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2023 Supreme(Online)(Bom) 836
HIGH COURT OF BOMBAY
G. A. SANAP, J
Maheshkumar Hargovind Goyal – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL WRIT PETITION NO. 502 OF 2022
For the Appellants/Petitioners: Mr. Anil S. Mardikar, Mr. Digvijay Singh
For the Respondents: Mrs. M. H. Deshmukh
A Magistrate cannot permit further investigation if the investigating officer has declared insufficient evidence to charge an accused; police powers override judicial intervention in investigation.
Headnote:(A) Constitution of India - Article 227 - Criminal Procedure Code - Section 169, 173(8) - Permission for further investigation - Challenge to order permitting further investigation and supplementary charge-sheet against accused - Magistrate's power under Section 169 not to entertain request for further investigation - Holding that the order permitting further investigation is not in accordance with law. (Paras 11-20)
(B) Judicial powers of Magistrate - Clarifying that the power of investigation lies with the police and cannot be directed by the Magistrate. (Paras 10-19)
Facts of the case:
Petitioner, accused no.7 in a crime under Sections 420, 465, 468, and 471 IPC, challenged the order permitting further investigation after an initial report, purportedly declaring insufficient evidence, was pending for four years.
Findings of Court:
The Magistrate erred in allowing the Investigating Officer to retract an earlier application to discharge the petitioner and instead grant permission for further investigation.
Issues: The legality of the Magistrate’s order granting permission for further investigation contrary to established legal principles.
Ratio Decidendi: Settled legal principle states that powers to investigate are exclusively for the police and not for the Magistrate to interfere with.
Result: Petition allowed; order granting further investigation quashed.
| Table of Content |
|---|
| 1. rule set for handling proceedings. (Para 1 , 2) |
| 2. details on criminal case and accusations. (Para 3 , 4 , 5) |
| 3. petitioner's arguments against further investigation. (Para 6 , 8) |
| 4. respondent's assertions on investigation necessity. (Para 9 , 10) |
| 5. judicial observations regarding investigation procedures. (Para 11 , 15 , 19) |
| 6. final decision on the validity of the lower court's ruling. (Para 12 , 14 , 16 , 17 , 20) |
1. RULE. Rule made returnable forthwith. Heard finally by consent of the learned advocates for the parties.
2. In this petition, filed under Article 227 of the Constitution of India, challenge is to the order dated 07.06.2022, passed below Exh.80 by learned Judicial Magistrate, First Class, Court no.10, Nagpur, whereby learned Magistrate was pleased to grant permission to the Investigating Officer to conduct further investigation and file supplementary charge-sheet against the petitioner under Section 173 sub-Section (8) of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.” for short).
3. The facts giving rise to this petition are as follows :
The petitioner is accused no.7 in a crime bearing No. 343/2016, registered at Police Station, Wadi, Nagpur City, Nagpur for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of the Indian Penal Code. The sum and substance of the case of the prosecution is that on 18.06.2016, the Tahsildar, Nagpur Gramin, lodged a report at Police Station, Wadi. In his report, he has stated that the owners of land bearing survey Nos.103/1 and 103/2, admeasuring 6.27 HR, namely the Directors of Ankur Estate Private Limited, through Kamalkishor Agrawal and Ankur Brijkishor Agrawal, created forged NA (non-agriculture) order by using the rubber stamp and making signature of the Collector. It is stated that the owners of the land i.e. accused nos.1 and 2, did not make any application for conversion of their land for NA purpose. A photocopy of the said forged NA order was submitted before the Talathi, who is later on made accused in the crime, by the petitioner/accused no.7. On the basis of the report, the Investigating Officer conducted investigation. The investigation inter-alia revealed the complicity of near about seven accused, including the petitioner, in commission of the crime.
4. The Investigating Officer on 14.05.2018 made an application under Section 169 of the Cr.P.C. before the learned Magistrate and submitted that the evidence against the petitioner/ accused no.7 is deficient and therefore, he is required to be released/ discharged in the crime. Learned Magistrate issued notice to the informant. The informant filed his say. This application remained pending for four years without any order.
5. The earlier Investigating Officer was changed in the year 2022. The newly appointed Investigating Officer, on 07.06.2022 not pressed the application dated 14.05.2018 made for release/ discharge of the petitioner/accused no.7 as per the provisions of Section 169 of the Cr.P.C. The application was disposed of as not pressed. Similarly, on the same day i.e. 07.06.2022, the Investigating Officer made an application (Exh.80) before the learned Magistrate and stated that the investigation vis-a-vis accused no.7 was not fairly conducted. He pointed out that there has been ample evidence against the petitioner/accused no.7. According to the Investigating Officer, accused no.7 had produced photocopy of forged NA order before the Talathi and based on the said order, mutation entry was carried out. The Investigating Officer, therefore, prayed for permission to conduct further investigation and to file supplementary charge-sheet by invoking Section 173 , sub-section (8) of the Cr.P.C. against the petitioner/accused no.7. Learned Magistrate, by order dated 07.06.2022 granted the prayer made by the Investigating Officer. The petitioner/accused no.7, being aggrieved by this order, has come before this Court by filing this petition.
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