Ram Ji Chauhan vs State of U.P.

S.K. Phaujdar, J.—The matter was heard on 5.10.1998.

The applicant is the complainant in case Crime No. 505 of 1997 relating to P. S. Handia, District Allahabad. The report was lodged on 12.9.1997 and the case was registered for an offence u/s 147/302, I.P.C. Police, however, submitted charge-sheet for an offence u/s 306, I.P.C. only. After submission of charge-sheet the present applicant moved an application before the Court below for a direction for further investigation. Both the parties were heard and certain case laws were also considered by the Court below. The application was rejected on the ground that there was no reason to direct further investigation u/s 173(8), Cr. P.C. The Magistrate was of the view that both the offences under Sections 302 and 306, I.P.C. were triable by the Court of Session and it was open for the complainant to urge before the trial Judge that an offence of murder was made out on the basis of the materials in the case diary. This order of the Magistrate dated 22.8.1998 is under challenge in the instant application.

It appears that the applicant had pointed out before the Court below that the post-mortem examination of the deceased had indicated 13 ante-mortem injuries. It was further indicated that the applicant was illiterate and was a poor labourer and could not understand the intricacies of law and investigation was not done properly and the persons who could throw light on the incident were not examined. A paper said to have been written by the deceased was relied on, although the deceased was illiterate. The complainant was not examined, according to the complainant himself.

The Magistrate relied on two decisions, one of the Supreme Court and Anr. of the Allahabad High Court. The decision of the Supreme Court stands reported in Randhir Singh Rana Vs. The State Being the Delhi Administration, . Two Hon''ble Judges of the Supreme Court observed in this case that "A peep into a little grey area of the criminal law has become necessary in this appeal, as we have been called upon to decide as to whether a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused in pursuance of the process issued, can order of his own further investigation in the case. That such a power is available to police after submission of charge-sheet is no longer a debatable question in view of Sub-section (8) of Section 173 (in Chapter XII: Information to police and their powers to investigate) of the Code of Criminal Procedure, 1973." The Supreme Court after discussing several decisions on this point came to the finding that "within the grey area to which we have referred, the Magistrate of his own cannot order for further investigation." The Supreme Court further observed that "This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge-sheet."

The decision of the Allahabad High Court stands reported in Shyama Charan Dubey Vs. State of U.P., . In relation to the powers u/s 173(8), Cr. P.C. an Hon''ble Judge of this High Court had observed that when the charge-sheet had already been filed neither the informant nor the accused could claim further investigation as of right.

These two decisions, when read carefully, suggest that neither the Magistrate can direct further investigation of his own nor such a right could be claimed either by the informant or by the accused, but the case laws do not forbid in general a direction of further investigation by a Court if at all circumstances could be there and such circumstances are brought on record. In fact, another decision of the Supreme Court rendered by two Hon''ble Judges also took up the provision of Section 173(8), Cr. P.C. Here was a case where the C.B.I. had made a final report recommending that the proceedings be dropped. The Magistrate accepted the report without any notice or intimation to the informant. The Supreme Court observed that the C.B.I. could be directed to investigate further and to collect more evidence and the matter was remitted to the Magistrate to issue direction as per the provision of Section 173(8), Cr. P.C. This decision is rendered in the case between Union Public Service Commission and S. Papaiah and Ors. and stands reported in (XXXV)1997 ACC 533 . The judgment reported in Randhir Singh Rana Vs. The State Being the Delhi Administration, was delivered on 20.12.1996. The instant judgment stood delivered on 11.9.1997. Another judgment of the Supreme Court on the interpretation of Section 173(8), Kashmeri Devi Vs. Delhi Administration and Another, . Here was a case where allegations of death in police custody were there and the detenu was allegedly beaten by police. The case was registered u/s 302, I.P.C. but was converted to one u/s 304, I.P.C. within hours of registration, even without waiting for post-mortem report. Subsequently, it was further diluted to an offence u/s 323/34, I.P.C. Considering that police had acted in a partisan manner, the Supreme Court directed the trial court to direct the C.B.I. for proper investigation of the case in exercise of its powers u/s 173(8), Cr. P.C.

In the case at our hands, there are allegations of perfunctory investigation and absolute overlooking the post-mortem report. The Court below had failed to take note of these two averments of the complainant and was of the view that there could not be a direction for further investigation and this opinion requires reconsideration. Section 306, I.P.C. and Section 302, I.P.C. speak of two different kinds of offences, although both end in the death of the victim. It may not be possible to frame a charge u/s 302, I.P.C., if materials have been gathered for an offence u/s 306, I.P.C. only. The opinion of the Magistrate that the objection could be raised at the time of framing charge may not, therefore, stand to reason. The order of the Magistrate dated 22.8.98 may not, therefore, stand a scrutiny under the true interpretation of law. It is true that the complainant may not claim further investigation as of right. It is also true that the Court after cognizance may not issue a direction for further investigation of his own, but if materials are brought before him for an action u/s 173(8), Cr. P.C., he must not hesitate taking action as an investigation is done for collection of fact and placing the same before the Court so that the real justice may be done.

The present application stands allowed. The order of the Magistrate dated 22.8.1998 stands quashed. The Magistrate is to look to the materials in the case diary in the light of the objections raised by the complainant and to decide afresh if at all a further investigation was necessary to bring on record the true facts regarding the allegations of murder.