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2023 DIGILAW 1009 (ALL)

Pooja Sharma @ Pinkey Giri v. State of U. P.

2023-04-12

SADHNA RANI (THAKUR)

body2023
JUDGMENT : 1. Heard learned counsel for the applicant, learned A.G.A. and perused the record. 2. By moving this application prayer is made to quash the order dated 30.09.2022 passed by the Judicial Magistrate, Mathura arising out of Case Crime No. 1538 of 2018, under Sections 376D, 506 IPC Police Station Highway, District Mathura in Case No. 6936 of 2020 (State Vs. Satendra Bhati and others and to allow the application dated 19.07.2022 filed by the applicant before the trial court for further investigation in the case filed under Section 173 Cr.P.C. 3. Vide order dated 30.09.2022 the Judicial Magistrate, Mathura rejected the application of the applicant filed under Section 173 (8) Cr.P.C. 4. As per the facts of the case, an application was moved by the applicant under Section 156 (3) Cr.P.C. on 16.08.2018 whereby an FIR, Case Crime No. 1538 of 2018 regarding incident dated 30.07.2018 was registered against Satyendra Bhati, Gaurav and one unknown person under Sections 506 and 376D IPC. 5. It was the allegation of the applicant that she was from a very poor family. On the basis of a telephonic call of Satyendra Bhati that he would arrange a job for her, on 30.07.2018 at 2.00 p.m. the applicant, who was a 23 years old married lady, came at Mandi Chauraha, Saukh Road, from where Satyendra took her to an electronic shop at Saunkh Road, Mathura by his motorcycle. In the shop computers were fixed, two persons were already present there. Satyendra disclosed himself to be a financer. One person went out of the shop and when she was busy in talking with Satyendra, the person who went out, closed the shutter of the shop and Satyendra on the point of pistol and other person Gaurav holding her hair gave her threat of life, laid her down on the floor and committed rape on her one by one. After giving threat of life she was directed to leave the place. She was also followed by the accused persons. When she went to lodge her FIR, neither her First Information Report was lodged nor she was medically examined. On 09.08.2018 she sent the applications to the SSP, Mathura, Chief Minister, U.P. and I.G. Agra by registered post but nothing could be done. The enquiry from Satyendra regarding that unknown person is must and pistol is also to be recovered. 6. On 09.08.2018 she sent the applications to the SSP, Mathura, Chief Minister, U.P. and I.G. Agra by registered post but nothing could be done. The enquiry from Satyendra regarding that unknown person is must and pistol is also to be recovered. 6. On this application under Section 156 (3) Cr.P.C. of the applicant FIR was registered and after recording the statements of the victim under Sections 161 and 164 Cr.P.C. on 09.10.2018 and 27.10.2018 respectively and after due investigation charge sheet was submitted against accused Satyendra and Gaurav under Sections 376D and 506 IPC on 05.04.2019, and the cognizance was taken by the court on 01.05.2019. 7. On 19.07.2022 the applicant moved an application under Section 173 (8) Cr.P.C. before the trial court with the version that prior to 30.07.2018 she met a person in Aligarh, who lured her of providing job and because of this enticement on 30.07.2018 at 2.00 p.m. she reached at the fixed place Mandi Chauraha, Mathura and met a person, who was tall and dark and about 50 years old. He took her in a shop. He and his companion misbehaved her there. The other person was also about 45 years of age, dark complexioned having dark spots on his face with a cut mark on his forehead. She was asked to come again after eight days. When on 09.08.2018 she reached there again, she could not locate the shop and that time she met two persons whom she disclosed her plight. They disclosed her the names of Satyendra Bhati and Gaurav as the persons who committed wrong with her and assured her of every help. On the basis of information provided by them only, she sent her complaint to the SSP and other officers and these persons started proceedings on her behest on 16.08.2018 in the court. These persons suggested her the age of Satyendra Bhati to be 32 years and age of Gaurav as 23 years. Though initially she resisted the same but due to sympathy of those persons she could not resist much and at the time of statement also, they compelled her to give statement as per their version. After that, they eloped and the applicant could not met them again. Though initially she resisted the same but due to sympathy of those persons she could not resist much and at the time of statement also, they compelled her to give statement as per their version. After that, they eloped and the applicant could not met them again. Now through police she came to know that Satyendra Bhati is not of 50 years of age or tall or dark complexioned person nor Gaurav is 45 years old dark, complexioned person, nor they have any shop of their own. Satyendra Bhati and Gaurav are innocent. She gave the affidavit to the SSP Mathura on 05.01.2019 mentioning the correct facts but even then the charge sheet has been filed against Satyendra Bhati and Gaurav after wrong investigation. Hence, prayer was made for further investigation by the police concerned. 8. This application of the applicant was rejected vide order dated 30.09.2022 by the Judicial Magistrate, Mathura on the ground that on the charge sheet against Satyendra Bhati and Gaurav cognizance has been taken on 01.05.2019 and the case is fixed for the appearance of the accused persons. The charge sheet has been filed on the basis of evidence collected by the investigating officer. Hence, the court did not find any ground for allowing the application of the applicant and finally rejected the same. 9. If we go through the concerned law, it is Section 173 (8) Cr.P.C. which may be extracted as below:- Section 173(8) Cr.P.C. "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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 subsection (2)." 10. Thus, from perusal of this section it is clear that the Magistrate has a right to order for further investigation. 11. Thus, from perusal of this section it is clear that the Magistrate has a right to order for further investigation. 11. The same view has been expressed by the Apex Court in Luckose Zachariah @ Zak Appellants Nedumchira Luke and Others Versus Joseph Joseph and Others, 2022 LiveLaw (SC) 230, wherein the Apex Court opined that "it would also be in the interest of justice that this power (power of further investigation) 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." 12. In para-31 of the judgement Vinay Tyagi Vs. Irshad Ali @ Deepak & others, 2013 0 AIR (SCW) 220 the Apex Court observed as under:- "Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code." 13. Thus, the power of Magistrate to direct further investigation is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. 14. In the present case, learned counsel for the applicant made his argument by putting the fact before the court as if the applicant is an accused in the case but from the perusal of the record, it is clear that it was the complainant/alleged victim only, who had moved this application for further investigation alleging the facts. 15. Learned counsel for the applicant placed before the court the judgement in Bikash Ranjan Rout Vs. State through the Secretary (Home), Government of NCT of Delhi in Criminal Appeal No. 687 of 2019, SLP (Criminal) No. 297 of 2015 decided on 16th April, 2019, wherein it has been clearly laid down by the Apex Court that if the cognizance has been taken by the Magistrate he will have no power to direct further investigation suo motu. He can direct the further investigation only if the investigating agency seeks such directions. Thus, both the arguments and the judgement placed by the learned counsel for the applicant before the court are against his case, wherein not the accused but the complainant himself had moved for further investigation. He can direct the further investigation only if the investigating agency seeks such directions. Thus, both the arguments and the judgement placed by the learned counsel for the applicant before the court are against his case, wherein not the accused but the complainant himself had moved for further investigation. Again the applicant in the present case is not an accused as argued by the learned counsel for the applicant rather she is the complainant in the case, who had moved the application before the Magistrate concerned mentioning the facts that on the telephonic call of a person she came at Mathura at the indicated place where she met with a person of 50 years of age, who was tall and dark. He took in a shop where he and his companion, who was about 45 years of age having black spots on the face and cut mark on the forehead and dark complexioned misbehaved with her and she was called after eight days. Again when she reached she could not locate the place and she met two other persons, who disclosed the names of the persons, who misbehaved her, as Satyendra Bhati and Gaurav. On the basis of their suggestion, she named Satyendra Bhati and Gaurav in the First Information Report, later on she came to know that on the basis of appearance and age, suggested by two unknown persons, the named persons in the FIR were different persons and she prayed for further investigation as he did not want to implicate innocent persons. The Magistrate finding the facts and circumstances not acceptable, opined that after taking cognizance it would not be proper for the Magistrate to order for further investigation. 16. Whether this power of further investigation could be exercised by the Magistrate after taking the cognizance of the offence also? judgments Vinay Tyagi Vs. Irshad Ali @ Deepak & others (supra) and Luckose Zachariah @ Zak Appellants Nedumchira Luke and Others Versus Joseph Joseph and Others (supra) are silent about this point. However, in judgment Bikash Ranjan Rout Versus State through the Secretary (Home), Government of NCT of Delhi (supra), the Apex Court specifically held that Magistrate if not satisfied with charge-sheet may direct further investigation but before taking cognizance. After taking cognizance the Magistrate will have no power to suomoto direct further investigation, it can be directed if the investigating agency seeks such direction. 17. After taking cognizance the Magistrate will have no power to suomoto direct further investigation, it can be directed if the investigating agency seeks such direction. 17. Section 173(8) Cr.P.C. also speaks of the same that nothing in this section "shall be deemed to preclude further investigation in respect of an offence after a report sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of police station obtains further evidence, oral or documentary, he shall further forward to the Magistrate a further report." Thus, it is clear that the Magistrate can exercise this power of further investigation on the application of the investigating officer even if the cognizance has been taken by the court. The Magistrate cannot suo moto exercise its power to order further investigation. 18. In the opinion of the court, in the case in hand the view taken by the Magistrate cannot be interfered with, because as per Section 173 (8) Cr.P.C. and the rule laid down in Bikash Ranjan Rout (supra) the Magistrate has no power to order for further investigation suo motu after taking cognizance on charge sheet. He could order for further investigation in exceptional circumstances and that too on the prayer of the Investigating Officer which is not the position in the present case. 19. However, it will always be available to the Magistrate to take recourse to the provision of Section 319 Cr.P.C. if any material is disclosed during examination of the witnesses during trial. 20. Hence, in the opinion of the court, there is no ground to interfere with the order passed by the Magistrate concerned. The application having no merits is liable to be dismissed. 21. The application under Section 482 Cr.P.C. is hereby dismissed.