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2013 DIGILAW 861 (GAU)

Musstt. Begum Momtaz Ahmed v. State of Assam

2013-12-12

N.CHAUDHURY

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JUDGMENT AND ORDER N. Chaudhury, J. Whether Court can pass order for further investigation under Section 173 (8) of the Cr.P.C. and as to whether under the facts and circumstances of the case the case in hand is an appropriate one are the questions to be answered in this criminal petition. However, the learned counsel for the respondents has also raised an objection in regard to maintainability of this criminal petition in view of the fact that this is really a second revision on the part of the complainant. 2. Present petitioner, as informant, lodged an ejahar with the Officer-in-Charge of Dhubri police station alleging, inter alia, that she was married to the opposite party No. 7 in this case on 16.05.1999. At the time of marriage her brother paid Rs.50,000/- to the Opposite Party No. 7 in cash as per demand and also a gold ring, a wrist watch and other items. After marriage the Opposite Party No. 7 herein who was accused No. 1 in the case had taken the informant to his house. The brother of the informant secured a job of Grad-IV under the Assam Fishery Department for the accused No. 1. They were living peacefully but during the last Panchayat election the accused No. 1 was transferred at Baliajana when he left the informant at her paternal house and he started staying alone in his place of posting. The conjugal life, however, continued till 2.12.2008, but on 08.12.2008 the accused left for his own house and did not return. Being apprehensive the informant herself went to the house of the accused No. 1 on 09.11.2009 only to be ill treated by all the accused persons. It is stated that on the ill advice of other accused persons the accused No. 1 demanded Rs.1,55,000/- as dowry. The informant petitioner was assaulted and she was driven out keeping the 'stridhan' and ornaments. In the meantime the informant has come to know that the accused No. 1 has remarried one Musstt. Golenara Begum. Upon receipt of the said ejahar, Dhubri P.S. Case No. 64 of 2010 was registered under Section 498(A) IPC. Finally on 16.03.2010 police submitted charge sheet against accused No. 1/husband, arrested him and forwarded to the court. The other persons named in the FIR, however, were not charge sheeted. 3. Golenara Begum. Upon receipt of the said ejahar, Dhubri P.S. Case No. 64 of 2010 was registered under Section 498(A) IPC. Finally on 16.03.2010 police submitted charge sheet against accused No. 1/husband, arrested him and forwarded to the court. The other persons named in the FIR, however, were not charge sheeted. 3. Aggrieved thereby the petitioner moved an application before the learned, Chief Judicial Magistrate, Dhubri on 29.4.2010 and prayed for passing necessary orders under Section 173(8) of the Cr.P.C. for the purpose of roping in other persons named in the ejahar who are the opposite parties No. 8 to 12 in this petition. The learned Magistrate after hearing the parties on the application of the informant for reinvestigation passed order on 06.08.2010, rejecting the said application and held the same to be not maintainable under Section 173 (8) Cr.P.C. 4. This order dated 6.8.2010 was challenged by the present petitioner before the learned Sessions Judge, Dhubri, by way of revision in case No. 20(3) of 2010. The said revision was heard on merit and after hearing the learned counsel for the parties and on perusal of the materials on record, the learned Sessions Judge dismissed the revision petition filed under Sections 397/399 Cr.P.C. on 04.04.2011. In so doing the learned Sessions Judge considered the law of further investigation within the meaning of Section 173 (8) of the Cr.P.C. The learned Court, however, observed that there was scope for roping in other accused persons under Section 319 Cr.P.C. after the evidence is led in the case provided materials for so doing emerged from the evidence. In fine, the revision was found to be of no merit and the same was accordingly closed affirming the order of the learned Trial Magistrate. The said order is under challenge in the present criminal petition. 5. I have heard Mr. M.H. Ahmed, learned counsel for the petitioner and Mr. I.H. Hazarika, learned counsel appearing for the respondents No. 8 to 12. I have also heard learned Addl. P.P., Assam, on behalf of respondents No. 1 to 6. The learned counsel for the private respondents informed that the accused No. 1 who was the opposite party No. 7 in this case had died in the meantime which is supported by the learned Counsel for the petitioner. 6. I have also heard learned Addl. P.P., Assam, on behalf of respondents No. 1 to 6. The learned counsel for the private respondents informed that the accused No. 1 who was the opposite party No. 7 in this case had died in the meantime which is supported by the learned Counsel for the petitioner. 6. Learned counsel for the petitioner argued that the prosecution failed to examine the witnesses cited by the informant and in the process she has been prejudiced. This aspect of the matter has not been considered by any of the learned two courts below. According to the learned counsel for the petitioner, there is no bar in exercising the power under Section 482 of the Cr.P.C. under the present case. Per contra, the learned Counsel for the private respondent would argue that such a vague and general argument claiming relief under Section 482 Cr.P.C. can be made in any case and if such argument is to be accepted then the very purpose of bar under Section 397 (3) shall become redundant. The learned counsel for the petitioner has also placed reliance on the case of Mcleod Russel India Ltd v. State of Assam and Others reported in 2012 (2) GLT 806. I have gone through the same judgment. It appears even in the said judgment this Court held relying on the judgment of the Hon'ble Supreme court in the case of Randhir Singh Rana reported in (1997) 1 SCC 361 and Rita Nag v. State of West Bengal reported in (2009) 9 SCC 129 that Magistrate cannot direct further investigation on his own and if he cannot direct further investigation on his own, it is not permissible for him to hold that he can direct further investigation on the basis of a petition filed by the informant, aggrieved person or a victim. However, in the said case considering the peculiar facts and circumstance, this Court was pleased to exercise power under Section 482 Cr.P.C. to direct further investigation. The law is clear that Magistrate cannot direct further investigation under Section 173 (8) Cr.P.C., unless the investigating authority prays for it. 7. In the case in hand, the informant filed application before the learned Magistrate claiming that there should be further investigation. The prosecution did not make any such prayer. The law is clear that Magistrate cannot direct further investigation under Section 173 (8) Cr.P.C., unless the investigating authority prays for it. 7. In the case in hand, the informant filed application before the learned Magistrate claiming that there should be further investigation. The prosecution did not make any such prayer. So, the law referred to above if applied to this case it becomes apparent that the learned CJM, Dhubri, rightly rejected the application of the informant. There was nothing wrong in the order of the learned Chief Judicial Magistrate, Dhubri, and/or the order of the learned Sessions Judge, Dhubri, which are challenged in this case. Besides, the grievance of the petitioner was directed against her husband i.e. respondent No. 7 herein who is no longer in this world and as such the question of invoking power under Section 482 Cr.P.C. so as to order for further investigation does not arise in this case. 8. Accordingly, the criminal petition filed by the petitioner is devoid of any merit and accordingly, the same is dismissed. 9. No order as to cost.