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2022 DIGILAW 1330 (BOM)

Melatharu Mining Company v. State of Maharashtra

2022-05-06

N.J.JAMADAR

body2022
JUDGMENT 1. This Petition under Article 227 of the Constitution of India, calls in question the legality, propriety and correctness of the Order 10/2/2021 below Exhibit 341 passed by the learned Judicial Magistrate, First Class, Sawantwadi, on an application in Regular Criminal Case No.72 of 2007, whereby the learned Magistrate rejected the Application preferred by the Petitioner, seeking direction to the police to file a supplementary chargesheet on the basis of the additional evidence i.e. audio-video record and documents produced by the Petitioner. 2. The litigation, which forms the subject matter of this Petition, seems to have a chequered histody. The Petitioner Company deals in the business of mining in Sindhudurg District and the State of Goa. The Petitioner Company claimed to have stored around 58000 metric ton of iron ore at Village Sateli, Taluka, Sawantwadi, District Sindhudurg. The accused threatened to invade the said property and remove iron ore therefrom. Though the Petitioner filed a written complaint with Sawantwadi Police Station, no effective action was taken and only a N.C.No.187 of 2004 was registered on the premise that the dispute was of civil nature. The accused/defendants were restrained by the civil court from causing obstruction to the possession of the Petitioner over the said property. Yet on 21/5/2007, the accused and their hire lings allegedly forcibly entered into the Petitioners' stock yard and took away 24000 metric tons of iron ore therefrom. A report was lodged on 22/5/2007 leading to registration of FIR No.45 of 2007. 3. As the investigation was not conducted impartially and earnestly, the Petitioner filed a Criminal Writ Petition No.994 of 2007. After recording an assurance given to the Court by the Investigating Officer that proper investigation would be conducted, by an order dtd. 6/6/2007, the Petition came to be disposed of. Another Writ Petition No.419 of 2015 was filed by the Petitioner. The same was disposed of by an order dtd. 14/8/2015 by this Court opining inter alia that a remedy under Sec. 319 of the Code of Criminal Procedure, 1973 was available to the Petitioner. 4. The trial commenced. The Petitioner preferred a number of applications to ensure that the guilty were brought to book. The Petitioner, interalia, preferred an Application (Exhibit 172) seeking permission to lead secondary evidence. The learned Magistrate by an order dtd. 30/4/2016, was persuaded to dismiss the said Application. 4. The trial commenced. The Petitioner preferred a number of applications to ensure that the guilty were brought to book. The Petitioner, interalia, preferred an Application (Exhibit 172) seeking permission to lead secondary evidence. The learned Magistrate by an order dtd. 30/4/2016, was persuaded to dismiss the said Application. Thus, the Petitioner filed another Writ Petition No.3003 of 2016. Having regard to the nature of the grievances, which centered around improper investigation and prosecution, by an order dtd. 5/3/2018 in Writ Petition No.3003 of 2016, this Court directed the Superintendent of Police, District Sindhudurg, to immediately look into the matter with a direction to file an Affidavit as to how he would deal with the inconsistency in the stand of the investigating agency, as noted by the Court. It was further directed that the evidence which was in possession of the complainant, and neither shown to be seized nor produced before the trial Court, could be considered pursuant to the provisions of Sec. 173(8) of the Code of Criminal Procedure, 1973. 5. Eventually, by an order dtd. 4/10/2018 passed in Writ Petition No.3003 of 2016 after noting that the Investigating Officer has taken on record the concerned DVDs which were produced by the Applicant by effecting Panchanama dtd. 1/10/2018 and a supplementary chargesheet had also been filed before the learned Magistrate, this Court observed that the grievance of the Petitioner did not survive and, accordingly, the Petition stood disposed of. Having regard to the pendency of the Regular Criminal Case No.72 of 2007, this Court further directed the learned Magistrate to expedite the trial and make an endeavour to conclude the same within a period of one year from the date of passing of order. 6. Indisputably, the trial has commenced. The Petitioner preferred instant Application (Exhibit 341) with a prayer that though the Investigating Officer has taken on record DVDs and filed a supplementary chargesheet; the Investigating Officer took no pains to verify the truthfulness of the contents of the seized audio-video record and had not collected the voice samples of one Datta Kouthankar and resultantly the charge against the accused may not be proved and, thus, it was necessary to direct the Investigating agency to carry out further investigation in the light of the electronic record and the documents furnished by the Petitioner and, thereafter, file a supplementary chargesheet against the accused. 7. 7. By the impugned Order, the learned Magistrate was persuaded to reject the Application opining, inter alia, that pursuant to the order passed by this Court in Writ Petition No.3003 of 2016, the Investigating Officer had seized audio-video records, as produced by the Petitioner and, requisite certificate under Sec. 65B of the Evidence Act has been furnished and supplementary chargesheet has also been filed. The evidentiary value of the material, thus placed on record, would be determined at the trial. The investigation, learned Magistrate held, was an exclusive sphere of the investigating agency and it was not for the Court to direct the investigating agency to file a supplementary chargesheet. It was further noted that Mr. Datta Kouthankar was not the accused and, if at all, the evidence revealed the complicity of the said Mr. Datta Kauthankar, recourse may be made to the provisions of Sec. 319 of the Code of Criminal Procedure, 1973. Therefore, there was no justifiable reason to direct further investigation, as sought by the Petitioner. 8. Mr. Rawool, learned Advocate for the Petitioner, would urge that the aforesaid approach of the learned Magistrate runs counter to the spirit of the directions passed by this Court in Writ Petition No.3003 of 2016. Mere collection and seizure of audio-video records and the documents produced by the Petitioner, without ascertaining the truthfulness of the contents thereof, is of no avail to the prosecution. It would, therefore, be necessary to direct the investigating agency to verify the truthfulness of the contents of the audio-video records and, based upon such further investigation, file a supplementary chargesheet against the persons, whose complicity such investigation reveals. 9. Mr. Rawool further submitted that the learned Magistrate is empowered under Sec. 173(8) of the Code, to pass such a direction. Refusal to exercise the discretion, in the facts and circumstances of the case, according to Mr. Rawool, defeated the very ends of justice. Therefore, this Court must exercise its writ jurisdiction, submitted Mr. Rawoool. 10. First and foremost, it is necessary to consider the prayer in the Application (Exhibit 341). The Petitioner sought directions to the investigating agency, by the learned Magistrate, that post further investigation, a supplementary chargesheet be lodged in the matter. Rawool, defeated the very ends of justice. Therefore, this Court must exercise its writ jurisdiction, submitted Mr. Rawoool. 10. First and foremost, it is necessary to consider the prayer in the Application (Exhibit 341). The Petitioner sought directions to the investigating agency, by the learned Magistrate, that post further investigation, a supplementary chargesheet be lodged in the matter. The learned Magistrate, in view of the settled legal position, was fully justified in recording that the investigation is an exclusive province of the investigating agency and the Code does not empower the Magistrate to direct the investigating agency to file a chargeshset. It is totally a different matter that once the investigating agency forms an opinion and files a report, the Magistrate is empowered in law to either accept the report or direct further investigation. However, the Magistrate is not empowered to direct either the manner in which the investigation is to be conducted or the opinion to be formed by the investigating agency. 11. On the aspect of the authority of the Magistrate to direct further investigation, it would be necessary to note the stage of the proceedings. Indisputably, the trial has commenced and the witnesses for the prosecution have also been examined. In the case of Amrutbhai Shambhubhai Parel V/s. Sumanbhai Kantibhai Patel and Ors., (2017) 4 SCC 177 . the Supreme Court held that once the trial commenced with the framing of charges, stage of investigation or inquiry into offences is over, as a result of which no further investigation into offence should be ordered. The relevant observations in paragraph No.49 read thus : "49. On an overall survey of the pronouncements of this Court on the scope and purport of Sec. 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigation 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 the 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. 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 the 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." 12. A three Judge bench of the Supreme Court in the case of Vinubhai Haribhai Malaviya and Ors. V/s. State of Gujarat and Ors., (2019) 17 SCC 1 . found the aforesaid view in the case of Amrutbhai (supra) to the extent it holds that no further investigation could be ordered by the Magistrate, in cases where, after cognizance is taken, the accused had appeared in pursuance of the process being issued. The three Judge bench observed in paragraph No.42 as under : "42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri Vasu V/s. State of U.P., (2008) 2 SCC 409 . Samaj Parivartan Samudaya V/s. State of Karnataka, (2012) 7 SCC 407 . Vinay Tyagi V/s. Irshad Ali, (2013) 5 SCC 762 . Hardeep Singh V/s. State of Punjab, (2014) 3 SCC 92 . having clearly held that a criminal trial does not being after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 and Constitution and the fact that the Article demands no less than a fair and just investigation. having clearly held that a criminal trial does not being after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 and Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Sec. 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is no so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Sec. 156(3) read with Sec. 156(1), Sec. 2(h) and Sec. 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progess of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi v/s. State of Gujarat, (2004) 5 SCC 347 . Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel (supra), Athul Rao V/s. State of Karnataka, (2018) 14 SCC 298 . and Bikash Ranjan Rout V/s. State (NCT of Delhi), (2019) 5 SCC 542 . have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana V/s. State (Delhi Admn), (1997) 1 SCC 361 . and Reeta Nag V/s. State of W.B., (2009) 9 SCC 129 . also stand overruled." 13. and Bikash Ranjan Rout V/s. State (NCT of Delhi), (2019) 5 SCC 542 . have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana V/s. State (Delhi Admn), (1997) 1 SCC 361 . and Reeta Nag V/s. State of W.B., (2009) 9 SCC 129 . also stand overruled." 13. The position in law which thus emerges is that the Magistrate cannot suo motu or on an application of de facto complainant, in contradistinction to the investigating officer, order further investigation by resorting to the provisions contained in Sec. 178(3) of the Code of Criminal Procedure, 1973 after the trial has commenced. The trial, in turn, commences upon the framing of the charge. 14. In the case at hand, not only a charge has been framed but the evidence of few of the witnesses for the prosecution has already been recorded. At this stage, the prayer of the Petitioner / first informant, to order further investigation, on the strength of the material furnished by it and direct the investigating agency to file a supplementary chargesheet, on the basis of such investigation, does not merit acceptance. The learned Magistrate, in the circumstances of the case, committed no error in declining to accede to the prayer of the Petitioner. I am, therefore, not inclined to entertain the Petition. 15. It is, however, made clear that the aforesaid consideration is confined to the determination of the legality, propriety and correctness of the impugned order and the Court may not be understood to have expressed any opinion on the merits of the matter and the remedies which are otherwise available in law to the Petitioner and the Investigating agency in relation to the aforesaid material which formed the subject matter of the supplementary chargesheet already lodged by the investigating agency. 16. With the aforesaid clarification, the Writ Petition stands dismissed.