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2013 DIGILAW 229 (BOM)

Gajendra Puranrao Tayade v. State of Maharashtra

2013-01-29

M.L.TAHALIYANI

body2013
JUDGMENT:- Heard learned counsel for the petitioner and learned counsel for the respondents. 2. Rule. Rule returnable forthwith by consent of the learned counsel for the parties. 3. The petitioner feels aggrieved by the order passed by the learned Magistrate in Misc. Criminal Case No. 178/2011 on 3rd October 2012, which runs as under:- "1] The application below Exh.7 is hereby rejected. 2] As the complaint was sent for investigation u/s 156(3) of Cr. PC. To PSO Khallar and PSO has registered FIR. There is no any proceeding is pending in this court to pass any order accordingly proceeding below Exh.1 is disposed of." 4. This order was passed by the learned Magistrate below applications (Exhibits 1 and 7). The petitioner wanted the offences punishable under Sections 3(1)(v), 3(1)(viii), 3(1) (ix), 3(2) (vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 to be added in the F.I.R. registered by Police being F.I.R. No. M-1 dated 23rd November 2011. The said F.I.R. was registered pursuant to the order passed by learned Magistrate in a Miscellaneous case under Section 156(3) of the Code of Criminal Procedure on 9th September 2011. By the said order, the complaint filed by the petitioner against respondent nos. 3 to 61 was referred to the police for investigation and report under Section 173 of the Code of Criminal Procedure. As already stated above, F.I.R. had been registered by police. However, the police did not register the offences punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. The petitioner wanted these sections to be added in the F.I.R. Learned Magistrate refused to do so on the ground that he has no power to interfere with the investigation of the F.I.R. already registered by the police. 5. Mr. Mirza, learned counsel appearing on behalf of the petitioner has submitted that the application of the petitioner could not have been disposed of by the Magistrate by refusing to exercise jurisdiction only because the police have already started investigation. It is submitted by Mr. Mirza that despite registration of offence and pendency of investigation, the Magistrate can exercise his jurisdiction over the case and direct further investigation or reinvestigation in any matter referred to the police under Section 156(3) of Code ofCrimina1 Procedure. He has relied upon the Full Bench judgment of this Court in the matter of Mr. It is submitted by Mr. Mirza that despite registration of offence and pendency of investigation, the Magistrate can exercise his jurisdiction over the case and direct further investigation or reinvestigation in any matter referred to the police under Section 156(3) of Code ofCrimina1 Procedure. He has relied upon the Full Bench judgment of this Court in the matter of Mr. Panchabhai Popotbhai Butani and Ors. Vs. The State of Maharashtra (reported at) 2010 (1) Mh.L.J. 421 : [2010 ALL MR (Cri) 244]. Para 24 of the said judgment runs as under:- "In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision." 6. I have gone through the said judgment. It is stated in the judgment that the Magistrate directing registration of offence has impliedly been empowered to take all necessary steps for proper investigation of the case, which may include monitoring the same. 7. After having gone through the said judgment and the judgment reported at AIR 2003 SC 2612 : [2003 ALL MR (Cri) 1578 (S.C.)] (Union of India Vs. Prakash P. Hinduja) I have come to the conclusion that the manner and the method of conducting investigation are left entirely with the officer in-charge of the police station or a subordinate officer deputed by him. The Magistrate has got the very limited role to play once a complaint/application is sent to police for investigation in exercise of powers under Section 156(3) of the Code of Criminal Procedure. The formation of opinion as to whether there is sufficient evidence to charge-sheet or otherwise is always left to the Investigating Officer. The Magistrate, of course, is not bound by the final report. He may take his own decision after receipt of final report. The formation of opinion as to whether there is sufficient evidence to charge-sheet or otherwise is always left to the Investigating Officer. The Magistrate, of course, is not bound by the final report. He may take his own decision after receipt of final report. However, till the investigation is completed and report under Section 173 of Code of Criminal Procedure is submitted, the Magistrate has no role to play in investigation of the complaint referred by him to the police. One may refer to paragraphs 13 and 14 of the judgment of Hon 'ble Supreme Court in the case of Union of India Vs. Prakash P. Hinduja, [2003 ALL MR (Cri) 1578 (S.C.)] (supra) in support of the view expressed by me hereinabove. Paragraphs 13 and 14 of the judgment run as under:- "13. The provisions referred to above occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer-in-charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Ss. 169 and 170 is to be that of the officer-in-charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under s. 173, the requisite details have to be submitted by the officer-in-charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by Cl. (d) of subsection (2(i) of this section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of S. 7A thereof and Prevention of Corruption Act, 1988 by virtue of S. 22 thereof. 14. (d) of subsection (2(i) of this section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of S. 7A thereof and Prevention of Corruption Act, 1988 by virtue of S. 22 thereof. 14. The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and the material collected during investigation justifies prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by S. 190, Cr. P.C. The statutory provisions are, therefore, absolutely clear that the Court cannot interfere with the investigation." 8. In addition to what has been stated hereinabove, it may not be forgotten that F.I.R. is not encyclopedia of the case. The F.I.R. sets the investigating agency into motion. The Investigating Officer is not prevented from adding or deleting few more penal provisions, if during the course of investigation, material collected warrants such steps. 9. The petitioner has one more opportunity to agitate his point of view. That stage will come when the report under Section 173 of Code of Criminal Procedure is filed before the Court of Magistrate. 10. For all these reasons, I do not find any substance in the petition. It deserves to be dismissed and is accordingly dismissed. Rule stands discharged. Petition dismissed.