the case again and reopen the investigation. Such a narrow view has the unfortunate effect of placing hindrance in the way of the investigating agency and it can be very unfair to the prosecution and even to the accused. That is why on the basis of the 41st report of the Law Commission in order to clarify the Competence of the police officer to examine such evidence and send further reports,S.173(8) was introduced. It is in the interest of the prosecution and the defence and ultimately in the interest of the State and Society at large that the police should have the power to make further investigation and submit supplementary report or reports even after a charge is laid underS.173(2) and cognizance taken. After the report underS.173 (2)is laid fresh materials may come to light implicating new persons or absolving persons already charge sheeted. Even though courts are having ample powers or exonerating persons against whom no case is made out and bringing in persons who appear to have involvement, that process may in many cases require additional materials for the collection of which the courts may not have sufficient resources at its command. Anyhow the investigating agency is having greater resources in those respects and it cannot keep quiet and refuse to investigate the fresh information which is necessary for doing justice to the accused on record or bringing new offenders to justice or new offences or new dimensions to the offences to light. NeitherS.173 norS.190 exhaust the powers of the police in investigation simply because of the Magistrate taking cognizance of the offence. Police could exercise such right as often as is necessary when fresh information comes to light necessitating such further investigating in the ends of justice. 8. That does not mean that the police could ignore the pendency of a proceeding before court and investigate every fresh fact that comes to their knowledge as if no cognizance was taken of any offence by the court. 8. That does not mean that the police could ignore the pendency of a proceeding before court and investigate every fresh fact that comes to their knowledge as if no cognizance was taken of any offence by the court. The exercise of the right should be without prejudice to the right of the court to decide the course of action on the materials presented before it. When the final report is laid it is laid it is for the court to decide whether it should be accepted and what action is to be taken. Under the guise of a further investigation the police cannot make inroads into the right of the court to take action on the materials. Exercise of the right of further investigation should be in harmony with the right of the court to take action on the materials already placed and the new materials that are brought in. On the same materials without any new information or evidence the investigating agency has no right to have a further investigation when once after Completing collection of materials and formation of opinion the investigating agency charge sheets the accused, in the absence of further evidence requiring further investigators, he cannot submit a fresh report or a further report splitting up the charge or bifurcating the same even for remedying defects in joinder of accused or charges without formal permission from court and subject to its orders. The right of further investigation should be a Compromise with the right of the court, which is seized of the matter, to take action on the materials presented before it. On the materials placed before court the only authority Competent to take action is the court. That right cannot be usurped by the investigating agency. After having formed an opinion on the materials and placed the accused for trial before court, the investigating agency cannot have a second thought on the same materials and submit a further report arriving at a different conclusion S.173(8) which is the only provision authorising further investigation is only an enabling provision which preserves that right in the interest of society for fair administration of criminal justice. That sub-Section only preserves the right to forward a further report or reports in addition to the original report which was already forwarded to court. It is not intended to erase the original report and its substitution by a new report. That sub-Section only preserves the right to forward a further report or reports in addition to the original report which was already forwarded to court. It is not intended to erase the original report and its substitution by a new report. Such a course will place the courts at the mercy of the police officers, who could go on submitting reports contrary to the original one on the same materials inspite of cognizance taken and trials begin and the courts will be bound to accept them in substitution of earlier ones. Taking action on the report already submitted to court whether by acceptance in full or whit modification or by rejection, is within the exclusive right of the court and the police officers, under the guise of investigation, cannot make inroads into that right Further report only means a report in addition to the original one. It may have the effect of adding to or subtracting from the original report. But a condition precedent, to the exercise of that right as provided in S.173(8) itself is the obtaining of “further evidence” over and above what was collected or know earlier. Further report or reports must be solely “regarding such evidence” which was not collected or which was not available earlier. Deviation of the further report from the original report could only be on the basis of the new evidence or information and it is subject to the final decision taken by the court. 9. Whether there is only an original report 6r whether there are further reports also, 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 after taking cogni he has not proceeded with the enquiry or trial on the basis of the original report and new accused are brought in by the further report, he can direct issue of process to them also for trial in the same case. If the trial has proceeded he can take fresh cognizance of the offence disclosed as against the newly added persons and proceed with them as a separate case. If the trial has proceeded he can take fresh cognizance of the offence disclosed as against the newly added persons and proceed with them as a separate case. If the trial has proceeded he can take fresh cognizance of the offence disclosed as against the newly added persons and proceed with them as a separate case. If the trial has proceeded he can take fresh cognizance of the offence disclosed as against the newly added persons and proceed with them as a separate case. He can even refuse to accept all or any of the reports or take cognizance fully or in part. He can take cognizance for a different offence if that alone is found disclosed by the materials. He can also refuse to proceed against any person on the ground of want of sufficient grounds. What action is to be taken in such a situation is a matter left to the discretion of the Magistrate alone. The further investigation cannot trench upon the proceedings before the court because the final discretion in regard to further action is with the Magistrate. That final word is sufficient safeguard against any excessive use or abuse of the power or further investigation by the police. Further investigation can disclose wide range of offences including those covered by the first investigation. When the further report is submitted to another Magistrate it is open to the prosecuting agency or the accused concerned to take action for moving the appropriate superior court to have the two tried together. The Magistrates themselves could take action suo motu. Those are all matters of details of procedure of which we are not concerned in this case. 10. Even though sanction from court is not necessary for further investigation, in the interest of the, independence 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 agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light Ramalal Narung v. State Ramalal Narung v. State (1979) 2 S.C.C.322(1979) S.C.C. (Crl.) 479;(1979) 2 S.C.R. 923;1979 Crl.L.J. 1346A.I.R. 1979 S.C.1791 When the police desires to make further investigation on discovery of new evidence, they could express their regard and respect for the court by seeking formal permission to make further investigation. Such a course will only add to the interest of justice and avoid difficulties for all. Such a course will only add to the interest of justice and avoid difficulties for all. Since the Magistrate is the final authority to consider original report as well as the further reports as well as the further reports and take action it is in the interest of all concerned that he is appraised of the real position by the investigating agency and his opinion and permission sought so that future difficulties and delays as well as confrontation and conflict and mutual invasions into the respective fields could be avoided. The court, the accused and the prosecution could know what is happening and await further action. The court can also be appraised of the further action and its necessity. Such a course will advance the cause of justice preserve the essential relationship between courts and the police and avoid excesses and interference with powers of courts on the part of the police. 11. But in this case what the investigating agency wanted was re-investigation ignoring the earlier one and not a further investigation in addition to the one already had on the basis of which the report underS.173(2) was submitted. It was not on the basis of any “further evidence” but only “in the peculiar circumstances of the case”. The investigating agency alone knows what the peculiar circumstances are and the court is not appraised of any such circumstance. No further evidence was collected and no further investigation was made. With the materials collected by the original investigation itself on the basis of which two accused were charge sheeted in the same case, the investigating officer charge-sheeted one accused alone without assigning any reason or material to eliminate the other. That means with the same materials on which two accused were charge-sheeted and the offence taken cognizance by the court, the investigating agency left out one accused and charge-sheeted the other. That is a mala fide and unauthorised inroad into the powers of the court not warranted by S.173(8). In effect the investigating officer has usurped the powers of the Magistrate. The further report is unwarranted and illegal and the cognizance taken on it is also illegal. S.T.No.4 of 1984 is therefore a non-est and had to be dropped. Anyhow the Magistrate has released the accused in that case though for a reason not acceptable. In effect the investigating officer has usurped the powers of the Magistrate. The further report is unwarranted and illegal and the cognizance taken on it is also illegal. S.T.No.4 of 1984 is therefore a non-est and had to be dropped. Anyhow the Magistrate has released the accused in that case though for a reason not acceptable. The Magistrate has only to proceed with CC.No.134 of 1982 which was remanded as per order in Cr.M.C.No.98 of 1984. 12. The Cr.R.P. is therefore allowed and the order of the Magistrate is set aside for the reasons stated above. But the cognizance taken on the basis of the further report in S.T.No.4 of 1984 is bad for the reasons already, mentioned and the proceedings S.T.No.4 of 1984 is quashed. The Magistrate will proceed to try and dispose of C.C.No.134 of 1982 remanded by the Order in Cr.M.C.No.98 of 1984 on the merits according to law as against both the accused ignoring the subsequent report in the light of what is stated above. The case will be disposed of positively within six months of the receipt of records. B.S.----- Petition allowed.