Bombay High Court 1 CRWP NO.320/2005 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.320 OF 2005 1. Shri Shivaji Pralhad Pankhule, Age 35 years, Occu-Auto Driver r/o Dhoksal, Post: Roshan Nagar Taluka Badnapur, District Jalna. 2. Shri Jagannath Pralhad Pankhule, Age 30 years, Occu. Agriculturist, r/o Dhoksal, Post: Roshan Nagar, Taluka: Badnapur, District : Jalna. ...PETITIONERS VERSUS 1. The State of Maharashtra, through its Secretary, Home Department, Mantralaya, Mumbai 32 2. Superintendent of Police, C.I.D. Aurangabad. 3. Deputy Superintendent of Police, C.I.D., Aurangabad. (4. Hon'ble Minister, Home Department, Mantralaya, Mumbai 32) (5. Shri Chaganraoji Bhujbal, At present: P.W.D. Minister, Mantralaya, Mumbai 32 ) ::: Downloaded on - 11/06/2015 14:42:02 :::
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Bombay
Hig
h Court
1 CRWP NO.320/2005
IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.320 OF 2005
1. Shri Shivaji Pralhad Pankhule,
Age 35 years, OccuAuto Driverr/o Dhoksal,Post: Roshan NagarTaluka Badnapur,District Jalna.
Mr. V.D.Sapkal, Adv., for the appellant.Shri K.S.Patil, APP for respondent State (nos. 1 to 3).Respondent nos. 4 and 5 are deleted as per Court's order dt.5.8.2005.Respondent nos. 6 to 10 are served.
...
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CORAM: S.S.SHINDEAND
P.R.BORA, JJ.
DATE : July 23rd, 2014
***
Date of reserving the judgment:26/6/2014Date of pronouncing the judgment: 23/7/2014
***
JUDGMENT: (Per P.R.Bora, J.)
1. The present writ petition raises the
following questions:
(i) whether fresh investigation or re
investigation can be permitted under Section
173(8) of Code of Criminal Procedure, and
that too by the Magistrate. ?
(ii) whether the investigation of a crime
can be transferred under the orders of the
Minister. ?
(iii) under what circumstances the
investigation of a crime can be transferred
from one agency to another and it is whose
competence to transfer such investigation ?
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2. Before adverting to the questions so
raised, we will have to look into the facts of
the present case which are thus in brief:
That, the petitioner no.1 had filed complaint
to Police Station, Badnapur, on 16.11.2002,
alleging that his brother, namely, Ramaprasad
Pankule has been murdered by respondent nos. 8 to
10. On such complaint lodged by him an offense
was registered against respondent nos. 8 to 10
and the investigation was carried out. After
completing the investigation, Police Station
Officer, Badnapur, on 9.12.2002, filed
chargesheet in the Court of second JMFC, Jalna,
against respondent nos. 8 to 10 for the offense
punishable under Section 302 read with Section 34
of IPC.
Though the chargesheet was filed, the case
was committed to the Sessions Court, and after
committal Sessions Case No.165 of 2002 was
registered, the trial was not proceeded further
but a supplementary chargesheet came to be filed
on 13.6.2005. It was filed by Deputy
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Superintendent of Police, CID, Aurangabad. It is
the contention of the petitioners that only after
filing of such chargesheet, it was revealed to
them that the investigation in the said case was
transferred to State C.I.D. It is the further
case of the petitioners that on their further
inquiry, they came to know about the events that
happened in between.
As has been averred in the petition,
respondent nos. 6 and 7 had written a letter to
the learned Home Minister of the State of
Maharashtra who, at the relevant time, was also
the Deputy Chief Minister. It has to be stated
that, initially, the learned Minister was also
arrayed as respondent no.5, however,
subsequently, his name came to be deleted from
the array of the respondents in pursuance of the
order passed by this Court on 31st Jan., 2006.
The averments in the writ petition further
reveal that on receipt of such letter from
respondent nos. 6 and 7, the learned Minister
passed an order directing the Deputy Secretary,
Home, for conducting further enquiry as was
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prayed by respondent nos. 6 and 7. Thereafter,
the Desk Officer in the office of the Home
Ministry of the State of Maharashtra vide his
letter dated 23.1.2003 communicated to the
Additional Director General of Police ( C.I.D.),
Mumbai, that investigation in the Crime referred
to in the letter dated 3.4.2012, written by
respondent no.6 to the learned Minister, be
conducted through the State C.I.D. and compliance
be reported. After receipt of such
communication, the consequent orders came to be
passed by the Police authorities whereby the
investigation was transferred to the State C.I.D.
On 30th July, 2003, the Dy.Superintendent of
Police C.I.D. ( State) preferred an application
under Section 173(8) of Cr.P.C. In aforesaid
C.R.No.162/2002 before Judicial Magistrate, First
Class, Jalna, seeking permission for
reinvestigation in the aforesaid crime. The said
application was allowed by the learned
Magistrate. The State C.I.D., accordingly,
carried out investigation and on 13.6.2005 filed
supplementary chargesheet in the said matter. On
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the basis of the supplementary chargesheet so
submitted by the State C.I.D., Sessions Case
No.62/2005 has been registered. In the
supplementary chargesheet, the persons who have
been shown as accused are the witnesses in
Sessions Case No.165/2002 and the persons who
have been shown accused in Sessions Case
No.165/2002, have been shown as witnesses in
Sessions Case No.62/2005.
After having come to know the aforesaid facts
the petitioners filed the present petition,
raising the afore mentioned pleas and seeking
quashment of the subsequent investigation and the
supplementary chargesheet filed by the State
C.I.D. On 8th of June, 2006, this Court granted
Rule in the matter and also stayed the further
proceedings in Sessions Case No.165/2002 and
Sessions Case No.62 of 2005 till decision in the
present writ petition.
3. Shri V.D.Sapkal, the learned Counsel
appearing for the petitioners, submitted that the
petitioners have objected the acts of respondent
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nos. 1 to 3 in relation to Crime No.162/2002,
registered at Police Station, Badnapur, on four
counts.
First that, under Section 173(8) of Code of
Criminal Procedure Code, what is permissible is
“further investigation”, and not “re
investigation”. Shri Sapkal submitted that the
petitioners have placed on record overwhelming
evidence showing that reinvestigation has been
done in the aforesaid Crime No.162/2002 and, in
any case, it cannot be permitted.
Second objection is that the JMFC, without
any power or authority permited reinvestigation
under Section 173(8) of Cr.P.C. in Crime
No.162/2002.
The third objection is that, though the
further investigation in any crime can be carried
out under the provisions of Section 173(8) of
Code of Criminal Procedure Code only by the same
investigating agency who has conducted the
initial investigation, in the instant case the
same has been carried out by C.I.D. ( State).
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The fourth objection is that the then
learned Minister of Maharashtra, merely on a
complaint received to him from respondent no.6
took a decision to direct reinvestigation in
the aforesaid crime and transfered the
investigation to State C.I.D.
4. Learned Counsel Shri Sapkal, taking
us through the pleadings in the writ petition,
submitted that all above objections are
specifically raised in the petition with
necessary particulars and on the basis of
documentary evidence in that regard. Learned
Counsel first invited our attention to the letter
dated 3.12.2002, which is annexed as Exh.B with
the writ petition, written by respondent nos. 6
and 7 to the then Home Minister, who was also
Deputy Chief Minister of the State of Maharashtra
wherein they had prayed for a detailed enquiry
into the matter of the murder of Ramprasad
Pankhule by the State C.I.D.
Shri Sapkal then brought to our notice letter
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dated 23rd Jan., 2003, written by the Desk Officer
in the Home Department, Mantralaya, Mumbai, to
the Additional Director General, C.I.D.,
Maharashtra State, Pune, which contains an order
for investigation of the crime referred to in the
aforesaid letter dated 3.12.2002 through the
State C.I.D.
Shri Sapkal, thereafter, invited our
attention to the application dated 30th July,
2003, submitted by the Deputy Superintendent of
Police, State C.I.D., to the IInd JMFC, Jalna,
seeking permission for reinvestigation in Crime
No.162/2002 registered at Badnapur Police
Station, for the offenses punishable under
Section 302 read with Section 34 of IPC. The
permission so sought was granted by the learned
Magistrate on the same day.
5. Respondent nos. 6 to 10 though have been
duly served did not seem to have appeared in the
matter. In such circumstances, no submissions
from these respondents are there on record.
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Respondent nos. 1 to 3, however, have filed their
reply affidavit. As stated earlier, the names
of respondent nos. 4 and 5 were deleted from the
array of respondents in view of the order passed
by this Court.
6. In the reply affidavit, respondent nos.
1 to 3 have accepted the fact of the letter
written by respondent nos. 6 and 7 to the learned
Minister on 3.12.2002. It has also been admitted
that on receiving such letter, the learned
Minister has passed an order directing enquiry in
the allegations made in the said complaint. The
respondents have, however, denied that the
learned Minister had directed to transfer the
investigation in Crime No.162/2002 to the State
C.I.D. from the local Police. Respondents have
also admitted the filing of an application by
Deputy Superintendent of Police, State C.I.D.,
Aurangabad, to the Court of 2nd JMFC, Jalna, in
relation to the investigation in the Crime
No.162/2002 registered at Police Station,
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Badnapur, however, it is their contention that
the permission for `further investigation' was
prayed for and not for reinvestigation.
7. In view of the facts as above, the
following points arise for our determination:
A) Whether IInd J.M.F.C., Jalna, was
having any power or authority to grant
permission to reinvestigate Crime No.162/2002
registered at Police Station, Badnapur, as
was sought by Dy.Superintendent of Police,
CID, by filing an application dated 30th of
July, 2003.
(B) When the local police has already
investigated into the crime and has filed the
chargesheet against respondent nos. 8 to 10,
for the offenses under Section 302 read with
Section 34 of IPC and on the basis of which
Sessions Case No. 165/2002 was registered,
what necessitated the reinvestigation.
C) Why for the subsequent reinvestigation
and / or subsequent investigation was
transferred to State CID when initial
investigation was done by the Local Police.
D) Whether the learned Minister was having
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any power or authority to transfer the
investigation from Local Police to State CID
when local Police has already completed the
investigation and filed the chargesheet.
E) If it is the case of the respondents that
the learned Minister did not order the
investigation by the State CID then, who
ordered it, since there is no dispute that
the State CID has subsequently investigated
the matter and filed the chargesheet.
8. The petitioners have made several
allegations in respect of the investigation
subsequently done by the State C.I.D. It is
their case that the entire investigation done by
the State CID is tainted and was influenced by
respondent nos. 6 and 7. As has been stated
earlier, according to the petitioners, the
subsequent investigating agency has even shown
some different spot as the spot of occurrence. It
is their further case that many of the witnesses
whose statements are shown to have been recorded
by the State CID, have not been recorded and all
those persons have sworn affidavits contending
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that their statements were never recorded by the
State CID. The petitioners have also alleged
that only with an intention to save respondent
nos. 8 to 10 from punishment, who have been shown
as accused in Sessions Case No.165/2002 filed on
the basis of initial investigation, that the re
investigation is shown to have been done and on
the basis of concocted evidence, the present
petitioners have been shown as an accused in the
supplementary chargesheet filed by the State CID.
All these facts are denied by the respondents in
their affidavit in reply. However, we do not
wish to enter into the said controversy and
indulge in making any observation as to
truthfulness in the allegations made by the
petitioners and denied by the respondents. Even
without going into such controversy, the legality
of the actions taken by the respondents can be
decided.
9. Section 173(8) of Cr.P.C. Reads as
under:
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“173. Report of police officer on completion of investigation.
… … …
(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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’ subsection (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 subsection (2).”
10. The plain reading of the aforesaid
provision shows that there is no bar for further
investigation even after filing of the report
under Section 173(2) of Cr.P.C. However, if the
further investigation is to be carried out after
filing of the report under Section 173(2) of the
Cr.P.C., the investigating officer has to bring
to the notice of the Magistrate cogent and
sufficient reasons therefor. He has to satisfy
the Magistrate that some evidence could not
become available when the initial investigation
was done and the report under Section 173(2) was
filed and further that the evidence which has
subsequently become available has material
bearing on the crime alleged.
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Where the investigating officer obtains
further oral or documentary evidence after the
final report has been filed before the Court
under Section 173(2) of Code of Criminal
Procedure, 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 the subsequent stage to the primary
investigation. Further investigation does not
have the effect of wiping out directly or
impliedly the initial investigation conducted by
the investigating agency.
11. Shri V.D.Sapkal, learned Counsel
appearing for the petitioner, to substantiate his
contention that no reinvestigation is permissible
under Section 173(8) of Cr.P.C., placed his
reliance on the judgment of the Hon'ble Supreme
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Court in the case of Ramchandran Vs. R.Udhaykumar
& others ( 2008 AIR (SC) 3102). In the said
matter, the Hon'ble Madras High Court had, in an
application under Section 482 of Cr.P.C. directed
fresh investigation by CB (CID) which was being
investigated initially by the State Police. The
said order was challenged before the Hon'ble Apex
Court and while setting aside the said order,
the Hon'ble Supreme Court held that though the
Police has right to further investigate under
subsection 8 of Section 173 of Cr.P.C., no fresh
investigation or reinvestigation can be
permitted under the said Section.
In the aforesaid judgment, the Hon'ble
Supreme Court has referred to its earlier
judgment in the case of K.Chandrasekhar v. State
of Kerala and others ( 1998(5) SCC 223) and has
reproduced paragraph no.24 of the said judgment
which reads as under:
“24. The dictionary meaning of 'further' (when used as an adjective) is 'additional'; more; supplemental. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started abinitio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn
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inspiration from the fact that subsection (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports and not fresh report or reports regarding the 'further' evidence obtained during such investigation.”