Laxmandass Krishnani vs Municipal Council, Guna & Anr.

This criminal revision has been filed under Section 397, 401 of Cr.P.C. against the order dated 16.9.2014 by which the closure report filed by the police Station Ater in Crime No.105/2009 registered for offences under Sections 420, 406, 34 of IPC has been rejected and the police has been directed to further investigate the matter.

The necessary facts for the disposal of the present revision in short are that a complaint was filed by the respondent No.1 for an offences under Sections 420, 406, 34 of IPC. It was alleged by the respondent No.1 that the applicants on the strength of forged Power of Attorney has sold a portion of land belonging to it. The Magistrate by order dated 21.1.2009 directed the police to submit the report and the matter remained pending awaiting the report of the police. On 30.4.2010, the police submitted the closure report mentioning that the allegations are of civil in nature and the matter has been fought up to the High Court and no prima facie offence is made out. On 30.8.2012, the Magistrate returned the closure report filed by the police on the ground that he has no jurisdiction to entertain the same and fixed the case for recording of evidence of the complainant and his witnesses. Thereafter, the statements of the complainant and its witnesses were recorded under Sections 200 and 202 of Cr.P.C. On 16.9.2014, the Magistrate rejected the closure report filed by the police and directed for further investigation.

It is submitted by the counsel for the applicants that when a closure report is filed then the Magistrate has three options. The Magistrate can take cognizance of the offence after rejecting the closure report or he can accept the closure report or he can direct the further investigation. However, for directing for further investigation he must point out the lapses committed by the police while investigating the offence. In the present case the Magistrate did not mention as to why the further investigation is necessary and merely by saying that the final report is rejected, directed the police to further investigate the matter.

Per contra, it is submitted by the counsel for the respondent No.1 that after considering the final report, the Trial Court came to a conclusion that there are certain lapses in the investigation and, therefore, a direction has been given for further investigation.

However, none of the parties were in a position to submit with regard to the status of the case.

Heard the learned counsel for the parties and perused the order.

The Supreme Court in the case of Abhinandan Jha & Anr. vs. State of Bihar & Anr. reported in AIR 1968 SC 117 has held as under:-

"15 Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a ''final report''.? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156 (3), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156 (3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1) (b), notwithstanding the contrary opinion of the police, expressed in the final report."

Thus, it is clear that where the Magistrate do not agree with the findings recorded by the police in its closure report and if the Magistrate is of the opinion that the opinion formed by the police is not based on full and complete investigation then the Magistrate can direct to the police under Section 156(3) of Cr.P.C. to make further investigation. Thus, for directing for further investigation under Section 156(3) of Cr.P.C., the Magistrate has to come to a conclusion that either the closure report is incomplete or unsatisfactory or there is some scope for further investigation. Disclosure of reason for coming to such a conclusion is mandatory otherwise, it cannot be said that the Magistrate has applied its mind to the facts and circumstances of the case. In the present case, except by mentioning the closure report filed by the police is rejected and the police is directed for further investigation, nothing else is mentioned by the Magistrate in its order dated 16.9.2014. Under these circumstances, this Court is the view that the order dated 16.9.2014 cannot be said to be a correct order in the light of the law laid down by the Supreme Court in the case of Abhinandan Jha (supra). Accordingly, the order dated 16.9.2014 is set aside. The matter is remanded back to the Magistrate to consider the closure report filed by the police afresh.

It is made clear that if the Magistrate comes to a conclusion that the investigation done by the police is either incomplete or unsatisfactory or there is a scope for further investigation then by reflecting the reasons in the order can direct for further investigation. However, it is made clear that this Court has not expressed any opinion on the merits of the case. The order dated 16.9.2014 has been set aside merely on the ground that it does not show the application of mind by the Magistrate.

Hence, this revision succeeds and is hereby allowed.