Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 370 (HP)

STATE OF H. P. v. SANJAY GUPTA

2003-12-12

V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J. (Oral) - On 27th February. 2003 final report in terms of Section 173(2) of the Code of Criminal Procedure was filed. In the language of the Investigating Agency, in this final report it was concluded that the offences were "untraced". It also inter, alia, was mentioned in this final report that sanction for prosecution of the two accused persons was also not given Later on, it had transpired and it was revealed that this assertion was factually incorrect because no competent authority had refused the sanction. Be that as it may, on 17th March, 2003, in terms of Section 173(8) of the Code of Criminal Procedure, a request was made to the Court by and on behalf of the Investigating Agency that the State be permitted to reinvestigate the matter. Various orders were passed by the Court on 17th March, 2003, 24th March, 2003, 25th March, 2003 and finally on 29th March, 2003. In the order that was passed on 29th March, 2003, the learned Court below made the following observations:- "I am of the view that the subsequent-application filed by Sh. Vinod Kumar, Deputy Superintendent of Police (Vigilance), Anti-Corruption Zone, Shimla to conduct further investigation, has not been filed in the form prescribed and provisions of sub-sections (2) to 96) have not been followed. I am of the view that word shall has been mentioned under Section 173(8) and word shall is mandatory in nature and not directory in nature. Therefore, prosecution is directed to file the application under Section 173(8) strictly as per prescribed form and to send the further repot regarding such evidence in the form prescribed and to follow the provisions of sub-sections (2) to (6) while filing the petition under Section 173(8) Cr.P.C. The prosecution is also directed to strictly follow the procedure as mentioned under Section 173(8) Cr.P.C. The report under Section 173(8)Cr.P.C. strictly as per procedure be filed on dated 5.4.2003; Be listed on dated 5.4.2003A 2. The learned court below repeatedly has referred to the word "shall" as has been used in sub-section (8) of Section 173 of the Code, but despite repeated queries put by me to the learned Counsel for the parties, and otherwise also, I have not been able to gauge the relevance or the importance .of the word "shall" and I find that perhaps the learned court below unnecessarily dwelt upon the word "shall", totally out of context as far as the prayer of the State for re-investigation of the case was concerned. Similarly, I have failed to appreciate the rationale, logic or the reasoning in the Order dated 29th March, 2003 as to how and in what manner was the State required to comply with the provisions of sub-sections (2) to (6) of Section 173 of the Code. Also, I have not been shown any "form" as might have been prescribed for filing an application under sub-section (8) of Section 173 of the Code. 3. A simple request of the Investigating Agency for permission to re-investigate the case in terms of Section 173(8) of the Code has unnecessarily been dragged on, time and again, and this unnecessary postponement of the consideration of the request has resulted in the State filing the present Revision in this Court against the order dated 29th March, 2003. Actually I wish to go as far as to say that in considering the aforesaid request of the State for- re-investigation, the learned court below wrongly issued notices to the respondents-accused persons because it is the admitted legal position that at that stage of the investigation they had no right of being heard, nor of being issued any notices from the Court. 4. Under sub-section (8) of Section 173 of the Code, the State has the power to re-investigate. That was the only request the State was making. . In my considered opinion, the learned Court below should have straightaway allowed the application filed by the Investigating Agency. Once the re-investigation is done and a fresh report under Section 173(2) is filed, how would the Court proceed thereafter is a matter which cannot presently fall for consideration nor did it fall for the consideration of the Court below at the relevant time. 5. Mr. Once the re-investigation is done and a fresh report under Section 173(2) is filed, how would the Court proceed thereafter is a matter which cannot presently fall for consideration nor did it fall for the consideration of the Court below at the relevant time. 5. Mr. Bisht, learned Deputy Advocate General, submits that for enabling the State to re-investigate the matter certain documents which were filed by the State along with the report originally filed under Section 173(2) of the Code might be required. 6. Based on the aforesaid discussion, I allow this petition and by setting aside the impugned order passed by the learned Court below on 29th March, 2003 hold that the State is at liberty to re-investigate the matter because the State has the power to do so in terms of Section 173(8) of the Code even though the final report had already stood filed before the concerned Court in terms of Section 173(2) of the Code. Naturally after the re-investigation is complete, the State would file yet another report in the concerned Court. If for the purposes of re-investigation the State needs any-particular documents which it might have filed along with the report originally filed under Section 173(2) of the Code, it shall be open to the State to apply to the Court for return of such documents, by specifically giving the details and material particulars of those documents. On this being done, the learned Court below shall return these documents to the State but by keeping with itself the photocopies of such documents so as to ensure that the documents are not interpolated by any one after they are removed from the custody of the Court. The substitution of the documents removed from the custody of the Court by their photocopies would be a step to ensure that no prejudice is caused to the accused persons ultimately, since no one would be allowed to complain later on that in the process of re-investigation the Investigating Agency had interpolated the documents. This much the Court below will certainly ensure before it parts with the custody of the documents at the request of the Investigating Agency. 7. The petition is allowed. No order as to costs. The record of the Court below be sent back immediately and forthwith. Cr.M.P. No. 244/2003 8. Dismissed as not pressed.