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2017 DIGILAW 313 (JK)

Ranjit Singh v. State of J&K

2017-07-12

JANAK RAJ KOTWAL

body2017
JUDGMENT : Janak Raj Kotwal, J. 1. In the petition under section 561-A Cr.P.C. petitioners (accused) seek quashing of order dated 20.02.2014 whereby the trial court of the learned 1st Additional Sessions Judge, Jammu, in the course of trial arising in FIR No. 121/2011 of Police Station, Akhnoor, has ordered further investigation in the case by the Senior Superintendent of Police, Jammu or by any other officer not below the rank of the Superintendent of Police. In the Revision Petition, the same order is challenged by the third accused. Heard learned counsel for the parties and perused the record. 2. FIR No. 121/2011 was registered on 05.06.2011 on a written report lodged by one Kuldeep Raj S/o. Girdhari Lal (hereinafter to be referred as the informant) on the same day. The information given by him was that his brother, Surinder Kumar alias Shindda, was stabbed to death by Ranjit Singh S/o. Kuldeep Singh and others. After completion of investigation, police filed charge-sheet for commission of offence under section 302 RPC and 4/25 Arms Act against herein petitioner, Ranjit Singh and for offence under section 377/34 RPC against herein petitioners, Sham Singh and Rakesh Sharma. The case after committal came up for trial before the court of learned 1st Additional Sessions Judge, Jammu. The trial court on 06.09.2011 framed charge under section 302 RPC and 4/25 Arms Act against petitioner, Ranjit Singh and under section 377/34 against petitioners, Sham Singh Rakesh Kumar. All the petitioners (accused) denied the charge and prosecution, therefore, entered its evidence. When the prosecution evidence was in progress and evidence of some of the prosecution witnesses has been recorded, Girdhari Lal, the father of the deceased moved an application for re-investigation of the case. This application seems to have been moved on 11.05.2013. Learned trial court vide impugned order dated 20.02.2014 ordered the reinvestigation. 3. Mr. P.N. Raina, learned Senior Advocate and Mr. D.S. Saini, Advocate, appearing on behalf of the petitioners submitted inter alia that the impugned order passed by the learned trial court is without jurisdiction and therefore, illegal. They urged that seeking re-investigation at belated stage of the trial was abuse of the process of the court. 3. Mr. P.N. Raina, learned Senior Advocate and Mr. D.S. Saini, Advocate, appearing on behalf of the petitioners submitted inter alia that the impugned order passed by the learned trial court is without jurisdiction and therefore, illegal. They urged that seeking re-investigation at belated stage of the trial was abuse of the process of the court. It was argued that after filing of the charge-sheet in the court by the police, the father of the deceased had been watching the proceedings before the trial court for over two years before seeking re-investigation or further investigation in the case and the learned trial court in conceding to the prayer of the father of the deceased has exercised a jurisdiction, which it did not have. Mr. Raina placed reliance on a recent judgment of the Supreme Court dated 02.02.2017 in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & Ors., Cr. Appeal No. 1171/2016. 4. Per contra, Mr. Sunil Sethi, learned Senior Advocate, appearing on behalf of the informant, Kuldeep Raj and Girdhari Lal (supra) submitted that trial court has the power to order further investigation even during pendency of the trial when the trial court is satisfied that important evidence has not been collected by the investigating agency and further investigation is necessary to meet the ends of justice. Mr. Sethi pointed out that the investigating agency/prosecution has committed error in filing a joint charge-sheet against petitioner, Ranjit Singh on one hand and petitioners, Sham Singh and Rakesh Sharma on the other as the offences committed by the two sets of accused were distinct and not committed in the same transaction. 5. It is noticed from the impugned order that the grievance projected by father of the deceased in seeking re-investigation of the case primarily was that daughter of one Bharat Bhushan Was in love with the deceased, which was the reason behind the murder of the deceased but the investigating agency did not accord consideration to the letters written by the said girl to the deceased, which were produced before the Investigating Officer. His grievance further was that the police had registered FIR against one person only, when the circumstances unequivocally spelled out that the deceased was murdered in a well-planned manner in presence of a number of persons. His grievance further was that the police had registered FIR against one person only, when the circumstances unequivocally spelled out that the deceased was murdered in a well-planned manner in presence of a number of persons. The investigation was conducted in a slipshod manner and only relatives of the accused have been chosen and cited as eye witnesses to ensure acquittal of the sole accused and no step was taken to investigate as to who were the real culprits behind the crime. In the impugned order, learned trial court, however, took exception to the filing of the joint charge-sheet for two distinct offences, though committed at the same place. Learned trial court also observed that when a photocopy of the letter has been placed on record there was no reason as to why informant would not have produced the letter before the Investigating Officer. The trial court was persuaded to take a view that investigation has not been done in a just, fair and impartial manner and facts have been camouflaged. Learned trial court, therefore, ordered further investigation, however, without taking up the question as to whether power to direct further investigation was available to the trial court during the trial of the case or not. 6. The common ground of learned counsel on both the sides was that the source of the power to further investigation the case after filing of the charge-sheet in the court is sub-section (8) of section 173 Cr.P.C. which reads: "173(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 to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 7. The primary and the important question raised for consideration in these petitions is; whether after charge-sheet has been filed and trial has commenced, the trial court has the power to order further investigation under section 173(8) Cr.P.C. on an application filed by the informant or the victim of the offence or a relative of the deceased, in a case of death? 8. The question so arising has its straight reply in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel's case (supra). In that case the First Information Report (FIR) was registered on the basis of a report lodged by the appellant therein, against therein respondents under sections 406, 420, 426, 467, 468, 471, 477-B and 120-B of the Indian Penal Code (IPC). After the charge-sheet was submitted in the court, charge was framed by the trial court against the respondents, trial was conducted and statements of respondents were recorded under section 313 Cr.P.C. (342 of State Code). At that stage, the trial court on the application of the informant therein directed further investigation in terms of section 173 Cr.P.C. The question taken by the Supreme Court in that case was: "whether such a power is available suo moto or on the prayer made by the informant, in absence of request by the investigating agency after cognizance has been taken and the trial is in progress after accused has appeared in response to the process issued is the issue seeking scrutiny herein". 9. The Supreme Court after overall survey of law and earlier pronouncements of the Court has held that no such power under section 173(8) Cr.P.C. is available to the court after cognizance has been taken on the basis of earlier report and accused has entered appearance. Paragraphs 47 and 48 of the judgment are extracted: "47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefore to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo moto nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand. 48. The un-amended and the amended Sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment significantly had limited its proposal to the empowerment of the investigating agency alone." 10. The Supreme Court has further held that the Magistrate, once cognizance is taken and the accused person appears pursuant thereto, would be bereft of power to direct further investigation either suo moto or acting on the request of complainant/informant. Hon'ble Court further held that "had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) Cr.P.C. would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. 11. In the case on hand as pointed out above, further investigation has been ordered by the learned trial court on the basis of an application filed by the father of the deceased. The impugned order would show that the Investigating Officer in his objections has stood by his earlier report and had stated that no letter was brought to his notice. In effect the prosecution had objected the prayer for further investigation, what to talk of a request from the prosecution/investigating agency for further investigation in the case. Learned trial court, has therefore, acted without jurisdiction and fallen in error by ordering further investigation in the case as in view of the Supreme Court judgment in the aforementioned case power under section 173(8) Cr.P.C. cannot be exercised by the Magistrate or the trial court after cognizance has been taken on the earlier police report (charge-sheet) and in no case after charge has been framed and trial has commenced. The impugned order passed by the trial court, therefore, does not sustain and a case for showing indulgence in exercise of inherent jurisdiction of this Court is made out. 12. For aforementioned, both these petitions are allowed and the impugned order is quashed. 13. Record of the trial court be remitted back along with a copy of this order. Disposed of.