Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 369 (HP)

STATE OF H. P. v. MEHAR SINGH

2004-12-31

V.K.GUPTA

body2004
JUDGMENT V.K. Gupta, CJ. (Oral): In this revision petition the State has challenged the order dated 4th December, 2004 passed by the learned Special Judge, Chamba in case C.C. No. 2 of 2002 dismissing the States application for re-investigation of the case filed under Section 173(8) of the code of Criminal Procedure. 2. After hearing the detailed arguments of Mr. Mattewal, learned Senior Counsel appearing for the State, I feel that the order under challenge in this petition does not suffer from any illegality, irregularity or infirmity. Apparently the application for permission to re-investigate the matter filed in terms of Section 173(8) of the Code of Criminal Procedure has been made (as has been also held by the learned trial Court) either with a view to delay the progress in the prosecution case or perhaps with a view to help the accused persons. I am saying so because by a careful perusal of the application itself, I found that in the application the State has not spelt out or disclosed as to which factual aspects of the matter require re-investigation by the State. In the garb of re-investigation all that the State has been agitating in the application is about the consideration or reconsideration of the judgment passed by the Division Bench of this Court in CWP No. 1732 of 1995, the Reply filed by the State in the aforesaid writ petition as well as the reply filed by the state or the private individuals in Civil Suit No. 42 of 1997 before the Court of learned Sub Judge, Dalhousie. Para 2 of the application being apposite, giving an indication of the States mind, is reproduced hereunder for ready reference It reads thus:- "That the facts reveal that the Revenue Department of State of H.P. had filed a reply in C.W.P. No. 1732/1995 titled as Kuldeep Singh v. State of H.P. earlier and also in the Civil Suit titled as Rakesh Pathania v. Brijinder Singh pending in the Court of Id. Sub Judge, Dalhousie and both these replies are consistent The Honble Supreme Court of H.P. while relying upon the reply filed by the State of H.P. had accepted the stand taken by the respondent/State of H.P. as per the judgment dated 26.7.1996. The stand of the State Government was based upon the Revenue Records which is in existence even now. Sub Judge, Dalhousie and both these replies are consistent The Honble Supreme Court of H.P. while relying upon the reply filed by the State of H.P. had accepted the stand taken by the respondent/State of H.P. as per the judgment dated 26.7.1996. The stand of the State Government was based upon the Revenue Records which is in existence even now. Whereas, instant criminal case was registered subsequently i.e. in the year of 2001, without even taking into consideration the earlier replies and one filed by the State Government in C.W.P. No. 1732/1995 and another in Civil Suit No. 42/97, giving entirely different version. This conflict cannot be resolved unless the matter is further investigated and correctness of the facts is ascertained." 3. Repeatedly, the State has been taking the stand that it had to clarify some "conflict" that the State thought existed between the States version as might have been projected in the aforesaid Division Bench judgment of this Court in CWP No. 1732 of 1995 or as might have been projected in the replies filed by the State in the aforesaid writ petition or in the aforesaid suit and some imaginary or imagined conflict which the State thought was in existence vis-a-vis the prosecution case in the aforesaid criminal trial. If there indeed is or has been a conflict that is for the trial Court to sort out or to decide. The trial Court at the stage of framing of the charge against the accused persons is bound to hear the accused persons to find whether a prima fade case existed warranting the framing of charge against the accused persons. It is for the accused persons to urge before the trial Court that there is some conflict (if at all) and that the accused are entitled to any benefit relating to or arising out of such a conflict, if such a benefit to or arising out of such a conflict, if such a benefit can be given to them in law. Resolution of the conflict with reference to any earlier stand taken, if at all, by the State in the civil proceedings vis-avis the prosecution story in the criminal case is not and cannot be a matter for re-investigation. Resolution of the conflict with reference to any earlier stand taken, if at all, by the State in the civil proceedings vis-avis the prosecution story in the criminal case is not and cannot be a matter for re-investigation. The State also seems to have made an untenable and unsuccessful attempt in misleading the Court by referring to "certain documents" of "vital importance" in para 4 of the application for re-investigation. I quote para 4 of the Application, which reads thus:- “That during the course of trial the accused persons had produced certain documents which are of vital importance. These documents can have extreme adverse effect on the prosecution case. The investigating agency did not examine the impact of these documents during the course of investigation. The examination of these documents with the help of other contemporaneous documents is essential to ascertain the actual factual positions, which exist in this case. Apart from this, there may be some other record available which may support the prosecution case by undoing the effect of document record produced by the accused. This is also an additional ground present in this case, which necessitates for the investigation under Section 173(8) Cr.P.C. for the purpose of arriving at a just conclusion." 4. When I asked Mr. Mattewal as to what are the "certain documents" which are of "vital importance", Mr. Mattewal very fairly and frankly submitted before me that these documents actually are the copy of the judgment of the Division Bench in CWP No. 1732 of 1995, the copy of the reply filed by the State in the aforesaid writ petition, and the copy of the reply filed by the State in the aforesaid Civil Suit No. 42 of 1997. The impression given in para 4 of the application (supra) is about some documents other than those mentioned in para 2 (supra), but on a closer scrutiny what is discovered is that the "documents" are none other than the aforesaid documents which have been mentioned and referred to in para 2 (supra). The impression given in para 4 of the application (supra) is about some documents other than those mentioned in para 2 (supra), but on a closer scrutiny what is discovered is that the "documents" are none other than the aforesaid documents which have been mentioned and referred to in para 2 (supra). I am making a reference to this aspect of the matter only to highlight the point that even with reference to the averments made in para 4 of the application, the State has not come out with any concrete suggestion or plea as to why and how does the matter require re-investigation because, if one looks at it from this angle or one looks at it from any other angle, the ultimate conclusion is that the entire edifice of the States re-investigation application revolves around the aforesaid Division Bench judgment of this Court and the pleadings in the aforesaid writ petition and in the aforesaid suit. These facts are such which did not at all make out a case for re-investigation. If at all, these facts might have made out a case for reconsideration and when we talk of reconsideration, it is for the state to decide and consider as what to do with the prosecution which it has launched against the accused persons. It is not a fit case where the State has come out a case for re-investigation in the trial. 5. Reconsideration is different than re-investigation. Re-investigation involves going into some new facts which were not in existence prior to the stage of re-investigation or such facts which came to be discovered at a subsequent stage. The facts which have to be brought out, facts which have to be discovered anew, facts which have close bearing on the subject matter of the prosecution case, that is the ambit of re-investigation. That alone is the purpose of re-investigation. Here, in the present case, we are confronted with a situation where in the re-investigation application, the prosecution does not talk of any new fact; it only talks of "reconsideration" of it stand visa-vis the facts already known. That cannot come within the ambit and scope of sub-section (8) of Section 173 of the Code of Criminal Procedure. 6. Here, in the present case, we are confronted with a situation where in the re-investigation application, the prosecution does not talk of any new fact; it only talks of "reconsideration" of it stand visa-vis the facts already known. That cannot come within the ambit and scope of sub-section (8) of Section 173 of the Code of Criminal Procedure. 6. Actually the filing of the re-investigation application and the way it has been prosecuted by the Investigating Agency in the trial Court, in the light of the contents of the application and the way State is vigorously following it up to this Court in the present revision petition might tend to give an impression to an innocent on looker or a keen by stander that perhaps the State is trying to extricate the accused persons from the cobweb of prosecution and the not so happy prospect of the accused persons facing trial. If that impression gains ground, it is indeed unfortunate since there are provisions in law, such as Section 321 of the Code of Criminal Procedure under which the State has the power and jurisdiction to initiate steps of withdrawing from the prosecution to initiate steps of withdrawing from the prosecution of the accused persons or one or more of them in this case, if indeed the State genuinely feels and is legitimately advised to take recourse to such an action, if the merits warrant taking such an action. It was expected that rather than trying to help or extricate the accused persons by adopting an indirect mode, through the stratagem of the re-investigation application, the State could have straightway adopted a simpler mode of withdrawing the prosecution if it so wanted, of course subject to its desirability and permissibility on the touchstone of public interest as well as the paramount interest of administration of justice. I am constrained to make these observations because again and again when I look to the contents of the re-investigation application, I find that the application totally lacked substance and yet, without there being any material warranting the re-investigation of this case, the application was nonetheless filed. I wish to offer no more comments on this aspect of the matter and drop it at that. 7. I wish to offer no more comments on this aspect of the matter and drop it at that. 7. Whether the application for re-investigation has been filed with a purpose to help the accused or to give them time for delaying the I prosecution, these aspects apart, with reference to the contents of the application itself, as I have noted them in the earlier part of this judgment, I am fully convinced that no case for re-investigation has been made out and I am of the firm opinion that in the facts and circumstances, the learned trial Court was wholly justified in declining the States prayer for re-investigation. 8. Mr. Mattewal during the course of arguments referred to a Single Bench judgment of this Court passed on 12th December, 2003 in Criminal Revision No. 52 of 2003 (the author of that judgment is the same as the author of the present judgment). On a careful perusal of that judgment, I found that in that case this court did not at all go into any question whether in a given fact situation a case for re-investigation was made out or not. In that case, the Court only dwelt upon the power of the prosecution/investigation agency to reinvestigate a case. It is nobodys contention and it is not the view of this court at all that the State does not have the power to reinvestigate. Various Supreme Court judgments including the two judgments cited by Mr. Mettewal in the case of Masanbhai Valibhai Qureshi v. State of Gujarat and others, reported in 2004 AIR SCW 2063 and Ram Lai Narang v. State (Delhi Admn.), reported in AIR 1979 SC 1791 have consistently taken the view that the power to reinvestigate even after a Court has taken cognizance of the charge sheet vests in the State but it is desirable that the State should seek formal permission from the court seized of the case. The power to reinvestigate even during the pendency of the trial has also been recognized but whether in a particular fact situation a warrant for re-investigation is made out or not, and whether in a particular fact situation where and when the State decides to approach the court for permission to reinvestigate the case, do the facts make out a case for re-investigation, is a different matter altogether. 9. 9. The view that I have therefore finally taken in this case is that, in the facts and circumstances as form the subject matter of the States re-investigation application, the State did not spell out any fact which according to the State could form the basis of its request for reinvestigation. At the risk of repetition I do wish to once again observe? with all the emphasis at my command that all that the application disclosed was that a judgment of this Court (in a writ petition) and the pleadings in the Civil Suit as well as in the writ petition perhaps presented a conflicting version and that this required some consideration on the part of the State. This surely did not call for re-investigation of the case. 10. The petition is dismissed. Cr.M.P. No. 695 of 2004 11. In view of the dismissal of the revision petition, this application shall also stand dismissed.