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2015 DIGILAW 624 (JK)

Gh. Mohi-ud-Din Ganai v. State of J&K

2015-11-30

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Challenge is to order dated 5th June 2012 of learned Sessions Judge, Bandipora, whereby Criminal Revision Petition against the order of learned Chief Judicial Magistrate, Bandipora, dated 16th November 2011, directing, 'further investigation' in case FIR No. 221/08, has been accepted and order set-aside. First an overview of background facts. Mj. A.K. Rahabkker, Officer Commanding 56 Road Construction Company (GREF) on 4th December 2008, lodged a written report with Police Station, Bandipora, alleging, that on the aforesaid date, while the labourers were engaged in construction of road at Chandie-Gurez, Sh. Ab. Rashid Lone, Ab. Rahim Dar, Range Officers, Wali Mohammad, Forester, and others arrived in a Platform-truck of Forest Department, got down and thrashed the labourers, including one Ghulam Ahmad Ganai, resulting in his death. Wali Mohammad, Forester in particular, is alleged to have kicked the deceased on chest, and with the assistance of other labourers taken away from the scene of occurrence. The report prompted Police Station Bandipora to register case FIR No. 221/2008 under Section 148, 149, 302, 109 R.P.C. After usual investigation, charge sheet, alleging commission of offence punishable under section 304-II R.P.C was presented before the learned Chief Judicial Magistrate, Bandipora against Ab. Rashid Lone and 12 others. The case was committed to the court of Sessions Judge, Bandipora on 14th February 2009. 2. Learned Sessions Judge on going through charge sheet and upon hearing counsel learned Public Prosecutor as also counsel for accused, concluded that material on the file prima-facie disclosed commission of offence punishable under section 304-II R.P.C, by the accused. The accused on 19th March 2010, were charged of the offence. 3. The Trial court order dated 17th March 2010 was questioned in petition under section 561-A Cr.P.C., before this Court. Petitioners' case was that charge sheet and material appended therewith, did not disclose sufficient grounds, within the meaning of Section 269 Cr.P.C., against petitioners' and trial court ought not to have charged them of the offence. Challenge to trial court order dated, 17th March 2010, succeeded and the order was set-aside. Petitioners' case was that charge sheet and material appended therewith, did not disclose sufficient grounds, within the meaning of Section 269 Cr.P.C., against petitioners' and trial court ought not to have charged them of the offence. Challenge to trial court order dated, 17th March 2010, succeeded and the order was set-aside. This Court while allowing petition under Section 561-A Cr.P.C., on 13th September 2011, observed:- "Therefore, there being absolutely no evidence to support the Complainant's version, who himself was not stated eye witness to the occurrence, on records, the accused could not be proceeded against under Section 269 Cr.P.C., in that, no case of suspicion, muchless strong suspicion can be said to have been made out against the accused. For all what has been said above, the learned Sessions Judge is, therefore, found to have erred in framing Charge against the accused-petitioners, when there was no evidence or material against them on records, which cannot, therefore, be sustained. The continuance of proceedings in the Police Challan against the petitioners, on the basis of the evidence and material collected by the Investigating Police Officer, would result in abuse of the process of the Court. The Criminal proceedings pending against the petitioners are, therefore, required to be quashed. The petition therefore, succeeds and is, accordingly, allowed quashing the proceedings against the petitioners-accused in File No. 823/Sessions. The petitioners are, accordingly, discharged. The discharge of the petitioners shall not, however, debar re-investigation of the case, if, it was found by the concerned Authorities that the Police had not properly investigated the case, as is indicated in the learned Public Prosecutor's Application filed before the Learned Sessions Judge, though after the petitioners were charged. Before parting, it needs to be observed that a Public Prosecutor enjoys a very important position in Criminal justice Dispensation System and is required to see that those who were guilty do not go unpunished at the same time ensuring that innocent were not unnecessarily prosecuted and punished. In case the learned Public Prosecutor was satisfied that the Investigating Police Officer had not properly investigated the case and there was material with him which would warrant further investigation of the case, he, on his own, should have taken requisite steps/measures to see that the case was reinvestigated. He is, therefore, left free to take such steps, as are warranted under law in the circumstances of the case." 4. He is, therefore, left free to take such steps, as are warranted under law in the circumstances of the case." 4. This Court, as a bare look at the order dated 13th September 2011, would reveal, gave liberty to Public Prosecutor to lay a motion for 'further investigation' of the matter in case he was satisfied that there was material, warranting such a recourse. 5. The Public Prosecutor, taking a clue from the order dated 13th September 2011, on 16th November 2011, filed an application under Section 173(8) Cr.P.C., for 're-investigation' of the matter through an independent investigating agency, like CBI, CID or Crime Branch. Learned Public Prosecutor in his application alleged that investigation was conducted in a casual and lifeless manner. The Investigating Officer, was said to have avoided to visit the place of occurrence, failed to record statements of witnesses to the occurrence, mentioned in para 2 of the application. The Investigating Officer was failed to get the statements of witnesses to the occurrence recorded under section 164-A Cr.P.C. Learned Public Prosecutor insisted that Investigating Officer for ulterior motives avoided to place reliable material on record to connect the accused with the occurrence and facilitated their discharge. 6. The application was allowed on 16th November 2011. Learned Magistrate, however, instead of directing re-investigation, ordered 'further investigation' in case FIR No. 221/2008 under Section 148, 149, 302, 109 R.P.C. The investigation was entrusted to SSP Police Station, Crime Branch, Srinagar. 7. Aggrieved with order of learned Chief Judicial Magistrate, Bandipora dated 16th November 2011, petitioners' in 561-A No. 49/2010-accused discharged vide order dated 13.09.2011, on 26th December 2011, filed Criminal Revision before learned Sessions Judge, Bandipora. Criminal revision was allowed. They questioned the order on the ground that Public Prosecutor did not place any record before learned CJM, Bandipora in support of the application and therefore, 'further investigation' directed by court was uncalled for. Learned Sessions Judge allowed the criminal revision vide order dated 5th June 2012, and set-aside the order of learned CJM dated 16th May 2011. The net result was that the matter notwithstanding the liberty, given by this Court to Public Prosecutor to seek 'further investigation' and such an effort made by Public Prosecutor for the reasons detailed in the application, was closed. 8. Petitioner herein, is the son of deceased Ghulam Ahmad Wani. The net result was that the matter notwithstanding the liberty, given by this Court to Public Prosecutor to seek 'further investigation' and such an effort made by Public Prosecutor for the reasons detailed in the application, was closed. 8. Petitioner herein, is the son of deceased Ghulam Ahmad Wani. He is aggrieved that his father did not die a natural death but was admittedly beaten to death and still investigation to find out the circumstances in which his death occurred and the persons responsible for his death, was closed on the grounds, not tenable under law. Petitioner insists that order of learned Sessions Judge, Bandipora, impugned in the petition, amounts to abuse of process of the court and therefore, deserves to be set-aside in exercise of inherent powers under Section 561-A Cr.P.C. 9. I have gone through the petition and the record, available on the file. I have heard learned counsel for the parties at length. 10. It is pertinent to point out that the Prosecutor even during trial, voiced his reservations about the mode and method of investigation. He in August 2011, made an application to the trial court, complaining that investigation had been conducted in a suspicion manner, the Investigating Officer had not bothered to record the statements of witnesses to the occurrence. The Public Prosecutor submitted that deceased, a poor labourer was miserably beaten to death and that eye witnesses, mentioned in para 4 of the application were not examined by the Investigating Officer. He insisted that witnesses mentioned in the application were required to be summoned and examined. The application was filed much before the trial court order, framing charge against the accused, was set-aside. Application was even noticed by this Court while disposing of the petition under Section 561-A Cr.P.C. No. 49/2011. 11. Public Prosecutor in his application dated 16th November 2011, reiterated his earlier stand that investigation was conducted in a casual manner, scene of occurrence not inspected by the Investigating Officer and statements of witness to the occurrence not recorded and that matter called for reinvestigation. 12. Learned Sessions, Judge set-aside the order of Chief Judicial Magistrate dated 16th November 2011 on the ground that Public Prosecutor had not placed material before the learned Chief Judicial Magistrate as required in terms order of this Court dated 13th September 2011. 12. Learned Sessions, Judge set-aside the order of Chief Judicial Magistrate dated 16th November 2011 on the ground that Public Prosecutor had not placed material before the learned Chief Judicial Magistrate as required in terms order of this Court dated 13th September 2011. The other reason given, to set-aside the order dated 16th November 2011, was that as this Court had allowed Public Prosecutor to seek, 're-investigation', learned CJM was not to direct further investigation. 13. Learned Sessions Judge, failed to notice that petitioners' before him had no right to maintain the revision petition against the order dated 16th November 2011 in as much, they could not taken to be aggrieved with order. Learned CJM did not directed initiation of any proceedings against petitioners. It merely directed 'further investigation' within the meaning of Section 173(8) Cr.P.C. Petitioners', before learned Sessions Judge had no reason to anticipate that they on such 'further investigation' may be found, involved in the occurrence or arrayed as accused. Criminal revision against order dated 16th November 2011 was not therefore, maintainable at the instance of petitioners'. They had no locus to impugn the aforesaid order. The criminal revision was liable to be dismissed on this ground alone. This is however, only one aspect of the matter. 14. The reasons that have persuaded learned Sessions Judge, to accept the revision petition and set-aside the order of learned CJM are devoid of any substance. True that in terms of order dated 13th September 2011, liberty was given to Public Prosecutor to get the matter "reinvestigated" in case there was material before him to record satisfaction that such a recourse was necessary, but the record, available to learned Sessions Judge would not indicate such material was not before the learned Public Prosecutor. The Public Prosecutor had the copy of charge sheet, with connected material before him that indicated apathy and indifference established by Investigating Officer while investigating the matter. The fact that application, made by Public Prosecutor, was not an afterthought and he was encouraged by the order dated 13th September 2011, to seek reinvestigation, is sufficiently clear from the application, earlier filed by Public Prosecutor on 8th August 2011, informing the trial court that investigation was faulty and the Investigating Officer had failed to fairly discharge duty with which, he was saddled. The Public Prosecutor while seeking intervention of the court, tried to press into service Section 540 Cr.P.C. He did not anticipate the petition under section 561-A Cr.P.C., would succeed and accused discharged. Public Prosecutor in all fairness after the order dated 13th September 2011, made an effort to fall back upon Section 173(8) Cr.P.C. There in the circumstances was no reason for learned Sessions Judge to conclude that Public Prosecutor did not have material, available him to warranting 'further investigation' and that conditions laid down in order dated 13th September 2011 were not satisfied. 15. The view, taken by learned Sessions, Judge that as Public Prosecutor was permitted to seek "reinvestigation", learned CJM could not direct 'further investigation' is equally erroneous. It is pertinent to point out that what was meant by this Court, while allowing petition under section 561-A Cr.P.C. on 13th September 2011, was 'further investigation' in the matter. This is evident to the observation made that "in case, learned Public Prosecutor was satisfied that Investigating Police Officer had not properly investigated the case and there was material that the matter which would warrant further investigation of the case, he, on his own should have taken requisite steps/measures to see that the case was reinvestigated. He is therefore, left free to take such steps, as are warranted under law in the circumstances of the case". (Emphasis supplied) The Public Prosecutor therefore, was to record satisfaction as regards need for "further investigation". Learned CJM conscious that he had no jurisdiction to order 'reinvestigation' and such a jurisdiction could be exercised only by a Constitutional Court, he rightly directed 'further investigation' of the matter by SSP Crime Branch, Srinagar. The order of learned CJM, therefore, did not therefore, suffer from any impropriety, illegality or error as would warrant exercise of powers by Sessions Judge under section 435 Cr.P.C. 16. The argument advanced by learned counsel for respondents that Magistrate under Section 173(8) Cr.P.C. lacks jurisdiction to direct further investigation and that power to 'further investigate' a matter is only available to the investigating officer, is bereft of any merit. The Magistrate as Part V Chapter XTV of Code of Criminal Procedure, would indicate, does not at any point of time lose control over investigation of case. The Magistrate as Part V Chapter XTV of Code of Criminal Procedure, would indicate, does not at any point of time lose control over investigation of case. The copy of FIR immediately after its registration, is to be forwarded to the Magistrate in terms of Section 158 Cr.P.C. so that he aware of the steps, taken by concerned Police Station after the case is registered. In case SHO of concerned Police Station refuses or avoids to register a case, the Magistrate in terms of Section 156(D) Cr. P.C. has power to direct registration of case. Accused within 24 hours of his arrest, is to be produced before the Magistrate to get him remanded to police custody, to facilitate investigation and the Magistrate while according consideration to the request made in this behalf, has power to go through the case diaries and the material collected against such accused. The Magistrate in terms of Section 164, 164-A of Cr.P.C. has power to record the statements of witnesses at the instance of Investigating Officer or otherwise during course of investigation. The Magistrate continues to have such control, even after the charge sheet is filed in terms of section 173 Cr.P.C. and he on the basis of material, placed before him is of the opinion of "further investigation" is called for in the matter. This is the view, taken by this Court in Rohit Dhawan v. State through SSP Crime 2005 (3) JKJ 637 [HC]. Hon'ble Supreme Court in AIR 2001 SC 2721 , has held that where Magistrate in exercise of powers under section 173(8) Cr.P.C. directs further investigation, interruption, in exercise of revisional powers is not warranted. It has been held in the facts and circumstances of the case that, High Court instead of interfering in the matter ought to have directed the investigating agency to comply with the order. 17. However, Magistrate while directing investigation cannot nominate a particular officer or officer by a particular rank to conduct "further investigation". In the said background (2012) 9 SCC 460 and (2012) 9 SCC 771 , relied upon by learned counsel for respondent, does not extend support to the argument advanced in opposition to the present petition. 18. Learned Chief Judicial Magistrate, Bandipora has directed SSP Crime Branch, Srinagar to conduct further investigation. In the said background (2012) 9 SCC 460 and (2012) 9 SCC 771 , relied upon by learned counsel for respondent, does not extend support to the argument advanced in opposition to the present petition. 18. Learned Chief Judicial Magistrate, Bandipora has directed SSP Crime Branch, Srinagar to conduct further investigation. It has been held in Hemant Dhasmana v. Central Bureau of Investigation and Anr., AIR 2001 SC 2721 , that it does not lie within the jurisdiction of a Magistrate to direct investigation by a particular Police Officer or Officer of a particular rank. It would be appropriate to extract para 20 of the Judgment. "When the Special Judge has opted to order for a further investigation the High Court should have stated to the CBI to comply with that direction. Nonetheless, we are in agreement with the observation of the learned Single Judge of the High Court that the Special judge or the Magistrate could not direct that a particular police officer or even an officer of a particular rank should conduct such further investigation. It is not within the province of the Magistrate while exercising the power under Section 173(8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation". 19. The order of learned Chief Judicial Magistrate, therefore is to be restored with clarification that "further investigation", ordered shall be conducted by SHO Police Station, Bandipora. 20. For the reasons, discussed, petition is allowed, order of learned Sessions Judge dated 05.06.2012, set aside, and 'further investigation', directed to be conducted by SHO Police Station, Bandipora or such Officer to whom investigation is entrusted. The occurrence has taken place way back in 2008. Petitioner has a right to ask for expeditious investigation of the matter. The Investigating Officer, therefore, shall conclude 'further investigation' within six weeks from the date of receipt of copy of this order and lay result of investigation before learned CJM Bandipora, who on receipt of such report, shall proceed in the matter in accordance with law. Disposed of.