Abhay Bhupal Kadappa v. The State of Maharashtra

Mr. Rahul Kulkarni, for the Petitioner. Mr. P.P. Pol, PP for the State. Mr. Prashant P. Jadhav, for Respondent Nos.2 to 5. ---- Coram: B.H. Marlapalle & U.D. Salvi, JJ. June 30, 2011. Oral Judgment ( Per B.H. Marlapalle, J.):

The petitioner, who is the original complainant in RCC No.97 of 2008, filed an F.I.R. for the offences punishable under Sections 392, 2 WP.116-2011 341 read with Section 34 of the IPC on 25.11.2007. On investigation in to the said complaint, the Investigating Officer had submitted a charge-sheet and the case came to be registered as RCC No.97 of 2008.

The charge was framed at Exh.18 and PW-1 Balasaheb Sutar was also examined as a witness in support of the seizure panchanama. The petitioner, in his capacity as the original complainant, filed an application at Exh.31 praying for further investigation under Section 173(8) of the Cr. P.C. so as to give directions to the Police to re-investigate the case. He claimed that after he lodged the complaint, the Police did not investigate into the crime in all angles and major circumstances were left out out of the investigation, in as much as there was no panchanama carried out in respect of the vehicle which was used by the accused for transportation of robbed 20 gunny bags of rice and that the entire property was not seized.

The accused filed reply at Exh.32 and opposed the application filed for further investigation. It was pointed out that the court had taken cognizance against the accused persons after the charge-sheet was filed for the offence under Sections 392 and 341 read with Section 34 of the IPC, and pursuant to the pursis issued by the court they had appeared and were 3 WP.116-2011 facing the trial. They also pointed out the progress in the trial court and alleged that the application filed by the original complainant is only to harass him by delaying the trial. They also pointed out that the original complainant had no locus standi to file such application, without the consent of the Public Prosecutor, for further investigation.

While rejecting the application filed by the petitioner, vide his order dated 6.2.2010 the learned J.M.F.C. at Ichalkaranji, recording the progress in the trial. We have also noted after going through the papers that along with the charge-sheet, statements of the witnesses, confessional statements of the accused and the spot panchanama were filed. He, therefore, recorded his opinion that the investigation was carried out by the Investigating Officer in all angles and nothing remained to be done. He also referred to the following decisions of the Supreme Court: (i) Randhir Singh Rana Vs. Delhi Administration [1997 CRI. L.J. 779 Supreme Court]; (ii) Hasnbhai Valibhai Qureshi Vs. State of Gujrat & Ors. [AIR 2004 Supreme Court 2078]. 4 WP.116-2011

The learned J.M.F.C. held that the application submitted by the Petitioner was devoid of success. This order passed by the learned Magistrate was a subject matter of challenge before this court in Criminal Writ Petition No.1527 of 2010. While upholding the view taken by the learned Magistrate, this court (Single Bench) by its order dated 6.10.2010 referred to the subsequent judgment of the Supreme Court in the case of Reeta Nag Vs. State of West Bengal & Ors.[(2009) 9 Supreme Court Cases 129] and more particularly in para-26 of the said judgment and held that the learned Judicial Magistrate had correctly rejected the application filed by the complainant. However, while dismissing the petition, liberty was granted to the petitioner to file a fresh petition under Article 226 of the Constitution of India so as to seek directions to the Police to make further investigation and this is how the instant petition seeking directions to the Police to undertake further investigation as envisaged under Section 173(8) of the Cr. P.C., has been filed.

The learned Counsel for the Petitioner relied upon the decision in the case of Sakiri Vasu Vs. State of Uttar Pradesh & Ors. [(2008) 2 SCC 409] and submitted that the powers of the Investigating officer to undertake 5 WP.116-2011 further investigation as required under Section 173(8) of Cr. P.C. remain intact and to be invoked at any time during the pendency of the trial.

We have given our anxious considerations to these submissions and we do not find any merits in the same. It is clear from the trial court’s order that a copy of charge sheet was made available to the petitioner-original complainant and at no point of time he recorded his protest regarding the investigation being either tardy or incomplete and the application at Exh.31 was filed at a belated stage when the trial had already commenced. On perusal of the record, the trial court also noted that the investigation was undertaken in the right direction and there were no deficiencies left, as alleged by the Petitioner.

Para-24 of the judgment delivered in the case of Sakiri Vasu (Supra) reads as under:

In view of the abovementioned legal position, we are not of the view that although Section 156(3) of Cr. P.C. is very briefly worded, there is an implied power in the Magistrate under Section 156(3) of Cr.PC to order registration of a criminal offence and/or to direct the officer in charge of the 6 WP.116-2011 police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) of Cr.PC, we are of the opinion that they are implied in the above provision

It is clear that the Supreme Court has stated about proper investigation under Section 156(3) of the Cr.P.C. which indicates that till the Magistrate is satisfied about the investigation done by the Investigating Officer, he may call upon to continue with the investigation or proper investigation. Same is not the case at hand and the view taken in the case of Sakiri Vasu (Supra) cannot be made applicable to the petitioner’s case. By this Petition filed under Article 226 of the Constitution of India, he is inviting the Division Bench of this court to set aside the view taken by the Single Bench which even otherwise is not permissible in the scheme of the Appellate Side’s Rules framed by this court, and the liberty granted by the Single Bench was only to seek directions against the Police and in our opinion such directions at the stage when the trial was in progress could not be issued to the Investigating Officer, except the powers to be invoked under Section 319 of the Cr. P.C., by the Magistrate himself. 7 WP.116-2011