Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Sec.173 Cr.P.C. Permits Further Investigation & Not Reinvestigation.
JUDGEMENT TITLE : Smt. Sugandha Devi And Others Vs. State Of U.P. Thru' Its Secy. (Home) Govt. Of U.P. & Ors. On 22/01/2007 By Allahabad High Court
CASE NO : CRIMINAL MISC. WRIT PETITION NO. 796 OF 2007
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.45

Crl. Misc. Writ Petition No.796 Of 2007

Smt. Sugandha Devi And Others Vs. State Of U.P. And Others

Hon'be R.K.Rastogi,J

This Is A Criminal Writ Petition For Quashing Of The Order Dated 5.11.2006 Passed By The Superintendent Of Police, Kushi Nagar And The Order Dated 29.11.2006 Passed By The C.J.M., Kushinagar.

I Have Heard The Learned Counsel For The Applicant As Well As The Learned A.G.A. For The State. Since Only A Legal Point Is Involved In The Present Case And There Is No Factual Dispute, I Have Heard Them On Merits And I Am Deciding This Writ Petition At The Admission Stage.

The Facts Relevant For Disposal Of This Writ Petition Are That On 21.2.2006 At 6.45 P.M. Gyaneshwar Dubey, Respondent No. 4 In The Present Case Lodged A F.I.R. Against The Accused Vijai Pratap, His Mother Smt. Sugandha Devi, Elder Brother Ram Pratap Dhar Dubey And Wife Of Ram Pratap Under Sections 498A/304B/201 I.P.C. And ?? Dowry Prohibition Act And The Police After Investigation Submitted A Charge Sheet Against The Accused Vijai Pratap Dubey Only. No Charge Sheet Was Submitted Against The Remaining Three Accused . It Was Stated By The I.O. That They Had Been Falsely Implicated In The Case And There Was No Evidence Against Them. This Charge Sheet Was Submitted On 16.5.06 By The I.O. And Was Filed In The Court On 30.5.06 And Cognizance Was Taken By The Court Against The Accused Vijai Pratap Dubey.

It Appears That Thereafter Sri R. K. Srivastava S.P. Kushinagar On 5.11.06 Transferred The Investigation Of The Aforesaid Case From The C.O. Sadar To C.O. Khadda And It Was Further Ordered That The C.O. Khadda Should Resume The Investigation Immediately And Should Collect Evidence Against The Remaining Accused And Should Ensure Arrest Of Those Accused Persons And Complete Investigation At The Earliest. Thereafter An Application Was Moved By The C.O. Khadda Before The Court Of C.J.M. Kushi Nagar In Which He Prayed That He Has To Reinvestigate The Case Under The Orders Of The S.P. Kushi Nagar And So The Entire Case Diary Along With Charge Sheet Should Be Returned To Him. The C.J.M. Kushinagar Passed The Following Order On This Application:
"Niyamnusar Pradan Kiya Jay"
Aggrieved With The Above Order Regarding Reinvestigation Of The Case, The Accused Smt. Sugandha Devi , Ram Pratap And His Wife Filed This Writ Petition.

It Was Submitted By The Learned Counsel For The Petitioner That Section 173 Cr.P.C. Permits Further Investigation Only And No Reinvestigation And In This Case An Erroneous Order Has Been Passed For Reinvestigation And So It Should Be Set Aside.

Learned Counsel For The State On The Other Side Submitted That Actually There Is An Order For Further Investigation Only And The Term "reinvestigation" Has Erroneously Been Used.

After Perusal Of The Order Passed By The S.P. Kushi Nagar On 5.11.06 I Find That There Is No Order For Reinvestigation Of The Case. It Is To Be Seen That A Charge Sheet Had Been Submitted Against Vijai Pratap Dubey, Husband Of The Deceased By The C.O. Sadar On 16.5.06 Under Sections 498A/304B/201 I.P.C. And ?? Dowry Prohibition Act And On That Charge Sheet Cognizance Had Already Been Taken By The Magistrate And That Portion Of The Investigation Of The Case Whereby Charge Sheet Had Been Submitted Against Vijai Pratap Dubey Has Not Been Touched By The S.P. Kushinagar. He Has Simply Passed An Order That The Matter Against The Remaining Accused Against Whom No Charge Sheet Was Submitted Should Be Investigated Further And After Collection Of Evidence Their Arrest May Be Ensured.

On The Basis Of Aforesaid Order The C.O. Khadda Moved An Application Before The C.J.M. For Return Of The Charge Sheet Along With The Entire Case Diary Stating In The Application That An Order Has Been Passed By The S.P. Kushi Naga For Reinvestigation Of The Case. This Is A Complete Misstatement Of Facts In The Application, As There Was No Order Of The S.P. Kushi Nagar For Reinvestigation Of The Entire Matter. He Simply Passed An Order For Investigation Of The Matter Against The Remaining Accused Persons In Respect Of Whom No Charge Sheet Had Been Submitted . No Order Was Passed By Him Touching That Part Of The Investigation On The Basis Of Which A Charge Sheet Had Been Submitted Against Vijai Pratap Dubey And As Such The Case Was To Be Further Investigated Against The Remaining Three Accused Persons And There Was No Necessity To Take Back The Charge Sheet And The Case Diary From The Court. There Was No Question For Return Of The Charge Sheet When Cognizance Had Already Been Taken By The Court. The Order Passed By The Magistrate That The Papers Be Returned As Per Rule ( Niyamanusar Pradan Kiya Jay) Is Erroneous And It Is Liable To Be Set Aside.

The Proper Procedure For The C.O. Khadda In The Case Was To Obtain A Copy Of The Case Diary From The Police Office And Then He Could Further Examine The Witnesses Already Examined By The Previous I.O. And Could Also Take Statements Of Other Concerned Witnesses If They Had Not Been Examined By The Earlier I.O. And Could Collect Other Relevant Evidence And Then After Assessment Of The Entire Evidence Collected In The Case, He Should Have Taken Decision Whether There Is Sufficient Evidence Against The Remaining Accused Or Not And Then He Should Have Proceeded Further With The Case By Filing A Charge Sheet Or A Final Report In The Light Of That Evidence.

In View Of Aforesaid, The Writ Petition Is Allowed. The Order Dated 29.11.2006 Passed By The C.J.M., Kushinagar On The Application Of The C.O. Khadda For Return Of The Case Diary Is Set Aside . It Is Hereby Ordered That The C.O. Khadda Shall Only Further Investigate The Case After Obtaining A Copy Of The Case Diary From The Police Office And Shall Proceed Further With The Case On The Basis Of Conclusion Reached By Him After Further Investigating The Matter In The Light Of The Observations Made Above. Since The Final Report Had Already Been Submitted By The Previous I.O. In Favour Of The Petitioners , The Present I.O. Shall Not Arrest The Petitioners Unless And Until He Finds Evidence Against Them To Justify Their Arrest.

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