Leela Das and Another vs State C.B.I. and Another

Joytosh Banerjee, J.—This revision is directed against an order dated 10-7-2000 passed by the learned Chief Judicial Magistrate, District Andamans allowing one protest petition filed by Mt. Leela Das, widow of deceased Swapan Kumar Das, directing further investigation of the case by a competent officer of Central Bureau of Investigation, New Delhi.

I have heard the extensive submissions of Mr. Hazra, the learned Advocate for the Central Bureau of Investigation, the revisionist petitioner and also Mr. Banerjee, learned Advocate for the opposite party, de facto complainant. It transpires that the revisionist petitioner wants to challenge the order impugned on three-fold grounds, namely :-

Firstly, that the order impugned is not a speaking order as it fails to give any indication, why the learned Chief Judicial Magistrate directed the authority to investigate the case further. It has been further contended that the order impugned fails to indicate the precise reason for ordering further investigation.

Secondly, it is urged that since, charge-sheet against one of the accused was submitted, on the basis of which the learned Magistrate took cognizance of the offence and committed the case to Court of Sessions u/s 209 of the Code of Criminal Procedure, the learned Magistrate was not in seizing of the matter and, therefore, he cannot direct the Central Bureau of Investigation to further investigate into the case.

Thirdly, it is urged that once cognizance has been taken in the instant case, the Magistrate should not be allowed to go back to pre-cognizance stage of the case in order to direct the police to further investigate u/s 156(3) of the Criminal Procedure Code.

The learned Advocate for the opposite party, on the other hand, has submitted that the order impugned is a speaking order wherein the learned Magistrate assigned sufficient reasons for the ultimate direction given to the authority in connection with the further investigation of the case. In this connection, the learned Advocate relying on the decision of the Apex Court in Kamlapati Trivedi Vs. State of West Bengal, has contended that the learned Magistrate here has discharged his duties in his executive capacity and, therefore, it would be sufficient if it is seen that the learned Magistrate formed his opinion after going through the case diary and other necessary papers. Relying (Regarding) the second contention as above, the learned Advocate has argued that since the order was passed u/s 173(8) of the Code of Criminal Procedure, the learned Magistrate is competent to pass such a direction upon the investigating authority. Regarding the third point taken here it is the contention of the learned Advocate that when the revisionist petitioner, Central Bureau of Investigation filed an application before the Magistrate for further investigation and when afterwards submitted final report in connection with the further investigation, that investigation being done following provisions contained in Section 173(8) of the Code of Criminal Procedure, the other provisions of Section 173 of the Code of Criminal Procedure, namely Clause (2) to (6) of the said Section would be applicable in the instant case mutatis mutandis and, therefore, there would be no bar created for the Magistrate to direct further investigation or for the police to submit a report in final form following such investigation.

Before I proceed to consider the rival contention as furnished above, the facts leading to the instant Criminal Revision should be described in short and these are as follows :-

Deputy Superintendent of Police Raghubir Singh issued a radiogram message to S. K. Das, Sub-Inspector of Police for joining with the raiding party headed by the said Deputy Superintendent of Police for the purpose of raid upon the Burmese poachers and by the said radiogram, Sub-Inspector S.K. Das was directed to come to Mayabandar on 17-1-1995 with his service revolver in order to proceed to the spot to carry out the combing operation. On 18-11-1995 Deputy Superintendent of Police Raghubir Singh along with other police personnel under his control proceeded to the Northern side of West coast at about 8-30 a.m. in the morning and then started from Mayabandar by three mechanised dingi assisted by forest department. On 19-11 -1995 Sub-Inspector S. K. Das was murdered during the duty hours as Officer-in-Charge, Diglipur Police Station. On 22-11 -1995 the father-in-law of the victim lodged an FIR in connection with the said death. On 26-10-1996 the Central Bureau of Investigation submitted a Charge Sheet against accused Saw Bonny and through an application before the competent Court kept the further investigation alive. On 6-7-1998 the Investigating Officer of the case submitted final report before the Magistrate at Mayabandar.

Taking the first thing first, I find on going through the order impugned more carefully that the learned Magistrate has given an indication in such order that he considered the materials placed before him in the case diary before passing that order. This would be reflected by his following observations in such order at page 9 which runs as follows ;

On careful circumspection of case diary (Vol. 14, 14-Aand 14-B maintained by I.O.) and crime file involving G.R. Case 367/95 pertaining to investigation concluded his final report Court has reason to believe that I.O. ought not to have side-stepped and apprehension expressed by the defacto complainant cannot be lost sight off.

Then at page 17 of the said order, the learned Magistrate further observed -

After bestowing my anxious consideration and perusal of case diary, I definitely feel, investigation is misdirected and perfunctory.

True it is that from the aforesaid observation, one cannot get any indication as to what is the defect of the previous investigation done by the Central Bureau of Investigating following which such authority submitted final report. Thus the question is whether any detail order showing shortcomings of the investigation, is required under the law or not.

From the judgment of the Apex Court in connection with Kamalapati Trivedi v. State of West Bengal, supra, it transpires that the said decision has given a clear indication as to what should be done by the Magistrate in a case like this. The Hon''ble Court first of all quoted the finding of the Apex Court in connection with the case of Abhinandan Jha and Others Vs. Dinesh Mishra, . Thus it transpires from the said reported case that after submission of the final report by the police under Sub-section (1) of Section 173 of the Code of Criminal Procedure, the Magistrate has got the following courses open, namely, (1) he may agree with the report of the police and file the proceedings, (2) not agree with the police report and (a) or further investigation or (b) hold that the evidences are sufficient to justify forwarding of the accused to the Magistrate and take cognizance of the offence complained of. Thereafter, the Apex Court proceeded to observe as follows :

But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be recorded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2(a). The order passed by the Magistrate in each of the other two courses, that is, (1) and 2(b) follows the conclusion of the investigation and is a judicial order determining the rights of the parties.

The aforesaid observation clearly supports the contention of the learned Advocate for the opposite party that the order impugned is not an order passed by a judicial order, and, therefore, it need not specify the precise reason for the ultimate order of the learned Magistrate directing the Central Bureau of Investigation to further investigate the case. That being so, I find that the order impugned cannot be set aside on the aforesaid ground.

Next comes the question whether the learned Magistrate has got seisin over the matter for the purpose of passing the order impugned. In my considered opinion, this particular argument canvassed by the learned Advocate for the petitioner has got no force at all. Admittedly, the order impugned has been passed pursuant to a protest petition filed before the Magistrate by the defacto complainant.

It is well-settled that the police if after investigation submitted final report, before accepting the same the Magistrate is required to issue notice upon the defacto complainant and the defacto complainant on getting such notice or otherwise may file a protest petition as the case here against the submission of the final report. The final report is to be forwarded u/s 173(2) of the Code of Criminal Procedure to the Magistrate and there is no provision for forwarding such report to the Court of Sessions where the sessions case which arose out of the Charge-sheet filed in earlier occasion against one of the accused. It is within the power of the Magistrate either to accept that report or not.

No doubt, Section 319 of the Code of Criminal Procedure empowers the Court to proceed against other persons appearing to be guilty of offence. In this way, Section 319(1) which occurs in Chapter 24 dealing with the general provisions as to the enquiries and trials applies to all Courts including a Sessions Court so that the Sessions Court shall have the power to add any person, not being the accused before it, but as against whom there appears during the trial sufficient evidence indicated his involvement in the offence. Therefore, it is explicit that such power can be exercised only if it appears from the evidence recorded by the Court that no person has committed an offence but such evidence would not include a statement recorded by the police. In this background, this argument too fails.

Now the question is whether the Magistrate should be allowed to go back to pre-cognizance stage by directing the police to investigate further specially in view of the fact that in the instant case, in respect of one accused charge-sheet was submitted and the police after giving due information to the Magistrate, proceeded with the further investigation but subsequently filed final report in connection with the said further investigation. In support of his argument, the learned Advocate for the petitioner has referred few decisions of the Apex Court. One of such decision is reported in State through C.B.I. Vs. Dawood Ibrahim Kaskar and others, State through C.B.I. Appellant v. Daud Ibrahim Kaskar but on careful perusal of the reported decision. I find that same relates to question when and under what circumstances, the Court can invoke provisions of Section 73 of the Criminal Procedure Code relating to issuance of Warrant of Arrest. There is practically nothing in such reported decision which can come to the help of the argument canvassed by the petitioner regarding going back to pre-cognizance stage.

The learned Advocate has further placed his reliance on the case of Randhir Singh Rana Vs. The State Being the Delhi Administration, . The question before the Apex Court that in that case whether Judicial Magistrate after taking cognizance of an offence on the basis of a police report and after appearance of the accused in pursuance to the process issue can order on his own further investigation of the case and the Apex Court, after examining the question with the assistance of some related decisions of such Court and that of the High Courts came to the conclusion that the Magistrate on his own cannot order for further investigation. But this reported decision too will not be helpful in the argument canvassed by the learned Advocate for the petitioner in view of the fact that the learned Magistrate here has directed further investigation not of own but on the basis of a protest petition filed by the de facto complainant. He has relied on another decision of the Apex Court in the case of Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, . In that case, also a completely different question was raised for the decision of the Supreme Court and the question of the first proviso to Section 202(1) of the Code of Criminal Procedure, 1973 the Magistrate should receive a complaint, disclosing an offence exclusively triable by a Court of Session is debarred from sending the same to the police for investigation u/s 156(3) of the Code? The Hon''ble Court through the judgment reported answered that question in negative.

Lastly, the learned Advocate for the petitioner has referred to the case of Tula Ram and Others Vs. Kishore Singh, of such judgment is relevant for the purpose of the argument advanced by the learned Advocate for the petitioner. Relevant portion of which runs as follows :

In this connection scheme of the code on the subject in question it would appear that Section 156(3) which runs thus -

''any Magistrate empowers u/s 190 may order such an investigation as abovementioned.''

appears in Chapter 12 which deals with information to the police and the powers of the police to investigate a crime this Section is therefore, placed in a Chapter different from chapter 14 which deals with the indication of proceedings against an accused person. It is therefore, clear that Sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if the Magistrate receives a complaint u/s 190 he can act u/s 156(3) provided that he does not take cognizance. The position therefore, is that while Chapter 14 deals with the post cognizance stage, Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once the Magistrate starts u/s 190 and the provisions following he cannot resort to Section 156(3).

The aforesaid observations was made by the Apex Court when a criminal case having been registered by the police on the basis of an FIR alleging murder, the said case was committed to the Court of Session by the committing Magistrate. Meanwhile a counter-complaint was filed in the Court of Judicial Magistrate and the Magistrate ordered the police to investigate the case u/s 156(3) of the Code of Criminal Procedure, 1973. The police submitted a final report indicating that no case was made out against the accused. The Court, after considering the report ordered for issue of notice to the complainant witnesses and the Magistrate, after recording their statement ordered issue of a non-bailable Warrant of Arrest against the accused therein. It was contended on behalf of the accused/appellant before the High Court that the Magistrate having once ordered investigation u/s 156 of the Code of Criminal Procedure was not competent to review the complaint and issue process against them. The High Court held that no case for quashing the order of the Magistrate was made out inasmuch as the Magistrate had issued process against the accused after taking due cognizance of the case and applying his mind and recording his statement of the complainant. But the Apex Court in the said reported decision held that where a Magistrate ordered investigation by the police before taking cognizance u/s 156(3) of the Code of Criminal Procedure and receives the report thereupon he can act on the report and discharge the accused or straightway issue process against the accused or apply his mind to the complaint filed before him and take action u/s 190 as described above. With this observation, the appeal was dismissed by the Court.

The question is how for the aforesaid decision of the Apex Court is applicable in the instant case. At the first instance it can be seen that the facts of this case is not similar to the case which was decided by the Apex Court. In the instant case, the order for further investigation was passed on receiving a report as contemplated u/s 173 of the Code of Criminal Procedure.

In the case of Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, , the Apex Court in para 10 of the reported decision has observed as follows (at page 3663, of Cri LJ):-

Power of the police to conduct further investigation after allowing final report is recognised u/s 173(8) of the Code of Criminal Procedure. Even after the Court take cognizance of any offence on the strength of the police report submitted, it is open to the police to take further investigation.

In paragraph 11 of the said decision the Apex Court has further observed that in such a situation, the power of the Court to direct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the Court is to - hear the accused before any such direction is made.

Aforesaid observation clearly indicates that although not expressly provided in Clause (8) of Section 173 of the Code of Criminal Procedure, apart from the police the Court can also direct further investigation but only rider provided by the consistent decision of the Apex Court is that the Magistrate or the Court cannot direct such further investigation of his own.

In Ram Lal Narang Vs. State (Delhi Administration), the Apex Court held that the power of the police to make further investigation u/s 173 is not exhausted by the taking cognizance of the offence by the Magistrate through in such a case it is desirable that police should seek formal permission from the Court to make further investigation upon discovery of fresh facts.

In the result, I am constrained to hold that the order impugned is not tainted with any illegality and, therefore, I do not find any reason to interfere with such order.

The revision in this connection must fail.

It is accordingly dismissed.

I make no order as to costs.

Let the L.C.R. be sent down to the Court below with a copy of this order with immediate effect so that the learned Magistrate can make a suitable direction to authorities concerned to complete the investigation within a reasonable time without further delay.

Urgent xerox certified copy of the order, if applied for, office is directed to deliver the same as expeditiously as possible.