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2021 DIGILAW 1705 (RAJ)

Ravindra Kumar v. State of Rajasthan

2021-09-13

PUSHPENDRA SINGH BHATI

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ORDER 1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. Learned counsel for the petitioner has shown the impugned orders, which are based upon the judgment of Hon'ble Apex Court in the matter of Hasanbhai Valibhai Quresh Vs. State of Gujarat & Ors. reported in (2005) R.Cr.D 484 Supreme Court, in which, the Hon'ble Apex Court has laid down the law that once the cognizance has been taken upon the police report, then the Court would not exercise its powers under Section 173(8) of Cr.P.C. The aforementioned judgment is followed in number of other judgments by the various other Courts. On this ground, the learned courts below have refused to interfere in the application of the petitioner. 3. Learned counsel for the petitioner further makes a submission that the judgment of Hasanbhai Valibhai Quresh (supra) has been reversed. 4. Learned counsel for the petitioner has referred to the full bench judgment of Hon'ble Apex Court in Vinubhai Haribhai Malaviya & ors. Vs. The State of Gujarat & Anr., reported in (2019) AIR (SC) 5233. The relevant portion of the said judgment reads as follows :- "38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section I73 (8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid- way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156 (3) read With Section 156(1), Section 2(h), and Section 173 (8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they Stand Overruled. Needless to add, Randhir Singh Rana v. State ((Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also Stand overruled." 5. Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they Stand Overruled. Needless to add, Randhir Singh Rana v. State ((Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also Stand overruled." 5. Learned Public Prosecutor admits that earlier the law was that the powers of Section 173(8) of Cr.P.C. were exercised prior to the cognizance orders but since the full bench judgment of Hon'ble Apex Court has come, the same shall apply. 6. In light of the full bench judgment of Hon'ble Apex Court and the limited submission made by learned counsel for the petitioner, the present petition is allowed and the impugned orders dated 19.12.2020 and 16.08.2021 are quashed and set aside and the matter is remanded back to the learned court below to take fresh decision regarding application under Section 173(8) of Cr.P.C. while keeping into consideration the judgment passed by the Hon'ble Apex Court in the matter of Vinubhai Haribhai Malaviya (supra). All pending applications also stand disposed of accordingly.