Court No. - 34
Case :- APPLICATION U/S 482 No. - 14937 of 2005 Applicant :- Ranvir Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Sengar Counsel for Opposite Party :- Govt. Advocate,Rabindra Nath Ojha,Sudhir Kumar Trivedi
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ram Govind, Advocate holding brief of Sri Ajay Sengar, learned counsel for applicant and learned A.G.A. for State.
2. In this application under Section 482 Cr.P.C. order dated 15.09.2005 passed by Chief Judicial Magistrate, Orai at Jalaun in Misc. Case No. 533 of 2000, has been challenged on the ground that Magistrate has directed police to make fresh investigation which is not permissible in law and reliance is placed on Supreme Court's decisions in Ramachandran vs. R. Udhayakumar and others, AIR 2008 SC 3102 and Vinay Tyagi vs. Irshad Ali @ Deepak and others, 2013(5) SCC 762.
3. In Ramachandran vs. R. Udhayakumar (supra) Supreme Court said:
“In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code.”
4. In Rama Chaudhary vs. State of Bihar, 2009(6) SCC 346 Court examined power of Magistrate under sub Section (2) and (8) of Section 173 Cr.P.C. and said:
"From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether."
5. It has been followed in Awdhesh Kumar Jha @ Akhilesh Kumar Jha & another vs. State of Bihar, 2016(3) SCC 8. In Vinay Tyagi vs. Irshad Ali (supra) Court has held that Magistrate before whom a report under Section 173(2) Cr.P.C. is filed, is empowered in law to direct for further investigation and direct police to inquire further and file supplementary report. It has further held that Magistrate has, however, no power to direct for re-investigation or fresh investigation(de novo) in the case initiated on the basis of police report.
6. The decision in Vinay Tyagi vs. Irshad Ali (supra) has been reiterated and followed in Dharam Pal vs. State of Haryana, 2014(2) SCC (Cri) 159 observing that superior Courts have jurisdiction under Section 482 Cr.P.C. or under Article 226 of Constitution of India to direct further investigation afresh or denovo and even re-investigation. Fresh, denovo or reinvestigation are synonym expressions and result whereof in law, would be same. Superior Courts are even vested with power of investigation from one agency to another, provided ends of justice so demands. This power has to be exercised by Superior Courts very sparingly and with great circumspection. Court reiterated the following observation with regard to the power of Magistrate:
"Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case.
It would be specific order of the Court that would determine the nature of investigation.".
7. The above views are reiterated and followed in Chandra Babu alias Moses vs. State (supra). In para 22, Court has further observed that Magistrate, however, cannot direct for further investigation by another agency as it is not within sphere of investigation and Magistrate has no jurisdiction in any case to direct for reinvestigation by another agency.
8. When questioned, learned A.G.A. appearing for State, stated that Magistrate may direct for further investigation if it is necessary but not for fresh or re-investigation and to that extent order impugned in this application is indefensible.
9. In view thereof, application is allowed. Impugned order dated 15.09.2005, in so far as it has directed Police to make fresh investigation, is hereby quashed. Matter is remanded to Court below to pass fresh order in accordance with law.
Order Date :- 27.11.2019 AK