Chikkanarasimhappa and anr. Vs. State by Srinivasapura Police Represented by Spp and anr. - Court Judgment

Excerpt:
code of criminal procedure, 1973 - section 173(8) - further investigation under - power of courts -commencement of trial - examination of witnesses - power of the state government to interfere in the investigation after the commencement of trial. - held, the code of criminal procedure does not preclude the investigating agency to make further investigation after filing of the charge sheet. normally the prosecution, informant or accused cannot claim further investigation as a matter of right except that of investigation officer or the incharge of a police station. normally it is not proper for the executive wing of the state government to interfere in the investigation of the case when the trial is commenced. - further held, it is not the case of the prosecution that the concerned investigation officer i.e., deputy superintendent of police, mulbagal has come forward to say that he has collected further oral or documentary evidence. now at the stage of trial, the government wants to transfer the investigation from one investigating agency to another investigating agency, even though there is no allegation made against the existing investigating agency. on facts, held, the trial court has examined almost all the material witnesses of the case and in the absence of allegation about dishonest investigation by the investigating agency and in the absence of not collecting further evidence of oral or documentary it is not proper to grant permission for further investigation just because the material witnesses have turned hostile. -hence, the order passed by the trial court granting permission to further investigate the matter, after the commencement of trial cannot be sustained and the same is setaside.;criminal revision petition is allowed. - karnataka law officers (appointment and conditions of service) rules, 1977. rule 29(3): [cyriac joseph, c.j.& b.s. patil,j] consultation with the district judge -whether the opinion of the district judge will have a binding force on the government ? held, what is required under rule 26(3) is consultation with the district judge and that the opinion of the district judge is not stated to be binding on the government. but the government is bound to consider the remarks of the district judge. the government cannot dispense with the consultation itself. - 5. heard the learned counsel for the petitioner as well as learned advocate general and perused the case dairy. in the instant case, the trial has been commenced and three witnesses have been examined and thereafter the district judge issued official memo to the investigating officer as well as to the magistrate concerned to pursue the matter and made the investigating officer to file additional charge sheet, in the case of chandrashekar mohanty and ors.orderc.r. kumaraswamy, j.1. this criminal revision petition is filed under section 397 cr.pc by the learned counsel for the petitioners praying to set aside the order dated 22.11.2007 passed in spl.c.c. no. 53/2006 on the file of the ii addl. district and sessions judge, kolar and to dismiss the said application.2. brief facts leading to this proceedings are as follows.that on 29.09.2006, when v. ramesh, s/o venkateshappa was tilling the land bearing survey no. 15 at about 5.30 to 6.00 p.m. accused no. 8 gangadhara and others came to the land and formed themselves into an unlawful assembly and assaulted v. ramesh and consequently he died. the deceased father sri. venkateshappa lodged a complaint before the srinivasapura police station. the deputy superintendent of police, mulbagal investigated the case and submitted the chargesheet before the committal court. later on the local mla raised the subject matter in the assembly and the home minister directed the deputy superintendent of police, chikkaballapura to further investigate the matter. thereafter, the deputy superintendent of police, chikkaballapur took up the investigation and submitted the final report stating that the investigation made by the deputy superintendent of police, mulbagal as proper. then the trial court fixed the trial. that on 04.09.2007, the public prosecutor filed a petition seeking permission to further investigate the case by the cod police under section 173(8) of criminal procedure code. the said petition filed by the prosecutor was dismissed vide order dated 24.09.2007. the state has not preferred any revision against the said order. thereafter, on 03.11.2007 five chargesheet witnesses were examined and they have not supported the case of the prosecution. on 21.11.2007 two prosecution witnesses were examined and again on 22.11.2007, two prosecution witnesses were examined. the learned prosecutor has filed a memo seeking permission to further investigate the matter. the learned judge allowed the said application on the same day i.e., 22.11.2007. the trial court again fixed the trial from 05.11.2007 to 07.12.2007.3. aggrieved by the order of the learned judge, accused no. 11 and 12 who are the petitioners herein have preferred this revision petition challenging the order dated 22.11.2007.4. sri. d. venkateshappa, s/o munivenkatappa, has submitted a petition to his excellency governor of karnataka. it is stated in his petition that he is the complainant and resident of aachampalli majaramanaganahalli, srinivasapura taluk, kolar district. he has stated that on 29.09.2006, the accused persons abused him touching his caste and his son v. ramesh was murdered in his presence and in this regard he lodged a complaint in the srinivasapura police station. the investigation was completed and the chargesheet was filed and the case was pending before the ii addl. district and sessions judge, kolar district.he further states that when the incident took place his wife i.e., the deceased mother and his daughter-in-law were present and they saw the incident. even though they have given statement before the investigation officer, the same was not been considered by the investigating agency. they have investigated the case tilting on one side and they have suppressed the fact in order to help the accused. they have also not sent the persons by name jayaramegowda and his father venkataravanappa for trial and their names have been omitted in the chargesheet. the accused belongs to the upper caste and they are highly influential persons and they have tampered the prosecution witnesses. he further states that this incident has taken place between lower caste and upper caste persons. he further states that his son was murdered and they are also trying to tamper the prosecution witnesses. they are also making efforts to bring political pressure on the public prosecutor. therefore, he seeks for transparent investigation and request to hand over the investigation to cod.during the debate in the legislative assembly, the hon'ble member sri. k.r. ramesh kumar requested the government to hand over the crime no. 191/2006 to cod. at that particular point of time, the hon'ble home minister assured that the investigation will be handed over to the cod. therefore, the government vide proceedings date 14.11.2007 directed cod to conduct further investigation in this case and to submit the report to the court and the government. it is stated in the requisition filed by the deputy superintendent of police, cod, special inquiries that in the first information report, 9 accused were mentioned and accused no. 1-jayarama reddy, accused no. 2 - venktaravanappa, accused no. 3 - k. rajashekara reddy and accused no. 9 - ramanjeneya reddy were not sent for trial. therefore, the state government after carefully examining the records ordered for further investigation under section 173(8) of the code of criminal procedure.5. heard the learned counsel for the petitioner as well as learned advocate general and perused the case dairy.6. learned counsel for the petitioner submitted that it is not stated in the proceedings of the government that the investigation conducted by the investigating agency is dishonest and the cod has not collected any additional evidence to show that fresh materials arc there to make further investigation. the complainant has successfully attempted to have the second round of investigation even though the investigation conducted by the investigating agency was fair and proper. as on the date of filing of the requisition, 9 witnesses were examined and therefore at this stage, ordering for further investigation is not proper.7. the state has not opposed the revision petition very seriously.8. at the first instance, the crime no. 191/2006 of srinivaspur police station was investigated by deputy superintendent of police, mulbagal and he laid the charge sheet. since the local mla moved this matter before the hon'ble home minister, the investigation was taken over from deputy superintendent of police, mulbagal and handed over to deputy superintendent of police, chikkaballapur. thereafter, he laid the charge sheet before the committal court. the deputy superintendent of police, chikkaballapur examined the case dairy and other papers and came to the conclusion that the investigation made by the deputy superintendent of police, mulbagal was proper.9. learned counsel for the petitioner submitted that the accused persons who have not sent for trial were the advocates practicing at srinivasapur. he further submitted that on the date of incident they were in the court and to that effect resolution of the bar has also been passed. therefore, the investigating agency after ascertaining these facts have not sent the accused no. 1 and his father accused no. 2 for trial.10. learned counsel for the petitioner relied on the following decisions:in the case of s.n. dube v. n.b. bhoir and ors. 2000 scc (cri) 343 learned counsel for the petitioner invited my attention to para 10 page 355 which reads as follows:the trial court was also not right in holding that suradkar got reinvestigation done with some oblique motive because in the complaint (ext. 237) it was not specifically stated that the investigation made by the police officers till then was not honest. the complaint does indicate that the investigation made till then was not honest. it should have been appreciated that the dube brothers, in the position in which they were placed at that time, could not have specifically alleged that the previous investigation was dishonest. so also from the fact that in the application made to the court for permission to reinvestigate it was not stated that the previous investigation was not honest, no inference of oblique motive could have been legitimately inferred. the application did refer to the complaint made by the dube brothers. without further investigation no charge of dishonesty could have been levelled against the police officers associated with the earlier investigation at that stage. therefore, deshmukh could not have mentioned in the application that permission to reinvestigate was sought as the previous investigation was not honest.in the case of sadhu narayana v. station house officer, 1st town police station, kadapa of the said decision reads as follows:the apex court in randhir singh rana v. state (delhi administration) : 1997crilj779 , held that the court can direct further investigation at the time of cognizance and after cognizance is taken. but after appearance of the accused and after commencement of trial on charge being framed, the court is not empowered to order further investigation. after appearance of the accused and after commencement of the trial, the court can only look into the material already on the record and either frame charge, if a prima facie case is made out or discharge the accused bearing in mind relevant provisions. of course, the discharge of the accused would not prevent further investigation by police and submission of charge sheet also thereafter, if a case for the same is made out. no doubt, police has got independent power to make further investigation and file any number of additional charge sheets, but the court cannot order further investigation after commencement of trial. in the instant case, the trial has been commenced and three witnesses have been examined and thereafter the district judge issued official memo to the investigating officer as well as to the magistrate concerned to pursue the matter and made the investigating officer to file additional charge sheet,in the case of chandrashekar mohanty and ors. v. state , the gist of para 7 reads as follows:.in our view, notwithstanding that a magistrate had taken cognizance of the offence upon a police report submitted under section 173 of the 1898 code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.11. learned advocate general has relied on the decision of the supreme court in the case of sri. bhagwan samardha sreepada vallabha venkata vishwanandha maharaj v. state of andhra pradesh and ors. 1999 scc (cri) 1047, wherein the hon'ble supreme court held in head note b. criminal procedure code, 1973 - section 173(8) - power of court to direct the police to conduct further investigation - court not obliged to hear the accused before making such direction.12. the code of criminal procedure does not preclude the investigating agency to make further investigation after filing of the charge sheet. normally the prosecution, informant or accused cannot claim further investigation as a matter of right except that of investigation officer or the incharge of a police station. no fresh materials have come to light to re-open the case. normally it is not proper for the executive wing of the state government to interfere in the investigation of the case when the trial is commenced. it is not the case of the prosecution that the concerned investigation officer i.e., deputy superintendent of police, mulbagal has come forward to say that he has collected further oral or documentary evidence. now at the stage of trial, the government wants to transfer the investigation from one investigating agency to another investigating agency, even though there is no allegation made against the existing investigating agency. as stated earlier, 11 witnesses have been examined but since the witnesses have turned hostile, the complainant is making one attempt or another to have the case further investigated. it may not be proper to cast aspiration on the investigating agency when that investigating agency carries on the investigation in an impartial and proper manner. when the witnesses have turned hostile, the proper course is open for the trial court to take action against the witnesses who have turned hostile, if there is sufficient material to do so.13. i have carefully perused the impugned order. considering the rival contentions of the parties and also applying the principles laid down in the above mentioned decisions, since the trial court has examined almost all the material witnesses of the case and in the absence of allegation about dishonest investigation by the investigating agency and in the absence of not collecting further evidence of oral or documentary at this stage, in my view it is not proper to grant permission for further investigation just because the material witnesses have turned hostile. in these circumstances, i am of the opinion that the order passed by the trial court on 22.11.2007 requires to be set aside.14. in view of the above discussion, i pass the following:

Judgment:
ORDER

C.R. Kumaraswamy, J.

1. This Criminal Revision Petition is filed under Section 397 Cr.PC by the Learned Counsel for the petitioners praying to set aside the order dated 22.11.2007 passed in Spl.C.C. No. 53/2006 on the file of the II Addl. District and Sessions Judge, Kolar and to dismiss the said application.

2. Brief facts leading to this proceedings are as follows.

That on 29.09.2006, when V. Ramesh, S/o Venkateshappa was tilling the land bearing survey No. 15 at about 5.30 to 6.00 p.m. accused No. 8 Gangadhara and others came to the land and formed themselves into an unlawful assembly and assaulted V. Ramesh and consequently he died. The deceased father Sri. Venkateshappa lodged a complaint before the Srinivasapura Police Station. The Deputy Superintendent of Police, Mulbagal investigated the case and submitted the chargesheet before the committal Court. Later on the local MLA raised the subject matter in the assembly and the Home Minister directed the Deputy Superintendent of Police, Chikkaballapura to further investigate the matter. Thereafter, the Deputy Superintendent of Police, Chikkaballapur took up the investigation and submitted the final report stating that the investigation made by the Deputy Superintendent of Police, Mulbagal as proper. Then the trial Court fixed the trial. That on 04.09.2007, the public prosecutor filed a petition seeking permission to further investigate the case by the COD police under Section 173(8) of Criminal Procedure Code. The said petition filed by the prosecutor was dismissed vide order dated 24.09.2007. The State has not preferred any revision against the said order. Thereafter, on 03.11.2007 five chargesheet witnesses were examined and they have not supported the case of the prosecution. On 21.11.2007 two prosecution witnesses were examined and again on 22.11.2007, two prosecution witnesses were examined. The Learned Prosecutor has filed a memo seeking permission to further investigate the matter. The Learned Judge allowed the said application on the same day i.e., 22.11.2007. The Trial Court again fixed the Trial from 05.11.2007 to 07.12.2007.

3. Aggrieved by the order of the Learned Judge, accused No. 11 and 12 who are the petitioners herein have preferred this revision petition challenging the order dated 22.11.2007.

4. Sri. D. Venkateshappa, S/o Munivenkatappa, has submitted a petition to His Excellency Governor of Karnataka. It is stated in his petition that he is the complainant and resident of Aachampalli Majaramanaganahalli, Srinivasapura Taluk, Kolar District. He has stated that on 29.09.2006, the accused persons abused him touching his caste and his son V. Ramesh was murdered in his presence and in this regard he lodged a complaint in the Srinivasapura Police Station. The investigation was completed and the chargesheet was filed and the case was pending before the II Addl. District and Sessions Judge, Kolar District.

He further states that when the incident took place his wife i.e., the deceased mother and his daughter-in-law were present and they saw the incident. Even though they have given statement before the Investigation Officer, the same was not been considered by the Investigating agency. They have investigated the case tilting on one side and they have suppressed the fact in order to help the accused. They have also not sent the persons by name Jayaramegowda and his father Venkataravanappa for Trial and their names have been omitted in the chargesheet. The accused belongs to the upper caste and they are highly influential persons and they have tampered the prosecution witnesses. He further states that this incident has taken place between lower caste and upper caste persons. He further states that his son was murdered and they are also trying to tamper the prosecution witnesses. They are also making efforts to bring political pressure on the public prosecutor. Therefore, he seeks for transparent investigation and request to hand over the investigation to COD.

During the debate in the Legislative Assembly, the Hon'ble Member Sri. K.R. Ramesh kumar requested the Government to hand over the crime No. 191/2006 to COD. At that particular point of time, the Hon'ble Home Minister assured that the investigation will be handed over to the COD. Therefore, the Government vide proceedings date 14.11.2007 directed COD to conduct further investigation in this case and to submit the report to the Court and the Government. It is stated in the requisition filed by the Deputy Superintendent of Police, COD, Special Inquiries that in the First Information Report, 9 accused were mentioned and accused No. 1-Jayarama Reddy, accused No. 2 - Venktaravanappa, accused No. 3 - K. Rajashekara Reddy and accused No. 9 - Ramanjeneya Reddy were not sent for trial. Therefore, the State Government after carefully examining the records ordered for further investigation under Section 173(8) of the Code of Criminal Procedure.

5. Heard the Learned Counsel for the petitioner as well as learned Advocate General and perused the case dairy.

6. Learned Counsel for the petitioner submitted that it is not stated in the proceedings of the Government that the investigation conducted by the Investigating agency is dishonest and the COD has not collected any additional evidence to show that fresh materials arc there to make further investigation. The complainant has successfully attempted to have the second round of investigation even though the investigation conducted by the Investigating agency was fair and proper. As on the date of filing of the requisition, 9 witnesses were examined and therefore at this stage, ordering for further investigation is not proper.

7. The State has not opposed the revision petition very seriously.

8. At the first instance, the Crime No. 191/2006 of Srinivaspur Police Station was investigated by Deputy Superintendent of Police, Mulbagal and he laid the charge sheet. Since the local MLA moved this matter before the Hon'ble Home Minister, the investigation was taken over from Deputy Superintendent of Police, Mulbagal and handed over to Deputy Superintendent of Police, Chikkaballapur. Thereafter, he laid the charge sheet before the Committal Court. The Deputy Superintendent of Police, Chikkaballapur examined the case dairy and other papers and came to the conclusion that the investigation made by the Deputy Superintendent of Police, Mulbagal was proper.

9. Learned Counsel for the petitioner submitted that the accused persons who have not sent for trial were the advocates practicing at Srinivasapur. He further submitted that on the date of incident they were in the Court and to that effect resolution of the bar has also been passed. Therefore, the investigating agency after ascertaining these facts have not sent the accused No. 1 and his father accused No. 2 for trial.

10. Learned Counsel for the petitioner relied on the following decisions:

In the case of S.N. Dube v. N.B. Bhoir and Ors. 2000 SCC (Cri) 343 Learned Counsel for the petitioner invited my attention to para 10 page 355 which reads as follows:The Trial Court was also not right in holding that Suradkar got reinvestigation done with some oblique motive because in the complaint (Ext. 237) it was not specifically stated that the investigation made by the police officers till then was not honest. The complaint does indicate that the investigation made till then was not honest. It should have been appreciated that the Dube brothers, in the position in which they were placed at that time, could not have specifically alleged that the previous investigation was dishonest. So also from the fact that in the application made to the Court for permission to reinvestigate it was not stated that the previous investigation was not honest, no inference of oblique motive could have been legitimately inferred. The application did refer to the complaint made by the Dube brothers. Without further investigation no charge of dishonesty could have been levelled against the police officers associated with the earlier investigation at that stage. Therefore, Deshmukh could not have mentioned in the application that permission to reinvestigate was sought as the previous investigation was not honest.

In the case of Sadhu Narayana v. Station House Officer, 1st Town Police Station, Kadapa of the said decision reads as follows:

The Apex Court in Randhir Singh Rana v. State (Delhi Administration) : 1997CriLJ779 , held that the Court can direct further investigation at the time of cognizance and after cognizance is taken. But after appearance of the accused and after commencement of trial on charge being framed, the Court is not empowered to order further investigation. After appearance of the accused and after commencement of the trial, the Court can only look into the material already on the record and either frame charge, if a prima facie case is made out or discharge the accused bearing in mind relevant provisions. Of course, the discharge of the accused would not prevent further investigation by police and submission of charge sheet also thereafter, if a case for the same is made out. No doubt, police has got independent power to make further investigation and file any number of additional charge sheets, but the Court cannot order further investigation after commencement of trial. In the instant case, the trial has been commenced and three witnesses have been examined and thereafter the District Judge issued official memo to the investigating officer as well as to the Magistrate concerned to pursue the matter and made the investigating officer to file additional charge sheet,

In the case of Chandrashekar Mohanty and Ors. v. State , the gist of para 7 reads as follows:.In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.

11. Learned Advocate General has relied on the decision of the Supreme Court in the case of Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of Andhra Pradesh and Ors. 1999 SCC (Cri) 1047, wherein the Hon'ble Supreme Court held in head note B. Criminal Procedure Code, 1973 - Section 173(8) - Power of Court to direct the police to conduct further investigation - Court not obliged to hear the accused before making such direction.

12. The code of Criminal Procedure does not preclude the investigating agency to make further investigation after filing of the Charge Sheet. Normally the prosecution, informant or accused cannot claim further investigation as a matter of right except that of Investigation Officer or the incharge of a police station. No fresh materials have come to light to re-open the case. Normally it is not proper for the executive wing of the State Government to interfere in the investigation of the case when the trial is commenced. It is not the case of the prosecution that the concerned investigation officer i.e., Deputy Superintendent of Police, Mulbagal has come forward to say that he has collected further oral or documentary evidence. Now at the stage of trial, the Government wants to transfer the investigation from one investigating agency to another investigating agency, even though there is no allegation made against the existing investigating agency. As stated earlier, 11 witnesses have been examined but since the witnesses have turned hostile, the complainant is making one attempt or another to have the case further investigated. It may not be proper to cast aspiration on the investigating agency when that investigating agency carries on the investigation in an impartial and proper manner. When the witnesses have turned hostile, the proper course is open for the Trial Court to take action against the witnesses who have turned hostile, if there is sufficient material to do so.

13. I have carefully perused the impugned order. Considering the rival contentions of the parties and also applying the principles laid down in the above mentioned decisions, since the Trial Court has examined almost all the material witnesses of the case and in the absence of allegation about dishonest investigation by the investigating agency and in the absence of not collecting further evidence of oral or documentary at this stage, in my view it is not proper to grant permission for further investigation just because the material witnesses have turned hostile. In these circumstances, I am of the opinion that the order passed by the Trial Court on 22.11.2007 requires to be set aside.

14. In view of the above discussion, I pass the following: