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2006 DIGILAW 209 (GUJ)

VALIBEN v. STATE OF GUJARAT

2006-03-16

AKSHAY H.MEHTA

body2006
AKSHAY H. MEHTA, J. ( 1 ) RULE. Mr. V. M. Pancholi, Ld. APP waives service of rule on behalf of opponents. ( 2 ) THIS application is filed under Section 482 of the Code of Criminal Procedure thereinafter referred to as the Cr. P. C. ] to invoke inherent powers of this Court to quash and set aside order passed by the learned Add1. Sessions Judge, Fast Track court No. 2, Vadodara in Criminal revision Application No. 151 of 2002 dated 16th September, 2005, whereby the learned Judge confirmed the order passed by the Ld. Chief Judicial Magistrate dated 16th August, 2002 below Exh. 5 in criminal Case No. 1036 of 1999. By the said orders the Courts below have rejected the application submitted by the present applicants for further investigation under section 173 (8) of the Cr. P. C. (1 ). Applicants are original accused of criminal case No. 1036 of 1999 pending on the file of the Ld. Chief Judicial magistrate, Vadodara. It is filed for the alleged commission of offences under sections 498-A, 306 read with Section 114 of the Indian Penal Code [ipc]. It appears that in pursuance of the FIR registered at c. R. No. 55 of 1998 at J P Road Police station, Vadodara on 21st December, 1998, the applicants apprehended that they would be arrested for the alleged commission of non-bailable offences, they, therefore, approached this Court for obtaining anticipatory bail, which was granted. At a later stage of the trial application at Exh. 5 was submitted to the Ld. Chief Judicial magistrate requesting him to order further investigation under Section 173 (8) of the cr. P. C. The said application was submitted on the ground that there was material to show mat the deceased was of very strange nature and for trivial matters, she used to lose her temper and while in such state of mind, she even used to threaten the applicants that she would commit suicide. Existence of such material was brought to the notice of the Police inspector, J P Road Police Station by one dilipsinh Morarbhai Vaghela, by his letter dated 24/12/1998. However, the concerned inspector did not take any steps to find out the truth. In view of the same, the applicants submitted application at Exh. 5 which was rejected, against which they preferred Criminal Revision Application before the Sessions Court and that also was rejected. However, the concerned inspector did not take any steps to find out the truth. In view of the same, the applicants submitted application at Exh. 5 which was rejected, against which they preferred Criminal Revision Application before the Sessions Court and that also was rejected. ( 3 ) I have perused the record of this application and in particular the orders of the Courts below and also the letter dated 24th December, 1998. I have also heard miss Pandey, learned advocate appearing for Mr. B S Patel for the applicants and mr. V. M. Pancholi, Ld. APP for the opponents. Miss Pandey has submitted that the Courts below have committed error by not ordering investigation because the material pointed out by Mr. Dilipsinh is of importance and it is very necessary for the trial Court to have it on record to give just and proper decision in the case. (1 ). As against that, Mr. Pancholi, Ld. APP has submitted that considering the provisions of the Cr. P. C. , it is the choice of the prosecution to place reliance on the statements of particular witnesses and the defence cannot insist upon examining any particular person. He has, therefore, submitted that if the defence so intends, it can examine a particular person as its defence witness to bring on record the material on which the defence intends to place reliance. ( 4 ) IT is time and again decided by the different High Courts as well as the Apex court that the Investigating Officer has to carry out the investigation in fair, impartial and straightforward manner and in absolute legal way. No-doubt, in the present case, there is no complaint about the investigation as such. However, when certain material has been brought to the notice of the Investigating Agency, which may be essential for finding the truth in the case, it is the bounden duty of the investigating agency to collect such material and place it on the record. If that has not been done, it is the duty of the court to give appropriate direction to the concerned Investigating Officer to carry out the investigation on that line. The Courts below appear to have turned down the application mainly on the ground that in the present case the Investigating Agency has already carried out the investigation and it is completed. The Courts below appear to have turned down the application mainly on the ground that in the present case the Investigating Agency has already carried out the investigation and it is completed. If the defence intended to rely on the material which may ultimately be of its help, it could always examine the defence witness and bring on record such material. This is the finding given by the ld. Magistrate which is confirmed by the ld. Sessions Judge saying that no error of law has been committed by him. It is a well-known principle of criminal jurisprudence that it is the prosecution which has to establish the guilt of the accused beyond any reasonable doubt and the accused is not required to prove his innocence. It is enough for him to create a cloud of doubt. It is also a cardinal principle of criminal jurisprudence that accused is presumed to be innocent till he is adjudged guilty by the competent Court of law at the end of the trial. In the process of adjudging the accused guilty or otherwise, the State acts as a prosecuting agency which is an independent agency. State is not supposed to take sides but it has to make every endeavour to collect true facts and impartially place them before the Court to enable it to draw just and proper conclusion. It, therefore, cannot throw this burden on the accused and ask him to bring on record the information which is likely to disclose his innocence. Simultaneously it is also the duty of the Court to see that when accused tries to bring to its notice certain material which according to the accused, may have substantial bearing on the outcome of the case, it has to examine the claim of the accused closely and upon finding such information genuine and also necessary to have it on record with a view to arrive at just and proper decision, it should order further investigation on that line irrespective of the submission of report under Section 173 (2) of the Cr. P. C. , by the Investigating Officer. Such further investigation is duly permitted under section 173 (8) of the Cr. P. C. (1 ). Section 173 sub-section (8) reads as under : "section 173 : Report of Police Officer on completion of investigation. P. C. , by the Investigating Officer. Such further investigation is duly permitted under section 173 (8) of the Cr. P. C. (1 ). Section 173 sub-section (8) reads as under : "section 173 : Report of Police Officer on completion of investigation. (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, whereupon such investigation, the officer in-charge 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 ). " (2 ). This sub-section originally was not there prior to 1974. It was added in the Act 2 of 1974. This sub-section authorizes the police Officer to make further investigation of offences after submission of the police report under Section 173 (2) of the criminal Procedure Code to the Magistrate. If upon such investigation, further evidence, oral or documentary is available, he is authorized to forward it to the Magistrate by way of further report regarding such evidence in the form prescribed and in that event, provisions of sub-sections (2) to (6)apply to such further report as they apply in relation to the report forwarded under sub-section (2) of Section 173 of the criminal Procedure Code. A further report can also be submitted by the Investigating agency notwithstanding that the Magistrate has taken cognizance of the offences upon the police report submitted under Section 173 (2) of the Criminal Procedure Code. When this is the provision, and when it is brought to the notice of the learned magistrate that further investigation is needed on a particular line, and when the claim is found to be genuine, the learned magistrate must order further investigation, if it is not carried out by the Investigating agency on its own. This is a right which, though, directly not given to the accused, the accused can always request the Court to give proper direction to the Investigating agency to carry out further investigation on the line suggested by the accused. This is a right which, though, directly not given to the accused, the accused can always request the Court to give proper direction to the Investigating agency to carry out further investigation on the line suggested by the accused. When such claim of the accused appears to the magistrate to be reasonable and necessity expressed by the accused is found to be genuine, it is not proper for the Magistrate, to deny the request merely on the ground that report under sub-section (2) has been submitted and the cognizance has already been taken. It is, therefore, a valuable right also available to the accused to seek aid of provisions of sub-section (8) of Section 173 of the Criminal Procedure Code and it cannot be denied in this manner. The learned Magistrate was, therefore, not right and he ought not to have rejected the request of the applicants to direct further investigation, particularly, when notice was drawn to the material which inspires confidence and which in all probabilities is in existence. In view of the same, the impugned orders are quashed and set aside. The learned Magistrate is directed to order further investigation under Section 173 (8) of the Criminal Procedure Code on the line indicated in the application at exh. 5. ( 5 ) IN the result, the application is allowed. Rule made absolute. D S permitted. Rule made absolute.