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2010 DIGILAW 2635 (ALL)

Parvati Devi v. State of U. P.

2010-08-28

RAJ MANI CHAUHAN

body2010
Hon'ble Raj Mani Chauhan, J. 1. Heard learned counsel for the petitioners and learned Additional Government Advocate for the State as well as perused the documents available on record. 2. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the petitioners for quashing the order dated 30.9.2008 passed by the learned Chief Judicial Magistrate, Gonda whereby he has allowed the protest petition and quashed the final report submitted by the Investigating Officer after re-investigation of case in Crime No. C-27/06, under Sections 419, 420, 467, 468, 471, 302, 201 IPC, Police Station Kotwali Nagar, District Gonda and again ordered for re-investigation of the case. The petitioners have also prayed for quashing the order dated 08.1.2007 passed by the learned 1st Additional Chief Judicial Magistrate, Gonda whereby he has allowed the protest petition filed by the complainant against the final report submitted by the Investigating Officer and ordered for re-investigation of the case. 3. The relevant facts giving rise to the present petition may be summarized as under: 4. The opposite party no. 2-Lalit Kumar, S/o Shesh Narayan Mishra, R/o Janki Nagar, Police Station Kotwali Nagar, District Gonda moved an application under 156 (3) of the Code before the learned Chief Judicial Magistrate, Gonda with the allegation that his mother-Mithilesh Kumari Pandey was posted as ANM in Rupaideeh Block, Bahraich. On 12.9.2002 his mother left her house along with her husband Dev Sharan Pandey who had re-married with her. She did not return back thereafter. Sri Rakesh Kumar Mishra who was his brother born to his mother from her first husband had informed the police of P.S. Kotwali Nagar, District Gonda about missing of his mother. Sri Dev Sharan Pandey did not try to trace out his mother; rather Manoj Kumar Pandey who is son of Dev Sharan Pandey born from his first wife wanted to grab the property of his mother. A civil litigation was pending between him and Manoj Kumar Pandey in the court of Civil Judge (Sr. Division), Gonda. Dev Sharan Pandey and Manoj Kumar Pandey had threatened him that they had done his mother to death. They will finish him too. The learned Chief Judicial Magistrate, Godna allowed the application and directed the S.H.O. of P.S. Kotwali Nagar, Gonda to register and investigate the case. Division), Gonda. Dev Sharan Pandey and Manoj Kumar Pandey had threatened him that they had done his mother to death. They will finish him too. The learned Chief Judicial Magistrate, Godna allowed the application and directed the S.H.O. of P.S. Kotwali Nagar, Gonda to register and investigate the case. Pursuant to the order passed by the learned Chief Judicial Magistrate, the police of P.S. Kotwali Nagar, Gonda registered a case at Crime No. C-27/06, under Sections 419, 420, 467, 468, 471, 302, 201 IPC against the accused for investigation. The Investigating Officer after investigation of the case did found evidence against the accused in support of commission of offence as alleged by the complainant, therefore, he submitted final report in the matter. The complainant being aggrieved by the final report submitted by the Investigating Officer filed a protest petition which was allowed by the learned 1st Additional Chief Judicial Magistrate, Gonda vide impugned order dated 08.1.2007. The learned Additional Chief Judicial Magistrate quashed the final report and ordered for re-investigation of the case. The case was re-investigated by the Investigating Officer who did not find any evidence against the accused in support of commission of offence consequently he again submitted final report in favour of the accused. The complainant again moved protest petition before the Chief Judicial Magistrate Gonda which was aganin allowed by the learned Chief Judicial Magistrate vide impugned order dated 30.9.2008. The learned Chief Judicial Magistrate quashed the final report and ordered for re-investigation of the case. The accused being aggrieved by the impugned order passed by the learned Chief Judicial Magistrate has filed the present petition under Section 482 of the Code. 5. The submission of the learned counsel for the petitioners is that the learned Chief Judicial Magistrate while setting aside the final report submitted by the Investigating Officer has ordered for re-investigation of the case while Section 173 (8) of the Code provides for only further investigation of the case, therefore, the impugned order passed by the learned Chief Judicial Magistrate for re-investigation of the case is illegal and liable to be quashed. 6. Learned counsel for the petitioners in support of his argument has placed reliance on cases Ramachandran Vs. R. Udhayakumar and Others; (2008) 2 Supreme Court Cases (Cri) 631, Kishan Lal Vs. Dharmendra Bafna; [2009 (66) ACC 936] and Rama Chaudhary Vs. 6. Learned counsel for the petitioners in support of his argument has placed reliance on cases Ramachandran Vs. R. Udhayakumar and Others; (2008) 2 Supreme Court Cases (Cri) 631, Kishan Lal Vs. Dharmendra Bafna; [2009 (66) ACC 936] and Rama Chaudhary Vs. State of Bihar; (2009) 6 Supreme Court Cases 346 decided by the Hon'ble Apex Court. 7. Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate did not dispute the submission of the learned counsel for the revisionist and argued that although a Magistrate cannot order for re-investigation of a case after submission of final report by the Investigating Officer in view of the provision contained under Section 173 (8) of the Code but the order for re-investigation passed by the learned Chief Judicial Magistrate will be treated as further investigation. The learned A.G.A. argued that in this case the learned Chief Judicial Magistrate by the impugned order has ordered for re-investigation of the case which is nothing but simple a mistake of using word 're-investigation' in place of 'further investigation'. The order of re-investigation passed by the learned Magistrate will be treated as further investigation. The order passed by the learned Magistrate may accordingly be modified. Sri Dwivedi in support of his argument has place reliance on cases Gopi Singh Vs. State of U.P. & Anr.; [2009 (1) JIC 861 (All)] decided by this Court and Reeta Nag Vs. State of West Bengal and Others; [2010 (70) ACC 571] as well as Ramachandran Vs. R. Udhayakumar and Others (Supra) decided by the Hon'ble Apex Court. 8. I have given thoughtful consideration to the rival submissions advanced by the learned counsel for the petitioners and learned A.G.A. 9. In the case of Reeta Nag Vs. State of West Bengal and Others (Supra), the facts were that the Investigating Officer after investigation of the case submitted charge-sheet against the accused before the Sub Divisional Judicial magistrate who took cognizance of the offence and framed charges against the accused. The de-facto complainant moved an application for re-investigation of the case which was allowed by the learned Magistrate and he ordered for re-investigation of the case. The order passed by the learned Magistrate was challenged by the accused before the Calcutta High Court by filing petition under Section 482 of the Code. The de-facto complainant moved an application for re-investigation of the case which was allowed by the learned Magistrate and he ordered for re-investigation of the case. The order passed by the learned Magistrate was challenged by the accused before the Calcutta High Court by filing petition under Section 482 of the Code. The High Court allowed the petition of the accused and observed that the Magistrate could not order for re-investigation of the case especially when he had framed charges against the accused. The proper course for him was to have recourse to Section 319 of the Code. The complainant challenged the impugned judgment passed by the High Court before the Hon'ble Apex Court by filing SLP (Crl.) No. 3062 of 2007 which was dismissed by the Hon'ble Apex Court with the observation that the Magistrate was not competent to order for re-investigation of the case especially when he after taking cognizance of the offence on the police report had framed charges against the accused for trial. 10. In the case of Ramachandran Vs. R. Udhayakumar and Others (Supra), the complainant had filed a petition before the High Court of Madras for transfer of the investigation of the case to some other Investigating Agency. The court allowed his petition and transferred the investigation to CBCID for investigation afresh. The order passed by the High Court runs as under: "Under the above facts and circumstances of the case in the interest of justice, the case Crime No. 39/2004 on the file of the fourth respondent stands transferred to the Deputy Superintendent of Police, CB CID, Madurai who shall entrust this case to a competent and efficient Inspector of Police for the purpose of reinvestigation in this case. The Inspector of Police who is nominated by the Deputy Superintendent of Police, CB CID shall afresh investigate the matter and file the final report within a period of three months from the date of receipt of a copy of this order from this Court. The fourth respondent shall forthwith hand over the case records in Crime No. 39/2004 to the officer nominated by the Deputy Superintendent of Police, CB CID, Madurai. The petitioner stands ordered accordingly. Consequently, connected miscellaneous petition is closed." 11. The accused being aggrieved by the order passed by the High Court filed SLP before the Hon'ble Apex Court. The fourth respondent shall forthwith hand over the case records in Crime No. 39/2004 to the officer nominated by the Deputy Superintendent of Police, CB CID, Madurai. The petitioner stands ordered accordingly. Consequently, connected miscellaneous petition is closed." 11. The accused being aggrieved by the order passed by the High Court filed SLP before the Hon'ble Apex Court. The Hon'ble Apex Court disagreed with the order passed by the High Court for fresh investigation. The Hon'ble Apex Court held that as per provision contained under Section 173 (8) of the Code, the court can order for further investigation not for re-investigation. The Hon'ble Apex Court allowed the appeal with the observation that instead of fresh investigation there can be further investigation, if required under Section 173 (8) of the Code. The relevant observation of the Hon'ble Apex Court finds place in para 8 of the judgment which is being extracted below: "In view of the position of law as indicated above, the direction of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by CB CID as directed by the High Court." 12. In the case of Gopi Singh Vs. State of U.P. & Anr. (supra), the fact of the case in nutshell were that the petitioner had lodged a written report at P.S. Gonda, District Aligarh against the accused. The police of P.S. Gonda on the written report of the petitioner registered a case under Section 420 IPC against the accused for investigation. The Investigating Officer did not find prima facie evidence in support of the offence alleged to have been committed by the accused consequently he submitted final report in favour of the accused. The complainant filed protest petition against the final report submitted by the Investigating Officer. The learned Magistrate allowed the protest petition and ordered for re-investigation of the case. The accused thereafter challenged the order passed by the learned Magistrate in revision which was allowed by the learned Additional Sessions Judge and the order passed by the learned Magistrate was set aside. The learned Magistrate allowed the protest petition and ordered for re-investigation of the case. The accused thereafter challenged the order passed by the learned Magistrate in revision which was allowed by the learned Additional Sessions Judge and the order passed by the learned Magistrate was set aside. The learned Additional Sessions Judge observed that the learned Magistrate could not order for re-investigation of the case; rather he could order for further investigation of the case under Section 173 (8) of the Code. The complainant challenged the order passed by the learned Additional Sessions Judge before this Court under Section 482 of the Code. The matter came up before the Court for consideration as to whether a Magistrate is empowered to pass an order for re-investigation or further investigation? The Court after going through the number of case laws decided by the Hon'ble Apex Court on the point in issue, held that a Magistrate cannot order for re-investigation of the case; rather he can order for further investigation of the case in view of the provision contained under Section 173 (8) of the Code. The Court thereafter modified the order passed by the learned Magistrate to the extent that instead of re-investigation of the case there will be further investigation of the case. 13. In view of the law laid down by the Hon'ble Apex Court as well as by this Court in the above cited cases, the petition may be disposed of by modifying the impugned order passed by the learned Chef Judicial Magistrate, Gonda to the extent that the case will not be re-investigated; rather it will be further investigated by the Investigating Officer to whom the investigation of the case has been entrusted. 14. With the aforesaid observation, the petition under Section 482 of the Code stands disposed of.