Writ Petition No.103585 of 2015

17th January, 2019.

Petitioner Counsel: Shri V.S. KALASURMATH
Respondent Counsel: Shri PRAVEEN K.UPPAR, Shri SADIQ N. GOODWALA

Cases Cited:
Rajbir @ Raju and Another Vs. State of Haryana, 2011 ALL SCR 48=(2010) INSC 994 [Para 9]
Dharam Pal Vs. State of Haryana and Others, 2013 ALL MR (Cri) 3266 (S.C.)=2013 SC 3018 [Para 23]
Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, 2004 ALL MR (Cri) 1436 (S.C.)=(2004) 5 SCC 347 [Para 24]
Ram Lal Narang Vs. State (Delhi Admn.), 1979 ALLMR ONLINE 11 (S.C.) : 1979 2 SCC 322 [Para 24]
Sarlaben Virsing and Another Vs. State of Gujarat and Another, Dt.01.09.1988 (Guj.) [Para 25]
Dilip Singh Vs. State of M.P. and Others, Dt.12.10.1996, (M.P.) [Para 26]
Bhola Rai and another Vs. State of Bihar and another, 1997 (3) Crimes 48 [Para 29]
1993(1) Crimes 495 (SC) [Para 31]

JUDGMENT

JUDGMENT :- I have heard the arguments of the learned counsel appearing for the petitioner and the learned Government Pleader for the respondent-state No.1 and Shri Sadig N.Goodwala, learned counsel appearing for respondent Nos.2 to 4.

2. The petitioner has filed this petition under Article 226 and 227 of constitution of India r/w section 482 of Cr.P.C., praying this Court to quash the impugned order dated 04.09.2014 passed by the II Addl. District and Sessions Judge, Bellary on Misc.Petition filed under section 173(8) of Cr.P.C., in S.C.No.125/2012 as per annexure-E, by issuing writ in the nature of certiorari or any other writ, order or direction as the case may be and further sought to pass such other relief as this Court deems fit under the circumstances of the case by allowing the petition.

3. The main contention of the petitioner in the petition is that he is the brother of the deceased Smt. Maxyn Flower and the respondent No.2 herein married Maxyn Flower on 30.12.2011 and the marriage was performed as per Christian rites and customs at St.Antonys Church, Thundathuvilai, K.K.District, Tamilnadu. At the time of marriage, the parents of the deceased bestowed her 101 sovereign of gold ornaments, a housing plot valued at Rs.60 Lakhs, Rs.2 Lakhs cash and household articles worth Rs.2 Lakhs. The respondent No.2 misappropriated 25 sovereigns and got a housing plot for his sister. The respondent Nos.2 to 4 joined hands and harassed the deceased mercilessly. Respondent No.2 later has shifted his family to Kudithini, where respondent No.2 got an employment. The deceased conceived and became pregnant, though respondent No.2 tried to abort the child in the womb and deceased was not willing for abortion. On 03.04.2012 at about 7.00 a.m., the deceased had conversation with the petitioner's mother and stated that respondent No.2 and his parents i.e. respondent Nos.3 and 4 compelling and forcing her to part with her gold jewels for purchasing a new brand car. Respondent No.2 insisted for the gold of the deceased for purchase of car otherwise he threatened that he would divorce the deceased. While so, within few hours the said Maxyn Flower died. In all the above state of affairs, second respondent's eldest sister one Soby @ Sindhy W/o: Jude Christopher was the king pin behind the crime. The petitioner had lodged the complaint before the first respondent and case has been registered in Crime No.46/2012 against respondent Nos.2 to 4 for the offence punishable under Sections 498-A, 304-B and 34 of IPC.

4. The first respondent started investigating into the matter and while investigating, the scene of occurrence was video-graphed by the investigating agency and respondent No.1 recorded the statement of one Vinod Kumar and Mani Kandan who are none other than close associates of respondent No.2. Both of them alleged to have seen the dead body of the deceased at the first instance. Both of them adduced that the door was broken by respondent No.2 and that time nobody was with him including the house owner. When such is the situation, the Dy.S.P., failed to record the statement of both Sri Vinod Kumar and Mani Kandan under Section 161 of Cr.P.C. This grew a lot of suspicion on the modalities of the prosecution. In fact, respondent No.2 with the help of his two associates namely Sri Vinod Kumar and Mani Kandan have exercised the crime which resulted the death of the deceased. The investigating Agency also not investigated the role played by the persons namely Soby @ Sindhu W/o: Jude Christopher, Vinod Kumar and Mani Kandan, and not conducted the investigation properly and respondent No.1 has filed the charge sheet.

5. It is contended that III Addl. Civil Judge and JMFC Bellary has submitted the entire committal case records to the Sessions Court and the same is pending before the II Addl. District Judge, Bellary which is numbered as S.C.No.125/2012. It is contended that during the pendency of the proceedings the petitioner, who is permitted to assist the prosecution through a counsel by order dated 19.01.2013, submitted a petition under Section 173(8) of Cr.P.C. on 08.03.2013 seeking direction to the Investigating Authority to conduct further investigation as defined under Section 1738) of Cr.P.C. so as to enable the Investigating Agencies to find out the role of the above persons.

6. It is further contended that respondent Nos.2 to 4 have filed objections and resisted the said application. After hearing both the parties, the trial Court has disposed the said application without appreciating the merits of the application and rejected the same vide order dated 04.09.2014.

7. Being aggrieved by the order of rejection of the said application, the present petitioner is before this Court by invoking writ jurisdiction under Articles 226 & 227 of Constitution of India and Section 482 of Cr.P.C., contending that the Court below has failed to take note of the principles laid down in the judgment referred before the trial Court. It is further contended that accused has not been questioned by the Investigating Officer during the investigation and further contended that in the case of death by hanging, urine and motion has to be come out at the time of death. Excess gathering of blood will appear in finger tips. In the inquest report it did not reveal such things. The position of the refill pen used for writing in the dairy with blood found un-opened initially on the floor and the position of the pen has been changed in the subsequent seen in the video-graphs. The instrument used by the deceased for cutting her hand is not so far identified and not recovered. If the wound in the hand of the deceased as an ante-mortem cut, blood would have pooled on the floor. Inspite of repeated requests, the telephone records of the accused and deceased has not been examined. The post mortem is incomplete, the chemical examination of viscera has not been conducted so far. The investigating officer has not properly investigated the matter and the trial Court failed to appreciate the case of the petitioner in a proper perspective and while rejecting the application, it is made an observation that the petitioner ought to have been approached the Magistrate instead of approaching the Sessions Court.

8. Learned counsel appearing for the petitioner before this Court in his arguments has vehemently contended that the police have filed the charge sheet on 17.06.2012 and an application was filed by this petitioner on 20.10.2012 invoking the proviso of Section 173(8) of Cr.P.C. for further investigation in view of the directions of the Hon'ble Supreme Court. The main contention of the petitioner is that the Investigating Officer did not conduct the investigation properly and certain important questions are not answered by the Investigating Officer with an intention to help the respondent Nos.2 to 4 and hence the petitioner was forced to file an application and the same has not been properly appreciated in a right perspective.

9. Learned counsel also in his arguments has relied upon the judgments of the Hon'ble Supreme Court in the case of Rajbir @ Raju and Another Vs State of Haryana, (2010) INSC 994 : [2011 ALL SCR 48], and contends that the Hon'ble Apex Court directed in the said judgment that all trial Courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.

10. Learned counsel relying upon the said judgment contends that the Court below has committed an error in dismissing the application that the petitioner ought to have been approached the Magistrate even though the matter was already committed to the Sessions Court and if the matter is not committed to the Sessions Court then the trial Judge ought to have comes to such conclusion and in the case on hand already investigation has been completed, final report is filed invoking section 173(2) of Cr.P.C. The matter is also pending before the Sessions Court and hence the petitioner has rightly approached the Sessions Court.

11. Per contra, learned High Court Government Pleader in his arguments he contends that though the investigation is completed, there is no dispute with regard to the fact that further investigation can be done and additional charge sheet can be filed before the Court. He further contends that Section 173(8) of Cr.P.C., discloses that word is used that 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. Accordingly, the lower Court rightly dismissed the application on the ground that he ought to have approached the Magistrate.

12. Learned counsel appearing for respondent Nos.2 to 4 also reiterates the argument of learned Government Pleader. The learned Government Pleader in his arguments also contended that a detailed objection statement is filed in respect of this petition and contended that investigation of the case is carried out with utmost sincerity and the prosecution perused all possible leads and also collected enough materials to charge accused Nos.1 to 3 for the offences levelled against them. The names which are given by the petitioner now to be included in further investigation regarding which none of the witnesses have stated anything against the proposed accused including the complainant. The allegation made in the writ petition is filled with malafides and also is unknown to law.

13. The learned Government Pleader also contends that CW.6 is also an inquest witness has stated that though it appears it is the case of suicide but it is in fact a case of murder. CWs.9 and 10 are the neighboring witnesses have stated that, he went to the spot on hearing scream by owners CWs.7 and 8 has looked into the window saw Maxy Flower hanging from ceiling fan using her veil. Amalraj has broken up the door and entered the bed room. The said fact was informed to the family of the deceased and complainant. Further it is contended that the doctor who conducted the post mortem report gave a final opinion as the death is due to asphyxia as a result of hanging. The Investigating Officer after conducting the investigation and collecting the sufficient material and the statements made by the witnesses and hence the petition is misconceived and there are not ground to quash the order of the trial Court.

14. Having heard the arguments of the learned counsel for the petitioners and learned High Court Government Pleader and also learned counsel appearing for respondent Nos.2 to 4, the points for consideration arise before this Court are:

i) Whether the Sessions Court has committed an error in rejecting the application filed under Section 173(8) of Cr.P.C. on the ground that the petitioner ought to have been approached the Magistrate after the committal of the case to the Sessions Court?

ii) Whether the Sessions Court committed an error in dismissing the application on the ground that no provision to refer the case for further investigation by the Session Judge?

Point No.1 and 2:

15. The factual matrix of the case is that the petitioner is the brother of the deceased Smt. Maxyn Flower and her sister was married to the second respondent herein, respondent Nos.3 and 4 are the parent-in-laws of the deceased. The contention of the petitioner is that the Investigating Officer has not properly investigated the case and the deceased sister was subjected to harassment by respondent Nos.2 to 4 and apart from the charge sheet allegation, the main contention of the petitioner is that other three persons were also involved in committing the crime and the Investigating Officer did not collect the sufficient material and also did not investigate the matter with regard to Smt. Soby @ Sindhu, Vinod Kumar and Mani Kandan. Hence, he approached the Sessions Court to invoke Section 173(8) of Cr.P.C. to further investigate the matter.

16. Before adverting to the factual aspects of the case and finding of the trial Court, I would like to rely upon the very proviso of Section 173, which reads as follows:

173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) xxxxx

(3) xxxxx

(4) xxxxx

(5) xxxxx

(6) xxxxx

(7) xxxxx

(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 subsections (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).

17. On cursory looking of this provision, there is no dispute with regard to the fact that if any further investigation has been conducted by the Investigating Officer, after filing the final report the same can be submitted to the Court invoking under Section 173(8) of Cr.P.C.

18. In the present case on hand, the petitioner who is brother of the deceased has filed an application under Section 173(8) of Cr.P.C. seeking the direction from the Sessions Court to direct the Investigating Officer to investigate the matter as per the grounds urged before the Sessions Court. The Sessions Court after considering the application and objections of the prosecution has passed the impugned order and while passing the impugned order, an observation has been made that the petitioner ought to have been approached the Magistrate for further investigation in paragraph No.8 of the order and further it is observed that the aggrieved person without approaching the learned Magistrate has filed this application under Section 173(8) of Cr.P.C. Further, it is observed in paragraph No.9 of the order that, even though the petitioner has right to approach the Magistrate for further investigation in the case on further investigation conducted by the Investigating Officer has right to submit the further reports before the Magistrate and further observed that the accused has right to file an application for discharge after filing of charge sheet and if the accused is not discharged, the Court has to frame the charge against the accused. There is no provision to refer the case for further investigation by the Sessions Judge. The petitioner without approaching the proper forum has filed an application before this Court. Now the question before this Court is with regard to the question of law:

19. I have already pointed out that there is no dispute with regard to the fact that under Section 173(8) of Cr.P.C., confers the powers to further investigate the matter and file additional charge sheet holding the further investigation after collecting the additional evidence in respect of a crime.

20. Before adverting to the factual aspects again I would like to refer the proviso of Section 209 of Cr.P.C., under which the Magistrate has got power to commit the case to Sessions Court when the offence is exclusively triable by the Sessions Court. If the Magistrate comes to the conclusion that the offence to be dealt by the Sessions Court.

21. The Magistrate has already invoked the powers conferred upon him under Section 209 since the offence alleged against respondent Nos.2 to 4 are triable by the Court of Sessions. Now the question is whether an application has to be filed before the Magistrate or before the Sessions Court for further investigation.

22. On perusal of the entire order of the Sessions Court, the application has not been considered by the Sessions Court on merits and only on technicality the application has been dismissed on the ground that the petitioner ought to have been approached the Magistrate and not the Sessions Judge.

23. I would also like to refer the judgment of the Hon'ble Apex Court in the case of Dharam Pal Vs State of Haryana and Others, reported in 2013 SC 3018 : [2013 ALL MR (Cri) 3266 (S.C.)] though the point is not on the exercising the powers by the Sessions Court or the Magistrate, in paragraph No.19 of the judgment it is made clear that whether the Magistrate should direct "further investigation" or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the high Court of competent jurisdiction would direct "further investigation" or "reinvestigation" as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the Courts of higher jurisdiction can direct further, reinvestigation or even investigation denovo depending on the facts of a given case.

24. I would also like to refer the judgment of the Hon'ble Apex Court in the case of Hasanbhai Valibhai Qureshi Vs State of Gujarat and Others reported in (2004) 5 SCC 347 : [2004 ALL MR (Cri) 1436 (S.C.)], in paragraph No.13 of the judgment referring the judgment of Ram Lal Narang Vs State (Delhi Admn.), which was reported in 1979 2 SCC 322 : [1979 ALLMR ONLINE 11 (S.C.)], it was observed that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. Further observed that, in view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law.

25. I would like to quote the judgment with regard to the question of law involved in the matter with regard to exercising the powers under Section 173(8) of Cr.P.C. by the Sessions Judge. The Gujarat High Court in the judgment of Sarlaben Virsing and Another Vs State of Gujarat and Another, decided on 01.09.1988 in rejection of the application filed for investigation by the Sessions Judge held that under Section 173(8) of Cr.P.C. the Court has got power to further investigate or if he had powers to ask police to further investigate the case then it would not stand to revision that the Sessions Court which was a superior Court would not be possessing those powers to ask the police to investigate the case further. Such investigation could always be barred by any Court and every Court had powers to do certain things which were required to do justice between the parties. Further observed in paragraph Nos.1 and 3 of the judgment considering the proviso of Section 173(8) such investigation can always be ordered by any Court and every Court as the power to do certain things and hence set aside the order of the Sessions Court. Further observed that such application if any is given before the Sessions Court, shall always be decided on merits and such powers shall be sparingly exercised.

26. I would also like to refer the judgment of Madhya Pradesh High Court in the case of Dilip Singh Vs State of M.P. and Others, decided on 12.10.1996 and in this judgment also the Madhya Pradesh High Court held with regard to exercising the powers by the Sessions Court and in paragraph No.5 of the judgment it is observed that there is no resolution placed by the Legislature on the reception of subsequent material before the conclusion of the enquiry or trial. The practical necessity for existence of power to make further investigation and the interest of justice furnished the jurisdiction for such authority and these principles apply to any criminal trial whether pending before the Court of Magistrate or before the Court of Session, there is in principle no distinction between the Court of a Magistrate and the Court of Sessions so far as to make further investigation by the police concerned and categorically held that the very observation that the Sessions Court has no jurisdiction to order for investigation is incorrect.

27. For having taken note of the principles laid down referred supra, it is clear that even the Magistrate and higher Courts can exercise the powers under Section 173(8) of Cr.P.C. for further investigation of the matter and while ordering for further investigation also it must be in order to collect the materials and to punish the person who is culprit and if any investigation is defective, it is the Magistrate or the higher Courts of jurisdiction would direct further investigation.

28. In the case on hand the Court below, when an application is filed under Section 173(8) of Cr.P.C. rejected the application on the ground that the petitioner ought to have been approached the Magistrate and further observed in the order that there is no any provision to refer the case for further investigation by the Session Court. The Sessions Court can order for reinvestigation and the very approach of the Sessions Court is erroneous and failed to exercise its powers when the matter has been committed to the Sessions Court. Admittedly, no dispute with regard to fact that the matter has already been committed and pending before the Sessions Court.

29. The Magistrate after receipt of the report under section 173(8) of Cr.P.C., has committed the matter to the Sessions Court, since the matter is exclusively triable by the Sessions Court. Once the matter has been committed to the Sessions Court, it is well settled that the Magistrate is forbidden to apply his mind to the merit of the matter and to determine as to whether any accused need be added or subtracted to face the trial before the Court of Sessions and this principle is held by the Patna High Court in Bhola Rai and another vs. State of Bihar and another reported in 1997 (3) Crimes 48.

30. This Court would also like to refer the very proviso of section 193 of Cr.P.C. The proviso of section 193 of Cr.P.C. confers power to the Sessions Court to take cognizance of offences. The proviso reads as follows:

193. Cognizance of offences by Courts of Session.-Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

31. A cursory looking into the very proviso it is clear that once the matter is committed to the Sessions Court, the Sessions Court can take cognizance of any offence as a Court of original jurisdiction. In the judgment reported in 1993(1) Crimes 495 (SC), it is held that, a Court of Session to which a case is committed for trial by Magistrate can, without itself recording evidence, summon a person not named in Police Report under section 173 Cr.P.C. to stand trial along with those already named therein such power is vested under section 193 of the Code and not under section 319 of Cr.P.C.

32. Section 193 of Cr.P.C. confers powers to the Sessions Court to take cognizance of offence against other persons than those shown as accused in the case committed. Once the Magistrate commits the case to the Court of Sessions, the bar of section 193 is lifted as envisaged in section 193 of Cr.P.C. and the Court of Sessions has complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence, which would include the summoning of a person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. Even though the trial in the case has not commenced, the moment, the Magistrate commits the case to the Court of Sessions under section 209 of Cr.P.C., becomes functus officio for that accused and hence he cannot again take cognizance of the same offence which would include summoning of any other persons. After commitment, section 193 of Cr.P.C. comes to play its role in view of the specific proviso as envisaged in the Code and the said unfettered powers are vested with the Sessions Court.

33. In the case on hand, after the committal of the case, an application is filed by the applicant invoking section 173(8) of Cr.P.C. The main grounds of the applicant before the trial Court is that the Investigating Officer failed to investigate the matter in a perspective manner and made certain allegations in the application that the accused has not been questioned by the Investigating Officer during the investigation and further contended that in the case of death by hanging, urine and motion has to be come out at the time of death; excess gathering of blood will appear in finger tips; in the inquest report it did not reveal such things; the position of the refill pen used for writing in the diary with blood found unopened initially on the floor and the position of the pen has been changed in the subsequent scene in the video graph; the instrument used by the deceased in cutting her hand is not so far identified and not recovered and contend that investigation is defective and when such allegation is made in the application, by invoking section 173(8) of Cr.P.C., the Sessions Court ought to have considered the said application on merits but not on the technicality in coming to the conclusion that the applicant has to approach the Magistrate and there is no provision to refer the case for further investigation by the Sessions Court.

34. In view of the principles laid down referred supra, the Court below has committed an error in rejecting the application on the ground that the Sessions Court has no such jurisdiction for order for investigation and other ground that no provision for order for investigation by Sessions Court and the same is liable to be interfered. However, I made it clear that the Court below dismissed the application only on the technicality in coming to erroneous conclusion that Sessions Court has no power. Hence, I made it clear that instead of dismissing the application on technicality to consider the application on merits and dispose of the application in accordance with law.

35. In view of the discussions made above, I proceed to pass the following;

ORDER

The petition is allowed.

The impugned order of the II Addl. District and Sessions Judge, Bellary dated 04.09.2014 in S.C.No.125/2012 is hereby set aside.

The Sessions Judge is directed to dispose of the application on merits which has been filed under Section 173(8) of Cr.P.C. filed by the petitioner within time bound of one month from today since the matter is pending from long time.

Petition allowed.