Naheed Ara Moonis, J. - Heard Sri Pradeep Kumar learned counsel for the revisionists and Sri Abdul Majeed learned AGA appearing on behalf of State and have also gone through the record.
2. By means of the instant revision, the revisionists have challenged the order dated 25.5.2016 passed by the Judicial Magistrate, Siddharth Nagar in Criminal Case No. 1475 of 2015 (State v. Bali Bhadra Nath Shukla and others) under sections 147/148/452/323/504/506/325 IPC Police Station Jogiya Udaipur District Siddharth Nagar whereby the learned Magistrate rejected by the supplementary report submitted by the investigating officer under section 173 (8) Cr.P.C.
3. The prosecution version in a short conspectus is that the opposite party no.2 lodged the first information report on 31.3.2015 against the applicants vide Case Crime No. 841A of 2014 under sections 147/148/452/323/504/506 IPC. After registration of the case, the investigating officer swung into action and submitted the charge sheet on 14.4.2015 against the applicants for the offences punishable under sections 147/148/452/323/504/506/325 IPC of which court below has taken cognizance on 25.4.2015. During the pendency of the case R.N. Yadav, investigating officer moved an application under section 173 8) Cr.P.C to provide case diary and other documents and also to permit him to conduct further investigation as the applicants had approached to the Superintendent of Police Siddharth Nagar for further investigation by independent police officer as the earlier investigating officer was supporting the accused respondent of Case Crime No. 841 of 2014. Learned Magistrate after hearing both the parties allowed the application for further investigation vide order dated 2.1.2016. The investigation was taken over by S.I. Ram Ashish Yadav and Hari Sewak Shukla. The investigating officer took into account the affidavits filed by the villagers disowning the allegations made in the FIR which was entered into case diary as Supplementary Case Diary -IV. The investigating officer recorded the statement of Om Prakash Chaubey, the then Station Officer who was posted at the time of incident at the police station Jogiya Udaipur, District Siddharth Nagar demonstrating therein that the applicants have been falsely implicated. The statement of the investigating officer Om Prakash was recorded vide Parcha no. SCD-XIV. The statement of H.C.Ram Mani Tripathi was recorded who had stated that the opposite party no.2 has lodged the first information report to save his skin as the complainant and other persons had assaulted the applicant no.2 Shashi Kant in the presence of police. This statement was recorded on 5.3.2016 and was made part of the case diary. Thus after collecting the evidence, he submitted the report under section 173 (8) Cr.P.C. on 11.3.2016 as SCD No.27 stating therein that the first information report lodged by the opposite party no.2 is based upon fabricated facts. There is no evidence regarding incident and no offence is made out against the revisionists as alleged by the opposite party no.2. The supplementary report was received in the court of learned Magistrate on 13.3.2016 whereupon date was fixed for passing the final order. The opposite party no.2 filed a protest petition against the report submitted by the investigating officer under section 173 (8) Cr.P.C. and after considering the submission of both sides, the learned court below rejected the supplementary report submitted by the investigating officer in respect to the conclusion drawn with regard to further investigation that no offence is made out against the revisionist.
4. Aggrieved by the aforesaid order, the instant revision has been preferred by the revisionists.
5. It is submitted by the learned counsel for the revisionists that the present proceedings against the applicants are a counter blast to the first information report lodged by the applicant no.1 against the opposite party no.2 and seven others persons on 9.11.2014 under sections 147/148/323/308/504 IPC in respect of the incident of same date when the opposite party no.2 and his sons were trying to take possession over the Abadi land of the applicants regarding which the applicants made complaint to the police station Jogiya Udaipur on mobile phone and immediately after receiving the information, Station House Officer along with police force reached on the spot. When the applicant no.2 resisted the illegal act of the opposite party no.2 and his associates, they were mercilessly and relentlessly thrashed by the opposite party no.2 including Neeraj Shukla in the presence of the police force. In the said incident, applicant no.2 and Neeraj Shukla sustained fatal injuries. An FIR was lodged by the applicant no.1 against the opposite party no.2 and seven other persons. The applicant no.2 and Neeraj Shukla his cousin were medically examined by the doctor of district hospital who found serious injuries on head in addition to contusion and abrasion. The applicant no.2 was admitted in District Hospital on 9.11.2014 and was discharged on 14.11.2014. The investigating officer after collecting the clinching and material evidence submitted the charge sheet against the opposite party no.2 and seven other persons on 15.1.2015 and the cognizance of offence was taken by the learned Magistrate on 31.1.2015 qua FIR registered as Case Crime No. 841 of 2014. In respect of the said incident, the opposite party no.2 and other persons surrendered and were released on bail. The opposite party no.2 who is an accused in the first information report lodged by the applicant no.1 vide Case Crime No. 841 of 2014 made a complaint as a counter blast on 31.3.2015 which was registered as Case Crime No. 841A of 2014 under sections 147/148/452/323/504/506 IPC against the applicants.
6. The submission of the learned counsel for the applicants is that in the cross case investigation was not conducted fairly and the charge sheet was submitted against the applicants. The applicants had made complaint to the Superintendent of Police Siddharth Nagar for further investigation by any independent agency. Order was passed by the Superintendent of Police Siddharth Nagaron 2.6.2015 for transferring the investigation from Civil Police to Crime Branch and directed Inspector Ram Ashish Yadav to carry out the investigation after giving proper information to the concerned Magistrate. Therefore,the investigating officer submitted an application under section 178 (8)Cr.PC. before the learned Magistrate on 15.6.2015 seeking permission for further investigation. The learned Magistrate granted permission for further investigation vide order dated 2.1.2016. Further investigation was done by the investigating officer and taken into accounts the affidavits filed by the villagers as well as statement of one Shobh Nath Tripathi showing that the applicants were not present at the time of incident and they were present in Lucknow. The investigating officer had also recorded the statement of Om Prakash Chaubey who was posted as Station House Officer at Police Station Jogiya Udaipur at the time of occurrence who has divulged that false first information report has been lodged by the opposite party no.2. Thus on the basis of material collected, further report was submitted in terms of section 173 (8) Cr.P.C. There is no provision of law to challenge the said final report by filing the protest petition which was moved by the opposite party no.2 and the court below has given undue weight by accepting the same and rejected the further report dated 11.3.2016. by holding that it has been given against the provisions of law.
7. To buttress his submission learned counsel for the applicants has placed reliance upon on the decision of the Apex Court in re Rama Chaudhary v. State of Bihar 2009 (65) ACC 962 contending that if Officer Incharge of the police collects further evidence ,it is incumbent on his part to forward the same to the Magistrate with further report with regard to the said evidence in the prescribed form. Further investigation even after filing of the charge sheet is statutory right of the police. Re-investigation without prior permission is prohibited, on the other hand further investigation is permissible in the present case. The concerned police had taken prior permission for further investigation and the material collected in further investigation cannot be rejected only because it has been filed at the stage of trial.
8. Further reliance has been placed on a decision of the Apex Court in re Hasanbhai Valibhai Qureshi v. State of Gujarat 2004 AIR SC 2078, in the aforesaid case, it has been held that further investigation is not ruled out merely because cognizance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. In the aforesaid case, stress has been laid on the section 173 (8) Cr.P.C. for further investigation. It is open to the police to conduct proper investigation if the court took cognizance of any offence on the strength of a police report earlier submitted. The defective investigation can be cured by further investigation when fresh facts came into light instead of being silent over the matter keeping in view only the need for an early trial.
9. The Division Bench of this Court in re Amar Nath Pandey v. State of U.P.and others 2014 (87) ACC 1561 has dealt with in extenso, the scope of section 173 (8)Cr.P.C. and in this case while placing reliance upon various decisions of this Court and Apex Court and also relied upon Vinay Tyagi v. Irshad Ali @ Deepak and others 2013, (1) JIC 677 in which principle of law has been re-iterated that wide power is vested in the investigating agency to conduct further investigation even after filing of report in term of section 173 (2) Cr.P.C. and the investigating agency is competent to file a supplementary report to its primary report in terms of section 173 (8) Cr.P.C. and the supplementary report has to be treated by the court in continuation of the primary report. Apex Court after perusing the provisions of Code of Criminal Procedure has summarized the power of a Magistrate in terms of section 173 (2)Cr.P.C. read with section 173 (8) and section 156 (3)Cr.P.C. as follows :-
10. Having analysed the provisions of the Code and the various judgments as afore-indicated, 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 :
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.
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.
3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh''s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue ''further investigation'' and file supplementary charge sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
11. Another Bench of this court in Rakesh Kumar Srivastava v. State of U.P. 2004 (48) ACC 18, has passed the order to proceed with the trial only after taking final result of the ongoing investigation conducted by the Economic Offences Branch of Varanasi Region which clearly indicates that if further investigation has been ordered, there was possibility of ongoing investigation which could be favourable to the accused hence it was held that it would prejudice the interest of the accused if the case is concluded without waiting for the result of further investigation going on in the matter. In such circumstances, order of Magistrate refusing to grant stay of trial was quashed.
12. It has been summarized by the learned counsel for the applicants that rejecting further report submitted by the police by holding that it is against the law and procedure both is contrary to the well settled proposition of law as cited above, hence the court below ought to have taken into account the supplementary report at the time of framing of charge against the applicants and as such the order passed by the court below is liable to be quashed and the court below may be directed to consider the supplementary report regarding investigation at the time of framing of charge.
13. Per contra learned AGA contended that there is no illegality or perversity in the order impugned. The charge sheet was submitted against the applicants and cognizance was taken by the learned court below. At the same time power of the police for further investigation is statutory right as envisaged under section 173 (8) Cr.P.C. therefore, the further investigation was done after taking permission of the court concerned and thereafter further report was submitted which ought to have been taken into account by the trial court instead of rejecting the same by holding that it is against the procedure of law. The said report is in continuation of primary report as held by the Apex Court in the case of Vinay Tyagi (Supra) to that extent the order passed by the court below is not in consonance with settled procedure of law which can be considered at the time of framing of charge.
14. This Court has given anxious consideration to the submission advanced by the learned counsel for the revisionists and the learned AGA. It is well settled procedure of law that investigating agency is fully empowered to submit a report under section 173 (2) Cr.P.C. after completion of investigation which has to be forwarded to the concerned Magistrate. In the present case, charge sheet was submitted against the applicants pursuant to which cognizance was taken by the court below. Thereafter the applicant had moved an application before the Superintendent of Police for investigation by some other police officer. In that context, Superintendent of Police had directed the concerned police personal to seek permission of the court for further investigation in the case. Application was moved by the investigating officer under section 173 (8) Cr.P.C. for further investigation which was allowed vide order dated 2.1.2016. Further investigation which has been conducted by S.I. Ram Ashish and Hari Sewak, shows that they had collected the affidavits of eleven villagers. They had recorded the statement of S.H.O. Om Prakash Yadav in whose presence, alleged incident had occurred who had sworn on the same day dated 28.1.2016 with identical averments. It is stated that the applicants have been implicated to save his own skin. Similar statement was given by two other constables that applicants were thrashed by the opposite party no.2 and his associates.They have got their medical examination conducted at a belated stage. The statement of other witnesses who are neighbours of the applicants have been recorded showing that the applicants were not present at the time of incident. They were present at their house in Lucknow. The investigating officer after collecting these materials had arrived at the conclusion that the first information report registered at the instance of Uma Kant Shukla is based upon false allegations. No-one had beaten up from the side of the applicants to the complainant and his associates rather the complainant had assaulted the applicants side and only in order to take avenge, the case was registered after six months merely because the respondent no.2 was taken into custody and was sent to jail, the applicants have not committed any offence nor there is any proof of any such incident, medical report which has been prepared by the complainant and other persons after taking them on remand, there is no evidence of commission of any offence. This report clearly shows that it is not a further investigation rather it is re-investigation of the case in which charge sheet was already submitted by the investigating officer and the cognizance was already taken. The power to be exercised under section 173 (8) Cr.PC. is to seek permission for further investigation when fresh facts came into light but by collecting affidavits of the villagers at later stage clearly shows that it is a tacit device to give protection to the applicants.
15. It would be feasible to delineate section 173 (2) read with section 173 (8) Code of Criminal Procedure ;
"Section 173(2) in The Code of Criminal Procedure, 1973
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
Section 173(8) of The Code of Criminal Procedure, 1973
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2)."
16. From the bald reading of section 173 (2) and (8) Cr.P.C. it is evident that even after submission of police report under section 173 (2) Cr.P.C. the police has right to further investigation under section 173 (8) Cr.P.C. and not fresh investigation or re-investigation. Meaning of further investigation is collection of additional facts. Further investigation therefore, is continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab-initio. In the present case, charge sheet has already been submitted. It is expected from the investigating officer to further investigate into the matter to collect further material in continuation of the report earlier submitted but submitting further report by drawing conclusion that no offence is made out against the applicants that they have been falsely implicated clearly shows wiping out the earlier investigation altogether.
17. Having regard to the overall facts and circumstances of the case, it emerges out that the trial court has rightly held that further report so submitted by the investigating officer is unjust and against the provisions of law. The authorities relied upon by the learned counsel for the revisionists are based on different set of facts and circumstances of the case ,where after submission of the charge sheet, supplementary charge sheet was submitted .There is difference between the charge sheet and the final report. Once the Magistrate has accepted the report submitted by the police under section 173 (2) Cr.P.C.and had proceeded with the trial of the case, sub-section (8) of section 173 Cr.P.C. cannot be pressed in aid for collecting fresh evidence in the garb of further investigation, which really can be called in aid if further evidence is discovered after filing of the charge sheet or police report on the completion of the investigation.If such procedure is permitted under section 173 (8) Cr.P.C. it will be an easy tool in the hands of the investigating officer to take affidavits at later stage and submit final report in every case.
18. In the light of prolix and verbose discussion, this Court does not see any justifiable ground to interfere with the order dated 25.5.2016 passed by the passed by the Judicial Magistrate, Siddharth Nagar in Criminal Case No. 1475 of 2015 (State v. Bali Bhadra Nath Shukla and others) under sections 147/148/452/323/504/506/325 IPC Police Station Jogiya Udaipur, District Siddharth Nagar. The revision sans merits and is accordingly dismissed.
