Manufacturing of evidence by investigating officer
Respected Sir/Madam, This is with reference to criminal case u/s sec341/323/427/504/114 of IPC I beg to state that the I/O of that case manufactured statements of the victims and prosecution witnesses u/s 161 of CrPC and submitted final report before the court and opined for acquittal of the accused persons from the case who have been surrendered before the court and took bail. Thereafter, the defacto complainant has been compelled to file 'protest petition' before the court and the court granted that petition and gave order for reinvestigation by a police officer other than that I/O. Accordingly, second I/O has taken statements of the victims and other independent witnesses u/s 161 of CrPC. But that I/O also did not bother to take correct statements of the victims and other witnesses from the prosecution side. He also distorted their statements and submitted charge sheet against one accused just as eyewash. That I/O has also opined for acquittal of other accused persons from the case for wand of evidence. Accordingly that I/O has submitted charge sheet u/s sec341/323/504 of IPC. The defacto complainant has again agitated before the court for improper investigation and prayed for an order for fresh investigation u/s 178(8) of CrPC, otherwise that complainant will be highly prejudiced and deprived of getting proper justice. The related hearing is pending. In the mean time may I get any reference of rulings of the apex court from your end which will support the application of the defacto complainant? It is needless to mention that your kind cooperation and help will be highly appreciated. With regards. Sincerely Yours, Animesh Sorcar
It needs to be mentioned here that the applicable section here will be S. 173(8) of the Code of Criminal Procedure, 1973 and not S. 178(8). There exists no such section in the above mentioned statute.
S. 173(8) of the CrPC gives right to the defacto complainant to appeal for a fresh investigation after the charge-sheet have been filed. However, the Magistrate has the final say whether fresh investigations can be started or not. However, as laid down in the A. Mohan v. State of Rep. (Madras HC, Dec, 2011), the Magistrate suo moto cannot take a call. He has to look into the reports filled by the officer in charge and if he is satisfied that the investigation was not proper, he can order for fresh investigation under the aforesaid section.
Although the granting of fresh investigation is dependent on the facts of a give case, there are Supreme Court judgments which is related to the applicability of the criminal revision. Some of the leading judgments are Rubabbudin Sheikh v. State of Gujarat, (2010) 2 SCC Cri (1006). Reeta Nag v. State of West Bengal, (2009) 13 SCR 276 and Vineet Narain v. UOI, 1996 SCC (2) 199.
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I agree with Arnab Ray. In addition, IO has to record what the witnesses have to say. How will you substantiate that IO has concocted the statement unless you are supported by the witnesses.
In protest petition request for issue of process based on witnesses of complainant only.
If you have documentary evidence then that should also be pointed out.
Last but not least file for sanction to prosecute the IO u/s 120, 166,201, 202, 203, 217, 218 of IPC.
You may also file Writ Petition to transfer investigation to another agency like CID, CBI.
Apart from this, you have to convince the Magistrate as to how the case is made out against the accused from the material produced by IO. If you could relate your complaint with the statments of the witnesses or report of IO, the Magistrate can issue process against the accused. Moreover, you can show to Magistrate that as to how the IO has neglected to take statements of concerned witnesses(if any) or the witnesses you named. Under these circumstances, you can be successful in obtaining either Process against accused or order of further investigation. Writ Petition under section 482 of IPC is last resort.
Once CS is filed , Ld Magistrate has to depend on facts already placed on record u/S 173(5) Crpc and decision can be based on this Facts.
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