Tuesday, 10 November 2020

Whether police can further investigate the criminal case even though Magistrate has issued Summary in said case?

 Let us now consider the submissions of the learned Senior

Advocate for the petitioner that the Investigating Officer is not justified in reinvestigating the offence in which the jurisdictional Magistrate has already accepted the “A” summary.

49. Reference to some of the provisions of the Code would be

necessary in the context of the contention of the learned Senior Advocate

appearing for the petitioner. Before we deal with the relevant provisions, at

the cost of repetition, it would be necessary to mention that “A” summary was

granted by the jurisdictional Magistrate on 16.4.2019. The said order reads

thus:

:ORDER:

1. The report submitted by DYSP is accepted.

2. “A” Summary as prayed for is granted.”

50. The Hon'ble Supreme Court in Bhagwant Singh (supra) and

Gangadhar (supra) and in the case of State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC 383

has held that when the Magistrate is not inclined to take cognizance of the

offence and issue process, the informant must be given an opportunity of being

heard so that he can make his submissions to persuade the Magistrate to take

cognizance of the offence and issue process. In the facts of the case in hand,

admittedly, the informant was neither given any notice nor heard when the “A”

summary was granted. Even the aforesaid order was not communicated to the

first informant. The victim i.e. first informant, when became aware about the “A” summary, though some tweets as submitted by learned Senior Advocate Mr. Gupte, requested the State Government and Superior officer of police that the case should be properly and thoroughly investigated. 

On the instructions of superior officers of the Investigating Officer, the local Crime Investigation Branch, Alibaug filed a report before the jurisdictional Magistrate for conducting further investigation of the said offence and accordingly, intimated to the jurisdictional Magistrate that further investigation of the offence under section 173(8) of the Code is being carried out. The jurisdictional Magistrate recorded the endorsement as “seen and filed”. In this

context, it would be relevant to refer to section 173(8) of the Code of Criminal Procedure, which reads thus:

“SECTION 173 (8) CRPC

(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).”

 

55. Thus, there is no manner of doubt in our minds that the State

Government can always direct a further investigation to the concerned policeofficers, as done in the present case.

 56. Insofar as the provision regarding grant of “A” summary is

concerned, the procedure thereof is mentioned under Rule 219 of the

Bombay Police Manual, 1959. Rule 219, dealing with final reports, more

particularly, clause (3) reads thus:


“RULE 219 (3) OF BOMBAY POLICE MANUAL

(3) The final report should be written up carefully by the officers incharge

of the Police Station personally and should be accompanied by

all the case papers numbered and indexed methodically. If the accused

has been released on bail, the Magistrate should be requested to cancel

the bail bond. He should also be requested to pass orders regarding the

disposal of property attached, unless any of the articles, e.g., blood

stained clothes, are required for further use in true but undetected

cases. A request should also be made to the Magistrate to classify the

case and to issue an appropriate summary of his order, viz:-

“A’ True, undetected (where there is no clue whatsoever about the

culprits or property or where the accused in known but there is no

evidence to justify his being sent up to the Magistrate (for trial).

“B” Maliciously false.

“C” Neither true nor false, e.g., due to mistake ot fact or being of a

civil nature.

“Non-cognizable” Police investigation reveals commission of only

non-cognizable offence.”

(emphasis supplied)

57. Reading of clause (3) would indicate that “A” summary is

granted in a case where the offence is committed but the same is undetected,

in that, where there is no clue whatsoever about the culprits or property or

where the accused is known but there is no evidence to justify the same for

being sent to the Magistrate (trial). The jurisdictional Magistrate has

classified the case and issued “A” summary in this case. Consequent upon

receiving instructions pursuant to the complaint made by the victim to the

superiors, the local Crime Branch intimated the jurisdictional Magistrate that

they want to the carry out further investigation in the offence.


58. The intimation thereon was given to the Magistrate who had

made an endorsement of “seen and file”. Not only that but even when the

application was made by the Investigating Officer for recording the

statements under section 164 of the Code of Criminal Procedure, the same

was recorded by the Magistrate. Their Lordships in the case of State of

Andhra Pradesh vs. A.S. Peter (supra) have in the context of section 173 of

Code of Criminal Procedure held that the law does not mandate taking prior

permission of Magistrate for further investigation. Their Lordships further

held that carrying out further investigation even after filing of chargesheet, is

a statutory right of the police. A distinction also exists between further

investigation and reinvestigation. It is observed that whereas reinvestigation

without prior permission is necessarily forbidden, further investigation is not.

59. We find that before carrying out the said investigation, the

Magistrate was intimated about the further investigation. Thereafter, even

the statements are recorded under section 164 of the Code of Criminal

Procedure after obtaining permission from Chief Judicial Magistrate. In our

opinion, the further investigation cannot be termed as illegal and without

seeking permission of the Magistrate. The same is in consonance with the

power conferred by section 173 (8) of Code of Criminal Procedure, which is

extracted hereinabove. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION STAMP NO. 4278 OF 2020

IN

CRIMINAL WRIT PETITION STAMP NO. 4132 OF 2020

Arnab Manoranjan Goswami  Vs The State of Maharashtra & Ors.


CORAM : S. S. SHINDE & M.S. KARNIK, JJ.

PRONOUNCED ON: NOVEMBER 09, 2020.

Read full judgment here: Click here

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