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1997 (2) JLJ 64
Tej Shankar, J.
Dilip Singh v. State of M.P. and others
Cr. Revn. No. 230 of 1995; against the order passed by Shri P. V. Namjoshi, Sessions Judge, Guna; Decided on 12.10.1996.
(2) Criminal P.C., 1973 -- Ss. 156 and 173 (8) -- power of police to investigate offence -- should not be inteifered with by Court except in compelling circumstances -- police has also power to investigate case further. 1992 JLJ 569 (SC) followed. [Para 7]
(3) Delhi Special Police Establishment Act, 1946 -- S. 3 -- offence under S. 302 IPC not a notified offence -- CBI cannot be directed to investigate such offence. 1991 CrLJ 555 relied on. [Para 7]
(4) Criminal P.C., 1973 -- S. 173 (8) -- order of further investigation or reinvestigation should be ordered on very strong grounds. 1992 JLJ 327 relied on. [Para 7]
(5) Criminal P.C., 1973 -- S. 173 (8) -- order of re-investigation after framing of charge -- also on wrong facts -- cannot be passed.
It is clear that there must exist strong grounds for directing reinvestigation after the submission of charge-sheet. Here in the case in hand, not only the charge-sheet was submitted, but the learned Magistrate had also committed the case after taking cognizance to the Court of Sessions and the learned Sessions Judge after hearing parties framed charges and the case was fixed for admission or denial of the documents under section 294 CrPC as well as for submission of trial programme. At this stage, an application purporting to be under section 173 (3) was moved.
If we go through the material on record we find that magazine was taken into custody. Vehicle too was taken into custody and as such the two grounds mentioned by the learned Sessions Judge do not appear to be correct, as pointed out by the learned counsel for the applicant. The grounds mentioned by the learned Sessions Judge for directing the reinvestigation do not appear to me to be such which may be termed as compelling and very strong grounds. 1992 JLJ 327,1986 CCrJ 203 relied on. [Para 8]
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 173¼8½ && vkjksii= Qkby djus ds i‘pkr~ vkxs vUos"k.k dk vkns‘k && eftLVªsV ds lkFk&lkFk ls‘ku U;k;ky; }kjk Hkh ikfjr fd;k tk ldrk gSA 1989 lhvkj ,y ts 1211 voyafcrA ¿ iSjk 5À
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 156 rFkk 173¼8½ && iqfyl dh vijk/k dk vUos"k.k djus dh ‘kfDr && foo‘k djus okyh ifjfLFkfr;ksa ds vfrfjDr U;k;ky; }kjk gLr{ksi ugha fd;k tkuk pkfg, && iqfyl dks ekeys dk vUos"k.k djus dh Hkh ‘kfDr gSA 1992 ts ,y ts 569 ¼mPpre U;k-½ vuqlfjrA ¿ iSjk 7À
¼3½ fnYyh fo‘ks"k iqfyl LFkkiu vf/kfu;e] 1946 && /kkjk 3 & Hkk- naM lafgrk dh /kkjk 302 ds v/khu vijk/k vf/klwfpr vijk/k ugha && ,sl vijk/k dk vUos"k.k djus dk dsanzh; vUos"k.k C;wjks dks funs‘k ugha fn;k tk ldrkA 1991 lhvkj ,y ts 555 voyfcrA ¿ iSjk 7À
¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 173¼8½ && vkxs vUos"k.k djus vFkok iqu% vUos"k.k djus dk vkns‘k && cgqr Bksl vk/kkjksa ij vkfn"V fd;k tkuk pkfg,A 1992 ts ,y ts 327 voyafcrA ¿ iSjk 7À
¼5½ naM izfØ;k lafgrk] 1973 && /kkjk 173¼8½ && vkjksi dh fojpuk ds i‘pkr~ iqu% vUos"k.k dk vkns‘k && og Hkh xyr rF;ksa ij && ikfjr ugha fd;k tk ldrkA
;g Li"V gS fd vkjksii= izLrqr gksus ds i‘pkr~ iqu% vUos"k.k fufn"V djus ds fy, Bksl vk/kkj gksuk pkfg,A ;gk¡ bl ekeys esa] u dsoy vkjksi i= izLrqr fd;k tk pqdk Fkk] vfirq fo}ku eftLVªsV }kjk laKku djus ds i‘pkr~ ekeyk ls‘ku U;k;ky; ds lqiqnZ dj fn;k Fkk rFkk fo}ku ls‘ku U;k;k/kh‘k us i{kdkjksa dh lquokbZ ds i‘pkr~ vkjksi fojfpr fd, vkSj naM izfØ;k lafgrk dh /kkjk 294 ds v/khu nLrkostksa dh Loh—fr vFkok izR;k[;ku ds lkFk&LkkFk ekeyk fopkj.k dk;ZØe dh izLrqfr ds fy, Hkh ekeyk fu;r gks pqdk FkkA bl izØe ij /kkjk 173¼3½ ds v/khu rkRif;Zr vkosnu fd;k x;kA
;fn ge vfHkys[k ij dh lkexzh dk ifj‘khyu djsa rc ge ikrs gS eSxthu vfHkj{kk esa ys yh xbZ FkhA ;ku Hkh vfHkj{kk esa ys fy;k x;k FkkA bl izdkj] fo}ku ls‘ku U;k;k/kh‘k }kjk mfYyf[kr nksuksa vk/kkj lgh izrhr ugha gksrs] tSlk vkosnd ds fo}ku dkmUlsy }kjk crk;k x;k gSA iqu% vUos"k.k fufn"V djus ds fy, fo}ku ls‘ku U;k;k/kh‘k }kjk mfYyf[kr vk/kkj eq>s ,sls izrhr ugha gksrs ftUgsa foo‘k djus okys rFkk Bksl vk/kkj dgk tk ldsA 1992 ts ,y ts 327] lh lhvkj ts 203 voyafcrA
¿ iSjk 8À
1. This petition in revision has been preferred against the order dated 3 1.8.1995. passed by Shri P.Y. Namjoshi, Sessions Judge, Guna, whereby he allowed the application purporting to be under section 173 (8) of the Code of Criminal Procedure, and directed the C.B.I. to make further investigation. It raises a short but interesting question of law.
2. The point involved is as to whether further investigation could be ordered by the learned Sessions Judge after framing of charge.
3. Briefly narrated the facts are that the accused-petitioner and respondents No.2 to 6 were involved in a case under section 302, 302/34 and 201 IPC and under section 27/25-A of Arms Act. After usual investigation, a charge-sheet was submitted and the learned Magistrate committed the case to the Court of Sessions. The learned Sessions Judge framed charges on 7.7.1995, after hearing the parties and perusing the material on record and the case was directed to be fixed for admission or denial of the documents under section 294 CrPC and for trial programme. On the next date, the Presiding Officer was on leave and the case was listed on 21.7.1995. On that day, instead of submitting a trial programme, a petition was moved purporting to be under section 173 (8) CrPC, wherein it was prayed that further investigation be directed. It was alleged that the investigation, which was conducted, was not impartial and it was done in order to give benefit to the accused so that they may be acquitted. The grounds on which further investigation was prayed were mentioned. The application was contested and a written objection was also filed. After considering the entire material, the learned Sessions Judge allowed the application, hence this revision petition.
4. Learned counsel for the petitioner contended that the learned Sessions Judge, has mentioned, in para 15 of the his order, the defects which according to him existed in the investigation. Again in paragraph 20, three defects were pointed out and on its basis it has allowed the application and directed the CBI to form points of investigation on which the additional investigation was to be made. He urged that the powers under section 173 (8) CrPC cannot be exercised by the learned Sessions Judge, if from the material on record, the learned Sessions Judge was of the opinion that there was no material instead of framing charge, he ought to have discharged the accused, but in the present case, he found material and hence he framed the charges. The learned Court had no jurisdiction to point out the lacuna in the prosecution at this initial stage. There are certain facts, which go to show that the learned Sessions Judge did not care to go through the record, while observing that four defects were there in the investigation. He urged that it has been observed that the police did not seize the arm used, but there is on record a memo which shows that magazine was recovered. It has further been mentioned that clothes have not been recovered, but it is also not correct. There is no material to show that the investigation was affected on account of political pressure. Learned counsel placed reliance upon Pannalal v. Dr. Veer Shan '(1992 JLJ 327), wherein this Court took the view that strong grounds must exist for directing re-investigation. The grounds on the basis of which the learned Court has directed re-investigation are superficial. Power under section 156 CrPC too cannot be exercised by the learned Sessions Judge at this juncture. Lastly, he urged that the learned Court has directed investigation by the CBI. He urged it was also not within his jurisdiction because the offence for which the accused persons are be;i1g tried is not a specified offence under section 3 of the Delhi Special Police Establishment Act, 1946 and as such CBI could not be directed to investigate the matter. In this connection reliance has been placed on Saroja v. State of Tamil Nadu (1991 CrLJ 755) Madras High Court. It may also be mentioned that i
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