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2014 DIGILAW 4 (BOM)

Mohan Govekar v. State

2014-01-06

T.V.NALAWADE

body2014
JUDGMENT This proceeding is filed to challenge the order made by the learned JMFC, Panaji in Criminal Case No.143/11/C and also the judgment and order of Criminal Revision Application No.109/2011. The application filed by the brother of original complainant for giving direction to police to make further investigation under Section 173(8) of the Criminal Procedure Code (hereinafter referred to as 'the Code') is allowed by JMFC vide order dated 21/12/2011 and the said order is confirmed by the learned Additional Sessions Judge by judgment dated 7/02/2012. Both the sides are heard. 2. The submissions made show that in respect of incident of theft of metre of electricity, report was given against the petitioner and after making investigation the charge sheet came to be filed for offences under Sections 170, 336, 379, 452 of the Indian Penal Code and Sections 136 and 138 of the Electricity Act, 2003. The prosecution has examined all the witnesses at present. Submissions were made for respondent no.2 that when the application was filed for further investigation only charge was framed and no witness was examined. The grievance of brother of the original complainant is that proper investigation was not made, the accused was not arrested and even the metre of electricity was not seized by police. 3. Both the sides placed reliance on some reported cases. The learned Counsel for the petitioner placed reliance on the case reported at (2009) 9 SCC 129 ) in the case of Reeta Nag V/s. State of West Bengal & Ors. The learned Counsel for the respondent no.2 placed reliance on the decision given by Punjab and Haryana High Court bench at Chandigarh in Criminal Revision No.975/2010 in the case of Tavinder Kaur V/s. State of Haryana & Ors. and (2001) 7 SCC 536 ) in the case of Hemant Dhasmana vs. Central Bureau Of Investigation & Anr. 4. The learned Counsel for the petitioner submitted that the Magistrate has no power to make order of further investigation after filing of the charge sheet though as per procedure advised by the Apex Court the Investigating Agency may take formal approval or permission of the Court for making investigation under Section 173(8) of the Code. 4. The learned Counsel for the petitioner submitted that the Magistrate has no power to make order of further investigation after filing of the charge sheet though as per procedure advised by the Apex Court the Investigating Agency may take formal approval or permission of the Court for making investigation under Section 173(8) of the Code. He submitted that power is vested in the Investigating Agency to continue the investigation even after filing the report under Section 170 of the Code, but that does not mean that the Criminal Court like JMFC can give a particular direction to make investigation on a particular line when a report is given under Section 170 of the Code and charge is filed. He submitted that there are procedural safeguards like one provided in Section 311 and 319 of the Code and so no such power is left with the Criminal Court taking cognizance of the offence. 5. On the other hand, the learned Counsel for the respondent no.2 submitted that on facts the case of Reeta Nag (supra) can be distinguished. He submitted that in that case first, order of discharge was made in favour of some accused and after that order of investigation was made to collect material against those persons. 6. This Court has gone through the observations made by the Apex Court in the aforesaid two cases. In the case cited for the respondent and decided by Punjab and Haryana High Court at Chandigarh one case of Randhir Singh Rana v/s. The State being the Delhi Administration reported in AIR 1997 SC 639 was referred. The case of Reeta Nag (supra) was also referred. 7. For ascertaining as to whether the Magistrate can give such direction, two provisions need to be seen. It is up to investigating agency to decide whether to file report under Section 170 of the Code. When it forms opinion that the evidence is deficient and report needs to be filed under Section 169 of the Code, it can do so. There is a power to JMFC who is empowered to take cognizance of the offence on police report and to try the accused and in second case, the Magistrate can refuse to accept the report and then follow the procedure like giving notice to the original complainant, collect some material and make further orders like one of further investigation. There is a power to JMFC who is empowered to take cognizance of the offence on police report and to try the accused and in second case, the Magistrate can refuse to accept the report and then follow the procedure like giving notice to the original complainant, collect some material and make further orders like one of further investigation. However, when police, the Investigating Agency finds that evidence is sufficient and the case needs to be sent to JMFC and files report under Section 170 of the Code, the things are different. In such a case, the Magistrate can act only as per provisions given in the Code and has to act as provided under Section 170 and 190 of the Code. On the basis of the material collected which is placed before the Magistrate, the Magistrate can exercise the power given under Section 190 of the Code and then use further provisions like using Section 204 of the Code. Thus, apparently, there is no provision made in the Code allowing the Magistrate to give direction suo moto to Investigating Agency to make further investigation when report under Section 170 of the Code is filed and charge sheet is filed. The submissions made by the learned Counsel for the petitioner that there are several safeguards in the Cod after this stage has force. There are provisions like Section 311 and 319 in that regard. The provisions like one in Section 173(8) is an enabling provision, but that is for the use of Investigating Agency. This Court holds that the ratio laid down in Reeta Nag (supra) needs to be used in the present matter. 8. The learned Counsel for the petitioner made a statement and showed to this Court some material which is to the effect that Officer of Corporation of City of Panaji had taken action for removal of illegal structure, kiosk of the original complainant and record was made to the effect that some material of the original complainant was confiscated which included ply wood with electric metre. In the present case, there is allegation against the petitioner that he committed theft of metre of electricity. 9. The submissions made show that Corporation of City of Panaji had started taking action against the respondent, original complainant in respect of the illegal structure, kiosk. There was a metre of electricity in this kiosk. In the present case, there is allegation against the petitioner that he committed theft of metre of electricity. 9. The submissions made show that Corporation of City of Panaji had started taking action against the respondent, original complainant in respect of the illegal structure, kiosk. There was a metre of electricity in this kiosk. Thus, the dispute is of different nature. The investigation was already completed. In view of the aforesaid circumstances, on facts also, there was no need of further investigation. This Court holds that the learned JMFC has committed error in allowing the application filed to make further investigation. The contents of the application show that they were very vague and real grievance was not communicated to the Court. In the result, the petition is allowed. The order dated 21/12/2011 made by the learned JMFC in Criminal Case No.143/2011 and judgment and order dated 7/02/2012 delivered by the learned Additional Sessions Judge, Mapusa in Criminal Revision Application No.109/2011 stand quashed and set aside. The original application filed for giving direction to make further investigation stands rejected. The rule is made absolute in the aforesaid terms.