GUPTESHWAR PRASAD Vs. STATE OF BIHAR
LAWS(PAT)-2004-3-41
HIGH COURT OF PATNA
Decided on March 03,2004

Gupteshwar Prasad Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

PUNJAB AND HARYANA HIGH COURT IN STATE VS. MEHAR SINGH [REFERRED TO]
DIWAKAR SINGH VS. RAM MURTHY NAIDU [REFERRED TO]
R.L. NARANG AND OTHERS VS. OM PRAKASH NARANG AND OTHERS [REFERRED TO]
TARA SINGH VS. STATE [REFERRED TO]
EMPEROR VS. KHWAJA NAZIR AHMAD [REFERRED TO]


JUDGEMENT

- (1.)THE petitioner, baffled with mistaken perception of intrusion over the track of judicial course by investigating agency of the Police, has invoked jurisdiction of this Court for exercise of inherent powers under are raised that though the provisions mandated by Section 178(8) of the Code did not preclude further investigation of the offence by the Police, notwithstanding submission of charge sheet, the law makers would not have visualised that even when there was major breakthrough in the proceeding after submission of charge sheet in the court, and not only that the cognizance had been taken but even two witnesses had been examined by the State, that the Police would be committing intrusion in the dominion of the Court resuming further investigation, and that too without obtaining leave of the court. The grievance of the learned counsel is that since the petitioner during cross examination of the witnesses had disclosed all his defence, further investigation at this stage by the police would seriously prejudice him and if such overdoing committed by the Police is given a licence by the Court, there would be no end and independency of the magistracy and judiciary in the interest of purity would be in serious crisis. Grievance of the petitioner was also that even copy of the letter by which the Court was moved by the Deputy Superintendent of Police, Vigilance, informing investigation having been taken by the Vigilance had not been made over to the accused, 4. Statutory right of the Police to investigate into cognizable offence has well been recognised, which is not fettered, and does not terminate with the submission of charge sheet in the Court. Even prior to enactment of 1973 Act, Courts have time and again reiterated that submission of charge sheet itself would not bring an end to the power of the investigating agency and it is entitled to make further investigation and bring further and better material before the Court to connect the accused with the alleged crime. The Courts have found that investigating agency can make further investigation to find whether the section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') though time and again courts have reiterated that Court would not be justified in riding a chariot over the track of investigation and thereby, obliterating the same.
(2.)FACTUAL matrix, which are not in much details, are that a first information report bearing Gardanibagh P. S. Case No. 105 of 1996 came to be registered by the Police against four persons, and on conclusion of investigation, Police laid three sets of charge sheet on strength of which cognizance of offence was taken by Court by different orders against four different persons. After charges were framed and explained, the accused pleaded not guilty to the charges and proceeding was adjourned for recording evidence, when till 18th October, 2001, the State examined two witnesses and also placed on the record some documents. Thereafter, it seems that there was no breakthrough in the proceeding and a petition filed by one of the accused put on trial, too remained inconclusive for hearing. However, sequence of events which came to be witnessed in the proceeding has persuaded, the petitioner to invoke jurisdiction of this Court. It so happened that in pursuance of notification bearing no. 10166/98 issued by the Government of Bihar (Home), Police Department, further investigation was entrusted to Vigilance Investigation Bureau. Since the Chief Judicial Magistrate by then had transferred, the proceeding to other Court pursuant to cognizance having been taken of the offence, on being moved, directed transfer of the said proceeding to the Court of learned Special Judge, Vigilance, Patna. After proceeding came on transfer to the Court of Special Judge, Vigilance, Patna on 6th May, 2003, it was registered as Special Case No. 6 of 2003 and eventually proceeding was adjourned by the Court.
Here begins anxiety of the learned counsel for the petitioner, as contentions accused, against whom charge sheet has already been filed, can be booked for other offence and also some other accused persons can be brought to the book. As early as in the year 1945, Privy Council in case of Emperor vs. Khawaja Nazir Ahmad. AIR 1945 PC 18, while dealing with statutory right of Police within province of investigation of cognizable offence made following observation : - "So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry ... The functions of the judiciary and the police are complementary, not overlapping ..." 5. However that did not, ipso facto, altogether rule out interference of the court, as in appropriate cases, on being convinced that the power of investigation has been exercised by Police mala fide, High Court can issue writ of mandamus restraining the Police from exercising legal power. In case of Tara Singh vs. State (1951 SCR 729), though the issue was not direct, circumstances more or less akin to the controversy as in this case about admissibility of first challan and the rejection of statement of witness examined by Magistrate, preceding submission of second challan, came for consideration before the Court and the contentions raised about rejection of such statement recorded by the Magistrate, pursuant to submission of challan did not find favour with the court. When a similar matter came before Full Bench of Punjab and Haryana High Court in State vs. Mehar Singh (1974 Cr. L. J. 970), the court tried to find solution to the problem by suggesting a procedure to the Magistrate for suspending cognizance and ordering further investigation. 6. The provisions enjoined under section 173 (8) of the Code can be noticed which are in the following terms : - "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 (5) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub -section (2)." The statutory right of the Police to make repeated investigation came to be recognised by the Court as early as in the year 1919 also in case of Diwakar Singh vs. Ram Murthy Naidu (AIR 1919 Madras 751). There was no express provisions even in the old Code prohibiting the Police from launching upon an investigating, if fresh facts came to light after submission of report under section 173 (1) or after court had taken cognizance of the offence. Reliance was sought to be placed on decision of the Division Bench of this Court reported in 2002 (4) PLJR 217 (Bikau Pandey and ors. vs. State of Bihar) of which l was a party. However, the backdrop under which observations were made by the Court were not akin to this case, as in that case, even after investigation was conclusive, a Police Officer who was not in seisin of investigation stated to have made further investigation under the orders of the superior Police Officer, and hence observation came to be made by the Court that in such a situation, it was not expected that 6ven it be further investigation, that can be made without leave of the court. Reliance placed on decision of the apex court reported in AIR 1980 SC 326 (State of Bihar and another vs. JAC Saldana and others) was quite misconceived, as in that case, direction of the High Court, holding instruction of Government for investigation, to be without jurisdiction, was set aside by the Apex Court, regard being had to the statutory function of the Police to make investigation into a cognizable offence. 7. Now I may refer to a decision of the Apex Court reported in AIR 1979 SC 179 (R.L. Narang and others vs. Om Prakash Narang and others) which in my view is the milestone in the field. The Apex Court while recognizing the statutory function of the Police to investigate cognizable offence, made observations that it is the duty of the Investigating Officer to investigate and submit a report to the Magistrate upon involvement of other persons. In either case, it is for the Magistrate to test upon the future course of action depending upon the stage on which the case is before him. In that case, the court had noticed that the Magistrate had already taken cognizance of the officer and had proceeded to some extent. The Court took a view that faced with such a situation, the Magistrate may take further cognizance of the offence disclosed against newly involved accused and proceed with the case as a separate case. The Apex Court while making these guidelines had formulated eventualities that may occasion resumption of investigation by the Investigating Officer notwithstanding submission of charge sheet in the Court and observations made by the Court can be reproduced in the following terms "Whether the conspiracy discovered later is found to cover a much larger canvass with broader ramification, it cannot be equated with earlier conspiracy which covered a smaller field of narrower dimension where involvement of persons who was not accused, comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse fresh investigation.... In any case it is tor the Magistrate to decide the future course of action depending upon the stage on which the case is before him.... if the case of which he has previously taken cognizance." 8. The court took a view that it should be entirely left to the wisdom of the Magistrate. The Court further observed that "the criticism that further investigation by the Police would trench upon proceeding before the court is really not of very great substance, since whatever Police may do, final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the powers of the Police to make further investigation". The Court, however, in such a situation has sounded a note of caution that it would ordinarily be desirable that the Police should inform the Court to take formal permission to make further investigation. 9. The facts stated in the petition, filed in this Court are sufficient to show that the Court too was duly informed by the Deputy Superintendent of Police, Vigilance for resumption of investigation by the Vigilance. It observations made by the Courts are taken into consideration, the submission that the Police became functus officio once the court took cognizance of an offence on filing of charge sheet was untenable and without substance, as provisions of Section 173 (8) of the Code of Criminal Procedure expressly contemplates possibility of further investigation even if Court had taken cognizance of the offence. The provisions enshrined in Section 173 (8) of the Code, in my view, were not qualified to put ceiling on power of the investigating agency to proceed further in resumption of investigation, if cognizance had been taken by the Court or some witnesses had been examined. I am tempted to quote observation made by Justice D. A. Desai when his Lordship speaking for the Bench in a case of State of Bihar and anr. vs. J.A.C. Saldanha and others (supra) had expressed following views with a caution : - "Reverence and anxiety to the same degree, if no more to shoot at sight even a remote intrusion into the field preserved for judiciary must inform the judicial approach whenever assistance of the judicial machinery is sought for an unwarranted encroachment into the field of activity reserved for the other branch of Government, more so, when extraordinary power conferred on the High Court to issue prerogative writ in aid of justice is invoked to thwart a possible detection of a suspected offence." 10. The court considered it dangerous to rush in where one is too wary to tread. These deliberations would manifestly and eloquently persuade one to come to a conclusion which is well settled by long course of decisions that Police has statutory right for resumption of investigation notwithstanding submission of charge sheet and taking cognizance of the offence by the Court was not circumscribed even after there was some breakthrough in the proceeding. 11. Petition being devoid of merit is accordingly dismissed. However, I say no more and make no comment further as that in view of the matter being subjudice may be censured as judicial impropriety.



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