Criminal Misc. No. M-49323 of 2007 v. The State of Punjab

petitioner, started firing at him, whereas, Joginder Singh, co-accused (non-applicant), damaged his main gate with 'Dasti Takua'. When the complainant, raised alarm, all the assailants, escaped from the spot, in their respective vehicles, the numbers whereof, he could not note down. While running, from the spot, the complainant, identified Inderpratap Singh son of Gurjeet Singh Rana, as, at the relevant time, the electricity bulb was glowing. Ultimately, the aforesaid FIR, was got registered, against the accused.

I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

The Counsel for the petitioner, submitted that, after the registration of FIR, a detailed investigation was conducted into the matter by the Deputy Superintendent of Police and challan (Annexure P3) for the offences, punishable under Sections 148, 336, 171-B, 188, 127 and 509 IPC, was presented in the Court. He further submitted that, however, with the change of the government, in the State of Punjab, and, with a view, to falsely implicate the petitioner, re-investigation into the matter, was ordered, and, ultimately, the Criminal Misc. No. M-49323 of 2007 3 petitioner, was involved, in the instant case. He further submitted that, re-investigation, could not be ordered, and, only further investigation, could be conducted, with the permission of the Court, after the presentation of challan. He further submitted that on the basis of reinvestigation supplementary challan, under Sections 148, 307, 171-B and 188 read with Section 149 IPC, and, Section 25 Arms Act, was presented, which being illegal, was liable to be set aside.

On the other hand, the Counsel for the respondent, submitted that, as per the allegations, contained in the FIR, specific role, was attributed, to the petitioner, that he fired, from his gun, at the complainant, with an intention to kill him. He further submitted that it was not re-investigation, but further investigation, which was conducted by the Deputy Superintendent of Police and he submitted that offence, under Section 307 IPC was committed by the accused. He further submitted that no permission was required to be obtained by the Investigating Agency, for further investigation, and submission of report under Section 173(8) of the Code of Criminal Procedure even after the presentation of original challan. He further submitted that the supplementary challan against the petitioner is not liable to be quashed.

After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Criminal Misc. No. M-49323 of 2007 4 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not.

Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. Annexure P5, is the supplementary challan. It is evident, from the allegations, contained in this challan, that Rana Hardeep Singh @ Lovely, petitioner, started firing, at the complainant, with an intention to kill him, whereas, Joginder Singh (non-applicant), damaged the main gate with 'Takua'. In view of the specific allegations, against the petitioner, that he fired, at the complainant, with an intention to kill him, at this stage, it could not be said, that the FIR and the supplementary challan, are, in any way, the result of political vendetta. This Court, in petition, under Section 482 Cr.P.C., cannot go into the defence plea of the petitioner. The disputed question of fact, cannot be adjudicated upon, by this Court, in a petition, under Section 482 Cr.P.C., proceedings wherein are summary in nature. The FIR and the subsequent proceedings, being not the misuse and abuse of the process of the Court and law, are not liable to be quashed.

Now coming to the question, whether, it was investigation or reinvestigation conducted by the Deputy Superintendent of Police, on the basis of which supplementary challan Annexure P5 has been presented. It is evident that an application was moved by the complainant that the challan should have been presented under Section 307 IPC, as the petitioner, fired at him, with an intention to Criminal Misc. No. M-49323 of 2007 8 kill him, as was stated by him in the FIR Annexure P1. It was on the basis thereof that further investigation/further enquiry was conducted by the Deputy Superintendent of Police, and he submitted report Annexure P4 that offence, under Section 307 IPC, was made out. There is nothing in Annexure P4, that on the basis of the application of the complainant, re-investigation was conducted. Section 173(8) of the Code of Criminal Procedure, reads as under:-

Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the Police Station obtains further evidence, documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub- Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-Section (2).

In Rama Chaudhary Vs. State of Bihar (2009(2) RCR (Crl.), 570 (SC), the principle of law, laid down, was that the Police has unfettered powers to conduct further investigation and submit further report under Section 173(8) of the Code before the Magistrate. In Hassanbhai Vallabbhai Qureshi Vs. State of Gujarat and others (2004(2) (Crl.), 463 (SC), the principle of law, laid down, was that the prime consideration for further investigation is to arrive at the truth and to do real and substantial justice. In K. Chandrasekhar Vs. State of Kerala & others (1998(2) RCR (Crl.), 719 (SC), the principle of law laid down was that further Criminal Misc. No. M-49323 of 2007 9 investigation cannot be rejected only on the ground that the report under Section 173(8) Cr.P.C., was filed at the trial stage. The principle of law, laid down, in these cases is fully applicable to this case. The submission of the Counsel for the petitioner, that the report under Section 173(8) Cr.P.C., Annexure P5, was submitted, after reinvestigation, being incorrect is rejected.

The next question that arises for consideration is as to whether, before further investigation, after the presentation of challan, permission of the Magistrate is required or not. Section 173(8) of the Code does not cast an obligation, upon the Police, to unnecessarily obtain the permission of the Magistrate, before holding further investigation. Had it been the intention of the law framers that no further investigation under Section 173(8) Cr.P.C., could be conducted, by the Police, after the presentation of challan, without the permission of the Magistrate, it would have an implicit terms provided for the same. The law framers, by not implicitly providing for such a permission, knew that the powers of the Police relating to investigation are unfettered and should not be unnecessarily interfered with. It is for the Court, after the presentation of report under Section 173(8) Cr.P.C., to consider, as to what weight is to be attached to the same.

Even in Ram Lal Narang Vs. State of Delhi Admn., AIR, 1979 (SC) 1791, it was held that it would be desirable that the Police should inform the Court and seek formal permission to make further investigation. No invariable/binding principle of law, was laid down, Criminal Misc. No. M-49323 of 2007 10 in Ram Lal Narang's case (supra) that prior permission of the Court, before conducting further investigation, was necessarily a condition precedent without which, it would be illegal. In Rama Chaudhary Vs. State of Bihar (2009(2) RCR (Crl.), 570 (SC), the Apex Court, held as under:- “The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory the Police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. From a plain reading of sub-Section (2) and sub-Section (8) of Section 173, it is evident that even after submission of Police report under sub-Section (2) on completion of investigation, the Police has a right to “further” investigation under sub-Section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “Further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Sub-Section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not fresh report regarding the “further” evidence obtained during such investigation.”

No help, therefore, can be sought by the Counsel for the Criminal Misc. No. M-49323 of 2007 11 petitioner, from Ram Lal Narang's case (supra). On the other hand, the principle of law, laid down, in Rama Chaudhary's case (supra), is fully applicable to the facts of the instant case. The submission of the Counsel for the petitioner, thus, being without merit is rejected.

13.. For the reasons recorded above, Criminal Misc. No. M-49323 of 2007, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

06.05.2010 Amodh (SHAM SUNDER) JUDGE