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2020 DIGILAW 272 (ALL)

Nusrat v. State of U. P.

2020-01-23

RAM KRISHNA GAUTAM

body2020
JUDGMENT : RAM KRISHNA GAUTAM, J. 1. The applicants namely, Nusrat, Noor Mohammad, Nurkan, Furkana, Anjum, by means of this application under Section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with prayer to set aside impugned charge-sheet dated 26.9.2019, order dated 4.9.2019, passed by Judicial Magistrate, Mawana, Meerut as well as the entire proceeding of Criminal Case No. 7075/9 of 2019, State vs. Nusrat, arising out of Case Crime No. 4 of 2019, under Sections 498A, 323, 504, 506, 376D, 307, 201, 342 I.P.C. and Section ¾ of D.P. Act, P.S. Mawana, District Meerut, pending in the Court of Special Chief Judicial Magistrate, Meerut, which was subsequently filed after filing of previous charge-sheet and taking of cognizance over it, in course of further investigation made by Investigating Officer and in accordance with order of Magistrate, over an application moved under Section 173(8) of Cr.P.C. 2. Heard learned counsel for the applicants and learned A.G.A. for the State. 3. Learned counsel for the applicants argued that Case Crime No. 4/2019, was got registered under Sections 498A, 323, 504, 506, 376-D, 307, 201, 342 I.P.C. and Section 3/4 of D.P. Act, upon the report of Saima, against Nusrat-husband, Noor Mohammad father- in-law, Nurkan brother-in-law, Furkana sister-in-law, Anjum sister-in-law and one friend of Nurkan. This was investigated, wherein, charge-sheet was filed and cognizance over this charge-sheet was taken, for offences punishable under Sections 498A, 323, 504, 506 I.P.C. read with Section 3/4 of D.P. Act. Offences punishable under Sections 376-D, 307, 201 and 342 I.P.C. were held to be not made out and for those offences, charge-sheet was not filed. Subsequently, an application for further investigation was moved by Investigating Officer, before Magistrate and it was rejected, vide order dated 27.8.2019. It was a detailed judicial order, whereby, application moved under Section 173(8) of Cr.P.C. was rejected. Again, an application was moved by I.O. with same prayer, which was allowed by order dated 4.9.2019, by writing a single word “permitted” by Judicial Magistrate and in view of this, further investigation, made by Investigating Officer, subsequent, charge-sheet was filed, wherein, cognizance was taken for offences including offences punishable under Sections 376-D, 307, 201 and 342 I.P.C. which was apparently erroneous. Hence, this application under Section 482 of Cr.P.C. was filed. But due to mistake by steno, both of the cognizance taking orders were challenged. Hence, this application under Section 482 of Cr.P.C. was filed. But due to mistake by steno, both of the cognizance taking orders were challenged. Whereas, this application was filed for challenging second and subsequent cognizance taking order. Hence, on previous date, this Court permitted for making deletion and correction in application, with a direction for filing of supplementary affidavit, which has been filed on today and taken on record. Hence, this subsequent investigation, in form of further investigation, was not permitted and the subsequent charge-sheet for those additional sections were under abuse of process of law. Hence, for ensuring end of justice, this application has been filed with above prayer. 4. Learned counsel for the informant vehemently opposed with this contention that primarily it is being challenged that in Para 5 of affidavit filed on today, it has been written that it is the first petition under Section 482 of Cr.P.C. which is against the fact and it can never be said that owing to error of steno relief was mentioned in application. The subsequent objection is that it was the order of Senior Superintendent of Police for making further investigation, which is provided under Section 173(8) of Cr.P.C. to Police Officer for making further investigation, in case of receiving of further changed circumstances and fact, even after, cognizance taken by Magistrate in a charge-sheet filed before, and this order of S.S.P. has not been challenged. Inspector in-charge submitted application before Magistrate for a permission, which needs to be a formal permission for further investigation, but it was rejected because there was no specification as to what evidence were available and what compels for moving of this application. Under above circumstance, application was rejected. Subsequent application was moved, with mentioning of those facts and it was allowed by Magistrate and after obtaining this formal permission by Magistrate, investigation was made, wherein, charge-sheet was filed and cognizance over it, was taken. Hence, the application merits its dismissal. It be dismissed. 5. Learned AGA has also vehemently opposed the argument of learned counsel for the applicants. 6. The mere question to be seen at this juncture, is as to whether further investigation continued in exercise of permission granted by Magistrate, was erroneous? Or it was valid permission. 7. Hence, the application merits its dismissal. It be dismissed. 5. Learned AGA has also vehemently opposed the argument of learned counsel for the applicants. 6. The mere question to be seen at this juncture, is as to whether further investigation continued in exercise of permission granted by Magistrate, was erroneous? Or it was valid permission. 7. Apex Court in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Others, AIR 2019 SC 5233 , has held that Magistrate has power to order further investigation under Section 156(3) of Cr.P.C. even at post cognizance stage. At page No. 60, Apex Court has discussed various previous laws, which were of this view that in post cognizance stage, power to permit for further investigation by Magistrate was not there, but this was held to be incorrect law and this power remains with Magistrate at even post cognizance stage. 8. Section 173(8) of Cr.P.C. provides:- “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-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 sub-sections (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 sub-section (2).” 9. Meaning thereby, Magistrate needs for giving a formal permission to be given for further investigation. Though this power remains with Police officer under circumstances, when new facts emerges regarding the same case crime number and it is never mandatory that further investigation may not be proceeded by Investigating Officer, if Magistrate has denied for further investigation. 10. Now, in present case, the order of Magistrate, passed while rejecting application previously moved, under Section 173(8) of Cr.P.C. reveals that law of Apex Court in Bikash Ranjan Rout vs. State through the Secretary (Home), Govt. 10. Now, in present case, the order of Magistrate, passed while rejecting application previously moved, under Section 173(8) of Cr.P.C. reveals that law of Apex Court in Bikash Ranjan Rout vs. State through the Secretary (Home), Govt. of NCT Delhi, AIR 2019 SC 2002 as well as in Amrut bhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Others, AIR 2017 SC 774 , has been discussed, wherein, the law is very well elaborated that further investigation is to be initiated on application of prosecution/ investigating agency by Magistrate, if there is detection of material evidence/fresh evidence. Its purpose is to bring the true facts before the Court, even if they are discovered at a subsequent stage to the primary investigation. Meaning thereby, in case of recovery of further evidence related with above offence, further investigation under Section 173(8) of Cr.P.C. is to be directed. But the condition in which this application was rejected, was that that nothing has been mentioned by Investigating Officer in its application regarding what kind of evidence is there, which required further investigation. Hence, application was vague in nature, that is why it was rejected. Meaning thereby, merit of application was not discussed in above order, but on the basis of devoid of fact to be written in it and being it a vague application, it was rejected. Subsequently, application by I.O. was moved with above fact, as was there, requiring further investigation and the order of rejection by Court of Magistrate was mentioned in this application that once an application was moved and it was rejected because of application being vague and with no fact and on this application, the fact which came in the light, were written. Then after, the same Magistrate permitted for further investigation. Hence, the very argument of learned counsel for the applicants that first order was not mentioned in this application, which was subsequently moved, was incorrect and against the fact. It was written in that application, subsequently moved, that previous application, moved by I.O., was not with that facts, which were required in view of law of Apex Court given in case of Amrut Bhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Others (supra). Hence, the order for formal investigation could not be obtained. 11. It was written in that application, subsequently moved, that previous application, moved by I.O., was not with that facts, which were required in view of law of Apex Court given in case of Amrut Bhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel and Others (supra). Hence, the order for formal investigation could not be obtained. 11. In present case, a First Information Report was lodged against accused persons, with accusation of offences punishable under Sections 376-D, 307 I.P.C. and it was investigated and mentioned that those offences were not made out i.e. it is nothing new added by I.O. Rather, it was since the beginning, and the contention of informant-victim was intact. Subsequent investigation mentioned the evidence collected after submission of previous charge-sheet and on the basis of that evidence, subsequent charge-sheet was filed, over which cognizance was taken. Hence, this Court, in exercise of inherent jurisdiction under Section 482 of Cr.P.C. is not to embark upon factual matrix because it may prejudice trial and the fact is to be seen by trial court. The order of Magistrate for further investigation was a formal permission, given in accordance with law. Hence, this application merits its dismissal. 12. Application dismissed, as such.