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2006 DIGILAW 276 (JK)

Rakesh Kumari v. State Of J. &K.

2006-11-14

J.P.SINGH

body2006
1. Rakesh Kumari, has filed this petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for a command to the 2nd and 3rd respondents to divest 4th respondent- SHO Police Station Katra of the investigation of FIR No. 48/2006 registered at Police Station, Katra under Sections 302 RPC and 4/25 Arms Act, and for handing over the investigation of the case to the Central Bureau of Investigation. 2. The petitioner says that her son, Kundan Lal was in contact with her on her Mobile Phone No. 9906099189 when he had left for Ban Ganga, Katra. He had informed her on her residential telephone connection No. 233691 that 5th to 11th respondents, armed with weapons, had been planning to assault him. The petitioner is stated to have rushed to the spot where she found her son being attacked by 5th to 11th respondents with swords, knives etc. Petitioners hue and cry on spot made the assailants to run away. Some locals are stated to have gathered there. Petitioner had narrated this story to SHO, Police Station, Katra, who obtained her signatures on the FIR. 3. Grievance of the petitioner is that only two persons had been named in the FIR and the SHO had managed to screen rest of the persons who had attacked the son of the petitioner. She says that she did not understand Urdu language and was thus unaware as to what had been recorded by the SHO in the FIR, on which he had obtained her signatures. She is stated to have moved various quarters for proper investigation of the case but no relief was provided to her. The SHO had been accused of delaying the presentation of the challan within the statutory period of 60 days so that two persons arrested in connection with the case succeed in getting their release on bail because of non-production of final police report within the prescribed statutory period. 4. During the currency of the petition in this Court, a police challan came to be filed before the competent Magistrate who committed it for trial to learned Additional Sessions Judge, Reasi who is presently in seisin of the case. File No. 14 titled State v. Satnam Singh and Ors. 4. During the currency of the petition in this Court, a police challan came to be filed before the competent Magistrate who committed it for trial to learned Additional Sessions Judge, Reasi who is presently in seisin of the case. File No. 14 titled State v. Satnam Singh and Ors. pending before the learned Additional Sessions Judge, Reasi was sent for when it was brought to the notice of the Court that the petitioner had filed an application before the Trial Court seeking reinvestigation of the case. 5. Perusal of the records of learned Additional Sessions Judge, Reasi reveals that the prayer of the petitioner for reinvestigation of the case had been declined by the learned Sessions Judge holding that the trial Court did not possess any such power to direct reinvestigation and that such power rested with the High Court. This order was passed by the learned Sessions Judge on 06.09.2006. 6. Ms. Seema Sharma, learned counsel while projecting the grievance of the petitioner and seeking reinvestigation in the case by Central Bureau of Investigation, referred to Mrs. Sandhya Sankaranarayanan v. Commissioner of Police, Egmore and Anr. reported as 1994 Criminal Law Journal 2577 to urge that the High Court in appropriate cases may direct reinvestigation despite filing of final police report in a Court of law. 7. Mr. O. P. Thakur, learned counsel for respondents, who are facing trial before learned Additional Sessions Judge, Reasi, on the other hand, referred to Rajiv Ranjan Singh `Lalan and anr v. Union of India and Ors. reported as 2006 (6) Supreme 614 to urge that the High Court may not have the jurisdiction to direct reinvestigation when the investigation had culminated in a police challan before the competent Court of jurisdiction. 8. I have considered the submissions of learned counsel for the parties. Before considering the submissions of learned counsel for the parties, reference to paragraph 6 of Union of India and Ors. v. Sushil Kumar Modi and Ors. reported as 1998 (8) SCC 661, would be advantageous. This paragraph reads thus: "6. This position is so obvious that no discussion of the point is necessary. However, we may add that this position has never been doubted in similar cases dealt with by this Court. v. Sushil Kumar Modi and Ors. reported as 1998 (8) SCC 661, would be advantageous. This paragraph reads thus: "6. This position is so obvious that no discussion of the point is necessary. However, we may add that this position has never been doubted in similar cases dealt with by this Court. it was made clear by this Court in the very first case, namely Vineet Narian v. Union of India, (1996) 2 SCC 199 that once a charge sheet is filed in the competent court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the Court in which the charge sheet is filed which is to deal with all matters falling within the scope of Section 173 (8) of the Code of Criminal Procedure. We make this observation only to reiterate this clear position in law so that no doubts in any quarter may survive. It is, therefore, clear that the impugned order of the High Court dealing primarily with this aspect cannot be sustained." 9. In view of the law laid down in Sushil Kumar Modis case and reiterated in Rajiv Ranjan Singh `Lalan and anr v. Union of India and Ors. reported as 2006 (6) Supreme 614, there is no scope left to consider the issuance of directions sought for by the petitioner to refer the case for investigation to CBI or other investigative agencies, for suffice it would be to say that with the filing of charge sheet in a competent Court of jurisdiction after completion of investigation, power of the High Court to either monitor or direct investigation, comes to an end and thereafter it is only the Court in which charge sheet was filed which had to deal with the matters relating to the trial of the accused including matters falling within the scope of Section 173 (8) of the Code of Criminal Procedure. 10. In this view of the matter, prayer of the petitioner for reinvestigation of the case cannot be considered by this Court, for this jurisdiction rests with the Trial Court in view of the law laid down by the Honble Supreme Court of India. 11. 10. In this view of the matter, prayer of the petitioner for reinvestigation of the case cannot be considered by this Court, for this jurisdiction rests with the Trial Court in view of the law laid down by the Honble Supreme Court of India. 11. I am conscious of the fact that the petitioner may be disabled to project her grievance in seeking consideration of her request for reinvestigation of the case in the Trial Court because the trial Courts order dated 6.9.2006 whereby it had refused to consider the prayer of the petitioner saying that the power to direct investigation vested only in the High Court would come in her way. 12. In view of the law laid down by the Honble Supreme Court of India, in Rajiv Ranjan Singh `Lalan and Anr. v. Union of India and Ors. and Union of India v. Sushil Kumar Modi and Ors., order dated 6.9.2006 of learned Additional Sessions Judge, Reasi, refusing to consider petitioners application, on its own merit becomes unsustainable. 13. I would, therefore, in exercise of powers under Section 439 of the Criminal Procedure Code, set aside order dated 6.9.2006 of learned Additional Sessions Judge, Reasi as illegal and against the law laid down by the Supreme Court of India in cases referred in para 9 of this judgment. 14. Perusal of the police challan reveals that the petitioner has been cited as a prosecution witness No. 1 in the police challan but her statement had not been recorded by the trial Court. 15. This petition is, accordingly, disposed of with a direction to learned Additional Sessions Judge, Reasi to examine the petitioner as a prosecution witness in the case before proceeding further in the case. Learned Additional Sessions Judge, Reasi is further directed to dispose of the application of the petitioner afresh after considering the statement of the petitioner and any other material which may be placed on records by her, in accordance with law uninfluenced by his order dated 6.9.2006.