Sunil Tondon vs The State Of Maharashtra on 6 May, 2010

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                       
                    CRIMINAL APPELLATE JURISDICTION




                                                               
                 CRIMINAL WRIT PETITION NO.385 OF 2010




                                                              
    Sunil Tondon.                              ..Petitioner.
          Vs.
    The State of Maharashtra 
    and another.                               .. Respondents. 




                                                
                               ig       ....
    Mr.Vikas   Singh,   Senior   Advocate   a/w.   Mr.Yusuf   Iqbal,   Ms.Amrita 
    Narayan,   and   Ms.Anvee   Mehta,   Advocates   i/b.   M/s.   Yusuf   & 
                             
    Associates for the Petitioner.

    Mrs.A.S. Pai, A.P.P., for the Respondent - State.
           

    Mr.A.H.H. Ponda, Advocate for Respondent No.2.
                                    ....
        



                 CORAM :  D.B.BHOSALE & A.R.JOSHI, JJ.

DATED : 06th MAY, 2010

ORAL ORDER (PER D.B.BHOSALE,J.):

1. Heard Mr.Singh, learned Senior Counsel for the

petitioner, Mr.Ponda, learned Counsel for respondent No.2 and

Mrs.Pai, learned A.P.P. for the State.

2. In this Petition, the petitioner has made the following

prayer :

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“(b) appropriate orders be passed by this Hon’ble

Court inter alia restraining this Respondent from

carrying out any further investigation in C.R. No.
66/05 pending before the Learned Additional Chief
Metropolitan Magistrate’s 19th Court at Esplanade,

Mumbai;”

3. Counsel for the parties addressed the Court only on the

aforesaid prayer made in the Petition.

4. Earlier the petitioner had filed Criminal Writ Petition No.

1658 of 2009 in this Court for quashing of the charge sheet on the

ground that he did not committ any offence and even the

investigation did not prove any offence having been committed by

him. Since the charge sheet was filed and the petitioner’s application

for discharge was pending before the trial Court, so also the

application filed by the prosecution keeping the learned Magistrate

informed about their decision to carry out further investigation, this

Court disposed of the writ petition vide order dated 27-7-2009,with

directions to the Magistrate to dispose of both the applications after

hearing all the parties within time frame. Thereafter in September,

2009 a criminal application being Criminal Application No.327 of

2009 in Criminal Writ Petition No.1658 of 2009 was filed by the

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petitioner seeking direction to decide the application filed by the

prosecution in connection with the further

investigation/reinvestigation. While deciding the application, this

Court in order dated 19.1.2010 made following observations :-

“1. By way of this application, the applicant has
prayed that learned Magistrate may be directed to
decide the application in connection with the further

investigation/reinvestigation. On going through the

record, it seems that mere intimation has been
given on behalf of the learned APP to the

concerned Magistrate in connection with the
further investigation and no application was
pending before the concerned Magistrate. Perhaps

through oversight, the learned APP at the relevant

time, made such a statement that the application is
pending. Be that as it may, in view of the fact that the
police is further investigating the case, which

according to the learned counsel for the applicant, is
nothing but reinvestigation, we permit the applicant
to take out substantive proceedings by way of writ

petition or any other proceedings, as may be deemed
fit, for quashing the reinvestigation/further
investigation if any. It would not be proper to
examine this issue in an application in a writ petition
which is already disposed of by this Court. We make it
clear that we have not expressed any opinion as to

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whether it is further investigation or reinvestigation

and the contentions of both the sides are kept open.”

(emphasis supplied)

5. It is against this backdrop, the petitioner has filed the

present writ petition. It appears that the learned Magistrate decided

both the applications i.e. application filed by the petitioner for

discharge and the application filed by the prosecution keeping the

learned Magistrate informed about further investigation. Insofar as

the application filed by the petitioner for discharge is concerned, the

learned Magistrate has dismissed the same vide order dated 1st

August, 2009. This order has not been challenged by the petitioner so

far. The application filed by the prosecution was also disposed of by

the learned Magistrate vide order dated 6.8.2009. We have perused

the application filed by the prosecution dated 5.1.2009. By that

application, the prosecution had simply kept the learned Magistrate

informed about their decision to carry out further investigation as per

Section 173(8) of Cr.P.C. and that there was no prayer made therein.

In view thereof, the learned Magistrate while deciding the application

vide order dated 6.8.2009 in paragraph-6 held thus :

“6. This application is taken on the file of this Court
on 2.1.2009. I have carefully perused the contents of
this application. This application is without any

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prayer. So the court need not pass any order on this

application. Similarly, there is no question of

accepting or rejecting this intimation. With this
observation this application is disposed off.”

6. Mr.Singh, learned Senior Counsel for the petitioner

vehemently submitted that the prosecution under the garb of further

investigation, is virtually reinvestigating the offence which is not

permissible in law. He submitted that the law is well settled that once

having approached the Magistrate either for giving intimation, as

has been done by the prosecution in the present case, or for seeking

permission to carry out further investigation, it is not open to the

investigating agency to carry out further investigation unless formal

permission is granted by the Magistrate. In this case, he submitted

that once having approached the Court vide the application dated

5.1.2009, and that no formal permission was granted by the learned

Magistrate, it is not open to the investigating agency to carry out

further investigation. In short, he submitted that in the facts of this

case leave of the Court for carrying out further investigation is must.

He then submitted that the further investigation being carried out is

in fact in the nature of fresh or reinvestigation, which is not

sustainable in law. In support of his contentions, he placed reliance

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upon the judgment of the Supreme Court in T.T. Antony Vs. State of

Kerala and Ors. (2001)6 SCC 181, Mithabhai Pashabhai Patel and

Ors. Vs. State of Gujarat 2009(6) UJ 2891(SC), Sri Bhagwan

Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs.

State of Andhra Pradesh & Ors. (1999) 5 SCC 740, and Ram Lal

Narang Vs. State (Delhi Administration) (1979) 2 SCC 322.

7. On the other hand, learned APP, on instructions,

submitted that the investigating agency is not carrying out fresh

investigation or reinvestigating the crime, as alleged. She submitted

that a charge sheet has already been filed, and now whatever

investigation the investigating agency is carrying out is only further

investigation as contemplated by Section 173(8) of Cr.P.C.. Mr.Ponda,

learned Counsel for respondent No.2 invited our attention to the

judgment of the Supreme Court in Rama Chaudhary Vs. State of

Bihar, (2009) 6 Supreme Court Cases 346 and submitted that the

law does not mandate taking of prior permission from the Magistrate

for carrying out further investigation and, therefore it cannot be

stated that formal permission is necessary. He submitted that the

judgments relied upon by the petitioner do not apply to the facts of

the present case. He also placed reliance upon the judgment of the

Supreme Court in State of Andhra Pradesh Vs. A.S. Peter (2008) 2

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Supreme Court Cases 383 and Mithabhai Pashabhai Patel and Ors.

Vs. State of Gujarat (2009) 6 Supreme Court Cases 332 in support of

his contentions, .

8. The Supreme Court in T.T. Antony’s case (supra) in

paragraph-19 has observed that “even after filing such a report under

Section 173(2) of Cr.P.C., if the investigating agency comes into

possession of further information or material, they need not register

fresh FIR and they are empowered to make further investigation,

normally with the leave of the court, and where during further

investigation they collects further evidence, oral or documentary,

they are obliged to forward the same with one or more further

reports: this is the import of sub-section (8) of Section 173 of

Cr.P.C..”

9. In Mithabhai Patel (supra) the Supreme Court in

paragraph 16 observed thus :

“16. This Court while passing the order in exercise of

its jurisdiction under Article 32 of Constitution of
India did not direct re-investigation. This Court
exercised its jurisdiction which was within the realm
of the Code. Indisputably the investigating agency in
terms of Sub-section (8) of Section 173 of the Code
can pray before the Court and may be granted

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permission to investigate into the matter further.

There are, however, certain situations, where such a

formal request may not be insisted upon.”

[emphasis supplied]

Further, the Supreme Court has quoted paragraphs 16 to 18

from Rama Chaudhary’s case (supra) which read thus :

“16. 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 charge-sheet is a statutory

right of the police. Reinvestigation without prior
permission is prohibited. On the other hand, further
investigation is permissible.

17. 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.

18. Sub-section (8) of Section 173 clearly envisages

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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.” (emphasis supplied)

In Mithabhai Pashabhai Patel’s case the Supreme Court was

dealing with the question whether with the change of an

investigating authority, police custody of the accused on remand can

be sought for, although cognizance of the offence had already been

taken. The Supreme Court while holding that “further investigation”

and “reinvestigation” stand on different footing, observed that no

superior court would ordinarily issue a direction of a reinvestigation.

10. In Ram Lal Narang’s case (supra), paragraphs-22 & 23,

the Supreme Court observed thus :

“22. ……….. We think that in the interests of the
independence of the magistracy and the judiciary, in
the interests of the purity of the administration of

criminal justice and in the interests of the comity of
the various agencies and institutions entrusted with
different stages of such administration, it would
ordinarily be desirable that the police should inform
the Court and seek formal permission to make further
investigation when fresh facts come to light.

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23. ……….. In our view, notwithstanding that a

Magistrate had taken cognizance of the offence upon

a police report submitted under Section 173 of the
1898 Code, the right of the police to further
investigate was not exhausted and the police could

exercise such right as often as necessary when fresh
information came to light. Where the police desired to
make a further investigation, the police could express

their regard and respect for the Court by seeking its

formal permission to make further investigation.”

(emphasis supplied)

11. We have also noticed the observations made by the

Supreme Court in A.S. Peter’s case (supra), wherein after considering

Ram Lal Narang’s case, in paragraph-9 the Supreme Court held thus:

“9. Indisputably, the law does not mandate taking of
prior permission from the Magistrate for further
investigation. Carrying out of a further investigation

even after filing of the charge-sheet is a statutory
right of the police. A distinction also exists between
further investigation and reinvestigation. Whereas
reinvestigation without prior permission is necessarily

forbidden, further investigation is not.”

(emphasis supplied)

We would also like to quote paragraphs-14 to 17 from the

judgment of the Supreme Court in A.S. Peter’s case, wherein a

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detail reference is made to the judgment in Ram Lal Narang’s

case, on which a heavy reliance was placed by the learned

Counsel for the petitioner in the present case. Paragraphs-14 to

17, in A.S. Peter’s case, read thus:

“14. In Ram Lal Narang this Court was concerned
with a case where two conspiracies were alleged; one
being part of a larger conspiracy. Two investigations

were carried out. This Court, while opining that

further investigation is permissible in law, held that
the Magistrate has a discretion in the matter to direct

further investigation, even if he had taken cognizance
of the offence, stating: (SCC pp.337-38, para 20)
“20. … The criticism that a further

investigation by the police would trench upon

the proceeding before the court is really not of
very great substance, since whatever the
police may do, the final discretion in regard to

further action is with the Magistrate. That the
final word is with Magistrate is sufficient
safeguard against any excessive use or abuse

of the power of the police to make further
investigation. We should not, however, be
understood to say that the police should
ignore the pendency of a proceeding before a
court and investigate every fresh fact that
comes to light as if no cognizance had been

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taken by the court of any offence. We think

that in the interests of the independence of the

magistracy and the judiciary, in the interest of
the purity of the administration of criminal
justice and in the interests of the comity of the

various agencies and institutions entrusted
with different stages of such administration, it
would ordinarily be desirable that the police

should inform the court and seek formal

permission to make further investigation when
fresh facts come to light.”

15. While acknowledging the power of the police
authorities to carry out further investigation in terms
of Section 173 of the Code of Criminal Procedure, an

observation was made therein to the following effect:

(Narang case, SCC p.338, para 21)
“21. … In our view, notwithstanding that a
Magistrate had taken cognizance of the

offence upon a police report submitted under
Section 173 of the 1898 Code, the right of the
police to further investigate was not exhausted
and the police could exercise such right as

often as necessary when fresh information
came to light. Where the police desired to
make a further investigation, the police could
express their regard and respect for the court
by seeking its formal permission to make

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further investigation.”

16. Even in regard to an independent investigation

undertaken by the police authorities, it was observed:
(Narang case, SCC p.338, para 21)
“21. … In our view, notwithstanding that a

Magistrate had taken cognizance of the
offence upon a police report submitted under
Section 173 of the 1898 Code, the right of the

police to further investigate was not exhausted

and the police could exercise such right as
often as necessary when fresh information

came to light. Where the police desired to
make a further investigation, the police could
express their regard and respect for the court

by seeking its formal permission to make

further investigation.”

17. It is not a case where investigation was carried
out in relation to a separate conspiracy. As allegations

had been made against the officer of a local police
station in regard to the mode and manner in which
investigation was carried out, a further investigation
was directed. The court was informed thereabout.

Although, no express permission was granted, but
evidently, such a permission was granted by necessary
implication as further proceeding was stayed by the
learned Magistrate. It is also not a case where two
charge-sheets were filed before two different courts.

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The court designated to deal with the matters

wherein investigation had been carried out by CID, is

located at Chittor. It is in the aforementioned
situation, the Sessions Judge transferred the case
pending in the Tirupati Court to the Designated Court

at Chittor. Cognizance of further offence had also
been taken by the Chittor Court.”

12. In Ram Lal Narang’s case the Court was concerned with

the case where two conspiracies were alleged; one being part of a

larger conspiracy. Two investigations were carried out. Subsequent

investigation revealed that still more persons were involved.

Therefore, a second case of conspiracy was initiated in a different

court and the earlier conspiracy case was withdrawn. It was,

therefore, held that the investigation and taking of cognizance in the

second case was not without jurisdiction. It is against that backdrop,

the Supreme Court observed as quoted above. It would be relevant to

refer to the observations made by the Supreme Court in the very

same judgment (Ram Lal Narang’s case) in paragraph 15. In this

paragraph the Supreme Court has considered the observations of the

Privy Council in King Emperor Vs. Khwaja Nazir Ahmed and observed

thus :

“15. The police thus had the statutory right and

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duty to `register’ every information relating to the

commission of a cognizable offence. The police also

had the statutory right and duty to investigate the
facts and circumstances of the case where the
commission of a cognizable offence was suspected

and to submit the report of such investigation to the
Magistrate having jurisdiction to take cognizance of
the offence upon a police report. These statutory

rights and duties of the police were not circumscribed

by any power of superintendence or interference in
the Magistrate; nor was any sanction required from a

Magistrate to empower the Police to investigate into a
cognizable offence. ….”

(emphasis supplied)

13. From perusal of the aforesaid judgments of the Supreme Court,

it is clear that the law does not mandate taking of prior permission

from the Magistrate for further investigation.It is a statutory right and

duty of the police to further investigate as often as necessary when

fresh information came to light after filing of the charge-sheet. These

statutory rights and duties of the police cannot be circumscribed by

any power of superintendence nor any sanction is required from a

Magistrate to empower the police to investigate into a cognizable

offence. However, it would be desirable to keep the Court

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informed about further investigation, more particularly where the

charge has been framed. The objective for keeping the Court

informed or for seeking formal permission to make further

investigation is that the Court should know about it and should not

proceed to hear the case. Further investigation after filing of the

charge sheet is the continuation of the earlier investigation. Sub-

section (8) of Section 173 of Cr.P.C., envisages that on completion of

further investigation, the investigating agency has to forward to the

Magistrate a further report regarding the further evidence obtained

during such investigation. Therefore, what is necessary is only to

keep the Magistrate informed about further investigation. In the

present case, the prosecution has done so, and the learned Magistrate

vide the order dated 6.8.2009 has taken notice of the same.

14. The petitioner has contended that under the garb of

further investigation, the petitioner apprehends that the police are

likely to reinvestigate the offence. This contention deserves to be

rejected out right since in law a fresh or reinvestigation is not

sustainable without permission of the court. Though the learned

Counsel for the petitioner submitted that the police are virtually

carrying out a fresh investigation, he could not demonstrate as to

why was he saying so. In this case, the charge-sheet has already been

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filed. In any case, reinvestigation is not permissible in law and,

therefore, the apprehension expressed that the police are carrying out

reinvestigation cannot be entertained at this stage. In a given case it

may possible to examine such a contention after filing of the

additional charge-sheet. Moreover, in the present case the

prosecution has not taken any steps for seeking cancellation of bail

or police custody of the accused so as to prima facie hold that they

intend to reinvestigate the offence. The further investigation, which

the investigating agency is carrying out in the present case, is nothing

but the continuation of the earlier investigation and not

reinvestigation as alleged by the petitioner. The contention of the

petitioner that once having approached the Magistrate intimating him

about the further investigation, without formal permission of the

Magistrate, it is not open to the investigating agency to carry out

further investigation, therefore, must be rejected.

With these observations, the writ petition is dismissed.

           (A.R.JOSHI,J.)                                            (D.B.BHOSALE,J.)




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