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Allahabad High Court · body

2011 DIGILAW 2284 (ALL)

RAM PAL SINGH v. STATE OF U. P.

2011-09-28

JAYASHREE TIWARI

body2011
JUDGMENT Hon’ble Mrs. Jayashree Tiwari, J.—Case called out in the revised list. Learned counsel for the revisionist is present. Learned A.G.A. is also present. The present revision has been filed against the order of remand passed by learned Additional Sessions Judge quashing the order of the Magistrate dated 26.4.2010. 2. The crux of the objection raised by learned counsel for the revisionist is that learned lower Revisional Court while quashing the order has made observation that in case the Magistrate on the final report has directed for further investigation or reinvestigation then the conclusion has to be drawn that positively there was lacking in the evidence and the Magistrate cannot look into the earlier material evidence collected by the Investigating Officer. In the present case, after further investigation, again the final report was submitted whereupon the Magistrate had, after considering the entire evidence on record, allowed the protest petition and directed for summoning the accused which order has been quashed by the learned lower Revisional Court. 3. Under the Provisions mentioned in Cr.P.C. under Section 173 on the submission of the police report is as under: Report of police officer on completion of investigation : (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under Section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under Section 158, the report, shall, in any case in which the State Government by general or special order so directs, 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. (4) Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate alongwith the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to be accused copies of all or any of the documents referred to in sub-section (5). (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to be accused copies of all or any of the documents referred to in sub-section (5). (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 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). 4. Sub-clause 4 of the said Section, it has been mentioned that Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. Sub-clause 8 of the aforesaid Section shows that 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 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). Under sub-clause 2 of the aforesaid Section, the Magistrate is empowered to take cognizance of the offence on a police report. Under sub-clause 3 of the aforesaid Section, the Magistrate can direct the officer in charge of the police station to make further investigation. 5. Under sub-clause 2 of the aforesaid Section, the Magistrate is empowered to take cognizance of the offence on a police report. Under sub-clause 3 of the aforesaid Section, the Magistrate can direct the officer in charge of the police station to make further investigation. 5. The contention of the learned counsel for the revisionist is that on submission of the subsequent final report after further investigation, the Magistrate is not empowered to look into the material which was earlier available at the time of direction for further investigation was made and hence the observations made by the learned Lower Revisional Court that the Magistrate can only take cognizance on the basis of the additional evidence or the material which has been adduced in the further investigation. 6. A perusal of the order passed by the learned lower Revisional Court shows that the Magistrate while directing for further investigation has not held that evidence as required for taking cognizance of the case was lacking in the matter and hence he directed for further investigation. It may also be the situation where the Magistrate after considering the material furnished in the police final report may come to the conclusion that the investigation has not been properly conducted as is required under the Law, he may direct for further investigation. 7. The learned Magistrate while directing for the further investigation has not taken into consideration the affidavits given by the witnesses Lokesh Kumar-injured etc. which were sent through the Registered Post to the S.S.P. And which are the part of the case diary and has colluded with the opposite party and has submitted the final report. In these circumstances, the learned Magistrate has directed for further investigation. A perusal of the order shows that there was already present sufficient material in the shape of affidavits which were not taken into consideration. Sub-clause 8 of Section 173 that in case of further investigation subsequent police final report shall be taken into consideration in the light of the provisions of sub-section (2) to (6). Accordingly, the observations made by the learned Revisional Court that the Magistrate is not entitled to look into the material already existing at the time of consideration of the earlier final report seems to be erroneous and not in consonance with the provisions of Law. The observations made by the learned lower Revisional Court is liable to be modified. Accordingly, the observations made by the learned Revisional Court that the Magistrate is not entitled to look into the material already existing at the time of consideration of the earlier final report seems to be erroneous and not in consonance with the provisions of Law. The observations made by the learned lower Revisional Court is liable to be modified. The revision is, thus, partly allowed. The order passed by the learned lower Revisional Court and the observations made therein are modified accordingly. —————