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Rajasthan High Court · body

2015 DIGILAW 753 (RAJ)

Pushkar @ Pushpendra v. State of Rajasthan

2015-04-01

M.N.BHANDARI

body2015
JUDGMENT : Hon'ble BHANDARI, J.—By this petition, a prayer is sought for quashing of further investigation contemplated in pursuance to FIR No.85/2011. 2. Learned counsel submits that after registration of FIR, investigation was made followed by charge sheet against other accused. The investigation against the petitioner was kept pending under Section 173(8) Cr.P.C. It has not been concluded, as yet, though trial against other accused has already been terminated with an order of conviction. The petitioner was tried to be arrested, thus moved bail application under Section 438 Cr.P.C. The Investigating Officer stated no new evidence against the petitioner. In view of the above, further investigation deserves to be quashed as charge sheet cannot be filed against the petitioner without further material. The other argument is regarding delay in making investigation by keeping it pending under Section 173(8) Cr.P.C. Once the original proceedings were terminated with conviction of other accused, the court becomes functus officio so as the IO, thus no investigation should be allowed further. It is moreso when it is grossly delayed. 3. I have considered the submission made by learned counsel for petitioner and perused the record. 4. An FIR was registered for offence under Section 302 IPC apart from other provisions of IPC. The investigation was conducted followed by charge sheet against other accused. They were convicted, as stated by learned counsel for petitioner. The question for my consideration is as to whether investigation can be kept pending against the petitioner after termination of the proceedings against the other accused. The answer of the aforesaid question is in negative. The termination of the proceedings is qua the accused against whom charge sheet was filed followed by trial and not for accused against whom, investigation was kept pending. The investigation under Section 173(8) Cr.P.C. is not dependable on the trial against other accused for whom charge sheet had been filed. Mere termination of proceedings against other accused does not make IO to be functus officio till the FIR is alive. The first argument raised by learned counsel for petitioner, thus cannot be accepted. 5. It is stated that on filing of bail application under Section 438 Cr.P.C., it was informed that no new evidence has been collected, thus on the aforesaid ground also, investigation deserves to be quashed. I have considered the aforesaid issue also. The first argument raised by learned counsel for petitioner, thus cannot be accepted. 5. It is stated that on filing of bail application under Section 438 Cr.P.C., it was informed that no new evidence has been collected, thus on the aforesaid ground also, investigation deserves to be quashed. I have considered the aforesaid issue also. Whether any evidence has come in the investigation or not is to be seen. If no evidence comes, obviously conclusions would be drawn favourable but presumption cannot be taken that no material exist against the petitioner so as to quash the investigation. There is nothing on record to show that no further evidence has been collected against the petitioner. In absence of arrest of the petitioner, investigation could not be completed. The accused may be required for recovery or for other purposes, to conclude the investigation. 6. The third issue is about the reasonable period to complete the investigation. The aforesaid argument is attractive. If facts of this case are considered, so as the bail order, it reveals that investigation could not be completed in absence of availability of petitioner, who is required for completion of investigation. In any case, appropriate direction can be given to complete the investigation within reasonable time. 7. The last issue is that when no evidence came during the trial of other accused, investigation should not be kept pending. If evidence would have been laid, an application under Section 319 Cr.P.C. could have been preferred against other accused. I find that an application under Section 319 Cr.P.C. can be filed, if evidence comes during the course of trial against other accused. If prosecution leads evidence concerned to the accused only, leaving others, against whom investigation is kept pending, application under Section 319 Cr.P.C. cannot be filed but it would not mean that investigation in the case cannot proceed. Section 319 Cr.P.C. depends on evidence in the trial. In the background aforesaid, even the last argument of learned counsel for petitioner cannot be accepted. 8. This petition is, however, disposed of with the direction to the IO to complete the investigation against the petitioner at the earliest and that too, within time frame. If petitioner is required for completion of investigation, proper measures would be taken for securing his presence No interference is to be made in the investigation, in view of the direction aforesaid.