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2011 DIGILAW 1256 (RAJ)

Vinod Dubey v. State of Rajasthan

2011-07-01

MAHESH BHAGWATI

body2011
JUDGMENT 1. - Challenge in this Criminal Misc. Petition is to the order dated 18th November, 2006, whereby the learned Judicial Magistrate No. 1 (North), Kota sent the case pertaining to FIR No. 391/1992 registered at Police Station, Nayapura, Kota for reinvestigation again to SHO, Police Station, Nayapura, Kota. 2. Having considered the submissions made at the bar and carefully perused the relevant material on record, it is noticed that one FIR No. 391/1992 came to be registered at Police Station Nayapura on 23rd September, 1992 at the behest of Lokendra Prasad Vashistha. The police of Nayapura Police Station, after completion of investigation, filed the charge sheet against Vinod Dubey and Sanjay Dubey for the ofences under Section 498A and 306 of Indian Penal Code, but instead of taking cognizance of these offences and registering the case, the learned Judicial Magistrate sent it for reinvestigation to Additional SP, CID (CB) Range, Kota at the instance of complainant. Surprisingly, the Additional SP, CID (CB), Kota, after completion of investigation reversed the finding and gave the Final Report as no evidence was found to have appeared with regard to the commission of offences under Section 306 and 498 A of Indian Penal Code against both the petitioners Vinod Dubey and Sanjay Dubey. Dissatisfied with the finding of Additional SP, CID (CB), Range Kota, the learned Judicial Magistrate again sent the case for re-investigation to SHO, Police Station, Nayapura, Kota, who had conducted the investigation of this case earlier also. 3. Learned counsel for the petitioners canvassed that the Hon'ble Apex Court has consistently held in plethora of cases that the Magistrate having jurisdiction could not send the case for reinvestigation, of-course the case could be sent for further investigation on some specific issues. In the instant case, the learned Judicial Magistrate, not only sent the case back for reinvestigation, but issued specific directions as to in what manner the investigation was to be conducted, which is contrary to the settled proposition of law. In view of this legal position, the impugned order, whereby the learned Judicial Magistrate sent the case back for reinvestigation second time deserves to be set-aside. 4. E-Converso, the learned counsel appearing for the State has defended the impugned order and stated the same to be just and proper. 5. In view of this legal position, the impugned order, whereby the learned Judicial Magistrate sent the case back for reinvestigation second time deserves to be set-aside. 4. E-Converso, the learned counsel appearing for the State has defended the impugned order and stated the same to be just and proper. 5. It is a settled proposition of law that the criminal case cannot be sent to police for reinvestigation, of-course, the same can be sent for further investigation on specific issues. 6. Adverting to the facts of the instant case, it is found that initially the police of Nayapura Police Station, after completion of investigation, filed the charge sheet against the accused petitioners for the offence under Sections 498A and 306 of Indian Penal Code, but at the instance of the complainant Lokendra Prasad Vashistha, the learned Judicial Magistrate instead of taking cognizance of the offences, sent the case back for reinvestigation to Additional SP, CID (CB),Range Kota. Additional SP, CID (CB), Kota Range reversed the finding as he did not find any evidence against the accused petitioners with regard to the commission of offences under Section 498 A and 306 of Indian Penal Code and gave the negative polie report popularly known as 'Final Report'. The learned Judicial Magistrate again sent the case for reinvestigation to the same SHO, Police Station, Nayapura, Kota, who had earlier filed he charge sheet. Earlier the learned Judicial Magistrate was not satisfied with the investigation conducted by the SHO, Police Station, Nayapura, and sent the case to other agency so called Additional SP, CID (CB), Range Kota, but this time the learned Judicial Magistrate was not satisfied even with the manner of investigation conducted by Additional SP, CID (CB), Range Kota also and sent it again to the same Police Station, which had earlier filed the police report under Section 173 (2) of Criminal Procedure Code against the accused petitioners for the aforesaid offences. Learned Judicial Magistrate cannot be permitted to send the case for reinvestigation again and again. There must be some limit to it. If the learned Judicial Magistrate found that the investigation was not conducted fairly, honestly or properly, then he could exercise discretion and send the case for further investigation, but the learned Judicial Magistrate is not conferred with the unfettered powers so as to send the case again and again for reinvestigation sans there being any limit to it. If the learned Judicial Magistrate found that the investigation was not conducted fairly, honestly or properly, then he could exercise discretion and send the case for further investigation, but the learned Judicial Magistrate is not conferred with the unfettered powers so as to send the case again and again for reinvestigation sans there being any limit to it. It seems that the learned Judicial Magistrate was playing at the tune of the complainant Lokendra Prasad vashistha and was not acting independently. If the Magistrate was not satisfied with the finding or the result of the investigation arrived at by Additional SP, CID (CB), Range Kota, then he himself could examine the complainant and other witnesses under Section 200 and 202 of Criminal Procedure Code and pass an appropriate order keeping in view the evidence collected by both the investigating agencies, but the learned Judicial Magistrate ought not to have sent the case again for reinvestigation third time. The impugned order in view of above backdrop, seems to be totally perverse and caprice, which deserves to be set-aside. 7. For the reasons stated above, the criminal misc. petition succeeds and the impugned order dated 18.11.2006 stands set aside. Learned Judicial Magistrate No. 1 (North), Kota is directed to take into consideration the entire evidence collected by both the investigating officer of Police Station, Nayapura, Kota as also the Additional SP, CID (CB), Range Kota and pass an appropriate order in accordance with the provisions of law after affording an opportunity of being heard to both the parties.Petition Allowed. *******