Partly allowed

Sikander Khan v. State of Rajasthan

Rajasthan HC21 Jan 2019CRLMP/298/2019

Case brief

AI extract

What is this about?

The High Court partially modified an order directing further investigation. It held that while further investigation is permissible, the court cannot direct the agency to follow a specific manner or conduct the investigation according to the court's views without usurping police functions under Section 482 CrPC.

What did the court decide?

The order dated 15.9.2018 was modified to free the Investigating Officer from specific directions on the manner of investigation, allowing them to submit the report after completing investigation in a

Sikander Khan Vs State of Rajasthan — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 298/2019

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Sikander Khan S/o Sh. Sh. Shahbaz Khan, Aged About 42 Years, B/c Musalman, R/o New Bal Geetanjali Shikshan Sansthan , Borawad, Makrana , Distt. Nagaur (Raj)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Lal Mohammad S/o Sh. Saraz Ahmed, B/c Musalman , Secretary , Geetanjali Shikshan Sansthan, Borawad, Distt. Nagaur (Raj)

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----Respondents

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For Petitioner(s) : Mr. K.S. Lodha for Mr. Vineet Jain For Respondent(s) : Mr. JP Bhardwaj, Public Prosecutor

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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21/01/2019

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The petitioner has preferred this misc. petition under Section 482 of Cr. P.C. being aggrieved and dis-satisfied of the order dated 15.9.2018 passed by learned court below ordering further investigation in the case and formulating certain points upon which further the investigation was ordered to be carried out on askance of the complainant.

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Counsel for the petitioner made a limited prayer that further investigation can be ordered upon moving application under Section 173(8) of Cr. P.C., but looking into the judgment of Shariff

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Ahmed & Ors. Vs. State (NCT of Delhi) reported in 2009 14 SCC 184 a direction for further investigation in a particular manner cannot be passed. The purport of this precedent law is that the

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learned court taking cognizance may direct further investigation under Section 190 Cr. P.C., but the direction that investigation should happened in a particular manner/way was not held to be sustainable. The relevant portion of this judgment reads as under :-

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“The contention before this Court was that the High Court was in error in exercising jurisdiction under Article 226 of the Constitution at the stage when the Additional Chief Judicial Magistrate who had jurisdiction to entertain and try the case, h ad not passed upon the issues before him, by taking upon itself the appreciation of evidence involving facts about which there was an acrimonious dispute between the parties and giving a clean bill to the suspects against whom the first information report was filed. In this connection this Court relied upon the observations of the Privy Council in King Emperor V. Khwaja Nazir Ahmad which reads thus:

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In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it, and not until then.

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6. Reference was also made to the observations of this Court in S.M. Sharma v. Bipen Kumar Tiwari MANU/SC/0182/1970 : 1970CriLJ764 , wherein this Court observed:

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It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal power.

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7. This Court held in the case of J.A.C. Saldanha (supra) that there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. It has been held as follows:

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Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take ongnizance of the offence under section 190 of the Code of Criminal Procedure, its duty comes to an end. On a cognizance of the offence being taken by the Court, the police function of investigation comes to an end subject to the provision contained in Section 173(8), then commences the adjudicatory function of the judiciary to determine

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whether an offence has been committed and if so, whether by the person or persons charged with the crime. In the circumstances, the judgment and order of the High Court was set aside by this Court.

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In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency."

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In view of what is stated in MC. Abrahams case (supra) the order of High court is clearly unsustainable and is set aside. We make it clear that we have not expressed any opinion on the merits of the case. ”

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Learned Public Prosecutor submits that the precedent law in the matter of Abhinave Jha & Ors. Vs. Dinesh Mishra reported in 1968 AIR 117, 1967 SCR (3) 668 , lays down the broad parameters of power under Section 173 (8) of the Cr.P.C. and envisages that Investigating Officer shall make all necessary

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efforts for completing the investigation and take all necessary step for doing the same.

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After hearing counsel for the petitioner and without going into merits of the case, this Court deems it appropriate to modify the dated 15.9.2018 to the extent that the Investigating Officer shall be free to make investigation under Section 173 (8) but any directions given by the court below on 15.9.2018 so as to conduct the investigation in a particular manner shall not be considered binding upon the I.O. and the investigation authority shall be free to take his own opinion regarding the course of investigation. The appropriate investigation report shall be submitted before the learned court below after completion of investigation.

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(DR. PUSHPENDRA SINGH BHATI)J.

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Sanjay

Sikander Khan v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Sikander Khan v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

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