HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 76
Case :- APPLICATION U/S 482 No. – 40597 of 2019
Applicant :- Ratnakar Shukla
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Amit Misra,Sri Virsh Misra ,Senior Advocate
Counsel for Opposite Party :- G.A.
Hon’ble Mrs. Manju Rani Chauhan,J.
1. Heard Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra, learned counsel for the applicant and learned A.G.A. for the State.
2. This application U/s 482 SectionCr.P.C. has been lodged with the prayer to quash the order dated 05.08.2019 passed by A.C.M.M. II, Kanpur Nagar as well as further proceedings of Case No. 13357 of 2019 arising out of Crime No. 1207 of 2018, under Section 354 IPC, P.S.-Naubasta, District-Kanpur Nagar pending in the Court of A.C.M.M. II, Kanpur Nagar.
3. It has been contended by learned counsel for the applicant that for the incident dated 28.12.2018, the F.I.R. was lodged against the applicant. After investigation, the charge sheet has been submitted on 07.05.2019 and during investigation ten witnesses were examined, however, the statement of Km. Aliya, who informed about the incident to the parents of Opposite party no.2 was not recorded by the Investigation Officer during investigation. Since the investigation was done in a casual manner and one sided as neither statement of Km. Aliya was recorded nor the statement of Principal of the alleged college were recorded, hence an application was moved by the applicant on 01.08.2019 requesting for further investigation but the same has been rejected by the court below in a very mechanical and casual manner vide order dated 05.08.2019. Such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in rejecting the applicant’s application, but he also exceeded his jurisdiction for passing impugned order under Section 173(8) Cr.P.C. Accordingly, Under Section 173(8) Criminal Procedure Code, 1973 reads as under:-
“(8) 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).”
4. In support of his contention, learned counsel has relied upon the judgment of Hon’ble Apex Court in the case of Ram Lal Narang and Others vs. State (Delhi Administration); AIR (1979) SC 1791 wherein it has been held that it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. In para no. 23 of the said judgment, it was observed as follows:-
“23. As observed by us earlier, there was no provision in the SectionCr.P.C., 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts.
In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1989 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.”
5. Learned counsel for the applicant has also relied upon the judgement of the Apex Court in the case of SectionSamaj Parivartan Samudaya and Others vs. State of Karnataka; (2012) 7 SCC 407 wherein it has been held that sometimes the investigating agency had to keep its options open to continue with investigation, as certain other relevant facts, incriminating materials and even persons, other than persons stated in F.I.R. as accused might be involved in commission of crime. The basic purpose of an investigation was to bring out truth by conducting fair and proper investigation, in accordance with law and ensure that guilty were punished. Thus, the SectionCrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-Sections (2) to (6) of Section 173 Cr.P.C. to the Court.
6. It has further been contended by learned counsel for the applicant that further investigation by the investigating agency, after presentation of a chalan is persumply in any case impliedly but in no event is impermissible.
7. In view of the above, the impugned order dated 05.08.2019 is patently illegal and the same cannot be sustained at this stage. The Magistrate was given an information, hence he has no power to reject the application of the applicant for further investigation. Therefore, the impugned order dated 05.08.2019 is set aside and this application is finally disposed of with a direction to the concerned Magistrate to decide the application filed by the applicant for further investigation within two months in accordance with law, from the date of production of certified copy of this order.
Order Date :- 22.11.2019
JK Yadav
