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2011 DIGILAW 2491 (RAJ)

Mukum Singh v. State of Rajasthan

2011-11-17

NISHA GUPTA

body2011
Hon'ble GUPTA, J.—This criminal misc. petition has been filed under Section 482, Cr.P.C. for quashing the proceedings pending before the learned Special Judge (SC/ST) Cases, Pali in Sessions Case No. 4/2010. 2. The short facts of the case are that a dead body was found on the railway track near village and inquest report has been prepared under Section 174, Cr.P.C. The complaint was filed for the offences under Section 302, 201/34 IPC and Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act against the present petitioners which was sent for investigation. After investigation, the police submitted a negative report before the learned Magistrate on 1.8.2007. The notices were issued to the complainant and protest petition has been filed by the complainant. The learned Magistrate has recorded evidence of the complainant under Section 200, Cr.P.C. He has also recorded statements of other witnesses under Section 202, Cr.P.C. and after completion of enquiry, matter was pending for hearing arguments regarding taking of the cognizance. When the matter was fixed for hearing arguments, an application was filed by the Deputy Superintendent of Police, Pali stating therein that the matter was entrusted to the C.I.D. (CB) for investigation and hence the negative report should be returned to him. The learned Magistrate has returned the negative report and after that charge-sheet has been filed against the present petitioners. Cognizance has been taken and charges have been framed against the present petitioners. 3. The present petitioners moved an application that the committal order is perverse and prayed that the present petitioners should be discharged but that application has been rejected by the trial court. Hence this petition has been filed. 4. Cognizance has been taken and charges have been framed against the present petitioners. 3. The present petitioners moved an application that the committal order is perverse and prayed that the present petitioners should be discharged but that application has been rejected by the trial court. Hence this petition has been filed. 4. The first contention of the present petitioners is that once a report under Section 173(2) has been filed before the competent court then no fresh investigation can be carried out by the investigating officer and he has referred to provisions of Section 173(8), which reads as follows:- `Section 178(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)." 5. A bare perusal of above provision goes to show that after a report under sub-section (2) has been forwarded to the Magistrate, there is no bar on the investigating officer to further investigation the matter. There is no dispute about the above legal proposition, but the learned counsel for the petitioners has submitted that fresh investigation could not be ordered, but in the present case, the learned trial Court vide its order dated 3.7.2009 has not ordered for any further investigation but on the contrary, Ex. 1 the application which was presented before the Magistrate by Deputy Superintendent of Police on 30.3.2009 goes to show that the CID (CB) was already investigating the matter since 10.8.2007 and hence the trial Magistrate has not ordered any investigation. The learned counsel for the petitioners has relied upon the judgment reported in the case of Ramchandra vs. R. Udhayakumar and others (2008) 5 SCC 413 ) wherein it has been held as under:- "Instead of fresh investigation there can be further investigation if required under Section 173(8) Cr.P.C. The same can be done by CB CID as directed by the High Court. From a plain reading of Section 173 Cr.P.C. it is evident that even after completion of investigation under Section 173(2) Cr.P.C., the police has right to further investigate under sub-section (8) but not fresh investigation or reinvestigation." 6. It goes to show that under Section 173(8), the police has right to further investigate the matter and further means additional or supplementary. 7. The contention of the present petitioners is that the investigating officer has investigated the matter freshly or de novo is baseless. The charge-sheet which has been filed after investigation goes to show that on earlier and further investigation, this charge-sheet has been prepared and filed and hence there is no infirmity in the investigation undertaken by the CID (CB). 8. The learned counsel for the petitioners has also relied upon the judgement reported in the case of Babubhai vs. State of Gujarat & Ors. (2011) 1 SCC (Cri) 336 = 2010(4) RLW 2990 (SC)) wherein it has been held that in extra-ordinary exceptional cases of gross abuse of power and failure of justice, the court can direct de novo investigation. But the learned counsel for the petitioners has submitted that present case has no such exceptional circumstance. Hence the contention of the petitioners that fresh investigation has been ordered, is unsustainable, rather the investigation was in progress since 10.8.2007 and which is permissible under the provisions of Section 173(8), Cr.P.C. 9. The other contention of the present petitioners is that once the trial Court has proceeded under Section 202, Cr.P.C. and the offence is exclusively triable by the Court of Sessions, the Magistrate cannot direct any investigation to be made by police officer and hence sending the case for investigation was illegal and he has placed reliance upon the judgment reported in the case of Bhushan Prakash @ Prasad vs. State of Rajasthan & Ors. (2007(1) Cr.L.R. (Raj.) 7 = RLW 2006(4) Raj. 3415), wherein it has been held as under:- "Once a complaint is made to a Magistrate, who is authorised to take cognizance, the Magistrate may postpone the issuance of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings. However, once the learned Magistrate has recorded the statement of the complainant under Section 200 of the Cr.P.C. and that of his witnesses under Section 202 of the Cr.P.C., thereby having inquired into the complaint, the Magistrate cannot direct further investigation by the police. For the options given to the Magistrate are exclusive of each other." 10. The learned counsel for the petitioners has also relied upon the judgment reported in the case of Devarapalli Lakshminarayan Reddy & Ors. vs. V. Narayana Reddy and Ors. (1976 Cr.L.R. 268) "The distinction between a police investigation ordered under S. 156(3) and the one directed under S. 302, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Sec. 202 (1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation." 11. There is no dispute about the above legal proposition but, in the present case, the Magistrate had not ordered for any investigation by the police. As already stated above that the investigation was pending under Section 173(8) and for which investigating officer was competent. 12. The learned counsel for the petitioners has also relied upon the judgment reported in the case of Srinivas Gundluri and others vs. Sepco Electric Power Construction Corporation and others (2010) 3 SCC (Cri) 652), which deals with the charge-sheet and final report which is not a disputed issue in the present case. 13. Hence looking at the above legal and factual position of the present case, there seems to be no illegality in the impugned order and the procedure. 14. By order dated 3.7.2009, the trial court has not ordered for any investigation. It is not in dispute that the matter was pending before the Magistrate under Section 202 and at that stage, application has been presented before the trial court by the investigating officer and then the trial court acted in accordance with the provisions of Section 210, Cr.P.C. Section 210(1), Cr.P.C. Reads as under:- "210. It is not in dispute that the matter was pending before the Magistrate under Section 202 and at that stage, application has been presented before the trial court by the investigating officer and then the trial court acted in accordance with the provisions of Section 210, Cr.P.C. Section 210(1), Cr.P.C. Reads as under:- "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.- (1) When in a case instituted otherwise than on a police report (herein referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation." 15. The above provision goes to show that when a matter is pending before the Magistrate for enquiry and for the same offence, the matter is also pending under investigation, the Magistrate shall stay the proceedings. In the present case, when the matter was pending under enquiry before the Magistrate, the investigating officer has submitted application dated 30.3.2009 which is presented before this Court as Annex. 1 and then the Magistrate has rightly stayed the enquiry and waited for the investigating officer to file report and when after investigation, a charge-sheet has been filed by the investigating officer, the matter has been committed to the competent court and there seems to be no illegality or perverseness in the above proceedings. 16. 1 and then the Magistrate has rightly stayed the enquiry and waited for the investigating officer to file report and when after investigation, a charge-sheet has been filed by the investigating officer, the matter has been committed to the competent court and there seems to be no illegality or perverseness in the above proceedings. 16. The learned PP has submitted that the cognizance has been taken against the present petitioners way back in 2009 and the charges have also been framed against the present petitioners but no such objection has been taken before the trial Court at that time and hence now these objections could not be entertained and he had relied on Section 465(2), Cr.P.C., which reads as under:- "465(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, of irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 17. The learned counsel for the petitioners has also relied upon the judgment reported in case of Rosy & Anr. vs. State of Kerala & Ors. (2000(2) SRJ 192 = RLW 2000(3) SC 454), wherein it has been held as under:- "(c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later." 18. Looking at the above, it is clear that the petitioners have not objected at the time of taking cognizance and at the time of framing charge and now on this account only, these objections are liable to be rejected. 19. Hence looking at the above, there is no infirmity in the proceedings pending before the court of Special Sessions Judge (SC/ST) Cases, Pali in Criminal Case No. 4/2010 and the present petition is liable to be dismissed. 20. In view of the above, this misc. petition is hereby dismissed.