Sham Lal Thukral vs State of Punjab

Ritu Bahri, J.—This petition is for setting aside the order dated 19.9.2011 passed by the Fast Track Court, Bathinda, whereby the order of the Chief Judicial Magistrate dated 9.7.2008 (Annexure P-4) has been set aside. A case was registered on the statement of Dr. Dalip Kumar, the then Civil Surgeon Bathinda, alleging that on 5.8.2006 he had received a secret information that operation of a lady was being conducted after she had undergone a ultrasound test at Thukral Surgical and Maternity Hospital, Bathinda. Dr. Ramesh Rani Thukral with the help of Dr. Sham Lal Thukral, who was posted as SMO Talwandi Sabo, used to conduct tests of male/female sex determination and thereby conduct operations. Dr. Dhira Gupta, Gynecologist along with Tirath Ram Steno and Sadhu Ram Kasla Project Officer P.N.D.T. Cell Bathinda, reached Thukral Hospital where Anil Kumar N.G.O. Maur Mandi kept him and the matter was inquired. Two ladies were sitting, Sukhpal Kaur wife of Gurtej Singh told that yesterday her Devrani Sukhjinder Kaur wife of Kamaljit Singh had undergone ultrasound scanning for which they have deposited Rs. 3,000/-. Sukhjinder Kaur was having a female fetus of a girl child and they were asked to come at 10/11 P.M. for operation. Further information was gathered that operation after determination of the sex of the fetus is carried out and there was violation of the P.N.D.T. Act. In this background the FIR was registered.

The challan was presented without the report of the Chemical Examiner and the accused were challaned under Sections 4, 5, 6, 23, 29 of P.N.D.T. And 4/ 5 of the MTP Act and Sections 313 to 315 of IPC.

Before the trial Court the accused appeared and made an application u/s 173(8) Cr.P.C. for further investigation in the case. The trial Court vide order dated 9.7.2008 had allowed the same directing the SSP, Bathinda to re-investigate the case. This order was set aside in revision by holding that as per Section 173(8) Cr.P.C. there is no provision for conducting re-investigation. Reference has been made to a Supreme Court judgment in State of Haryana Vs. Madan Lal and Others and Ramachandran Vs. R. Udhayakumar and Others, wherein it has been held that after completion of investigation u/s 173(2) Cr.P.C. police has right to further investigation u/s 173(8) Cr.P.C., but no fresh investigation or re-investigation. While setting aside the order the parties were directed to appear before the trial Court on 10.10.2011.

Counsel for the complainant seeks clarification of the order that re-investigation could not be ordered and it was only further investigation as per section 173(8) Cr.P.C. which could be conducted. After going through the order dated 19.9.2011 it is only the re-investigation which has been set aside. There is no bar that after the parties were directed to appear before the order, the CJM could not order further investigation as per Section 173(8) Cr.P.C.

This petition had come up for hearing on an application made by the petitioner for early decision of the present petition.

The order dated 19.9.2011 passed by the Fast Track Court, Bathinda, does not require any interference. Dismissed. However, this order does not debar the petitioner to make an application for further investigation.