IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Criminal Misc. Petition No.2545/2012 [ENTITY] Vs. State of Rajasthan and Others Date of Order 09.08.2012 Present Hon'ble Mr. Justice [ENTITY] Shri [ENTITY], counsel for petitioner Shri [ENTITY], Public Prosecutor Reportable By the Court:-
This petition has been preferred by petitioner aggrieved by inaction of the police in not filing challan against accused for offence under [SECTION] [ACT], with the prayer that police be directed to reinvestigate the matter in [CASE NUMBER] for offence under [SECTION] [ACT], originally registered for offence under [SECTION] [ACT], because now the injured has died.
Shri [ENTITY], learned counsel for petitioner has invited attention of the court towards FIR No.211/2011 lodged with Police Station Sadar, Gangapurcity, District Sawaimadhopur, for offence under [SECTION], [SECTION], [SECTION] of the [ACT] and [SECTION] of the [ACT], and argued that originally the first information report was registered under those provisions but eventually the injured [ENTITY] died of injuries, which he received in incident in question, yet police did not investigate the matter from the point of view of offence under [SECTION] [ACT]. The charge-sheet has been filed only for offence under [SECTION] [ACT]. Learned counsel in this respect referred to opinion as to the cause of death in the postmortem report.
Shri [ENTITY], learned Public Prosecutor, while opposing the petition, argued that once the challan has been filed and cognizance has been taken by the Magistrate, he would have no jurisdiction to direct reinvestigation. In the present case, challan having already been filed and cognizance having been taken, the only stage for the Magistrate or the trial court is to take cognizance for graver offence would be when some evidence has been recorded and it is only at that stage by recourse of [SECTION] of the [ACT] can he take cognizance.
I have given my anxious consideration to rival submissions and perused material on record.
In [PRECEDENT], while discussing provisions of [SECTION] of [ACT], the Supreme Court held that once charge-sheet is filed under [SECTION], Magistrate may on basis of protest petition, take cognizance of offence complained of, or, on application made by investigating authorities, permit further investigation under [SECTION]. However, the Supreme Court observed that Magistrate cannot suo-motu direct further investigation or reinvestigation on account of bar under [SECTION]. The Supreme Court in that case further held that after filing of charge-sheet, it is not permissible to Investigating Officer to further investigate the matter. And that the Magistrate also after charge-sheet is filed, cannot direct de novo investigation.
In [ENTITY] v. Dharmendra Bafna and Another (2009) 7 SCC 685, it has been held by the Supreme Court that when a final report is filed by Investigating officer in exercise of his power under [SECTION] of [ACT], informant has to be given notice. He may file a protest petition, which in a given case may be treated to be a complaint petition, on the basis whereof, after fulfilling the other statutory requirements, cognizance may be taken. Magistrate can also take cognizance on the basis of materials placed on record by investigating agency. It is also permissible for a Magistrate to direct further investigation. When first information report is lodged in respect of a cognizable offence, upon completion of investigation, the Investigating Office would file a police report. Reiterating its earlier judgment in [PRECEDENT], the Supreme Court in [ENTITY], supra, with regard of power of court to direct police officer to record an F.I.R. in exercise of power under [SECTION] of the [ACT], observed that Magistrate has also a duty to see that the investigation is carried out in a fair manner and order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.
In [PRECEDENT], it was held by the Supreme Court that under [SECTION] of [ACT] that though after completion of investigation under [SECTION] of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. Not only the Investigating Officer may direct exercising its power for further investigation in similar situations but when new fact come to his notice and when further investigation is necessary to be carried out from that angle but a Magistrate or Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice.
In [PRECEDENT], it was held by the Supreme Court that when cognizance had already been taken and matter was pending, proper procedure for complainant was to move the Sessions Court under [SECTION] of [ACT] requesting for a direction to further investigate the matter and not under [SECTION] [ACT]
Only deviation that has been made by the Supreme Court in [PRECEDENT] from its earlier judgment in [PRECEDENT] is that any further complaint in connection with same connected offence with regard to which an FIR has already been lodged, same incident, which are part of same transaction wold not be permissible. It is therefore that the Magistrate is fully competent to direct further investigation of the matter.
Analysis of law in view of judgments of the Supreme Court, referred to above, clearly shows that merely because the Magistrate has taken cognizance and challan has been filed for offence under [SECTION] [ACT], there is no impediment for him to direct further investigation into the matter to find out whether the death of [ENTITY] took place due to same injury found on her head, for which charge-sheet was originally filed under [SECTION] [ACT] and, which, in the postmortem report of the deceased, has been opined to be cause of death in the term that the deceased died due to coma which was brought about due to ante-mortem head injury mentioned as injury no.1. However, the prayer of complainant-petitioner to direct reinvestigation in the matter cannot be, in view of settled proposition of law as discussed above, granted and what lies in the domain of the court is to direct further investigation in the matter and not to reinvestigate the matter.
Learned Magistrate under [SECTION] and other provisions of the [ACT], in its discretion, has got all the powers to direct further investigation/re-investigation of the matter. It is not that this court does not have the powers for issuing such directions but in the peculiar circumstances of the case when already on the basis of very same first information report, police has conducted investigation and filed challan, it would not be appropriate for this court to simultaneously entertain this petition for directing so. Petitioner as complainant has every right to approach the concerning Judicial Magistrate, who shall examine the matter whether to be further investigated from the point whether deceased [ENTITY] died of injuries which was made basis of filing challan under [SECTION] [ACT]
With that observation, this petition stands disposed of.
([ENTITY]) J.
Jaiman 47 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
[ENTITY] PS-cum-JW