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2016 DIGILAW 269 (GAU)

DIRECTOR, CBI v. MOHD. KASIM ALI

2016-04-05

PARAN KUMAR PHUKAN

body2016
JUDGMENT : Paran Kumar Phukan, J. Heard Mr. P.N. Choudhury, learned senior retainer counsel, CBI and also heard Mr. B.B. Gogoi, learned Addl. PP representing the State. None appeared for the private respondent despite service of notice. 2. This revision is directed against the order dated 25.9.2014 passed by the learned Special Magistrate, CBI, Bongaigaon in Special Case No.5/2012 arising out of Kokrajhar PS FIR dated 6.8.2012 on the basis of which Kokrajhar PS Case No. 350/2012 has been registered under Section 147/148/149/ 307 / 302/326 IPC r/w Section 25(1) (a), 27(1)(2)(3) of the Arms Act directing re-investigation of the case by separate Investigating Officer other than the Investigating Officer, who had earlier conducted investigation of the case. Mr. P.N. Choudhury, learned senior retainer counsel, CBI submits that the impugned order has been passed by the learned Court without following the mandates of Section 173(8) of the CrPC inasmuch as the Court has no power to order re-investigation of the case after filing of the final report. It is further submitted that there was total non-application of mind by the learned Magistrate while passing the impugned order on the basis of the petition filed by the complainant and his statement recorded by the learned Magistrate. Before adverting to the submission of Mr. Choudhury it would be appropriate to refer to the relevant provisions of law regarding submission of final report on completion of investigation of the case by police. The relevant Section is Section 173(8) of the CrPC reads thus :- " 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-section (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)." 3. From a plain reading of the Section, it is evident that under sub section (8) of Section 173 CrPC the Magistrate has the power to order further investigation. From a plain reading of the Section, it is evident that under sub section (8) of Section 173 CrPC the Magistrate has the power to order further investigation. The Magistrate, in appropriate cases, on receiving the final report is not bound to accept it, he may direct further investigation. 4. The well settled proposition of law laid down by the Apex Court in Gangadhar Janardan Mhatre v. State of Maharashtra reported in (2004) 7 SCC 768 is that upon receipt of a police report under Section 173(2) of the CrPC, the Magistrate is entitled to take cognizance of an offence as provided under Section 190(1) (b) of the CrPC even if the police report is to the effect that no case has been made out against the accused. 5. The facts leading to the filing of the present petition are that on 8.8.2012 the respondent No.1 herein filed an FIR with O.C., Kokrajhar P.S. alleging therein that on 06.08.2012 people of Boro community injured six persons out of which three died. The investigation was entrusted to CBI by Govt of Assam and accordingly CBI conducted investigation. Since no clue was found CBI ultimately submitted report in final form to the effect that no clue came forth on record regarding identity of the culprits involved in the incident and if any evidence or clue comes later on then investigation would be reopened. After filing of the report the learned Special Magistrate issued notice to the informant and in pursuance to the notice the informant appeared before the Court and filed a petition stating that he had objection regarding acceptance of the report by the Court. The learned Magistrate proceeded to record the statement of the informant wherein the informant reiterated that he had objection. On the basis of the petition and the statement of the informant the learned Magistrate directed re-investigation by another Investigating Officer. 6. Mr Choudhury, learned senior counsel, CBI strenuously submitted that the Magistrate has no power to order re-investigation that too by another Investigating Officer, and by doing so he has exceeded his jurisdiction. Mr Choudhury further contends that the proper recourse as per provisions of Section 173(8) of the CrPC is, if the Court is not satisfied with the report it is open to the Court to order further investigation of the case and Court cannot order re-investigation by another Investigating Officer. Mr Choudhury further contends that the proper recourse as per provisions of Section 173(8) of the CrPC is, if the Court is not satisfied with the report it is open to the Court to order further investigation of the case and Court cannot order re-investigation by another Investigating Officer. To buttress his submission Mr. Choudhury relied on the decision of the Apex Court in Vinay Tyagi v. Irshad Ali alias Deepak and others wherein the Hon'ble Apex Court by referring to the judgments of the same Court in Mithabhai Pashabhai Patel v. State of Gujarat (2009) 6 SCC 332 and Ramachandran v. R. Udhaya Kumar (2008) 5 SCC 413 observed as follows:- "Although the Magistrate has no jurisdiction to direct fresh or de novo investigation, but once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold." The above observation of the Apex Court makes it amply clear that there is no scope for the Magistrate, after submission of the final report, to order re-investigation of he case and he is only empowered to order further investigation if he is not satisfied with the report submitted by the Investigating Officer. 7. After submission of the report in final form the duty of the Magistrate is to scrupulously scrutinise the report by applying its judicial mind either to accept or reject the final report and if the Court decides to accept the report, it is incumbent on his part to issue notice to the informant and if any protest petition, in pursuance of such notice is filed then it is to be taken into consideration and such protest petition may be treated as a complaint and the Court may proceed as per provisions of Section 200 of the CrPC and examine the complainant and if any prima facie case is found then it is open to the Court to take cognizance under Section 190 of the CrPC. 8. In the instant case, the proper legal recourse has not been followed by the learned Court and he has ordered re-investigation by another Investigating Officer which is against the mandates of Section 173(8) of the CrPC. Consequently, the order so passed by the learned Magistrate is not sustainable in law and is liable to be set aside, which I accordingly do. The petition stands disposed of.