Yamuna Pathak vs The State of Bihar and Another

Om Prakash and A.N. Chaturvedi, JJ.—Supplementary affidavit has been filed on behalf of the Petitioner. Keep it on the record.

Heard Mr. Madan Mohan Prasad, learned Counsel for the Petitioner and Mr. Ashok Kumar Choudhary, the learned Additional P.P. for the State.

It appears that Sikarpur P.S. Case No. 29, dated 13th March, 1981 under different sections of the Indian Penal Code was registered on the basis of F.I.R. lodged by one Raj Kishore Prasad, Superintendent of Excise, West Champaran, Bettiah (Annexure-4). Police held investigation and submitted charge sheet against four persons showing Petitioner Yamuna Pathak and some others as not sent up (Annexure-5).

The Chief Judicial Magistrate, Bettiah, poked into the case diary and in his order dated 6-7-1985, he found and held that "the case diary does not contain material to sum-mon them" i.e. Petitioner Yamuna Pathak and some others. Accordingly, he discharged Petitioner Yamuna Pathak and some others after observing that "the I.O. has rightly not sent them" (Annexure-2).

If further appears that later on, a "supplementary" charge-sheet No. 49, dated 17-3-1989 (Annexure-3) was submitted against Petitioner Yamuna Pathak. It has been mentioned in such charge-sheet that after investigation charge-sheet No. 19 dated 17-3-1985 was submitted. But that charge-sheet was not submitted against Yamuna Pathak, "because sufficient evidence was not found against him. But later on, one Dharmesh Prasad Verma, a member of Vidhan Sabha, filed a petition before the Director General of Police for reconsideration of some of the points in the evidence collected in course of the investigation. Accordingly, opinion of the Assistant P.P., concerned was sought for. As per his opinion, charge-sheet could be submitted. Therefore the evidence collected was reconsidered. But "no fresh evidence" was found to have come. After reconsideration (of the evidence collected earlier) it was found that the circumstantial evidence collected against Petitioner Yamuna Pathak, may be put up before the Court. And the supplementary charge-sheet No. 49, dated 17.3.1989 was submitted (Annexure-3).

By the impugned order dated 30-7-1989 passed in T.R. No. 35 of 1992, the Chief Judicial Magistrate, took cognizance in absence of the Petitioner mechanically (Annexure-1). Criminal Revision No. 26 of 1990 preferred against such order was dismissed by the 4th Additional Sessions Judge on 19-5-1992, without due consideration of Petitioner plea that no new evidence to warrant charge sheeting and taking cognizance on the same has been found "and observing, without any material before him that the matter was "further investigated upon subsequently" and relying on Assistant P.P.''s plea that police is empowered u/s 173(8) Code of Criminal Procedure to file supplementary chargsheet (Annexure-6).

The main thrust of the argument of the learned Counsel for the Petitioner is that the so-called supplementary charge-sheet submitted against Petitioner Yamuna Pathak cannot be submitted in view of the facts and circumstances of this case even u/s 173(8), Code of Criminal Procedure.

Section 173(8) of the Code of Criminal Procedure lays clown as under:

173(8) 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, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed, and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report as they apply in relation to a report forwarded under Sub-section (2).

From a simple perusal of the above provision of law, it is crystal clear that a supplementary charge-sheet can legally be submitted provided "further investigation" in respect of an offence after the first charge-sheet is submitted is held and upon such further investigation, "further evidence" is obtained. Thus a supplementary charge-sheet can be submitted in respect of additional evidence collected in course of further investigation held which could not be available in course of the investigation held earlier.

In the instant case, no further investigation appears to have been held and no fresh or additional evidence has been obtained which was not available during the investigation held before submission of the chargsheet No. 19, dated 17-3-1985. What has been done is reconsideration of the evidence which was already before the investigating agency prior to submitting the first charge-sheet No. 19 dated 17-3-1985 after consideration of which the learned Chief Judicial Magistrate had discharged Petitioner Yamuna Pathak by his order dated 6-7-1985.

In view of the above, we are of considered view that the chargesheet No. 49, dated 17-3-1989, which has been called supplementary chargesheet is not a supplementary charge-sheet as envisaged u/s 173(8) of the Code of Criminal Procedure. It is a subsequent chargesheet submitted on the basis of the same material which had already been collected before submission of charge-sheet No. 19, dated 17-3-1985.

We, therefore, find that the impugned order dated 30-7-1992 passed in T.R. No. 35 of 1991 is without jurisdiction and bad in the eye of law and cannot legally be sustained.

On the facts and in the circumstances of the case, we are of the opinion that it is an appropriate case, in which this Court must exercise its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India inspite of dismissal of the Criminal Revision to prevent the subordinate courts from exceeding their jurisdiction prescribed by law.

In the result, the writ petition is allowed. The order dated 30-7-1992 passed in T.R. No. 35 of 1992 taking cognizance of certain offences is hereby quashed.