Ramji Chauhan vs State of U.P.

S. K. Phaujdar, J.—The matter was heard on 5101998.

The applicant is the complainant in case Crime No. 505 of 1997 relating to PS. Handia, District Allahabad. The report was lodged on 1291997 and the case was registered for an offence under Section 147/302, IPC, Police, however, submitted chargesheet for an offence under Section 306, IPC only. After submission of chargesheet 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 uiere was no reason to direct further investigation under Section 173 (8), Cr. PC. The Magistrate was of the view that both the offences under Sections 302 and 306, IPC were triable by the Court of Sessions 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 2281998 is under challenge in the instant application.

It appears that the applicant had pointed out before the court below that the postmortem examination of the deceased had indicated 13 antemortem 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 another of the Allahabad High Court. The decision of the Supreme Court stands 1997 Cr. L, J. 779. 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 chargesheet is no longer a debatable question in view of subsection (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 gray 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 chargesheet."

The decision of the Allahabad High Court stands 1990 Crl. L. J, 456. In relation to the powers under Section 173 (8), Cr. PC. an Hon''ble Judge of this High Court had observed that when the chargesheet 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 CBI 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 CBI 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. PC. This decision is rendered in the case between Union Public Service Commission v. S. Papaiah and others, and stands 1997 (35) ACC 533. The judgment 1997 Crl. L.J. 779, was delivered on 20121996. The instant judgment stood delivered on 1191997. Another judgment of the Supreme Court on the interpretation of Section 173 (8), Cr. P.C. stands AIR 1988 SC 1323. 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 under Section 302, IPC but was converted to one under Section 304, IPC within hours of registration, even without waiting for postmortem report. Subsequently, it was further diluted to an offence under Section 323/34, IPC. Considering that police had acted in a partisan manner the Supreme Court directed the Trial Court to direct the CBI for proper investigation of the case in exercise of its powers under Section 173 (8), Cr.P.C.

In the case at our hands there are allegations of perfunctory investigation and absolute overlooking the postmortem 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, IPC and Section 302, IPC 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 under Section 302, IPC if materials have been gathered for an offence under Section 306, IPC 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 22898 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 under Section 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 me Magistrate dated 2281998 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.

Application allowed.