TaxTMI 
TaxTMI 
2019 (10) TMI 1428
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of a recent price-hike of lands in the city of Surat, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have hatched a conspiracy in collusion with each other, and published a public notice under the caption "Beware of Land-grabbers" in a local newspaper on 07.06.2008. Sometime thereafter, Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted Nitinbhai Patel (who lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya demanded an amount of Rs. 2.5 crores in order to "settle" disputes in respect of this land. It is alleged in the said FIR that apart from attempting to extort money from the said Nitinbhai Patel, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have used a fake and bogus 'Satakhat' and Power-of-Attorney in respect of the said land, and had tried to grab this land from its lawful owners Ramanbhai and Shankarbhai Patel. 2. The background to the FIR is the fact that one Khushalbhai was the original tenant of agricultural land, bearing Revenue Survey No. 342, admeasuring 2 Acres, 2 Gunthas, situa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minal revision applications were filed before the Sessions Court, Surat, being Revision Application Nos. 376 and 346 of 2011, insofar as the dismissal by the learned Magistrate of further investigation and the order rejecting registration of the FIR were concerned. Both these revision applications were decided by the learned Second Additional Sessions Judge, Surat by a common order dated 10.01.2012. By this order, the learned Second Additional Sessions Judge went into details of facts that were alleged in the application Under Section 173(8) and found that a case had been made out for further investigation. Accordingly, he held: As per the above referred discussion, it can be seen that no effective investigation or discussions have been carried out in all these respect during in the course of the investigation of said offence and further, it is very noteworthy here that matters for which the prayers are made in these Revision Applications, all these matters are pertaining to the complaint of this case. Hence, it is very much necessary that for the purpose of carrying out a detailed and full investigation of this complaint, all these matters should also be investigated. But....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d be registered, insofar as the allegations contained in the applications for further investigation are concerned. Pursuant to the aforesaid remand, by judgment dated 23.04.2016, the learned Additional Sessions Judge has rejected the application Under Section 156(3) of the Code of Criminal Procedure on merits, against which Special Criminal Application No. 3085 of 2016 has been filed and is awaiting disposal. Several other proceedings that are pending between the parties have been pointed out to us, with which we have no immediate concern in this case. 7. Shri Dushyant Dave, learned Senior Advocate, appearing on behalf of the Appellants, has forcefully argued, placing reliance on a number of provisions of the Code of Criminal Procedure, and a number of our judgments, that the High Court was wholly incorrect as a matter of law, in holding that post-cognizance a Magistrate would have no power to order further investigation into an offence. He read out in great detail the FIR dated 22.12.2009, the contents of the charge-sheet dated 22.04.2010, and relied heavily on a communication made by the Commissioner of Revenue, Gujarat to the Collector, Surat dated 15.03.2011. According to hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice and their Powers to Investigate". Chapter XIII has as its title "Jurisdiction of the Criminal Courts in Inquiries and Trials". Chapter XIV speaks of "Conditions Requisite for Initiation of Proceedings". Chapter XV then speaks of "Complaints to Magistrates". Chapter XVI is headed "Commencement of Proceedings before Magistrates" and Chapter XVII is headed "The Charge". Chapters XVIII to XXI are "Trials before a Court of Session"; "Trial of Warrant-Cases by Magistrates"; "Trials of Summons-Cases by Magistrates"; and Summary Trials", respectively. 11. The relevant Sections of the Code of Criminal Procedure with which we are concerned are as follows: 156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. xxx xxx xxx (3) Any Magistrate empowered Under Section 190 may order such an investigation as above-mentioned. xxx xxx xxx 173. Report o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xxx xxx 202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him Under Section 192, may, if he thinks fit, [and shall, in a case where the Accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the Accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath Under Section 200. (2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. "Inquiry" is defined in Section 2(g) as follows: "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; "Investigation" is defined in Section 2(h) as follows: "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 13. The statutory scheme contained in the Code of Criminal Procedure therefore puts "inquiry" and "trial" in water-tight compartments, as the very definition of "inquiry" demonstrates. "Investigation" is for the purpose of collecting evidence by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also pertains to a stage before the trial commences. Investigation which ultimately leads to a police report under the Code of Criminal Procedure is an investigation conducted by the police, and may b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the procedure established by law in a fair trial which assures the safety of the Accused. The assurance of a fair trial is stated to be the first imperative of the dispensation of justice (see paragraph 16 therein). 17. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the Code of Criminal Procedure that must needs inform the interpretation of all the provisions of the Code of Criminal Procedure, so as to ensure that Article 21 is followed both in letter and in spirit. 18. Pooja Pal v. UOI (2016) 3 SCC 135 is an important judgment which speaks of the fundamental right Under Article 21 of the Constitution in the context of the goal of "speedy trial" being tempered by "fair trial". The Court put it thus: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast Rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice. 19. With the introduction of Section 173(8) in the Code of Criminal Procedure, the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviousl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n each of the other two courses, that is, (1) and (2)(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on the one hand and the Accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court. 21. What is recognised by this decision is that in the circumstance that the Magistrate does not agree with the police report, he may order further investigation-which is done in his capacity as a supervisory authority in relation to investigation carried out by the police. 22. Indeed, Section 156(3) has remained unchanged even after the advent of the Code of Criminal Procedure of 1973. Thus, in State of Bihar v. J.A.C. Saldhana and Ors. (1980) 1 SCC 554, this Court held: 19. The power of the Magistrate Under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate Under Section 156(3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uring a proper investigation. All these powers a Magistrate enjoys Under Section 156(3) Code of Criminal Procedure. 14. Section 156(3) states: 156. (3) Any Magistrate empowered Under Section 190 may order such an investigation as abovementioned. The words "as abovementioned" obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Code of Criminal Procedure In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation Under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....clude proceedings by way of further investigation Under Section 173(8) of the Code of Criminal Procedure. 24. However, Shri Basant relied strongly on a Three Judge Bench judgment in Devarapalli Lakshminarayana Reddy and Ors. v. V. Narayana Reddy and Ors. (1976) 3 SCC 252. This judgment, while deciding whether the first proviso to Section 202 (1) of the Code of Criminal Procedure was attracted on the facts of that case, held: 17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation Under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power Under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence Under Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed in Section 2(h). 26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power Under Section 156(3) can only be exercised at the pre-cognizance stage. The "investigation" spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon. 27. Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322, is an early judgment which deals with the power contained in Section 173(8) after a charge-sheet is filed. This Court adverted to the Law Commission Report and to a number of judgments which recognised the right of the police to make repeated investigations under the Code of Criminal Procedure, 1898. It then quoted the early Supreme Court judgment in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 case as follows: 17. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri. LJ 526] this Court contempl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already Accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the Accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved Accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discret....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itted 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 Code of Criminal Procedure, 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. (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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 19) and in Samaj Parivartan Samudaya and Ors. v. State of Karnataka and Ors. (2012) 7 SCC 407 (at paragraph 58). 30. In Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC 536, this Court followed Papaiah (supra) and held: 16. Although the said Sub-section 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. When any such order is passed by a court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that track. If they come to the same conclusion, it is of added advantage to the per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Accused. 19. In Union Public Service Commission v. S. Papaiah [ (1997) 7 SCC 614 : 1997 SCC (Cri.) 1112] a two-Judge Bench considered the scope of Section 173(8) of the Code in extenso. Dr. A.S. Anand, J. (as the learned Chief Justice then was) after extracting Section 173(8) of the Code has observed thus: (SCC pp. 620-21, para 13) The Magistrate could, thus in exercise of the powers Under Section 173(8) Code of Criminal Procedure direct the CBI to 'further investigate' the case and collect further evidence keeping in view the objections raised by the Appellant to the investigation and the 'new' report to be submitted by the investigating officer would be governed by Sub-sections (2) to (6) of Section 173 Code of Criminal Procedure. 31. In Samaj Parivartan Samudaya (supra), a Three Judge Bench of this Court, while dealing with illegal mining in Andhra Pradesh and Karnataka, issued directions to the CBI to investigate the entire matter (despite private complaints already pending and being investigated by one or other competent Court or investigation agency), as a Central Empowered Committee Report disclosed fresh facts as to illegal mining in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wer effective. Therefore, absence of statutory provision empowering the Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct registration of an FIR. (Ref. Sakiri Vasu v. State of U.P. [ (2008) 2 SCC 409 : (2008) 1 SCC (Cri.) 440]) 31. Thus, Code of Criminal Procedure leaves clear scope for conducting of further inquiry and filing of a supplementary charge-sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-sections (2) to (6) of Section 173 Code of Criminal Procedure to the court. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge-sheet in terms of Section 173 Code of Criminal Procedure) is permissible in any case impliedly but in no event is impermissible. xxx xxx xxx 37. We may notice that the investigation of a case or filing of charge-sheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the court. Sometimes and particularly in the matters of the present kind, the investigating agen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 33. This judgment, thus, clearly shows 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) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to an end by the judgment of this Court in Hemant Dhasmana v. CBI [ (2001) 7 SCC 536 : 2001 SCC (Cri.) 1280] where the Court held that although the said Section does not, in specific terms, mention the power 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. When any such order is passed by the court, which has the jurisdicti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....While relying upon the three-Judge Bench judgment of Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267], which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the Magistrate could drop the proceedings after filing of a report Under Section 173(2), without notice to the complainant, but in para 4 of the judgment, the three-Judge Bench dealt with the powers of the Magistrate as enshrined in Section 173 of the Code... 37. In some judgments of this Court, a view has been advanced, [amongst others in Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri.) 1051], Ram Naresh Prasad v. State of Jharkhand [Ram Naresh Prasad v. State of Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri.) 1336. Ed.: Ram Naresh case does not seem to indicate that the Magistrate cannot suo motu direct further investigation: rather it seems to indicate that the Magistrate in fact can do so.] and Randhir Singh Rana v. State (Delhi Admn.) [Randhir Sing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the Magistrate in fact can do so.] and Randhir Singh [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361], besides being different on facts, would have to be examined in light of the principle of stare decisis. 40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code: 40.1. The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report. 40.2. A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173(6) of the Code. 40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] by a three-Judge Bench and thus in conformity with the doctrine of precedent. 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct "further investigation" or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct "further investigation" and file "supplementary report" with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct "further investigation" and/or to file a "supplementary report" will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process. 50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this Court in Sivanmoorthy v. State [ (2010) 12 SCC 29 : (2011) 1 SCC (Cri.) 295]. 34. A Bench of 5 learned Judges of this Court in Hardeep Singh v. State of Punjab and Ors. (2014) 3 SCC 92 was faced with a question regarding the circumstances under which the power Under Section 319 of the Code could be exercised to add a person as being Accused of a criminal offence. In the course of a learned judgment answering the aforesaid question, this Court first adverted to the constitutional mandate Under Article 21 of the Constitution as follows: 8. The constitutional mandate Under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the Accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the "trial" commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken. 35. Paragraph 39 of the judgment then referred to the "inquiry" stage of a criminal case as follows: 39. Section 2(g) Code of Criminal Procedure and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Code of Criminal Procedure by the Magistrate or the court. The word "inquiry" is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial. A clear distinction between "inquiry" and "trial" was thereafter set out in paragraph 54 as follows: 54. In our opinion, the stage of inquiry does n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... down the law on this aspect correctly. The Court therefore concluded: 49. 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 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 can 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. 50. The unamended and the amended Sub-section (8) of Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267], 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 Sections 311 and 319 Code of Criminal Procedure, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the police Under Section 173(2)(i) Code of Criminal Procedure, the learned Magistrate in exercise of the powers Under Section 227 Code of Criminal Procedure discharges the Accused, thereafter, it will not be open for the Magistrate to suo motu order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the Accused can be said to be made at the post-cognizance stage. There is a distinction and/or difference between the pre-cognizance stage and post-cognizance stage and the powers to be exercised by the Magistrate for further investigation at the pre-cognizance stage and post-cognizance stage. The power to order further investigation which may be available to the Magistrate at the pre-cognizance stage may not be available to the Magistrate at the post-cognizance stage, more particularly, when the Accused is discharged by him. As observed hereinabove, if the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer Under Section 173(2)(i) Code of Criminal Procedure, as observed by this Court in a catena of decisions and as observed h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Realising the difficulty in concluding thus, the Court went on to hold: 10. However, considering the observations made by the learned Magistrate and the deficiency in the investigation pointed out by the learned Magistrate and the ultimate goal is to book and/or punish the real culprit, it will be open for the investigating officer to submit a proper application before the learned Magistrate for further investigation and conduct fresh investigation and submit the further report in exercise of powers Under Section 173(8) Code of Criminal Procedure and thereafter the learned Magistrate to consider the same in accordance with law and on its own merits. 38. 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 (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us. King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, was strongly relied upon by Shri Basant for the proposition that unlike superior Courts, Magistrates did not possess any inherent power under the Code of Criminal Procedure Since we have grounded the power of the Magistrate to order further investigation until charges are framed Under Section 156(3) read with Section 173(8) of the Code of Criminal Procedure, no question as to a Magistrate exercising any inherent power under the Code of Criminal Procedure would arise in this case. 40. Union of India and Anr. v. W.N. Chadha (1993) Supp. 4 SCC 260, is a judgment which states that the Accused has no right to participate in the investigation till process is issued to him, provided there is strict compliance of the requirements of fair investigation Likewise, the judgments in Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi and Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod Aggarwal and Ors., (2008) 9 SCC 469, Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat and Ors. (2014) 4 SCC 626, which state that the Accused has no right to be heard at the stage of investigati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....could not possibly have made an application in the year 2000; which shows that her signature is also prima facie forged. Further, the said Ramanbhai and Shankarbhai Patel are at present 48 and 53 years old, and if they could be said to be in possession of the said agricultural land since 1934, they could be said to be in possession at a time when they were not yet born. Further, since these two gentlemen were abroad from the very beginning, it is stated that they could not possibly be farmers cultivating agricultural land. For these, and various other reasons, the Commissioner concluded: Thus, looking to all the aforesaid particulars, as per the submission made by the lady applicant, scam has been made in respect of her land by creating false bogus cases/resolutions/orders passed or by forging fake documents. Submission is made for initiating criminal proceedings against all those who are involved in such scam and whether there is substance in this matter or not? Thorough inquiry be made in that connection at your level. Till the real particulars in this matter are not becoming clear, it is appearing necessary to stop the NA Permission/Construction activities. Therefore, a....