Crl. Misc. No. M-5549 of 2010 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-5549 of 2010 DATE OF DECISION: 25.3.2011 Paramjit Singh ..........Petitioner Versus State of Punjab and others ..........Respondents BEFORE:- HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. S.S. Narula, Advocate for the petitioner. Ms. Rajni Gupta, Additional Advocate General, Punjab. Mr. Ashok Saini, Advocate for respondent No.2. **** DAYA CHAUDHARY, J. The present petition under Section 482 Cr.P.C. has been filed on behalf of Paramjit Singh for setting aside the reinvestigation conducted in case FIR No. 203 dated 15.11.2007 registered under Sections 406 and 498-A IPC at Police Station City Gurdaspur and also the report of reinvestigation dated 30.1.2009 (Annexure P-8) and all subsequent proceedings arising thereto. Notice of motion was issued on 24.2.2010 and while issuing notice of motion following contention of learned counsel for the petitioner was recorded:- “Argues that report under Section 173 Cr.P.C., Annexure P6, which is a cancellation report, was prepared, however, subsequently, another report Annexure P9 was prepared on Crl. Misc. No. M-5549 of 2010 (2) the same evidence implicating the present petitioner.” In response thereto, reply on behalf of respondents has already been filed and the same is on record. Learned counsel for the petitioner submitted that complainant- respondent No.2 alleging harassment at the hands of petitioner and his family members, filed a complaint before SSP, Gurdaspur, which was referred to Women Cell, Gurdaspur and was thoroughly inquired into by the Incharge and the allegations of misappropriation of Istri Dhan and cruelty were found to be false. A detailed report was submitted by the Incharge, Women Cell, Gurdaspur on 28.8.2007, which was endorsed by SSP, Gurdaspur and case was not recommended for registration of the FIR against the petitioner and his family members. Subsequently on another complaint made by respondent No.2 to SSP, Gurdaspur FIR No. 203 under Sections 406 and 498-A IPC was registered at Police Station City Gurdaspur on 15.11.2007 against the petitioner, his parents and other relatives. Again the matter was duly investigated by the Police at the level of DSP, Sub Division, Majithia and no truth was found in the allegations mentioned in the complaint. In pursuance of the said inquiry report by DSP, Sub Division, Majithia, a cancellation report was prepared on 12.9.2008 and the same was filed before the Court. Learned counsel further submits that on the basis of another application submitted by respondent No.2, the matter was reopened and the case was entrusted by the ADGP, Crime to S.P. Crime Branch, Punjab. The matter was completely reinvestigated and report dated 30.1.2009 was prepared recommending filing of the challan against the petitioner and his family members and subsequently, on 6.9.2009, challan was filed in the Court of C.J.M., Gurdaspur, which is not permissible under law. Learned counsel for the petitioner also submits that report of reinvestigation conducted by SP Crime Branch which forms the Crl. Misc. No. M-5549 of 2010 (3) basis of challan report is a clear cut case of bias which is on the basis of fresh investigation and petitioners were not associated with the said investigation and no reason whatsoever has been given to justify the reinvestigation. In the reinvestigation, the medical record of respondent No.2 for infertility has been taken into consideration and subsequently on the basis of opinion of the Doctor, the earlier finding given in the inquiry has been ignored. Learned counsel also argued that fresh investigation/re- investigation conducted by the investigating agency is barred under law and in support of his contention, learned counsel for the petitioner has relied upon the judgments of Hon'ble the Apex Court in K. Chandrasekhar Vs. State of Kerala 1998 (2) RCR (Criminal) 719 and Ramachandran Vs. R. Udhayakumar & Ors. 2008 (3) RCR (Criminal) 47. Mr. Gaurav Garg Dhuriwala, learned counsel for the respondent-State submits that it is a case of further investigation and not reinvestigation. A preliminary objection has also been raised that the present petition is not maintainable as challan under Section 173 Cr.P.C. has been submitted in the Court on the basis of inquiry conducted by S.P. Crime, Punjab, during which, accused were found guilty of the offences and the remedy for the petitioner is to face trial and take all the pleas before the trial Court. Learned State counsel further submits that initially on the basis of complaint submitted by the respondent No.2, an inquiry was conducted by Incharge, Women Cell, Gurdaspur and the allegations levelled against the petitioner and his family members were found false. Subsequently another complaint was filed before SSP, Gurdaspur, on which case FIR No. 203 dated 15.11.2007 was registered, which was enquired into by DSP City, Gurdaspur and the allegations levelled were found false and cancellation report was filed. Thereafter, the complainant again filed an application before ADGP Crime, which was inquired into by SP, Crime Branch, Chandigarh and vide his inquiry report, it was found that Crl. Misc. No. M-5549 of 2010 (4) complainant was able to bear a child. During the inquiry, complainant- respondent No.2 produced her entire medical record before the inquiry officer and copy of the same was sent to Civil Hospital, Gurdaspur, which was further sent to CMO, Gurdaspur for his opinion whether the complainant was able to conceive a child or not. The Doctor gave an opinion that the complainant could conceive and keeping in view that opinion the case was further investigated. After further investigation, the case was sent for opinion of DA Legal and FIR was registered against the petitioner and other accused. It was also found by the inquiry officer that the petitioner has concocted a story regarding inability of complainant to bear a child just to get rid of her. Moreover, it was also revealed in the inquiry that a credit balance of ` 1,38,299/- was there in account No.11592 of the complainant and after marriage, an amount of ` one lac was withdrawn on 19.2.2004 from her account, which shows that this amount was used by her in laws. As per version of the complainant this amount was given to her husband and his family members. It was also found that certain dowry articles were recovered from the accused which in itself shows that dowry was given at the time of marriage. In the further investigation, it was found that the demand of dowry was also there and the inquiry conducted earlier was not based on facts as neither the opinion of the doctor was there nor the factum of withdrawal of said amount was considered. Learned State counsel also submits that it is a case of further investigation and not reinvestigation and the same is clear from the fact that factum of bearing of the child and withdrawal of the amount from the saving account of the complainant was investigated and not all facts. The subsequent investigation was part of the earlier investigation and it cannot be termed as reinvestigation. Heard the arguments advanced by learned counsel for the parties and have perused the documents available on the file. Crl. Misc. No. M-5549 of 2010 (5) As per facts mentioned in the petition, the petitioner was married with respondent No.2 on 16.11.2003 at Gurdaspur as per Sikh rites. A complaint was filed by respondent No.2 to SSP, Gurdaspur on 19.6.2007 alleging harassment at the hands of petitioner as well as other family members. Allegations were also there with regard to demand of dowry as well as cruelty and also of misappropriation of Istri Dhan. The said complaint was referred to Women Cell, Gurdaspur which was inquired into by the Incharge of Women Cell, Gurdaspur. As per inquiry conducted by Incharge of Women Cell, the allegations of misappropriation of Istri Dhan and cruelty were found to be false. A report in this regard was submitted by the Incharge Women Cell on 28.8.2007 and after approval by SSP, Gurdaspur, the case was not recommended for registration of the FIR against the petitioner and his family members. Subsequently another complaint was made to SSP, Gurdaspur and on the basis of which FIR no. 203 under Sections 406,498-A IPC was registered at Police Station City Gurdaspur on 15.11.2007. Once again the matter was duly investigated by the Police and the allegations levelled against the petitioner and his family members were found to be false and cancellation report was prepared. Again a complaint was filed before ADGP, Crime, who further handed over the investigation to S.P., Crime Branch. The matter was investigation and on the basis of investigation, challan was presented before the trial Court against the petitioner and other accused on 6.9.2009. Admittedly, earlier also investigation was conducted and medical record of the complainant was there but opinion of the Doctor was not there and subsequently in the investigation conducted by S.P., Crime Branch, opinion of the Doctor was obtained, wherein, it was specifically mentioned that the complainant was in a position to bear a child and the factum of withdrawal of an amount of ` one lac was affirmed from the saving account of the complainant. Crl. Misc. No. M-5549 of 2010 (6) Now the question for consideration before this Court is whether it is a case of reinvestigation or further investigation. Admittedly, reinvestigation is not permissible under law. At this juncture, it would be necessary to take note of Section 173 Cr.P.C. From a plain reading of the above section it is evident that even after completion of investigation, under sub-Section (2) of Section 173 of the Code, the Police has a right to further investigate under sub-Section (8) but not to conduct fresh investigation or reinvestigation. This view has been affirmed by the Hon'ble Apex Court in K. Chandrasekhar Vs. State of Kerala and Ors., 1998 (2) RCR (Criminal) 719. It was inter alia, observed as follows:- “24. 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 of reports- and not fresh report or reports-regarding the “further” evidence obtained during such investigation.” The case of the respondent No.2 in the complaint was that inspite of giving sufficient dowry at the time of marriage, petitioner and his family members demanded ` ten lac for purchasing a plot and car and the complainant was being harassed and was treated with cruelty. In the subsequent complaint filed by the complainant, it was mentioned that although the medical record was considered but no opinion of the doctor was obtained and an amount of ` 1 one was withdrawn from the saving Crl. Misc. No. M-5549 of 2010 (7) account of the complainant and the same was not considered and investigation was wrongly conducted on the basis of complaint submitted by the complainant. The factum of withdrawal of the said amount was inquired and the opinion of the Doctor with regard to bearing a child by the complainant was also obtained, wherein, it was opined that the complainant was in a position to bear the child and the allegations of withdrawal of ` one lac was also verified from the Bank account of the complainant on the basis of which allegations were found to be correct and FIR was registered. It cannot be said that it is a case of fresh investigation and the facts which were already inquired by the investigating officer were inquired again but the earlier finding given by the Investigating Officer was further supplemented by the further investigation as the further investigation was part and parcel of the earlier investigation. It was not a case of reinvestigation as only further investigation was done only on these two facts as the inquiry was not conducted properly. In view of the facts and law position as explained above, reinvestigation or fresh investigation are clearly indefensible and therefore instead of fresh investigation there can be further investigation, if required under Section 173 (8) of the Code and as such, there is no merit in the contentions raised by the learned counsel for the petitioner and the petition being devoid of any merit is hereby dismissed. 25.3.2011 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No