Once cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 of Code of Criminal Procedure, redundant.
The Single Judge Bench of the J&K High Court presided over by Justice Javed Iqbal Wani on 24th of March, 2021 set aside the impugned Order passed by the JMIC, Kotranka, and observed that the Magistrate cannot direct further investigation suo moto in a case when the investigation agency or the parties have not prayed for it.
Arguments on behalf of the Petitioner:
Mr. Navyug Sethi, Counsel for the petitioner stated that the trial court after three years of the trial has passed the impugned order upon the statement of respondent no. 3 and ordered returning of Challan along with relevant material to respondent no. 2 – Sr. Superintendent of Police, Rajouri for further investigation in the light of the statement of the prosecutrix as well as her statement recorded under Section 164-A Cr.P.C and directed the submission of compliance report on or before 23.03.2017.
He further argued that the trial Court has committed serious illegality while directing further investigation in the matter on the grounds that allegation of rape levelled by respondent No. 3 against the petitioners is highly improbable and misconceived, in presence of the medical reports which is stated to have been overlooked by the trial court while passing the impugned order.
Mr. Sethi also referred to the judgment of the Hon’ble Supreme Court in a case titled Amrutbhai Shambhlubhai Patel vs. Smanbhai Kantibhai Patel wherein it was held that once cognizance is taken by the Magistrate and the accused person appears pursuant thereto, the Magistrate would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant.
Observations of the Court:
The Hon’ble Court said that the moot point that begs consideration is that whether a Magistrate has the power to direct further investigation in a case, after submission of police report under Section 173 Cr.P.C.
The Court referred to judgment of the Supreme Court in a case titled as Athul Rao vs. State of Karnataka and another wherein the Court in para 8 noticed:
“8. The question as to whether, after framing of charges and taking cognizance, it is open to the Magistrate to direct further investigation either suo motu or on an application filed by the complainant/informant is no more res integra.
In a recent decision of this Court in case of Amrutbhai Shambhlubhai Patel vs. Smanbhai Kantibhai Patel after analysing earlier decisions on the point, it has been held that neither the Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation.
Further investigation in a given case may be ordered only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.”
Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case.
Section 319 authorizes a Court to proceed against any person, who though not made an accused appears, in course of the inquiry or trial, to have committed the same and can be tried together.
In Case (supra) the Court said that these two provisions of the Code clearly empowers the Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other accused persons.
It was also held by the Court that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof before which it had submitted its report and obtaining its approval, no such power is available to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation.”
The Court observed that the prayer for further investigation had not been sought by the respondent no. 3 or else by the investigating agency on the ground of deduction of material evidence.
The Court concluded by relying on the law laid by the Supreme Court in Athual Rao’s case that there was no reason for the trial Court to direct further investigation in the matter and the impugned order is liable to be set aside.
Case details: CRR no. 34/2017