Gulzar Ahmad Mir vs State and Others

Y.P. Nargotra, J.—By this common judgment petition 561A, Cr. P.C. No. 46/2002 and two criminal Revision petition Nos. 17/2002 and

4/2003 are being disposed of as all these petitions are directed against the same order dated 16th of July 2002 passed by the Ld. Sessions Judge,

Anantnag.

By the chargesheet filed before the Sessions Judge, Anantnag seven accused persons named in the order of the Ld. Session Judge are alleged to

have kidnapped and killed the deceased Mohamad Maqbool Mir on 1.9.2001 by beating and shooting him with A.K. 47 gun. PWs Hamid Laway

and Yousuf Dar are the eye witnesses. Their evidence has been relied mainly by the Ld. Sessions Judge for framing charge against the accused

Gulzar Ahmad Mir for commission of offences under Sections 364, 302 and 149 RPC. Broadly speaking these eye witnesses in their statements

recorded u/s 161 Cr. P.C. have stated that when they went out in search of the accused at the scene of occurrence they saw that the deceased

was tied with the ropes and was being beaten up by eight/ten persons out of which they identified accused Gulzar Ahmad Mir, Iqbal Mir, Yaqub

Mir, Iqbal Mir and Farooq Laway; that the deceased was crying for help. Then after some time there was complete silence and twenty minutes

after they heard gun shots. They watched this from the place where they had concealed themselves, out of fear, when the accused went away, they

went to the scene of occurrence and saw the deceased dead.

The evidence of these witnesses clearly implicates the accused and the Ld. Trial Judge has ordered for framing up of the charge on the basis of

the aforesaid evidence against accused Gulzar Ahmad Mir, while the other accused whose names appeared in the evidence are absconding; as

such no order for charge against them has yet been made. The Ld. Counsel for the petitioner accused submits that FIR and Criminal proceedings

against the accused should be quashed because there is contradiction between the evidence of these eye witnesses and the other witnesses. As

according to Mr. Lone the other witnesses have not implicated the accused. I am not in agreement with the Ld. Counsel. Evidence of each witness

requires to be considered at its own face value and after taking the version in the statement, to be truthful it is to be seen whether commission of

any offence is disclosed. Contradictions between the two or more witnesses at the stage of charge is not to be taken note of because such

contradiction can only be material for assessing the credibility and value of the statement made during the trial. If there is clear evidence of any

witness available in the report submitted by the Investigating agency u/s 173, Sub-section (2) indicating the commission of an offence by an

accused such evidence must be accepted for the purposes of framing of the charge. This court will be loath to interfere with the framing of the

charge by a criminal court unless there is a legal bar to the continuance of the criminal proceeding or framing of the charge or there is no evidence,

prima facie to indicate the commission of any offence, I am supported in my view by the judgment of the apex court reported in Munna Devi Vs.

State of Rajasthan and anr, in which it has been held as follows:

We find substance in the submission made on behalf of the appellant. The revision power under the Code of Criminal Procedure cannot be

exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner

as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against

the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the

face value and accepted in their entirety do not constitute the offence for which the accused has been charged. This court in Kanti Bhadra Shah v.

State of W.B. has held that there is no legal requirement for the trial court to write a reasoned or lengthy order for framing the charges.

In the present case there is sufficient evidence which prima facie discloses the commission of the offence with which the accused Gulzar Ahmad has

been charged. Therefore there is no infirmity in the order of the Ld. Sessions Judge with regard to the framing of the charge against Gulzar Ahmad

Mir for commission of the offences under Sections 364, 302 and 149 of RPC.

The Ld. trial court has discharged the accused Fayaz ahmad Wani and Wahab Laway by the impugned order on the ground that there is no

evidence against the accused available in the statements of the witnesses recorded u/s 161/Cr. P.C. Though alongwith the charge-sheet

investigating agency has submitted the statements of PWS Mohammad Yousuf Dar, Abdul Rashid Laway, and Mohammad Sikander Khan

recorded by the City Magistrate, Srinagar on 19.11.2001 and 20.11.2001 u/s 164 of Cr. P.C. But the trial court has declined to take into

consideration these statements for considering the framing of the charge on the basis of the evidence contained therein. Ld. trial court has observed

as follows :

In view of the authoritative pronouncement made by the Supreme Court in AIR 1999 SC P 2565 I do not consider these statements recorded u/s

164 Cr. P.C. before the Magistrate by a stranger and not by an investigating agency. However the statement of Abdul Rashid Laway and

Mohamad Yousuf Dar as recorded u/s 161 Cr. P.C. by the police agency has already been considered and discussed. The statement of witness

Mohd Sikander can be considered on request during the trial if any of the parties requires it.

So Ld. Trial Judge by relying upon the aforesaid Supreme Court authority reported in Jogendra Nahak and Others Vs. State of Orissa and

Others, has refused to consider the statements of three witnesses recorded u/s 164 Cr. P.C. by the Magistrate.

The question therefore arising for consideration is whether the statements recorded u/s 164 Cr. P.C. can be considered under law for the

purposes of framing charge. It will be beneficial to take notice of the provisions contained in Sections 267, 268 and 269 of Cr. P.C. which are

reproduced hereunder:

Opening case for prosecution. -- When the accused appears or is brought before the court in pursuance of a commitment of the case u/s

205D the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove

the guilt of the accused.

Discharge -- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the

accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall

discharge the accused and record his reasons for so doing.

Framing of charge -- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that

the accused has committed an offence which-

(a) is not exclusively triable by the court of Sessions, he may frame a charge against the accused and by order transfer the case to the Chief Judicial

Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a

case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police

report,

(b) is exclusively triable by the court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under Clause (b) of Sub-section (1) the charge shall be read and explained to the accused and the

accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

From the bare perusal of Section 268 it transpires that if upon consideration of the record of the case and the documents submitted therewith

and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers, that there is no sufficient ground for

proceedings against the accused, he shall discharge the accused and record his reasons for so doing. This section thus requires that for deciding the

question of discharge the court must consider record of the case and documents submitted therewith and if after considering such record and after

hearing accused and the prosecution in this behalf if the court comes to the conclusion that there is no sufficient ground for proceedings against the

accused, only then accused can be discharged.

Now the question is what does the term ""record of the case and documents"" will imply. When an information relating to the commission of a

cognizable offence is received, whether orally or in writing by an Incharge of a police station, it is to be registered and entered in a book kept by

such officer in the police station in the prescribed form. u/s 154 Cr. P.C. after recording the FIR the investigation into the offence is required to be

conducted in accordance with the provisions contained in Part V and Chapter XIV of the Cr. P.C. After the investigation is complete officer

Incharge of the police station is required u/s 173 Sub-section (2) to submit a report in the form prescribed to the Magistrate empowered to take

cognizance thereon, such report is required under Sub-section (5) to be submitted alongwith;

(a) All documents or relevant extracts thereof on which the prosecution proposes to reply other than those already sent to the Magistrate during

the investigation.

(b) The statements recorded u/s 161 of all persons whom prosecution proposes to examine as witnesses. u/s 205D Cr. P.C, when such report

discloses an offence which is exclusively triable by the Court of Sessions such Magistrate before whom the police report has been submitted u/s

173 Sub-section (2) is required to commit the case to the court of Sessions and the Sessions court takes the cognizance upon the police report

committed to it for trial of the accused and proceeds under Sections 266, 267, 268 and 269 and proceeds with the trial if charge against any

accused has been framed.

For considering the question of charge and discharge the court is bound to consider the record of the case and documents submitted therewith.

In view of the provision contained in Section 173(5) Cr. P.C. the term ""record of the case and documents submitted therewith,"" used in Sections

268 and 269 Cr. P.C. would imply the statements recorded u/s 161 and all other material collected during investigation on which the prosecution

proposes to reply to prove the facts constituting the offence against the accused and such record may include statements of the witnesses recorded

u/s 164 Cr. P.C if upon such statements prosecution purposes to rely. Therefore if any statement recorded u/s 164 Cr. P.C of a witness forms the

part of the record submitted u/s 173 Cr. P.C., it has to be presumed that prosecution is proposes to rely thereon and as such the same also is

required to be taken into consideration for deciding the question of charge and discharge.

Ld. Trial court has relied upon the case Jogendra Nahak and Others Vs. State of Orissa and Others, for eschewing from consideration the

statements recorded u/s 164 Cr. P.C. In that case the four strangers in a criminal case made a motion before the High Court of Orissa for a

direction to a Magistrate to record their statements u/s 164 Cr. P.C. The High Court initially issued such direction and later revoked the same.

Those persons filed appeal by Special leave before the Supreme Court. The Hon'ble Supreme Court held:

If a Magistrate has power to record statement of any person u/s 164 of the code, even without the investigating officer moving for it, then

there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witness whose statements are

liable to be recorded by the Magistrate on being approached for that purpose and those not to be recorded. The contention that there may be

instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a

remedy to have their version regarding a case put on record, is no answer to the question whether any intending witness can straightway approach

a Magistrate for recording his statement u/s 164 of the code. Even for such witnesses provisions are available in law, e.g. the accused can cite

them as defence witnesses during trial or the court can be requested to summon thereunder Section 311 of the Code. When such remedies are

available to witness (who may be sidelined by the Investigating officer) we do not find any special reason why the magistrate should be burdened

with the additional task of recording the statement of all and sundry we may knock at the door of the court with a request to record their statement

u/s 164 of the code.

On the other hand, if door is opened to such persons to get in and if the magistrates are put under the obligation to record their statements,

then too many persons sponsored by culprits might throng before the partals of the magistrate courts for the purpose of creating record in advance

for the purpose of helping the culprits. In the present case, one of the arguments advanced by the accused for the grant of bail to them was based

on the statement of the four appellants recorded by the magistrate u/s 164 of the code. It is not a part of investigation to open such vista nor can

such step be deemed necessary for administration of justice.

Thus, on a consideration of various aspects we are disinclined to interpret Section 164(1) of the code as empowering a Magistrate to record

the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to

remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during trial, if any of the parties

requires it.

From the above quoted observations it does not emerge as a proposition of law that statements recorded u/s 164 Cr. P.C. shall not be taken

into consideration while considering the question of charge/discharge even if such statements form part of the investigational record and prosecution

is proposing to rely thereon. The Ld. trial court as such appears to have missed the distinction between the two situations.

The discharge of the accused Fayaz Ahmad Wani and Wahab Laway as such cannot be sustained and therefore the order impugned to that extent

is set aside. By the order impugned Ld. Trial court has rejected the application of S.S. Kulgam made u/s 173(8) for further investigation of the

case. Paras 3 and 4 and prayer of the application need to be noticed as in them the grounds for further investigation have been spelled out:

In at it has been noticed that the said I/O instituted the case in violation of some important police rules meant for check and balance system of the

fear and just investigation of the case and for the production of such a fit and established case where inference of doubt cannot be raised during

trial and also for submitting ever fact before the court.

In at while making a fact finding enquiry on the complaint made by legal heirs victim to IGP Kashmir and DIG, SKR anantnag. It has been noticed

that I/O has suppressed some material fact which helped a lot to the accused. Consequent upon the I/O Sonaullah has been placed under

suspension by DIG, SKR, Anantnag and enquiry standed entrusted to SSP Anantnag about the matter. Even some discrepancies were noticed in

the justicable investigation of the case.

Subsequent upon the above, information by way of this application through prosecution is to be submitted to honourable court as provided by

law.

Thus permission for further investigation was being sought as it had been noticed that I.O. who investigated the case had suppressed some

material facts.

The trial Judge in the impugned judgment has observed:

Perusal of this application reveals that although Ld. PP has already submitted an application for permission for further investigation but the police

agency has without waiting for the orders of the court ordered for further investigation in the case. It has been mentioned in the present application

that further investigation has been ordered about which a further report be submitted. The application is misconceived and against the provisions of

law. It is the settled principle of law that after the cognizance of the offence has been taken by the magistrate on receipt of police report, the police

cannot further investigate into the offence without permission of the magistrate. 1979 C LJ 70 : 1991 R CC 459. Therefore as per the Section 173

Clause (8) Cr. P.C after taking the cognizance of the offence by the court police can take up further investigation into the offence only with the

permission of the court, as such the application cannot be considered.

Therefore Ld. Trial Judge refused to consider the application of the police for further investigation simply because before ordering the further

investigation permission of the court had not been taken. So the question which arises for consideration is as to whether the powers of the

investigating agency to conduct further investigation is subject to the permission of the court which has already taken cognizance of the case in

which further investigation is sought to be conducted. Section 172 Sub-section (8) reads as follows:

Nothing is 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, oral or

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 may be, apply in relation to such report or reports as they apply in relation to such report or reports as they

apply in relation to a report forwarded under Sub-section (2).

The question as to how the power vested u/s 173(8) is to be exercised came for consideration before the Hon'ble S.C. in the case Ram Lal

Narang Vs. State (Delhi Administration), . Their Lordship in para 21 and 22 of the judgment have observed:

Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the

power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police

should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously

accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence

has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all

the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not

already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh

information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the

Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance

of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process freshly discovered to be involved and deal with

all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may

take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a

Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of

the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the court is really not of very great

substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the

Magistrate, is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.

We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every

fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of

the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various

agencies and institutions entrusted with different stags of such administration, it would ordinarily be desirable that the police should inform the court

and seek formal permission to make further investigation when fresh facts come to light. 22. As observed by us earlier, there was no provision in

the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after

cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to

further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority,

permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence

upon a police report submitted u/s 173 of the 1898 code, the right of the police to further investigate was not exhausted and the police could

exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police

could express their regard and respect for the court by seeking its formal permission to make further investigation.

From the aforesaid observations it is manifestly clear that though the power of further investigation conferred by Section 173(8) is independent

but in the interest of independency of the magistracy and judiciary, in the interests of purity of the administration of criminal justice and in the

interest of comity of various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the

police should inform the court and seek formal permission to make further investigation when fresh facts come to light.

From the observations of their Lordships it emerges out that though there is no statutory requirement of seeking permission for conducting

further investigation by the police yet it is desirable that such permission is ordinarily sought from the court which is seized of the matter, when by

submitting the report on which cognizance has been taken the right of the police for further investigation does not become exhausted.

Now the question arises whether taking up such permission is mandatory before a further investigation u/s 173 sub Section 8 Cr. P.C. is

conducted. In my view such permission is necessary, however when a motion for such permission is made before a Magistrate or the court, such

magistrate or court should be liberal in granting such permission, subject however to the condition that some facts are disclosed which prima facie

suggest that there is scope for further investigation into the case. Such situations can be visualized where involvement of some more persons In the

commission of the crime cannot be ruled out or some evidence can be discovered which can throw further light on the commission of the crime.

In the present case it has come in the evidence that 8, 10 persons were involved but the investigating agency has come up with a chargesheet

against seven persons only. In the present case the prosecution was seeking further investigation on the ground that I.O. had suppressed some

material facts and if this fact is presumed to be correct then further investigation would be necessary in the interest of justice. Ld. trial Judge ought

to have allowed further investigation in the case because further investigation after all is the right of the investigating agency which should not

ordinarily be curtailed, simply because further investigation had been ordered without prior permission is no ground to shut down further

investigation into the case. When the court has been approached for formal permission for conducting further investigation u/s 173(8) even after

starting of the further investigation, in my view it would be a sufficient compliance to the observations of his lordships of the apex court and would

not in any way disentitle the investigating agency. The order of the Ld. Trial court barring the further investigation therefore cannot be sustained in

the circumstances of this case and to that extent is set aside.

Therefore net result of the aforementioned discussion is that petition 561-A No. 46/2002 is dismissed. The discharge of accused Fayaz

Ahmad Wani and Wahab laway is set aside and the trial court is directed to re-hear the accused afresh on the question of charge and to consider

the statements of the witnesses recorded u/s 164 Cr. P.C. submitted with the chargesheet and for that matter the accused be again taken into

custody if released pursuant to the discharge. The application of the prosecution for further investigation shall stand allowed. The impugned order

to the extent of holding otherwise is set aside. The Criminal revision Nos. 17/2002 and 4/2003 are accordingly allowed and disposed of.