Mool Chand Alias Murli and anr. Vs. Station House Officer and ors. - Court Judgment

Excerpt:
- - when it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the magistrate? what action a magistrate is to take in accordance with the provisions of the code of criminal procedure in such situations is a matter best left to the discretion of the magistrate.orderraghuvendra s. rathore, j.1. by this criminal miscellaneous petition, the petitioners seek to challenge the order dated 5-9-2008 (annexure-8), passed by the learned additional district and sessions judge, sambhar lake, district jaipur. the learned court below while allowing the application under section 439(2) cr. p.c. filed by the prosecution, cancelled the bail granted to the petitioners in fir no. 138/2008, police station renwal, district jaipur.2. briefly stated, the facts of the case are that one bhagwan sahai lodged a report on 17-6-2008, in respect of an incident, which had taken place on 16-6-2008. the said report was registered as fir no. 138/2008 at police station, renewal district jaipur for the offences under sections 143, 341, 323, 447 and 379, ipc. thereafter, the investigation commenced and on conclusion of the same, police filed challan on 7-7-2008 for the offences under sections 341, 323 and 325, ipc. the offences being bailable one, the petitioners were released on bail on 7-7-2008 (annexure-1).3. in this case, the injured namely smt. jamna devi was given medical aid in the hospital at renewal wherefrom she was referred to sms hospital, jaipur on 17-6-2008. subsequently, the injured was discharged from hospital on 1-7-2008. the injured was re-admitted in sms hospital, jaipur for treatment but she succumbed to her injuries and died on 3-8-2008. after the death of the injured, the complainant filed an application to the police, who had then prepared a panchnama and also got the post-mortem conducted through a medical board. as per the opinion given by the medical board, in the post-mortem report, the cause of death was septicemia as a result of ante-mortem injuries. therefore, according to the investigation agency, an offence under section 302, ipc was found to be made out in the case.4. the prosecution then filed an application for cancellation of bail of the accused persons on the ground that the investigation in the matter is to be done. it was also mentioned by the prosecution that the challan, in this case, had been filed in the court of learned magistrate on 7-7-2008 and the bail-bonds of the accused-petitioners were attested by the learned court as the offences were bailable. therefore, it was stated by the prosecution that in such view of the matter, it was not possible to take the accused persons in custody. accordingly, it was prayed that the order dated 7-7-2008 may be cancelled so that the accused persons can be arrested and further investigation may be conducted.initially an application under section 437(5) cr. p.c. was filed before the learned magistrate concerned who, vide his order dated 6-8-2008. dismissed the application as not maintainable. subsequently, the prosecution filed an application under section 439(2) cr. p.c. before the learned district and sessions judge, sambhar lake, district jaipur to which the accused persons filed a reply. the learned court below then decided the application, vide order dated 5-9-2008 and while allowing the same it was ordered that the bail granted to the accused persons in fir no. 138/2008, registered at police station renwal, jaipur be cancelled.5. the learned counsel for the petitioners has submitted that once a bail is granted in minor offence then in a situation when graver offences are added later, then the bail granted earlier cannot be cancelled nor it is necessary for the accused-persons to seek first bail in the matter. in support of his submission, he places reliance on the cases of prabhu v. state of rajasthan 1986 rcc 474; vijendra kumar v. state of rajasthan 1988 cr lr (raj) 689 and on the case of sita ram singh v. state of bihar 2002 (2) crimes 482.the learned counsel for the petitioners has also submitted that in the instant case, the challan had already been filed on 7-7-2008 and nothing remained pending in the matter. therefore, he has submitted that further investigation by the police could not have been done without permission of the court concerned. in support of his submission, he places reliance on the case of ram lal narang v. state (delhi admn.) : air 1979 sc 1791 : 1979 crilj 1346. further, he has relied on the case of sri bhagwan samardha sreepada vallabha venkata vishwandadha maharaj v. state of andhra pradesh 1999 cr lj 3661.6. on the other hand, the learned public prosecutor, assisted by the learned counsel for the complainant submitted that the order passed by the learned court below is in accordance to law. he has further submitted that in the facts and circumstances of the case, the learned sessions court has rightly accepted the application and cancelled the bail of the accused-petitioners. in support of his submission, he relied on the case of smt. sharda v. state of rajasthan : 2001 stpl (le-crim) 493 raj : 2001 crilj 2647. in respect to the reply to the contention raised by the learned counsel for the petitioners with regard to the power of re-investigation of the police, he has placed reliance on the case of hasanbhai valibhai qureshi v. state of gujarat : (2004) 5 scc 347 : 2004 crilj 2018.7. i have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties. in this case, after lodging of the report on 17-6-2008, the police investigated the matter in a hurricane manner and submitted the challan on 7-7-2008. it is to be noted that the injured smt. jamna was hospitalised on 17-6-2008 and after her discharge from the hospital on 1-7-2008, she had to be readmitted in the sms hospital, jaipur as her condition deteriorated. ultimately, she succumbed to the injuries and died on 3-8-2008. in the meanwhile, after filing of the challan on 7-7-2008, the learned magistrate attested the bail-bonds and the accused persons were so released, as the challan had been filed under bailable offence. in view of the subsequent development where the injured smt. jamna devi died due to septicemia as a result of ante-mortem injuries, the police was accordingly informed and the instant application for cancellation of bail is came to be filed before the learned magistrate and thereafter before the learned additional sessions judge, sambhar lake, district jaipur.8. so far as the case law relied upon by the counsel for the petitioners in respect of proposition, that even if graver offence is added after grant of bail of the accused-persons then the bail once granted should not be cancelled unless he has misused the liberty in any manner, as held in the case of prabhu (supra), vijendra (supra) and sita ram singh (supra) is concerned, it would suffice to say that the hon'ble supreme court has laid down in the case of prahlad singh bhati v. n.c.t., delhi : 2001 (2) rcr (criminal) 377 : 2001 crilj 1730 that on bail having been granted to an accused per-son and if subsequently a graver offence has been charged/added then the accused has to seek fresh ball. the benefit of bail granted earlier to the accused is not available to him in the said changed circumstances. in other words, with the change of nature of offence, the accused becomes disentitle to the liberty granted to him in relation to a minor offence, if the offence is altered to an aggravated crime.9. as far as the other submission made by the learned counsel for the petitioners that the police could not have gone for further investigation in the matter without seeking permission of the court concerned, i am of the considered view that the proposition of law laid down by the hon'ble supreme court in the case of ram lal narang : 1979 crilj 1346 (supra), particularly para 21 and 22 of the judgment, makes the position very clear. the extracts of the said paras of the judgment read as under:anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. it is in the interests of both the prosecution and the defence that the police should have such power. it is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. when it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the magistrate? after all the investigating agency has greater resources at its command than a private individual. similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. it is their duty to investigate and submit a report to the magistrate upon the involvement of the other persons. in either case, it is for the magistrate to decide upon his future course of action depending upon the stage at which the case is before him. if he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. if the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. what action a magistrate is to take in accordance with the provisions of the code of criminal procedure in such situations is a matter best left to the discretion of the magistrate. the criticism that a further investigation by the police would trench upon the proceedings before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further ac-tion is with the magistrate. that the final word is with the magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. we should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. we think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, 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.as observed by us earlier, there was no provision in the code of criminal procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the magistrate. neither section 173 nor section 190 lead us to hold that the power of the police to further investigate was exhausted by the magistrate taking cognizance of the offence. practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. it 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.10. in view of the aforesaid principle of law laid down by the hon'ble apex court, further investigation is not barred and the police can proceed if they receive some important information with regard to the case. however, the investigation agency is expected to inform the court concerned for further investigation so as to express their regard and respect for it, before whom the challan has already been filed. so far as the case of sri bhagwan samardha : 1999 crilj 3661 (supra) is concerned, it was a case where the question arose as to whether the police could conduct further investigation after filing of the report, as recognised under section 173(8) cr. p.c. in such a situation, it was held that even after the court took cognizance of any offence, on the strength of the police report first submitted, it is open to the police to conduct further investigation. the other question which was considered in the matter and held by the apex court was that there is nothing in section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. however, it may be noted that in the said case of sri bhagwan samardha (supra), the apex court had followed the judgment of ram lal narang : 1979 crilj 1346 (supra).11. besides, it may also be noted that in the case of prahlad singh bhati : 2001 crilj 1730 (supra) when the prosecution had first approached the learned magistrate, it was held by him that 'i do not agree with the submission made by the learned public prosecutor in as much as if we go by his submission then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law'. on the said order of the learned magistrate, the hon'ble supreme court observed that while exercising the jurisdiction, apparently under section 437 of the code, the metropolitan magistrate appears to have completely ignored the basic principles governing the grant of bail. further, it was held that mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. the hon'ble supreme court also held that with the change in nature of offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. accordingly, in the case of prahlad singh bhati (supra) by allowing appeal and setting aside the orders impugned, the hon'ble supreme court permitted the accused-to apply in regular bail before the trial court.12. in view of the aforesaid facts and circumstances of the case and the settled proposition of law laid down by the hon'ble apex court, i am of the considered view that the order passed by the learned court below whereby cancelling the ball of the accused petitioners does not suffer from any infirmity so as to call for any interference by this court in exercise of its inherent powers.consequently, this criminal miscellaneous petition is dismissed.

Judgment:
ORDER

Raghuvendra S. Rathore, J.

1. By this criminal miscellaneous petition, the petitioners seek to challenge the order dated 5-9-2008 (Annexure-8), passed by the learned Additional District and Sessions Judge, Sambhar Lake, District Jaipur. The learned Court below while allowing the application under Section 439(2) Cr. P.C. filed by the prosecution, cancelled the bail granted to the petitioners in FIR No. 138/2008, Police Station Renwal, District Jaipur.

2. Briefly stated, the facts of the case are that one Bhagwan Sahai lodged a report on 17-6-2008, in respect of an incident, which had taken place on 16-6-2008. The said report was registered as FIR No. 138/2008 at Police Station, Renewal District Jaipur for the offences under Sections 143, 341, 323, 447 and 379, IPC. Thereafter, the investigation commenced and on conclusion of the same, police filed challan on 7-7-2008 for the offences under Sections 341, 323 and 325, IPC. The offences being bailable one, the petitioners were released on bail on 7-7-2008 (Annexure-1).

3. In this case, the injured namely Smt. Jamna Devi was given medical aid in the hospital at Renewal wherefrom she was referred to SMS Hospital, Jaipur on 17-6-2008. Subsequently, the injured was discharged from hospital on 1-7-2008. The injured was re-admitted in SMS Hospital, Jaipur for treatment but she succumbed to her injuries and died on 3-8-2008. After the death of the injured, the complainant filed an application to the police, who had then prepared a Panchnama and also got the post-mortem conducted through a Medical Board. As per the opinion given by the Medical Board, in the post-mortem report, the cause of death was septicemia as a result of ante-mortem injuries. Therefore, according to the Investigation Agency, an offence under Section 302, IPC was found to be made out in the case.

4. The prosecution then filed an application for cancellation of bail of the accused persons on the ground that the investigation in the matter is to be done. It was also mentioned by the prosecution that the challan, in this case, had been filed in the Court of learned Magistrate on 7-7-2008 and the bail-bonds of the accused-petitioners were attested by the learned Court as the offences were bailable. Therefore, it was stated by the prosecution that in such view of the matter, it was not possible to take the accused persons in custody. Accordingly, it was prayed that the order dated 7-7-2008 may be cancelled so that the accused persons can be arrested and further investigation may be conducted.

Initially an application under Section 437(5) Cr. P.C. was filed before the learned Magistrate concerned who, vide his order dated 6-8-2008. dismissed the application as not maintainable. Subsequently, the prosecution filed an application under Section 439(2) Cr. P.C. before the learned District and Sessions Judge, Sambhar Lake, District Jaipur to which the accused persons filed a reply. The learned Court below then decided the application, vide order dated 5-9-2008 and while allowing the same it was ordered that the bail granted to the accused persons in FIR No. 138/2008, registered at Police Station Renwal, Jaipur be cancelled.

5. The learned Counsel for the petitioners has submitted that once a bail is granted in minor offence then in a situation when graver offences are added later, then the bail granted earlier cannot be cancelled nor it is necessary for the accused-persons to seek first bail in the matter. In support of his submission, he places reliance on the cases of Prabhu v. State of Rajasthan 1986 RCC 474; Vijendra Kumar v. State of Rajasthan 1988 Cr LR (Raj) 689 and on the case of Sita Ram Singh v. State of Bihar 2002 (2) Crimes 482.

The learned Counsel for the petitioners has also submitted that in the instant case, the challan had already been filed on 7-7-2008 and nothing remained pending in the matter. Therefore, he has submitted that further investigation by the police could not have been done without permission of the Court concerned. In support of his submission, he places reliance on the case of Ram Lal Narang v. State (Delhi Admn.) : AIR 1979 SC 1791 : 1979 CriLJ 1346. Further, he has relied on the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh 1999 Cr LJ 3661.

6. On the other hand, the learned Public Prosecutor, assisted by the learned Counsel for the complainant submitted that the order passed by the learned Court below is in accordance to law. He has further submitted that in the facts and circumstances of the case, the learned Sessions Court has rightly accepted the application and cancelled the bail of the accused-petitioners. In support of his submission, he relied on the case of Smt. Sharda v. State of Rajasthan : 2001 STPL (LE-Crim) 493 Raj : 2001 CriLJ 2647. In respect to the reply to the contention raised by the learned Counsel for the petitioners with regard to the power of re-investigation of the police, he has placed reliance on the case of Hasanbhai Valibhai Qureshi v. State of Gujarat : (2004) 5 SCC 347 : 2004 CriLJ 2018.

7. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. In this case, after lodging of the report on 17-6-2008, the police investigated the matter in a hurricane manner and submitted the challan on 7-7-2008. It is to be noted that the injured Smt. Jamna was hospitalised on 17-6-2008 and after her discharge from the hospital on 1-7-2008, she had to be readmitted in the SMS Hospital, Jaipur as her condition deteriorated. Ultimately, she succumbed to the injuries and died on 3-8-2008. In the meanwhile, after filing of the challan on 7-7-2008, the learned Magistrate attested the bail-bonds and the accused persons were so released, as the challan had been filed under bailable offence. In view of the subsequent development where the injured Smt. Jamna Devi died due to septicemia as a result of ante-mortem injuries, the police was accordingly informed and the instant application for cancellation of bail is came to be filed before the learned Magistrate and thereafter before the learned Additional Sessions Judge, Sambhar Lake, District Jaipur.

8. So far as the case law relied upon by the counsel for the petitioners in respect of proposition, that even if graver offence is added after grant of bail of the accused-persons then the bail once granted should not be cancelled unless he has misused the liberty in any manner, as held in the case of Prabhu (supra), Vijendra (supra) and Sita Ram Singh (supra) is concerned, it would suffice to say that the Hon'ble Supreme Court has laid down in the case of Prahlad Singh Bhati v. N.C.T., Delhi : 2001 (2) RCR (Criminal) 377 : 2001 CriLJ 1730 that on bail having been granted to an accused per-son and if subsequently a graver offence has been charged/added then the accused has to seek fresh ball. The benefit of bail granted earlier to the accused is not available to him in the said changed circumstances. In other words, with the change of nature of offence, the accused becomes disentitle to the liberty granted to him in relation to a minor offence, if the offence is altered to an aggravated crime.

9. As far as the other submission made by the learned Counsel for the petitioners that the police could not have gone for further investigation in the matter without seeking permission of the Court concerned, I am of the considered view that the proposition of law laid down by the Hon'ble Supreme Court in the case of Ram Lal Narang : 1979 CriLJ 1346 (supra), particularly para 21 and 22 of the judgment, makes the position very clear. The extracts of the said paras of the judgment read as under:

Anyone acquainted with the day-to-day working of the criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further ac-tion is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, 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.

As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. It 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.

10. In view of the aforesaid principle of law laid down by the Hon'ble Apex Court, further investigation is not barred and the police can proceed if they receive some important information with regard to the case. However, the Investigation Agency is expected to inform the Court concerned for further investigation so as to express their regard and respect for it, before whom the challan has already been filed. So far as the case of Sri Bhagwan Samardha : 1999 CriLJ 3661 (supra) is concerned, it was a case where the question arose as to whether the police could conduct further investigation after filing of the report, as recognised under Section 173(8) Cr. P.C. In such a situation, it was held that even after the Court took cognizance of any offence, on the strength of the police report first submitted, it is open to the police to conduct further investigation. The other question which was considered in the matter and held by the Apex Court was that there is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. However, it may be noted that in the said case of Sri Bhagwan Samardha (supra), the Apex Court had followed the judgment of Ram Lal Narang : 1979 CriLJ 1346 (supra).

11. Besides, it may also be noted that in the case of Prahlad Singh Bhati : 2001 CriLJ 1730 (supra) when the prosecution had first approached the learned Magistrate, it was held by him that 'I do not agree with the submission made by the learned Public Prosecutor in as much as if we go by his submission then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law'. On the said order of the learned Magistrate, the Hon'ble Supreme Court observed that while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. Further, it was held that mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. The Hon'ble Supreme Court also held that with the change in nature of offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Accordingly, in the case of Prahlad Singh Bhati (supra) by allowing appeal and setting aside the orders impugned, the Hon'ble Supreme Court permitted the accused-to apply in regular bail before the trial Court.

12. In view of the aforesaid facts and circumstances of the case and the settled proposition of law laid down by the Hon'ble Apex Court, I am of the considered view that the order passed by the learned Court below whereby cancelling the ball of the accused petitioners does not suffer from any infirmity so as to call for any interference by this Court in exercise of its inherent powers.

Consequently, this criminal miscellaneous petition is dismissed.