Alark Singh vs Udai Prakash and Another

A.L. Vaidya, J.—A short legal proposition involved in the present revision petition is as follows:

Whether under a set of circumstances, the magistrate can ask for further investigation after the Investigating Officer has submitted report for cancellation of the case u/s 173 Code of Criminal Procedure.?

The facts giving rise to the present proceedings can be enumerated as under:

One Smt. Prem Lata through her General Attorney, one Shri Jabbar Singh Bhandari preferred a criminal complaint in the court of Chief Judicial Magistrate, Nahan u/s 380 I.P.C. and the learned Chief Judicial Magistrate sent that complaint to the police u/s 156(3) of the Code of Criminal Procedure on the basis of which F.I.R. u/s 380 IPC was registered vide No. 75 of 1984. The police submitted the report after investigation to the learned magistrate in April, 1986 for cancellation of the case. According to the Investigating Officer, no offence u/s 380 IPC was found to have been committed and the Investigating Officer had sought the permission for instituting proceedings u/s 182 IPC against the complainant. Learned Public Prosecutor opined and agreed with the cancellation report, but observed that the permission for proceeding u/s 182 IPC against the complainant be not granted. Learned Public Prosecutor further observed that the room where valuables were alleged to have been stored could not be opened for verification as well as all the shareholders did not turn up to open their respective locks and had further opined that the matter was of civil nature and the parties, if so advised, could redress their grievances in the civil court.

It may be referred here that F.I.R. was registered on account of theft, house-breaking etc. having been committed in the Royal Place at Nahan. It was averred in the complaint also that inspite of the written information having been lodged with the police station at Nahan that the aforesaid offences have been committed by the accused in the manner detailed in the report lodged to the police, but no action had been taken. The subject-matter of the theft was reported to be wealth amounting to lacs of rupees.

The complainant filed a protest petition before the magistrate when the aforesaid cancellation report was submitted. In that protest petition, it was prayed that in the interest of justice, the Court may decline to accept the report of the police presented in the case and order investigation/re-investigation of the offences preferably by some independent and credible investigating agency so that the truth might be unearthed. However, the aforesaid prayer was made on various grounds which mainly included the conduct of the police observed in the investigation of the case. It has been pleaded in the protest petition that the police had failed to take up the matter for investigation in the right earnest inasmuch as the investigating agency stopped the investigation half way and the police acted contrary to the established procedure of investigation and law and did not associate the complainant in the matter of investigation at any stage except for a statement recorded earlier. It was also pleaded that the opinion formed by the police was bad and erroneous as the police either through bonafide error or negligently did not make full investigation and that it had failed to ascertain the facts and collect the evidence and did not make a complete inquiry to discover the relevant data. In a way, the police has been blamed for the entire investigation.

After hearing the parties, the Chief Judicial Magistrate passed the order directing the police to make further investigation into the case.

The aforesaid order was assailed before the learned Sessions Judge, who after hearing the parties came to the conclusion that the Chief Judicial Magistrate may pass an order on the final report submitted by the police u/s 173 Code of Criminal Procedure . in the light of the observations in accordance with law. The learned Sessions Judge having relied upon H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), came to the conclusion that further investigation could not be ordered and the only alternative available to the Chief Judicial Magistrate under the circumstances was as under:

(1) The magistrate may decide that there was no sufficient ground for proceeding further and drop action;

(2) He may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process and he may do so without being bound, in any manner, by the conclusion arrived at by the police in their report; and

(3) He may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses u/s 200.

The aforesaid order has been assailed in the present petition on various grounds.

I have heard the learned Counsel for the parties and have also been taken through the relevant record of the case.

There is no dispute to the proposition that this Court is empowered u/s 397 Code of Criminal Procedure. to examine the record in order to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of any inferior Court.

It has been forcefully contended on behalf of the Petitioner that under the Code of Criminal Procedure or any other law for the time being in force, there is no bar whereby a magistrate cannot send back the case for further investigation after the Investigating Officer had submitted the cancellation report. On the other hand, learned Counsel for the Respondent has disputed this proposition and has submitted that once cancellation report has been submitted by the Investigating Officer, the only way open to the magistrate is to decide in the manner as has been so done by the learned Sessions Judge and further investigation legally cannot be ordered.

It is not so simple a matter as has been contended on behalf of the parties. Both the parties have tried to find support from the precedents laid down by none else than by the Apex Court of the country.

In State of Bihar and Another Vs. J.A.C. Saldanha and Others, it has been held that the power conferred upon the magistrate u/s 156(3) can be exercised by the magistrate even after submission of a report by the Investigating Officer which would mean that it would be open to the magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8) of the Code of Criminal Procedure. There is no doubt that in the aforesaid reported case, the powers of the State Government to direct further investigation u/s 3 of the Police Act were in issue and it was held that it was not correct to say that the State Government in exercise of the powers of superintendence u/s 3 of the Police Act lacked the power to direct further investigation into the case. The Court came to the conclusion that there was no conflict between Section 3 of the Police Act and Section 173(8) of the Code of Criminal Procedure. It was held that the power to direct investigation or further investigation is entirely different from the method and procedure of the investigation and competence of the person to investigate.

In H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), Justice Chinnappa Reddy, while dealing with the aforesaid proposition made the following observations:

A Magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and received a police report u/s 173(1), may thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine on oath the complainant and his witnesses u/s 200. If he adopts the third alternative, he may hold or direct an inquiry u/s 202, if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.

In the aforesaid case, the facts were that a complaint was submitted to the Judicial Magistrate, Ist Class, Chandigarh by one Shri Gurnam Singh on 13.8.1979 alleging that the Appellant H.S. Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979 at about 8 A.M., trespassed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless. Bakshish Kaur was the widow of the brother of the Appellant and the adoption made by Bakshish Kaur was not to the liking of the Appellant. It was alleged in the complaint that the Appellant was armed with a revolver which he pointed at the complainant. The complainant raised a hue and cry. The accused and his companions fled away in their car. As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979. The magistrate to whom the complaint was submitted ordered an investigation by the police u/s 156(3) of the Code of Criminal Procedure. The police after completing the investigation, submitted a report to the magistrate u/s 173 of the Code of Criminal Procedure stating that the case against the Appellant was not true and that it might be dropped. The police arrived at the conclusion that the case against the Appellant was not true as their investigation revealed, according to them, that the Appellant was at Amritsar with Shri Jai Singh, District Magistrate, Amritsar at 9.00 A.M. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8.00 A.M. on August 11,1979. The learned magistrate after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the Appellant. Aggrieved by the issue of process, the Appellant filed Criminal Miscellaneous case No. 26-M of 1980 in the High Court of Punjab and Haryana to quash the proceedings before the magistrate. The application was dismissed by the High Court and the Appellant filed a petition for the grant of special leave to appeal against the order of the High Court. The leave to appeal was granted and the appeal with the consent of the parties was heard straightway. The appeal after hearing was dismissed.

The ratio of the aforesaid two cases decided by the Apex Court is quite distinct. In the earlier case, the authority of the magistrate to send the case for further or re-investigation has been held to be valid. While in the latter case, this aspect of the matter that the magistrate could send for further investigation of the case to the police after having received the cancellation report u/s 173 of the Code of Criminal Procedure, has not been specifically dealt with. However, in the latter case, three options have been made available to the magistrate to take action, but specifically the point has not been dealt with.

On the basis of the aforesaid law laid down by the Supreme Court, it can safely be inferred that the magistrate has power conferred upon him not to accept the conclusion of the Investigating Officer and direct further investigation. However, in case magistrate does not select to order further investigation, he is legally entitled to make himself available the three alternatives referred above in H.S. Bains v. State (supra) to deal with the situation.

Thus, there cannot be any hard and fast rule to be followed by the magistrate that further investigation can be or cannot be ordered, but the facts of each individual case would be the guiding factor to arrive at any conclusion for the magistrate to pass an appropriate order in a particular set of circumstance.

In the present case, the Investigating Officer has recommended for the cancellation of the case. The petition preferred by the complainant assailing the cancellation order is based upon various allegations made against the police in general and Investigating Officer in particular. The conduct of the police during the investigation has not been appreciated by the complainant. In such a circumstance, where the police action during the investigation has been assailed. I think in the background of such circumstances, the order passed the learned Sessions Judge was most reasonable and valid one. The order of the learned Sessions Judge being assailed in the present revision petition has not caused any prejudice to the case of the complainant. There is no illegality or any legal infirmity found in the said order. Learned Sessions Judge has only directed the magistrate to deal with the case in accordance with the observations made by him in the order which have been discussed earlier. The magistrate after hearing the parties could drop the proceedings or could take cognizance himself of the offence made out from the record of investigation or to take cognizance of the private complaint after recording preliminary evidence and summon the accused or pass an appropriate order after examining the preliminary evidence as per the Code of Criminal Procedure.

In view of the foregoing reasons, this Court does not find any illegality in the order under reference, which order otherwise in the context of the circumstances of the present case, was not only legal but is not at all prejudicial to the interest of the complainant. With these observations, the present revision petition fails and is accordingly dismissed.