Case Note & Summary
The petitioners, along with one Abdul Aahad, were accused in Crime No. 3065/2009 registered at Murtizapur Police Station for offences under the Unlawful Activities (Prevention) Act, 1967. They were arrested during investigation. The Investigating Officer, after investigation, found no sufficient evidence against the petitioners and Abdul Aahad, and submitted an application under Section 169 of the Code of Criminal Procedure, 1973 (CrPC) for their release. The learned Judicial Magistrate, First Class, Murtizapur, rejected the application and directed the Investigating Officer to carry out further investigation under Section 156(3) CrPC. The Investigating Officer complied and again submitted an application under Section 169 CrPC. The Magistrate again rejected it and ordered further investigation. The petitioners then filed a Criminal Revision Application No. 62/2010 before the Additional Sessions Judge, which was dismissed. Aggrieved, the petitioners filed the present Criminal Writ Petition before the High Court. The High Court examined the scope of Section 169 CrPC and held that when the police form an opinion that there is no sufficient evidence against the accused, the Magistrate cannot refuse to release them and order further investigation under Section 156(3) CrPC. The court allowed the petition, set aside the orders of the Magistrate and the Sessions Judge, and directed the release of the petitioners.
Headnote
A) Criminal Procedure - Release of Accused - Section 169 CrPC - Magistrate's Power to Order Further Investigation - The police submitted an application under Section 169 CrPC for release of accused due to lack of sufficient evidence. The Magistrate rejected the application and directed further investigation under Section 156(3) CrPC. The High Court held that once the police form an opinion that there is no sufficient evidence, the Magistrate cannot refuse to release the accused and order further investigation under Section 156(3) CrPC. The Magistrate's order was set aside and the accused were directed to be released. (Paras 1-6)
Issue of Consideration
Whether the Magistrate can refuse to release the accused under Section 169 CrPC and order further investigation under Section 156(3) CrPC after the police have submitted a report that there is no sufficient evidence against the accused.
Final Decision
The High Court allowed the writ petition, set aside the orders of the Magistrate and the Additional Sessions Judge, and directed the release of the petitioners.
Law Points
- Section 169 CrPC
- Section 156(3) CrPC
- Magistrate's power to order further investigation
- Release of accused when no sufficient evidence
Case Details
2012 LawText (BOM) (10) 170
Criminal Writ Petition No. 231/2012
Mr. S. Zia Qazi for petitioners, Mr. S.S. Doiphode, APP for respondent
Mohd. Rafique s/o Abdul Rahman, Mohd. Siddique s/o Abdul Wahab, Mohd. Harun s/o Ghayasuddin, Shaikh Mahmood @ Munna Bhai s/o Shaikh Lal
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Nature of Litigation
Criminal writ petition challenging the order of the Additional Sessions Judge dismissing revision against Magistrate's order refusing to release accused under Section 169 CrPC and directing further investigation.
Remedy Sought
Petitioners sought quashing of the orders of the Magistrate and Sessions Judge and direction for their release under Section 169 CrPC.
Filing Reason
The Magistrate rejected the police application under Section 169 CrPC for release of petitioners due to lack of sufficient evidence and ordered further investigation under Section 156(3) CrPC.
Previous Decisions
The Judicial Magistrate, First Class, Murtizapur rejected the application under Section 169 CrPC and ordered further investigation. The Additional Sessions Judge dismissed the Criminal Revision Application No. 62/2010 filed by the petitioners.
Issues
Whether the Magistrate can refuse to release the accused under Section 169 CrPC and order further investigation under Section 156(3) CrPC after the police have submitted a report that there is no sufficient evidence against the accused.
Submissions/Arguments
Petitioners argued that once the police found no sufficient evidence, the Magistrate was bound to release them under Section 169 CrPC and could not order further investigation under Section 156(3) CrPC.
Respondent State argued in support of the Magistrate's order.
Ratio Decidendi
Under Section 169 CrPC, when the police form an opinion that there is no sufficient evidence against the accused, the Magistrate cannot refuse to release them and order further investigation under Section 156(3) CrPC. The Magistrate's power under Section 156(3) is to order investigation before the police form an opinion, not after.
Judgment Excerpts
The learned Magistrate rejected the Application and directed the Investigating Officer to carry out further investigation.
The Investigating Officer carried out further investigation as ordered by the Magistrate and again submitted an Application u/s. 169 Cr.P.C.
The learned Magistrate again rejected the Application and directed further investigation.
The learned Additional Sessions Judge dismissed the Criminal Revision Application.
In my considered opinion, the learned Magistrate was not justified in rejecting the application under Section 169 Cr.P.C. and ordering further investigation under Section 156(3) Cr.P.C.
Procedural History
The police filed an application under Section 169 CrPC for release of petitioners. The Magistrate rejected it and ordered further investigation under Section 156(3) CrPC. The police complied and again filed an application under Section 169 CrPC, which was again rejected. The petitioners filed Criminal Revision Application No. 62/2010 before the Additional Sessions Judge, which was dismissed. The petitioners then filed Criminal Writ Petition No. 231/2012 before the High Court.
Acts & Sections
- Code of Criminal Procedure, 1973: 169, 156(3)
- Unlawful Activities (Prevention) Act, 1967:
