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2017 DIGILAW 2219 (ALL)

MISHRI PRASAD v. STATE OF U. P.

2017-09-20

RAJUL BHARGAVA

body2017
JUDGMENT : Hon'ble Rajul Bhargava,J. Heard Sri Vineet Kumar Singh, learned counsel for the revisionist and learned AGA for the State. The instant revision has been filed against the judgement and order dated 25.5.2017 passed by Additional Session Judge, Court no. 2, Maharajganj in Criminal Misc. Case No. 73 of 2017 (State vs. Jagdish Mall and others) by which the protest application dated 17.1.2017 filed by the revisionist under section 173(8) of Cr.P.C. has been rejected. Learned counsel for the revisionist has argued that the impugned judgement and order passed by the court below is arbitrary, unsustainable and without application of mind. The main grounds of the revisionist is that the police has illegally exonerated the accused in section 395 IPC and section 3(2)(V) SC/ST Act during investigation. The Investigating Officer did not record the statement of certain witnesses, who had submitted their affidavits to the S.S.P. during investigation, therefore, it warranted further investigation of the case u/s 173(8) Cr.P.C. On perusal of the impugned order the learned judge rejected the application on the ground that he did not find sufficient ground for ordering further investigation on account of the fact that certain section of Indian Penal Code was dropped and the chargesheet u/s 395 IPC and section 3(2)(V) SC/ST Act has not been filed. It has been recorded that so far as the commission of said offence are concerned, it can be taken care of and considered at the time of framing of charges against the accused persons and the same can always be altered at any stage of the trial if any such evidence appears in the statements of witnesses recorded on oath during trial. It may be noted that learned Judge has not rejected the application for further investigation at the behest of the informant on the ground of its non maintainability. However, I may record that the alleged application for further investigation is dated 17.1.2017 and it is not clear as to when the said application was submitted to the court. The fact remains from the bare perusal of the charge-sheet, which has been filed as annexure -2 to the affidavit filed in support of the application, which indicates that the trial court had taken cognizance on the charge-sheet on 19.1.2017 submitted against the accused- respondent no. 2 to 7. The fact remains from the bare perusal of the charge-sheet, which has been filed as annexure -2 to the affidavit filed in support of the application, which indicates that the trial court had taken cognizance on the charge-sheet on 19.1.2017 submitted against the accused- respondent no. 2 to 7. Now the question remains to be answered as to whether at the instance of first informant the court below after taking cognizance could have ordered for further investigation, this issue is no longer res-integra. In the latest judgment pronounced by the Hon'ble Apex court in the case of Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and others reported in (2017) 4 SCC 177 wherein it has been held that after cognizance has been taken on the basis of police report, at that stage, neither the Magistrate suo motu nor on an application filed by the complainant/ informant or the accused direct further investigation. Such a course would be open only on the request of the Investigating Agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial. In the light of the aforesaid, I do not find any illegally or infirmity in the order passed by the court. The instant revision lacks merit and is accordingly dismissed. However, it is always open for the petitioner to approach before the appropriate authority as provided under law for further investigation of the case u/s 173(8) of Cr.P.C., if so advised.