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Kailash vs State Of Rajasthan on 24 October, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.2562/2018

1. Kailash s/o Sh. Tarachand, aged 27 years,

2. Smt. Kamla w/o Sh. Tarachand, aged 55 years,

Both petitioners are by caste Paliwal and residents of 11/56, CHB,
Jodhpur City (West), Jodhpur.——-Petitioners

Versus

1. State of Rajasthan.

2. Deendayal s/o Sh. Ranidan, by caste Paliwal, resident of House
No.852, Indra colony, Police Station Kotwali, District Jaisalmer(Raj.).————-Respondents

For Petitioner(s) : Mr.Vineet Jain

For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Deepak Menaria

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 04/10/2018

Pronounced on 24/10/2018

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred claiming the following relief:

“It is therefore, respectfully prayed that your
Lordships may graciously be pleased to accept and
allow the present criminal misc. petition and record of
the case may kindly be called for and the impugned
order dated 02.02.2018 as well as 17.07.2018 passed
(2 of 19)

by learned Metropolitan Magistrate No.8, Jodhpur
Metro, Jodhpur may kindly be quashed and set aside.”

2. Brief facts of this case indispensable for the present

adjudication are that an FIR was lodged by the

respondent/complainant on 25.10.2017 with the allegations that

his daughter, namely, Anita @ Anjali, was married with Kailash

(petitioner No.1) on 30.11.2016, and after her marriage, his

daughter was harassed in connection with demand of dowry by

her in-laws. It has further been alleged that Tarachand, the father-

in-law of the complainant’s daughter telephonically informed the

complainant that his daughter, Anita was ill and when the

complainant rushed to the hospital, Anita had already expired.

3. On the investigation being made, a charge-sheet was

submitted against Kailash, the husband of complainant’s daughter

Anita on 30.01.2018, whereupon the learned magistrate

registered a case, and proceeded to take cognizance against the

charge-sheeted accused of the offence under Sections 304B and

498A IPC and further ordered committal of the case under Section

209 Cr.P.C. as the offence was triable by the court of sessions.

4. The point of consideration in the present case is arising

out of an application dated 02.02.2018 filed by the

respondent/complainant before the learned magistrate, seeking

direction upon the concerned investigating officer to submit the

progress report. On 17.07.2018, the learned magistrate, after

noticing the factual matrix of the case, including the fact that on
(3 of 19)

27.04.2018 a supplementary charge-sheet was presented against

mother-in-law i.e. petitioner No.2 in the case, allowed the

application and directed further investigation invoking the powers

under Section 173(8) Cr.P.C.

5. Learned counsel for the petitioners states that the

impugned order allowing the application under Section 173(8)

Cr.P.C. could not have been passed, as further investigation after

submission of the report under sub-section (2) of Section 173

Cr.P.C. was the prerogative of the investigating agency only.

6. In support of his submissions, learned counsel for the

petitioners has relied upon the precedent law laid down by the

Hon’ble Apex Court in Amrutbhai Shambhubhai Patel Vs.

Sumanbhai Kantibhai Patel, reported in (2017) 4 SCC 177,

in which while taking into consideration the other judgments of

the Hon’ble Apex Court, including Abhinandan Jha Ors. Vs.

Dinesh Mishra, reported in AIR 1968 SC 117 and Chandra

Babu alias Moses Vs. State through Inspector of Police

Ors., reported in (2015) 8 SCC 774, it was observed in

Amrutbhai Shambhubhai Patel (supra) as under:-

“32. The scope of the judicial audit in Reeta Nag [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri)
1051] , to reiterate, was whether, after the charge-sheet had been
filed by the investigating agency under Section 173(2) CrPC, and
charge had been framed against some of the accused persons on
the basis thereof, and other co-accused had been discharged, the
Magistrate could direct the investigating agency to conduct a
reinvestigation or further investigation under sub-section (8) of
Section 173. The recorded facts revealed that the Magistrate had in
the contextual facts directed for reinvestigation and to submit a
(4 of 19)

report, though prior thereto, he had taken cognizance of the
offences involved against six of the original sixteen accused
persons, discharging the rest. The informant had thereafter filed an
application for reinvestigation of the case and the prayer was
acceded to. This Court referred to its earlier decisions in Sankatha
Singh v. State of U.P. [Sankatha Singh v. State of U.P., AIR 1962
SC 1208 : (1962) 2 Cri LJ 288] , and Master Construction Co. (P)
Ltd. v. State of Orissa [Master Construction Co. (P) Ltd. v. State of
Orissa, AIR 1966 SC 1047] to the effect that after the Magistrate
had passed a final order framing charge against some of the
accused persons, it was no longer within his competence or
jurisdiction to direct a reinvestigation into the case. The decision
in Randhir Singh Rana [Randhir Singh Rana v. State (Delhi Admn.),
(1997) 1 SCC 361] , which propounded as well that after taking
cognizance of an offence on the basis of a police report and after
the appearance of the accused, a Magistrate cannot of his own
order further investigation, though such an order could be passed
on the application of the investigating authority, was recorded. It
was reiterated with reference to the earlier determination of this
Court in Dinesh Dalmia v. CBI [Dinesh Dalmia v. CBI, (2007) 8
SCC 770 : (2008) 1 SCC (Cri) 36] that the power of the investigating
officer to make a prayer for conducting further investigation in terms
of Section 173(8) of the Code was not taken away only because a
charge-sheet had been filed under Section 173(2) and a further
investigation was permissible even if cognizance had been taken by
the Magistrate. This Court, therefore summed up by enouncing that
once a charge-sheet was filed under Section 173(2) CrPC and
either charges have been framed or the accused have been
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 authority, permit further investigation
under Section 173(8), but he cannot suo motu direct a further
investigation or order a reinvestigation into a case on account of the
bar of Section 167(2) of the Code. It was thus held that as the
investigating authority did not apply for further investigation and an
application to that effect had been filed by the de facto complainant
under Section 173(8), the order acceding to the said prayer was
beyond the jurisdictional competence of the Magistrate. It was,
however observed, that a Magistrate could, if deemed necessary,
(5 of 19)

take recourse to the provisions of Section 319 CrPC at the stage of
trial.

33. This decision reinforces the view that after cognizance is taken
by the Magistrate on the basis of a report submitted by the police on
the completion of the investigation, no direction for further
investigation can be made by the Magistrate suo motu and it would
be permissible only if such a request is made by the investigating
authority on the detection of fresh facts having bearing on the case
and necessitating further exploration thereof in the interest of
complete and fair trial.

46. As adumbrated hereinabove, Chapter XIV of the Code
delineates the conditions requisite for initiation of proceedings
before a Magistrate. Section 190, which deals with cognizance of
offences by Magistrate, sets out that any Magistrate of the First
Class and any Magistrate of the Second Class specially
empowered, as contemplated, may take cognizance of any offence
either upon receiving a complaint of facts which constitute such
offence or upon a police report of such facts or upon information
received from any person other than the police officer, or upon his
own knowledge that such offence had been committed. Section
156, which equips a police officer with the power to investigate a
cognizable case mandates vide sub-section (3) thereof that any
Magistrate empowered under Section 190 may order such an
investigation. The procedure for dealing with complaints to
Magistrate is lodged under Chapter XV of the Code. Section 202
appearing therein predicates that any Magistrate on receipt of a
complaint of an offence of which he is authorised to take
cognizance or which had been made over to him under Section
192, may, if he thinks fit and shall in a case where the accused is
residing at a place beyond the area in which he exercises his
jurisdiction, postpone the issue of process against the accused and
either enquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks fit for
the purpose of deciding whether or not there is sufficient ground for
proceeding. The contents of this text of Section 202(1) of the Code
unmistakably attest that the investigation that can be directed by the
Magistrate, to be undertaken by a police officer would essentially be
in the form of an enquiry for the singular purpose of enabling him to
decide whether or not there is sufficient ground for proceeding with
(6 of 19)

the complaint of an offence, of which he is authorised to take
cognizance. This irrefutably is at the pre-cognizance stage and thus
logically before the issuance of process to the accused and his
attendance in response thereto. As adverted to hereinabove,
whereas Section 311 of the Code empowers a court at any stage of
any inquiry, trial or other proceeding, to summon any person as a
witness, or examine any person in attendance, though not
summoned as a witness, or recall and re-examine any person
already examined, if construed to be essential to be just decision of
the case, Section 319 authorises a court to proceed against any
person, who though not made an accused appears, in course of the
inquiry or trial, to have committed the same and can be tried
together. These two provisions of the Code explicitly accoutre a
court to summon a material witness or examine a person present at
any stage of any inquiry, trial or other proceeding, if it considers it to
be essential to the just decision of the case and even proceed
against any person, though not an accused in such enquiry or trial,
if it appears from the evidence available that he had committed an
offence and that he can be tried together with the other accused
persons.

47. On an overall survey of the pronouncements of this Court on
the scope and purport of Section 173(8) of the Code and the
consistent trend of explication thereof, we are thus disposed to hold
that though the investigating agency concerned has been invested
with the power to undertake further investigation desirably after
informing the court thereof, before which it had submitted its report
and obtaining its approval, no such power is available therefor to
the learned Magistrate after cognizance has been taken on the
basis of the earlier report, process has been issued and the
accused has entered appearance in response thereto. At that stage,
neither the learned Magistrate suo motu nor on an application filed
by the complainant/informant can direct further investigation. Such a
course would be open only on the request of the investigating
agency and that too, in circumstances warranting further
investigation on the detection of material evidence only to secure
fair investigation and trial, the life purpose of the adjudication in
hand.

48. The unamended and the amended sub-section (8) of Section
173 of the Code if read in juxtaposition, would overwhelmingly attest
(7 of 19)

that by the latter, the investigating agency/officer alone has been
authorised to conduct further investigation without limiting the stage
of the proceedings relatable thereto. This power qua the
investigating agency/officer is thus legislatively intended to be
available at any stage of the proceedings. The recommendation of
the Law Commission in its 41st Report which manifestly heralded
the amendment, significantly had limited its proposal to the
empowerment of the investigating agency alone.

49. In contradistinction, Sections 156, 190, 200, 202 and 204 CrPC
clearly outline the powers of the Magistrate and the courses open
for him to chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate has the
power to direct investigation under Section 156(3) at the pre-
cognizance stage even after a charge-sheet or a closure report is
submitted, once cognizance is taken and the accused person
appears pursuant thereto, he would be bereft of any competence to
direct further investigation either suo motu or acting on the request
or prayer of the complainant/informant. The direction for
investigation by the Magistrate under Section 202, while dealing
with a complaint, though is at a post-cognizance stage, it is in the
nature of an inquiry to derive satisfaction as to whether the
proceedings initiated ought to be furthered or not. Such a direction
for investigation is not in the nature of further investigation, as
contemplated under Section 173(8) of the Code. If the power of the
Magistrate, in such a scheme envisaged by CrPC to order further
investigation even after the cognizance is taken, the accused
persons appear and charge is framed, is acknowledged or
approved, the same would be discordant with the state of law, as
enunciated by this Court and also the relevant layout of CrPC
adumbrated hereinabove. Additionally had it been the intention of
the legislature to invest such a power, in our estimate, Section
173(8) CrPC would have been worded accordingly to accommodate
and ordain the same having regard to the backdrop of the
incorporation thereof. In a way, in view of the three options open to
the Magistrate, after a report is submitted by the police on
completion of the investigation, as has been amongst authoritatively
enumerated in Bhagwant Singh [Bhagwant Singh v. Commr. of
Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] , the Magistrate, in
both the contingencies, namely; when he takes cognizance of the
(8 of 19)

offence or discharges the accused, would be committed to a
course, whereafter though the investigating agency may for good
reasons inform him and seek his permission to conduct further
investigation, he suo motu cannot embark upon such a step or take
that initiative on the request or prayer made by the
complainant/informant. Not only such power to the Magistrate to
direct further investigation suo motu or on the request or prayer of
the complainant/informant after cognizance is taken and the
accused person appears, pursuant to the process, issued or is
discharged is incompatible with the statutory design and
dispensation, it would even otherwise render the provisions of
Sections 311 and 319 CrPC, whereunder any witness can be
summoned by a court and a person can be issued notice to stand
trial at any stage, in a way redundant. Axiomatically, thus the
impugned decision annulling the direction of the learned Magistrate
for further investigation is unexceptional and does not merit any
interference. Even otherwise on facts, having regard to the
progression of the developments in the trial, and more particularly,
the delay on the part of the informant in making the request for
further investigation, it was otherwise not entertainable as has been
rightly held by the High Court.”

7. Learned counsel for the petitioners has submitted that

sub-section (8) was a significant addition to Section 173 Cr.P.C.,

after the 41st Report of the Law Commission of India to the old

Code, which intended that the officer-in-charge of the police

station to be empowered to conduct further investigation, but

there was no intention that such authorization for further

investigation was being extended to the magistrate, as the court is

seized of the proceedings.

8. Learned counsel for the petitioners has also placed

reliance on the precedent law laid down by the Hon’ble Apex Court

in Reeta Nag Vs. State of West Bengal Ors., reported in

(2009) 9 SCC 129, wherein the Hon’ble Apex Court has
(9 of 19)

categorically held 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) Cr.P.C. The magistrate cannot suo motu

direct a further investigation under Section 173(8) Cr.P.C. The

relevant paras 25 and 26 of the said judgment read as under:-

“25. What emerges from the abovementioned decisions of this
Court is that once a chargesheet is filed under Section 173(2) CrPC
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 motu direct a further
investigation under Section 173(8) CrPC or direct a reinvestigation
into a case on account of the bar of Section 167(2) of the Code.

26. 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 reinvestigate 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 reinvestigation 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.”

9. On the other hand, learned counsel for the respondent

refuted the submissions made on behalf of the petitioners on the

ground that it is reflected in the order-sheet dated 27.04.2018

that the charge-sheet is filed, and file was posted for arguments
(10 of 19)

on cognizance. Therefore, cognizance qua petitioner no.2, who

was charge-sheeted in a supplementary charge-sheet has not yet

been taken, and therefore, the judgment in Amrutbhai

Shambhubhai Patel (supra) shall not apply.

10. Learned counsel for the respondent has relied upon the

judgment rendered by the Hon’ble Calcutta High Court in Sri

Indranil Mukherjee Vs. The State of West Bengal Anr.

(CRR 2115 of 2017 decided on 07.09.2018), in which, as per

learned counsel for the respondent, the judgment in Amrutbhai

Shambhubhai Patel (supra) has been distinguished. Relevant

portion of the judgment in Sri Indranil Mukherjee (supra)

reads as under:-

“I find from the material on record placed before
me that the investigating agency has perfunctorily
conducted investigation without taking into account
the medical evidence by not sending the accused
Ramkrishna Ghosh in the charge sheet despite
allegation levelled against him. The learned
Magistrate has also overlooked the police papers
placed on the Case Dairy while taking cognisance
against one charge sheeted accused and committed
error by rejecting the application for further
investigation.

In rebuttal Mr. Kallol Kumar Basu, learned
counsel for the opposite party no. 2 relied on the
decision in case of Athul Rao vs. State of Karnataka
Anr. (2017 (9) scale 161) wherein the Investigating
Officer had submitted charge sheet after investigation
and then also filed a supplementary charge sheet on
the subsequent date in which the charges were
(11 of 19)

framed and cognizance were taken as a consequence
of which the case was set down for trial.

In my humble opinion it was in that set of fact,
the Hon’ble Supreme Court relying on the decision of
the case of Amrut Bhai (supra) observed in paragraph
8 that the question as to whether after framing of the
charges and taking cognizance, it is open to the
Magistrate to direct further investigation either suo
motu or on an application filed by the
complainant/informant, it is no more res integra and
analysing the decisions in Amrut Bhai (supra) it has
been held that neither the Magistrate suo motu nor
on an application filed by the complainant/informant
can direct further investigation. Further investigation
in a given case may be ordered only on the request of
the investigating agency and that too, in
circumstances warranting further investigation on the
detection of material evidence only to secure fair
investigation and trial, the light purpose of
adjudication in hand.

In that view of the matter the Hon’ble Supreme
Court in the cited decision turned down the prayer for
further investigation. I am of the considered view that
the Hon’ble Supreme Court decisions in Atul Rao and
Amrut Bhai (supra) are quite distinguishable from the
present facts and circumstances of the case.

Relying on the aforesaid decisions, Mr. Ayan
Basu appearing for the State opposite party
submitted that though opinion of the I.O. is not
binding on the Magistrate but the accused not sent up
in the Final Report can be prosecuted at the stage of
trial on the basis of evidence to be adduced by the
prosecution.

In the instant case as it is revealed from the
(12 of 19)

materials on record that the charge sheet has been
submitted against one accused and another accused
was not sent up who allegedly assaulted the
complainant. It was the complainant who approached
the learned Magistrate only after having the
information and notice with regard to the submission
of the charge sheet. Therefore, it was expedient on
the part of the learned Magistrate to have disposed of
the application for further investigation under Section
173 (8) of the Code.

Bestowing an anxious consideration to the facts
situation of the case and in respectful consideration of
the larger bench decision of the Hon’ble Supreme
Court in Bhagwant Singh and in case of Samaj
Parivartan Samudaya and Ors. (supra), I am of the
considered opinion that the Magistrate has ample
power to direct further investigation after submission
of the charge sheet by the police even when
cognizance has been taken on the charge sheet
because the decision in Amrut Bhai case (supra) is on
a different set of facts as it was at culminating stage
of argument.

Therefore, I hold that the submission of a report
under Sub- Section 173(2) does not preclude the
power of the Magistrate to direct further investigation
by the investigating agency and submission of
supplementary charge sheet thereon notwithstanding
the Magistrate has taken cognizance of the offence on
a police report submitted under the said provision
although such power may be precluded at the
culminating stage of trial after cognisance has been
taken on framing of charge against the accused on
the basis of the Final Report.

Thus, in the larger interest of the justice and for
(13 of 19)

fair trial, it is imperative for the Magistrate to grant
further investigation because if the order impugned is
allowed to be sustained, it will amount to arming the
police with unbridled power to exonerate any person
from the periphery of the investigation and it would
be playing into the hands of the I.O. who submitted
the charge sheet against one accused exonerating
another by not sent up him in the charge sheet with
an ulterior design.

Ergo, I direct learned Additional Chief Judicial
Magistrate, Bidhannagar to decide on the final report
of the Investigating Agency on consideration of the
police papers placed in the Case Diary before he takes
cognizance on the final report. In consequence
thereof the order impugned stands set aside.

Accordingly, the revisional application is disposed
of.

Urgent certified photocopy of this Judgment, if
applied for, be supplied to the parties upon
compliance with all requisite formalities.”

11. Learned counsel for the petitioners, in his rejoinder

arguments, has submitted that once the cognizance is taken, no

second cognizance can be taken. In this regard, learned counsel

for the petitioners has relied upon the precedent law laid down by

the Hon’ble Apex Court in Prasad Shrikant Purohit Vs. State of

Maharashtra Anr., reported in (2015) 7 SCC 440. The

relevant paras 69, 70, 74 and 75 of the said judgment read as

under:-

“69. Reliance was then placed upon the decision
in Dilawar Singh [(2005) 12 SCC 709 : (2006) 1 SCC (Cri)
727] in particular para 8. The said para 8 reads as under:

(14 of 19)

(SCC p. 713)

“8. The contention raised by the learned counsel for the
respondent that a court takes cognizance of an offence and not
of an offender holds good when a Magistrate takes cognizance
of an offence under Section 190 CrPC. The observations made
by this Court in Raghubans Dubey v. State of Bihar [AIR 1967
SC 1167 : 1967 Cri LJ 1081] were also made in that context.

The Prevention of Corruption Act is a special statute and as the
Preamble shows, this Act has been enacted to consolidate and
amend the law relating to the prevention of corruption and for
matters connected therewith. Here, the principle expressed in
the maxim generalia specialibus non derogant would apply
which means that if a special provision has been made on a
certain matter, that matter is excluded from the general
provisions. (See Gadde Venkateswara Rao v. State of A.P. [AIR
1966 SC 828] , State of Bihar v. Yogendra Singh [(1982) 1 SCC
664 : 1982 SCC (LS) 142] and Maharashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth [(1984) 4 SCC 27] .) Therefore, the
provisions of Section 19 of the Act will have an overriding effect
over the general provisions contained in Section 190 or 319
CrPC. A Special Judge while trying an offence under the
Prevention of Corruption Act, 1988, cannot summon another
person and proceed against him in the purported exercise of
power under Section 319 CrPC if no sanction has been granted
by the appropriate authority for prosecution of such a person as
the existence of a sanction is sine qua non for taking
cognizance of the offence qua that person.”

(emphasis supplied)

70. By relying upon the said part of the decision in Dilawar
Singh case [(2005) 12 SCC 709 : (2006) 1 SCC (Cri) 727] it
was contended that taking “cognizance of an offence” cannot
be the universal rule and that under special circumstances
such cognizance of offence would be qua that person, namely,
the offender. It is true that in the said decision while dealing
with the requirement of sanction under Section 19 of the
Prevention of Corruption Act with reference to an offence under
Section 13(2) of the said Act, this Court did say that in the
absence of a sanction under Section 19 the taking of
(15 of 19)

cognizance of the offence qua that person cannot be held to
have been made out. When we apply the said decision, it must
be stated that it was laid down in the context of an offence
under Section 13(2) of the Prevention of Corruption Act which
Act specifically stipulates the requirement of prior sanction
under Section 19 for proceeding against a public servant by
way of a sanction and, therefore, it was held that Section 19 of
the Act will have an overriding effect over the general
provisions contained in Section 190 or 319 CrPC. For the
fulfilment of the requirement to be complied with under Section
2(1)(d) of MCOCA, for ascertaining a “continuing unlawful
activity” in the absence of any such restriction as stipulated
under Section 19 of the Prevention of Corruption Act under the
provisions of MCOCA we have found that Section 190 CrPC will
have every effect insofar as taking of cognizance by a
competent court is concerned as stipulated under Section 2(1)

(d) and, therefore, as held by us on compliance with the said
requirement under Section 190 CrPC, namely, cognizance of
the offence by the competent Magistrate, that part of the
requirement under Section 2(1)(d) will get automatically
fulfilled.

74. In Salap Service Station [1994 Supp (3) SCC 318 :
1994 SCC (Cri) 1713] , the question as to what is the
implication of a supplementary report filed by the
investigating agency under Section 173(8) CrPC was
considered. While dealing with the same, it has been
stated as under in para 2: (SCC p. 319)

“2. … It may be mentioned here that in the supplementary
charge-sheet allegations are to the effect that there was
violation of Direction 12 of the Control Order. The question of
taking cognizance does not arise at this stage since
cognizance has already been taken on the basis of the main
charge-sheet. What all Section 173(8) lays down is that the
investigating agency can carry on further investigation in
respect of the offence after a report under sub-section (2) has
been filed. The further investigation may also disclose some
fresh offences but connected with the transaction which is the
subject-matter of the earlier report. … The purpose of sub-

(16 of 19)

section (8) of Section 173 CrPC is to enable the investigating
agency to gather further evidence and that cannot be
frustrated. If the materials incorporated in the supplementary
charge-sheet do not make out any offence, the question of
framing any other charge on the basis of that may not arise but
in case the court frames a charge it is open to the accused
persons to seek discharge in respect of that offence also as
they have done already in respect of the offence disclosed in
the main charge-sheet. The rejection of the report outright at
that stage in our view is not correct.”

(emphasis supplied)

The above statement of law with particular reference to
Section 173(8) CrPC makes the position much more clear
to the effect that the filing of the supplementary charge-
sheet does not and will not amount to taking cognizance
by the court afresh against whomsoever again with
reference to the very same offence. What all it states is
that by virtue of the supplementary charge-sheet further
offence may also be alleged and charge to that effect may
be filed. In fact, going by Section 173(8) it can be stated
like in our case by way of supplementary charge-sheet
some more accused may also be added to the offence with
reference to which cognizance is already taken by the
Judicial Magistrate. While cognizance is already taken of
the main offence against the accused already arrayed, the
supplementary charge-sheet may provide scope for taking
cognizance of additional charges or against more accused
with reference to the offence already taken cognizance of
and the only scope would be for the added offender to
seek for discharge after the filing of the supplementary
charge-sheet against the said offender.

75. In CREF Finance Ltd. [(2005) 7 SCC 467 : 2005 SCC
(Cri) 1697] para 10 is relevant wherein this Court has held
as under: (SCC p. 471)

“10. … Cognizance is taken of the offence and not of the
offender and, therefore, once the court on perusal of the
(17 of 19)

complaint is satisfied that the complaint discloses the
commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter, it
must be held to have taken cognizance of the offence. One
should not confuse taking of cognizance with issuance of
process. Cognizance is taken at the initial stage when the
Magistrate peruses the complaint with a view to ascertain
whether the commission of any offence is disclosed.”

(emphasis supplied)

The said statement of law reinforces the legal position that
cognizance is always of the offence and not the offender
and once the Magistrate applies his judicial mind with
reference to the commission of an offence the cognizance
is taken at that very moment.”

12. After hearing learned counsel for the parties as well as

perusing the record of the case, alongwith the precedent laws

cited at the Bar, this Court finds that the precedent laws of

Amrutbhai Shambhubhai Patel (supra) and Reeta Nag

(supra), as cited by learned counsel for the petitioners, are

distinguishable from the present facts, and in fact, the present

ambit is near to the judgment in the matter of Sri Indranil

Mukherjee (supra), in which the judgment in the matter of

Amrutbhai Shambhubhai Patel (supra) has also been

considered.

13. In the present case, the cognizance of the offence was

taken by the learned court below on 30.01.2018 upon the charge-

sheet submitted against petitioner No.1, whereby the cognizance

of the offences under Sections 304B and 498A IPC was taken and

the matter was committed to the court of sessions for trial, and
(18 of 19)

while the investigation remained pending, a supplementary

charge-sheet was submitted by the prosecution on 27.04.2018

against the mother-in-law, upon which the learned court below

has directed further investigation in the matter invoking the power

under Section 173(8) Cr.P.C.

14. Though technically after cognizance, the learned court

below could not have sent the matter for further investigation

under Section 173(8) Cr.P.C., but such technicality cannot defeat

the fact that at the time of cognizance on 30.01.2018, petitioner

No.2 was not an accused and has been arrayed as an accused in

the supplementary charge-sheet only on 27.04.2018, and

therefore, would not fall within the ambit of the precedent law of

Amrutbhai Shambhubhai Patel (supra).

15. This Court, after perusing the complete record of the

case, is of the considered opinion that the learned Magistrate had

ample powers to direct further investigation after submission of

the supplementary charge-sheet by the police subsequently, even

when cognizance has been taken on the first charge-sheet at an

earlier stage.

16. The very fact that a supplementary charge-sheet has

been filed negates the applicability of the concept of ending of the

powers under Section 173(8) Cr.P.C. with the trial court, after

cognizance. The powers of the learned trial court after cognizance

against a particular offender is no doubt not available against the

same offender, but if supplementary charge-sheet is submitted

and another offender is included in the array of accused persons,
(19 of 19)

then looking into this subsequent development, the learned

Magistrate could not be precluded from exercising the powers

under Section 173(8) Cr.P.C. to direct further investigation by the

investigating authority. The reason why such powers can be

exercised is that the learned Magistrate has taken cognizance of

the offence upon the report submitted by the police, and

thereafter, further investigation has resulted into filing of

supplementary charge-sheet; and once investigation was kept

open and supplementary charge-sheet has been submitted, then

in the interest of justice and fair trial, it was imperative for the

learned Magistrate to accept the prayer for further investigation in

the matter, and if such power is curtailed by this Court, then it will

amount to arming the police with unbridled power to exonerate or

implicate any person from the periphery of the investigation and it

would be playing into the hands of the investigating officer, who

submitted the charge sheet against one accused, while implicating

or exonerating another in supplementary charge-sheet against

him on the next occasion. The impugned orders are thus well

within the realm of law.

17. In light of the aforesaid observations, the present misc.

petition stands disposed of.

(DR.PUSHPENDRA SINGH BHATI),J
Skant/-

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