Judgment:
ORDER
T. Vaiphei, J.
1. The short but interesting question which falls for consideration in this criminal petition presented under Section 482, Code of Criminal Procedure, 1973 (Cr. P.C.) is whether the petitioner, who has been discharged by Magistrate on the report purportedly filed by the police under Section 169, Cr. P.C. can be subjected to further investigation by the police. The petitioner, who is implicated in connection with Shillong Sadar P.S. Case No. 86(5)09 Under Section 120-B/224/333, IPC, was discharged by the learned Chief Judicial Magistrate, Shillong in her order dated 5-6-2009, which is as follows:
Date 5-6-2009.
C.R. put up today. Seen and perused discharged report from liabilities of the instant case against accused person, Shri Thomas Nongtdu from S.I. K.R. Marak, I.O. of the case dated 5-6-2009.
S. I. Marak, vide report above, submits that the accused named above, who was arrested and forwarded before this Court on 4-6-2009 was thoroughly interrogated and during interrogation it transpires that:
1. The accused is having good background and is presently holding the post as MDC of JHADC.
2. That the accused is in the habit of helping people who came to him for donation in need for the expenditure due to suffering/illness and Social cause.
3. That the lady who came to him told him about her mother who is suffering from chronic disease as she came to learn that the accused used to help the needy people.
4. That the accused is having no past criminal records.
That under the above circumstances and further that during investigation, no prima facie case about the involvement of the accused could not be established nor any evidence is forthcoming to establish his involvement. Hence I.O. prays for discharging the accused person Shri Thomas Nongtdu from liabilities of the instant case.
In view of the fact stated above and that the I.O. is finding that the accused Shri Thomas Nangtdu is not involving in this case. This Court deem it fit and proper to accept the prayer of the I.O. and accordingly the accused person Thomas Nangtdu is discharged from liabilities of the case and the case against him is disposed of. Sd/-Smt. M. B. Challam,Chief Judicial Magistrate,Shillong Court.
2. Some fourteen days later, the same Magistrate passed another order, which is impugned herein, and the same reads thus:
Date 19-6-2009.
Seen copy of the order of S.P., East Khasi Hills, Shillong, Memo No. S/C/15/2008-09/321-A dated Shillong the 17th June 2009 that inspector K. Prasad Officer-in-Charge, Sadar P.S. is directed to investigate the case in place of Sub-Inspector K. R. Marak of Shtllong P.S.
Keep the copy of the above order in the file.
Later,
Seen prayer of the I.O. Insp. K. Prasad dated 19th June 2009 for reasons stating therein, pray for adding Section 225, IPC r/w Section 25(I-B)/27 Arms Act which is allowed.
Later,
Seen and perused prayer of the I.O. Insp. K. Prasad, Shillong Sadar P.S. for the reasons stating therein, for re-opening of the case against Shri Thomas Nongtdu which is allowed. Also stating therein that for ready reference in connection with this instant case enclosed the Newspaper clipping. Place the same accoringly in the file.
And in the light of the above, the case against Shri Thomas Nongtdu is allowed to re-open. Sd/-Smt. M. B. Challam, Chief Judicial Magistrate,Shillong Court.
3. Considering the nature of controversy and the contentions advanced by the learned Counsel on behalf of the rival parties, it is not necessary to refer to the facts of the case. Mr. J. M. Choudhury, the learned senior counsel for the petitioner, vehemently attacks the decision of the learned Magistrate in re-opening the case when she has already discharged the petitioner from the case. According to the learned senior counsel, the order dated 5-6-2009 discharging the petitioner from the case is a judgment or, at any rate, a final order within the meaning of Section 362, Cr. P.C. and the learned Magistrate is thus barred from re-opening the case inasmuch as such exercise is tantamount to review of her order. The learned Magistrate, so submits the learned senior counsel, has completely overlooked the glaring fact that by discharging the petitioner from the case, a vested right has accrued to the latter thereby practically granting him immunity from further investigation. The learned senior, counsel maintains that the petitioner is innocent, and has been unnecessarily implicated in the case and that even if the FIR or the report of the I.O., are taken at their face value also, the allegations made therein do not make out a prima facie case. Therefore, he strenuously urged this Court to quash the impugned order and proceedings against the petitioner. On the other hand, Mr. N. D. Chullai, the learned Public Prosecutor, supports the impugned order and submits that an order of discharge is merely an interlocutory order and cannot be equated with an order of acquittal precluding further investigation or fresh trial. It is his contention that the impugned order cannot by any stretch of imagination be construed as a judgment or final order so as to attract the embargo of Section 362, Cr. P.C. Contending that the criminal petition is premature and is otherwise without any merit, he prays for dismissal of the criminal petition.
4. Before proceeding further, to understand the controversy, it may be beneficial to refer to Chapter XIV of Cr. P.C. which relates to information to the police and their powers to investigate and the supervisory powers of the Magistrate having jurisdiction over the area, which include the power to take cognizance of offences. The Code of Criminal Procedure provides not merely judicial enquiry into or trial of alleged offences but also for prior investigation thereof. Section 5 of the Code provides that all offences under Indian Penal Code shall be investigated, inquired into and tried and otherwise dealt with in accordance with the provisions hereinafter contained. For the purposes of investigation, offences are divided into two categories, 'cognizable' and 'non-cognizable'. When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on investigation. In case of non-cognizable offence, the officer shall not investigate without the permission of a competent Magistrate. According to the scheme of the Code, investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts on an information relating to commission of a cognizable offence given to an officer-in-charge of Police Station and recorded under Section 154 of the Code. Section 155 similarly deals with information relating to a non-cognizable offence. Sub-section (2) of this section prohibits a police officer from investigating a non-cognizable offence without the order of Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable offence without the order of a Magistrate. Sub-section (3) of Section 156 provides for any Magistrate, empowered under Section 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer-in-charge of a police station, after sending a report to a Magistrate, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b) of the proviso to Section 157(1) gives discretion to the police officer not to investigate the case, if it appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent under Section 157. Section 159 gives powers to a Magistrate, on receiving a report under Section 157, either to direct an investigation or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 - 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches during an investigation under the circumstances mentioned therein. Section 167 provides for the procedure to be adopted by the police when investigation cannot be completed within 24 hours. Section 168 provides for a report being sent to the officer-in-charge of a police station, when such investigation has been made by a subordinate police officer, under Chapter XIV, Section 169 authorizes a police officer to release a person from custody, on his executing a bond, to appear if and when so required before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer-in-charge marking the investigation, that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer-in-charge of a police station, after investigation under Chapter XIV, and if it appears to him that there is sufficient evidence to forward the accused under custody to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in the section. Section 173 provides for an investigation under Chapter XIV to be completed without unnecessary delay and also makes it obligatory, on the officer-in-charge of the police station to send a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars. At this stage, I may reproduce hereunder the provision of Sections 169 and 170 of the Code as understanding them are likely to be crucial for deciding the controversy herein.
169. Release of accused when evidence deficient.- If. upon an investigation under this Chapter, if it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.
170. Cases to be sent to Magistrate when evidence sufficient.- (1) If upon an investigation under this Chapter, if it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or to commit for trial, or, if the offence is bailable and the accused is able to give security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the person who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as hereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
5. It may be noted that the Code of Criminal Procedure as such does not use. the expression 'charge-sheet' or 'final report', but it is understood that a report filed by the police under Section 170 of the Code is referred to as a 'charge-sheet' while a report submitted under Section 169 i.e. when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, is termed as 'final report' (see Abhinandan Jha v. Dinesh Mishra : AIR 1968 SC 117 : 1968 Cri LJ 97. In Abhinandan Jha (supra), the Apex Court also held that both the final report and the charge-sheet are to be submitted to the Magistrate under Sub-section (1) of Section 173 and that Sub-section (3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by Section 169), the Magistrate shall make 'such order for the discharge of such bond or otherwise as he thinks fit.' The position is lucidly summed up by the Allahabad High Court in the case Pradyum Nariairi Pandey v. State 1968 All LJ 768 in the following manner:
Even if a Magistrate is held to exercise judicial function in taking cognizance of a case, there does not appear to us to be any bar to his taking cognizance of a. case on second thought after having accepted the final report once. The order approving the report under Section 169 of Cr. P.C. is not an order of acquittal and Section 403 of Cr. P.C. (corresponding to Section 300 of the new Code) can possibly have no application.
6. What is obvious from the foregoing discussion is that even if the final report sub-emitted by the police under Section 169, Cr. P.C. has been accepted by the Magistrate also, it is open to him to take cognizance subsequently, on the basis of the further investigation ordered by him under Section 173(8) Cr. P.C. In other words, after receiving a report from the police and after further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under Section 190(1)(c) notwithstanding the opinion of the police expressed in the final report of of his earlier acceptance thereof. If that is the correct legal position, which, I think it is. then, a fortiori, the learned Chief Judicial Magistrate. Shillong is not barred from ordering re-opening the case against the petitioner. This cannot by any stretch of imagination be construed to be reviewing or altering a Judgment or final order within the meaning of Section 362, Cr. P.C. A case, somewhat similar to this case came up for consideration before the Apex Court in Union Public Service Commission v. S. Papaiah reported in : (1997) 7 SCC 614 : 1997 Cri LJ 4636. In that case, the appellant had communicated to the Director, CBI certain defects in the investigation on 23-1-1995 and had pointed out as many as six shortcomings necessitating reinvestigation but the CBI did not bring that fact to the notice of the Vth Metropolitan Magistrate while submitting the final report on 24-2-1995 before the Magistrate decided to accept the final report submitted by the CBI and closed the file on 16-3-1995. According to the Apex Court, the withholding of vital information from the learned Metropolitan Magistrate while re-submitting the final report along with various documents on 24-2-1995, for reasons best known to the investigating officer, has created a doubt in their minds about the fairness on the part of the investigating officer while undertaking the investigations. Had the contents of the communication of the appellant dated 23-1-1995 been brought to the notice of the learned Magistrate, the possibility that he might not have agreed to drop the proceedings could not be ruled out. This 'lapse', deliberate or inadvertent, according to the Apex Court, also rendered the order of 16-3-1993 bad. It would appear that the appellant thereafter brought the contents of its communication dated 23-1-1995 to the notice of the learned Metropolitan Magistrate through its Miscellaneous Petition No. 2040 of 1995: seeking 'reinvestigation' but the learned Magistrate rejected the petition vide the order-dated 4-11-1995 observing that 'rightly or wrongly that Court had passed an order and it had no power to review the earlier order'. The Apex Court then said at paragraph 13:.Here again, the learned Magistrate fell into error. He was not required to 'review' his order. He could have ordered 'further investigation' into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also. That provision reads:173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (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 provision of Sub-sections (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 Sub-section (2).
The Magistrate could, thus in exercise of the powers under Section 173(8) Cr. P.C. 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, Cr. P.C. The learned Magistrate failed to exercise jurisdiction vested in him by law and his order dated 4-11-1995 cannot be sustained.
7. A perusal of the afore-cited case, however, reveals that the case is on the refusal of the learned Metropolitan Magistrate to order further investigation on the ground that an order of discharge had been rightly or wrongly passed by another Metropolitan Magistrate, which could not be reviewed by him. Nevertheless, in my judgment, the underlying principle therein is squarely applicable to this case where the legality of the order of the learned Chief Judicial Magistrate, Shillong is questioned on the ground that she, having discharged the petitioner once, is precluded from ordering further investigation or 're-opening' of the case as that would amount to review or alteration of her earlier order within the mischief of Section 362, Cr. P.C. In the instant case, for some reason, the Superintendent of Police, Shillong replaced Sub-Inspector K. R. Marak of Shillong Sadar P.S. the investigating officer by Sub-Inspector K. Prasad, Officer in-Charge of Shillong Sadar P.S. to investigate the case, who apparently, on taking over the investigation, sought for addition of some more offences to be charged against the petitioner. It was on the aforesaid situation that the new investigating officer moved the learned Chief Judicial Magistrate, Shillong for permission to re-open the case. It is thus not even a case of re-investigation or fresh investigation. The learned Chief Judicial Magistrate rightly granted the permission. There is thus no case of improper exercise of jurisdiction by her in passing the impugned order. On the contrary, had she refused such permission, such refusal would have amounted to acting contrary to the observations made by the Apex Court in S. Papaiah : 1997 Cri LJ 4636 (supra).
8. The result of the foregoing discussion is that there is no merit in this criminal petition, which is hereby dismissed. However, considering the facts and circumstances of the case, the parties are directed to bear their respective costs.