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2013 DIGILAW 1083 (MP)

Mohan Mandelia v. State of M. P.

2013-09-10

SUJOY PAUL

body2013
JUDGMENT This petition filed under Article 226 of the Constitution contains a prayer for issuance of direction to the respondents to investigate the matter under section 173(8) of Cr. P.C. 2. A FIR is lodged against the petitioner by Sunita Sharma (page 16). It is contended that the allegation in the complaint is that the petitioner has taken a sum of Rs. 9 lakhs from Seeta Bai and Rs. 7 lakhs from the complainant Sunita Sharma. For repayment of said amount of loan, a cheque of Rs. 16 lakhs was given by the petitioner in the name of Seeta Bai. When the cheque was presented it was returned on account of petitioner's instruction "stop payment and because of insufficiency of fund". It was alleged that the cheque was found to be a coloured photocopy of the original cheque and therefore, FIR was registered. The matter was investigated by the Police and challan was filed. 3. Shri Prashant Sharma, learned counsel for the petitioner submits that the respondents are bound to follow section 173(8) of Cr. P.C. It is contended that State Minister of Home, Transport and Jail Department, Govt. of M.P. by communication dated 05.01.2009 Annexure P/3 directed the Superintendent of Police, Gwalior to re-investigate the matter. It is further contended that the challan has already been filed under section 173 of Cr. P.C. before the Court below. During the pendency of the matter before the Court below, the opinion of State Examiner of Questioned Document. Govt. of M.P. is procure by the prosecution. By taking this Court to this opinion dated 20.04.2012, it is contended that in view of this report, it is clear that petitioner is not guilty. 4. Learned counsel for the petitioner submits that the said report/opinion has already been produced before the Court below by the prosecution. However, along with this opinion, a report as required under section 173(8) Cr. P.C., has not been filed. By relying on recent judgment of Supreme Court reported in AIR 2013 SC 2348 (Karan Singh Vs. State of Haryana & Anr.), it is contended that the prosecution is obliged to ensure that the innocent person does not suffer from unnecessary harassment of false implication. The prosecution is under an obligation to assist the Court to reach to the truth and is not supposed to only act against the accused. State of Haryana & Anr.), it is contended that the prosecution is obliged to ensure that the innocent person does not suffer from unnecessary harassment of false implication. The prosecution is under an obligation to assist the Court to reach to the truth and is not supposed to only act against the accused. On the strength of this judgment, it is contended that once said opinion of State Examiner is filed by the prosecution itself, as mandated in section 173(8) Cr. P.C., a report needs to be filed. Pleadings in this regard are made in para 2 of the rejoinder. 5. Per Contra, Shri Newaskar, Dy. Govt. Advocate submits that re-investigation or re-enquiry cannot be ordered. The petitioner cannot decide the manner and method in which investigation is to be done. No interference is warranted in investigation or in the trial. It is further contended that although opinion of State Examiner is before the trial Court, the trial Court will take into account and take decision on it in accordance with law. Present petition is premature and no interference is warranted. 6. Shri S.K. Shrivastava, learned counsel for the respondents No. 8 & 9 opposed the relief claimed and submits that the present petition is not maintainable. No re-enquiry or re-investigation can be ordered by this court. It is contended that there is no infirmity which requires interference by this court. It is further contended that it is for the Court below to take into account the opinion of State Examiner at appropriate stage and this Court is not obliged to decide the manner and method in which the trial Court needs to interfere or decide the matter. Shri Shrivastava relied on certain judgments in support of his contention. No other point is pressed by the parties. 7. I have heard learned counsel for the parties and perused the record. 8. The petitioner placed heavy reliance on Annexure P/3 wherein the concerned Minister has informed him that the Superintendent of Police has been directed to re-investigate the matter. In the considered opinion of this Court, this document is of no assistance to the petitioner. The prosecution is under no obligation to mechanically act on such communications. 8. The petitioner placed heavy reliance on Annexure P/3 wherein the concerned Minister has informed him that the Superintendent of Police has been directed to re-investigate the matter. In the considered opinion of this Court, this document is of no assistance to the petitioner. The prosecution is under no obligation to mechanically act on such communications. It is the statutory obligation and duty of the police to investigate into the crime and Courts are normally not required to interfere and guide the investigating agency as to in what manner the investigation has to proceed. The Apex Court took this view in catena of judgments including 2003 (2) SCC 649 (M.C. Abraham Vs. State of Maharashtra (para 14). This view is followed by Supreme Court in (2009) 10 SCC 488 (D. Venkatasubramaniam and others Vs. M.K. Mohan Krishnamachari and another) (para 25). In (2010) 12 SCC 254 (Babubhai Vs. State of Gujrat and others) the Apex Court opined that where serious irregularities in investigation had taken place, Court may direct the further investigation under section 173(8) Cr. P.C. It is made clear that ordinarily such directions are not issued, unless an extraordinary case of gross abuse of power is made out by those in charge of investigation. The Court should be quite loathe to interfere in the investigation, a field of activity reserved for the police and the executive. 9. In the light of aforesaid judgments, it is to be seen whether there is any gross violation in the investigation. The attack is on the ground that the concerned Minister has issued a communication Annexure P/3 and therefore, reinvestigation is needed. In my opinion, said communication does not lead to the conclusion that the investigation is bad in law or suffers from any infirmity. Thus, in the facts and circumstances of the case, in my opinion, no case is made out for issuance of direction for re-investigation. 10. The second limb of argument of the petitioner is regarding submission of report pursuant to expert opinion of handwriting expert. Before dealing with this aspect it is apt to quote section 173(8) of Cr. Thus, in the facts and circumstances of the case, in my opinion, no case is made out for issuance of direction for re-investigation. 10. The second limb of argument of the petitioner is regarding submission of report pursuant to expert opinion of handwriting expert. Before dealing with this aspect it is apt to quote section 173(8) of Cr. P.C. which 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-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).” 11. This is settled in law that even after filing challan, the prosecution is not precluded to continue or conduct further investigation. Many a times it happens that after submission of Challan, further material is made available to the prosecution which may throw more light on the incident. The said material is necessary for deciding the real nature of the incident. Thus it was settled that further investigation and supplementary report can be filed even after filing of challan. 12. During the course of hearing of this matter, a specific question was asked by the Bench whether the report of State Examiner of Questioned Documents (Annexure X/1) is actually filed by the prosecution before the Court below? Learned counsel for the parties fairly submitted that this document is filed by the prosecution as further evidence before the Court below. 13. In the opinion of this court, a microscopic reading of section 173(8) of Cr. P.C. makes it clear that where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate with further report or reports. Underlined portion of said provision quoted above makes it crystal clear that it is a statutory obligation on the part of the police to forward such additional evidence with further report or reports. Underlined portion of said provision quoted above makes it crystal clear that it is a statutory obligation on the part of the police to forward such additional evidence with further report or reports. Thus, I find substance in the argument of the learned counsel for the petitioner that mere providing or furnishing an expert report (Annexure X/1) does not fulfill the requirement of the section 173(8) of Cr. P.C. 14. In Karan Singh (supra) Apex Court opined that investigation into a criminal offence must be free from any infirmity which may give rise to an apprehension in the mind of the complainant or the accused that investigation was not fair and may have carried out with some ulterior motive. It is the duty of the investigating officer to put forth the matter dispassionately before the Court. Investigating officer is not merely present to strengthen the case of the prosecution with evidence that will enable the Court to record conviction, but to bring out real unvarnished version of the truth and ethical conduct was expected from investigating agency. It is held that investigating agency are guardians of liberty of innocent citizens. Duty is cast upon investigating officer to ensure that an innocent person should not suffer from unnecessary harassment of false implication. Reliance is placed by the Supreme Court on the earlier judgment of Babu Bhai (supra). 15. The Apex Court in 2010(1) MPLJ (S.C) 739 = (2009) 6 SCC 346 (Rama Chaudhary Vs. State of Bihar) considered the Section 173(8) of Cr. P.C. In para 15 the Apex Court opined that "it is incumbent on the part of investigating officer to forward the same to the Magistrate with further report with regard to such evidence in the form prescribed". In para 18, it is further held that investigating agency has to forward to the Magistrate a "further" report and not a fresh report regarding the "further" evidence obtained during such investigation. 16. In (2013) 5 SCC 762 (Vinay Tyagi Vs. Irshad Ali alias Deepak and others) the Apex Court opined that there is no specific embargo upon the power of Magistrate to direct further investigation on presentation of a report of section 173(2) of the Code. 16. In (2013) 5 SCC 762 (Vinay Tyagi Vs. Irshad Ali alias Deepak and others) the Apex Court opined that there is no specific embargo upon the power of Magistrate to direct further investigation on presentation of a report of section 173(2) of the Code. It is held that it is the Magistrate who has to decide whether on the basis of record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted. Whether the Magistrate should direct "further investigation" or not, is again a matter which will depend upon the fact of a given case. The Magistrate or the higher Court can direct "further investigation" on the facts of a given case. 17. In (2013) 6 SCC 348 (Amit Bhai Anil Chandra Shah Vs. Central Bureau of Investigation and another) the Apex Court opined in para 58.3 that "where during further investigation, the investigation authority collects further evidence, oral or documentary, he is oblige to forward the same with one or more further reports which is evidence from sub-section (8) of Section 173 of the Code". 18. In the light of aforesaid legal position, it is clear that the prosecution has produced further evidence after filing of report under section 173(2) of the Code before the Magistrate. This evidence is in the shape of Annexure X/1 (State Examiner of Questioned Documents). Thus, as mandated in sub-section 8 of section 173 of Code, the investigating officer is under a legal obligation to forward a further report on this evidence. In the opinion of this Court, if this part has not been complied with, it is a serious flaw in the investigation. It is a statutory duty of the investigating officer to submit further report on the basis of further evidence produced in the Court. To this extent, interference is warranted and petitioner deserves to succeed. 19. Resultantly, the prosecution/investigating officer is directed to submit its further report before the Magistrate on the basis of documentary evidence (Annexure X/1) (State Examiner of Questioned Documents) (if not already submitted). It shall be the duty of the Magistrate to look into the said report and proceed further in accordance with law from that stage. To this extent, petition is allowed. No Costs.