Himachal Pradesh High Court: Magistrate Can Direct Further Investigation U/S Section 173(8) Crpc Even After Taking Cognizance

Himachal Pradesh High Court held that when the court finds that a proper investigation has not been conducted, the Magistrate can exercise the power under Section 173(8) of the CrPC suo motu to direct the police to conduct further investigation, even after taking cognizance of the case.Justice Sushil Kukreja: “Even after taking cognizance, power under Section 173 (8) Cr. P. C. can be exercised by the Magistrate suo moto to direct the police to conduct further investigation”. Background Facts:The case arose from an FIR registered on July 1, 2002, based on a complaint filed by Lal Chand, a clerk at the H.P. Milk Federation, Mandi Unit at Chakkar. It was alleged that between 1994 and 2001, some officers of the Milk Federation, including the petitioner Dharam Chand, misappropriated milk during its transportation from the Milk Chilling Centre at Kataula to the Chakkar Unit.The petitioner, who was then In-charge of Milk Chilling Centre Kataula, was responsible for collecting milk from various Co-operative Societies. The milk was transported to the Federation's Chakkar Unit in Mandi, where the quantity and quality were recorded. An internal inquiry found that during the transport, part of the milk was being sold en route and the proceeds were neither recorded nor deposited in the government treasury. For various financial years from 1994 to 2001, discrepancies were noted, with a total shortfall of approximately 52,776 liters of milk worth ₹5,56,656. The inquiry concluded that this amount had been misappropriated.Based on these findings, the police registered an FIR against the petitioner and other officials for the offences of criminal breach of trust, cheating, forgery of valuable security and criminal conspiracy under the Indian Penal Code. They were also accused of criminal misconduct by a public servant under the Prevention of Corruption Act, 1988.During the trial, the Petitioner filed an application seeking discharge from the alleged offences. He contended that, upon examining the police report, no grounds were made out to proceed against him. He highlighted that he had retired from service in 2006, whereas the police report was submitted in 2011, five years after his retirement. He further submitted that the documents annexed with the police report did not disclose any prima facie case against him and that the FIR had been registered without any substantial evidence. He claimed that the witness statements did not indicate that he had committed any offence. The trial court, however, rejected the application and directed the charge-sheet to be returned to the police for further investigation on certain specific points outlined in its order. Feeling aggrieved and dissatisfied with this order, the petitioner approached the High Court by filing the revision petition.Contentions of the Petitioner:The petitioner contended that he had been facing trial since 2002, despite there being no substantive fault on his part. He pointed out that the matter remained under investigation for nearly a decade, from 2002 to 2011, and yet no prima facie case has been established against the petitioner. It was further contended that all bills concerning the milk transactions were duly verified by competent authorities at various levels, and even the audit department did not uncover any instances of embezzlement. In such circumstances, the petitioner had no direct or indirect role in any misappropriation of funds. He emphasized that his role was limited to verifying the bills at a preliminary stage, after which the documents were approved by higher officials. The petitioner further challenged the Trial court's order directing further investigation. He argued that once cognizance of the offence had been taken, the court did not have the authority to suo motu invoke Section 173(8) of the Code of Criminal Procedure to direct the police to conduct further inquiry. Findings: In Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another, the Supreme Court held that “there is no valid justification for limiting a Magistrate's power to order further investigation once process has been issued or the accused has appeared. The Magistrate's powers under Sections 156(3), 156(1), 2(h), and 173(8) CrPC do not cease once the accused appears but remain available until the trial formally begins”. The Court remarked that even after taking cognizance, power under Section 173 (8) Cr. P. C. can be exercised by the Magistrate suo moto to direct the police to conduct further investigation. Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received. Upon examining the records, the High Court found that the investigation was inadequate and failed to address several crucial aspects of the alleged misappropriation. It concluded...

Himachal Pradesh High Court: Magistrate Can Direct Further Investigation U/S Section 173(8) Crpc Even After Taking Cognizance

Mehak Aggarwal

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