Kashi Ram Vs. the State of Rajasthan - Court Judgment

Excerpt:
penal code - section 408 and criminal procedure code - section 173(8)--magistrate directing further investigation in particular manner--held, magistrate can direct further investigation but opinion of magistrate would not come in way of investigating agency in further investigation of matter in particular manner.;the learned magistrate has directed the investigating agency to further investigate the matter and to submit the report. in doing so, the court has not committed any illegality. but while directing the investigating agency to further investigate the case, the learned lower court should not have asked the investigating agency to proceed in a particular manner, rather the court would have only directed the investigating agency to further investigate the matter and to submit its report. a further investigation in the present case, in my opinion, is necessary in the interest of justice so that the truth may be known and the full facts may come on record.;in this view of the matter, the directions given by the learned magistrate, directing the investigating agency to further investigate the matter, does not require any interference. but, however, the opinion expressed by the learned magistrate will not come in the way of the investigating agency to further investigate the matter in a particular manner.;order accordingly. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. b.r. arora, j.1. this miscellaneous petition is directed against the order dated december 11, 1989, passed by the munsif and judicial magistrate, bhadra, by which the learned magistrate sent the case relating to f.i.r. no. 121 of 1985 for further investigation to the police.2. sukhpal singh, supervisor, bhadra kraya vikraya sahkari samiti, bhadra, submitted a report on june 21, 1985, at the police station, bhadra, for embezzlement of a sum of rs. 34,795/- against aad ram, kashi ram and bharat singh. on the basis of this complaint, first information report no. 121 of 1985 was registered under section 408 i.p.c. against these accused-persons. the investigation in this case was conducted by the c.i.d., c.b, cooperative embezzlement section, bikaner range, bikaner. the police, after necessary investigation, submitted a challan against aad ram, kashi ram and bharat singh in the court of the munsif and judicial magistrate, bhadra. the learned magistrate, after considering the report submitted by the inspector, c.i.d., came to the conclusion that the investigation conducted by the c.i.d. is not complete and he, therefore, sent the case for further investigation to the inspector, c.i.d. with certain directions. it is against this order, sending the case for further investigation with some directions, that the present petition has been filed.3. heard learned counsel for the petitioner and the learned public prosecutor.4. it is contended on behalf of the petitioner that the learned magistrate, though was competent to direct the investigating agency to re-investigate the case but he should not have expressed any opinion in his order, ordering for the re- investigation. as the learned magistrate has expressed the opinion in the order and directed the investigating agency to conduct the investigation in a particular manner, therefore the order dated december 11, 1989, passed by the learned magistrate deserves to be quashed and set-aside, and the proceedings, pending in the court may, also, be quashed. the learned public prosecutor, on the other hand, has supported the order passed by the learned lower court.5. i have considered the rival submissions made by the counsel for the parties.6. the functions of the magistrate and the police department are entirely different. how and in what manner the investigation is to be conducted, is within the jurisdiction of the police. the investigation under the code of criminal procedure take several aspects and ends ultimately with the formation of the opinion by the police as to whether on the materials gathered and collected, a cause is made-out or not to place the accused before the court for trial and the submission either of the charge-sheet or the final report depends on the nature of the opinion so formed by the police, and the magistrate cannot compel the police to form a particular opinion on the basis of the investigation and to submit a report according to such opinion. the magistrate, also, cannot compel the investigating agency to conduct the investigation agency to proceed in a particular manner and to make enquiry in a particular way from a particular person, is really encroachment on the sphere of the police and compelling the police to investigate the case in a particular manner desired by the court and to form an opinion so as to up-hold the decision of the magistrate. such a function does not come within the purview of the jurisdiction of the court, but according to the code of criminal procedure, such a function is left to the jurisdiction of the police. the formation of an opinion and submitting the final report or the charge-sheet is the final step that has to be taken by the investigating agency and not by the magistrate. after the submission of the report by the police, the following options are left with the magistrate:(i) the court may accept the report submitted by the police and take cognizance against the accused and proceed-with the matter;(ii) if the court was of the opinion, as in the present case, that the investigation conducted by the investigating agency is not proper or is incomplete, then the court can again send the case for further investigation under the matter and to submit the report.even after the submission of the report, the police, under section 173 cr. p.c. has power to further investigate the matter, if it comes to the conclusion that the investigation is not complete. this power can be exercised by the police itself after the submission of the report, if the officer incharge of the police station obtains further evidence-oral or documentary- and if further evidence is collected by the police then the station house officer may send the further report or reports regarding such evidence to the court. in the present case, the learned magistrate has directed the investigating agency to further investigate the matter and to submit the report. in doing so, the court has not committed any illegality. but while directing the investigating agency to further investigate the case, the learned lower court should not have asked the investigating agency to proceed in a particular manner, rather the court would have only directed the investigating agency to further investigate the matter and to submit its report. a further investigation in the present case, in my opinion, is necessary in the interest of justice so that the truth may be known and the full facts may come on record.7. in this view of the matter, the directions given by the learned magistrate, directing the investigating agency to further investigate the matter, does not require any interference. but, however, the opinion expressed by the learned magistrate will not come in the way of the investigating agency to further investigate the matter in a particular manner.8. with these observations, the miscellaneous petition filed by the petitioner is disposed of.