Criminal Application No.460 of 2013

30th August, 2013

Petitioner Counsel: Mr. MAHESH JETHMALANI, Mr. NIRANJAN MUNDARGI, Ms. SANA USMAN, Ms. ANUJA JHUNJHUNWALAL, SHUBHRA SWAMI i/by NAIK NAIK & CO.
Respondent Counsel: Smt. U.V. KEJARIWAL, Mr. VAIBHAV KRISHNA i/by JURIS CONSULTUS

Cases Cited:
Sakiri Vasu Vs. State of U.P., 2008 ALL SCR 1890=AIR 2008 SC 907 [Para 2,6]
Bhagwant Singh Vs. Commissioner of Police & Anr., (1985) 2 SCC 537 [Para 3]
Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors., (2013) 5 SCC 762 [Para 4]
State of Punjab Vs. CBI, 2011 ALL MR (Cri) 3279 (S.C.)=(2011) 9 SCC 182 [Para 4]
Minu Kumari Vs. State of Bihar, 2006 ALL MR (Cri) 2683 (S.C.)=(2006) 4 SCC 359 [Para 4,7]
Hemant Dhasmana Vs. Central Bureau of Investigation & Anr., 2001 ALL MR (Cri) 2179 (S.C.)=(2001) 7 SCC 536 [Para 5]
Abhinandan Jha & Ors. Vs. Dinesh Mishra, AIR 1968 SC 117 [Para 7]
Popular Muthiah Vs. State Represented by Inspector of Police, 2006 ALL MR (Cri) 2335 (S.C.)=(2006) 7 SCC 296 [Para 7]

JUDGMENT

P. V. HARDAS, J. :- This application has been filed under Section 482 of the Code of Criminal Procedure questioning the order passed by the Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai in Case No. 32/M/2008 directing re-investigation and transferring the investigation to an officer other than a police officer attached to Malabar Hill Police Station.

2. Facts in brief as are necessary for the decision of this application may briefly be stated thus:-

The respondent no.2 herein had filed a complaint under Sections 465, 467, 468, 471, 420, 452 read with Section 34 of the Indian Penal Code. The trial court had passed an order on 12/5/2008 under Section 156(3) of the Code of Criminal Procedure. It appears that pursuant thereto, ultimately, on 22/6/2008, the Malabar Hill Police Station had submitted a "C" Summary. The trial court did not accept the "C" Summary and directed further investigation by its order dated 14/6/2011. Pursuant to the further investigation, as was directed by the trial court, on 21/7/2012, a "C" Summary came to be submitted. Pursuant to the submission of the said "C" Summary, the trial court passed the order, the operative part of which is reproduced below:-

" ORDER

"C" Summary dated 20.07.2012 is not accepted.

Complaint alongwith all protest applications be sent for impartial re-investigation to DCP Zone-II, Mumbai with direction to get it re-investigate according to law from any police offier other than attached to Malbar Hill Police Station, and submit police report within three months from the date of receipt of this order.

Mumbai,

Dated : 27/2/2013 Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai."

The aforesaid order is the subject matter of challenge in this application before us. Mr. Mahesh Jethmalani, learned Senior Counsel for the applicant, has urged before us that the Additional Chief Metropolitan Magistrate could not have directed re-investigation and further could not have directed that the investigation be carried out by a police officer other than a police officer attached to the Malabar Hill Police Station. Mr. Jethmalani's submission, therefore, is that the later part of the order virtually amounts to transferring the investigation to another police station which the trial Magistrate is not empowered to do. The learned counsel for the respondent no.2 has urged before us that in the light of the judgment of the Supreme Court in Sakiri Vasu vs. State of U.P. [AIR 2008 SC 907] : [2008 ALL SCR 1890], the Magistrate is empowered to direct re-investigation under Section 156(3) of the Code of Criminal Procedure. It is further urged before us by the learned counsel for the respondent no.2 that in the event this court comes to the conclusion that the trial Magistrate did not have the jurisdiction either to direct re-investigation or to transfer the investigation, the order in so far as it rejects the "C" Summary be maintained.

3. Mr. Jethmalani, learned Senior Counsel for the applicant has invited our attention to the judgment of the Supreme Court in Bhagwant Singh vs. Commissioner of Police & anr. [(1985) 2 SCC 537]. We may usefully reproduce para 4 of the said judgment, which reads thus:-

"4. Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under Sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situation may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under Sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, 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. We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Sub-section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."

In the present case, pursuant to the submission of the "C" Summary, the respondent no.2 herein had submitted a protest petition and on the basis of the protest petition, the trial Magistrate was considering the question as to whether the Summary submitted by the Investigating Officer should be accepted or rejected. The trial Magistrate had earlier exercised the jurisdiction under Section 156 (3) of the Cr. P.C. by directing the registration of offence and directing the police to investigate the same. In Bhagwant Singh's case, the Supreme Court clearly indicated that the Magistrate may direct further investigation if the Magistrate does not accept the report submitted by the police.

4. Mr. Jethmalani, learned Senior Counsel for the applicant has further invited our attention to the judgment of the Supreme Court in Vinay Tyagi vs. Irshad Ali @ Deepak and ors. [(2013) 5 SCC 762]. At paragraph 30 of the judgment, the Supreme Court has referred to the observations of the Supreme Court in State of Punjab vs. CBI [(2011) 9 SCC 182] : [2011 ALL MR (Cri) 3279 (S.C.)], wherein the Supreme Court noticed the distinction between "reinvestigation" and "further investigation". The Supreme Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and, therefore, must exercise their jurisdiction within the four corners of the Code.

At paragraph 32 of the judgment, the Supreme Court referred to the judgment of the Supreme Court in Minu Kumari vs. State of Bihar [(2006) 4 SCC 359] : [2006 ALL MR (Cri) 2683 (S.C.)] and concluded that when a report was filed before the Magistrate, the Magistrate may either (i) accept the report and take cognizance of the offences or issue process; or (ii) may disagree with the report and drop the proceedings; or (iii) may direct further investigation under Section 156 (3) and require the police to make a further report. The Supreme Court in Vinay Tyagi's case (Supra) ultimately concluded at paragraph 40 thus:-

"40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173 (8) and Section 156 (3) of the Code:

40.1 The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report.

40.2 A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173 (6) of the Code.

40.3 The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh's case by a three Judge Bench and thus in conformity with the doctrine of precedent.

40.4 Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156 (3) and the language of Section 173 (8) itself. In fact, such power would have to be read into the language of Section 173 (8).

40.5 The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.

40.6 It has been a procedure of propriety that the police has to seek permission of the Court to continue "further investigation" and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."

In Vinay Tyagi's case, the Supreme Court, at paragraph 45, has held thus:-

"45. The power to order/direct "reinvestigation" or "de novo" investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused."

5. Mr. Jethmalani, learned Senior Counsel for the applicant has further invited our attention to the judgment of the Supreme Court in Hemant Dhasmana vs. Central Bureau of Investigation and anr. [(2001) 7 SCC 536] : [2001 ALL MR (Cri) 2179 (S.C.)], particularly the observations of the Supreme Court at paragraph 20, wherein the Supreme Court has concluded that the Special Judge or Magistrate could not direct that a particular police officer or even an officer of a particular rank should conduct such further investigation.

6. Learned counsel for the respondent no.2 has referred to the judgment of the Supreme Court in Sakiri Vasu vs. State of U.P., [2008 ALL SCR 1890] to urge before us that the Supreme Court has held that the Magistrate can order reinvestigation and reopening of investigation on submission of final report by the police, if the investigation has not been done satisfactorily. The Supreme Court in the said judgment was examining the powers of the Magistrate under Section 156 (3) and the Supreme Court in the said judgment at paragraph 16 has concluded that the power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report under Section 173( 8). It is in the background of the power of further investigation that the Supreme Court has held that the Magistrate can order reopening of the investigation and it is in the background of the power of further investigation under Section 156 (3) that the Supreme Court has held that the Magistrate has the jurisdiction of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done. Thus the judgment of the Supreme Court in Sakiri Vasu vs. State of U. P., according to us, does not assist the respondent no.2 in advancing his case further.

7. Supreme Court in Abhinandan Jha and ors. vs. Dinesh Mishra [AIR 1968 SC 117] at paragraph 15 has held thus:-

"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a "final report"? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under Section 190(1) (b), notwithstanding the contrary opinion of the police, expressed in the final report.

Learned counsel for the respondent no.2 has relied on the judgment of the Supreme Court in Popular Muthiah vs. State Represented by Inspector of Police [(2006) 7 SCC 296] : [2006 ALL MR (Cri) 2335 (S.C.)], particularly at paragraph 54, which reads thus:-

"54. We have noticed hereinbefore that the jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefore. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefore; and (iv) to direct reinvestigation into the matter. (See Abhinandan Jha v. Dinesh Mishra and Minu Kumari v. State of Bihar)"

As pointed out by us above, the Supreme Court in Abhinandan Jha and ors. vs. Dinesh Mishra, at paragraph 15, has referred to the power of the Magistrate to order further investigation. Similarly, the Supreme Court in Minu Kumari vs. State of Bihar, [2006 ALL MR (Cri) 2683 (S.C.)] has also referred to the power of the Magistrate to direct further investigation.

8. Having thus considered the rival submissions of the learned counsel for the parties, according to us, the order passed by the Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai, dated 27/2/2013 is unsustainable and is liable to be quashed. The trial Magistrate did not have the jurisdiction of directing reinvestigation and to transfer the investigation to police officer other than those attached to the Malabar Hill Police Station, which amounts to transfer of investigation to a different police station. The order, therefore, according to us, being unsustainable is liable to be quashed.

9. Accordingly, we allow this application and quash and set aside the order impugned in the present application and remit the matter back to the trial Magistrate for a decision afresh in accordance with law. The parties shall appear before the Additional Chief Metropolitan Magistrate, 40th Court, Grigaon, Mumbai on 16/9/2013 and the trial Magistrate shall, thereafter, decide the Summary submitted by the police officer in accordance with law. In the circumstances, there shall be no order as to costs.

Ordered accordingly.