Purshottam Sharma vs State of U.P. and Another

Poonam Srivastav, J.—Heard Sri. Anoop Trivedi, learned Counsel for the revisionist and learned A.G.A. for the State.

The proceeding arise out of an F.I.R. dated 24.8.2004 at the instance of opposite party No. 2 wife of Sri. Jangali Singh at police station Delhi Gate under Sections 364, 420, 467 and 468, I.P.C. registered at Case Crime No. 343 of 2004. Final report was submitted by police on 27.8.2004. The S.S.P., Aligarh directed reinvestigation/further investigation vide order dated 14.3.2005. Once again it culminated in a final report. Protest petition was preferred on 17.11.2005 by opposite party No. 2 which was numbered as Misc. Case No. 1/12/2005. The Additional Chief Judicial Magistrate, Court No. 4, Aligarh proceeded as a complaint case. Statement of Smt. Ganga Devi was recorded u/s 200, Code of Criminal Procedure. On 15.11.2006, the S.S.P., Aligarh passed an order for investigation of the Case Crime No. 343 of 2004 which was directed to be transferred from police station Delhi Gate to police station Banna Devi, district Aligarh. A Writ Petition No. 3065 of 2007 was preferred by the revisionist Purshottam Sharma challenging the order of the S.S.P., Aligarh transferring investigation. The writ petition was dismissed by a Division Bench of this Court on 3.8.2009.

The grievance of the revisionist is that impugned order dated 7.1.2009 has been passed granting permission for further investigation u/s 173(8), Code of Criminal Procedure.

The first argument of the learned Counsel for the revisionist is that the impugned order is without jurisdiction, unreasonable, illegal and arbitrary. These objections are on a number of grounds, firstly that the charge-sheet was submitted in Case Crime No. 343 of 2004, against two persons namely Smt. Jagbiri Devi alias Saroj Devi and Sri. Bhanu Pratap Singh which was challenged in Criminal Misc. Application No. 6164 of 2007 u/s 482, Code of Criminal Procedure and this Court stayed further proceedings of Case No. 4819 of 2005, pending in the court of Chief Judicial Magistrate, Aligarh, vide order dated 21.3.2007, which is annexed alongwith affidavit. The submission is that since further proceedings were stayed, no order could have been passed permitting further investigation u/s 173(8), Code of Criminal Procedure.

The next argument is that the Magistrate was swayed by false affidavit of the complainant while permitting further investigation by means of the impugned order. He has pointed out that the order for further investigation has been passed on an application alongwith affidavit at the behest of the complainant whereas further investigation could not be permitted on an application by the complainant. The third submission is that the order of the Magistrate is improper and without application of mind on a wrong premise that the interim order passed on the application u/s 482, Code of Criminal Procedure was set aside in Writ Petition No. 3065 of 2007. The last submission is that de facto complainant got her statement recorded under Sections 200 and 202, Code of Criminal Procedure and moved an application for further investigation which could not be done.

After hearing the learned Counsel for the revisionist at length and taking into consideration all the orders/judgments passed in different proceedings and also the chequered history of the case, it is apparent that charge-sheet was submitted in respect of two accused only Smt. Jagbiri Devi alias Saroj Devi and Sri. Bhanu Pratap Singh which was challenged in Criminal Misc. Application No. 6164 of 2007 and proceedings of Case No. 4819 of 2005 pending in the court of Chief Judicial Magistrate, Aligarh was stayed. No doubt these proceedings arise out of Case Crime No. 343 of 2004 but the revisionist has not been charge-sheeted till date. The proceeding on the basis of protest petition has commenced and opposite party No. 2 had moved an application before the concerned authorities of the police department for transferring the investigation. The S.S.P., Aligarh passed an order on 15.11.2006 transferring the investigation and thereafter an application was moved by the Investigating Officer police station Banna Devi seeking permission for further investigation. This permission was necessary as the police of police station Delhi Gate had submitted a final report in respect of some accused and charge-sheet was submitted by police of police station Banna Devi subsequent to the transfer of investigation, therefore, permission u/s 173(8), Code of Criminal Procedure was essential. So far argument of Sri. Anoop Trivedi is that the order u/s 173(8), Code of Criminal Procedure could not be passed as further proceedings of Case No. 4819 of 2005 in Criminal Misc. Application No. 6164 of 2007 was stayed, I am not in agreement with the submission of Mr. Anoop Trivedi. No order has been passed in the pending proceeding in respect of the applicant who had preferred criminal misc. application u/s 482, Code of Criminal Procedure but it was only permission for further investigation before the Chief Judicial Magistrate before whom final report was submitted by the police of police station Delhi Gate and thereafter protest petition was filed. ''Further investigation'' is not a proceeding pending in the Court, therefore, the order impugned passed in Case No. 484 of 2006 cannot be said to be in the teeth of interim order of this Court and contemptuous in nature. It is a far fetched contention and not worth consideration.

Learned Counsel has placed two decisions of the Apex Court relating to permissibility of further investigation after submission of charge-sheet u/s 173(2), Code of Criminal Procedure as well as subsequent to framing of charges against some accused and others having been discharged. In the case of Reeta Nag Vs. State of West Bengal and Others, it was held that the Magistrate was wrong in directing reinvestigation on an application made by de facto complainant and he exceeded his jurisdiction in entertaining the said application after framing charge against some accused and other co-accused having been discharged.

This is not akin to the facts of the present case. The proceedings on the basis of the protest petition is still pending. Charge-sheet has been submitted against two accused and proceedings have been stayed. Investigation was transferred to a different police station by an appropriate authority vide order dated 15.11.2006 which was challenged and subject-matter of Civil Misc. (Criminal Nature) Writ Petition No. 3065 of 2007, Purshottam Sharma v. State of U.P. and Ors. This writ petition was dismissed giving a complete free hand to the learned Magistrate to pass appropriate orders without any impediment for further investigation, consequent thereon, the instant order has been passed. Thus, the decision in the case of Reeta Nag (supra) is not an appropriate citation and is not applicable in the instant case.

The next decision relied upon by learned Counsel for the revisionist is Kishan Lal Vs. Dharmendra Bafna and Another, In the said decision nature and scope of further investigation was discussed as well as interference by Courts when permissible.

In the instant case, at the very outset I emphasize that there can be no interference by Court in the course of investigation or even further investigation. Since charge-sheet was submitted against two accused and final report against others, it was incumbent on the Investigating Officer to seek permission u/s 173(8), Code of Criminal Procedure for further investigation and, therefore, I am of the considered view that no illegality has been committed whatsoever. There was no occasion for the Courts to have thrashed out pros and cons either of the final report or the charge-sheet at that stage. The S.S.P. passed an order on an application of the complainant only because it appears that opposite party No. 2 was not satisfied with the investigation. It is apparent by bare perusal of the order dated 15.11.2006 passed by the S.S.P., Aligarh that he had complete authority and if some flaw was brought to his notice, the investigation was rightly transferred.

In the circumstances, the argument of learned Counsel that the Magistrate was swayed by false affidavit of the complainant is not acceptable. The complainant''s right and options against his right to question the fairness of investigation and to bring the unfairness of the Investigating Officer to the notice of superior authority and demand further investigation cannot be questioned. In view of settled law that the first informant has to be given notice in the event a final report is submitted, is evidently because the law does not completely shut down the right of the first informant to claim an unbiased investigation specially if it appears to be tainted before acceptance of final report. The stress laid down by Sri. Anoop Trivedi that the impugned order has been passed in the teeth of the interim order passed in criminal misc. application u/s 482, Code of Criminal Procedure is incorrect.

The argument of Sri. Anoop Trivedi that the impugned order has been passed by the Magistrate on a wrong premise that the order in criminal misc. application u/s 482, Code of Criminal Procedure has been set aside in Writ Petition No. 3065 of 2007, is not correct. So far the Writ Petition No. 3065 of 2007 is concerned, it related to the transfer order passed by the S.S.P., Aligarh dated 15.11.2006 transferring investigation on an application of Ganga Devi to another police station. The application u/s 173(8), Code of Criminal Procedure was allowed after dismissal of the Writ Petition No. 3065 of 2007 on 3.8.2009. While dismissing the writ petition, reliance was placed on two decisions of the Apex Court in the cases of Ram Lal Narang Vs. State (Delhi Administration), Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, and Central Bureau of Investigation (CBI) Vs. R.S. Pai and Another, and the observations made in the writ petition is quoted below:

In such circumstance when the police decides to further investigate the case, there is no need even for providing any opportunity to the accused to be heard before further investigation is carried out. It is also noteworthy that in the present case, the police of P.S. Banna Devi even moved an application before the A.C.J.M. praying for permission for carrying out further investigation u/s 173(8), Code of Criminal Procedure on 14.12.2006 on which orders were passed for putting it up before the Magistrate concerned on 16.12.2006. But the matter could not be disposed of thereafter, and an interim stay of that order was passed in this writ petition on 9.3.2007.

In the light of what we have stated above, we see no impediment in passing orders by the Magistrate for further investigation as prayed for. The police can thereafter, take whatever necessary coercive or other steps as are required for carrying out the investigation. The order dated 9.3.2007 is accordingly vacated. As the matter has been held up for so long, the police is expected to conduct the investigation expeditiously. Office is directed to communicate this order to the Magistrate concerned within three weeks for compliance.

Petition is disposed of accordingly.

The impugned order has been passed in accordance with law and I do not think it calls for any interference by this Court. The revision lacks merit and is accordingly dismissed.

However, learned Counsel for the revisionist has made a request that since seven years have lapsed and proceedings were stayed, therefore, in the event bail application is moved on behalf the revisionist, the same may be considered expeditiously.

It goes without saying that in the event the revisionist appears before the Court concerned and moves bail application, the same shall be considered and disposed of by the Court concerned as expeditiously as possible, preferably if possible on the same day.