Gobardhan Das and ors. Vs. State of Orissa - Court Judgment

SooperKanoon Citationsooperkanoon.com/532430
SubjectCriminal
CourtOrissa High Court
Decided OnSep-06-1999
Case NumberCriminal Misc. Case No. 4545 of 1998
JudgeP.K. Mohanty, J.
Reported in89(2000)CLT509; 2000CriLJ1641; 1999(II)OLR381
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 173(2) and 173(8)
AppellantGobardhan Das and ors.
RespondentState of Orissa
Appellant AdvocateA.K. Choudhury, H.K. Panigrahy, J. Dash, N.K. Sahu and N.C. Mohapatra
Respondent AdvocateAddl. Government Adv.
DispositionCase dismissed
Cases Referred and Chandrasekhar Mohanty and Ors. v. State
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. p.k. mohanty, j.1. this is a petition under section 482, cr.p.c. assailing reopening of the investigation by the investigating officer in g.r.case no. 1 13 of 1998 pending in the court of the learned s.d.j.m.. dhenkanal after submission of the charge-sheet.2. the short fact of the case is that on the basis of an fir, dhenkanal sadar p.s.case no. 42 of 1998 was registered under sections 147/148/354/323/294/307 read with section 149, ipc subsequently, the case turned to one under section 302, ipc and g.r.case no. 11 3 of 1998 was registered. the investigating officer after conducting the investigation and recording the statements of the eye-witnesses and other witnesses under section 161, cr.p.c. submitted a charge-sheet on 1.6.1998 before the learned magistrate against 24 accused persons citing 33 persons as charge-sheet witnesses. on 24.6.1998, the learned s.d.j.m. took cognizance of the offence under secs. 147/148/306/364/323/302 read with 149, ipc and n.b.ws. were issued against the absconders. the inspector of police, after cognizance was taken, intimated the court that as per the direction of the superintendent of police, dhenkanal he has reopened the investigation and further investigation was taken up and he forwarded another accused-petitioner in connection with the said case and the court was intimated that the charge-sheet would be submitted. later this intimation has been reflected in the later order of the magistrate dated 24.6.1998. as against this reopening of investigation/further interrogation, the petitioner has approached this court and prays for quashing the same.3. it is the submission of the learned counsel for the petitioners that after submission of the charge-sheet and when the cognizance is taken by the learned magistrate, if the investigating officer intends to further investigate the matter, he needs prior permission from the court under section 173(8) of the code of criminal procedure (hereinafter called as 'the code'). it is the further submission that once the report is accepted by the magistrate and cognizance is taken, it becomes a judicial order and hence the investigating officer in the garb of further investigation is not authorised to interfere with the judicial proceeding and in.other words, it amounts to interference with the judicial proceedings. it is further submitted that there is no positive material, which prompted the superintendent of police to direct reopening of the case and the same was on oblique motive to harass the petitioner and to help the informant, which otherwise will amount to interference with the judicial proceeding. the learned counsel has referred to the decision ram lai narang v. state (delhi admn.)reported in air 1979supreme court 1791 in support of his contention that reopening of investigation needs prior permission from the learned court below. the learned counsel has also referred to the decision in surendra sahoo and ors. v. the state of orissa : (1994) 7 ocr 139 and chandrasekhar mohanty and ors. v. state : (1993) 6 ocr 386.4. the hon'ble apex court in the aforesaid cases observed that in the interest of the independence of the magistracy and judiciary and in the interest of purity of administration of criminal justice, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. but however, the apex court has not taken the view that in absence of any formal permission, the further investigation becomes vulnerable.section 173(8) of the code reads thus :'173. report of police officer on completion of investigation :xxx xxx xxx(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 provisions of sub-secs. (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).'sub-section (8) of section 173 as quoted above is an addition to the old provision authorising the police officer for further investigation after the police files the report under section 173(2) of the code to the magistrate and the cognizance is taken. the aforesaid sub-section (8) of section 173 makes it abundantly clear that the investigating officer, even after submission of the charge-sheet, may make further investigation in the case and submit a further report or reports to the magistrate, if any additional evidence is discovered by him in course of further investigation. the subsequent report therefore has to be submitted after further investigation made by the police when it obtains further evidence relating to the offence. there is no provision in the code empowering an investigating officer to file a revise charge-sheet on the basis of the same materials on which the first report was filed. the section equally does not prohibit filing of a revised charge-sheet on the basis of same material. it is therefore clear that unless cognizance was taken on submission of the police report, the provision of sub-section (8) of section 173 cannot be attracted for collecting further evidence and if further evidence is discovered after filing of the charge-sheet, the investigating agency is called upon to forward a further report for consideration of the learned magistrate. in ram lai narang's case (supra) referred to by the learned counsel, the apex court has observed that notwithstanding the fact that the magistrate had taken a cognizance of the offence upon the police report submitted under section 173. the right of police to further investigate the matter is not extinguished and the police has exercised such right often as necessary when a fresh information comes to light. this court in surendra sahoo's case (supra), has held that where the police desires to make a further investigation, it should express its desire by seeking a formal permission to make further investigation, but however mere absence of such permission would not make the investigation and the report vulnerable. the same view has been taken in chandrasekhar mohanty's case (supra), wherein it has been held that in absence of a formal permission, the further investigation and submission of the charge-sheet is not vitiated.5. a conspectus of the decision referred to above is that where the police desires to make a further investigation, it should express its regard and respect in the court by seeking a formal permission to make further investigation, inasmuch as, it would ordinarily be desirable that the police should inform the court and seek further permission to make further investigation, when a fresh fact comes to light. in absence of a formal permission alone does not vitiate further investigation or submission of a further charge-sheet, if fresh facts come to light in case of further investigation. even if, further fresh material is discovered which calls for further investigation and if such investigation is not allowed, then such course would not be in furtherance of the cause of justice. it must also be remembered that an order accepting the final form or taking cognizance is subject to the powers of the investigating agency under section 173(8) of the code. a provision must be construed in a manner that advanced cause of justice and the interest of public, and therefore the further investigation in view of the specific provision of law has to be accepted as the mandate of law.6. in the case at hand, the investigating officer has intimated the learned magistrate that pursuant to the order of the superintendent of police, the case is reopened and further investigation is made and statements of witnesses are being recorded and the supplementary charge-sheet would be submitted later. in such view of the matter, neither the reopening of the case nor further investigation contemplated by the police can be construed as a measure contrary to the provision of sub-section (8) of section 173. moreover, undisputedly the magistrate has been informed of such a situation and no adverse order has been passed thereon. in any view of the matter, the power of the investigating agency for further investigation as contemplated under sub-section (8) of section 173 of the code cannot be doubted. even if the formal permission has not been accorded, the learned magistrate has been informed of the fact of further investigation inasmuch as while considering the further report of the supplementary charge-sheet, he is also required to consider the report and the accompanying materials before he takes decision either to take cognizance of the offence or not to take cognizance. in that view of the matter, since the magistrate is required to consider the report and take a decision, the investigating agency is not vested with unbridled power to reinvestigate and rope in any person without sufficient evidence to proceed against.7. before narting with this case, it must be emphasised and observed that this cou tell as the apex court in the cases referred to above have emphasised the necessity of a prior permission from the magistrate concerned for reopening of a case for further investigation under section 173(8) of the code after submission of the charge-sheet under section 173(2) of the code when the cognizance has been taken. but it appears that the investigating agency is not meticulously following the observation and the direction and therefore it is made clear that the investigating agency before proceeding with re-investigation of the case should obtain prior permission from the concerned magistrate.in the fact and situation of the case, i do not find any merit in the contention of the learned counsel for the petitioner to interfere in the matter, and therefore the same is dismissed.
Judgment:

P.K. Mohanty, J.

1. This is a petition Under Section 482, Cr.P.C. assailing reopening of the investigation by the Investigating Officer in G.R.Case No. 1 13 of 1998 pending in the Court of the learned S.D.J.M.. Dhenkanal after submission of the charge-sheet.

2. The short fact of the case is that on the basis of an FIR, Dhenkanal Sadar P.S.Case No. 42 of 1998 was registered Under Sections 147/148/354/323/294/307 read with Section 149, IPC Subsequently, the case turned to one Under Section 302, IPC and G.R.Case No. 11 3 of 1998 was registered. The Investigating Officer after conducting the investigation and recording the statements of the eye-witnesses and other witnesses Under Section 161, Cr.P.C. submitted a charge-sheet on 1.6.1998 before the learned Magistrate against 24 accused persons citing 33 persons as charge-sheet witnesses. On 24.6.1998, the learned S.D.J.M. took cognizance of the offence under Secs. 147/148/306/364/323/302 read with 149, IPC and N.B.Ws. were issued against the absconders. The Inspector of Police, after cognizance was taken, intimated the Court that as per the direction of the Superintendent of Police, Dhenkanal he has reopened the investigation and further investigation was taken up and he forwarded another accused-petitioner in connection with the said case and the Court was intimated that the charge-sheet would be submitted. Later this intimation has been reflected in the later order of the Magistrate dated 24.6.1998. As against this reopening of investigation/further interrogation, the petitioner has approached this Court and prays for quashing the same.

3. It is the submission of the learned counsel for the petitioners that after submission of the charge-sheet and when the cognizance is taken by the learned Magistrate, if the Investigating Officer intends to further investigate the matter, he needs prior permission from the Court under Section 173(8) of the Code of Criminal Procedure (hereinafter called as 'the Code'). It is the further submission that once the report is accepted by the Magistrate and cognizance is taken, it becomes a judicial order and hence the Investigating Officer in the garb of further investigation is not authorised to interfere with the judicial proceeding and in.other words, it amounts to interference with the judicial proceedings. It is further submitted that there is no positive material, which prompted the Superintendent of Police to direct reopening of the case and the same was on oblique motive to harass the petitioner and to help the informant, which otherwise will amount to interference with the judicial proceeding. The learned counsel has referred to the decision Ram Lai Narang v. State (Delhi Admn.)reported in AIR 1979Supreme Court 1791 in support of his contention that reopening of investigation needs prior permission from the learned Court below. The learned counsel has also referred to the decision in Surendra Sahoo and Ors. v. The State of Orissa : (1994) 7 OCR 139 and Chandrasekhar Mohanty and Ors. v. State : (1993) 6 OCR 386.

4. The Hon'ble Apex Court in the aforesaid cases observed that in the interest of the independence of the Magistracy and judiciary and in the interest of purity of administration of criminal justice, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. But however, the Apex Court has not taken the view that in absence of any formal permission, the further investigation becomes vulnerable.

Section 173(8) of the Code reads thus :

'173. Report of Police Officer on completion of investigation :

xxx xxx xxx

(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 provisions of Sub-secs. (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).'

Sub-section (8) of Section 173 as quoted above is an addition to the old provision authorising the police officer for further investigation after the police files the report Under Section 173(2) of the Code to the Magistrate and the cognizance is taken. The aforesaid Sub-section (8) of Section 173 makes it abundantly clear that the Investigating Officer, even after submission of the charge-sheet, may make further investigation in the case and submit a further report or reports to the Magistrate, if any additional evidence is discovered by him in course of further investigation. The subsequent report therefore has to be submitted after further investigation made by the police when it obtains further evidence relating to the offence. There is no provision in the Code empowering an Investigating Officer to file a revise charge-sheet on the basis of the same materials on which the first report was filed. The section equally does not prohibit filing of a revised charge-sheet on the basis of same material. It is therefore clear that unless cognizance was taken on submission of the police report, the provision of Sub-section (8) of Section 173 cannot be attracted for collecting further evidence and if further evidence is discovered after filing of the charge-sheet, the Investigating Agency is called upon to forward a further report for consideration of the learned Magistrate. In Ram Lai Narang's case (supra) referred to by the learned counsel, the Apex Court has observed that notwithstanding the fact that the Magistrate had taken a cognizance of the offence upon the police report submitted Under Section 173. the right of police to further investigate the matter is not extinguished and the police has exercised such right often as necessary when a fresh information comes to light. This Court in Surendra Sahoo's case (supra), has held that where the police desires to make a further investigation, it should express its desire by seeking a formal permission to make further investigation, but however mere absence of such permission would not make the investigation and the report vulnerable. The same view has been taken in Chandrasekhar Mohanty's case (supra), wherein it has been held that in absence of a formal permission, the further investigation and submission of the charge-sheet is not vitiated.

5. A conspectus of the decision referred to above is that where the police desires to make a further investigation, it should express its regard and respect in the Court by seeking a formal permission to make further investigation, inasmuch as, it would ordinarily be desirable that the police should inform the Court and seek further permission to make further investigation, when a fresh fact comes to light. In absence of a formal permission alone does not vitiate further investigation or submission of a further charge-sheet, if fresh facts come to light in case of further investigation. Even if, further fresh material is discovered which calls for further investigation and if such investigation is not allowed, then such course would not be in furtherance of the cause of justice. It must also be remembered that an order accepting the final form or taking cognizance is subject to the powers of the investigating agency Under Section 173(8) of the Code. A provision must be construed in a manner that advanced cause of justice and the interest of public, and therefore the further investigation in view of the specific provision of law has to be accepted as the mandate of law.

6. In the case at hand, the Investigating Officer has intimated the learned Magistrate that pursuant to the order of the Superintendent of Police, the case is reopened and further investigation is made and statements of witnesses are being recorded and the supplementary charge-sheet would be submitted later. In such view of the matter, neither the reopening of the case nor further investigation contemplated by the police can be construed as a measure contrary to the provision of Sub-section (8) of Section 173. Moreover, undisputedly the Magistrate has been informed of such a situation and no adverse order has been passed thereon. In any view of the matter, the power of the Investigating Agency for further investigation as contemplated under Sub-section (8) of Section 173 of the Code cannot be doubted. Even if the formal permission has not been accorded, the learned Magistrate has been informed of the fact of further investigation inasmuch as while considering the further report of the supplementary charge-sheet, he is also required to consider the report and the accompanying materials before he takes decision either to take cognizance of the offence or not to take cognizance. In that view of the matter, since the Magistrate is required to consider the report and take a decision, the investigating agency is not vested with unbridled power to reinvestigate and rope in any person without sufficient evidence to proceed against.

7. Before narting with this case, it must be emphasised and observed that this Cou tell as the Apex Court in the cases referred to above have emphasised the necessity of a prior permission from the Magistrate concerned for reopening of a case for further investigation Under Section 173(8) of the Code after submission of the charge-sheet Under Section 173(2) of the Code when the cognizance has been taken. But it appears that the Investigating Agency is not meticulously following the observation and the direction and therefore it is made clear that the Investigating Agency before proceeding with re-investigation of the case should obtain prior permission from the concerned Magistrate.

In the fact and situation of the case, I do not find any merit in the contention of the learned counsel for the petitioner to interfere in the matter, and therefore the same is dismissed.