Balwinder Singh vs State of Punjab and others

This revisional petition is directed against the Order passed by the Ld. Magistrate on 18.10.2017, whereby the application of the Petitioner

under Section 156(3) of the Code of Criminal Procedure for further investigation had been dismissed.

Vide the impugned order, the Ld. Magistrate was pleased to dismiss the application filed on behalf of the present petitioner under Section

156(3) of the Code of Criminal Procedure, in which he had prayed for a direction upon the Special Investigation Team constituted in F.I.R. Case

No.55, dated 02.05.2017, registered at Police Station Kulgarhi, District Ferozepur, to make further investigation and submit a detailed Report

against the private respondents, after a challan had been already presented against various accused persons named in the F.I.R.

Background of the matter is that the F.I.R. was originally drawn up against all the named accused persons under Sections 148, 302, 307, 336

& 506 read with Section 149 of the Indian Penal Code and Sections 25 and 27 of the Arms Act. The substance of the allegations in the F.I.R.

was as under -

On 02.05.2017, Lakha Singh son of Chanan Singh and Gurwinder Singh son of Baldev Singh along with respondents of present application no.1

to 10 along with other six/seven unidentified persons came near the house of applicant Chanan Singh. Accused Lakha Singh who was armed with

rifle fired at Harnam Singh father of applicant Chanan Singh which hit on his stomach. Upon this, the brother of the applicant, namely, Joginder

Singh ran towards his father and then Ranjit Singh who is respondent no.3 who was also armed with riffle fired shot which hit on the stomach of

said Joginder Singh. Pargat Singh also fired shot upon Joginder Singh which hit on his left arm and respondent No.2 Sukhjinder Singh who was

also armed with revolver .32 bore fired on Joginder Singh and then Joginder Singh fell down. To save them, applicant moved towards them but

respondent No.7 Jaspal Singh armed with revolver fired on him and shot on hit left foot. During this time, Shavinder Kaur wife of Joginder Singh

and Gurpreet Singh son of Joginder Singh raised alarm and assailants fled from the spot.

Subsequently, after completion of investigation, the Special Investigation Team submitted challan against various accused persons. But the

offences imputed to them were separate. One set of accused persons comprising respondents No. 2 and 3, namely Gurwinder Singh and Lakha

Singh were challaned for the offences under Sections 302 and 306 read with Section 34 of the Indian Penal Code and Sections 25 & 27 of the

Arms Act, while another set was challaned only for the offences under Sections 148, 323, 341 & 506 read with Section 149 of the Indian Penal

Code. Further, three other persons originally named in the F.I.R., namely Gurwinder Singh son of Ranjit Singh, Pargat Singh son of Shumaar Singh

and Chanan Singh son of Arjun Singh, were declared innocent and a final Report to that effect was submitted against them.

The Ld. Magistrate after having received the challan/final Report, took cognizance of the same. The petitioner, who was the complainant in the

original F.I.R., however, filed his application under Section 156(3) of the Code of Criminal Procedure alleging that the Police had watered down

the allegations/offences committed by the accused persons under influence of a Local Leader of the Ruling Party of the State, and had, therefore,

tried to protect and shield those accused persons. After hearing the concerned parties, the Ld. Magistrate had dismissed the aforesaid application

with the following observations:-

In the considered and confirmed opinion of the court, the application deserves to be dismissed. The court has no power to order

fresh investigation or to order reinvestigation in the case. In the case in hand the report was called from police station Kulgarhi, they

have reported that they have already presented final report in this case. They have stated that they have filed challan against Lakha

Singh and Gurwinder Singh under Section 302/306/34 IPC and 25/27/54/59 of Arms Act. They have further reported that special

investigation team while presenting challan has declared Gurwinder Singh son of Ranjit Singh, Pargat Singh son of Shumaar Singh,

Chanan Singh son of Arjun Singh as innocent and against the remaining accused they have filed final report under Section

323/341/506/148/149 IPC. It would be pertinent to here to mention that the court has already denied the averments of the police

and have declined the bail of accused against whom it was alleged that they have only committed 323/341/506/148/149 IPC because

the challan in this case was joint against all the accused. However, as the investigation has already concluded there is no ground for

ordering further investigation in this case as already final report has been submitted. In this regard, it would be pertinent to mention the

observation of the Hon''ble Supreme Court given in case titled as Jile Singh v. State of UP, Criminal No.3592 of 2011. In that case

upon final report submitted by the police, case was committed to the court of Sessions for trial, then complainant filed a private

complaint against other accused who were declared innocent by the Court. Relevant para no. 8,9 and 10 are reproduced hereunder:-

Para No.8:-

The above legal position has been reiterated by this Court in a subsequent decision in the case of Kishori Singh (supra). The two

Judge Bench in Kishori Singh (supra) considered some of the provisions of the Code and earlier decision of this Court in Ranjit Singh

(supra) and two other decisions, namely Raj Kishore Prasad Vs. State of Bihar and India Carat (P) Ltd. Vs. State of Karnataka, and

held as under:-

Para No.9.

After going through the provisions of the Code of the Criminal Procedure and the aforesaid two judgments and on examining the

order dated 10.06.1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not

have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the

Charge- Sheet that was filed by the police under Section 173 Cr.P.C."".

Para No.10.

So far as those persons against whom charge-sheet has not been filed, they can be arrayed as ""accused persons"" in exercise of

powers under Section 319 Cr.P.C. when some evidence or materials are brought on record in course of trial or they could also be

arrayed as ""accused persons"" only when a reference is made either by the Magistrate while passing an order of commitment or by the

learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient

materials exists against them even though the police might not have filed charge-sheet, as has been explained in the latter three- Judge

Bench decision. Neither of the contingencies has arisen in the case in hand."" (Emphasis added)

The Ld. Magistrate further went on to hold that in spite of dismissal of the application, ""the applicant at the time of commitment can raise this

issue before the court that despite evidence they have been declared innocent and cognizance may be taken against them also or subsequently he

has appropriate remedy to proceed against them under Section 319 Cr.P.C. if some evidence or material comes against them on the file"".

It is, therefore, clear that the petitioner''s application was dismissed as in the view of the Ld. Magistrate, there was no scope for him to direct a

further investigation, once the challan in the case had already been submitted, and that in such eventuality, the only workable remedy available to

the complainant/petitioner''s side could be by resorting to the provision under Section 319 of the Code of Criminal Procedure which authorizes

summoning of more persons other than those charge-sheeted, in the event of any material emerging against them during trial. Being thus of the view

that directing further investigation was legally barred on account of the fact that challan had been submitted in the F.I.R. case, the Ld. Magistrate

did not venture to otherwise scrutinize the allegations/apprehension of the petitioner to the effect that the challan/Final Report in a watered down

form had been consciously submitted after improper investigation for any extraneous reasons as alleged.

The question thus emerging before this Court is whether the view of the Ld. Magistrate that further investigation is barred after submission of

challan by the Police Authorities pursuant to the investigation in an F.I.R. case is legally correct?

Both sides have relied on various Judicial pronouncements in favour of and against this legal proposition, which are now taken up for

consideration in the following paragraphs.

The decision of the Apex Court in Jile Singh''s case (supra) was relied upon by the Ld. Magistrate in holding that he was not competent to

order fresh investigation, since charge sheet in the case had already been submitted against certain accused persons. Relevant extract from the

aforesaid Judgment have been quoted by the Ld. Magistrate extensively in the impugned Order itself, and therefore, do not need repetition. This

Court has highlighted the observations of Supreme Court in Paras 9 & 10 of its Judgment. A close reading of those underlined observations would

however, go to reveal that the Magistrate is held to have been under restriction from issuing of process against certain persons, who may have

been originally named in the FIR, but not charge sheeted in the chargesheet (Challan) filed by the Police, and that the appropriate procedure to

also array those left out accused persons would have been only under exercise of powers under Section 319 Cr.PC, when some evidence or

material would be brought on record against them. But there is absolutely no reference to a situation of ordering further investigation after

submission of challan by the Police in the relevant extract of the Supreme Court''s Judgment relied upon and also reproduced by the Ld.

Magistrate.

Nevertheless, the Respondents'' side has relied on a two Judge Bench decision of the Apex Court in Amrutbhai Shambhubhai Patel Versus

Sumanbhai Kantibhai Patel & Ors . 2017 (1) R.C.R. (Criminal) 1030 wherein it was held inter-alia -

On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of

explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake

further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power

is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and

accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the

complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in

circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the

adjudication in hand.

In contradistinction, Sections 156, 190, 200, 202 and 204 of the Cr.P.C clearly outline the powers of the Magistrate and the courses open for

him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct

investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken

and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on

the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a

complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to

be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the

Code. If the power of the Magistrate, in such a scheme envisaged by the Cr.P.C to order further investigation even after the cognizance is taken,

accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated

by this Court and also the relevant layout of the Cr.P.C. adumbrated hereinabove. Additionally had it been the intention of the legislature to invest

such a power, in our estimate, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having

regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by

the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in both

the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though

the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark

upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to

direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person

appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render

the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to

stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further

investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in

the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not

entertainable as has been rightly held by the High Court.

The Petitioner''s side has however, quoted various decisions of the Supreme Court in support of the contention that after submission of challan,

the Magistrate is well within his powers to direct fresh investigation if he is satisfied that the Police have not done their job properly. In Abhinandan

Jha and others Versus Dinesh Mishra 1968 AIR (SC) 117, it was held -

Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is

made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a ''final report''? Even

in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances

when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and

complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under Section 156

(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or

incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police

to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final

report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final

report, constitute an offence, he, can take cognizance of the offence under Section 190(1) (b), notwithstanding the contrary opinion of the police,

expressed in the final report.

In Bhagwant Singh Versus Commissioner of Police 1985(2) R.C.R. (Criminal) 259, it was observed -

Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up

for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been

committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take

cognizance of the offence and issue process or (2) he may disagree with the report and 948 drop the proceeding; or (3) he may direct further

investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in

the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option

to adopt one of three courses; (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and taking the view

that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to

be made by the police under sub-section (3) of Section 156...........

In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Versus State of Andhra Pradesh 1999(3) R.C.R. (Criminal)

587 it was held-

Power of the police to conduct further investigation, after laying final report, is recognized under Section 173(8) of the Code of Criminal

Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to

conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.), AIR 1979 Supreme Court 1791.

The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to

make further investigation.

In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in

Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the

court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of

being heard. As law does not require it, we would not burden the Magistrate with such an obligation.

In Rubabbuddin Sheikh Versus State of Gujarat & Ors. 2010(1) R.C.R. (Criminal) 738, it was observed -

Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr. Rohatgi learned senior counsel

appearing for the state of Gujarat that after the charge sheet is submitted in Court in the criminal proceeding it was not open for this court or even

for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be

concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order

to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the

investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an

appropriate case, to hand over the investigation to an independent agency like CBI.

In Samaj Parivartan Samudaya and others Versus State of Karnataka and others 2012(3) R.C.R. (Criminal) 788, a Larger (Three Judge)

Bench of the Apex Court held -

36.........It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet

before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Criminal Procedure

Code in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Criminal Procedure Code to direct police

investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of

Section 210 Criminal Procedure Code use the expression ?shall'' requiring the Magistrate to stay the proceedings of inquiry and trial before him in

the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the

Criminal Procedure Code that initiation of an investigation and filing of a chargesheet do not completely debar further or wider investigation by the

investigating agency or police, or even by a specialized investigation agency. Significantly, it requires to be noticed that when the court is to ensure

fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in

an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with

law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect

or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of

the Court and any lapse in this regard would tantamount to error of jurisdiction.

In Sakiri Vasu Versus State of U.P. and others 2008(1) R.C.R.(Criminal) 392, it was observed -

As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper

investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate

himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Criminal Procedure Code simply

because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been

done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail,

under Section 156(3) Criminal Procedure Code before the Magistrate or by filing a criminal complaint under Section 200 Criminal Procedure

Code and not by filing a writ petition or a petition under Section 482 Criminal Procedure Code.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the

High Court should not ordinarily interfere.

In Union of India vs. Prakash P. Hinduja and another, 2003(3) RCR(Criminal) 556 : 2004(1) Apex Criminal 325 : 2003 (6) SCC 195 (vide

para 3), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio

of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3)

Criminal Procedure Code is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned

police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same

(though he should not himself investigate).

Another Larger (Three Judge) Bench of the Supreme Court in State of Bihar and another Versus J.A.C.Saldanna and others 1980(1) SCC

554 held -

The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in

conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 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). Therefore, the High Court was

in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct

further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an

investigation by an officerin- charge of a police station, which expression includes police officer superior in rank to such officer, cannot be

questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a

short answer to the contention raised on behalf of respondent 1.

Similarly, in T.C.Thangaraj Versus V. Engammal and others 2011(3) R.C.R. (Criminal) 751 the Apex Court observed -

..............It should also be noted that section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police

performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the

Police to carry out the investigation properly, and can monitor the same. (see Sakiri Vasu v. State of U.P. & Ors. - 2008 (1) R.C.R. (Criminal)

392 : 2007(6) R.A.J. 695 : (2008) 2 SCC 409).

In Minu Kumari and anr. Versus State of Bihar and ors. 2006(3) R.C.R. (Criminal) 271, the Supreme Court referred to and relied upon in its

earlier decision in Bhagwant Singh''s case (supra) and also held -

When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may

conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1)

accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may

direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that

according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of

adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take

the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further

investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under

Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the

effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police

during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does

not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made

out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to

the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1) (b) and

direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and

202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also.

[See M/s. India Carat Pvt. Ltd. v. State of Karnataka and another, 1989 (1) RCR (Crl.) 395 ].

In view of the above cited decisions of the Supreme Court, there remains no doubt that the Magistrate is surely within his power to direct

further investigation in an appropriate case if he is otherwise satisfied that the investigation done by the Police is improper. As already noted earlier,

the restriction assumed by the Ld. Magistrate in relying upon the decision in Jile Singh''s case (supra), extended only to the power of issuing

summons upon an originally named accused person not charge sheeted after investigation to face trial along with the charge sheeted once. But

extending the same restriction to scrutinize the investigation report for the purpose of directing further investigation if necessary, was clearly a

manifest error on the part of the Ld. Magistrate.

The decision in Amrutbhai Shambhubhai Patel''s case (supra) relied upon by the Respondents'' side though later on in point of time does not

refer to a majority of the previous decisions cited on behalf of the Petitioner. In particular, the Larger Bench decision in Samaj Parivartan

Samudaya''s case (supra) and T.C.Thangaraj''s case (supra), in which it had been clearly held that the Magistrate is certainly within his power to

direct further investigation after submission of the charge sheet by the Police even when cognizance had taken, was neither discussed nor referred

to in the two Judge Bench decision and consequently is rendered ''per incuriam'' and therefore, of no help to the Respondents.

To sum up therefore, it is held that the impugned Order passed by the Ld. Magistrate was erroneous in law and is thus liable to be set aside.

Consequently, the present petition is allowed after quashing the impugned Order with a direction upon the Ld. Magistrate to grant an opportunity

of hearing to Petitioner''s side for the purpose of deciding whether or not sufficient grounds exist to hold the Challan/Final Report submitted by the

Police after investigation as having been done improperly or unsatisfactorily, and thereafter to pass an appropriate order afresh on his application

under Section 156(3) Cr.PC on its own independent merits.