Sumit Sinha v. The State of Bihar

Patna High Court CR. WJC No.443 of 2013 (2) dt.07-05-2013 2

#3. In the FIR it has been alleged that in the night of 29th August, 2012, a theft was committed in the house of the petitioner and valuable articles, jewellery made of gold and silver, 300 coins and rupees five lakhs in cash were looted away. Though the case was initially registered only under sections 457 and 380 IPC but in course of investigation one Sunita Devi, a maid servant working in the house of the petitioner was apprehended and on her confessional statement, certain stolen articles were recovered pursuant to which on the application of the investigating officer section 411 IPC was also added in the FIR.

#4. Learned counsel for the petitioner submitted that despite the order of the learned Additional Chief Judicial Magistrate, Patnacity, the investigating officer of the case failed to put the recovered articles on T.I.Parade and in hot haste he submitted charge-sheet in the case. The learned Additional Chief Judicial Magistrate, Patnacity, also failed to take notice of the fact and instead of directing the investigating officer for further investigation took cognizance of the offence.

#5. In the present application, the petitioner has prayed for quashing of the entire investigation, the police report submitted in the case and the order of cognizance dated 27th November, 2012, passed by the learned Additional Chief Judicial Patna High Court CR. WJC No.443 of 2013 (2) dt.07-05-2013 3 Magistrate, Patnacity. The petitioner has further prayed for issuance of a direction upon respondent no.4 to investigate the matter afresh and submit a fresh report under section 173(2) of the Code of Criminal Procedure (for short “the Cr.P.C.”) thereafter.

#6. Learned counsel for the petitioner submitted that in course of investigation role of certain other accused persons, namely, Tarun Kumar Yadav, Manoj Yadav, Jitendra Kumar and Munna Kumar also transpired but the police failed to submit charge-sheet against them. In sum and substance the contention of the petitioner is that the investigation of the case is faulty.

#7. In my view, the present application misconceived. The petitioner has already filed a protest-cum- complaint petition before the learned Additional Chief Judicial Magistrate, Patnacity, stating therein all the points urged before this court. The Magistrate concerned has already taken cognizance of the offence. It is well settled that on a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in section 173(8) of the Cr.P.C. Thereafter, the adjudicatory function of Judiciary to determine whether an offence has been committed and if so, by whom commences. The law authorizes the police to further investigate the case in terms of section 173(8) of the Cr.P.C. on Patna High Court CR. WJC No.443 of 2013 (2) dt.07-05-2013 4 getting fresh material. The Magistrate before whom the police submit their report may also direct for further investigation in appropriate cases. However, the prayer of the petitioner for reinvestigation of the case after setting aside the investigation already conducted is not maintainable. I am also of the view that simply because T.I.Parade of the recovered articles has not been held, the entire investigation can not be held to be bad. A T.I. parade held under section 9 of the Evidence Act is not a substantive piece of evidence. Even otherwise the petitioner may prove his case in trial by bringing cogent evidence. At this stage, I may also take note of the fact that in course of trial, if evidence comes against persons not being accused appearing to be guilty of the offence, the trial court would be competent to summon such persons under section 319 of the Cr.P.C.

#8. In Niranjan Singh v. State of U.P. since reported in AIR 1957 SC 142, the Apex Court has laid down that investigation is not an enquiry or trial before the court and that is why the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial.

#9. In S.N. Sharma v. Bipen Kumar Tiwari since reported in (1970) 1 SCC 653, the Apex Court observed that the Patna High Court CR. WJC No.443 of 2013 (2) dt.07-05-2013 5 power of police to investigate is independent of any control by the Magistrate.

#10. Thus, I am of the view that even if the investigation is faulty, the same would not vitiate the trial and, if evidence comes against persons not being accused in course of trial, they may be summoned by the trial court under section 319 Cr.P.C.

#11. For the reasons stated, hereinabove, I am not inclined to entertain the present application. It is dismissed, accordingly. Md.S./- (Ashwani Kumar Singh, J)