Gajendra Singh Kunwar vs State Of Uttarakhand & Another

Sharad Kumar Sharma, J

A very short question, which emerges for consideration in the instant criminal revision is that as to whether under the given set of circumstances of the case as involved herein being Criminal Case No. 231 of 2019 'State vs. Chandra Mohan Singh', on which the cognizance have been taken by the Court on submission of the chargesheet by the Investigating Officer for the offences under Section 323, 504 and 506 of IPC. The question which emerges for consideration is arising out of the order dated 08.05.2019 as passed by the Judicial Magistrate I Class, Srinagar, Pauri Garhwal in the aforesaid case, wherein, by virtue of the impugned order while considering the application of the revisionist making a prayer for further investigation, the same has been rejected. Consequently, the present revision challenging the order dated 08.05.2019.

The contention of the revisionist in the case at hand is that though he has lodged an FIR, being FIR No. 60/2018 on 1.12.2018, complaining of commission of offence under Section 323, 504 and 506 of IPC, which was registered at P.S. Srinagar, District Pauri Garhwal. On the registration of the said FIR an investigation was conducted and the Investigating Officer on conclusion of the investigation has submitted a chargesheet being Charge Sheet No. 1/2019 dated 31.01.2019, wherein, the Investigating Officer, in the chargesheet has observed that as per the examination of as many as ten witnesses in relation to the aforesaid offences, the offence under Sections 323 and 504 is said to have been made out and consequently, he has submitted the report before the Magistrate concerned.

In pursuance to the submission of the chargesheet by the Investigating Officer, the Magistrate concerned by an order dated 8.05.2015, in fact was not satisfied with regards to the nature of offences, which was reported by the Investigating Officer in his report and the report submitted thereto and consequently, he has rejected the application under Section 156(3) and had directed the accused persons for putting in appearance on 11.06.2019 for the offences, which are reported to have been made out in the chargesheet, particularly those related to the offences under Sections 323 and 504 of IPC.

The grievance of the revisionist in the present revision, which has been raised before this Court is to the effect that before the Magistrate concerned he has rather moved an application invoking a provisions contained under Section 173(8) for the purposes of seeking direction for further investigation from the Magistrate to the Investigating Officer for conducting a further investigation in relation to the investigation, which was reported by him as against the accused persons. The application of the revisionist has been rejected by the Court concerned on the ground that since the chargesheet as submitted by the Investigating Officer and the chargesheet as has already been accepted and based on the propriety of the chargesheet since the Court has already taken cognizance of the offences as narrated therein in the summoning order there was no scope for direction for further investigation, is required to be submitted on the ground that as soon as the cognizance is taken by the Court no further investigation could be directed to be carried.

In support of his contention, the learned counsel for the revisionist has submitted that the reason, which has been assigned by the Court for not directing the further investigation on the premise that on the submission of the chargesheet the cognizance since has already been taken by the Magistrate concerned, hence, after taking of the cognizance of the offences the powers under Section 173(8) for conducting the further investigation cannot be directed. In support of his contention that the said embargo of a restraint being exercised by the Magistrate for directing the further investigation in the light of the aforesaid developments would not be permissible under law and in relation thereto, the learned counsel for the revisionist has placed reliance to a judgment as rendered by the Coordinate Bench of the Calcutta High Court in Criminal Revision No. 2115 of 2015 'Smt. Indranil Mukherjee vs. State of West Bengal & Another', wherein, the learned Single Judge of the Calcutta High Court while considering the implications contained under Section 173(8) of the Code of Criminal Procedure in paragraph 31 of the judgment has recorded a finding to the effect that the powers of the Court for directing to conduct a further investigation cannot be curtailed merely because of the fact that the Court has already taken cognizance of an offence on submission of the chargesheet by the Investigating Officer.

In support of the contention with regards to the extensive power, which has been granted to the Magistrate concerned under Section 173(8) for directing to conduct a further investigation the Coordinate Bench of Calcutta High Court, on which the revisionist has placed reliance on a judgment as rendered by the Hon'ble Apex Court in the case of Samaj Parivartan Samuday & Others vs. State of Karnataka & Others, wherein, the said ratio has been propounded that taking cognizance by a Magistrate of an offence can never be an embargo in exercising the powers by the Magistrate for directing further investigation. Paragarph 31 and 32 of the said judgment are quoted hereunder:

"31. Thus, the CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-Sections (2) to (6) of Section 173 CrPC to the Court. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge sheet in terms of Section 173 CrPC) is permissible in any case impliedly but in no event is impermissible.

A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as afore- noticed and secondly, he could file a complaint under Section 200 CrPC, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI of the CrPC. In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond reasonable doubt is entirely on the prosecution. In a complaint case, the complainant is burdened with the onus of establishing the offence and he has to lead evidence before the Court to establish the guilt of the accused. The rule of establishing the charges beyond reasonable doubt is applicable to a complaint case as well."

While referring to the judgment of 'Samaj Parivartan Samuday and Others vs. State of Karnataka & Others' as reported in 2012(7)SCC 407 the learned counsel for the revisionist has drawn the attention of this Court to the contents of paragraph 27 of the said judgment, which is quoted hereunder:

"27. Once the investigation is conducted in accordance with the provisions of the CrPC, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with non-obstante language that nothing in the provisions of Section 173(1) to173(7) 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. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr. [(2001) 7 SCC 536]}. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. "

In the judgment referred above it has been observed that an investigation being conducted by the Investigating Officer in pursuance to the provisions contained under the Code of Criminal Procedure and once a report has been filed before the Court of competent jurisdiction to take cognizance of the offence, which has been reported in the chargesheet, the Hon'ble Apex Court has held that despite of submission of the chargesheet and taking of cognizance by the Magistrate, but still the powers of the Magistrate are not curtailed from directing to conduct a further investigation while exercising his powers under Section 173(8) merely on the pretext that the chargesheet has been submitted.

In view of the ratio on which the revisionist has relied with, apparently both the judgments only have recorded a finding with regards to the powers, which has been conferred on the Magistrate under law in the light of the provisions contained under Section 173(8) for the purposes of directing to conduct a further investigation, but this Court while exercising its powers under Section 397 to be read with Section 401, has also to visualize the gravity of the offence, which has been complained of as to whether the allegation levelled the same would have a wider impact in the absence of not holding of a further investigation over the conduct of a fair trial with regards to the nature of offence, which has been complained of.

In the instant case if the propriety of the offence, which is complained of is taken into consideration in the light of the allegations, which has been leveled in the FIR pertaining to the assault and the injuries, which has been suffered by the revisionist and also with regards to the other nature of offences, which has been mentioned therein, it seems that there were trifle altercations, which has taken place between the complainant and the accused persons. Even if the finding, which has been recorded in the chargesheet is considered, a finding has been recorded in the chargesheet to the effect that the allegation of extending threat to the injured persons by the accused person is not made out, though only the offence which is said to have been found to be actually committed against the complainant was with regards to the minor altercations, which has been observed to be of the following effect and nature as quoted in the chargesheet:

"वादी पीड़ित के साथ खींचतानी व गाली गलौच करने का अपराध धारा 323,504 आईपीसी का बखूबी साबित होता है अभि0 चन्द्रमोहन सिंह कुंवर का चालान जरिये आरोप पत्र 01/219 धारा 323, 504 आईपीसी मा0 न्यायालय प्रेषित किया जा रहा है।"

The intensity of an allegation as far as the complainant is concerned, when he registers an FIR for commission of an offence, it always depends upon the perception of the complainant with regards to the nature of allegation, which has been leveled by the complainant as against the accused persons and normally its a human tendency that the gravity of an allegation which is narrated in the FIR is often exaggerated in order to attract more serious offences in order to make out a case as against the accused persons. In order to exercise the powers under Section 173(8) the Magistrate has also to consider and exercise checks and balances, which has to be done after scrutinizing the contents of the FIR and the chargesheet as to whether at all the nature of allegations, which has been leveled and the investigation report which has been submitted, at all calls for holding of further investigation though the ratio on which the reliance has been placed by the learned counsel for the revisionist where an embargo of submission of the chargesheet or taking of cognizance would not create any impediment in the process of directing to conduct a further investigation, those were the cases where the allegation, which was leveled in the FIR were pertaining to the offence under Section 341, 325, 504, 506 and 34 of IPC, whereas, in the other case on which the reliance has been placed was pertaining to an offence as it has been settled down by the Hon'ble Apex Court that too related to the offences which were in relation to the offence under sub-section (3) of Section 3 of the Environment Protection Act, and other offences as reflected from the chargesheet, which has been submitted by the CBI, which related to the offences under Sections 409, 420, 468 and 471 of the IPC. They were the offences of much serious in nature and were in the nature of public offences and not an offence against an individual.

Here in these circumstances the Court while considering the application for further investigation is also required to apply its judicious mind with regards to the gravity of offences as has held that there could be a situation where a further investigation would be necessary depending upon the circumstances of a particular case. While accepting the ratio pertaining to the powers of the Magistrate to be exercised under Section 173(8) with regards to the powers vested for conducting of further investigation, this Court is of the view that the ratio on which the learned counsel for the revisionist has relied with they lay down an absolute correct preposition of law so far as it relates to the extent of powers which can be exercised by the Magistrate concerned for directing further investigation, but the said power for directing further investigation cannot be invariably exercised in all circumstances and in relation to all cases, which are even of a trifle nature. Hence, though while accepting the preposition as relied by the learned counsel for the revisionist, but considering the set of allegations in the FIR and the findings recorded in the chargesheet in the present case, this Court is of the view that in the circumstances as prevailing therein, it was not such a case, which could call for a Magistrate to exercise his powers under Section 173(8) for directing to conduct a further investigation.

Consequently, this Court is not in agreement with arguments as extended by the learned counsel for the revisionist. Consequently, the revision fails and is, accordingly, dismissed.