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2017 DIGILAW 454 (ORI)

Kartik @ Kartik Ch. Das v. State of Orissa

2017-04-24

S.K.SAHOO

body2017
S.K. SAHOO, J. This application under section 482 of the Criminal Procedure Code has been filed by the petitioner Kartik @ Kartik Ch. Das challenging the impugned order dated 28.10.2006 of the learned J.M.S.C., Balasore passed in Criminal Trial No.806 of 2003 which arises out of Basta P.S. Case No.71 of 2003 in rejecting the application under section 173(8) of Cr.P.C. filed by the petitioner for further investigation of the case. The petitioner filed a complaint petition in the Court of learned S.D.J.M., Balasore which was registered as I.C.C. Case No.388 of 2002 against three accused persons. The learned S.D.J.M., Balasore sent the complaint petition to the officer in charge of Basta Police Station for registration of the F.I.R. and for investigation. Accordingly, Basta P.S. Case No.71 of 2003 was registered on 14.06.2003 under sections 294/323/324/506/34 of the Indian Penal Code and section 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’). After conducting investigation, charge sheet was submitted on 12.10.2003 under sections 294/323/506/34 of the Indian Penal Code. The charge sheet was placed before the learned S.D.J.M., Balasore on 20.10.2003 who has been pleased to take cognizance of the offences under sections 294/323/506/34 of the Indian Penal Code and issued process against the accused persons. The petitioner filed a petition under section 173(8) of Cr.P.C. for further investigation which was rejected by the impugned order. Mr. Ashutosh Mohanta, learned counsel appearing for the petitioner contended that the learned Magistrate should not have rejected the application filed by the petitioner under section 173(8) of Cr.P.C. inasmuch as in spite of available materials under section 3 of the 1989 Act, charge sheet was deliberately not filed under such offence and therefore, further investigation was necessary in the case. Mr. B.S. Dasparida, learned counsel appearing for the opposite parties nos.2 to 4 on the other hand contended that at that stage, there was no scope on the part of the learned Magistrate to entertain an application under section 173(8) of Cr.P.C. and to give a direction to the police for further investigation at the instance of the informant. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel also supported the impugned order. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel also supported the impugned order. The short question that falls for consideration is whether after charge sheet is filed and cognizance of offences is taken, at the instance of the informant an application for further investigation of the case as contemplated under section 173(8) Cr.P.C. is permissible. In the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel reported in (2017) 66 Orissa Criminal Reports (SC) 790 where identical question was raised, the Hon’ble Supreme Court observed as follows:- “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 therefor 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 motu 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 subsection (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. 49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. 49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Section 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court”. Therefore, in view of the law laid down by the Hon’ble Supreme Court, it is apparent that when charge sheet was submitted and cognizance of offences has been taken and process has been issued against the accused persons, the application filed by the complainant-petitioner under section 173(8) of Cr.P.C. for further investigation of the case is not at all maintainable. The learned Magistrate where the case is now pending shall do well to proceed with the case at an earliest since it is a case of the year 2002. The petitioner is at liberty to adduce evidence for commission of offence under section 3 of the 1989 Act during trial and if any such material comes out for commission of such offence against the accused persons, the learned Magistrate can invoke its power under section 323 of Cr.P.C. and commit the case to the Special Court for trial. With the aforesaid observation, the CRLMC application is disposed of.