Abdul Satar v. State of Bihar — 1989 DIGILAW 385 (PAT)

JUDGMENT S. B. Sinha, J. - This application is directed against an order dated 15.3.1986 passed by the Chief Judicial Magistrate, Hazaribagh in Case No. G.R. 2735/82 (Bishungarh P.S. Case No. 0163/82 dated 6.12.1982), whereby and whereunder the said learned Court took cognizance of an offence under Sections 147/148/149/337/323/325 and 302 of the Indian Penal Code. 2. The facts of the case lie in a very narrow compass. 3. On 6.12.1982, a first information report was lodged by one Samsuddin Ansari against 37 persons including the petitioners except petitioner nos. 3 and 6, alleging therein that on that date at about 8.30 A.M. a procession of Chahallum led by the informant had been passing and at about 9 A.M. the said procession reached Thekwadih. It is further alleged that at that time, another procession led by the petitioner no. 1, came there and the petitioner no. 1 directed the members of the mob to assault and kill the members of the procession led by the informant. 4. In the said first information report, it was alleged that Sohan Mian and 32 other persons named therein, who were armed with lathi bhala and bricks etc. started brickbat as a result whereof, various persons received injuries. It has further been alleged that the members of the said mob also attacked the Bari of the informant and they intended to set fire thereupon. In the said occurrence, one Tawakal Mian died on the spot. 5. This case has a long history. Upon completion of the investigation, a charge sheet dated 2.8.1983 was prepared. In the said charge sheet the names of the petitioners, in this application, were shown in column no. 2, as the persons who were not being sent up for trial. However, the said charge sheet was not forwarded to court then and there. It appears that, the Deputy Inspector General of police, thereafter, took into consideration the evidences on, record and found that the investigating officer was negligent in discharge of his duty and placed him under suspension and directed the officer-in-charge of the concerned police station to make further investigation. 6. It appears that the new investigating officer examined the informant and some of the other witnesses named in the first information report, over again, who supported their earlier statements made before the police. 6. It appears that the new investigating officer examined the informant and some of the other witnesses named in the first information report, over again, who supported their earlier statements made before the police. However, according to the said new Investigating Officer, some of the witnesses named in the first information report could not be traced out. Thereafter, he also prepared a charge-sheet, termed as a supplementary charge-sheet, dated 28.5.1984. 7. The said supplementary charge-sheet was received in the court on 16.6.1984, till which date, the purported original charge-sheet dated 2.8.1983 did not reach the court. The said purported original charge-sheet dated 2.8.1983 appears to have reached this Court below on 20th June, 1984. 8. The learned Chief Judicial Magistrate, Hazaribagh, on receipt of the said charge-sheet in his order dated 25.7.1984, held that the police had the power to make further investigation in terms of Section 173 (8) of the Code of Criminal Procedure. He further held that in view of a decision of this Court in Arun Kumar Sah v. Md. Bashir Ahmad, reported in 1981 BLJR 467, collection of a fresh evidence is sine qua non for submission of a supplementary charge-sheet. He, therefore, held that there is scope for further investigation of this case and as such, directed that the Investigating Officer will further investigate the case and will submit a full and complete report on completion of the investigation as soon as possible. 9. It appears from the order-sheet dated 28.7.1984 that the officer-in-charge of Katkamsadi Police Station, who was previously the officer-in-charge of the Bishnugarh Police Station and investigated the case and submitted a final form, had filed an application to the effect that in column no. 7 of the charge-sheet, he had written 6.12.1983 instead of 6.12.1982 of the date of occurrence of this case. In that application, it was further stated that in the said charge sheet wrongly accused no. 1 to 30 were named in column no. 4 therein stead of 1 to 31. In the said application he, therefore, prayed that in column no. 7 of the charge-sheet the date of occurrence should be read as 6.12.1982 and in column no. 7 in stead of accused nos. 1 to 30 it should be read as accused nos. 1 to 31. 4 therein stead of 1 to 31. In the said application he, therefore, prayed that in column no. 7 of the charge-sheet the date of occurrence should be read as 6.12.1982 and in column no. 7 in stead of accused nos. 1 to 30 it should be read as accused nos. 1 to 31. In the body of the said application, it appears that the learned court has recorded an order that it appeared to be a clerical crror. 10. On 15.3.1986, before the court below charge-sheet no. 41 dated 2.8.1983 and supplementary charge-sheet no. 28 dated 28.5.1984 as also the case diary and other connected documents were produced. 11. By reason of an order passed on that date, the learned court below took cognizance as against all the accused persons including the petitioners, whose name figured in the aforementioned supplementary charge-sheet. 12. Mr. Debi Prasad, the learned counsel appearing on behalf of the petitioners, has raised a short question. He submitted that in terms of sub-section (8) of Section 173 of the Code of Criminal Procedure a supplementary charge-sheet is permissible to be submitted only upon further evidence, and as in the instant case, no further evidence was brought on record, the learned court below had no jurisdiction to take cognizance on the basis of the said supplementary charge sheet dated 28.5.1984. 13. The learned counsel, in this connection, has placed strong reliance upon the decision of this Court in Arun Kumar Sah v. Md. Bashir Ahmed, reported in 1981 BLJR 467 and in Surendra Kumar Rai v. State of Bihar; reported in 1984 BBCJ 121 . 14. Mr. Gopal Choudhary, learned counsel for the State, on the other hand, submitted that the police has an unfettered power to make further investigation in terms of sub-section (8) of Section 173 of the Code of Criminal Procedure and in view of the fact that the then sub-Inspector of Bishungarh Police Station, who was earlier acted as an Investigating Officer of the case, neglected his duty, it was upon the superior officer to appoint another investigating officer and direct him to make further investigation and to file a supplementary charge-sheet. 15. 15. According to the learned counsel, the Investigating officer clearly found on the basis of the statements made before him by the informant and some witnesses, who all supported the story as alleged in the first information report that a prima facie case has been made out against the petitioners, and on that basis it was possible for the learned Chief Judicial Magistrate to take cognizance as against the petitioner also. The learned counsel, in this connection, has relied upon a Full Bench Decision of this Court in Shanker Ram v. The State of Bihar, reported in 1986 PLJR page 287. 16. Mr. Pandey Pradeep Nath Ray, learned counsel appearing for the informant submitted that in the instant case, no irregularity has been committed inasmuch as from the supplementary charge-sheet itself, it is evident that the officer-in-charge of the Bishungarh police station was appointed as an Investigating Officer by the Deputy Inspector General and other superior officers, who had been supervising the case in accordance with law and thus, it must be held that further examination of the informant as also the other witnesses named in the first information report, would be deemed to be a further evidence within the meaning of Section 173 (8) of the Code of Criminal Procedure. 17. The learned counsel further submitted that in any event, the court had the requisite power, in the interest of justice, to make further investigation to be caused, which was done by the learned court below by reason of his order dated 25.7.1984 and in that view of the matter also the impugned order dated 15.3.1986 cannot be said to be illegal. 18. The learned counsel, in this connection, has placed strong reliance upon a decision of the Supreme Court in Kashmeri Devi v. Delhi Administration and another, reported in A.I.R. 1988 S.C. 1323. 19. The learned counsel further submitted that in any event, as the Chief Judicial Magistrate prior to passing of the impugned order dated 15.3.1986, not only perused the charge-sheet dated 2.8.1983 and supplementary charge-sheet dated 28.5.1984 but also purposed the entire case diary and other documents accompanying it, the final form dated 2-8-1983 was not binding upon him and he could take cognizance of the offence as against the petitioners on the basis of the statements of the witnesses recorded in the case diary. 20. 20. There cannot be any doubt that under the provisions of the Code of Criminal Procedure, the police has an unfettered discretion to investigate into an offence. 21. A case under Section 302 of the Indian Penal Code is treated to be a special report case. In Dinraj Shandil & ors. v. State of Bihar & ors. reported in 1989 BBCJ 490 , a Division Bench of this Court relying upon various decisions, held that the power of the police to investigate into a cognizable offence is statutory in nature and this Court should be cautious and reluctant to interfere with such statutory right of the police. 22. It is well known that a court, in exercise of its power, conferred upon it under Section 190 of the Code of Criminal Procedure, is not precluded from taking cognizance of an offence, even as against those persons, who had not been sent up for trial by the police, if on the materials on record, it is found that a prima facie case has been made out as against such persons also. Reference in this connection may be made to in Abhinandan Jha and others v. Dinesh Mishra, reported in A.I.R. 1963 S.C. 117. 23. A Division Bench of this Court in Liloo Mahto v. The State of Bihar and others, reported in 1988 BLT 148, held that a Magistrate is empowered to take cognizance of an offence upon complaint after even accepting a final form as against the accused persons on the basis thereof. 24. The Supreme Court clearly in Ram Lal Narang v. State (Delhi Administration), reported in A.I.R. 1979 S.C. 1791, held as follows:- "Any one acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty 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 enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best lift to the discretion of the Magistrate, The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with 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 make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interest 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. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 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 come to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation". 25. From the decision of the Supreme Court in Ram Lal Narang's case (supra), it is, therefore, evident that by reason of sub-section (8) of Section 173 of the Code of Criminal Procedure, no new right has been conferred upon the police but the Parliament in enacting the same, has merely declared the law as it was then existing. 26. 25. From the decision of the Supreme Court in Ram Lal Narang's case (supra), it is, therefore, evident that by reason of sub-section (8) of Section 173 of the Code of Criminal Procedure, no new right has been conferred upon the police but the Parliament in enacting the same, has merely declared the law as it was then existing. 26. Upon taking into consideration the aforementioned Supreme Courts decision, a Full Bench of this Court in Shankar Ram v. State of Bihar, reported in 1986 PLJR 287 held that there is no legal bar in further investigation after submission of the police report and submission of further reports upon such investigation, nor there is any prohibition to file a supplementary/additional police report to an earlier one. 27. It was further held that Section 173 (8) of the Code of Criminal Procedure, does not restrict reopening of a case only on fresh materials which were not available earlier and the Full Bench proceeded to hold that final form submitted against some of the accused persons within the statutory period would also to be a police report within the meaning of Section 173 (2) Cr. P. C. 28. A Division Bench of this Court in Nageshwar Sahai v. State of Bihar reported in 1985 PLJR 570, held that the State Government can direct further investigation of a case by a superior officer even after submission of a charge-sheet. 29. In terms of Section 173 (3) of the Code of Criminal Procedure, when a superior officer has been appointed under Section 158, the report is required to be submitted through that officer and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation. 30. As noticed hereinbefore, the cases under Section 302 of the Indian Penal Code, are special report cases. In the instant case, the superior officer who had supervised the case, found the investigating officer to be guilty of dereliction of duty and in that circumstance, directed the officer-in-charge of the Bishungarh police station to make further investigation. 31. It is true that new investigating officer did not record the Statements of any other witnesses but merely re-examined some of the witnesses who had earlier been examined. 31. It is true that new investigating officer did not record the Statements of any other witnesses but merely re-examined some of the witnesses who had earlier been examined. He, on the basis of the statement, made before him by the said witnesses satisfied himself that a prima facie case has been made out as against the petitioners also. 32. In the instant case, as noticed hereinbefore, the court had also directed the officer-in-charge to make further investigation but it is evident from the record that no further investigation was carried out pursuant to the order of the court dated 25-7-1984. 33. It is true that normally in terms of sub-section (8) of Section 173 of the Code of Criminal Procedure, a supplementary charge-sheet can be filed only on the basis of further investigation evidence as has been held by this Court .in Arun Kumar Sah v. Md. Bashir Ahmad, reported in 1981 BLJR 467 and in Surendra Kumar Rai v. State of Bihar, reported in 1984 BBCJ 121 . 34. However, what would constitute a further investigation, has not been laid down in the aforementioned two decisions. As noticed hereinbefore, the Full Bench of this Court, however, in Shankar Ram v State, reported in 1986 PLJR 287 , held that while on the basis of investigation carried out by the police authorities, charge-sheet can be submitted against some of the accused persons, a supplementary charge-sheet can be submitted as against the other accused persons on the basis of the evidences which had been collected till the date of the filing of the first charge-sheet and also the further evidences, if any, and on the basis of further evidence, if any. 35. It is, thus, clear from the aforementioned authorities that in a case of this nature, the superior officer had the authority to direct further investigation and as new investigating officer satisfied himself by re-examining some of the witnesses named in the first information report, the satisfaction of the new investigating officer that a prima facie case has been made out in view of the statements given before him by the said witnesses, would also come within the purview of the provisions of sub-section (8) of Section 173 of the Code of Criminal Procedure. 36. In C. Lohithakshan v. State of Kerala, reported in 1989 Cr. 36. In C. Lohithakshan v. State of Kerala, reported in 1989 Cr. L.J. 614, it has been held as follows : "The Code thus recognized what was always implied. Codification is only a recognition, and not a restriction. When S. 173 (8) gives recognition to an unqualified power, it cannot be read as importing a prohibition. Thus seeking a prohibition from S. 173 (8), would be to go against the tenor and expressed intent of the Section. For this reason, petitioner's contention must fail. The further grievance that the report would prejudice the petitioner, is without substance. The findings to be made, cannot be prejudiced. Besides, evidentiary value of the report is to be determined by the trial court. There is no question of prejudice, at all. Scheme of the Code is not to further the interest of accused alone by jettisoning material gathered by the investigation. As observed by the Supreme Court in State of U.P. v. Anil Singh, AIR 1988 SC 1988 : (1989 Cri. L.J. 88), it is as much the responsibility of the Court to punish the guilty, as it is its responsibility to protect the innocent. Both are public duties and both must be observed". 37. Further in this case the question of seeking the permission of the Court before further investigation was directed to be made, did not arise in view of the fact that the original charge sheet was not filed in this Court and thus there was no question of interference with the proceedings of the case. As noticed hereinbefore the original charge-sheet reached the Court after the supplementary charge sheet was received in court. In any evens the irregularity, if any, must be deemed to have been rectified in view of the order of the Magistrate dated 15-3-1986. As has been held by the Supreme Court in Narang's case that final decision in such matter should be left to the discretion of the Court. 38. However, in the instant case, from the impugned order, it is evident that the learned court below has not only taken into consideration the statements made in the charge-sheet as also the supplementary charge-sheet but has also taken into consideration the statements made Before the police by the witnesses and other materials Which have been brought on records during investigation. 39. 39. The learned court below, therefore, as indicated hereinbefore was entitled to take cognizance of the offence as against the petitioners also, even of, a final form was submitted in their favour, as he was satisfied from a perusal of the case diary and other materials that the prima facie case is made out as against the petitioners also. 40. Taking thus into consideration all the facts and circumstances of this case, in my opinion, it must be held that the impugned order is neither illegal nor vitiated in law. 41. In the result, there is no merit in this application, which is dismissed.