Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37070 of 2012 ====================================================== 1. Upendra Prasad S/O Sri Ram Pati Prasad, Statics Assistant Cum Head Clerk Cum Nazir Bal Vikash Pariyojna Office Nardiganj, Nawada R/O Village - Bhattu Bigha, Police Station - Deo, District - Aurangabad .... Petitioner Versus 1. The State Of Bihar through Principal Secretary Old Secretariat, Patna, Bihar 2. The Home Secretary Old Secretariat, Patna, Bihar 3. Director General of Police, Old Secretariat, Patna, Bihar 4. Inspector General of Police, Magadh Range, Gaya 5. Deputy Inspector General of Police, Magadh Range, Gaya 6. The Collector, Nawada 7. Superintendent of Police, Nawada 8. Sub - Division Officer, Nawada Sadar, Nawada 9. Lal Dhari Prasad, Dy. S.P. Head Quarter, Nawada 10. Block Development Officer, Nardiganj, District - Nawada 11. Sangeeta Kumari W/O Sri Jai Ram Prasad, Cdpo Nardiganj, Nawada R/O Village - Rupait, Police Station - Mehadiyan, District - Arwal 12. The Vigilance, Bihar, Patna ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER .... Opposite Parties 2 16-07-2013 Heard the learned counsel for the petitioner and the State. This is a petition for quashing the order, dated 06.08.2012, passed in Special Case No. 49 of 2011 arising out of Nardiganj P.S. Case No. 87 of 2011 passed by the Special Judge, Vigilance (Trap) Patna, by which he has rejected the petition, dated 11.06.2012, under Section 173(8) of the Code of Criminal Procedure for direction to reinvestigate the case. The prosecution case, as alleged in the first information report that one Sangeeta Kumari, the Child Development Project Officer, Nardiganj, given a written report that on 13.09.2011 while on mobile duty, the Sub Divisional Officer received information that in the Child Development Project Officer, Nardiganj, Upendra Prasad, Static’s Assistant-cum-Head Clerk-cum-Nazir, is getting illegal gratification from Sevika to pass Poshahar Purchase Register. On the basis of the information, a raiding party was constituted under the Sub Divisional Officer, Nawadah, and the raid was conducted and at the time of raid Upendra Prasad, Static’s Assistant-cum-Head Clerk-cum-Nazir, was found receiving money from the Sevika and Rs.2,000/- was recovered
Legal Reasoning
Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 2/7 from his possession and Rs.16,820/- was recovered from the almirah in three different packets and a list of 16 Sevikas was also recovered from his possession in which the names of Sevikas, the names of Centers’ Code number and the money received from them were found and the Sub Divisional Officer recorded the statement of 13 Sevikas, who admitted that Rs.2,000/- per Sevika is being collected for passing Poshahar Purchase Register and about Rs.26,650/- has been collected and seizure list prepared. The police, after investigation, submitted charge sheet on the basis of which cognizance taken. The petitioner is the accused and he filed petition before the Special Judge, Vigilance (Trap) Patna, for re- investigation, but, the said petition was rejected by the Special Judge, Vigilance (Trap), Patna.
Legal Reasoning
The learned counsel for the petitioner submits that the investigating officer has not conducted the investigation properly and investigation is neither fair nor proper. It was submitted that after perusal of letter no. 1368/Confi., dated 13.09.2011, it transpires that direction was given by the Sub Divisional Officer to the Block Development Officer to lodge the first information report and the petitioner and on 13.09.2011, the first information report was prepared with the signature of Archana Kumari, the Block Development Officer, but, the same was not sent for lodging the first information report and on 14.09.2011, the first information report was lodged by the Child Development Project Officer, namely, Sangeeta Kumari. It was, further, pointed out that the petitioner was arrested on 13.09.2011, first information report lodged on 14.09.2011 and was produced before the Special Judge on 16.09.2011, after lapse of three days and, hence, it was submitted that there was no fair and proper investigation. It is, further, stated that the first information report was signed by the Sub Divisional Officer and the Child Development Project Officer has stated that her signature was taken under the pressure of the Sub Divisional Officer and the District Programme Officer. There is no single or joint complaint written by any Sevika regarding the Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 3/7 demand of money. The seizure was made on 13.09.2011 at 20.30 p.m., but, the first information report lodged on 14.09.2011 and the first information report was sent on 16.09.2011. Thirteen Sevikas alleged to be present, but, none has been shown as a witness and there is no statement where the seized money has been kept and it is asserted that the petitioner has taken Rs.14,000/- as help from one Yadunath Prasad for treatment of her mother, who was ill since before, but, he could not go to Gaya and so kept the money in the almirah. The said Yadunath Prasad has sworn affidavit to this effect and, hence, pointing out these infirmities, a prayer has been made that the petitioner is entitled for fair trial and the fair trial possible only when fair investigation is made and, hence, prayer has been made for setting aside the impugned order and to give direction to the police for re-investigation of the case. He has relied upon a decision reported in 2012(1) PCCR, 389 (Azija Begum Vrs. State of Maharashtra & Anr.). However, taking into consideration the submission made by the learned counsel for the petitioner, I proceed to consider the scheme of Code of Criminal Procedure, the ambit if reinvestigation. As per the scheme of the Code of Criminal Procedure the police have statutory rights to investigate a cognizable offence. The power of police to investigate the cognizable offence is ordinarily not to interfere with by the judiciary. Police are the masters of investigation and formation of opinion whether a case made out to place the accused to trial. The police after investigation submit the charge sheet under Section 173(2) of the Criminal Procedure Code. This is end of investigation. The function of judiciary starts. However, after submission of the charge sheet the Magistrate has jurisdiction either to accept the final form and issue summon or may disagree with investigation and drop the proceeding or may direct further investigation and the power for further investigation envisaged therein can be triggered into motion at the instance of the Court under Section 173(8) of the Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 4/7 Criminal Procedure Code, but, can not effect the investigation and report submitted, but, lead to filing supplementary report, but, the power to be exercised strongly in exceptional cases to achieve the end of justice. However, there is distinction between further investigation and reinvestigation though the Magistrate has power to order further investigation under Section 173(8) of the Criminal Procedure Code, but, has no power or jurisdiction to order/direct reinvestigation or fresh or denovo investigation nor can efface the report submitted under Section 173(2) of the Criminal Procedure Code by police. The only procedure as enshrined in Code of Criminal Procedure is after submission of charge sheet the Magistrate if, taken cognizance then to proceed for framing of charge if the petitioner is not discharged under Sections 239, 240, 227 or 228 of the Criminal Procedure Code, the further investigation under Section 173(8) of the Criminal Procedure Code is permissible if there is fresh material or fact to be investigated. However, even after submission of charge sheet or even taking cognizance the police under Section 173(8) of the Criminal Procedure Code has been empowered to further investigation the matter if the police found fresh material that is it the person other than accused has also committed the crime or alike. However, only rider to the police for further investigation is to inform the Court and take a formal permission of the Court. However, while ordering the further investigation either suo motu or at the request of the police, the accused is not required to be heard and, hence, accused has no say while considering for further investigation by police in case some fresh material found, which requires investigation. However, the argument may be advanced that petitioner has right to fair trial under Articles 21 and 22 of the Constitution where the investigation is ex facie, unfair, tainted, malafide and smell of foul play and in such case there is no provision in Code giving right/jurisdiction to the Magistrate in such case to set aside the investigation and order for denovo trial. Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 5/7 Section 173(8) of the Criminal Procedure Code is restricted to the discovery of further oral and documentary evidence, but the Code does not provide to efface the report submitted by police after investigation under Section 173(2) of the Criminal Procedure Code to be quashed or effaced. There is no power either to police for reinvestigation again or to Magistrate to order for conducting fresh reinvestigation or order that the previous investigation is incapable of being acted upon for any reason. So fresh investigation is opposed to the scheme of the Code. However, in exceptional case to ensure fair trial the higher judiciary in exercising of the inherent power can set aside investigation direct fresh and denovo investigation and if necessary even by another independent investigating agency in exercise of power and under Articles 21 and 22 of the Constitution. But, the power to exercise inherent power for reinvestigation is required to be exercised sparingly most exceptional and rarest of rare case unless the unfairness of the investigation is such that it pinches the judicial conscience of Court for the reason to be recorded that investigation is exfacia unfair, tainted, malafide and smells of foul play (2013(5) S.C.C., 762, Vinay Tyagi Vrs. Irshad Ali @ Deepak & Ors.) However, the question arose whether the Court on it’s own motion suo motu can order further investigation after taking cognizance on the police report and after the appearance of the accused in pursuance of the process issued and it was held that the Magistrate on it’s own can not order for further investigation after appearance of accused in pursuance of issuance of summon (A.I.R. 1997 S.C. 639 Randhir Singh Rana Vrs. The State being Delhi Administration) However, the power to further investigation is generally directed or conducted if any fresh material found or the investigation is found defective investigation, but, where cognizance of a case has been taken the investigation or defect investigation does not vitiate the result, unless, miscarriage of justice has been shown to have been caused. Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 6/7 Hence, taking into consideration the submission it is apparent that the petition has been field by the accused persons for further investigation pointing out the defect in investigation. However, the defect pointed out does not indicate that there is any fresh material or any circumstance to show that the crime committed by person other than accused nor the defect pointed out for vitiating the entire investigation is as such to satisfy the conscience of this Court to either order for further informant or much less, then, satisfying the judicial conscience to quash the investigation and order for reinvestigation. The defect pointed out is minor in nature, the defect of the accused does not go to the root of the investigation to the extent to show that the illegality in the investigation has caused the miscarriage of justice to vitiate the trial and, further, proceeding shall be abuse of the process of Court. However, the investigation of case is domain of the police and the Court neither decides the course of investigation nor can direct the investigation to proceed in any particular manner. Hence, when neither the fresh material has been indicated nor the defect pointed out suggests requirement of further investigation. In decision reported in 2012(1) PCCR, 389 (Azija Begum vrs. State of Maharashtra & Anr.) the fact remains that the appellant informed the police that Imran has allegedly kidnapped by one Ijani Khan, the police did not record the statement of the appellant, but, recorded missing report. After the recovery of dead body found murdered on mysterious condition lodge the first information report on the basis of information of Ijani Khan and arrested the two sons of appellant, then, direction was issued under Section 173(8) of the Criminal Procedure Code on the ground that a serious allegation has been made against the police by the appellant specifically stating that the kidnapping of the deceased by Ijani Khan having not been lodged, but, case has been instituted on the basis of the first information report lodged by Ijani Khan, which is being investigated. The version of the appellant being the earlier is also required to be investigated as informant has right to investigate the case. However, the two versions of same occurrence require to be investigated after lodging two first information reports of counter version is not Patna High Court Cr.Misc. No.37070 of 2012 (2) dt.16-07-2013 7/7 prohibited and the investigation of two different versions of same occurrence not prohibited. However, it is established in Law that two first information reports against the same occurrence having been different version is permissible. However, it was directed that since the case is preceding so version of the police be also required to be re-investigated. However, the investigation can be ordered under Section 173(8) of the Criminal Procedure Code if fresh material found, i.e., if there is material for implication of persons other than accused or alike. Hence, the decision relied upon does not apply to the facts and circumstances as it has not been pointed out that the crime has been done by some one else and there is any other facts of investigation, but, the allegation is on premises that investigation is defective pointing the minor discrepancy which does not go to the root of the case to satisfy the conscience of this Court to order reinvestigation or further investigation. I do not find any merit to interfere with the impugned order to issue direction to re-investigate the case or further investigation. This petition is rejected. (Gopal Prasad, J) SA/-