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2024 DIGILAW 432 (ALL)

Rakesh Kumar Awasthi v. State of U. P.

2024-02-08

YOGENDRA KUMAR SRIVASTAVA

body2024
JUDGMENT : 1. Heard Sri Bal Ram Gupta, learned counsel for the petitioners and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-respondent. 2. The present petition has been filed seeking to assail the order dated 12.07.2023 passed by the Metropolitan Magistrate, Court No.9, Kanpur Nagar in Misc. Case No.1124 of 2023 (Syed Tariq Umar Vs. Rakesh Kumar Awasthi and others), whereby the final report submitted by the police has been rejected and a direction has been issued for further investigation. 3. The principal ground urged to assail the aforesaid order is that no protest petition was filed by the informant before the concerned Magistrate and despite the same, the order impugned has been passed. 4. It is further sought to be contended that the power to order investigation by the police under Section 156(3) of the Code of Criminal Procedure, 1973[CrPC] CrPC can only be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a), and such a direction could not have been issued in exercise of powers under Section 173(8), wherein the investigating officer alone has been authorized to conduct further investigation. 5. Learned AGA has controverted the submissions made by the counsel for the petitioners by pointing out that the miscellaneous application filed by the informant, upon which the order impugned has been passed by the Magistrate, was captioned as ‘narazgi yachika’, under Section 173(8) CrPC, wherein a prayer had been made to reject the final report and direct further investigation. 6. It is submitted that the aforesaid application is clearly in the nature of a ‘protest petition’, filed under Section 173(8) CrPC, wherein the Magistrate is fully empowered to direct further investigation, and the order impugned cannot be faulted with on this ground. 7. Rival contentions fall for consideration. 8. The statutory scheme under the CrPC contains a clear demarcation between the powers of the police to investigate and the jurisdiction of criminal courts in inquiries, followed by the procedure once the trial begins. 9. The expression ‘investigation’ has been defined under Section 2(h) CrPC, as including all the proceedings under the Code for the purpose of collecting evidence by a police officer, and otherwise by any person authorized by a Magistrate in this behalf, and also pertains to a stage before the trial commences. 9. The expression ‘investigation’ has been defined under Section 2(h) CrPC, as including all the proceedings under the Code for the purpose of collecting evidence by a police officer, and otherwise by any person authorized by a Magistrate in this behalf, and also pertains to a stage before the trial commences. The investigation which may ultimately lead to a police report is an investigation conducted by the police, and may be ordered in an inquiry made by a Magistrate himself in a ‘complaint case’. 10. The Code of Criminal Procedure, 1898, did not contain a provision under which the police were empowered to conduct a further investigation in respect of an offence after a police report under Section 173 had been forwarded to the Magistrate. 11. Taking notice of the difficulties arising as a result thereof, the Law Commission in its 41st report made a recommendation with regard to reopening of investigation, in the following terms:- "14.23. Reopening of investigation.-A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused." 12. Sub-section (8) of Section 173, as introduced in the Code of Criminal Procedure, 1973, gives power to the police to further investigate an offence even after a police report has been forwarded to the Magistrate. This power continues until the trial can be said to commence in a criminal case. 13. The question as to whether the Magistrate has the power to order further investigation, after a police report has been forwarded to him under Section 173 was considered in Vinubhai Haribhai Malaviya and others Vs. This power continues until the trial can be said to commence in a criminal case. 13. The question as to whether the Magistrate has the power to order further investigation, after a police report has been forwarded to him under Section 173 was considered in Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another, (2019) 17 SCC 1 and it was held that the Magistrate's power under Section 156(3) CrPC is very wide, and in order to ensure that a ‘proper investigation’ takes place in the sense of a fair and just investigation by the police, Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, would include an order for further investigation after a report is received by him under Section 173(2), and which power would continue to enure in the Magistrate at all stages of the criminal proceedings until the trial itself commences. 14. The powers that are vested in Magistrate upon filing a report in terms of Section 173(2)(i), were explained in the decision of Minu Kumari Vs. State of Bihar, (2006) 4 SCC 359 , wherein it was 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. 15. In the case of Vinay Tyagi Vs. Irshad Ali @ Deepak and others, (2013) 5 SCC 762 , after referring to the decision in the case of Minu Kumari (supra), it was held that the court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2), and may also exercise such powers with the aid of Section 156(3) CrPC. 16. Reference was also made to the decision in Hemant Dhasmana Vs. CBI, (2001) 7 SCC 536 , where the court had held that although Section 173(8) does not, in specific terms, mention about the powers of the Court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. 17. CBI, (2001) 7 SCC 536 , where the court had held that although Section 173(8) does not, in specific terms, mention about the powers of the Court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. 17. The judgment in Hemant Dhasmana (supra) has made specific reference to the judgments in Union Public Service Commission Vs. S. Papaiah and others, (1997) 7 SCC 614 , and Bhagwant Singh Vs. Commissioner of Police (1985) 2 SCC 537 , to conclude that the Magistrate could pass an order for further investigation. 18. In terms of the aforesaid decisions it can be concluded that the scheme of the Code nor any specific provision therein bars exercise of jurisdiction by the Magistrate to order further investigation. The language of Section 173(2) is not to be construed in restricted manner so as to deprive the Magistrate of such powers, particularly, in view of the provisions under Section 156(3), and the language of Section 173(8) itself. The power of the Magistrate to direct further investigation, is, in fact, to be read into language of Section 173(8) CrPC. 19. The question as to whether after a charge-sheet has been filed by the police, the Magistrate has power to order further investigation, and if so, upto what stage of a criminal proceeding, is therefore no longer resintegra, in view of the authoritative pronouncements, wherein it has been held that the power to order for further investigation after a police report has been forwarded under Section 173(2), would continue to enure in the Magistrate at all stages of the criminal proceedings until a trial itself commences. 20. The legal position with regard to the power of the Magistrate to order further investigation exercising powers under Section 156(3) read with Section 173(8), being well settled, the order impugned dated 12.07.2023 passed by the Metropolitan Magistrate, Court No.9, Kanpur Nagar in Misc. Case No.1124 of 2023, in terms of which the final report submitted by police has been rejected, and a direction has been issued for further investigation, cannot be faulted on the ground of lack of jurisdiction. 21. The petition lacks merit and is accordingly dismissed.