Section 173
CrpC
CrPC Section 173
Court which passes order on settlement between parties has the power to recall/set aside the order if terms are violated
Criminal Procedure Code, 1973 (2 of 1974) – Section 125 - Court which passes order on settlement between parties has the power to recall/set aside the order if terms are violated - Order passed by Family Court reviving the maintenance application of the wife under Section 125 Cr.P.C. by setting aside order passed on settlement is not hit by the embargo contained in Section 362 Cr.P.C. #2020 SCeJ 76
Court can restore the petition under Section 125 - When the appellant-husband did not honour its commitment under settlement, can the wife be left in lurch by not able to press for grant of maintenance on non-compliance by the appellant of the terms of settlement - The answer is obviously ‘No’ - Section 125 Cr.P.C. has to be interpreted in a manner as to advance justice and to protect a woman for whose benefit the provisions have been engrafted - Court adopted the Course which avoided injustice to the wife. [Para 31, 29]
Held, Section 125 Cr.P.C. is a social justice legislation which order for maintenance for wives, children and parents. Maintenance of wives, children and parents is a continuous obligation enforced. [Para 22]
Section 125 Cr.P.C. uses the expression used is “as the Magistrate from time to time direct”. The use of expression ‘from time to time’ has purpose and meaning. It clearly contemplates that with regard to order passed under Section 125(1) Cr.P.C., the Magistrate may have to exercise jurisdiction from time to time. Use of expression ‘from time to time’ in is exercise of jurisdiction of Magistrate in a particular case. Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd edition defines ‘time to time’ as follows: - “Time to time. As occasion arises” [Para 24]
The above Legislative Scheme indicates that Magistrate does not become functus officio after passing an order under Section 125 Cr.P.C., as and when occasion arises the Magistrate exercises the jurisdiction from time to time. By Section 125(5) Cr.P.C., Magistrate is expressly empowered to cancel an order passed under Section 125(1) Cr.P.C. on fulfilment of certain conditions. [Para 25]
Embargo of Section 362 is expressly relaxed in proceeding under Section 125 Cr.P.C.
At the time of considering the question, as to whether, charge is to be framed, or not, in a criminal case, instituted on Police report, the Court is not required to go into the merits of the case
Prevention of Corruption Act, 1988 (49 of 1988) Section 13(2) - Framing of charge - At the time of considering the question, as to whether, charge is to be framed, or not, in a criminal case, instituted on Police report, the Court is not required to go into the merits of the case - At that time, the Court is only required to sift the material i.e. report under Section 173 of the Code of Criminal Procedure, the documents enclosed thereof, as also the statements of the witnesses, recorded under Section 161 of the Code of Criminal Procedure, during the course of investigation to come to the conclusion, as to whether, a prima facie case for framing the charge was made out or not - Any document produced by the accused at the time of consideration of charge, and not relied upon by the prosecution, is not to be looked into, by the Court concerned - What is the effect of delay, in lodging the report, as also of recording the statements of the witnesses, after delay, is required to be seen, by the trial Court, at the time of final decision of the case - Criminal Procedure Code, 1974 (II of 1974) Section 173, 161. (2009)155 PLR 448
Duty bound to consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of Section 173 of the Code.
Criminal Procedure Code, 1973 (2 of 1974), Section 173 - The court of competent jurisdiction is duty bound to consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of Section 173 of the Code. This Rule is subject to only the following exceptions; (a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof; (b) Where an order is passed by the higher courts in exercise of its extra-ordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on 'fresh investigation' or 're-investigation' or any part of it be excluded, struck off the court record and be treated as non est.
No investigating agency is empowered to conduct a 'fresh', 'de novo' or 're-investigation'
Criminal Procedure Code, 1973 (2 of 1974), Section 173 - No investigating agency is empowered to conduct a 'fresh', 'de novo' or 're-investigation' in relation to the offence for which it has already filed a report in terms of Section 173 of the Code - It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate
Supplementary report has to be treated by the court in continuation
Criminal Procedure Code, 1973 (2 of 1974), Section 173 - The supplementary report has to be treated by the court in continuation of the primary report and the same provisions of law i.e sub-section (2) to sub-section (6) of Section 173 shall apply when the court deals with such report
Whether the empowered Magistrate has the jurisdiction to direct “further investigation” or “fresh investigation”.
Criminal Procedure Code, 1973 (2 of 1974), Section 173 - Whether the empowered Magistrate has the jurisdiction to direct “further investigation” or “fresh investigation”. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct “fresh” or “de novo” investigation - However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold - Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial - But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is filed to wipe out the report and its effects in law.
Powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3)
Criminal Procedure Code, 1973 (2 of 1974), Section 173(2) read with Section 173(8), 156(3) - Powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
1. The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.
3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three-Judge Bench and thus in conformity with the doctrine of precedent.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of propriety that the police has to seek permission of the court to continue “further investigation” and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.