Vishnu So Eknath Patil and ors. Vs. the State of Maharashtra and ors. - Court Judgment

Excerpt:
indian penal code, - section 302, 504, 506 rw 34 - punishment for murder -- present criminal revision application is directed against the order dated 8-6-2007 below exh. while filing charge sheet under section 173(4) of the code of criminal procedure, an application cum report under section 169 of the code of criminal procedure was moved before the learned judicial magistrate first class, kallamb, thereby dropping the prosecution against the present petitioners. before the learned sessions judge, osmanabad, for re-investigation of the offence registered in shiradhon police station vide cr no. 68/2005. vide order dated 8-6-2007, learned adhoc additional sessions judge 2, osmanabad allowed the application and investigation was handed over to cid, osmanabad, which order is impugned in the.....top of form 1 rule. rule made returnable forthwith. heard finally by consent of the parties. 2 present criminal revision application is directed against the order dated 8-6-2007 below exh. 17 in sessions case no. 53/2006 passed by the adhoc additional sessions judge - 2, osmanabad. 3 such of the facts as are necessary for adjudication of this criminal revision application can be summarised as under : . respondent no. 2 herein lodged report on 4-6-2005 in shiradhon police station, tq. kallamb, dist. osmanabad alleging that in the afternoon of 4-6-2005 at about 3.30 pm one gopinath dnyanoba patil and dharma vitthal pande assaulted his son with fists and kick blows. on the basis of this report, non-cognizable offence was recorded vide entry no. 16/2005 for offences punishable under section.....

Judgment:

1 Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

2 Present criminal revision application is directed against the order dated 8-6-2007 below exh. 17 in Sessions Case no. 53/2006 passed by the Adhoc Additional Sessions Judge - 2, Osmanabad. 3 Such of the facts as are necessary for adjudication of this criminal revision application can be summarised as under : . Respondent no. 2 herein lodged report on 4-6-2005 in Shiradhon police station, Tq. Kallamb, Dist. Osmanabad alleging that in the afternoon of 4-6-2005 at about 3.30 pm one Gopinath Dnyanoba Patil and Dharma Vitthal Pande assaulted his son with fists and kick blows. On the basis of this report, non-cognizable offence was recorded vide entry no. 16/2005 for offences punishable under section 323, 504, 506 read with section 34 of the Indian Penal Code. It further appears that again on 8-6-2005 one more report was filed by respondent no. 2 in the same police station alleging the incident dated 5-6-2005. In the said report, other than Gopinath Patil and Dharma Pande, names of present petitioners were also implicated. On the basis of this report, offence came to be registered at CR No. 68/2005 for offences punishable under section 302, 504, 506 r/w section 34 of the Indian Penal Code. On completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Kallamb. Charge sheet was filed only against Gopinath Patil and Dharma Pande ( these two persons are not before the court in this revision application). While filing charge sheet under section 173(4) of the Code of Criminal Procedure, an application cum report under section 169 of the Code of Criminal Procedure was moved before the learned Judicial Magistrate First Class, Kallamb, thereby dropping the prosecution against the present petitioners. It appears that before accepting this report, notice was served on respondent no. 2. After hearing respondent no. 2 and the learned APP, the learned Judicial Magistrate First Class, Kallamb accepted the report under section 169 of the Code of Criminal Procedure vide order dated 7-8-2006. By this order, application moved by respondent no. 2 was rejected and the report submitted by prosecuting agency dropping prosecution against the present petitioners under section 169 of the Code of Criminal Procedure was accepted. . Admittedly, this order passed by the learned Judicial Magistrate First Class, Kallamb was not challenged by respondent no. 2. It appears that in due course, after passing requisite committal order, trial against Gopinath Patil and Dharma Pande was committed to the Court of Sessions, Osmanabad. After committal of the trial, an application was moved by respondent no. 2 at exh. 17 before the learned Sessions Judge, Osmanabad, for re-investigation of the offence registered in Shiradhon police station vide CR No. 68/2005. Prayer was also made in the application to handover re- investigation either to CID or CBI and till then further proceeding in Sessions Case no. 53/2006 be stopped. Vide order dated 8-6-2007, learned Adhoc Additional Sessions Judge 2, Osmanabad allowed the application and investigation was handed over to CID, Osmanabad, which order is impugned in the present criminal revision.

4 During the course of submissions across the bar, learned counsel appearing for the revision applicant straight way took this court to the relevant provisions under section 173(8) of the Code of Criminal Procedure and urged that the order impugned in this revision application is in excess of the jurisdiction as the Adhoc Sessions Judge is not empowered to pass order directing further investigation or re-investigation by CID. He further urged that those powers are vested exclusively with the High Court under Article 226 of the Constitution of India or with the Supreme Court under Article 32 and 142 of the Constitution of India. Per contra, learned counsel for respondent no. 2 supports the order impugned in this revision application. According to him, in special circumstances, Sessions Judge is empowered to pass such orders. So far as submission that Sessions Judge is empowered to pass such orders under special circumstances, is concerned, it is unknown to the Criminal Law.

5 At this juncture it is useful to advert to the observations by the Apex Court in the matter of Reeta Nag vs. State of West Bengal and others reported in (2009) 9 Supreme Court Cases 129 wherein it is observed thus : . Proper course to be followed by Magistrate - Held, having passed a final order framing charges against six accused and discharging remaining ten accused, it was no longer within Magistrate's jurisdiction to direct reinvestigation into the case - Besides, investigating authorities had not applied for further investigation - Not only was Magistrate wrong in directing reinvestigation on application made by de facto complainant, but he also exceeded his jurisdiction in entertaining said application filed by de facto complainant - Since no application had been made by investigating authorities for conducting further investigation under S. 173(8) CrPC, the other course of action open to Magistrate was to take recourse to provisions of S. 319 at stage of trial if any material is disclosed during examination of the witnesses during the trial - Hence, no reason to interfere with order of High Court quashing order of Magistrate.

. This observation will clearly reveal that the powers of further investigation are to be exercised by the Court on application of the investigating agency or prosecution agency and not on application of de facto complainant on whose complaint the offence was registered and investigation is carried out.

. It is further useful to refer to the judgment of the Apex Court in the matter of Central Bureau of Investigation through S.P, Jaipur vs. State of Rajasthan and another reported in (2001) 3 Supreme Court Cases 333 wherein it is observed thus :

14 True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to CBI to investigate in certain cases, ( vide Kashmeri Devi v. Delhi Admn. and Maniyeri Madhavan v. Sub-Inspector of Police.) A two-Judge Bench of this Court has by an order dated 10-3-1989, referred the question whether the High Court can order CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.

. It is further observed by the Apex Court in the judgment (supra) thus : 16 As the present discussion is restricted to the question whether a Magistrate can direct CBI to conduct investigation in exercise of his powers under Section 156(3) of the Code it is unnecessary for us to travel beyond the scope of that issue. We, therefore, reiterate that the magisterial power cannot be stretched under the said sub-section beyond directing the officer in charge of a police station to conduct the investigation.

6 It appears that during the pendency of this criminal revision application, in compliance of the order impugned dated 8-6-2007, investigation was handed over to CID. Vide communication dated 24-8-2007, the Superintendent of Police, CID, Aurangabad communicated the Dy. Superintendent of Police, CID, Osmanabad that unless the orders are passed by the State Government / Supreme Court / High Court or Inspector General of Police, Bombay, investigation cannot be handed over to the CID. The fact is thus clear that the impugned order directing to handover investigation to CID , Osmanabad, is beyond the jurisdiction vested with the Court of Sessions. The order passed without jurisdiction is nullity in law. 7 In the result, impugned order dated 8-6-2007 is liable to be quashed and set aside. Accordingly, impugned order is quashed and set aside.

Criminal revision application succeeds in terms of prayer clauses 'C' and 'D' and stands disposed of. Rule made absolute accordingly. Registry to send back R & P to the trial court forthwith.