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2012 DIGILAW 2861 (ALL)

ANJAR AHMAD KHAN @ BABLU v. STATE OF U. P.

2012-12-11

RAMESH SINHA

body2012
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Rahul Chaturvedi, learned counsel for the applicants and learned A.G.A. for the State. This 482 Cr.P.C. application has been filed with a prayer to quash the order dated 26.5.2012 passed by the Chief Judicial Magistrate, Rampur and the order dated 3.7.2012 passed by the Superintendent of Police, Rampur in F.R. Case No. 121/12 of 2012, Hamid Ali v. Anjar Ahmad and others, arising out of Case Crime No. 1589 of 2011 under Sections 307, 384, 504 and 506 I.P.C., police station Bilaspur, District Rampur. 2. The brief facts of the case are that opposite party No. 2 moved an application on 10.10.2011 under Section 156 (3) Cr.P.C. before the C.J.M. Rampur for directing the Station House Officer of the concerned police station, i.e., Bilaspur to register an F.I.R. against the applicants with respect to an incident which had taken place on 5.10.2011 at about 4:30 p.m. as the same has not been lodged by the concerned police station. The learned Magistrate allowed the said application of opposite party No. 2 vide order dated 3.11.2011 and directed the S.H.O. of the concerned police station to register an F.I.R. and investigate the matter. In pursuance of the said order, on 9.11.2011, F.I.R. was registered against the applicants as Case Crime No. 1589 of 2011 under Sections 307, 389, 504 and, 506 I.P.C. and the investigation was entrusted to one Rajveer Singh, who after investigation, submitted a final report which was sent for approval to the Circle Officer concerned, who directed the Investigating Officer to further investigate the matter and thereafter the matter was investigated and final report was submitted on 21.12.2011 being F.R. No. 121/12 of 2012. 3. The opposite party No. 2 filed a protest petition on 27.4.2012 before the learned Magistrate for rejecting the final report. The learned Magistrate on 26.5.2012, after considering the prayer of opposite party No. 2 made in the protest petition filed by him for quashing the final report dated 21.12.2011, directed the Superintendent of Police, Rampur to further investigate the matter and entrust the investigation to an Investigating Officer for the said purpose. In pursuance of the said order, the Superintendent of Police, Rampur on 30.7.2012, entrusted the matter to the S.I.S. 4. Being aggrieved by the said orders dated 26.5.2012 and 30.7.2012, the applicants have approached this Court by filing the present application for quashing the same. In pursuance of the said order, the Superintendent of Police, Rampur on 30.7.2012, entrusted the matter to the S.I.S. 4. Being aggrieved by the said orders dated 26.5.2012 and 30.7.2012, the applicants have approached this Court by filing the present application for quashing the same. Learned counsel for the applicants submits that the order passed by the learned Magistrate on 26.5.2012 directing further investigation is in contravention with the judgment of the Apex Court in the case of Reeta Nag v. State of West Bengal, 2009 (3) SCC (Criminal) 1051. He submits that the order for further investigation under Section 173 (8) Cr.P.C. by the Magistrate was not permissible under the law and has drawn the attention of the Court towards paras-25 and 26 of the said judgment which are quoted hereinbelow : “25. What emerges from the above mentioned decisions of this Court is that once a charge-sheet is filed under Section 173 (2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173 (8). The Magistrate cannot suo motu direct a further investigation under Section 173 (8) Cr.P.C. or direct a reinvestigation into a case on account of the bar of Section 167 (2) of the Code. 26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173 (8) was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directed a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.” 5. Learned counsel for the applicant further submits that in view of the said judgment, the impugned orders passed by the learned Magistrate and the Superintendent of Police, Rampur for further investigation is bad in the eyes of law and is liable to e quashed. 6. Learned counsel for the applicant further submits that in view of the said judgment, the impugned orders passed by the learned Magistrate and the Superintendent of Police, Rampur for further investigation is bad in the eyes of law and is liable to e quashed. 6. On the other hand, learned A.G.A. has submitted that the impugned orders passed by the learned Magistrate directing further investigation on the protest petition filed by the complainant is absolutely just and legal and is in accordance with law and no interference is called for by this Court. He further submits that the case law cited by the learned counsel for the applicants is totally distinguishable from the facts of the present case. He further submits that in the case before the Apex Court charges were framed against six accused persons and the rest of the accused were discharged and the learned Magistrate after framing of charges had directed for further investigation under Section 173 (8) Cr.P.C. which was not permissible in the eyes of law, hence the Apex Court had quashed the said order of the Magistrate. He further submits that in the present case, after submission of the final report on the protest petition of the complainant, the courses available to the learned Magistrate on receiving the protest petition has been very well laid down by this Court in the case of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096. The same reads as follows: “1. He may agreeing with the conclusion arrived at by the police, accept the report and drop the proceedings. But before doing so, he shall give an opportunity of hearing to the complainant; or 2. He may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or 3. He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or 4. He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or 4. He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.” Considered the submissions advanced by learned counsel for the parties and perused the record. 7. From a perusal of the record, it is apparent that on the submission of final report by the police, the complainant opposite party No. 2 had filed a protest petition whereby he has stated that the Investigating Officer, who had submitted the final report did not record the statement of the applicant and the injured, who had received injuries at the hands of the applicants. He had prayed for rejection of the final report and allowing of the protest petition by the Magistrate. The learned Magistrate after considering the material available on record was of the opinion that the matter requires further investigation, hence he directed the Superintendent of Police, Rampur to direct the further investigation into the matter in view of Section 173 (8) Cr.P.C. by adopting one course which was available to the Magistrate after receiving the protest petition for rejecting the final report and in view of the decision of this Court in the case of Pakhando (Supra), the learned Magistrate was right in directing for further investigation and in pursuance of which the Superintendent of police had entrusted the investigation of the SIS for further investigation by passing the impugned order dated 3.7.2012. The case law cited (Reeta Nag Supra) of the Apex Court by the learned counsel for the applicant is completely distinguishable from the facts of the present case and the same cannot be made applicable in the present case as in the case which was before the Supreme Court, the Magistrate had out of 10 accused persons framed charges against only six persons and discharged the remaining accused and thereafter he ordered for reinvestigation of the case on the application of de facto complainant, hence in such a situation, the Apex Court was pleased to held that it was no longer within the Magistrate jurisdiction direct reinvestigation of the case on the application filed by the de facto complainant under Section 173 (8) Cr.P.C. after the charges have been framed against some of the accused. In view of the above, I am of the opinion that the impugned orders dated 26.5.2012 passed by the Magistrate and 3.7.2012 passed by the Superintendent of Police, Rampur do not suffer from any illegality, infirmity or irregularity which may call for any interference by this Court in its inherent power under Section 482 Cr.P.C. The application lacks merit and is accordingly dismissed. ——————