GAURI SHANKER AGARWAL Vs. STATE OF U P

JUDGEMENT

(1.) J. C. Gupta, J. Heard applicant's Counsel and learned AGA. It is contended by the applicant's Counsel that the applicant was neither named in the FIR nor in the statement of the victim which was recorded under Sec tion 164, Crpc in the form of a dying declaration before the doctor and later on his name was got introduced during inves tigation although on the date of the alleged incident the applicant was posted as Su pervisor in the Telecom Department at Jaipur arid after the submission of the charge-sheet in the present case he filed objection to the same effect before the learned Magistrate challenging the sum moning order whereupon the learned Magistrate has passed the impugned order rejecting his objection and the same has also been upheld in the revision filed by the applicant. Learned Counsel for the ap plicant contended before the Court that when the fact of plea of alibi had come to the notice of the Magistrate it was his duty to have got the same plea investigated and the power of the Magistrate to get further investigation made is not circumscribed by the mere fact of submission of charge-sheet and is unfettered one for doing jus tice. Learned Counsel for the applicant placed reliance upon the decision of the apex Court in the case of Ram Lal Narang v. State (Delhi Administration (AIR 1979 SC 1791), and the attention of the Court was invited to the following observations: "anyone acquainted with the day-to-day working of the criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the inter est of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already ac cused. When it comes to the notice of the inves tigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate. Alter all the investigating agency has greater resources at its command than a private individual. Similarly, where the involve ment of persons who arc not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cog nizance of the offence but has not proceeded with the enquiry or trial he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as. . separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discre tion of the Magistrate. The criticism that a fur ther investigation by the police would trench upon the proceedings 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 the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further inves tigation. We should not, however, be under stood 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 taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judicatory, 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 fur ther investigation when fresh facts come to light. "

(2.) IN the aforesaid decision, the Supreme Court has specifically observed that when it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it is the duty of that agency to investigate the genuineness of the plea of alibi and report to the Magistrate and this power by the learned Magistrate can be exercised even after the submission of charge-sheet. However, this Court finds that in the present case no such application was moved nor any such prayer was made before the learned Magistrate for getting the aforesaid plea of alibi investigated by the police. IN the circumstances this ap plication is disposed of with the order that it shall be open for the applicant to press the aforesaid prayer before the learned Magistrate and if such a prayer is made within a period of three weeks from today, the personal appearance of the applicant in the case No. 2243/9/1995, State v. Sita Ram and others, pending before the 1st Additional Chief Judicial Magistrate Muzaffarnagar shall not be insisted upon until appropriate order is passed by the learned Magistrate in accordance with law and during this period the arrest of the applicant shall also remain stayed. With the above observations, this ap plication is disposed of. .