Rekha Devi vs State of Uttar Pradesh and Others

Tarun Agarwala, J—The petitioner''s brother was murdered and a named F.I.R. dated 14.5.2015 was lodged being case crime No. 635 of 2014, under Section 302 I.P.C., Police Station Sector 20, NOIDA, District Gautam Budh Nagar. The petitioner subsequently found that her second brother was also involved and, accordingly, approached the authority for further investigation. It is alleged that the petitioner approached the Superintendent of Police and filed an application, which remained pending and, when all efforts failed, the petitioner approached the Chief Judicial Magistrate and filed an application under Section 173(8) of the Cr.P.C. praying for further investigation. The Chief Judicial Magistrate by an order dated 25.3.2015 rejected the petitioner''s application, on the ground, that the case has been committed to trial and, therefore, the Chief Judicial Magistrate has no jurisdiction to pass any order on the petitioner''s application. The petitioner has thereafter filed the present writ petition praying for a writ of mandamus commanding the Senior Superintendent of Police as well as the Station House Officer to conduct further investigation in case crime No. 635 of 2014. We have heard the learned counsel for the petitioner as well as the learned A.G.A.

The petitioner is not the informant, but, is the sister of the deceased. The learned A.G.A. contends that the petitioner is an outsider and cannot move an application either before the Magistrate or before the Court.

In M/s. J.K. International Vs. State, Govt of NCT of Delhi and Others, AIR 2001 SC 1142 : (2001) CriLJ 1264 : (2001) 3 JT 130 : (2001) 2 SCALE 216 : (2001) 3 SCC 462 : (2001) 2 SCR 90 : (2001) AIRSCW 907 : (2001) 3 Supreme 214 , the Supreme Court held that the scheme envisaged in the Code of Criminal Procedure does not oust a private person being aggrieved by the offence that was committed and that a private person has a right to be heard. The Supreme Court held, that merely because a charge-sheet has been filed does not wipe out the grievance of the private person, on the ground, that the Court has taken cognizance of the offence.

Section 173(8) of the Cr.P.C. provides further investigation in respect of an offence after a report under sub-section (2) of Section 173 Cr.P.C. has been forwarded to the Magistrate. The learned A.G.A. concedes that even after the case is committed to trial, a further report can be filed by the investigating officer before the Magistrate on the basis of fresh evidence. In the light of the aforesaid, we dispose of the writ petition directing the petitioner to move an appropriate application before the Senior Superintendent of Police. If such an application is filed, the Senior Superintendent of Police will consider the application and pass appropriate orders in accordance with law within four weeks from the date of production of a certified copy of this order.