Sri Balaji vs The State of Karnataka and Others

H.N. Nagamohan Das, J.—In this petition the petitioner has prayed for quashing the proceedings in C.C. No. 644/2005 pending on the file of Principal Civil Judge (Junior Division) and JMFC, Maddur.

On 31.10.2002, on information, the first respondent police visited the primary health centre at Kesthur, Maddur taluk in Mandya district and recorded the statement of an injured person by name Ramesh and consequently registered a case in crime No. 108/2002 against eight accused including the petitioner herein for the offences punishable under Sections 143, 147, 148, 324 and 307 read with Section 149 IPC. The victim Ramesh succumbed to the injuries in the hospital and thereafter the second respondent being the wife of deceased lodged a complaint against the petitioner and seven others with the first respondent police. Consequent to this second FIR, the first respondent police included Section 302 IPC in the list of offences in crime No. 108/2002. After completion of the investigation, the first respondent police filed a charge sheet on 29.01.2003 for the offences punishable u/s 143, 147, 148, 302 read with Section 149 IPC and the same came to be registered in C.C. No. 115/2003. In this charge sheet the names of seven accused were included and the name of the petitioner was excluded. The Jurisdictional Magistrate committed the case to the Sessions Court at Mandya for trial. The Sessions Court framed the charges and issued witness summons to record evidence. When the matter stood at that stage the respondent police filed additional charge sheet on 01.07.2005 before the Jurisdictional Magistrate to include the petitioner as accused No. 8. The Jurisdictional Magistrate vide order dated 02.07.2005 had taken cognizance of the offence against the petitioner in C.C. No. 644/2005 and issued non-bailable warrant to the petitioner. Aggrieved by this order of the Jurisdictional Magistrate the petitioner is before this Court u/s 482 Cr.P.C.

Heard arguments on both the side and perused the entire petition papers.

The respondent police during investigation in Cr. No. 108/2002 recorded the statements of 31 witnesses. One of the witnesses by name Dr. Jogigowda''s statement was recorded on 20.11.2002. Dr. K. Jogigowda in his statement stated that between 28.10.2002 and 02.11.2002 the petitioner was taking treatment as inpatient in his clinic. It is on the basis of this statement made by Dr. K. Jogigowda, the name of the petitioner was excluded in the first charge sheet filed on 29.01.2003. After lapse of more than two years and when the matter was set down for evidence before the Sessions Court, the respondent police again recorded the statement of the very same Dr. K. Jogigowda on 05.01.2005 wherein he has stated that petitioner took treatment between 28.10.2002 and 02.11.2002 as outpatient and that he was not an inpatient. Based on this second statement of Dr. K. Jogigowda the respondent police filed additional charge sheet on 02.07.2005. Pursuant to this additional charge sheet, the Jurisdictional Magistrate passed the impugned order.

The only point that arise for my consideration in this case is:

Whether the respondent police are competent to Reinvestigate the case?

Section 154 to 176 in Chapter XII of the Criminal Procedure Code specifies about information, investigation and report by the police. Section 156 empowers the police to investigate any cognizable case. Section 157 requires a preliminary report from the officer-in-charge of a police station to the Jurisdictional Magistrate. Section 173(1) specifies that every investigation shall be completed without unnecessary delay. Section 173(2) mandates that on completion of investigation the police shall forward a report to the Jurisdictional Magistrate. Section 173(8) specifies that the police are empowered to further investigate and to submit an additional report. Sri. C.R. Gopalaswamy, Learned Counsel for the petitioner contends that the respondent police are not entitled to reinvestigate the case. In support of this contention reliance is placed on judgment of the Supreme Court in the case of K. Chandrasekhar Vs. The State of Kerala and Others, wherein the Court held that ''further'' investigation in Section 173(8) is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started abilities wiping out the earlier investigation altogether.

In the instant case it is not in dispute that after completion of investigation the respondent police submitted a report to the Jurisdictional Magistrate on 29.01.2003 and the same was accepted and proceeded against seven accused. Further it is not in dispute that at the first investigation the IO recorded the statement of one Dr. K. Jogigowda. It is not in dispute that based on the statement of this witness, the name of petitioner was excluded in the first charge sheet filed by the police. After a lapse of more than two years the respondent police again recorded the statement of this witness, Dr. K. Jogigowda for the second time and filed the additional charge sheet against the petitioner by wiping out the earlier statement of the witness. This act on the part of the respondent police amounts to reinvestigating the case. The Criminal Procedure Code do not provide for reinvestigation. Therefore the impugned order taking cognizance of additional charge sheet based on reinvestigation is liable to be set aside.

Sri. A.V. Ramakrishna learned Government Pleader contends that other than the statement by Dr. K. Jogigowda there are the statements of eye witnesses stating that petitioner actively participated in the crime and therefore he is liable to be made as a co-accused in the case. Section 319(1) of Cr.P.C. specifies that in the course of enquiry or trial of an offence if it appears from the evidence that any person not being the accused has committed any offence then he can be impleaded as a co-accused. If there is evidence available from the investigation material already available on record then the respondent police are at liberty to file an additional charge sheet against the petitioner and to implead him as co-accused but not on the basis of reinvestigation material. Despite the evidence available in the investigation if for any reason the police failed to include the petitioner as co-accused then it is open for the second respondent - the wife of the deceased victim to file an application u/s 319 Cr.P.C. to implead him as co-accused. Even the Court is having the power to add a person as co-accused if the evidence on record indicates the involvement of that person in the crime.

Learned Counsel for the petitioner further submits that now the Magistrate has committed the matter to the Sessions Court and therefore the proceedings in S.C. No. 139/2005 are also required to be quashed.

For the reasons stated above, the following;

ORDER

I. Petition is hereby allowed.

II. The impugned order passed by the Jurisdictional Magistrate in C.C. No. 644/2005 in taking cognizance and issuing process to the petitioner on the basis of additional charge sheet dated 02.07.2005 and the consequent order of Jurisdictional Magistrate committing the case to Sessions Court are hereby set aside.

III. However liberty is reserved to the respondents to proceed in accordance with law as stated above.