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2013 DIGILAW 515 (ALL)

SIYA RAM v. STATE OF U. P.

2013-02-12

VIJAY PRAKASH PATHAK

body2013
JUDGMENT Hon’ble Vijay Prakash Pathak, J.—Heard learned counsel for the applicant and learned AGA for the State. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 1.8.2012 passed by the Additional Chief Judicial Magistrate Ist, Mathura permitting for reinvestigation in connection with case crime No. 67 of 2012, under Sections 147, 148, 149, 307, 336, 323, 363, 224, 225, 504, 427 and 186 IPC, P.S. Chhata, District Mathura. 2. The brief facts of the case are that an FIR was got lodged by opposite party No. 2 Gajendra Singh, S.I., P.S. Kankhal, District Haridwar against 24 named persons and certain unknown persons including gents and ladies in which the applicant’s name is shown at Serial No. 5 with the allegations that the accused persons were interrupting the official work of recovering certain vehicles involved in the theft and also fired upon the police personnel. The said FIR was registered as case crime No. 67 of of 2012, under Sections 147, 148, 149, 307, 336, 332, 353, 186, 224, 225 and 186 IPC. After investigation in the matter, the charge-sheet was submitted only against five persons but not against the applicant. On submission of the said charge-sheet, the learned Magistrate took cognizance vide order dated 4.5.2012, thereafter the matter was proceeded. In the meantime, on 1.8.2012 a report has been submitted by the S.I.S. Branch Mathura before the learned Court below to the effect that in case crime No. 67 of 2012 an order has been received from S.S.P., Mathura to S.I.S. Branch Mathura for reinvestigation, hence the order for reinvestigation may be passed. On the said application, the learned Court below passed the order on the same day i.e. on 1.8.2012 as “permitted”. 3. Learned counsel for the applicant has mainly contended that the Magistrate has no power to pass an order directing to permit for fresh investigation or reinvestigation, hence the order passed by the learned Magistrate is erroneous. Learned counsel cited the verdict of the Hon’ble Apex Court given in Ramachandran v. Udhayakumar, 2008-LAWS (SC)-5-95. 4. Learned AGA submitted that as there was allegation against the applicant also but he has absconded at that time, hence in the interest of justice, the investigation was necessary in the matter, which has rightly been directed by the Magistrate. 5. Learned counsel cited the verdict of the Hon’ble Apex Court given in Ramachandran v. Udhayakumar, 2008-LAWS (SC)-5-95. 4. Learned AGA submitted that as there was allegation against the applicant also but he has absconded at that time, hence in the interest of justice, the investigation was necessary in the matter, which has rightly been directed by the Magistrate. 5. I have considered the said argument and perused the materials on record including the impugned order. I have also perused the aforesaid verdict of the Hon’ble Apex Court given in Ramachandran v. Udhayakumar (Supra). The Hon’ble Apex Court in para 6 of the aforesaid verdict has observed as under: “(6) At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and others, 1998 (5) SCC 223 . It was, inter alia, observed as follows: “24. The dictionary meaning of “further” (when used as an adjective) is “additional; more; supplemental” “further” investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we heave also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a “further” report or reports — and not fresh report or reports — regarding the “further” evidence obtained during such investigation.” In view of the aforesaid decision of the Hon’ble Apex Court, the police has right to further investigate the matter under sub-section (8) of Section 173 Cr.P.C. even after completion of investigation under sub-section (2) of Section 173 of the Code but no fresh investigation or reinvestigation. 6. Learned counsel has also cited the verdict of Hon’ble Kerala High Court given in K.N. Natarajan v. Sasidharan, 2001 LAWS (KER)-11-88. In the said verdict, Hon’ble Kerala High Court has been pleased to hold that the Magistrate is not competent to order for reinvestigation. 7. 6. Learned counsel has also cited the verdict of Hon’ble Kerala High Court given in K.N. Natarajan v. Sasidharan, 2001 LAWS (KER)-11-88. In the said verdict, Hon’ble Kerala High Court has been pleased to hold that the Magistrate is not competent to order for reinvestigation. 7. After considering the aforesaid verdict of Hon’ble Apex Court as well as Hon’ble Kerala High Court, it is apparent that even the police after completion of investigation under sub-section (2) of Section 173 of the Code has right to further investigate under sub-section (8) of Section 173 of the Code and the Magistrate can give formal permission to make further investigation to police when fresh facts come to light (When police informs and seek permission of the Court). In view of the aforesaid consideration, the order dated 1.8.2012 passed by the learned Magistrate permitting for reinvestigation on a police report cannot be sustained. Accordingly, this petition is allowed and order dated 1.8.2012 passed by the learned Magistrate for reinvestigation is set aside. However, the learned Magistrate may permit for further investigation in the matter if so requires on fresh facts informed by the police. —————