Maso Khan vs The State of Bihar and Others

S.N. Jha, J.—This application has been filed for quashing an order dated 3.12.1985 passed by the Subdivisional Judicial Magistrate Whereby he has stayed the further proceeding of Imamganj P.S. Case No. 25/85 registered under sections 147, 148, 149, 342and 302/34of the Indian Penal Code on 11.5.85 against the O.P. nos. 2 to 8 and directed the Addl. Public Prosecutor to hand over the case diary to the Inspector of Police of Criminal Investigation Department (C.I.D.) for making further investigation into the case. The facts which led to filing of this application, in short, are that on the basis of a fardbeyan given by the petitioner, the aforesaid Imamganj police case was registered. The police after full investigation submitted charge-sheet against the accused persons i.e. o.p. nos. 2-8.

On the basis of the aforesaid charge-sheet, the learned Subdivisional Judicial Magistrate took cognizance of the offence and issued processes against o.p. nos. 2-8 vide order dated 24.8.85 which is annexure-1 appended to this application.

It appears that the State Government directed the Criminal Investigation Department to make further investigation into the matter and on 30.11.1985 the Inspector of Police, C.I. D. filed two separate petitions in the court to direct the Addl. Public Prosecutor to hand over the case diary to the C.I.D. for further investigation and to stay the further proceedings in the court, From annexure-2, it appears that the learned Magistrate directed the Inspector of Police, C.I.D. to move the Sessions Judge, in this matter as cognizance has already been taken. It further appears that on 3.12.1985, the Inspector of Police, C.I.D. again filed two separate petitions for staying the further proceeding as the investigation is going on and on the same day the learned Subdivisional Judicial Magistrate, directed the Addl. Public Prosecutor to hand over the original case diary to the Inspector of Police, C.I.D. and stayed the further proceeding of the case. That order has been challenged in this Court.

Mr. Nawal Kishore Singh, Learned Counsel appearing on behalf of the petitioner submitted that the impugned order passed by the learned Subdivisional Judicial Magistrate directing the A.P.P. to hand over the original case diary to Inspector of Police C.I.D. and staying the commitment of the proceeding is illegal and fit to be quashed. It was further submitted that the C.I.D. police had no locus standi to file any such application in the court making prayer for stay of further proceeding till the submission of final report of the Investigating Department (C.I.D.).

On the other hand it was contended on behalf of the State that there is no illegality in the impugned order and even after the submission of the charge-sheet by the Officer Incharge of the Police Station, the State Government can direct an enquiry under sub-section (8) of section 173of the Code of Criminal Procedure (in short the Code).

In order to appreciate the rival contentions of both the parties, it is necessary to examine the provision of sub-section (8) of section 173of the Code. Subsection (8) of section 173of the Code lays down that nothing in 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 whereupon such investigation, the officer Incharge of the police station obtains further evidence, he shall forward to the Magistrate a further report regarding such evidence in the form prescribed. In support of his contention, the Learned Counsel appearing on behalf of the State has relied upon a Bench decision of this Court in the case of Nageshwar Sahai vrs. The State of Bihar 1985 P.L.J.R. 570.

Mr. Singh appearing on behalf of the petitioner has no grievance so far as the further investigation under sub-section (8) of section 173of the Code is concerned, but his main grievance is that the Court cannot stay the commitment of the trial. According to him there may be further investigation on the one hand and the Court may also proceed with the committal proceeding. I do not find substance in this submission. That may create some anamoly because on the one hand, there will be further investigation by the police and on the other hand, the Court will proceed with the commitment proceedings under the Code.

A point was raised in the case of Nageshwar Sahai vrs. the State of Bihar (supra) as to whether after submission of the charge-sheet by the officer Incharge of a police station the State Govt. can direct an enquiry by the Deputy Supdt. of Police, C.I.D. and whether the report submitted by the Dy. Supdt. of Police, C.I.D. and the evidence recorded by him should be treated as further investigation in respect of the offence u/s 173 (8) of the Code. this Court while considering this point held that the State Government can direct further investigation of a case even after submission of the charge-sheet and the Police Officer so appointed by the State Government is empowered to do further (investigation) and record statements of witnesses. It has also been decided in number of cases in this Court that sub-section (8) of section 173of the Code enables an officer incharge of a police station to carry on further investigation even after a report under sub-section (2) of sec. 173of the Code has already been submitted to the Court. It is well known that the other wing of the State Government entrusted with the investigation of an offence can very well investigate a case registered before local police station after proper orders from the authorities concerned and this Court should not involve with such investigation unless this Court is satisfied on the materials produced that the action of the authorities can be held to be malice in law or in fact. Thus, it is evident that further investigation u/s 173 (8)of the Code is possible even after cognizance of the offence is taken.

In that view of the matter, I have no hesitation in holding that the power of further investigation is there. If that would be the position in law, then, in my view, the Magistrate was right in staying the further proceeding in the case till conclusion of the further investigation and submission of the final report, if any, to avoid any anomaly or inconsistency in the trial.

In the instant case, I find that the impugned order was passed as far back as 3.12.1985 but till today no final report has been submitted even after lapse of more than one year. The police may take any step for the completion of the investigation as well as for taking the accused in custody if they are not on bail. It has been consistently pointed out by the Supreme Court as well as the High Court that the police has statutory right to investigate and to arrest an accused person of a cognizable case. In that view of the matter, a direction is being made that the Investigation Department must conclude the investigation as early as possible and may file any final report within three months. In case, no final report is submitted in the court within the specified period, the court will proceed on the materials available on the record against the accused persons in accordance with law. With the aforesaid direction, this application is deposed of. Let a copy of this judgment be sent to the Supdt. of Police, C.I.D. as well as the Investigating Officer for necessary action within the time indicated above.