Rama Chaudhary vs State Of Bihar

1 Trial No. 63 of 2004 whereby the learned Additional Sessions

Judge allowed the application of the prosecution to summon

the witnesses named in the supplementary charge-sheet.

3) Brief facts of the case are as follows:

a) On the basis of fardebayan of Smt. Champa Devi - wife of

Awadh Yadav in Siwan Mofussil Police Station case No. 8

of 2001 was registered against the appellant and others

on 13.01.2001 under Section 364/34 of IPC.

b) On 08.08.2003, an offence under Section 27 of the Arms

Act was also added. The police, after completion of

investigation, submitted charge-sheet on 29.08.2003

against the appellant and other five accused under

Section 364/34 IPC and Section 27 of the Arms Act. In

the said charge-sheet, the prosecution has conveyed that

they are going to examine altogether 18 witnesses.

c) On 11.03.2004, the learned Sessions Judge framed

charges under Sections 120-B, 364/34, 302/34 and

201/34 IPC read with Section 27 of the Arms Act. The

prosecution had examined 21 witnesses.

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d) When the trial was at the stage of closure, on

08.09.2007, another charge-sheet was submitted by the

Police in the court of Chief Judicial Magistrate, Siwan,

against the charge-sheeted accused persons adding

names of eight new witnesses in the charge-sheet. In the

said report/charge-sheet, Police did not mention name of

any accused. The learned Chief Judicial Magistrate,

Siwan, without proceeding under Section 190 Cr.P.C.

forwarded the second charge-sheet to the court of

Session/Special Court, Siwan, on 10.09.2007.

e) On 12.01.2008, the prosecution has filed an application

in a pending Sessions Trial No. 63 of 2004 to summon

the prosecution witnesses named in the second

charge-sheet. The appellant has filed a reply contending

that the application filed by the prosecution is not

maintainable and the same was filed with mala fide

intention. By order dated 19.02.2008, the learned

Sessions Judge, Special Court allowed the said

application to summon the witnesses by observing that

the goal of criminal trial is to discover the truth and to

3 achieve that goal the best possible evidence is to be

brought on record. The learned trial Judge issued

summons to the newly added witnesses and posted the

case to 23.02.2008. Being aggrieved by the said order,

the appellant filed Criminal Revision No. 437 of 2003

under Sections 397 and 401 of Cr.P.C. before the High

Court. By the impugned judgment and order dated

10.12.2008, the High Court dismissed the said revision.

Aggrieved by the same, the appellant filed the above

appeal.

4) We heard Mr. U.U. Lalit, learned senior counsel for the

appellant and Mrs. Vimla Sinha, learned counsel for the State

of Bihar.

5) Mr. U.U. Lalit, learned senior counsel for the appellant,

after taking us through relevant materials as well as Section

173(2) and (8) of the Code of Criminal Procedure, 1973

contended that "further investigation" referred to in sub-

clause (8) does not mean "re-investigation" against the

accused persons who are already facing trial in the case. He

4 further pointed out that, in the present case, after submission

of charge-sheet under Section 173(2) in the year 2003, the

cognizance of the offence was taken by the Chief Judicial

Magistrate and the case was remitted to the Court of Sessions.

Trial was commenced and altogether 21 witnesses have been

examined. At a belated stage, the prosecution has filed the

present report for further investigation with a view to delay the

disposal of the trial. According to him, further investigation as

contemplated in Section 173(8) of the Cr.P.C. cannot be

allowed to be made into the very same offence in relation to

the same accused if the trial had already commenced.

According to him, at this juncture, allowing the application of

the prosecution for summoning eight new witnesses would

prejudice the defence of the accused in the trial.

6) On the other hand, Mrs. Vimla Sinha, learned counsel

for the State of Bihar, submitted that sub-section (8) of

Section 173 Cr.P.C. recognizes right and confer statutory duty

on the Investigating Agency to conduct further investigation

and submit supplementary charge-sheet on the basis of fresh

5 materials at any stage and no prior permission from the

Magistrate is required for further investigation. She further

submitted that Section 231 of Cr.P.C. gives unfettered right to

the prosecution to produce any person as witness even though

such person may not have been examined by the Police if

examination of such person is necessary for unfolding the

prosecution story.

7) Sub-section (1) of Section 173 of Cr.P.C. makes it clear

that every investigation shall be completed without

unnecessary delay. Sub-section (2) mandates that as soon as

the investigation is completed, the officer in charge of the

police station shall forward to a Magistrate empowered to take

cognizance of the offence on a police report, a report in the

form prescribed by the State Government mentioning the

name of the parties, nature of information, name of the

persons who appear to be acquainted with the circumstances

of the case and further particulars such as the name of the

offences that have been committed, arrest of the accused and

details about his release with or without sureties. Among

6 other sub-sections, we are very much concerned about sub-

section (8) which reads as under:-

"(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 sub-section (2)."

8) A mere reading of the above provision makes it clear that

irrespective of report under sub-section (2) forwarded to the

Magistrate, if the officer in-charge of the police station obtains

further evidence, it is incumbent on his part to forward the

same to the Magistrate with a further report with regard to

such evidence in the form prescribed.

9) The above said provision also makes it clear that

further investigation is permissible, however, reinvestigation is

prohibited. The law does not mandate taking of prior

permission from the Magistrate for further investigation.

Carrying out a further investigation even after filing of the

7 charge-sheet is a statutory right of the police. Reinvestigation

without prior permission is prohibited. On the other hand,

further investigation is permissible.

10) From a plain reading of sub-section (2) and sub-section

(8) of Section 173, it is evident that even after submission of

police report under sub-section (2) on completion of

investigation, the police has a right to "further" investigation

under sub-section (8) of Section 173 but not "fresh

investigation" or "reinvestigation". 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 reinvestigation to be started ab

initio wiping out the earlier investigation altogether. Sub-

section (8) of Section 173 clearly envisages that on completion

of further investigation, the investigating agency has to

forward to the Magistrate a "further" report and not fresh

report regarding the "further" evidence obtained during such

investigation.

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11) As observed in Hasanbhai Valibhai Qureshi vs. State

of Gujarat and Others, (2004) 5 SCC 347, the prime

consideration for further investigation is to arrive at the truth

and do real and substantial justice. The hands of

investigating agency for further investigation should not be

tied down on the ground of mere delay. In other words, the

mere fact that there may be further delay in concluding the

trial should not stand in the way of further investigation if that

would help the court in arriving at the truth and do real and

substantial as well as effective justice.

12) If we consider the above legal principles, the order dated

19.02.2008 of the trial Court summoning the witnesses

named in the supplementary charge-sheet cannot be faulted

with. It is true that after enquiry and investigation charges

were framed on 11.03.2004 and thereafter in the course of

trial about 21 witnesses were examined. In the meantime,

Police submitted supplementary charge-sheet with certain

new materials and on the basis of supplementary charge-

sheet, the prosecution filed an application on 12.01.2008 in a

pending Sessions Trial No. 63 of 2004 to the trial Court for

9 summoning the persons named in the charge-sheet for their

examination as prosecution witnesses. On a careful perusal

of the application, the trial Court, by order dated 19.02.2008,

allowed the same and has summoned those witnesses named

in the supplementary charge-sheet.

13) The law does not mandate taking prior permission from

the Magistrate for further investigation. It is settled law that

carrying out further investigation even after filing of the

charge-sheet is a statutory right of the Police. [vide K.

Chandrasekhar vs. State of Kerala and Others, (1998) 5

SCC 223.] The material collected in further investigation

cannot be rejected only because it has been filed at the stage

of trial. The facts and circumstances show that the trial Court

is fully justified to summon witnesses examined in the course

of further investigation. It is also clear from Section 231 of the

Cr.P.C. that the prosecution is entitled to produce any person

as witness even though such person is not named in the

earlier charge-sheet. All those relevant aspects have been

taken note of by the learned Magistrate while summoning the

witnesses based on supplementary charge-sheet. This was

10 correctly appreciated by the High Court by rightly rejecting the

revision. We fully agree with the said conclusion.

14) In the light of the above discussion, we do not find any

valid ground for interference, consequently, the appeal fails

and the same is dismissed.

.........................................J. (S.B. SINHA)

..........................................J. (P. SATHASIVAM) NEW DELHI;

APRIL 02, 2009.

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