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2012 DIGILAW 1630 (RAJ)

Krishan Kumar v. State of Rajasthan

2012-07-25

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioners against the order dated 5.8.2011 passed by the learned Additional Sessions Judge, Rajgarh in Sessions Case No.5/2010 whereby he whilst allowing the application filed by the prosecution under Section 173(8) Cr.P.C., has directed the investigating officer to investigate the matter further. 3. Learned counsel for the petitioner submits that as the cognizance upon the charge-sheet filed by the police has already been taken and as such, no direction to further investigate the matter was permissible in view of the the judgment of the Hon'ble Apex Court delivered in the case of Randhir Singh Rana vs. State being the Delhi Administration reported in AIR 1997 SC 639 . He further submits that the order of further investigation has been passed by the learned Additional Sessions Judge. However, the Additional Sessions Judge has no powers of directing any investigation into the matter because such powers are only vested with the Magistrates and cannot be exercised by the committal court. He, therefore, prays that the order impugned is absolutely illegal and amounts to an abuse of process of Court and thus, the same deserves to be quashed. 4. Learned counsel for the complainant opposes the arguments advanced on behalf of the petitioner and placing reliance on the decision of the Hon'ble Apex Court in the case of Virendra Prasad Singh vs. Rajesh Bhardwaj & Ors. reported in 2010(4) Criminal Court Cases 351, submits that in the aforesaid case, the Hon'ble Apex Court has observed that the application for further investigation can be moved before the Sessions Court. 5. In the opinion of this Court, though the Hon'ble Apex Court in the case of Virendra Prasad Singh (supra) has observed that the application under Section 173(8) Cr.P.C. could have been moved before the Sessions Court but in the considered opinion of this Court, the powers to direct investigation vests only with the Magistrate under Section 156(3) Cr.P.C. and thereafter, after receiving the report of investigation filed under Section 173 Cr.P.C., the learned Magistrate while exercising the powers under Section 190 Cr.P.C. can direct further investigation. No powers to direct investigation vests in the Sessions Court. The Hon'ble Apex Court whilst making a detailed consideration of this aspect in the case of Randhir Singh Rana (supra) followed in the case of Reeta Nag. No powers to direct investigation vests in the Sessions Court. The Hon'ble Apex Court whilst making a detailed consideration of this aspect in the case of Randhir Singh Rana (supra) followed in the case of Reeta Nag. vs. State of West Bengal reported in AIR 2010 (Suppl.) SC 401 has in no unequivocal terms held that once cognizance is taken of the offence, the Court cannot direct further investigation to be made. However, it goes without saying that the powers of the police to investigate the matter further are unfettered. 6. As regards the decision of the Hon'ble Apex Court in the case of Virender Prasad Singh (supra), in the said judgment, the earlier decision delivered by coordinate bench of the Hon'ble Apex Court in the case of Randhir Singh Rana (supra) has not been considered. That apart, the observation made by the Apex Court in Virendra Prasad's case regarding the powers of the Sessions Judge to direct further investigation is more in nature of an 'obiter dicta'. 7. That apart, the grievance of the complainant is as under :- (1) The person, Sugana Ram, who recorded the parcha bayan of the deceased has not been kept as a witness by the prosecution. (2) The treatment record of the deceased available with Dr. Hemant Jain was not taken on record. (3) The radiologist Dr.Harish has not been kept as witness in the list of witnesses. (4) The call details of the accused, though available on the record, have not been filed along with the charge-sheet. 8. In the opinion of this Court, rather than asking for further investigation, the aforesaid grievances raised by the complainant could have been redressed easily by filing a proper application before the trial court under Section 311 Cr.P.C. read with Section 91 Cr.P.C. and it goes without saying that if such an application is moved, the trial court is bound to consider and decide the same keeping in view the relevancy of the witnesses and documents. 9. Resultantly, the instant misc. petition succeeds, the order dated 5.8.2011 passed by the learned Additional Sessions Judge, Rajgarh in Sessions Case No.5/2010 directing further investigation of the matter under Section 173(8) Cr.P.C. amounts to an abuse of process of Court and is thus, quashed. However, the complainant/prosecution is given liberty to move an appropriate application for rectifying the flaws left out by the investigating agency in the investigation. However, the complainant/prosecution is given liberty to move an appropriate application for rectifying the flaws left out by the investigating agency in the investigation. Upon such an application being filed, the same shall be decided in accordance with law. Stay petition also stands disposed of.