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TMI Blog2016 (4) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the magisterial Court issued the warrants against the applicants then they preferred a petition under Section 482 of Cr.P.C. registered as M.Cr.C. No. 6940/2012 in which the Single Bench of this Court vide order dated 03-10-2012 cancelled the order relating to issuance of warrant. The respondent No. 2 thereafter preferred a petition under Section 482 of Cr.P.C. registered as M.Cr.C. No. 3111/2013 in which vide order dated 26-04-2013 it was directed that fair investigation be done against the applicants and to file final report within 3 months. The review petition was also filed against that order and the same was dismissed on 15-05-2013. During pendency of various petitions, the Single Bench of this Court had stayed filing of charge-sheet against the applicants and therefore, the charge-sheet was filed against other accused persons, except the applicants. Again the prosecution has filed the report under Section 173(2) and 173(8) of Cr.P.C. with the information that no offence was found constituted against the applicants. However, the Magistrate vide order dated 01-11-2013 took cognizance of the offence against the applicants under Section 190 of Cr.P.C. The Criminal Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re already settled by the Court. Also the power under Section 482 of Cr.P.C. vested in the High Court cannot be delegated by the grant of liberty. The applicants were not entitled to raise the objections against the order dated 01-11-2013 by filing fresh applications because that order was challenged in a revision petition which was dismissed. That order of revisionary court was again challenged in a petition under Section 482 of Cr.P.C. and that petition was withdrawn which indicates that petition was to be dismissed after hearing the parties and no flaw was found in the order dated 01-11-2013, therefore, it was withdrawn, hence the liberty cannot be granted to re-agitate all the points against the order dated 01-11-2013 passed by the Magisterial Court before the same lowest Court. It should be clear in the mind of litigants as well as judges and magistrates that liberty can be granted within the permissible limit of provisions of various laws that are in force for the time being. Liberty cannot be given to agitate the same points before the trial Court which are already considered and decided by the superior Court. 6. The liberty which was granted vide order dated 12-09-2014 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits and dismissed the revision, it would not be appropriate to dismiss the petition only because the applications were not maintainable. However, if the matter is considered on merits then it would be apparent that the charge-sheet was filed before the Magisterial Court against other accused persons whereas the investigation was reserved against the applicants -Hargovind Bhargava and Santosh Bhargava under Section 173(8) of Cr.P.C. It is submitted by learned counsel for the applicants that when the subsequent charge-sheet was filed under Section 173(8) of Cr.P.C. and the application under Section 319of Cr.P.C. was pending before the trial Court relating to the applicants then the Magisterial Court was not competent to pass the order dated 01-11-2013 under Section 173 (8) of Cr.P.C. In support of this contention, attention of this Court is invited to the judgment passed by the Apex Court in the case of "Jile Singh v. State of Uttar Pradesh and another" { (2012) 3 SCC 383}. However, this judgment is related to the procedure relating to registration of complaint under Section 204 of Cr.P.C. and to exercise the power under Section 319 of Cr.P.C. at that stage. In the present matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. *** *** *** *** *** *** 173 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the investigating officer. But such procedure is commonly practiced in our State by a few investigating officers that they keep the investigation pending for some of the accused as a right in the light of the provisions of Section 173 (8) of Cr.P.C. However due to such procedure the Session Court starts trial against few accused persons and in the meantime supplementary charge-sheet is filed by adding one or two accused and thereafter re-trial starts if previous trial is not completed and again a piecemeal charge-sheet is filed against remaining accused persons resulting in a retrial or a fresh trial. Such activities of police creates multiplicity of trial against the accused persons who were arrested earlier. 15. In this connection the judgment of Apex Court in the case of "Joginder Singh and another v. State of Punjab and another" (1979 Cr.L.J. 333) may be referred. A little portion of para 6 and 8 of that judgment is reproduced as under: "6.................. It will be noticed that both under Section 193 and S. 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz. s. 193(1) and Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation." In the light of the judgment passed by the Apex Court in case of K. Chandrasekhar (supra) it is held that report under Section 173(2) of Cr.P.C. shall be filed when investigation is complete. Hence, when charge-sheet is filed then it should be after the complete investigation of the case and not of a particular accused. In case of Joginder Singh (supra) it is held that it is a case that is committed to the court of Session and not the accused. If charge sheet is filed for few accused and investigation is reserved for few other accused then it is not a complete charge sheet of a case but it would be a part charge- sheet of the case and in that case, entire case cannot be committed to the court of Sessions. Hence, such part chargesheet can not be filed under Section 173(2) of Cr.P.C. by keeping the right of investigation reserved against remaining accused. Charge-sheet filed under Section 173(2) of Cr.P.C. can be filed when investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation should be complete of the entire case. Neither any investigation officer can reserve any part investigation (reinvestigation) for any accused at the time of filing of the charge-sheet under Section 173(8) of Cr.P.C. nor the Magistrate can give such permission by accepting the part charge-sheet, when investigation of the case is incomplete. 20. As discussed above the provisions of Section 173(8) of Cr.P.C. does not give any right to the investigating officer to keep the investigation pending against few accused persons. It is for him to complete the investigation of the case within a period prescribed under S. 167 of Cr.P.C. and if he wants to ensure as to whether any offence is made out against any person or not then such conclusion should be obtained prior to filing of charge-sheet against any of the accused persons. After due investigation, it is a right of the police to declare some of the accused persons as absconding or at the time of filing of charge-sheet he may file the report under Section 169 of Cr.P.C. against some of the accused persons with the opinion that no offence is made out against them but the police has no right to reserve the investigation against f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cr.P.C., the Magisterial Court should not have discussed the testimony of the witness and it was competent to take cognizance in the case, if alibi was fishy and it was not shown conclusively that presence of the applicants was not possible at the spot, at the time of incident. If the order dated 01-11-2013 passed by the Magistrate is perused then he has considered other documents of the charge-sheet filed against other accused persons which were available in the case diary and he took cognizance on the basis of evidence given under Section 161 of Cr.P.C. of various witnesses and if he recorded the evidence of Vinod in addition to the plea of complainant -Prakash Chand then it makes no difference. Such recording of evidence of Vinod shall not vitiate the merit of the order dated 01-11-2013. The Magistrate has quoted the judgment passed by the Apex Court in the case of "Rajendra Singh v. State of U.P. and others" { (2007) Cr.L.J. 4281} in which it is held that the plea of alibi has to be proved against the accused and by that plea the statement of various witnesses recorded under Section 161 of Cr.P.C. cannot be discarded. The plea of alibi should be proved by the accused at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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