IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Crl. Misc. No. M-11246 of 2010 Date of Decision:04.03.2011 Harminder Singh .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. K.B.S. Mann, Advocate for the petitioner. Ms. Rajni Gupta, Addl. AG, Punjab. **** DAYA CHAUDHARY, J.(Oral) The present petition has been filed under Section 482 Cr.P.C for setting aside order dated 27.2.2010 vide which Sub Division Judicial Magistrate, Phillaur has directed SSP for reinvestigation in case FIR No.163 dated 1.8.2008 registered under Sections 302/201/364 IPC at Police Station Phillaur District Jalandhar. While issuing notice of motion on 10.5.2010, following contention of learned counsel for the petitioner was noted down:- “Learned counsel for the petitioner by relying upon the judgment of Hon'ble the Apex court in Mithabhai Pashabhai Patel and others Vs. State of Gujarat, 2010 (1) RCR (Criminal) 171 contends that the matter cannot be reinvestigated.” In response to notice of motion, reply has already been filed on behalf of the State, which is on record. Learned counsel for the petitioner submits that earlier in the Crl. Misc. No. M-11246 of 2010 -2- investigation, the petitioner was found innocent and there was no evidence against the petitioner and co-accused Surjit Kaur and the police submitted an application on 11.11.2008 for discharge of the accused persons. Crl. Misc.No. M-33959 of 2008 was filed by the complainant and the learned Magistrate was directed to find out whether any offence has been committed and inquiry was to be conducted or investigation was called for. The police filed cancellation report before Sub Divisional Judicial Magistrate, Phillaur and notice was issued to the complainant but he did not agree with the cancellation report. Learned counsel for the petitioner further submits that vide order dated 27.2.2010, directions were issued for re-investigation of the case by Senior Police Officer not les`s than the rank of Superintendent of Police and he was also directed to submit a report within a period of three months. The present petition has been filed on the ground that re- investigation cannot be ordered in view of the judgment of Hon'ble the Supreme Court in Mithabhai Pashabhai Patel and others Vs. State of Gujarat, 2010 (1) RCR (Criminal) 171. Learned State Counsel submits that in view of the direction issued by Sub Divisional Judicial Magistrate on 27.2.2010, re-investigation has been initiated but because of the stay granted by this Court on 10.5.2010, re-investigation could not be concluded. Heard the argument of learned counsel for the parties and have also gone through the impugned order dated 27.2.2010 and other documents available on record. It is settled position that re-investigation cannot be ordered but in spite of that, direction was issued to re-investigate the matter which is a subject-matter of challenge in the present petition. Even from the bare Crl. Misc. No. M-11246 of 2010 -3- perusal of the impugned order, nothing is there on the record as to whether it was necessary in the present facts and circumstances of the case to issue direction for re-investigation by SDJM, Phillaur. In view of the law position and the facts and circumstances of the present case, re-investigation cannot be ordered and at the most, further investigation can be ordered if the trial Court comes to the conclusion that there is some material on record and further investigation of the case is necessary in the interest of justice. As in Ramachandran v. R. Udhayakumar & Others, (2008) 5 SCC 413, it was held as under:- “In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code.” In view of the facts and law position as mentioned above, impugned order dated 27.2.2010 is set aside and the trial Court is directed to consider afresh all the material available on record and after going through the evidence, if the trial Court comes to conclusion that there is evidence on record or some requirement is there for further investigation, then necessary order be passed within a period of three months. Disposed of accordingly. March 04, 2011 ( DAYA CHAUDHARY ) renu JUDGE