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Feroz M Shafeeque (Police Officer)     07 November 2009

Power of Magistrate to order further investigation??

SHO file the final report before the magistrate stating that the case may be treated as "further action dropped" as sufficient evidence is not there to prove the commission of crime. The course of action taken during investigation was described in detail in final report.

 

Magistrate returned the final report to the investigating agency with order for further investigation by another investigating officer.

 

Under which section of law is magistrate empowered to order further investigation and change of IO?



Learning

 25 Replies


(Guest)

S.156(3) Cr.P.c.

k.kumar raja (advocate)     07 November 2009

mr.anil kumar is correct.

1 Like

Feroz M Shafeeque (Police Officer)     08 November 2009

Thanks Anil Sir. Some more queries.

 

The FIR was registered on the basis of CMP forwarded to police by the magistrate u/s 156(3) CrPC and final report was submitted after completion of investigation.

 

Does 156(3) CrPC empowers magistrate to order further investigation after final report is filed?  Is there any rulings interpreting 156(3) as such?

 

Can police file appeal in higher court against the order of magistrate?

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     08 November 2009

I disagree with both the aforementioned experts. Please go through Cr. P. C. and hen answer in the forum. Section 173 (8) Cr. P. C. is the proper section vide which magistrate can order for making- re-investigation. There is no ocassion to use 156 (3) Cr. P. C. at this stage as FIR has already been lodged and final report thereof has already been submitted.

1 Like

Ziaul Haque Ansari (Advocate)     08 November 2009

I agree with Mr.Makkad

Feroz M Shafeeque (Police Officer)     08 November 2009

Does173(8) CrPC empowers magistrate to order reinvestigation. Is n't it the power of Police to give additional evidence after filing final report?

 

 

Sanjeev Kuchhal (Publishers)     08 November 2009

I hereby reproduce para 9 from the judgment of Supreme Court in the case of Gangadhar Janardan Mhatre Vs.  State of Maharashtra and Ors.  (2005 (2) LJSOFT (SC) 46)

"When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to be effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused." 

3 Like

Sanjeev Kuchhal (Publishers)     08 November 2009

Distinction between the expressions "investigation" and "inquiry". Term "inquiry" falls in the domain of Court while investigation and all its facets exclusively come under the domain of the investigating agency.

Sanjeev Kuchhal (Publishers)     08 November 2009

"Further" investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Section 173(8) of Cr.P.C. does not give right to fresh investigation or reinvestigation

1 Like

Feroz M Shafeeque (Police Officer)     08 November 2009

Thanks Sanjeev, it is clear now.


(Guest)

Rajji,

What made you think I did not read Cr.P.C before answering in the forum?  The citation relied upon by Sanjeevji supports my contention and his further clarification shows your contention was wrong. I hope you will exercise restraint in future while making "personal" comments.

1 Like

(Guest)

Feroz ji,

Why should the Police appeal as no prejudice is caused to the Police by the said order?

To avoid difficulties as raised by you in the query some of the Police officers do not drop further action but file chargesheet against the suspects despite their being no evidence against the suspects.  In fact they take the suspects into confidence by telling them that if I drop the proceedings the Magistrate may order reinvestigation by another IO who may even arrest you and you will have to undergo the tension all over again and therefore it is better that I charge sheet you and since there are no evidence against you, you will be acquitted in the trial.

1 Like

Sanjeev Kuchhal (Publishers)     08 November 2009

Anil Sir, in a recent Judgment Hob'ble Bombay High Court observed that "The purfunctory investigation shows that the police officers just wanted to file the chargesheet though no iota of material could be gathered against the petitioner about his so called complicity." In the last para of same Judgment Hon'ble High Court held that- "A copy of this judgement shall be forwarded to the Commissioner of Police, Aurangabad (present respondent No. 3) and to the Inspector General of Police, Aurangabad so as to instruct the concerned Investigating Officers to be more careful in such cases while filing the chargesheet wherever there is no proper evidence collected and also to take suitable action against the abovenamed police officers." Copy of the said judgment is attached herewith. Please read the judgment and comment whether you would be still of the same opinion.

Attached File : 49 49 quashing fir.pdf downloaded: 196 times
2 Like

Feroz M Shafeeque (Police Officer)     08 November 2009

I agree that it is a common practise among IOs to file a name sake charge sheet against the accused in each and every case registered.

 

Personally I am against this practise as it is a waste of time of judicial system and in the present scenario even a charge sheet is as good as conviction to an innocent person charge sheeted falsely.

 

The question of appeal was raised since the final report was prepared after scruitiny of investigation was conducted at various levels in the department by superior officers and even on further investigation the recommendation is not going to change.


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