Surender @ Tannu @ Tanva v. State of NCT of Delhi

14. Learned counsel for the petitioner submitted that the complainant had filed Protest Petition seeking monitoring of the investigation before the concerned Magistrate. The said Protest Petition was filed by the complainant after the declaration of the main accused as a juvenile. It is submitted that the protest petition of the complainant is belated and is made falsely, in a misconceived manner and is an afterthought to falsely implicate the petitioner. The Complainant and the family of the deceased are taking out their frustration on the petitioner herein, who is innocent and was in fact trying to help the deceased.

15. It is submitted that it is well settled law that where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or complaint may be quashed in exercise of powers under Article 226 and 227 of the Constitution of India or inherent powers under Section 482 of the Cr.P.C. In absence of any fresh material on evidence discovered by the Investigating Officer, no Supplementary Chargesheet could have been prepared that too only on insistence of the complainant. Such procedure is alien to settled principles of law.

16. Learned counsel for the petitioner relied upon the judgements of State of Haryana vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, Satish Mehra vs. Delhi Administration & Ors., (1996) 9 SCC 766 and Avinash J. Mahale vs. State of Maharashtra, 2006 SCC OnLine Bom 1370 to support her case.

17. It is further submitted that the charges have been framed against the petitioner without appreciating the provisions of the law under Section 173(8) of the Cr.P.C., since, no new material has been found for the filing of the Supplementary Chargesheet, and therefore, the order framing charges is liable to be set aside and the Supplementary Chargesheet is liable to be quashed.

18. Per Contra, Mr. Panna Lal Sharma, learned APP appearing on behalf of the State vehemently opposed the instant petition and submitted that the impugned order as well as the Supplementary Chargesheet need not be set aside or quashed as the same have been passed and filed in accordance with law and after proper appreciation of facts and circumstances.

19. It is submitted on behalf of the State that a specific role has been assigned to the petitioner herein for catching hold of the deceased while the main accused stabbed him. There is a serious allegation against the petitioner in the statement made by the mother and sister of the deceased. It is submitted that without the help of the petitioner and the accused Aamin, accused Vijay @ Mandi could not have succeeded in stabbing and killing the deceased.

20. In the statement of the family members recorded on 27th September, 2014, the statement of the sister revealed that the petitioner was present at the spot of the incident and the mother of the deceased stated that when she reached the spot of the incident she saw the petitioner and accused Aamin had caught hold of her son from the back and the accused Vijay @ Mandi was stabbing him. It is submitted that after investigation, the Supplementary Chargesheet was filed against the petitioner and accused Aamin under Section 302/34 of the IPC and 25/54/59 of the Arms Act,1959 and both were put in column 11, without arrest, since the family members had named them and specified their role of catching hold whereas the other eye witnesses did not attribute any role to the petitioner.

21. It is submitted that at the stage of framing of charge, the learned Additional Sessions Judge had to only see whether prima facie a case was made out against the petitioner or not, and even on the basis of suspicion the charges may be framed. It is submitted that veracity of the witnesses can be tested during trial only and not at the stage of framing of charge. Therefore, it is submitted that the trial should take its own course and the case of the petitioner be decided on merits before the learned Trial Court. It is submitted that in light of the contentions raised, the instant petition is liable to be dismissed since there is no merit in the same.

22. Heard learned counsel for the parties and perused the record. This Court has perused the contents of the Supplementary Chargesheet as well as the impugned order.

FINDINGS AND ANALYSIS

23. The principal issue before this Court is whether the Supplementary Chargesheet dated 8th August, 2016, filed by the Investigating Officer was in accordance with the provisions of the Cr.P.C., as laid down under Section 173(8). The answer to the same would help to identify the legality and validity of the impugned order whereby charges were framed against the petitioner.

24. A reading of Section 173(8) of the Cr.P.C. is deemed necessary at this stage, hence, it is reproduced hereunder:- “173 (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 sub-sections (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 subsection (2).”

25. The Section lays down the provision for enabling further investigation in a criminal case after a final report, in terms of Section 173, has been made to the Magistrate. The provision distinctively uses the words “where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary”, which signifies that the investigation has to be furthered for there being a reason to believe that there exists certain material that would help establish the case of either of the parties. Therefore, for conducting a further investigation there needs to be a reason or scope for furtherance of investigation and finding of material which was otherwise not found, or if found not properly considered or investigated into. If upon such investigation fresh material is actually found and certain aspects of elements collected earlier were not investigated into, the concerned Police Officer/Investigating Officer may make a report to the Magistrate and bring on the record the facts newly discovered.

26. The Hon‟ble Supreme Court in Kishan Lal vs. Dharmendra Bafna, (2009) 7 SCC 685, has made an observations as to what may be the considerations before the concerned authority/Investigating Officer conducts a further investigation into a case, which are reproduced as under:-

27. The scope of further investigation and its subsequent process has also been discussed by the Hon‟ble Supreme Court in Vinay Tyagi vs. Irshad Ali, (2013) 5 SCC 762, wherein the following was laid out:-

17.2. Framing of charge is certainly a matter of earnestness. It is not merely a formal step in the process of criminal inquiry and trial. On the contrary, it is a serious step as it is determinative to some extent, in the sense that either the accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to face the complete trial which may prove prejudicial to him, if finally acquitted. These are the courses open to the court at that stage.

17.3. Thus, the word “presuming” must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused has committed an offence. Such opinion has to be formed on the basis of the record of the case and the documents submitted therewith. To a limited extent, the plea of defence also has to be considered by the court at this stage. For instance, if a plea of proceedings being barred under any other law is raised, upon such consideration, the court has to form its opinion which in a way is tentative. The expression “presuming” cannot be said to be superfluous in the language and ambit of Section 228 of the Code. This is to emphasise that the court may believe that the accused has committed an offence, if its ingredients are satisfied with reference to the record before the court. ***

21. The “initial investigation” is the one which the empowered police officer shall conduct in furtherance of registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code.

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. ***

41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kinds of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the first information report. Then, upon completion of the investigation, the police is required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the court. It is the record of the case and the documents annexed thereto, which are considered by the court and then the court of the Magistrate is expected to exercise any of the three options aforenoticed. Out of the stated options with the court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the Magistrate to direct “further investigation” is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.”

28. The interpretation by the Hon'ble Supreme Court suggests that there needs to be some form of development or scope of development in a case which gives way for the Investigating Agency to look further into the matter. Although further investigation has been distinguished from fresh investigation and reinvestigation, however, the provision for further investigation could not have been introduced solely to provide for reappreciation or reconsideration of the old or primary evidence and other material which was already on record before the Magistrate. There has to be an extent of novelty in the report or Supplementary Chargesheet filed by the Investigating Agency, which leads to discovery of material or evidence in a manner which was not before the Court in the primary report or Chargesheet.

29. An observation in this regard has been made by a coordinate bench of this Court, in Rajinder Prasad vs. State, 1995 SCC OnLine Del 136, as under:- “5. After hearing learned counsel for the parties at length, I am of the considered opinion and this what follows from the observations of the Supreme Court in Ram Lal Narang's case (supra) that in the event of any fresh material or evidence coming in the possession or knowledge of the investigating officer, the investigating officer or the Police is not without power to investigate further in view of the new evidence or new material which has come to its notice. It is for the benefit of the prosecution as well as for the accused. The sub-section 8 of Section 173 of the Code on the basis of this new material or evidence which has come to the light has given power to the Police to further investigate in the matter to find the truth. However, can this power be exercised in relation to a case property which was before the prosecution on the basis of which charge-sheet has been filed and after two years prosecution comes before the Court seeks permission that they may be allowed to draw a second sample for further test, the answer is in negative. This would amount to a roving and fishing enquiry or to fish out evidence against the accused after the charge-sheet has been filed against the accused, which is certainly not the intention of sub-section 8 of Section 173 of the Cr.P.C. I am also supported in my view by Shyama Charan Dubey's case (supra) I – “Reverting back to the said sub-section as enacted by the legislature, it has to be noted that it is only permissive in character. The Investigating Officer (or Officer-in-charge of Police Station) may undertake a further investigation even after filing of a charge-sheet. If he does so, the further evidence collected by him shall be forwarded to the Magistrate along with a further report. Therefore, I am clearly of the view that neither the prosecution, i.e the informant nor the accused can claim as a matter of right a direction from a Court commanding further investigation by the Investigating Officer under sub-section(8) of Section 173 after a charge-sheet was filed after investigation.”

6. An additional reason for coming to the aforesaid conclusion is that even for investigation there must be a point of finality. The law expects the discharge of duties by the Investigating Officer properly resulting in a report under Section 173(2). It may only be in some exceptional case where the Investigating Officer may have to collect some further evidence/materials and submit ti to the Magistrate along with his further report. Such an exceptional case will only prove the general rule that normally investigation terminate with filing of the charge-sheet in Court. In other words, the Investigating Officer believes and places reliance on the evidence and material collected by him by then.

7. In my considered opinion, after the challan has been filed, the C.F.S.L. report dated 24.8.1990 was also filed along with the challan, on the basis of that report, the prosecution has to sustain its case, the prosecution cannot be allowed to improve upon its case in the absence of any new material or evidence as envisaged by sub-section 8 of Section 173 of the Cr.P.C…..”

30. On the question at hand, the Patna High Court in Manilal Keshri v. State of Bihar, 2006 SCC OnLine Pat 635, has made the following observations:

31. The abovementioned precedents certainly establish the principle that where further investigation has been ordered and a report has been submitted, there has to be certain fresh material, or appreciation of old material from a different perspective, that brings on record facts and evidence which was not available to the prosecution or the Court earlier. Where no such new material or evidence, whatsoever, has been discovered by the further investigation, any cognizance taken by the Magistrate may be said to be in contravention to the provision under Section 173 of the Cr.P.C.

32. In the instant matter, the statements of the family members under Section 161 of the Cr.P.C. were recorded four days after the incident. The mother of the deceased, Pushpa, and the sister of the deceased, Aarti, named the present petitioner and his involvement in the commission of the offence. The relevant and true translated part of the statement of the mother of the deceased is reproduced herein:- “Stated that I am residing at the aforementioned address along with my family. I am a housewife. I have two sons and three daughters. On 23/24-09-2014 around 10-10:30 pm, I was sitting outside my house talking to my neighbor Kalpana. My elder son Raja had come from attending a Birthday Party in Colony and asked me to sleep to which I replied yes in a while. Raja was sitting in front of me. Somebody called Raja and he went towards the water tank. After a while my daughter Aarti came running and informed me that there was a fight. I ran and reached to the place of incident where 1saw that resident of ali vihar Vijay aka Mandi was stabbing with knife in the chest of my son and Tannu son of Mahavir Singh resident of Priyanka Camp and Aamin resident of Ali vihar were holding my son from the back. One Suraj from colony son of Kali Charan was saving my son and Rakesh was sitting there. I was shouting that my son has been stabbed. Raja ran towards the house and fell at the gate. My younger son Ram also came. we were taking raja to hospital In auto till then Police van came, and then we took raja to Appolllo hospital in the car, where doctor declared him as dead, I was unable to give my statement earlier. Now you came to my home and you had written my statement and read out to me, it is correct.” The true translated statement of the sister, Aarti, recorded under Section 161 of the Cr.P.C., is also reproduced hereunder:- “Stated that I live on the address above with my family and I study in Sarvodaya Kanya Vidyalaya Madanpur Khadar in class 11th. On date 23/24/2014 in the evening time I and my brother Raja had gone in the colony in birthday. I had came home alone, after coming I had changed my clothes and after coming out asked my mother that Raja had not came then mummy said that he had came and gone towards water tank then I had gone towards water tank then I had seen the fighting was going on and some boys were beating my brother. I came back running to my home and said to mummy that some boys are beating my brother Raja. My mother had gone there running. I came back then my brother was not seen to me but near water tank a boy named Vijay @ Mandi was standing there taking knife in his hand and along with him Tannu was standing and some more boys were standing there then my brother had ran towards my home then Vijay also with a knife in his hand ran behind him but my brother fell down on the door of the house and Vijay had ran back. Vijay and his companions had fought with my brother earlier also on Sunday. I was unable to give my statement earlier. Now you came to my home and you had written my statement and read out to me, it is correct.”

33. For proper adjudication of the matter, the true translated statements of the eye witnesses to the incident are also reproduced hereunder:-

34. There is no dispute to the fact that the first Chargesheet was filed after the statements of the family members was recorded and also after the statements of the witnesses were recorded. Both the sides of the story were available with the Investigating Officer when the first Chargesheet was filed. After appreciating all the material before it, the concerned Investigating Officer put the petitioner in Column 12 of the first Chargesheet. It is a testament to the fact that the Investigating Officer did not find any such material to accuse the petitioner herein of commission of offences under Section 302/34 of the IPC at the time of filing of the first Chargesheet. Thereafter, on an application filed by the complainant, the concerned Magistrate directed the Investigating Officer to file a further report.

35. It is an extremely relevant fact to be noted that the Investigating Officer, upon being directed to further investigate the matter, and after having conducted a further investigation in pursuance of the directions, submitted a Status Report, wherein it was reiterated that no incriminating evidence was found against the petitioner. Despite making the said observations in its Status Report dated 25th April, 2016, in the Supplementary Chargesheet, the Investigating Officer put the name of the petitioner under Column 11 as an accused. The only change by the time of filing of this Supplementary Chargesheet was that the complainant had filed a Protest Petition and had approached the Magistrate for monitoring the investigation. There was no new material, fresh evidence or any other primary evidence appreciated from a different angle before filing of the Supplementary Chargesheet, which was not in existence or not in the knowledge of the Investigating Officer at the time of filing of the first Chargesheet and therefore, it was not only in contravention to the provision under Section 173(8) of the Cr.P.C. but also against the principles of „further investigation‟ as has been reiterated by the Court of the Country.

36. Furthermore, it is relevant to see that the Magistrate after appreciating the contents of the Supplementary Chargesheet framed charges against the petitioner and passed the following order:- “That on 23.09.2014 at about 10:30 PM at New Prinyanka Camp near water tank Pusta Road, New Delhi, within the jurisdiction of PS Sarita Vihar, you in furtherance of common intention along with juvenile Vijay @ Mandeep committed murder of deceased Raja Babu by stabbing him with a knife and thereby you both committed an offence punishable under section 302/34 IPC and within my cognizance. I do hereby direct that you both be tried by this Court for the above said charges.”

37. The aforesaid impugned order may also be tested on the basis of law laid down by the Hon‟ble Supreme Court as well as this Court. The law laid down establishes that while framing the charges the concerned Court needs to appreciate the material on record for its prima facie satisfaction as to whether such charges can be framed against the accused before it.

38. The Hon‟ble Supreme Court as well as various High Courts have interpreted the provisions in the understated judgements, that have effectuated the principles to be considered while a Judge is framing charge or discharging an accused: - In Union of India vs Prafulla Kumar Samal, (1979) 3 SCC 4, the Hon‟ble Supreme Court laid down the principles regarding the considerations before the concerned Court while framing of charges and discharging an accused: -

Hon‟ble Supreme Court in Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217, has laid down as under:

16. After referring to Amit Kapoor [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], in Dinesh Tiwari v. State of U.P. [Dinesh Tiwari v. State of U.P., (2014) 13 SCC 137: (2014) 5 SCC (Cri) 614], the Supreme Court held that for framing charge under Section 228 CrPC, the Judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the Judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence.” Hon‟ble Supreme Court in Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 12 has observed as under:-

39. The above laid principles suggest that the learned Judge framing charges shall limit itself to the prima facie consideration of material and evidence on record. The Judge need not be satisfied on the question of whether the trial, when conducted, will lead to the conviction or acquittal of the accused, but the consideration needs to be whether the accused is to be sent for trial at the first instance or not, based on the material on record. An investigation into the offence and elaborate appreciation of evidence is not required, and is rather discouraged, at the stage of framing of charges and only the material prima facie establishing a case against or in favour of the accused is what is significant. Moreover, as per the requirement of Section 227 and 228, the learned Judge shall consider whether “sufficient grounds” exist or not and such consideration shall be supported by material on record.

40. The learned Additional Sessions Judge, at the stage of framing of charges, was to only prima facie appreciate the evidence and other material on record. However, apart from the statements made by the mother and the sister of the deceased, there was admittedly no other incriminating evidence found against the petitioner. Such limited material was not sufficient to even prima facie make out a case against the petitioner, also in light of the fact that the same material was available at the time of filing the first Chargesheet, whereas, the charges were framed after 2 years of the incident and the statements of the family members of the deceased.

CONCLUSION

41. Keeping in view the abovementioned principles and the law under the Cr.P.C., this Court finds that the Supplementary Chargesheet filed at a subsequent stage after the alleged further investigation, was not filed after having been found any fresh material or evidence, and therefore, neither was the further investigation proper and in accordance with the law nor the Supplementary Chargesheet is sustainable in the eyes of law. The material relied upon by the Investigating Officer at the time of filing of the subsequent and Supplementary Chargesheet was present at the time of filing the first Chargesheet as well and in the first Chargesheet the petitioner was put in Column 12.

42. Moreover, the impugned order framing charges against the petitioner was passed after the filing of Supplementary Chargesheet and taking into account the fact that the petitioner was named as an accused in the said Supplementary Chargesheet.

43. In light of the above made observations, this Court is inclined to quash the Supplementary Chargesheet and set aside the order on charge passed by the learned Additional Sessions Judge-03, South-East, Saket Courts, New Delhi for being filed and ordered in contravention to the law laid down under the Cr.P.C. as well as by the High Court and the Hon‟ble Supreme Court.

44. Accordingly, the instant petition is allowed and the Supplementary Chargesheet dated 8th August, 2016 filed in FIR No. 635/2014 registered at Police Station Sarita Vihar is quashed qua the petitioner, as well as the order on charge against the petitioner dated 5th September, 2017 under Section 302/34 of the IPC passed in Sessions Case No. 2712/2016 by learned Additional Sessions Judge-03, South-East, Saket Courts, New Delhi is also set aside qua the petitioner.

45. Pending applications, if any, also stand disposed of.

46. The judgment be uploaded on the website forthwith.

JUDGE JUNE 13, 2022 Aj/Ms