| Headnote |
Code of Criminal Procedure, 1973 – ss. 156(1)(3) and 173(8) – The High Court held that the Magistrate does not possess any power to order a further investigation after a charge-sheet is filed and cognizance is taken – Propriety of – Held: Not proper – The Magistrate’s power u/s. 156(3) of the CrP.C. is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the Police takes place – To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police which such Magistrate is to supervise - Art.21 of the Constitution mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him u/s.173(2); and which power would continue to ensure in such Magistrate at all stages of the Criminal Proceedings until trial itself commences – Further, the “investigation” referred to in s.156(1) of the CrPC would, as per definition of “investigation” u/s.2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation u/s.173(8) of the Cr.P.C – Constitution of India – Art. 21.Code of Criminal Procedure, 1973 – ss.156(1)(3),173(8) – Penal Code, 1860 – ss. 420, 465, 467, 468, 471, 384 & 571 – After a Police Report – Power of Magistrate to further investigate – A FIR was lodged by a power-of-attorney holder of ‘R’ and ‘S’ who were allegedly residing at ‘UK or USA’ – The FIR narrated that ‘R’ and ‘S’ were independent owners of a agricultural land – It was alleged that heirs of one ‘B’, from whom ‘R’ and ‘S’ had obtained the said agricultural land, along with ‘V’ had hatched a conspiracy and were attempting to extort money from the power-of-attorney holder of ‘R’ and ‘S’ and had tried to grab the said land – Investigation was conducted and charge-sheet was filed – Magistrate took cognizance and issued summons to the accused regarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 of IPC – Accused persons filed applications for further investigation u/s.173(8) of the Cr.P.C and discharge – Magistrate dismissed the applications – Application by accused to register an FIR or for the Magistrate to order investigation u/s. 156(3) was also rejected – Separate Criminal Revisions for dismissal by Magistrate of further investigation and order rejecting FIR were filed – Second Additional Session Judge went through the application u/s.173(8) and held that a case was made out for further investigation – The High Court held that the Magistrate does not possess any power to order further investigation after a charge-sheet is filed and cognizance is taken – On appeal, held: There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to s.156(3) r/w. s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be available at all stages of the progress of a criminal cases before the trial actually commences – Whether further investigation should or should not be ordered is within the discretion of the Magistrate who will exercise such discretion on the facts of each case and in accordance with law – In the instant case, the facts alleged in the application for further investigation were facts which pertained to revenue entries made in favour of ‘R’ and ‘S’ and how their claim was false and bogus – Therefore, the facts alleged in the applications for further investigation were in the nature of cross-FIR which was not registered – Further, the Commissioner of the Revenue doubted the order passed by the Revenue Authority and he also stated that one application was filed by widow of ‘B’ in the 2000, who had passed away in the year 1999 which showed that her signature were prima facie forged – Therefore, it does not call for further investigation into the facts alleged in the FIR already filed – However, considering the letter of the Commissioner and other facts, police directed to register an FIR qua facts – Thus, the judgment of the High Court insofar it stated that post-cognizance the Magistrate is denuded of power to order further investigation set aside.Code of Criminal Procedure, 1973 – Constitution of India – Art. 21 – Fair trial and fair investigation – Held: A fair trial must kick-off only after an investigation is itself fair and just – The ultimate aim of all investigation and inquiry whether by the police or by the Magistrate, is to ensure that those who have not are not arraigned to stand trial – That this is the minimal procedural requirement that is the fundamental requirement of Art. 21 of Constitution cannot be doubted – It is the hovering omnipresence of Art. 21 over the Cr.P.C that must needs inform the interpretation of all the provisions of the Cr.P.C, so as to ensure that Art. 21 is followed both in letter and in spirit. |
