Dinesh Kumar vs State Of Uttarakhand & Others

N.S. Dhanik, J

Mr. Sanjay Kumar, Advocate, for the accused applicant.

Mr. S.K. Chaudhary, Deputy Advocate General, for the State.

Mr. S.K. Mandal, Advocate, for the accused/private respondents 2 to 4.

This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred to quash the orders dated 31.5.2019 and 6.9.2019 passed by the Judicial Magistrate, Jaspur, District Udham Singh Nagar.

Background facts of the case, necessary to be noted for deciding the present criminal miscellaneous application, are that the applicant moved an application under Section 156(3) CrPC with the allegation that on 7.5.2018, the private respondents forcefully entered in his house and assaulted the wife of the applicant with fists and kicks and threatened to kill the applicant and his wife in future. On this complaint, the Judicial Magistrate, Jaspur directed to lodge the FIR and investigate the matter. After investigation, police filed the chargesheet against the private respondents and the Judicial Magistrate took cognizance of the offences under Section 323, 325, 452, 504 and 506 IPC against the private respondent no. 2 and under Section 323, 452, 504 and 506 IPC against the private respondents 3 and 4.

During pendency of the trial, the Investigating Officer moved an application dated 31.5.2019 before the trial court stating that he has been directed to conduct further investigation by his superior authority and the investigation officer applied for the copies of the case proceedings and sought permission to peruse the case file. The trial court vide impugned order dated 31.5.2019 allowed the said application by passing the following order:

"Permitted as per rule."

After further investigation, report/documents were filed, which were taken on record by the trial court vide impugned order dated 6.9.2019. Being aggrieved, the applicant/complainant has challenged these orders of the trial court in this C482 application.

Learned Counsel for the applicant would contend that once the cognizance has been taken and trial proceeded after filing the chargesheet, the police/investigation officer has no power to conduct further investigation or reinvestigation without permission of the trial court. Hence, the trial court committed error of law in providing the copies of the case proceedings/documents and taking the report/documents on record which were submitted after further investigation. Learned Counsel for the applicant has placed reliance on a judgment of the Hon'ble Apex Court rendered in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & Others; 2017(4) SCC 177, wherein the Hon'ble Apex Court has held that after cognizance is taken by the Magistrate on the basis of a report submitted by the police on the completion of the investigation, no direction for further investigation can be made by the Magistrate suo motu and it would be permissible only if such a request is made by the investigating authority on the detection of fresh facts having bearing on the case and necessitating further exploration thereof in the interest of complete and fair trial.

Learned State Counsel also fairly admitted that in the present case, neither any application has been moved by the investigating officer before the Magistrate for further investigation in the matter nor the Magistrate has passed any such order.

Sri S.K. Mandal, learned Counsel for the accused/private respondents, tried to argue that since the Magistrate has ordered for providing the copies of the case proceedings to the investigating officer and subsequently, accepted on record the report/documents filed by prosecution side, the same amounts to permission on the part of the Magistrate to conduct further investigation in the matter.

This Court is not convinced by the submission of learned Counsel for the accused/private respondents inasmuch as it is quite evident from the perusal of the papers on record, that the investigation officer has not moved any application before the Magistrate seeking permission to conduct further investigation in the matter. This fact has been fairly admitted by the learned State Counsel. Hence, no question of permission by the Magistrate for further investigation arises.

Learned Counsel for the accused/private respondents does not dispute the law that it is only the Magistrate who is empowered to order for further investigation after cognizance is taken on the report of the police.

In view of what has been set forth above, this criminal miscellaneous application filed under Section 482 CrPC succeeds and it is hereby allowed. Impugned orders dated 31.5.2019 and 6.9.2019 passed by the Judicial Magistrate, Jaspur, District Udham Singh Nagar, are hereby quashed and set aside.