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Magistrate Can’t Direct Further Investigation On Defacto Complainant’s Plea

IN THE HIGH COURT OF ORISSA, CUTTACK

CRIMINAL REVISION NO. 478 of 2016

From the order dated 04.05.2016 of the S.D.J.M., Bhadrak passed in G.R. Case No. 1917 of 2013.

Smt. Nandita Sethi @ Behera ……… Petitioner

-Versus-

State of Orissa & another ……… Opp. parties

For Petitioner: – Mr. Satyabrata Pradhan,M.R. Padhi

For State of Orissa – Mr. Deepak Kumar Addl. Standing Counsel

For Opp. Party no.2: – Mr. Dharanidhar Nayak
Senior Advocate

P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO

Date of Hearing: 18.10.2016 : Date of Judgment: 19.01.2017

S. K. Sahoo, J. An important and interesting question that arises for decision in this case is as follows:-

“Whether the Magistrate after taking cognizance of offences on the basis of chargesheet submitted by police can direct further investigation of the case at the instance of a de facto complainant?”
The petitioner Smt. Nandita Sethi @ Behera who is the wife of opposite party no.2 Sadananda Behera is an accused in Bhadrak Rural P.S. Case No.367 of 2013 in which charge sheet was submitted against her for commission of offences punishable under sections 468 and 471 of the Indian Penal Code which corresponds to G.R. Case No.1917 of 2013 pending in the Court of learned S.D.J.M., Bhadrak.

The petitioner has challenged the impugned order dated 04.05.2016 passed by the learned S.D.J.M., Bhadrak in allowing the petition filed by the opposite party no.2 Sadananda Behera for further investigation of the case under section 173(8) of Cr.P.C.

2. On 25.09.2013 on the First Information Report submitted by one Brajakishore Das, ASI of Police, Bhadrak Rural Police Station before the Inspector in Charge, Bhadrak Rural Police Station, the case was instituted. It is stated in the F.I.R.

that while inquiring into the petition filed by the opposite party no.2 as per the order of the Inspector in Charge, the informant visited Anchalika Sahajoga Sanskrit Mahavidyalaya, Palli, Radhakanta Behera +3 Degree College, Arnapal and Bental G.P.

Office. During inquiry, it was ascertained that the petitioner was admitted to Radhakanta Behera +3 Degree College, Arnapal on 02.07.2007 as per the admission register of the College and she passed +3 degree examination in the year 2010 and left the College on 07.07.2010. During verification of the admission register of Anchalika Sahajoga Sanskrit Mahavidhyalaya, Palli, it was learnt that the petitioner was admitted in +3 degree class (Sastri) in the college on 20.08.2007 and during the final examination in the year 2010, the petitioner was detected in adopting malpractice for which she was not issued with College leaving certificate. It was ascertained during inquiry that the petitioner served as Grama Rozgar Sevak in Bental G.P. Office on production of +3 pass certificate from Radhakanta Behera +3 Degree College, Arnapal which has been procured by her by forged means. The petitioner was subsequently terminated from the post of Gram Rozgar Sevak.

On such First Information Report, Bhadrak Rural P.S. Case No.367 of 2013 was registered on 25.09.2013 under sections 468 and 471 of the Indian Penal Code and the Inspector in Charge, Bhadrak Rural Police Station directed Sri G.Ch. Nayak, A.S.I. of Police of Gujidarada Outpost to investigate the case.

Subsequently the investigation was taken over by Chitta Ranjan Das, A.S.I. of Police, Gujidarada Outpost who examined the witnesses and it was found during investigation that in the year 2007, the petitioner got admission in Radhakanta Behera +3 Degree College, Arnapal producing +2 pass certificate from Maa Basanti Durga Anchalik Sanskrit Mahavidhyalaya, Tentulidihi, Chandbali. The petitioner also got admission in the year 2007 in Anchalik Sahajog Sanskrit Mahavidhyalaya, Palli but during final examination, she was detected adopting malpractice. It was found out during investigation that the petitioner got admission in Radhakanta Behera +3 Degree College arranging pass certificate for the purpose of cheating. The petitioner was also selected as Gram Rozgar Sevak of Bental Gram Panchayat, Bhadrak but after verification, she was terminated from the post by the DRDA, Bhadrak. All the material documents were seized and as clinching evidence against the petitioner for commission of offences under sections 468 and 471 of the Indian Penal Code was found, charge sheet dated 07.06.2014 was submitted and accordingly, cognizance of offences under sections 468 and 471 of the Indian Penal Code was taken on 17.06.2014.

The petitioner approached this Court under section 438 Cr.P.C. in BLAPL No.26329 of 2013 and she was directed to be released on bail in the event of arrest vide order dated 19.02.2014. In pursuance of such order, the petitioner furnished bail bonds before the Investigating Officer and was released on bail on 19.05.2014.

3. The opposite party no.2 on whose petition the inquiry was conducted initially by Brajakishore Das, A.S.I. of Police, Bhadrak Rural Police Station filed a petition under section 173(8) of Cr.P.C. before the learned S.D.J.M., Bhadrak on 20.10.2014 through his advocate for further investigation of the case under section 173(8) of Cr.P.C. on the ground that investigation has been conducted in a perfunctory manner. It is stated that the petitioner was prosecuting +2 Science course in BNMA College, Palia Bindha, Bhadrak and +2 Arts Upa Sastri in Sanskrit Maa Basanti Durga Anchalika Sanskrit Mahavidyalaya, Tentulidihi, Chandbali, Bhadrak. It was indicated in the petition that the statement of the opposite party no.2 has not been recorded and in order to ascertain the date of admission of the petitioner in the course, certificate furnished at the time of admission, date of publication of examination result, result of examination and date of leaving of the petitioner from the College are required to be investigated.

The petitioner entered appearance in the case on 21.04.2015 through her advocates.

The learned Assistant Public Prosecutor filed objection to the petition filed by the opposite party no.2 and contended that the opposite party no.2 has no locus standi to file such petition and when charge sheet has already submitted and cognizance of offences has been taken, such petition should not be entertained.

The learned Magistrate while considering such petition for further investigation held vide impugned order dated 04.05.2016 that further investigation on the points raised by the opposite party no.2 is necessary and accordingly directed the Inspector in Charge of Bhadrak Rural Police Station to conduct further investigation, which is impugned in this revision petition.

4. On receipt of the direction from the learned Magistrate, further investigation of the case was entrusted to A.S.I. of Police namely C.R. Das who examined the opposite party no.2 who stated about the admission of the petitioner in BNMA College, Palia Bindha, Bhadrak where she appeared in +2 Science examination and failed after which College Leaving Certificate was issued on 24.07.2001 and the petitioner took admission in Maa Basanti Durga Anchalika Sanskrit Mahavidyalaya, Tentulidihi, Chandbali, Bhadrak from 05.08.2005 to May 2007. The Investigating Officer seized documents from both the institutions. It was found that the petitioner had married the opposite party no.2 but due to difference of opinion, the opposite party no.2 and his family members drove her out from their house and in that connection Bhadrak Rural P.S. Case No.239 dated 05.07.2012 was registered under sections 498-A, 294, 506, 313 read with section 34 of the Indian Penal Code and section 4 of Dowry Prohibition Act and the opposite party no.2 was charge sheeted for such offences.

5. Mr. Satyabrata Pradhan, learned counsel for the petitioner while challenging the impugned order dated 04.05.2016 contended that at the instance of a de facto complainant like opposite party no.2, further investigation cannot be ordered by the Magistrate after submission of charge sheet and taking cognizance of offences. It was highlighted that further investigation of the case was not necessary and lacuna in the prosecution case cannot be allowed to be filled up by way of further investigation. It is further contended that the opposite party no.2 is not an aggrieved person and direction of further investigation amounts to the reviewing of the earlier order passed by the learned Magistrate in taking cognizance which is not permissible in the eye of law and if such applications are entertained by the Court directing further investigation after submission of charge sheet and taking of cognizance of offences by the Court then it would open floodgate for the mischievous persons in filing such applications which would seriously hamper the progress of a criminal trial and cause serious prejudice to the accused. It is stated that even though the order of cognizance was taken on 17.06.2014 but after a long delay i.e. on 20.10.2014, a petition was filed under section 173(8) of Cr.P.C.

by the opposite party no.2 for further investigation. The learned counsel further contended that even though the learned Assistant Public Prosecutor objected to such prayer, the learned Magistrate has allowed the petition illegally. According to him, since the impugned order is without jurisdiction, the same should be set aside and whatever materials were collected during course of further investigation should not be taken into consideration by the Magistrate during trial.

Mr. Dharanidhar Nayak, Senior Advocate appearing for the opposite party no.2 on the other hand contended that it was on the petition of the opposite party no.2, enquiry was conducted and accordingly F.I.R. was lodged by Brajakishore Das, A.S.I. of Police, Bhadrak Rural Police Station and since there was perfunctory investigation, the opposite party no.2 who is an aggrieved party filed a petition for further investigation.

The learned Magistrate being satisfied that on some material aspects, investigation has not been conducted passed the impugned order. It is further contended that the opposite party no.2 was not aware about the submission of charge sheet and therefore, there was delay in filing petition for further investigation and delay cannot be a ground to discard such petition.

Mr. Deepak Kumar, learned counsel for the State submitted that the further investigation report indicates that many material documents have been collected and statement of the material witness like the opposite party no.2 was also recorded. He further submitted that this Court should not interfere with the impugned order at this stage particularly when the petitioner as an accused will get sufficient opportunity during trial to rebut such evidence collected during course of further investigation.

6. Section 173(8) of Cr.P.C. reads as follows:-

“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 or reports as they apply in relation to a report forwarded under sub-section (2).”

In case of Vinay Tyagi -Vrs.- Irshad Ali @ Deepak reported in (2013) 5 Supreme Court Cases 762, it is held as follows:-

“15. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation.”

While answering to the question as to whether the Magistrate has jurisdiction under section 173(8) of Cr.P.C. to direct further investigation, it was held in the case of Vinay Tyagi (supra) as follows:-

“28. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct ‘further investigation’ and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in the case of Bhagwant Singh : (1985) 2 Supreme Court Cases 537 has, in no uncertain terms, stated that principle, as afore-noticed.”

The Hon’ble Court further held in the case of Vinay Tyagi (supra) that the power of the Magistrate to direct ‘further investigation’ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report.

Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173 of the Code. It was further held that both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence.

The factual scenario in Vinay Tyagi (supra) was completely different than the present case inasmuch as in that case there was no direction for further investigation by the Magistrate after submission of charge sheet and taking of cognizance of the offences. The question which is posed in this case was also not raised and discussed in that case.

In the case of Rita Nag -Vrs.- State of West Bengal reported in (2009) 9 Supreme Court Cases 129, the point came for adjudication was that whether after charge sheet has been filed by the investigating agency under section 173(2) of Cr.P.C. and charge has been framed against some of the accused on the basis thereof and the other co-accused have been discharged, the Magistrate can direct the investigating authorities to conduct a re-investigation or even further investigation under sub-section (8) of section 173 of Cr.P.C. while considering an application filed by the de facto complainant. The Hon’ble Court held as follows:-

“19. What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under section 173(2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under section 173(8). The Magistrate cannot suo moto direct a further investigation under section 173(8) Cr.P.C. or direct a re-investigation into a case on account of the bar of section 167(2) of the Code.

20. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under section 173(8), was a direction given by the learned Magistrate to re- investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.”

In case of Randhir Singh Rana -Vrs.- State reported in (1997) 1 Supreme Court Cases 361 where a question was raised whether a Judicial Magistrate, after taking cognizance of an offence on the basis of a police report and after appearance of the accused in pursuance of the process issued, can order of his own further investigation in the case, it was held as follows:-

“9. Shri Walia, who worked hard to assist the Court, referred us to the relevant part of the 41st Report of the Law Commission of India pursuant to whose recommendation sub-section (8) of section 173 was inserted in the new Code. But that also does not throw light on the question with which we are seized. Further, the learned Counsel brought to our notice the statement of objects and reasons, so also the notes on the clauses of the new Code; but there also we find no light. Of the decisions cited by Shri Walia, the one nearest to the point is of a learned Judge of Calcutta High Court in State -Vrs.- Sankar Halder : 1976 Criminal Law Journal 1361, in which it was held that a Court is not debarred from making any order for further investigation under the provisions of section 173(8) of the Code. But then, that was not a case where cognizance had been taken and accused had appeared in pursuant to the process issued. Thus, the decision does not assist us to answer the question under examination.

10. The decision of this Court in State of Rajasthan -Vrs.- Aruna Devi : (1995) 1 Supreme Court Cases 1, to which our attention was invited by Shri Datta, learned Senior Counsel appearing for the State, also is not helpful, because in that case the power of the police to make further investigation after cognizance was taken by the Magistrate had come up for examination. The point involved in present appeal, however, is relatable not to the power of the police to make further investigation but of the Magistrate to order for such investigation.

11. The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate on his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. 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.”

In case of Sri Rana Sinha @ Sujit Sinha -Vrs.- The State of Tripura reported in 2011(2) Gauhati Law Times 610, a Division Bench of Gauhati High Court (Agartala Bench) held as follows:-

“Whether a subordinate Court can direct further investigation to arrive at a just decision of a case?
155. In the light of what has been observed above, one can have no option but to conclude and, in fact, it is not even disputed that Ranbir Singh Rana (supra) lays down that a Magistrate cannot, of his own, direct further investigation to be conducted by the police if cognizance has already taken and the accused has entered appearance. Ranbir Singh Rana (supra) also clearly lays down that a Magistrate cannot, in the name of advancing the cause of justice, or to arrive at a just decision of the case, direct further investigation to be conducted by the police if he does not, otherwise, have the power to direct such further investigation meaning thereby that since a Magistrate does not have the power to direct, on his own, further investigation after cognizance has already been taken and the accused has entered appearance, he cannot direct such further investigation of his own for the purpose of advancing the cause of justice or even to arrive at a just decision of the case.

156. No way, therefore, a Magistrate can direct further investigation of his own and if he cannot direct further investigation of his own, it is not possible to hold that he can direct such an investigation on the basis of any petition filed by the informant, de facto complainant, aggrieved person or the victim.

157. We have already pointed out above, that in the decisions, which have been rendered subsequent to Randhir Singh Rana’s case (supra), the Supreme Court has not deviated from the position of law laid down in Randhir Singh Rana’s case (supra), namely, that a Magistrate cannot, of his own, order ‘further investigation’ after cognizance has been taken and the accused has appeared. So long as Randhir Singh Rana (supra) holds the field, as it does, indeed, even today, we are of the view that there can be no escape from the conclusion that a Magistrate cannot, on his own, direct ‘further investigation’ on a defect or deficiency having come to his notice. Naturally, therefore, the mere fact that such a defect or deficiency has been brought to the notice of the Magistrate by the informant, or the de facto complainant, or the aggrieved person, or the victim, would not, and cannot, clothe the Magistrate with the power to order ‘further investigation’ so as to advance the cause of justice or to prevent miscarriage of justice or to arrive at a just decision of the case. The remedy, in such a case, lies in making appropriate application under section 482 of the Code inasmuch as section 482 preserves the inherent power of the High Court. It is in this context that the following observations were made in Rosendra Chandra Das -Vrs.- State of Assam : 2008 (4) Gauhati Law Times 155, which we fully agree with:

“46. What surfaces from the discussion, held as a whole, is that in a case, where an accused appears, pursuant to process issued by the Court upon taking cognizance of offences, following submission of ‘police report’ under section 172(3)(i), neither the Court, on its own, direct ‘further investigation’ nor has the informant or aggrieved party any right to obtain a direction for ‘further investigation’, for, the prosecution agency, in such a case, remains the State and if any ‘further investigation’ has to be conducted, it has to be at the instance of the State and, in fact, in an appropriate case, even the State must seek formal permission from the Court to re-start investigation if the investigation, conducted earlier, was improper or perfunctory. The remedy of the informant, therefore, lies in making application, under section 482 Code of Criminal Procedure, to the High Court seeking appropriate direction in the matter. What, indeed, a Court can do, when a petition, as in the present case, is made seeking proper or ‘further investigation’ after the accused has already entered appearance, is that the Court can and, in a befitting case, must, direct the State, i.e., the Public Prosecutor, to look into the grievances of the informant or the aggrieved party, as the case may be, and do the needful in accordance with law. If, in such a case, the Public Prosecutor, on a dispassionate and legally permissible examination, takes the view that the matter needs to be further investigated, the State can commence ‘further investigation’; but, ordinarily, it would be in the fitness of the things if the State obtains formal permission from the Court, where the trial is being conducted.”

158. Coupled with the above, one must also bear in mind that the High Court, in an appropriate case, may invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India to direct either ‘further investigation’ or ‘re-investigation’ in a case. (See State of Haryana -Vrs- Bhajanlal and Ors. reported in 1992 Supp (1) SCC 335) Summary on the concept of further investigation

159. The position of law may, in the light of the discussions held above, be summarized thus: Under the Code ‘investigation’ consists, generally, of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the ‘investigation’ and to be produced at the trial, and (5) information of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by the filing of charge-sheet under section 173 (See H. N. Rishbad -Vrs.- The State of Delhi : A.I.R. 1955 S.C. 196).

160. ‘Further investigation’ is nothing, but continuation of an earlier investigation. In ‘further investigation’, thus, the investigation, which might have been conducted in the past, would be resumed and conducted further.

161. As against ‘further investigation’, a ‘re- investigation’ is an investigation, which is a new and fresh investigation wiping out the earlier investigation and ‘re-investigation’ is conducted by an agency, which is not only different from the earlier investigating agency, but also must be one, which falls under the control, supervision or jurisdiction of an authority not only different from, but also independent of, the authority, which had the control, supervision or jurisdiction over the earlier investigating agency. In this sense, an investigation conducted by an investigating agency, such as, Criminal Investigation Department of a State, is not different from the ordinary police machinery of the State concerned, because both of them are under the jurisdiction of the same State; whereas Central Bureau of Investigation (C.B.I) is an authority, which is different from the normal police investigation of the State or its Criminal Investigation Department. As has been pointed out in clear terms, in State of Andhra Pradesh -Vrs.- A.S. Peter : (2008) 2 SCC 383, what section 173(8) permits is a ‘further investigation’ and not a ‘re-investigation’. What is, however, extremely important to bear in mind is that a reinvestigation being prohibited by law, it would not, ordinarily, be ordered by a superior Court. It, thus, becomes clear that a ‘reinvestigation’ would be ordered in the situations, which are extra-ordinary, rare and cannot be met by a ‘further investigation’. (See Kishan Lal -Vrs.- Dharmendra Bafna : AIR 2009 SC 2932).

162. Section 173(8) can give rise to, broadly speaking, four distinct situations, where the question of ‘further investigation’ may arise. The police report, which does not suggest prosecution of an accused and which is, ordinarily, called ‘final report’, may not be accepted by the Court on its own examination or, if, upon notice received, the informant, or de facto complainant, or the aggrieved person, or the victim, raises objection, or points out some omission, deliberate or otherwise, defect or deficiency in the investigation. In a case, therefore, either of his own, on noticing a defect or deficiency in an investigation, or when such a defect or deficiency is brought to the notice of the Magistrate by the informant, de facto complainant, aggrieved person or victim, the Magistrate can direct further investigation if he has not already taken cognizance and if the defect, deficiency or omission warrants ‘further investigation’. One must, of course, bear in mind, that in both the cases aforementioned, a direction for ‘further investigation’ is given without really taking cognizance of any offence.

163. A situation may arise, where the police submit a ‘police report’, in the form of a charge- sheet, suggesting prosecution of an accused, but the same may not be accepted by the Court either on its own or on the protest raised by the informant, de facto complainant, aggrieved person or victim. The case of Rosendra Das (supra) is a case, which falls in this category, because what had happened in Rosendra’s case (supra) was that the informant had made allegation of assault against four persons, who were named by the informant in the First Information Report (FIR), but the police, on completion of investigation, laid charge-sheet against one person only out of the four persons named in the FIR. In such a situation, as has been held in Rosendra’s case (supra), which we fully agree, the Magistrate ought not to have accepted the charge-sheet in its entirety without giving notice to the informant. On receiving the notice, if the informant had raised objection, the Magistrate was bound to consider if it was appropriate and justified, on the part of the police, to submit charge-sheet against only one of the four accused persons named in the FIR. If the Magistrate would have formed the opinion, sustainable in law, that further investigation was necessary, there was no impediment, on the part of the Magistrate, to order ‘further investigation’. The directions for such a further investigation would, once again, be without taking cognizance of any offence.

164. There is, of course, a distinction between the two situations described hereinbefore. While in the former case, the ‘further investigation’ was directed by not accepting a final report, the latter direction for ‘further investigation’ was given despite the fact that there was a charge- sheet filed by the police on completing their investigation, but the charge-sheet is not accepted by the Magistrate for reasons, such as, the reason that the police report does not disclose as to why all the persons, named by the informant in his FIR, have not been made accused in the case. The common threat, however, running between the two situations aforementioned is the fact that in both the situations aforementioned, no cognizance was taken by the Magistrate.

165. As against the situation, which we have visualized above, relating to ‘pre-cognizance’ stage, we may, now, turn to the ‘third’ situation, where ‘further investigation’, at the ‘post- cognizance’ stage, may be needed. After a Court takes cognizance, a defect or deficiency in the investigation may come to the notice of the Court, or such a defect or deficiency may be brought to the notice of the Court by an informant, de facto complainant, aggrieved person or the victim. In neither case, in the face of the clearly laid down position of law, in Randhir Singh Rana’s case (supra), that a Court cannot, on its own, direct ‘further investigation’, when the trial has commenced, it becomes clear that even on the request of an informant, de facto complainant, or the aggrieved person, the Court would have no power to direct ‘further investigation’.

166. In fact, it is difficult to conceive of a situation, where the Court, on noticing a defect or deficiency, on its own, cannot, in the name of advancing cause of justice or to arrive at a ‘just decision’ of a case or to prevent miscarriage of justice, direct ‘further investigation’, but it can, at the same time and on the same defect or deficiency being brought to its notice by the informant, or the de facto complainant, or the aggrieved person, or the victim, would have the power to direct ‘further investigation’.

167. Necessary, therefore, one has to hold that so long as the law, laid down in Randhir Singh Rana (supra), is not overruled, neither on its own nor on the request of the informant, or the de facto complainant, or the aggrieved person, or the victim, a Court can direct ‘further investigation’, when the accused has already entered appearance and the stage for framing of charge has been reached.

168. The ‘fourth’ situation can be a situation, when the police seeks permission of the Court to conduct ‘further investigation’, or a situation, when the Court finds that there is a defect or deficiency in the investigation, which warrants ‘further investigation’. In such a situation, there can be legal impediment, on the part of the Court, to direct the Public Prosecutor to decide, as a State, as to what it shall do. In such a situation, the State, having assumed the responsibility of conducting the prosecution, cannot leave the prosecution half-done or defective. The State would have, in such a situation, no justification for not conducting ‘further investigation’. For instance, there may be a case, where a weapon has been relied upon by the prosecution as the weapon of offence, but the weapon, having not been serologically examined, may require confirmation by a serological examination. Such a defect or deficiency, in investigation, may be noticed by the Court on its own, or may be brought to its notice by the informant, or by the victim, or by the Public Prosecutor himself. In such a case, when the Public Prosecutor makes application seeking ‘further-investigation’, such a request would be treated to be a request made by the investigating agency, because it is the Public Prosecutor, who represents a State in the trial in a Court.

169. Though the Public Prosecutor does not form part of the investigating agency, he does speak for the State, which assumes the responsibility, in the criminal trial, to prosecute an accused, particularly, in a case of murder and, that is why, none other than a Public Prosecutor can conduct a sessions trial and the Court has no power to allow, as in the case of Shiv Kumar -Vrs- Hukam Chand and Anr. reported in (1999) 7 SCC 467, a private counsel to conduct prosecution in a sessions case even if the Public Prosecutor agrees to allow an informant’s or a victim’s counsel to conduct the prosecution. When the request comes, in such a case, from the Public Prosecutor for granting permission for ‘further investigation’, it would be very difficult for a Court to not to permit ‘further investigation’. At any rate, the Court will not have the power to refuse permission for ‘further investigation’ merely on the ground that the application has been made seeking ‘further investigation’ by the Public Prosecutor or by the Additional Public Prosecutor in charge of the case and not by the police if the permission, sought for, is, otherwise, necessary.”

7. In the present case, the investigating officer has not thought it proper to pray for further investigation. Even the learned Asst. Public Prosecutor filed objection to the petition filed by the opposite party no.2 for further investigation and opposed the prayer. Even though the petitioner had already entered appearance through her advocates but the learned Magistrate neither asked the learned counsel for the opposite party no.2 to serve a copy of such petition on her advocates nor heard them before passing the impugned order. In the factual scenario, I am of the view that the opposite party no.2 is not at all an aggrieved person and it appears that since the petitioner has instituted a case on 05.07.2012 under sections 498-A, 294, 506, 313 read with section 34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act against the opposite party no.2 in which he has been charge sheeted, a petition was filed before the Inspector in charge, Bhadrak Rural Police Station initially and then a petition under section 173(8) of Cr.P.C. was filed by him seeking for further investigation.

Conduct of impartial and unbiased investigation is the hall mark of any criminal investigation. If it is unfair, improper and one-sided and important materials are not collected or ignored deliberately which will have a far reaching consequence in proving the guilt or otherwise of the accused, it would amount to defective investigation. Such investigation will not be in the interest of justice and it would be against the public confidence on the investigating agency. Even though after taking cognizance of the offence by the Magistrate upon the chargesheet or final report submitted by police, the right of the police to further investigate the case is not exhausted after seeking formal permission from the Magistrate but a Magistrate cannot direct further investigation of the case at the instance of a de facto complainant after taking cognizance of offences on the basis of chargesheet submitted by police.

Therefore, in view of the ratio laid down in the above decisions, I am of the view that the learned Magistrate has exceeded his jurisdiction and acted beyond his jurisdictional competence in directing further investigation of the case at the instance of the opposite party no.2 after taking of cognizance of offences and issuance of process. The impugned order suffers from perversity, illegality and impropriety and therefore, in exercise of the revisional jurisdiction, I am inclined to quash the same.

In the result, the revision petition is allowed. The impugned order dated 04.05.2016 passed by the learned S.D.J.M., Bhadrak in directing further investigation of the case is hereby set aside. The learned Magistrate is directed not to consider the further investigation report submitted by police and he shall proceed with the case on the basis of the chargesheet on which he has taken cognizance of offences under sections 468 and 471 of the Indian Penal Code. Since the case is of the year 2013, the learned Magistrate shall do well to expedite the trial and conclude the same preferably within six months from the date of receipt of this order.

S.K. Sahoo, J.

Orissa High Court, Cuttack The 19th January, 2017

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