Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 501 (ALL)

INDIAN AIR GASES LTD v. UNION OF INDIA

2004-03-05

ONKARESHWAR BHATT, S.RAFAT ALAM

body2004
In the instant writ petition under Article 226 of the Constitution of India the petitioner has challenged the order of Chief Security Commissioner, Railway Protection Force, North Eastern Railway, Varanasi, dated 11-6-2003 (contained in Annexure-8 to the writ petition), directing the Inspector, Railway Protection Force, Eastern Railway, Varanasi for re- investigation of Case Crime No. 4 of 2003 under Section 3 of the Railways Property (Unlawful Possession) Act and under Section 177 of the Railways Act. A further prayer has been made for quashing of the FIR dated 2-4-2003 (contained in Annexure-3 to the writ petition), and for issuing a writ of Mandamus commanding the respondents to release the remaining 4 DA Gas Cylinders seized pursuant to the impugned FIR. 2. Learned counsel for the petitioner contended that once investigation by the police is completed and report is prepared, re-investigation cannot be directed in view of the provisions contained in Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ). Placing reliance on a judgment of the Apex Court in the case of K. Chandra Shekhar etc. v. State of Kerala & others, reported in 1998 (2) JIC 1015, it is argued that after submission of police report, the police can only make further investigation as provided in sub-section (8) of Section 173 of the Code, but no fresh or re- investigation can be ordered. 3. To appreciate the contention raised, it is necessary to set out the relevant facts as averred in the writ petition. It appears that the petitioner was given contract by the Director General of Supplies and Disposal, Government of India, New Delhi vide rate contract 3/rc 09020501/072002/indus Gases/ 2002- 2003/coad/799 for supply of cylinders filled with oxygen gas. However, on1-4-2003, 90 cylinders alleged to be empty was loaded in Truck No. UP-65-H/7916 of the petitioner as per terms and conditions of the rate contract. The Inspector, Crime Branch, Railway Protection Force, D. L. W. , Varansi on suspicion, detained the vehicle and asked for relevant papers, such as, gate pass, challan of empty cylinders, tools etc. On search it was found that those 90 cylinders were not empty and gas worth Rs. 12,152/- was found in those cylinders. Consequently, the impugned FIR dated 2-4-2003 was lodged alleging that the gas found in the seized cylinders was railway property and they were not empty. On search it was found that those 90 cylinders were not empty and gas worth Rs. 12,152/- was found in those cylinders. Consequently, the impugned FIR dated 2-4-2003 was lodged alleging that the gas found in the seized cylinders was railway property and they were not empty. The Investigating Officer after investigation was of the view that no offence is disclosed against the petitioner and, therefore, he forwarded his report dated 7-5-2003 (Annexure-6) to the respondent No. 3, the Chief Security Commissioner for his approval for transmitting it to the concerned Magistrate as required under Section 158 of the Code. Respondent No. 3, however, having examined the report, found that not a single witness of prosecution has been examined by the Investigating Officer and, therefore, he did not accept the proposal for submitting final report in the Court and by the impugned order directed for re-investigation of the matter. 4. The Code nowhere expressly prohibits or circumscribes the powers of police of re-investigation or further investigation of a cognizable offence. Sub-section (8) of Section 173 of the Code on which reliance is placed, provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after submission of report under sub- section (2) of Section 173. Sub-section (8) of Section173 reads as under: " (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 incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (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 ). " 5. " 5. It thus enables the police to carry on further investigation even after forwarding of report to the Magistrate under sub- section (2) of Section 173 of the Code and upon such investigation if the police obtains further evidence, oral or documentary, it is to be forwarded to the Magistrate as further report or reports regarding such evidence in the prescribed form; and the provisions of sub-sections (2) to (6) will be applicable in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2 ). Under this provision the Investigating Officer may obtain such further evidence and send supplementary report to the Magistrate complying with the requirement of sub-sections (2)- (6) of Section 173. 6. Section 36 of the Code empowers a superior officer of police to exercise power of an officer incharge of a police station within his jurisdiction. It provides that the police officers superior in rank to an officer incharge of a police station may exercise, the same powers throughout the local area for which they are appointed, as may be exercised by such officer within the limits of his station. Further sub-section (2) of Section 158 empowers the superior officers to give such instruction to the officer incharge of the police station as he thinks fit and the officer incharge after recording such instruction on such report, shall transmit the same without delay to the Magistrate. Therefore, in view of the provisions contained in Section 36 of the Code and sub-section (2) of Section 158 of the Code, it is within the province of a police officer superior in rank to the Investigating Officer to give such instruction as he thinks fit and only after recording such instruction, report can be transmitted to the Court. 7. In the case in hand, admittedly, no report as envisaged in sub-section (2) of Section 173 was forwarded to the Magistrate empowered to take cognizance of the offence in the prescribed form and, therefore, it not being a report under sub-section (2) of Section 173, it was within the province of the Chief Security Commissioner, respondent No. 3, who is superior officer of the Investigating Officer, to direct for re-investigation or further investigation. Learned counsel for the petitioner could not place any authority nor point out any provision under the Code which bars re-investigation or further investigation prior to filing of report under Section 173 of the Code. We are, therefore, of the view that before submission of report under Section 173 the police has ample power and jurisdiction to re- investigate or further investigate a cognizable offence and exercise of such power not being expressly prohibited or forbidden under the Code, cannot be held to be without jurisdiction or in excess of jurisdiction. 8. In the case of K. Chandra Shekhar etc. v. State of Kerala & others, (supra), the investigation was entrusted to CBI by issuing notification dated 2-12-1994 giving consent to the extension of powers and jurisdiction of the members of Delhi Special Police Establishment in the whole of the State of Kerala for investigation of Crime No. 225/94 and 246/94 of Vanchiyoor police station and the question for determination was that when the investigation into an offence is transferred and entrusted to CBI for investigation pursuant to consent given under Section 6 of the Act and the CBI has not only started but completed the investigation armed with that consent and submitted its report under Section 173 (2) of the Code, can the State Government withdraw the consent and if so, what is the effect thereof? While considering the question the Apex Court having taken note of sub-section (8) of Section 173, observed that form a plain reading of the aforesaid section, it provides that even after submission of police report under sub-section (2) on completion of investigation, the police has a right of further investigation under sub-section (8), but not fresh investigation or re- investigation; that further investigation is continuation of such investigation which culminates under sub-section (8) of Section 173 and, therefore, the withdrawal of consent in that case would not entitle the State police to further investigate into the case and as such if any further investigation is being made, it is the CBI alone which can do so and, therefore, held that the notification withdrawing consent to enable the State police to further investigate into the case is patently invalid and unsustainable in law. Therefore, the question involved in K. Chandra Shekhars case (supra), was altogether on a different premise and reliance on that case is totally misplaced and is of no help to the petitioner nor it has any application in the facts of the present case. 9. In our view, since the report prepared by the Investigating Officer contained in Annexure-6 not being a report under sub- section (2) of Section 173, nor the same was transmitted to the Court, respondent No. 3 was competent enough to direct for re- investigation and, therefore, there is no error in the impugned order calling for interference. Besides that the question of further investigation arises only after submission of report under Section 173 Cr. P. C. and prior to that any order of the superior officer in rank either to re-investigate or to further investigate is in continuation of the process of investigation, which is yet to be culminated by submitting report under Section 173. Therefore, it is immaterial whether the superior officer in rank while issuing instruction to the Investigating Officer has used the word "re-investigation" or "further investigation. " 10. Now coming to the second prayer for quashing of the FIR, we are of the view that the allegations in the impugned FIR prima facie discloses commission of cognizable offence, and therefore, it cannot be quashed nor interfered with at this stage under the extra-ordinary jurisdiction of this Court. 11. In view of the discussions made above, there is no merit in the writ petition and it is, accordingly, dismissed. Petition dismissed. .