Bharat Bhanudas Lale and Ors. Vs Surekha Pradeep Lale and Ors.

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[1]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE
 CRIMINAL WRIT PETITION NO.333 OF 2005

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 Shri Bharat Bhanudas Lale
 and others .... Petitioners
 Vs.

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 Smt. Surekha Pradeep Lale
 and others .... Respondents

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 Shri Suhas M. Oak for the Petitioners.

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 Shri B.H. Mehta, Addl. Public Prosecutor,
 for the Respondent Nos.2 & 3.

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CORAM: R.M.S. KHANDEPARKAR &
 P.V. KAKADE, JJ.

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DATED: FEBRUARY 14, 2005

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P.C:

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 1. Heard. The grievance of the learned Advocate for

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 the petitioners is that the police could not have
 proceeded with the investigation once the chargesheet is
 filed and the Sessions Court was seized with the matter.
 Reliance is sought to be placed in the decisions in the

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 matters of Randhir Singh Rana v. State (Delhi
Administration), reported in (1997) 1 SCC 361 and Sri
Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha

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Maharaj v. State of Andhra Pradesh and others, reported
 in 1999 Cri.L.J. 3661. It is the contention of the
 learned Advocate for the petitioners that once the
 Sessions Court is seized with the matter on completion
 of the investigation and filing of the chargesheet, the

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[2]

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 police of their own, without the prior permission of the
 Court, could not have proceeded with the investigation.
 Attention is drawn to para 5 of the judgment of the Apex
 Court in Randhir Singh Rana’s case (supra). The said
 para reads thus:-

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 "The decision in Ram Lal Narang v.
 State (Delhi Admn) has laid down that
 despite a Magistrate taking cognizance
 of an offence upon a police report, the
 right of police to further investigate
 even under the old 1898 Code was not
 exhaustive and the police could exercise
 such right often as necessary when fresh
 information came to light. {This
 position is now beyond pale of
 controversy because of sub-section (8)
 of Section 173 of the new Code.} But
 then a rider was added stating that
 after cognizance has been taken, then
 with a view to maintain independence of
 the magistracy and the judiciary,
 interests of the purity of
 administration of criminal justice and
 interests of the comity of the various
 agencies and institutions entrusted with
 different stages of such administration,

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[3]

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 it would "ordinarily be desirable that

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 the police should inform the court and
 seek formal permission to make further
 investigation when fresh facts come to
 light"."

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 Referring to the observations therein that ordinarily it
 is desirable that the police should inform the Court and
 seek formal permission to make further investigation, it
 is sought to be argued that since in the present case
 the police had not obtained prior permission of the
 Court inspite of the fact that the matter was pending
 before the Court, the action on the part of the police
 is ab initio bad in law in relation to the re-opening of
 the case.

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 2. Undisputedly, this issue was also raised in Criminal
Writ Petition No.2296 of 2004 {Smt. Surekha P. Lale v.
 The State of Maharashtra & another} wherein the Division
 Bench {Smt. Ranjana Desai & Shri A.S. Oka, JJ.} had
 passed the following order:-

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 "2. The learned APP states that

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 investigation in C.R. No.126/01 is
 reopened. In support of this, she has
 submitted in this court a copy of the
 report sent by police inspector

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[4]

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 Mangalvedha Police Station dated
 6-12-2004. The said report is taken on
 record and marked "X" for
 identification.

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 3. Considering the nature of the
 allegations made in the petition, we
 direct that the investigation be
 conducted under the supervision of
 Superintendent of Police, Solapur

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 (Rural). Ad-interim relief granted by
 us shall continue for a period of six

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 weeks from today."

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 Apparently, when the matter was brought to the notice of
 this Court that the Police Inspector had re-opened the
 investigation, this Court had specifically directed that
 the investigation should be conducted under the
 supervision of the Superintendent of Police, Solapur,
 thereby this Court gave its approval for re-opening of
 the investigation considering the nature of the
 allegations and the grievances of the complainant.

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 3. As regards the decision of the Apex Court in Randhir
 Singh Rana’s case, the Apex Court has nowhere held that
 in each and every case the police for the purpose of
 further investigation have to take prior permission of

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[5]

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 the Court after the filing of the chargesheet and while

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 the matter is pending before the Court. Undoubtedly,
 there is an observation to the effect that ordinarily it
 is desirable that the police should inform the Court and
 seek formal permission to make further investigation
 when fresh facts come to light. That does not lead to
 the conclusion that the Apex Court has held that in each
 and every case prior permission for the purpose of
 further investigation is necessary once the chargesheet
 is filed. In fact, the provisions of law comprised
 under Section 173(8) of the Code of Criminal Procedure
 clearly entitle the police to re-open the investigation
 on its own once fresh facts come to the knowledge of the
 investigating machinery, even after the filing of the
 chargesheet and while the matter is pending before the
 Court.

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 4. It is well-settled law that each and every
 observation in a judgment, whether of the Apex Court or
 of the High Court, cannot be construed as a
 pronouncement of law on any issue as such. The ratio of
 the decision is to be understood after considering the
 facts in that case, the points for consideration which
 arise in the matter and the decision given by the Court
 on those issues after taking into consideration the
 rival contentions of the parties. The observations in
 para 5 in Randhir Singh Rana’s case are in relation to

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[6]

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 the decision delivered by the Apex Court earlier in Ram

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Lal Narang v. State (Delhi Admn.), reported in (1979) 2
 SCC 322. In fact, similar is the decision of the Apex
 Court in Sri. B.S.S.V.V. Vishwandadha Maharaj’s case
 (supra). Therein also the Apex Court had ruled that:-

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 "Power of the police to conduct further

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 investigation, after laying final
 report, is recognised under Section
 173(8) of the Code of Criminal
 Procedure. Even after the Court took
 cognizance of any offence on the
 strength of the police report first
 submitted, it is open to the police to
 conduct further investigation. This has
 been so stated by this Court in Ram Lal
 Narang v. State (Delhi Admn.), AIR 1979
 SC 1791. The only rider provided by the
 aforesaid decision is that it would be
 desirable that the police should inform
 the Court and seek formal permission to
 make further investigation."

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 Obviously the Apex Court has nowhere held that the
 police are not entitled to conduct further
 investigation. Undoubtedly, a rider also has been added
 that it is desirable that the police should inform the

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 Court and seek its formal permission. This observation

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 itself discloses that it is not mandatory in each and
 every case that the police should seek prior permission
 for re-opening of the investigation. Undoubtedly, it is
 always desirable that the police should keep the Court
 informed about such acts by the police which can have
 some effect on the matter which is pending before the
 Court and considering the same, it is expected that the
 police should keep the Court informed about the same and
 should obtain formal permission. Absence of formal
 permission however by itself would not nullify or would
 not render the investigation to be bad in law. Besides,
 in the case in hand, undisputedly, when the matter came
 up before this Court in Criminal Writ Petition No.2296
 of 2004 (supra), the Division Bench has specifically
 passed an order directing the investigation to be
 conducted under the supervision of the Superintendent of
 Police. Being so, there is not only formal but specific
 permission granted by this Court for such investigation
 to be carried out. Considering the same, there is
 absolutely no substance in the petition. The petition
 is, therefore, rejected.

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 (R.M.S.Khandeparkar, J.)

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[8]

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 (P.V.Kakade, J.)

Bharat Bhanudas Lale and Ors. v. Surekha Pradeep Lale and Ors.

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Bharat Bhanudas Lale and Ors. v. Surekha Pradeep Lale and Ors.

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