Vinod Prasad, J. - (1.) BOTH-Criminal Miscellaneous Application No. 16591 of 2005 filed by Ajay Kumar and Criminal Miscellaneous Application No. 335 of 2006 filed by Vinay Kumar, Aditya Kumar, Lalla Babu, Radhey Lal Tiwary and Siya Ram, under Section 482 Cr.P.C. have the common prayer viz. to quash the charge-sheet submitted by C.B.C.I.D. being C.B. No. 609 of 2002 (Crime No. 158 of 2002), under Sections 147, 148, 149, 307, 302 I.P.C., P.S. Thathiya, District Kannauj, pending before C.J.M. Kannauj and for stay of further proceeding of the lower Court in pursuance of the aforesaid charge-sheet hence both the above Criminal Miscellaneous Applications were clubbed together and are being disposed off by this single common order which is to be taken to be an order passed in both the above applications.
(2.) THE preceeding facts necessary for adjudication of both the above applications are briefly stated here. Neelesh Kumar son of Bhagwan Das resident of Rikkhapurwa, P.S. Thathiya, District Kannauj lodged a F.I.R. on 7-10-2002 at 2.45 p.m. at P.S. Thathiya, District Kannauj, under Sections 147, 148, 149, 307, 302 I.P.C. vide Crime No. 158 of 2002 with the allegations that the informant alongwith his father Bhagwan Das aged about 55 years, mother Smt. Lajjawati aged about 50 years, brother Awadesh Kumar, Rajesh Kumar, Sarvesh Kumar and cousin brother Bhagirath Kumar and Amit Kumar were sitting at the door of their aforesaid cousin brothers Bhagirath Kumar and Amit Kumar then, at 2.00 p.m. that day (7-10-2002) the accused Vinay Kumar, Ajay Kumar, Aditya Kumar all sons of Lalla Babu @ Ram Gopal Awasthi, accompanied by their father Lalla Babu @ Ram Gopal, Radhey Lal Tiwari and Siya Ram driver came to that place armed with rifle, gun and countrymade pistols and opened indiscriminate firing on the informant and his family members. Accused Ajay was armed with rifle. As a result of firing Bhagwan Das father of the informant sustained bullet injury and died on the spot. Smt. Lajjawati, mother of the informant also sustained bullet injuries. Carrying his injured mother to the police station the informant lodged the F.I.R. at the police station Thathiya which was registered as crime number and offences above mentioned. THE mother of the informant also succumbed to the injury subsequently. THE registration of FIR was followed by investigation by S.O. K.R. Bhartiya of P.S. Thathiya who conducted the investigation till 27-10-2002. How ever on 28-10-2002 the investigation was transferred by Superintendent of Police Kannauj to Santosh Kumar, S.O. Police Station Tirwa as it transpires that the named accused persons were not arrested by that date by the then investigating officer K.R. Bhartiya. Subsequently, it transpires that the aforesaid investigation was retransferred by the Government to CB CID vide fax No. 8723 B/5-pu-32002-11531 V/2002 dated 18-11-2005 sent by Joint Secretary Government of U.P. THE investigation was transferred to C.B.C.I.D. at the behest of Smt. Ram Kishori wife of Lalla Babu accused on her application dated 19-10-2002 addressed to THE Chief Minister, U.P. C.B.C.I.D. hence forth conducted the investigation and submitted a charge-sheet in the Court on 31-8- 2005 vide charge-sheet No. 16 of 2005 for offences under Sections 147, 148, 149, 302, 307 I.P.C. against the accused applicants Aditya Kumar, Vinay Kumar, Ajay Kumar, Siya Ram, Radhey Lal Tiwari and Lalla Babu @ Ram Gopal Awashti. First of all accused Ajay Kumar (applicant in Criminal Miscellaneous Application No. 16591 of 2005) approached this Court under its inherent jurisdiction under Section 482 Cr.P.C. for quashing of the aforesaid charge-sheet in which this Court on 14-11-2005 passed an interim order stopping coercive steps against the applicant while issuing notice to the opposite party No. 2 and granting time to him to file a counter-affidavit. Armed with the aforesaid order other accused persons Vinay Kumar, Aditya Kumar, Lalla Babu @ Ram Gopal Awasthi, Radhey Lal Tiwari and Siya Ram also filed Criminal Miscellaneous Application No. 335 of 2006, but no interim order was passed in their favour. However both the above applications were ordered to be connected on 23-1-2006 by me and both the applications are being disposed off by this common order. I have heard Sri Dharmendra Singhal, learned Counsel for the applicants in both the cases and learned A.G.A. in opposition at a great length and have gone through the record of both the applications. It is contended by learned Counsel for the applicants that initially the investigation in the crime was conducted by K.R. Bhartiya, S.O. P.S. Thathiya, District Kannauj and subsequently it was conducted by Santosh Kumar S.O. Police station Tirwa who had completed all the investigation but for filing the charge-sheet. He further contended that meanwhile the investigation was transferred to C.B.C.I.D. On 18-11-2002 by the State Government and the Inspector C.B.C.I.D. conducted a re-investigation/de-novo investigation, which is not permissible in law in view of Section 173 (8) Cr.P.C. and therefore, the charge- sheet submitted by the C.B.C.I.D. in the Court of C.J.M. Kannauj is absolutely illegal and deserves to be quashed as the C.B.C.I.D. had no power to make reinvestigation. The submission advanced is that Section 173(8) Cr.P.C. prohibits re-investigation. It only sanctions further investigation. Concluding the submission learned Counsel for the applicants contended that the charge-sheet submitted in pursuance of re-investigation/de novo investigation does not have the sanction of law and deserves to be quashed.
(3.) LEARNED A.G.A. on the contrary contended that Section 173 (8) Cr.P.C. does not engulf within its purview an investigation stage when the charge-sheet has not been submitted in the Court and consequently the applications is merit less and deserves to be dismissed as before the C.B.C.I.D. the local police had not submitted any charge-sheet in the Court. For considering the rival submissions a brief legislative history of Section 173 Cr.P.C. is necessitated. Present Section 173 Cr.P.C. is preceeded by the same Section 173 Cr.P.C. of the Code of 1898 (Old Code). It was felt by the legislators that hindrance was being caused to the investigating agency on discovery of new or additional material in the crime for offences where it had already submitted its report-charge-sheet to the Magistrate in making further investigation. Because of the aforesaid felt difficulty The Law Commission in its 41st report vide paras 14.21 to 14.23 at pages 78 and 79 of its report recommended for arming the police with the power to make further investigation on discovery of the new/ additional material after submission of it's report in the Court. The said recommendation of The Law Commission is reproduced below: "A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused, it should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused.";