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2020 DIGILAW 773 (ALL)

Daroga v. State of U. P.

2020-04-13

SUDHIR AGARWAL

body2020
JUDGMENT : 1. Heard Sri Neeraj Singh, Advocate, for applicants and learned A.G.A. for State. 2. This is an application under Section 482 Cr.P.C. filed by five applicants, Daroga, Rakesh, Chandrika, Pramod and Manoj, with a prayer to quash Case No. 1278 of 2005 under Sections 147, 149, 323, 452, 435, 504 and 506 I.P.C. P.S. Bankata, District Deoria arising from Case Crime No. 3 of 2005 and pending in the Court of Judicial Magistrate, Court-11, Deoria. 3. Facts in brief giving rise to present application are that Uma Shankar Kushwaha, opposite party-2, (hereinafter referred to as informant-complainant) filed a First Information Report being Case Crime No. 3 of 2005, under Sections 147, 148, 323, 504, 506, 452, 435 I.P.C., P.S. Bankata, District Deoria against eight accused including five applicants alleging that applicants and others, with a common object, formed unlawful assembly with an intention to take possession of Sehan by opening door of their houses and threw domestic goods of informant-complainant kept near the door and abused him. When he stopped them, they abusing him, threatened of life and exhorted to set his house on fire. Informant-Complainant somehow escaped to save him whereafter accused-applicants and others entered Informant-Complainant's house and beat his wife and two daughters with Bhala, Lathi, Danda and Farsa and injured them badly and also put his Chappar on fire. 4. During investigation Police recorded Statement of Subhash Yadav, Jai Prakash Chaurasia, Ramcheej Prasad and Srikrishna Bhagat who were eye witness and stated that it is the Informant-Complainant himself who put his Jhopari on fire just to falsely implicate applicants and others. Police falsely implicated applicants. Later Police submitted charge-sheet under Sections 147, 323, 504, 506 I.P.C. on 13.01.2005. 5. Magistrate taking cognizance summoned applicants in Case No. 846 of 2005, under Sections 147, 323, 504, 506 I.P.C. vide order dated 29.03.2005. Applicants appeared and released on bail. Thereafter the Informant-Complainant submitted an application before Superintendent of Police, Deoria on 22.01.2005 for transfer of his case from Police Station Bankata to Police Station Kotwali Salempur for re-investigation. Superintendent of Police, Deoria passed order transferring the case, as requested, by order dated 10.02.2005 and directed for re-investigation without seeking formal permission of Trial Court. No reason was given by Superintendent of Police for transferring the case. Superintendent of Police, Deoria passed order transferring the case, as requested, by order dated 10.02.2005 and directed for re-investigation without seeking formal permission of Trial Court. No reason was given by Superintendent of Police for transferring the case. Thereafter, matter was re-investigated by Ramashrya Yadav, Sub-Inspector of Police Station Kotwali Salempur, District Deoria and he submitted charge-sheet against applicants under Sections 147, 149, 452, 435, 323, 504, 506 I.P.C. on 14.04.2005. The aforesaid charge-sheet is illegal inasmuch applicants were already absolved of offences under Sections 149, 452, 435 I.P.C. but second Investigating Officer (hereinafter referred to as “I.O.”) implicated applicant for the offence under the aforesaid sections. On the second charge-sheet submitted by I.O., Judicial Magistrate registered Case No. 1278 of 2004 and summoned applicants under Section 147, 149, 452, 435, 504, 506 I.P.C. vide order dated 15.06.2005. Before passing the order, Superintendent of Police has not taken permission of Court;. Applicants are already facing trial pursuant to first charge-sheet dated 13.01.2005 and therefore second charge sheet dated 14.04.2005 is nothing but an abuse of process of law. Relying on Supreme Court’s decision in Hasanbhai Valibhai Qureshi Vs. State of Gujarat 2004 AIR SCW 2063, learned counsel for applicants submitted that without permission of Court, further investigation could not have been conducted by Police, therefore, second charge-sheet is illegal. 6. Learned counsel for applicants has challenged subsequent investigation and second charge-sheet on the ground, firstly that reinvestigation is not permissible and secondly without permission of Magistrate, Police could not have proceeded for further investigation at all. In support thereof, besides relying on Supreme Court’s judgment in Hasanbhai Valibhai Qureshi Vs. State of Gujarat (supra) reliance is also placed on K. Chandra Sekhar Vs. State of Kerala 1998 (37) ACC 136. 7. From the record, I find that Informant-Complainant, in his application dated 22.01.2005, submitted before Superintendent of Police, stated that I.O. P.S. Bankata is not making proper inquiry but trying to save applicants under their influence and other co-accused, therefore in the interest of justice investigation should be transferred to P.S. Kotwali Salempur. At that time, charge-sheet dated 13.01.2005 under Section 147, 323, 504, 506 I.P.C. was already submitted in the Court but this fact was not disclosed by Informant-Complainant in his application dated 22.01.2005. At that time, charge-sheet dated 13.01.2005 under Section 147, 323, 504, 506 I.P.C. was already submitted in the Court but this fact was not disclosed by Informant-Complainant in his application dated 22.01.2005. Superintendent of Police also did not try to make any efforts to know status of investigation and simply transferred the same from P.S. Bankata to P.S. Kotwalai Salempur by order dated 10.02.2005. There is nothing on record to show that either Informant-Complainant requested for re-investigation and that was directed by Superintendent of Police and Police made re-investigation or fresh investigation but the fact remains that when application was filed by Informant-Complainant to Superintendent of Police and order was passed by him transferring investigation, this fact was never disclosed that investigation has already completed and charge-sheet has been submitted by Police and Magistrate was seized with the matter. 8. It cannot be doubted that Police has power to make further investigation under Section 173(8) Cr.P.C. 9. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of A.P. and others, 1999 Cri.L.J. 3661 (SC) Court said: "10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791 : (1979 Cri LJ 1346).” (emphasis added) 10. In Rama Chaudhary vs. State of Bihar, 2009(6) SCC 346 Court said: "From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to "further" investigation under subsection (8) of Section 173 … The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether." (emphasis added) 11. It has been followed in Awdhesh Kumar Jha @ Akhilesh Kumar Jha & another vs. State of Bihar, 2016(3) SCC 8 . 12. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether." (emphasis added) 11. It has been followed in Awdhesh Kumar Jha @ Akhilesh Kumar Jha & another vs. State of Bihar, 2016(3) SCC 8 . 12. It is well settled that normally permission of Magistrate when he is seized with the matter and charge-sheet has been submitted should have been obtained which has not been done in the case in hand, but it is also well settled that mere non obtaining of permission from Magistrate further investigation, if any, made by Police would not be per se vitiated. 13. However, in the present case, order of transfer of investigation has been obtained/ passed without considering the fact that investigation was already complete and charge-sheet was submitted before Magistrate. Since this material fact has not been considered by Superintendent of Police and further investigation has been made at P.S. Salempur Deoria, in my view, it amounts to gross abuse of process of law and second charge-sheet for offences which included the offences which were not inflicted in earlier charge-sheet is vitiated in law. 14. In view of above, the application allowed. Charge-sheet dated 14.04.2005 including summoning order dated 15.06.2005 are hereby quashed. This order, however, shall not affect the proceedings pursuant to charge sheet dated 13.01.2005 wherein summoning order was passed by Magistrate on 29.03.2005. I also make it clear that in case Police finds any reason to conduct further investigation, such power will not be construed to be restricted or prohibited by this order and it is free to proceed in accordance with law. 15. The application is allowed in the manner as aforesaid.