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Madhya Pradesh High Court · body

2015 DIGILAW 391 (MP)

Brij Kishor Kulshreshtha v. State of M. P.

2015-04-07

N.K.GUPTA

body2015
ORDER 1. As prayed by learned counsel for the parties, matter is heard finally. 2. The applicant has challenged the order dated 31.12.2007 passed by 7th Additional Sessions Judge, Gwalior in Criminal Case No. 411/2007 whereby the order dated 16.10.2007 passed by JMFC Gwalior, in unregistered complaint case “Manoj Arora v. Kurshid Begum alias Sheel and others” was set aside and re-investigation of the case was directed. 3. Facts of the case in short are that the complaint was filed by Manoj Arora against Khurshid Begam and Others for various offences the Magisterial Court vide order dated 16.7.2007 directed to registered a case and submit a report. That, direction was given to SHO Madhavganj, Gwalior. After investigation SHO Madhavganj has submitted a negative report. However, he did not register any case in compliance to the order dated 16.7.2007. 4. After considering the report of the Investigation Officer the JMFC Gwalior vide order dated 16.10.2007 accepted the report filed by the Investigation Officer and opportunity was given to the complainant to adduce his evidence under sections 200 and 202 of CrPC. 5. The revisionary Court vide impugned order reversed the order passed by the Magisterial Court and directed that a case be registered and thereafter a fresh investigation be done by SHO Madhavganj, Gwalior. 6. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the learned counsel for the complainant/respondent No.2 relied on the fact that since no case was registered under section 156(3) CrPC, the investigation done by the Investigation Officer was not an investigation but it was an enquiry. In support of his contention he has placed reliance upon the judgment of the apex Court in case of Mohd. Yousuf v. Smt. Afaq Jahan and another ( AIR 2006 SC 705 ) and judgment passed in case of Dilawar Singh v. State of Delhi ( AIR 2007 SC 3234 ). In both the cases, it is held that when an order under section 156(3) CrPC is passed then it is for the Investigation Officer to register an FIR and to proceed for investigation. However, in the present case the Investigation Officer has investigated the matter but a technical mistake has been committed that he did not register an FIR. 7. The entire investigation is done and the report is negative. However, in the present case the Investigation Officer has investigated the matter but a technical mistake has been committed that he did not register an FIR. 7. The entire investigation is done and the report is negative. Therefore, this Court may direct that report given by the Investigation Officer may be considered as a report under section 169 CrPC to remove the technical mistake committed by the Investigation Officer. It cannot be said that if FIR was not re-gistered then investigation done by Investigation Officer has no value and re-investigation can be directed. The complainant can establish his case before the Magisterial Court and, therefore, for removal of technical mistake reinvestigation cannot be directed and the Sessions Court has committed an error and an opportunity of reinvestigation is given without any reason whereas evidence of various witnesses shall remain same if re-investigation is directed. The Magisterial Court has given opportunity to the complainant to adduce evidence under sections 200 and 202 of CrPC in addition to the evidence collected by the police. 8. According to the investigation report, it appears that it was a matter of civil nature and, therefore, the report of Investigation Officer was negative. The complainant has still opportunity to adduce the evidence before the Magisterial Court under sections 200 and 202 CrPC, therefore, due to technical mistake, re-investigation cannot be directed. 9. On the basis of the aforesaid discussion, it can be said that the order passed by the JMFC was correct, there was no illegality or perversity in the order so that revisionary Court could make any interference in the matter. Hence, the order passed by the revisionary Court cannot be maintained. Consequently, revision filed by the applicant Brij Kishore Kulshreshtha is hereby allowed. The impugned order dated 31.12.2007 passed in Criminal Revision No.411/2007 by 7th Additional Sessions Judge, Gwalior is hereby set aside whereas order passed by the JMFC Gwalior dated 16.10.2007 is hereby confirmed. The complainant has right to adduce the evidence under sections 200 and 202 CrPC and such evidence can be adduced. However, if the complaint has been dismissed by the Magisterial Court in last seven to eight years for want of any evidence then no fresh opportunity be given to the complainant to adduce the evidence under sections 200 and 202 CrPC. 10. Copy of the order be sent to the Court below for information and compliance.