Mohan Singh Dosad and Another vs State of Uttaranchal

Prafulla C. Pant, J.—This is Restoration Application MCRC No. 194 of 2010, for restoration of Criminal Misc. Application (C-482) No. 338 of 2003, which was dismissed for non-prosecution on 27.03.2010.

Heard and perused the affidavit accompanying the application, wherein absence has sufficiently been explained for the absence on the date fixed.

Therefore, in view of the principle of law laid down in Madhumilan Syntex Limited and Ors. v. Union of India and Anr. AIR 2007 S.C.W. 1971, the restoration application is allowed, on the condition that the Petitioner shall argue the petition u/s 482 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C), today itself. The application is allowed on above condition and Criminal Misc. Application (C-482) No. 338 of 2003, is restored to its original number.

Heard learned Counsel for the parties on the petition.

Learned Counsel for the Petitioners submitted that on the first information report No. 04 of 2000, lodged against the Petitioners Mohan Singh, Krishna Singh and Chandra Singh, the Investigating Officer (Patwari Kausani) filed final report on 24.11.2000. Said report was sent to the court of the Chief Judicial Magistrate, Bageshwar, through Assistant Prosecuting Officer. It is pleaded on behalf of the Petitioners that Asstt. Prosecuting Officer, at his end, sent back the final report and directed the Investigating Officer to file the charge sheet. Consequently, the Investigating Officer has filed the impugned charge sheet (Annexure-6 to the petition) against the Petitioners in respect of offences punishable u/s 323, 504 of I.P.C. It is pertinent to mention here what has been mentioned in the charge sheet by the Investigating Officer. The same reads as under:

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10. 2000 ? ? ? ? ? ? ? ? ? ? ? ?. ?. ? ? . 22 . 11 . 2001 ? ? ? 323 / 504 ? ? ? ? ? |

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The aforesaid endorsement made by the Investigating Officer does not disclose whether new material was collected or not by the Investigating Officer before filing the charge sheet. Apart from this, in view of principle of law laid down in R. Sarala v. T.S. Velu and Ors. 2000 Cri.L.J. 2453 (S.C.), the Apex court has held that investigation and prosecution are two different facets in the administration of criminal justice. The role of Public Prosecutor is inside the Court, whereas investigation is outside the Court. Normally the role of Public Prosecutor commences after investigating agency presents the case in the Court on culmination of investigation. The Apex court has further taken the view that involvement of the Public Prosecutor in investigation is unjudicious. In Para 10 of the aforesaid judgment, the Apex court has observed:

Section 173(1) casts an obligation for completing the investigation without unnecessary delay and Sub-section (2) enjoins on the officer-in-charge of the police station to forward to the Magistrate a report in the form prescribed by the State Government, on completion of such investigation. The aforesaid power of the officer-in-charge of the police station is subjected only to the supervision of superior police officers in rank as envisaged in Section 36 of the Code. There is no stage during which the investigating Officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the aforesaid superior police officer in rank.

In view of the above observation, filing of impugned charge sheet, merely on the asking of the Public Prosecutor, is erroneous in law and such charge sheet is liable to be quashed.

Therefore, the petition u/s 482 of Code of Criminal Procedure is allowed. The proceedings of impugned Criminal Case No. 441 of 2003, State v. Mohan Singh and Anr. arisen out of charge sheet No. 01 of 2001, relating to offences punishable u/s 323, 504 of I.P.C., pending in the court of Chief Judicial Magistrate, Bageshwar, are hereby quashed.