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2014 DIGILAW 78 (RAJ)

Ramesh Chand Sharma v. State of Raj.

2014-01-06

NISHA GUPTA

body2014
ORDER BY THE COURT This petition under Section 482 has been filed for quashing and setting aside the impugned order dated 17.9.2013 passed by Addl. District and Sessions Judge No.4 Jaipur Metropolitan City, Jaipur in Criminal Revision no.156/2013 whereby the revisional court has set aside the order passed by the court below for not allowing the further investigation under sec 173(8) Cr.P.C. The facts necessary for disposal of this petition are that Tara Devi has lodged a written report for the offence under sections 420, 467, 468, 471, and 120 B IPC, on which FIR no. 157/2011 has been registered. During investigation, police filed an application before the Additional District Judge for taking the alleged will for investigation and sending the will for examination to Forensic Science Laboratory which was dismissed by the concerned court. After conclusion of investigation, final report was filed on which the learned magistrate issued a notice to the complaint but complainant did not appear and final report was accepted. After one and half year complainant submitted an application under section 173 (8) Cr. P.C for further investigation which was dismissed. Revision was preferred which was allowed and court ordered to consider the matter afresh, Hence this petition. The contention of the learned counsel for petitioner is that once final negative report has been accepted by the concerned court it attained finality and no further investigation could be ordered and court below was justified in holding that he has no jurisdiction to review its order. His further contention is that FSL report which has been obtained during the civil proceedings is not reliable one as the earlier Forensic Science Laboratory has stated that without any additional admitted documents the signatures could not be compared but when court intervened, report has been given on the same documents which is suspicious in nature and revisional court has not considered this aspect of the matter. Per contra contention of the learned counsel for the respondent is that earlier negative final report has been filed only on the ground that forged will could not be given to the Police and when now FSL report is there, further investigation is necessary and revisional court has rightly held so and hence there is no infirmity in the impugned order. Heard learned counsel for the parties and perused the impugned orders as well as the documents produced by the parties. Heard learned counsel for the parties and perused the impugned orders as well as the documents produced by the parties. There is no dispute about the fact that earlier final report has been accepted by the court below but the contention of the present petitioner that when final negative report has been accepted it attained finality and further investigation could not be ordered is not acceptable in view of law laid down in AIR 1997 SC 3876 , Union Public Service Commission vs Papaiah and others wherein has been specifically held as under : “The appellant brought the contents of its communication dated January 23, 1995 to the notice of the learned Metropolitan Magistrate through its Misc. Petition No.2040 of 1995 seeking "reinvestigation" but the learned Magistrate, rejected the petition vide order dated November 4, 1995 observing that "rightly or wrongly that Court had passed an order and it had no power to review the earlier order". Here again the learned Magistrate fell into an error. He was not required to "review" his order. He could have ordered "further investigation" into the case. it appears that the learned Metropolitan Magistrate over-looked the provisions of Section 173(8) which have been enacted to take care of such like situations also. That provision reads :- "173(8) - Nothing in this section shall be deemed to preclude further investigation in section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2). " The Magistrate could, thus in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to "further investigate" the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the ’new’ report to be submitted by the investigating officer would be governed by subsection (2) to (6) of Section 173 Cr.P.C. The learned Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained.” Further reliance has been placed by respondent on 2010 Cr. L.J 224 Essar Oil Limited and Ors vs Centra Bureau of Investigation & Anr. Where it has been held as under : “Even after final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) Cr.P.C. after the final report submitted under Section 173(2) has been accepted. It is also evident, prior to carrying out further investigation under Section 173(8) Cr.P.C. it is not necessary for the Magistrate to review or recall the order accepting the final report.” In view of the above, the revisional court was justified to order for reconsideration on the matter when FSL Report as regard to alleged will was on record. Much has been said about the quality of report but it cannot be a ground for consideration u/s 482 Cr.P.C. The contention of the present petitioner is that without the application of the prosecution, Magistrate cannot order further investigation and reliance has been placed on WLC (SC) Criminal 2010(1) 410 Reeta Nag vs State of West Bengal and Others. But here in the present case, case diary has been called for and the police has also stated that he wants to investigate the matter. Apart from it revisional court has ordered consideration of the matter afresh still nothing has been ordered against the present petitioner and he has no locus standi in the present proceedings. This petition is not maintainable on his behest. Petitioner has also placed reliance on WLC (SC) Criminal 2006 (1) 380 Surendra Singh vs State of Bihar where the Magistrate has passed two contrary orders in one order he accepted the final report and in the other order he took cognizance but here in the present case there is no infirmity in the order of revisional court as he rightly ordered consideration in view of law laid down Essar Oil Limited and Ors vs Central Bureau of Investigation & Anr and in the case of Union Public Service Commission vs Papaiah and others (supra) hence this petition being devoid of merit is liable to be dismissed and is dismissed.