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CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3664 OF 2019
1. Atul Kanhaiyalal Surana, Age 49, Occu. Business.
2. Satyam Atul Surana, Age 19, Occu. Education.
3. Shubham Atul Surana, Age 25, Occu. Service.
4. Varsha Atul Surana, Age 44, Occu. Housewife.
5. Prachiti Ravindra Sakalecha, Age 21, Occu. Education.
1 to 5 R/o Plot No.9, Navkar Bungalow, Gangadham
Phase-II, Mrket Yard, Pune, District – Pune.
6. Sangita Ravindra Saklecha, Age 48, Occu.
Housewife, R/o Jeevan/2, Pratapnagar, Aurangabad, District – Aurangabad.
7. Atul Shantilal Golecha, Age 39, Occu. Photographer, R/o Plot No.Amey Apartment, N.D.A. Road, Varje, Malwadi, District Pune.
8. Vishnu Ramnathrao Gavhane, Age 30, Occu. Photographer, R/o Survey No.48/2, Vagjainagar, Agampar, Katraj, Pune, District Pune.
9. Nagesh Madan Potdar, Age 19, Occu. Education, R/o Survey No.48/2 Vagjainagar, Agampar, Katraj, 10. Mayur Arun Potdar, Age 28, Occu. Photographer, R/o Survey No.48/2 Vagjainagar, Agampar, Katraj, 11. Harshal Sunil Masoji, Age 19, Occu. Education, R/o H. No.711, Sarkar Chawl, Padmawati, Pune, District Pune. PETITIONERS
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1. Suresh Dnyanoba Khedekar, Age 54, Occu. Service, In-charge Police Inspector, Shriwardhan Police
Station, Roha, District – Raigad.
2. State of Maharashtra, through Public Prosecutor, Bombay High Court.
3. Dy.S.P. Roha Sub-Division, District Raigad.
4. The Superintendent of Police, Raigad, District Raigad. RESPONDENTS
SONAWANE
Shri Manish Gaikwad, Advocate with Shri Vishwas Kashyap for the respondent no.1.
Miss M.H. Mhatre, Additional Public Prosecutor for the respondent nos.2 to 4.
ORAL JUDGMENT
2. The petitioners by invoking the remedy under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 have approached this Court seeking quashing and setting aside of the First Information Report in Crime No. 53/2018 dated December 4, 2018 registered with Shriwardhan Police Station, District Raigad and consequential charge-sheet for the offences punishable under Sections 143, 147, 149, 323, 341, 353, 332, 333, 504 of the Indian Penal Code, 1860 and for the offences punishable under Sections 37(1)(3) and 135 of the Maharashtra Police Act. The petitioners have further prayed for issuance of directions to accept the ‘A’ summary report dated February 3, 2020.
3. The facts necessary for deciding the present writ petition are as under:- The petitioner nos.[3] and 5 were engaged and their marriage was scheduled for February 1, 2019. For the pre-wedding photoshoot, the petitioner Nos. 1 to 4 (groom’s family) and the petitioner nos.[5] as well as 6 (bride’s family) went to Shriwardhan Beach on the date of incident i.e. December 4, 2018. Petitioner nos.[7] to 11 were hired for the pre-wedding photoshoot and they had accompanied petitioner nos.[1] to 6.
4. It is alleged by the petitioners that in the evening hours while the prewedding photoshoot was in progress, the respondent no.1 who is a police officer and complainant in said capacity in the present case, under the influence of alcohol molested the petitioner no.4. He further assaulted and verbally abused the petitioner nos.[1] to 3. Thereafter, the petitioners were arrested and taken to Shriwardhan Police Station. On the same date, the First Information Report was registered at 11.10 p.m. It is also claimed by the petitioners that despite repeated requests, no FirstInformationReport was registered at the behest of the petitioners against the respondent no.1-Police Officer, even when the complaint dated December 5, 2018 and the statement of witnesses recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) dated December 13, 2018 discloses commission of cognizable offences by the said officer.
5. The investigating officer after completion of investigation came to the conclusion that the offences alleged are not made out against the present petitioners and accordingly a proposal was forwarded for sanctioning ‘A’ summary thereby recommending the release of the petitioners under Section 169 of the Code as sufficient evidence was not found against them. The sanction to the said report was approved by the higher authorities as well as ‘Jilha Saniyantran Samiti’. It was subsequently submitted before the learned Judicial Magistrate First Class, Shriwardhan (for short, ‘JMFC’) on February 3,
2020.
6. The respondent no.1 though was no more incharge of the post, the complainant filed a protest petition dated June 21, 2021 praying for rejection of ‘A’ summary and further praying for order of further investigation under Section 173(8) of the Code. He also made an application dated July 9, 2021 to the respondent no.4-Superintendent of Police, Raigad seeking directions for further investigation under Section 173(8) of the Code. A representation was also made to the JMFC by the respondent no.3-Sub-Divisional Police Officer, Roha on July 19, 2021 in which it was mentioned that further investigation has been directed by his superiors and the responsibility of the same is given to him.
7. In due course, by order dated September 29, 2021 the JMFC ordered further investigation and the collection of additional evidence. Pursuant to the same, charge-sheet was filed on October 25, 2021.
8. Shri. Umesh Mankapure, learned counsel for the petitioners would urge that the perusal of ‘A’ Summary report dated February 3, 2020 would reveal that the Investigating Officer has reached to a conclusion that there is insufficient evidence against the petitioners hence the petitioners are entitled to be released under Section 169 of the Code. While the said report was subjudice before the JMFC, the respondent no.1 without lawful authority approached the respondent no. 4 with a request for further investigation which was approved and the said investigation was handed over to the respondent no.3-S.D.P.O. He would further urge that the respondent no.4 ought not to have passed the order of further investigation as it was an attempt to overreach his authority. He would further urge that there is a violation of mandatory guidelines laid down in the judgments of Arnesh Kumar Versus State of Bihar [(2014) 8 SCC 273] and D.K. Basu Versus State of West Bengal [(1997) 1 SCC 416] as the women were arrested in absence of a lady police officer and eleven persons including women were illegally detained. Further, the male persons were handcuffed and paraded as well as no next friend was informed about the arrest.
9. In addition to above his contentions are, the purpose of further investigation as contemplated under Section 173(8) of the Code is to enable the investigating officer to investigate into the case qua the events so occurred after filing of a final summary report or report under Section 169 of the Code or charge-sheet, and to bring on record new vital pieces of evidence which for reasons beyond control could not be collected while investigating the crime. Even the JMFC has directed for collection of additional evidence. However, the respondent no.3 has again recorded the statements of all the nine witnesses in the month of October-2021 i.e. after a lapse of period of more than two years even when it was already forming a part of the ‘A’ summary report. The entire version of witnesses has been modified by incorporating timings as well as the name of persons and deletion of evidence against the respondent no.1. Further, the respondent no.3 at such a belated stage has collected the clothes of the complainant and the sand from the spot of incident i.e. after lapse of a period of three years from the date of incident. Hence, the respondent no.3 has failed to bring any additional evidence on record. What was done by the respondents is re-investigation as opposed to further investigation which is not permitted under the law. In support of his contentions, the counsel for the petitioner relied upon the judgments of the Apex Court in Vinay Tyagi Versus Irshad Ali and Others [(2013) 5 SCC 762], Rama Chaudhary Versus State of Bihar [(2009) 6 SCC 346], Mithabhai Pashabhai Patel and Others Versus State of Gujarat [(2009) 6 SCC 332] and Chandra Babu Alias Moses Versus State through Inspector of Police and Others [(2015) 8 SCC 774] and the judgment of this Court at Aurangabad Bench in Shri Shivaji Pankhule and Another Versus The State of Maharashtra and Others [Criminal Writ Petition No. 320 of 2005].
10. He would further urge that the respondent no.1 has been held guilty under the departmental enquiry by the final report dated September 9, 2020 for professional misconduct. In the said report, various instances of professional misconduct in respect of the respondent no.1 have been observed. In the said report, it is mentioned that though the petitioners were broughttotheShriwardhanpolicestation at[7].20 p.m. and the first information report was registered at 11.10 p.m., the respondent no.1 by misusing his office arrested the petitioners (male accused) even before registration of the first information report. Further, even when there was electricity in the police station, the CCTV cameras were switched off on the date of incident by the respondent no.1 for his personal gains. It is also mentioned in the said report that though the respondent no.1 had gone for patrolling on the beach, he was not in Police Uniform and he did not carry his identification card. Even his subordinate officer was in civil dress. In the station diary at 7.30 p.m. the respondent no.1 had written that he is going on patrolling at beach whereas, the petitioners were arrested and brought to the police station at about 7:20 p.m. The entry was made after the entire incident was over and after the petitioners were brought to the police station. The report also states that there was damage to the Mercedes car of the petitioners however, the respondent no.1 has refused to take any action in that regard.
11. Shri Manish Gaikwad, learned counsel for respondent no.1 would at the outset strongly oppose the prayers made in the petition. He would support the registration of the offence so also passing of the order by the JMFC directing further investigation in the matter. He would further urge that on the date of incident while the respondent no.1 was on patrolling duty, he saw few people recording photoshoot with camera as well as drone camera and making noise. When he enquired about the same, four to five persons started abusing and assaulting him. The police constable who was with him intervened the said assault and rescued him. There were also three independent witnesses present at the spot of incident namely Anant Gurav, Vasant Yadav and Kiran Khelaskar. Pursuant to the said incident, the first information report vide Crime No. 53 of 2018 was registered.
12. Shri. M.H. Mhatre, learned Additional Public Prosecutor for the respondent nos.[2] and 3 would also at the outset strongly oppose the prayers made in the petition. He would further urge that the respondent no.3 was assigned with the said further investigation. As a sequel of above, he has recorded the statements of nine witnesses including three independent witnesses. He has further seized the clothes of the complainant as well as the sand from the spot of incident and the same were forwarded for the Report of Chemical Analyser. He also obtained the call detail records of the complainant as well as the accused which corroborated the said incident. The respondent no.3 also came to the opinion that there is difference of timing of the incident as stated by the complainant as opposed to what is stated by the witnesses. After completion of investigation, he came to the conclusion that there is substance in the complaint and thus on the basis of the said material the charge-sheet dated October 25, 2021 was submitted before the JMFC.
13. We have appreciated the rival contentions.
14. The ‘A’ summary report was submitted on February 3, 2020. Investigating Officer-Nitin Jadhav concluded that there is insufficient evidence against the petitioners and hence, no cognizable case is made out against them. The respondent no.1 has also been held guilty for professional misconduct as per the departmental enquiry report dated September 9, 2020.
15. It is a settled position of law that what is permitted under Section 173(8) of the Code is ‘further investigation’ and not ‘re-investigation’. The petitioner has rightly relied upon the judgments of the Apex Court in the casesofVinayTyagi,RamaChaudhary,Mithabhai Pashabhai Patel and Chandra Babu Alias Moses (supra). In addition to this, the petitioners have also rightly relied on the judgment of this Court in Shri Shivaji Pralhad Pankhule (supra). In the landmark judgment of Vinay Tyagi (supra) the Court has exhaustively dealt with the question of ‘further investigation’ and ‘re-investigation’ in paragraphs 22, 40 and 49 and the same read as under: “22. “Further investigation” is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as “further investigation”. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as “supplementary report”. “Supplementary report” would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a “reinvestigation”, “fresh” or “de novo” investigation.
40. Having analysed the provisions of the Code and the various judgments as aforeindicated, 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 case 12 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
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.
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementaryreport”withtheleaveof the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.”
16. It is also not out of place to make a reference to the decision of the Hon’ble Supreme Court in the case of Peethambaran v. State of Kerala [2023 SCC OnLine SC 553], of which paragraphs 20 and 29 are as under:- “20. The Chief Police Officer of a district is the Superintendent of PolicewhoisanofficeroftheIndian PoliceService.Needless to state, an orderfromtheDistrictPoliceChiefisnotthe same as an order issued by theconcerned Magistrate. Referring to Vinay Tyagi (supra), this Court in Devendra Nath Singh v. State of Bihar noted that there is no specificrequirementto seek leave of the court for further investigation or to file a supplementary report but investigation agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with.
29. Intermsof second question, the above discussion makes clear that the District Police Chief, Kottayam could not have ordered further investigation,asthat power rests either with the concerned magistrate or with a higher court and not with an investigating agency.”
17. In all the aforesaid judgments, the Courts have enunciated that there is a substantial difference between ‘further investigation’ and ‘re-investigation’. The meaning of "further" is additional, more, or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. Furthermore, the investigating agencies have to obtain permission from the Court to conduct ‘further investigation’.
18. From the factual matrix, it is apparent that the Respondent no.3 has conducted re-investigation and not further investigation as ordered by the JMFC. Even the affidavit filed by the said respondent dated July 24, 2023 uses the term ‘re-investigation’ and not ‘further investigation’. It cannot be said that the word ‘re-investigation’ has been inadvertently used. He has neither brought any additional evidence which was not available during the initial investigation nor has he proved that there were some events which occurred after the submission of ‘A’ summary report. Even the Respondent no.4 has ordered for further investigation without obtaining the leave of the Court.
19. The charge-sheet depicts that the First Information Report was lodged on December 04, 2018 by the respondent no.1 wherein the allegations are also about commission of offence punishable under Section 353 of the Indian Penal Code. It is recorded that the offence occurred at about 8.00 pm on December 04, 2018 and the same was registered at 11.10 pm. The record further contains the statements of the petitioners, who are shown to be accused, which disclose cognizable offence against the respondent no.1 which fact is not at all investigated and there is no explanation to the same. The respondent no.1 has claimed that he was assaulted which has resulted into fracturing his shoulder. However the investigation by the Investigating Officer Shri Nitin Jadhav depicts that there is no sufficient evidence to infer such an offence being committed by the petitioners. The said Investigating Officer in detail has considered the investigation carried out earlier upon the complaint of the respondent no.1 and in detail noticed the material discrepancies which will not achieve the ultimate object of securing the conviction of the accused persons. Rather, the said report depicts how exaggerated complaint is lodged by the respondent no.1 so as to victimize the petitioners. Though the respondent no.1 has produced the injury certificate, there is no iota of evidence supporting that the fracture was suffered by the respondent no.1. Apart from above, the respondent no.1 was proceeded against by the Office of the Directorate General of Police who has already held the respondent no.1 responsible for the negligent act in the investigation of the aforesaid offence. The fact remains that since 2018 i.e. from the date of incident, we can infer from the available material that the petitioners are made to suffer a lot particularly in the light of high handed action. As could be inferred from the factual matrix, we are not inclined to go into those details because not only the departmental appeal is pending against the respondent no.1 but also the fact of closure of ‘A’ Summary before the Magistrate.
20. Section173(8)ofthe Code contemplates filing of final report and such powersarevestedinthePoliceAuthorities, i.e. the Investigating Officer. In such final report, if the Investigating Officer is not satisfied, he makes a provision, thatifsorequired,asupplementary charge-sheet would be submitted in future. In case if the Investigating Officer after submission of the final report obtains further oral or documentary evidence, it is labeled as ‘further investigation’. The scope of further investigation is based on discovery of further oral and documentary evidence so as to bring the true facts before the Court. If the filing of final report can be termed as primary investigation, the subsequent stage is that of further investigation based on the discovery of facts and the evidence,andassuch,supplementalreport/challan/charge-sheetare submitted. ‘Furtherinvestigation’ is said to be in supplement to primary investigation and such investigation cannot wipe out the effect of initial investigation in implied manner. It can be said to be a continuation of the earlier investigation for which the basis is discovery of fresh evidence in the very same offence and also the chain of events relating to the occurrence of incidents thereto.
21. Further investigation can be termed to be an antithesis to ‘reinvestigation’ or fresh or de-novo investigation. The fact remains that the Magistrate has no power under Section 173 of the Code to direct reinvestigation or de-novo investigation based on the police report. He can at the most direct further investigation pursuant to sub-section 6 of Section 173 of the Code. The power for further investigation can be sourced from subsection 8 of Section 173 of the Code and the same is in furtherance of the advancing the cause of justice. Such further investigation by virtue of the practice adopted since long contemplates the permission of the Court. In support of the aforesaid observations, this Court can rely on the judgments of the Apex Court in the matter of Vinay Tyagi and Peethambaran (supra). After the order of further investigation is passed by the Magistrate, what has been done by the Investigating Officer is the re-recording of the statements of the same nine witnesses whose statements were recorded earlier under Section 161 of the Code and such lacunae which were noticed were sought to be filled in as is so rightly pointed out by the learned counsel for the petitioners. The object of investigation is not to fill in the lacunae. Apart from above, it can be inferred that the counsel for the petitioners was justified in claiming that the seizure of clothes is shown after a period of three years and also the samples of sand are collected from the beach after a period of three years of the incident which is also a public place. Such steps can be termed as ridiculous and by any stretch of imagination cannot be termed as amounting to further investigation in the matter.
22. In this background, we deem it appropriate to quash and set aside the re-investigation carried out by the Investigating Officer pursuant to the order of the Magistrate dated September 29, 2021. From the development discussed above, we are of the view that there is a reason to believe that additional evidence was not available in the matter.
23. For the aforesaid reasons, we are satisfied that the ‘A’ Summary submitted by the Investigating Officer needs to be accepted and that being so the order of further investigation is hereby quashed. We direct the Magistrate to pass consequential orders in the matter.
24. The writ petition is allowed. Rule is made absolute in above terms. (R.N. LADDHA, J.) (NITIN W. SAMBRE, J.) APTE