2016 ALL MR (Cri) 465
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. B. CHAUDHARI, J.

Mohd. Danish Abdul Talib Vs. State of Maharashtra & Anr.

Criminal Application (Apl) No.75 of 2015

9th July, 2015.

Petitioner Counsel: Mr. S.V. SIRPURKAR
Respondent Counsel: Mr. LADDHAD

Criminal P.C. (1973), S.173 - Order of further investigation by Sessions Court - Challenge - Material pieces of evidence i.e. seized mobile phone and its chip were already deposited with Sessions Court after committal of case by Magistrate - Nothing new was to be examined except for sending three material pieces of evidence for scientific investigation - Case was of further investigation and not of re-investigation - As such, impugned order proper - However, Investigating Officer should submit final report of further investigation to Magistrate which thereafter shall go to Sessions Court.

2009 ALL MR (Cri) 3071 (S.C.), 1984 Cri.L.J. 324, 1977 Cri.L.J. (NOC) 236 (PAT), 1976 Cri.L.J. 1296 Disting. (Paras 9, 10, 11)

Cases Cited:
Kishan Lal Vs. Dharmendra Bafna and Anr., 2009 ALL MR (Cri) 3071 (S.C.)=(2009) 7 SCC 685 [Para 4]
Kesavan Natesan Vs. Madhavan Peethambaran and Ors., 1984 CRI.L.J. 324 [Para 4]
The State of Bihar Vs. N. Nagmani, 1977 CRI. L. J. (NOC) 236 (PAT) [Para 4]
Jitendra Nath Ghosh and Anr. Vs. the State, 1976 Cri. L. J. 1296 [Para 4]


JUDGMENT

JUDGMENT :- Rule. Rule returnable forthwith. Heard finally by consent of learned counsel for the parties.

2. The accused-applicant has put to challenge order dated 15.01.2015 passed by Ad hoc District Judge, Amravati in Sessions Trial No.42/2011 below Exh.-45 by which the learned Sessions Judge allowed the said application purported to be under Section 173 of the Cr. P.C.

3. It is not in dispute that in respect of the offence complained of namely; under Sections 306, 384 read with Section 34 of the Indian penal Code, investigation was completed by the Investigating Officer and charge-sheet was filed before the competent Court in the year 2010 itself. It is also not in dispute that thereafter the Magistrate committed the case to the Sessions Court since the offences were triable by Sessions Court. Thereafter, the trial begun. Then the Investigating Officer as well as the Public Prosecutor realized that though the mobile phone along with its chip were seized, through inadvertence or as the case may be, the said chip was not sent for scientific investigation so as to bring additional piece of evidence for the prosecution. Since the charge-sheet came to be filed, the application Exh.-45, under Section 173-A of the Cr. P. C. was, therefore, filed for direction before the Sessions Court for further investigation. The application was opposed and was ultimately allowed by the learned trial Judge by the impugned order.

4. In support of the present application, Mr. Sirpurkar, learned counsel for the applicant, argued that after filing of the final report under Section 173 (2) of the Cr. P. C. and after committal of the proceedings in the Sessions Court, there was no occasion for the Public Prosecutor to make an application Exh.-45 and at the most, the application could have been made by the Investigating Officer and, therefore, the application signed and filed by the Public Prosecutor was not competent and should have been rejected on that ground. He then argued that the trial court did not have power to order reinvestigation by allowing the application and, therefore, there was no occasion for the trial court to allow application Exh.-45. He then submitted that the power under section 173 (8) Cr. P. C. does not vests with the Sessions Court and at the most, the application, if any tenable in law, could have been moved before the Magistrate if at all the evidence as above was thought to be necessary by him and not before the Sessions Judge. He relied on decisions in Kishan Lal ..vs.. Dharmendra Bafna and another; (2009) 7 SCC 685 : [2009 ALL MR (Cri) 3071 (S.C.)]; Kesavan Natesan.vs.Madhavan Peethambaran and others; 1984 CRI.L.J. 324; The State of Bihar ..vs.. N. Nagmani, 1977 CRI. L. J. (NOC) 236 (PAT) and Jitendra Nath Ghosh and another ..vs.. the State, 1976 Cri. L. J. 1296.

5. Per Contra, the learned A.P.P. opposed the application and supported the impugned order and submitted that the concerned mobile phone along with its chip was not sent for scientific investigation before filing of the charge-sheet or before committal of the proceedings. That was due to inadvertence. The Investigating Officer as well as Public Prosecutor then realized that the mobile phone with the chip was in muddemal property submitted to the Sessions Court and as such the police did not have any control over the said property to send it for scientific examination and, therefore, in order to apprise the Sessions Judge, application Exh.-55 was moved before the Sessions Court and thus, there may be a technical defect in doing so by describing the same as for directions.

He, therefore, submitted that there is no substance in the present application and prayed for its dismissal.

6. In reply, Mr. Sirpurkar was asked as to what could have been done in the fact situation to which he submitted that the Investigating Officer could have approached the Magistrate only.

7. Upon hearing learned counsel for the rival parties and upon perusal of the decisions cited before me, I find that none of the decisions are applicable in the facts of the present case and it is not necessary for me to refer to any of these decisions here.

8. The next question is about the tenor of the applciation Exh.-45 for direction for further investigation. The difficulty before the police officer or the prosecution was that the mobile phone along with chip was already deposited with the Sessions Court after committal of the case by the Magistrate. Therefor, it was the Sessions Court who had control and custody of the phone and chip therein. It cannot be disputed that a police officer does have power to make investigation and submit any other report as provided by Section 173 (8) Cr. P. C. even after the filing of the chargesheet and committal of the proceedings. If the position about power of the police officer is not in dispute, the same cannot be negated by putting such a filibuster in the way of the Investigating Officer. It is further submitted that the application was not signed by the Investigating Officer but by the Public Prosecutor. I do not want to dilate much on this point because a Public Prosecutor ultimately acts on behalf of a Police Officer and, therefore, I find no substance in the submission that the application Exh.-45 had to be necessarily signed by the Investigation Officer. That cannot be a requirement of law all the more so because the Sessions Court trial was underway.

9. The submission that application under Section 173 (8) of Cr. P. C. could have been made before the Sessions Court for directions, will have to be dealt with in harmony with the provisions of the Code. It may be true that the said application Exh.-45 had been filed or drafted or not happily worded but then substance of the application was that the prosecution wanted custody of the mobile phone along with chip for getting the same tested scientifically. That was the object and that can be done only with permission of the Sessions Court. This is the only manner in which the application should be treated and no other. Therefore, the application Exh.-45, in substance, was an application for permission to send the mobile phone and its chip for carrying out scientific investigation for production of result thereof by way of investigation and report under Section 173 (8) of the Cr. P. C. That being so, I do not find any merit in the submissions that application Exh.-45 could have been rejected on technical ground. The learned trial Judge has rightly dealt with the application under Section 173 (8) of the Cr. P. C. and allowed the same.

10. The defence always expects the prosecution to be fair in investigation and trial and, therefore, the defence should always be fair to the prosecution as well. The reasons are recorded in paragraphs 15 and 16 of the impugned order by the learned Sessions Judge as to the requirement of amplification of further evidence. Paragraphs 15 and 16 read thus:

"15] In the light of above discussion, it becomes crystal clear that, one cannot have a mathematical or thumb rule to say with precision that Section 173 (8) is the exclusive province of only investigating agency to decide itself and act in the direction of collecting additional evidence by undertaking the exercise of further investigation; and there may be circumstances causing the Court to give such direction on the application of private complainant, victim or his or her relatives. Here in the case at hand, investigating agency itself through public prosecutor is praying direction to undertake further investigation. Probably, the material evidence i.e. CD, Mobile and its memory chip being in custody of the Court, the investigating agency through prosecution is moving such prayer before this Court. So, another peculiar condition is here, wherein the investigating agency is finding its essential to take the Court at first in confidence before proceeding fur further investigation under section 173 (8) of Cr. P. c., since the material pieces of evidence in respect of which further investigation is required, is in the custody of the Court, thereby necessitating prosecution/ investigating agency to move such application before this Court under section 173 (8) of Cr. P. C. Therefore, I said that you cannot have thumb rule in the science of law like the rules in the other fields of science like physics and mathematics. Viewed from this angle, I do not see any illegal or impropriety in this application.

16] I may further point out that the step sought to be taken by the prosecution in conducting further investigation is not re-investigation at all but it is the amplification of further evidence which is already available in the electronic form in soft version. It is not the case that, the whole investigation done earlier is tried to be thrown in dust bean and now the prosecution is seeking permission from this Court to collect fresh evidence. Therefore, the contention of the defence that the prosecution is seeking permission to reinvestigate the matter has no substance."

Bare reading of the finding above shows that in no way, this is a case of reinvestigation and on the contrary, it must be held that the case is of further investigation and nothing new was to be investigated except for sending mobile phone and chip for scientific evidence. That being so, I do not find that the impugned order is in any way wrong or contrary to law.

11. The next question is about submission of final report of further investigation. Technically speaking, in my opinion, the Investigating Officer, after collecting scientific evidence, should submit the report accordingly to the Magistrate as required by Section 173 (8) of Cr. P. C., which thereafter shall go to the Court of Sessions and that should be done at the earliest.

12. In view of above, following order is passed.

ORDER

(i) Criminal Application No. 75/2015 is dismissed.

(ii) The Ad hoc Asstt. Sessions Judge, Achalpur shall hand over custody of the mobile phone and chip in sealed condition to the Investigating officer and it be sent for scientific investigation within a period of two weeks.

(iii) The Investigating Officer shall obtain report of the scientific evidence within a period of three weeks thereafter. The trial Court shall, thereafter, continue with the trial.

(iv) Interim order dated 11.02.2015 passed by this Court stands vacated.

Rule accordingly.

Application dismissed.