Criminal Misc. No. 54033-M of 2005 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 54033-M of 2005 Dated of decision : January 21, 2008 Dr. Rajiv Sharma .....Petitioner Versus State of Punjab ...Respondent *** CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL **** Present: Mr. S. S. Narula, Advocate for the petitioner. Mr. K.D.S.Sidhu, Deputy Advocate General, Punjab for respondent. RAJESH BINDAL, J. The prayer made in this petition filed under Section 482 of the Code of Criminal Procedure ( for short “the Code”) is for quashing of order passed by learned Magistrate dated February 3, 2005 whereby the case has been remitted back for reinvestigation when the State had submitted report for cancellation of FIR before the learned Magistrate and further for the FIR No. 545 dated October 24, 2000 registered under Sections 186, 353, 332, 506, 379 IPC at Police Station Civil Lines, Patiala and all subsequent proceedings arising therefrom. The pleaded facts are that on October 24, 2000 at about 8.00 A.M., the petitioner while going to drop his children to school was stopped at Naka for not wearing seat belt. It is not denied that at that time petitioner was not carrying other papers of vehicle. However, on request made by the petitioner to allow him to drop the children at school as they were getting late, he was permitted with a promise that he will come back and get his papers checked. After dropping the children to school, the petitioner Criminal Misc. No. 54033-M of 2005 -2- **** alongwith his wife Dr. Bela Sharma came back on the spot alongwith documents of the vehicle. ASI Swaran Singh, who was incharge at the spot misbehaved with him and used intemperate language on which the petitioner rebuked him. As petitioner is a well reputed Eye Surgeon in the city, he alongwith ASI Swaran Singh went to Senior Superintendent of Police, Patiala to settle the matter. However, he was not available. According to the petitioner he was wrongly challaned by ASI Swaran Singh. Further it is submitted that apprehending a complaint against him, ASI Swaran Singh lodged FIR bearing No. 545 dated October 24, 2000 under Sections 186, 353, 332, 506, 379 IPC at Police Station Civil Lines, Patiala against the petitioner for assault and tearing of uniform and also theft of the car owned by the petitioner himself. The case was investigated by Superintendent of Police (HQ), Fatehgarh Sahib, who after conducting enquiry recommended the cancellation of FIR. Copy of the report dated April 23, 2001 was submitted to D.I.G. Range, Patiala, who concurring with the report directed for cancellation of the FIR and taking appropriate action against ASI Swaran Singh. Earlier the petitioner filed a quashing petition vide Criminal Misc. No. 29197-M of 2001. In reply filed by the State, Superintendent of Police, city, Patiala stated cancellation report had already been filed in the concerned Court on August 3, 2002. The petition was disposed of as infructuous vide order dated August 8, 2002. However, the petitioner was given liberty to file a fresh petition in case cancellation report was not accepted by the Illaqa Magistrate. After 2-1/2 years of filing of cancellation report, learned Magistrate vide order dated February 3, 2005 directed for reinvestigation of the case without specifying any reason for disagreeing with the cancellation report. It is at this stage, petitioner approached this Court again. I have heard Shri S.S.Narula, learned counsel for the petitioner and Shri K.D.S. Sidhu, learned Deputy Advocate General, Punjab for the respondent and with their assistance perused the paper book. Learned counsel for the petitioner submitted that continuance of proceeding against the petitioner in the present case especially keeping in Criminal Misc. No. 54033-M of 2005 -3- **** view the fact that cancellation report approved by the DIG had already been filed before the learned Magistrate is nothing else but an abuse of process of law. The story put up by the complainant in the FIR is self-contradictory, which has already been examined by the higher authorities in the department as the complainant himself is an ASI. The facts stated in the complaint are difficult to digest as no one can believe that person can run away from the spot after tearing the uniform of a police officer at a Naka where atleast 4-5 police men were certainly there. He further submitted that registration of FIR was nothing else but a defence created by the complainant to counter any departmental action or any other action against him for misbehaving with the petitioner as he also knew that petitioner is respected resident of the city being an Eye Surgeon and his father is also well known Eye Surgeon of the region. He further submitted that learned Magistrate while passing the order dated February 3, 2005, the text of which is as under :- “I have gone through the file and do not agree with the cancellation report filed by the prosecution. The same is ordered to be sent back for re-investigation of the case. Papers be sent back for the quarter concerned for reinvestigation. Sd/ JMIC, Patiala” has totally failed to apply his judicial mind. A perusal of the order shows that he has merely stated that he does not agree with the cancellation report and the case is sent back for reinvestigation without even appreciating the fact as to whether such a power vested in him or not. Not only this no reason whatsoever are forthcoming in the order as to why the cancellation report was not agreed to when the complainant was an Assistant Sub Inspector of Police and the report submitted by Superintendent of Police (HQ) had been approved by the DIG Range, Patiala. He has relied upon K.Chandrasekhar Vs. State of Kerala and others 1998 Criminal Law Journal 2897 and Miteshkumar Rameshbhai Patel and another Vs. State of Gujarat and another 2006 Criminal Law Journal 3198. Criminal Misc. No. 54033-M of 2005 -4- **** On the other hand, learned counsel appearing for the State submitted that on a perusal of the FIR, a clear case of assault on Government servant on duty is made out and further other Sections in the FIR have rightly been invoked. He further submitted that merely because the Magistrate has mentioned the word reinvestigation, the same did not mean that case was to be reinvestigated rather the same was for further investigation. However, he could not dispute the fact that in reinvestigation and further investigation any new material has come before the authorities, which was already not there when the earlier cancellation report was submitted to the Court. It is only that the same witnesses were re-examined and primarily all of them reiterated their earlier statements and on that basis now it was opined by the concerned authority that a challan be presented. Having heard learned counsel for the parties, I find merit in the contentions raised by learned counsel for the petitioner. A perusal of the order passed by the learned Magistrate on February 3, 2005 shows that same does not contain any reason whatsoever, which should have been there in case the Court was disagreeing to the cancellation report submitted by the prosecution. Still further in terms of clear provisions of Section 173 (8) of the Code, the Court could not direct reinvestigation of a case but only further investigation as has been observed in judgment of Hon'ble the Supreme Court in K.Chandrasekhar's case (supra), which reads as under:- “From a plain reading of the above Section it is evident that even after submission of police report under sub- section (2) on completion of investigation, the police has a right of 'further' investigation under sub-section (8) but not 'fresh investigation' or 're-investigation.' That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order a 'reinvestigation' of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear Criminal Misc. No. 54033-M of 2005 -5- **** that they wanted a 'further investigation of the case' instead of 're-investigation of the case'. The dictionary meaning of 'further' (when used as an adjective) is 'additional', more supplemental. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports- and not fresh report or reports-regarding the 'further' evidence obtained during such investigation”. The judgment in K.Chandrasekhar's case (supra) was followed by Gujarat High Court in Miteshkumar Rameshbhai Patel's case (supra). In view of my above discussion, the order dated February 3, 2005 passed by the learned Judicial Magistrate Ist Class, Patiala directing for reinvestigation of the case and he is directed to pass a fresh order on the cancellation report submitted by the prosecution by stating reason as to on what account the report was not accepted, which required further investigation in the matter. The parties are directed to appear before the learned Judicial Magistrate Ist Class, Patiala on February 11, 2008. January 21, 2008 (Rajesh Bindal) Pka Judge