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2001 DIGILAW 647 (PAT)

Ganesh Ram v. State

2001-07-27

S.K.CHATTOPADHYAYA

body2001
Judgment S.K.Chattopadhyaya, J. 1. Heard Mr. Manan Kumar Mishra, learned Counsel for the petitioners, Mr. Dhananjay Kumar, learned Counsel for the opposite-party No. 2 and Mr. K.P. Sinha, learned Addl. Public Prosecutor on behalf of the State. 2. Originally in this application under Section 482 of the Code of Criminal Procedure, order of the learned Chief Judicial Magistrate, Gopalganj, dated 7.3.2000 was impugned by which he had allowed the Investigating Agency to re-investigate in the case. Subsequently, by finding another petition, petitioners have challenged the order taking cognizance, dated 8.5.2000 on the basis of fresh charge-sheet, filed by the police. 3. On a complaint petition filed by the complainant before the CJM the same was forwarded to the officer-in-charge, Gopalganj Police Station to institute a case and investigate under Section 156(3) of the Code. The Police registered a case as Gopalganj P.S. Case No. 258 of 1999, dated 26.8.1999 under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code. After completion of investigation, the Police submitted final form stating the case to be false and also recommended for proceeding against the complainant/ informant under Sections 182 and 211 of the Penal Code. Final form was accepted by the learned CJM. Thereafter, it appears the Investigating Agency filed a petition before the learned Magistrate under Section 178(3) of the Code for allowing the agency to re-investigate into the case. This petition is Annexure-4. 4. Learned Magistrate by his order, dated 7.3.2000 allowed the prayer directing the Police to re-investigate the same. This order has been impugned by the learned Counsel on the ground that once the Magistrate has accepted the final form, it has no power to order for re-investigation under Section 173(8) of the Code. However, in view of the decision of the Supreme Court in the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanadadha Maharaj v. The State of Andhra Pradesh, AIR 1999 SC 2332 : 1999 (2) East Cr C 190 (SC), Mr. Mishra, fairly submits that this point cannot be further agitated by him. His alternative contention is that the learned Magistrate mechanically took cognizance of the offence because no fresh materials were collected by the Police during re-investigation and no other witness than those who had already been examined by the Investigating Officer at the first instance was examined. Mishra, fairly submits that this point cannot be further agitated by him. His alternative contention is that the learned Magistrate mechanically took cognizance of the offence because no fresh materials were collected by the Police during re-investigation and no other witness than those who had already been examined by the Investigating Officer at the first instance was examined. According to him, during re-investigation even evidences which were already before the Investigating Agency, prior to submitting the first charge-sheet were not reconsidered and no fresh materials were available before the I.O. for filing the supplementary charge-sheet. According to him until and unless some other witnesses are examined and fresh evidences are collected the Police is not entitled to file fresh charge-sheet on which the learned Magistrate can take cognizance. In support of his contention he has relied on a Division Bench decision of this Court in the case of Yamuna Pathak v. The State of Bihar and another, reported in 1994 (2) PLJR 96 : 1994 (2) East Cr C (NOC) 24. Apart from this, Mr. Mishra has urged that the learned Magistrate ought to have appreciated that the complaint case filed by the opposite-party No. 2 is nothing but a counter-blast of the case already filed by the petitioner against him. 5. Mr. Dhananjay Kumar, on the other hand, countering the argument of Mr. Mishra, submitted that when the final form was submitted by the Investigating Agency in connivance with the petitioners the same investigation was a perfunctory one and that too without approval of the supervising authority final form was submitted. However, when the opposite-party No. 2 made an application to this effect before the Superintendent of Police with request to re-investigate, the SP thoroughly examined the records of the case and was satisfied that in the facts and circumstances, re-investigation was necessary and to this effect a petition under Section 173(8) of the Code was filed by the APP before the learned Magistrate on which the Magistrate passed the order on 7.3.2000 which cannot be challenged as illegal. Learned Counsel further submits that during re-investigation, the Superintendent of Police found that earlier Investigating Officer submitted the final form without getting approval from him and this statement of the witnesses recorded by Investigating Agency are enough to file charge-sheet against the petitioners. 6. Learned Counsel further submits that during re-investigation, the Superintendent of Police found that earlier Investigating Officer submitted the final form without getting approval from him and this statement of the witnesses recorded by Investigating Agency are enough to file charge-sheet against the petitioners. 6. In order to appreciate the rival contention this Court, called for a copy of the case-diary of further investigation by its order, dated 25.6.2001 and the same has been received. 7. Mr. Sinha, learned APP on going through the entire case- diary has submitted that in earlier investigation though the Investigating Officer had recorded the statement of different witnesses but their statements were not specifically mentioned in the case-diary. Mere by mentioning the names of witnesses examined, the Investigating Officer has stated in one paragraph about their statement. His contention is that on re-investigation specific statements of the said witnesses have been recorded and the Superintendent of Police supervised the same and came to the conclusion that there were materials for submitting charge-sheet against the petitioners. In this connection he has specifically pointed out paragraph 7 of the earlier case-diary and paragraph 10 of the case-diary after re-investigation. 8. In the case of Yamuna Pathak (supra) it appears that when the Police had filed charge-sheet against some accused, Yamuna Pathak and some others were not sent up. The CJM after going through the case-diary found that the case-diary does not contain material to summon them and as such be discharged Yamuna Pathak and some others after observing that the IO has rightly not sent them. Thereafter, a Member of the Vidhan Sabha filed a petition before the Director General of Police for reconsideration of some of the points in the evidence collected in course of investigation and accordingly opinion of the Assistant Public Prosecutor was sought for who opined that the charge-sheet should be submitted. Thus, the evidence collected was reconsidered and subsequently charge-sheet was filed. Under this circumstances, this Court held that the order of the Magistrate taking cognizance was bad as no fresh evidence was found to have come. 9. Thus, the law is well-settled that until and unless on re- investigation some fresh evidence come, the Police is not authorised to file further charge-sheet which is commonly known as supplementary charge-sheet. Under this circumstances, this Court held that the order of the Magistrate taking cognizance was bad as no fresh evidence was found to have come. 9. Thus, the law is well-settled that until and unless on re- investigation some fresh evidence come, the Police is not authorised to file further charge-sheet which is commonly known as supplementary charge-sheet. In the present case, the learned Magistrate on a petition filed by the prosecution passed order on 7.3.2000 allowing reinvestigation in the case. Though Mr. Dhananjay Kumar and Mr. Sinha have contended that during re- investigation fresh materials were collected but in order to verify the same I have looked to the entire case-diary which has been recorded till 25.4.2000. After perusal of the case-diary it appears that after 7.3.2000 first date is 15.3.2000 which does not show recording of further statements of any of the witnesses. Thereafter from 17.3.2000 to 28.4.2000 no witness was examined by the Investigating Officer and only it has been recorded that the petitioner No. 2, namely, Surendra Kumar @ Munna Ram was arrested and sent to the jail. Even re-consideration of the case-diary by the Supervising Officer does not reveal from the case-diary during 15.3.2000 to 28.4.2000 Mr. Sinha though has pointed out paragraph 10 of the case-diary but it was recorded on 5.2.2000 which indicates that these statements of Mr. Mishra, therefore, that on re-investigation no fresh material has come before the Investigating Agency for filing supplementary charge-sheet, in my view, is sustainable. In the case of Yamuna Pathak, it appears, at least evidence which was already before the Investigating Agency prior to submitting the first charge-sheet were reconsidered but in the instant case even that has not been done which is apparent from the case-diary. 10. Under this circumstances, in my view, the learned Magistrate has erred in law in taking cognizance and issuing summons against the petitioners. Considering entire facts and law, I am of the opinion that the order taking cognizance, dated 8.5.2000 cannot be sustained in law and must be set-aside. 11. In the result, this application is allowed. The order taking cognizance, dated 8.5.2000 is set-aside and the entire proceeding against these two petitioner is quashed. 12. Office is directed to send down the case-diary to the Court below forthwith.