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2020 DIGILAW 125 (JK)

Vinod Bhat v. State Of J&K

2020-02-28

SANJAY KUMAR GUPTA

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JUDGMENT 1. From bare perusal of various interim orders, it transpires that no one has been appearing on behalf of petitioners since 29.04.2013. Since the instant case pertains to the year 2008, the same was taken on board. With the assistance of learned counsel representing respondents and going through the file, the instant case was finally heard. 2. The petitioners have filed the present petition for quashing the order dated 24.09.2008 by virtue of which the learned Chief Judicial Magistrate, Jammu has returned the challan to the Investigating Officer/Agency for re-verification of various dates mentioned in the challan and also for further investigation. 3. The impugned order has been challenged on various grounds. It has been stated in the petition that instead of discharging the accused/petitioners, the learned trial court returned the challan for further investigation and for re-verification of the dates. The impugned order passed by the trial court reads as under: 'While perusing the file it has been found that the dates of various events have not only be jumbled but have also been recorded wrongly in the charge sheet as well as in the statement under section 161 Cr.P.C i.e., the date of marriage has been recorded in the charge sheet as 27 th of April, 2007 and the various events of cruelty are described of the year 2004, 2005 and 2006. The complainant has clearly mentioned the date of marriage as 27 th of April 2K. Even the contents of the application have been repeated on full two pages. Similarly, the statement of the complainant recorded under section 161 Cr.P.C mentions the date of payment of Rs. 70,000/- as 18 th of August 2007 whereas, it is mentioned as 18 th of August 2006 in the complaint. It all reflects that the statements of the witnesses and the charge sheet have been written casually without applying mind properly. All these short comings must have been noted by the officer (SP North) through whom the charge sheet was submitted. Therefore, this file is ordered to be returned for further investigation and re- verification of the dates, which shall be done within a fortnight. It would be pertinent to mention here as observed generally the charge sheets are neither indexed nor numbered. Even the age of the accused persons is also not mentioned which is in clear contravention of the circulars issued by the Honble High Court. It would be pertinent to mention here as observed generally the charge sheets are neither indexed nor numbered. Even the age of the accused persons is also not mentioned which is in clear contravention of the circulars issued by the Honble High Court. Besides, a lot of inconvenience is caused by conducting the trial. Even the paper used for writing various memos and statements is not of uniform size and quality. The non-mentioning of the age of the accused adds to the burden of court particularly when an accused claims to be a juvenile or senior citizen. Let a copy of this order be therefore forwarded to SSP Jammu for his information and to ensure that henceforth the needful is done.' Let the index be prepared for information. 24.9.2008 Sd/- CJM Jammu' 4. I have considered the case as set up in the petition and also heard learned counsel for respondents. 5. In Vinubhai Haribhai Malaviya vs The State Of Gujarat on 16 October, 2019 CRIMINAL APPEAL NOS.478-479 OF 2017 , it has been held as under:- '28. In Union Public Service Commission v. S. Papaiah (1997) 7 SCC 614 , this Court dealt with a case in which the Central Bureau of Investigation (hereinafter referred to as the 'CBI') had submitted a closure report. It then quoted from a Three Judge Bench judgment in Bhagwant Singh v.Commissioner of Police and Anr. (1985) 2 SCC 357 , in which this Court stated that a Magistrate, in dealing with a report from the police under Section 173, can adopt one of three courses - (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The Court then went on to hold that where objections have been furnished by the complainant, i.e. the Union Public Service Commission, against the closure report of the police, the Magistrate could, in exercise of powers under Section 173(8) of the CrPC, direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the complainant (see paragraph 13 therein). 29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. 29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 is an important judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held: '11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. 12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 6. In Minu Kumari v. State of Bihar (2006) 4 SCC 359 , the Supreme Court explained the powers that are vested in a Magistrate upon filing of a report in terms of Section 173(2)(i) and the kind of order that the court can pass. The Court held that when a report is filed before a Magistrate, he may either (i) accept the report and take cognizance of the offences and issue process; or (ii) may disagree with the report and drop the proceedings; or (iii) may direct further investigation under Section 156(3) and require the police to make a further report. This judgment was followed in a Division Bench judgment of Supreme Court in Athul Rao v. State of Karnataka and Anr. (2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi (2019) 5 SCC 542 , after referring to a number of decisions, the Supreme Court concluded as follows: '7. (2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi (2019) 5 SCC 542 , after referring to a number of decisions, the Supreme Court concluded as follows: '7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of CrPC, namely, Sections 167(2), 173, 227 and 228 CrPC, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) CrPC, the learned Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. As observed hereinabove, having not been satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the pre-cognizance stage. Once the learned Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) CrPC, the learned Magistrate in exercise of the powers under Section 227 CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report.' 7. Further, courts are meant to do substantial justice to both complainant and accused. If prosecution agency deliberately leaves certain lacuna in final report and does not comply with the provisions of section 173(2) Cr.P.C., the Magistrate has to interfere and pass appropriate orders. 8. Further, courts are meant to do substantial justice to both complainant and accused. If prosecution agency deliberately leaves certain lacuna in final report and does not comply with the provisions of section 173(2) Cr.P.C., the Magistrate has to interfere and pass appropriate orders. 8. In view of the settled position of law as cited above, the magistrate may direct for further investigation; and for that purpose the magistrate can also return the challan. Therefore, this petition is found to be devoid of merit and is, accordingly, dismissed.