RAMJI CHAUHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The matter was heard on 5-10-1998. The applicant is the complainant in case Crime No. 506 of 1997 relating to P.S. Handia. District Allahabad. The report was lodged on 12-9-1997 and the case was registered for an offence under Section 147/302. I.P.C. Police, however, submitted charge-sheet for an offence under Section 306. I.P.C. only. After submission of charge-sheet the present applicant moved an application before the court below for a direction for further investigation. Both the parties were heard and certain case laws were also considered by the court below. The application was rejected on the ground that there was no reason to direct further investigation under Section 173(8), Cr. P.C. The Magistrate was of the view that both the offences under Sections 302 and 306, I.P.C. were triable by the court of Sessions and it was open for the complainant to urge before the Trial Judge that an offence of murder was made out on the basis of the materials in the case diary. This order of the Magistrate dated 22-8-1998 is under challenge in the instant application.

(2.) It appears that the applicant had pointed out before the court below that the post-mortem examination of the deceased had indicated 13 ante-mortem injuries. It was further indicated that the applicant was illiterate and was a poor labourer and could not understand the intricacies of law and investigation was not done properly and the persons who could throw light on the incident were not examined. A paper said to have been written by the deceased was relied on, although the deceased was illiterate. The complainant was not examined, according to the complainant himself.

(3.) The Magistrate relied on two decisions one of the Supreme Court and another of the Allahabad High Court. The decision of the Supreme Court stands reported in 1997 Cr1. L.J. 779 Two HonTble Judges of the Supreme Court observed in this case that A peep into a little grey area of the criminal law has become necessary in this appeal, as we have been called upon to decide as to whether a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after appearance of the accused in pursuance of the process issued, can order of his own further investigation in the case. That such a power is available to police after submission of charge-sheet is no longer a debatable question in view of sub-section (3) of Section 173 (in Chapter XII : Information to police and their powers to investigate) of the Code of Criminal Procedure, 1973. The Supreme Court after discussion several decisions on this point came to the finding that within the aray area to which we have referred the Magistrate of his own cannot order for further investigation. The Supreme Court further observed that This will be subject to the caveat that even if the order be of discharge further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge-sheet.