Legal Advice

Investigating officer has converted the charge of attempt to murder into grievous hurt

Question: I have received three bullet injuries on my right shoulder, chest and collarbone. There is a medical report of those injuries but the investigating officer has converted the charge of attempt to murder into grevious hurt. He did so under political pressure. I have some eyewitnesses who are ready to record their statements. What should I do against the illegal act of investigating officer?

Advise

The investigating officer has no power to convert the charge of attempt to murder into grevious hurt if the victim has a medical evidence of injuries. This is a grave misconduct on the part of the investigating officer. He cannot ignore or refuse the medical report. Instead, he should collect the medical examination report and attach it to the case diary.

I think you still have the marks of bullet injuries on the particular parts of your body. Investigating officer cannot ignore or suppress this evidence. If he did so, you should take immediate action against him.

What to do when investigating officer has converted the charge

It is the duty of the investigating officer to collect all the evidence relating to the crime. He cannot ignore or overlook vital evidence such as the injuries sustained by the victim. You have received all the injuries on the vital parts of the body which can cause your death. Attempt to murder is an offence punishable under Section 307 of the Indian Penal Code.

Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine……………

Section 307 of the Indian Penal Code

The accused had the intention to cause your death. His intention is reflecting from the injuries he has caused on your body. Chest, shoulder, and collarbone are vital parts of the body. Firing of bullets on these parts is capable of causing death in the natural course. Therefore, it is a fit case of attempt to murder. 

File an application under section 156(3) crpc

First of all you should file an application to the Magistrate under Section 156(3) of the code of criminal procedure. You should demand from the court to call a status report of investigation from the investigating officer. The investigating officer will submit the case diary in the court. 

The Magistrate will examine the case diary. If the Investigating officer has converted the charge, which is originally alleged in FIR, the case diary will not have:

  • Medical report, 
  • Medical examination of victim, 
  • Recovery of blood stained earth from the place of occurrence,
  • Statements of eye witnesses etc.

If the Magistrate, upon perusal of the case diary, finds that the investigating officer has changed the line of investigation he can monitor the investigation. He can direct the investigating officer to collect that evidence and do the investigation on the line of attempt to murder.

Defective investigation

This is an example of improper and defective investigation. It violates the fundamental right of the victim. Victim is entitled to get a fair investigation from the state agency i.e. police officer.

Defective investigation tends to shake the faith reposed by the members of the society including the suspect/accused as well as Victim. The most effected would be suspect because all have to be presumed to be innocent till proved guilty and tainted investigation would curtail his freedoms i.e. life and liberty guaranteed under Article 21 of the Constitution of India.

Nirmal Singh Kahlon v. State of Punjab (2009) 1 SCC 441

The supreme court has held that the victim can approach the Magistrate under Section 156(3) crpc if the investigating officer is doing proper investigation. 

27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.

Sakri Vasu v. State of UP, (2008) 2 SCC 409

Remedy against improper investigation

The above judgments of the Supreme Court held that you have a fundamental right to get fair investigation. If the investigating officer has manipulated the investigation, then you can approach the Magistrate under Section 156(3) crpc. 

The Magistrate, however, has the power to monitor the investigation and ensure that the investigating officer does not frustrate the purpose of investigation. An attempt to convert the attempt to murder into grevious hurt will frustrate the very purpose of investigation. 

If investigating officer has converted the charge of attempt to murder into grevious hurt through the manipulation of evidence, it is your right to approach the Magistrate. You cannot directly approach the High Court under Section 482 crpc or under Article 226 of the Constitution of India.

You should file an application under Section 156(3) crpc as soon as possible. If the Magistrate does not take proper action then you can approach the High Court and file a writ under Article 226 of the Constitution.

Shivendra Pratap Singh

Advocate

High Court Lucknow