Madhuchanda Saha vs Mamata Saha And Ors.

[1] This petition is filed by the original complainant. She has challenged an order dated 16th November, 2019 passed by the learned Judicial Magistrate 1st Class, Agartala, rejecting her application for directing the police to carry out further investigation.

[2] Brief facts are as under :

The petitioner had filed a complaint against the respondents No.1 to 6 on 13th November, 2016 before the West Agartala Women Police Station alleging commission of offences punishable under Sections 448, 426, 323 read with Section 120B of IPC. The police filed a charge sheet upon completion of the investigation. The learned Magistrate took cognizance and I am told that charges were also framed and two witnesses were examined, at which stage, the petitioner moved an application dated 6th June, 2019 before the learned Magistrate and prayed that further investigation may be ordered which should be carried out by an impartial and independent agency. This application was dismissed by the impugned order by the learned Judge recording that in view of the judgment of the Supreme Court in case of Atul Rao Vs. State of Karnataka and Anr. reported in AIR 2017 SC 4021, he does not have power to order further investigation. At this stage, the petitioner filed this petition.

[3] Appearing for the petitioner learned counsel, Ms. Piyali Chakraborty, submitted that the view taken by the learned Judge is erroneous. The decision in case of Atul Rao(supra) has been overruled by a three-Judge Bench in case of Vinubhai Haribhai Malaviya and Ors Vs. State of Gujarat and Anr. reported in AIR 2019 SC 5233. She submitted that in the present case the police had seized the CCTV footage which clearly showed the manner in which the alleged incident took place. However such footage was not sent for forensic analysis and in absence of which such electronic evidence would be open to criticism of being not free from tampering.

[4] On the other hand, learned counsel, Mr. Harekrishna Bhowmik for the respondents No.1 to 6, opposed the petition contending that even by virtue of the decision of Supreme Court in case of Vinubhai Haribhai Malaviya(supra), the power of the Magistrate to order further investigation would stop once the charges are framed at which stage trial can be stated to have commenced. In the present case, the charges were framed and two witnesses were also examined before the petitioner filed the application for further investigation.

[5] Learned Additional Public Prosecutor, Mr. Samrat Ghosh, submitted that appropriate order may be passed in the interest of fair investigation.

[6] The order passed by the learned Magistrate is clearly erroneous since it proceeds on the basis of the decision of Supreme Court in case of Atul Rao(supra) which has been overruled by the later 3 Judge Bench judgment in case of Vinubhai Haribhai Malaviya and Ors. Vs. State of Gujarat and Anr. In the decision in case of Vinubhai Haribhai Malaviya, the Court had made following observations :

"38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the Cr.PC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.

We now come to certain other judgments that were cited before us. King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18, was strongly relied upon by Shri Basant for the proposition that unlike superior Courts, Magistrates did not possess any inherent power under the Cr.P.C. Since we have grounded the power of the Magistrate to order further investigation until charges are framed under Section 156(3) read with Section 173(8) of the Cr.P.C, no question as to a Magistrate exercising any inherent power under the Cr.P.C would arise in this case."

[7] It is true that in this decision the Supreme Court while holding that once the Magistrate taking cognizance in a criminal case his power to order further investigation does not cease, it has been observed that he would continue to enjoy such powers till the commencement of the trial. The term commencement of the trial has been explained as framing of the charge. However, the question is, whether the later portion of these observations namely, that the power of the Magistrate to order further investigation would continue till the commencement of the trial can also be seen as a ratio of the decision. This issue, may require further examination and can be gone into in an appropriate case. For the present case, it is undisputable that the High Court as a constitutional Court and by virtue of Section 482 of Cr.P.C enjoys such power to order further investigation at any stage of the trial. Taking recourse to such powers, I find that sending the CCTV footage for forensic analysis for its authenticity and to ascertain whether it is tampered or tamperproof it would be necessary to order limited further investigation. I am conscious that the prosecution has already examined two witnesses, however, bringing on record proof as to truthfulness or otherwise of the CCTV footage would not be prejudicial to the defendants.

[8] Under the circumstances, it is provided that the concerned investigating officer shall send the recovered CCTV footage for forensic analysis to FSL for its certification whether it is tampered or tamperproof and produce the certificate before the Court as soon as it is received. After this report from FSL is received, if the accused require further cross- examination of the witnesses who were already examined, it would be open for them to apply to the learned Magistrate for recalling such witnesses for such purpose.

With these observations and directions, petition is disposed of. Pending application(s), if any, also stands disposed of.