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2002 DIGILAW 124 (JK)

State v. Prithvi Raj (Major) & 11 Ors.

2002-05-02

S.K.GUPTA

body2002
1. I have heard Mr. B.S. Manhas, learned senior Additional Advocate General, as well as Mr. Harbans Lal, learned advocate for respondents, in extenso. By means of this reference, learned Additional Sessions Judge has recommended the setting aside of the order dated 01.03.2000 of re-investigation on the application of the complainant for the following reasons : i) This order has been passed when the trial had already commenced before the learned Sessions Judge Bhaderwah and seven witnesses had been examined there. ii) Even if orders U/S 173 (8) Cr.P.C. had to be passed after the case had been committed to the learned Sessions Judge Bhaderwah the same could have been passed only by the learned Sessions Judge Bhaderwah. iii) Request for setting aside the said order impugned has now been made by the State in this Revision petition which had expressed no objection before the learned C.J.M. Doda at the time of disposal of the application on which the order impugned has been passed was stated by the learned APR that it was because of the fact that prosecution at that time was not knowing that the learned Judicial Magistrate Thathri has committed the case to the Court of Sessions at Bhaderwah. This recommendation for setting aside the order impugned is also made in view of the fact that in case such a situation is allowed to continue where the Court of Sessions while holding the trial and engaged in the conclusion of the trial is not permitted to go ahead with the trial because some Magistrate at such somewhere in the District who is absolutely not seized of the matter passes an order which has the implication of staying the sessions trial. Facts relevant for the disposal of this reference put tersely are that, on the conclusion of investigation in case under FIR No. 212/99 for offences under Sections 302/343/109/34 RPC registered with the Police Station, Bhaderwah, challan came to be presented against seven Army personnel and three civilians, namely, Mst. Muneera Inder Singh and Manohar Lal before Judicial Magistrate, Thathri. The case, however, stood committed by the Judicial Magistrate, Thathri for offence being exclusively triable by the Court of Sessions, vide his order dated 28.12.1999 in terms of Section 205-D Cr. Muneera Inder Singh and Manohar Lal before Judicial Magistrate, Thathri. The case, however, stood committed by the Judicial Magistrate, Thathri for offence being exclusively triable by the Court of Sessions, vide his order dated 28.12.1999 in terms of Section 205-D Cr. P.C. The learned Sessions Judge, Bhaderwah, after hearing the parties and scanning the material assembled on record framed the charge against the accused to which he pleaded not guilty. Thereupon, the learned Sessions Judge proceeded with the trial for recording the prosecution evidence. As many as seven witnesses produced by the prosecution were recorded by the learned Session Judge, when informed by public prosecutor about the order of re-investigation formulated by Chief Judicial Magistrate, Doda in the case, who assailed the legality and propriety of the order of re-investigation formulated by Chief Judicial Magistrate, Doda. A Revision came to be preferred before the learned Additional District Judge, Doda to whom the case later on stood assigned by the learned Sessions Judge, Bhaderwah. It is in this Revision that reference made by Additional District Judge, Doda for recommending the setting aside of the order impugned under Revision before him. 2. It may be pointed out at the first flush that a peep into a little grey area of the criminal law has become necessituous in this reference, as has been called upon to decide as to whether an order of re-investigation can be made by Chief Judicial Magistrate in a case in which the Sessions Judge, after committal of the case, framed the charge against the accused, proceeded and record the evidence of the witnesses produced in sustenance of the charge by the prosecution. However, power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation, the power of the Court to direct the police to conduct further investigation cannot have any inhibition. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation, the power of the Court to direct the police to conduct further investigation cannot have any inhibition. In other words, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light, notwithstanding that the Court has taken cognizance of the offence upon a police report submitted under section 173 of the Code of Criminal Procedure. Practice, convenience and preponderance of authority, permitted repeated investigation on discovery of fresh facts. It, therefore, follows that such a power is available to police after submission of charge sheet, is no longer a debatable question in view of sub-section 8 of Section 173 (in Chapter XIV information to the police and their powers to investigate) of the Code of Criminal Procedure, 1989 (hereafter referred to as the "Act") 3. The sole question that calls for determination in this reference is, whether a Judicial Magistrate can pass an order under Section 173(8) Cr. P.C. in a case after the case is committed by another Magistrate to the Court of Sessions where, after the frame of the charge, the trial is commenced and some witness have also been recorded. There having been no direct authority on this question brought to my notice during arguments, it is required to be examined as a matter of first principle, with the assistance of some related decisions of the Apex Court and various High Courts on the issue at hand. It is immaterial, in such circumstances, as to whether order of re-investigation is passed by a Judicial Magistrate First Class or a Chief Judicial Magistrate having not committed the case to the Court of the Sessions, in the discharge of their judicial functions. There remains nothing t* be dealt with the case, after it is committed being exclusively to be triable by the Sessions Court, by the Judicial Magistrate or the Chief Judicial Magistrate, and order reinvestigation in terms of Section 173(8) Cr.P.C. In this case, the order of re-investigation has been passed by the Chief Judicial Magistrate, when after the trial commenced before the learned Sessions Judge and the evidence of witnesses have been recorded. The Chief Judicial Magistrate has transgressed his jurisdiction and the order passed by him on 1-3-2000 in exercise of powers under Section 173(8) Cr. P.C. is legally lacunic and is without jurisdiction. That apart, if such practice is allowed and the Judicial Officers pass the order in casual and cavillier manner without application of mind and without anticipating its serious reprecussions, it would result into judicial indiscipline and put the interest of administration of justice to jeopardy. 4. Consequently, the reference is accepted and the order, passed on 1-3-2000 by Chief Judicial Magistrate, impugned in Revision before Additional District Judge, Doda by Judicial Magistrate, is quashed and set aside in declaring to the patently illegal and without jurisdiction. Record of the file shall be remitted back to the Trial Court forthwith where the parties through their counsel are directed to cause appearance on 27th May, 2002.