Harendra Ojha @ Butai Ojha v. The State of Bihar

12. Harendra Ojha @ Butai Ojha, Son of Sri Narvadeshwar Ojha, resident of Village-Ojhwalia, P.S.-Shahpur in the district of Bhojpur. .... .... Petitioner/s Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Director General of Police, Bihar, Patna. 3. The Inspector General of Police, Patna Zone, Patna. 4. The Dy. Inspector General of Police, Shahabad Range, Sasaram. 5. The Superintendent of Police, Buxar. 6. The Officer Incharge-cum-Investigating Officer Brahampur 2 Patna High Court CR. WJC No.417 of 2012 (3) (Nainizore) Police Station in the district of Buxar.

7. Sudarshan Ojha, Son of Shri Barmeshwar Ojha, resident of Village- Ojhwalia, P.S.-Shahpur, District-Bhojpur. .... .... Respondent/s WITH Criminal Writ No.510 of 2011 ====================================================== Bhuar Ojha @ Mukteshwar Ojha, Son of Late Raj Kishore Ojha, resident of Village-Ojhwalia, P.S.-Shahpur in the district of Bhojpur. .... .... Petitioner/s Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Director General of Police, Bihar, Patna. 3. The Inspector General of Police, Patna Zone, Patna. 4. The Dy. Inspector General of Police, Shahabad Range, Sasaram. 5. The Superintendent of Police, Buxar. 6. The Officer Incharge-cum-Investigating Officer, Brahampur (Nainizore) Police Station in the district of Buxar.

7. Sudarshan Ojha, S/o Sri Barmeshwar Ojha, resident of village- Ojhwalia, P.S.-Shahpur in the district of Bhojpur. ====================================================== .... .... Respondent/s Appearance : (In CR. WJC No.417 of 2012 and CR. WJC No.510 of 2011) For the Petitioner/s : Mr. Akhileshwar Prasad Singh, Senior Advocate Mrs. Anita Kumari Singh, Advocate. Mr. Abhisek Anand, Advocate. For the Respondent No. 7: Mr. Vindhya Keshari Kumar, Senior Advocate For the State (Cr.W.J.C. No. 510 of 2011): Mr. Ashok Kumar Mishra A.C. to S.C.-VII. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V. ORDER 3 Patna High Court CR. WJC No.417 of 2012 (3) 3 25-02-2013 Since both the writ petitions arise out of Brahmpur (Nainizore) P.S. Case No.92 of 2008 they have been heard together. In these writ petitions, a common question of law has been raised.

2. Sri Akhileshwar Prasad Singh, learned senior counsel for the petitioners raises the limited issue that under no circumstances the police authorities are empowered under the Criminal Procedure Code (hereinafter referred to as “the Code”) to carry out a fresh investigation or a reinvestigation once a final report has been submitted by them and it is only further investigation which is permissible under Section 173(8) of the Code.

3. The prayer of the petitioners is to direct the respondents not to reinvestigate Brahmpur (Nainizore) P.S. Case No.92 of 2008 dated 8.7.2008 in which final report No. 69 of 2010 dated 27.5.2010 has already been submitted holding accusation on the basis of suspicion only against the petitioners and others.

4. It is contended on behalf of the petitioners that the aforesaid case was registered on the basis of report of the Choukidar, Srikant Yadav for the offence punishable under Sections 302, 201 of the Indian Penal Code and 27 of the Arms Act against unknown accused persons. The informant had alleged in his fardbeyan that on 8.7.2008 at about 7.30 p.m., he heard gun 4 Patna High Court CR. WJC No.417 of 2012 (3) firing at his residence and on hearing the sound of firing, he immediately rushed toward the place of occurrence. The persons present there disclosed that a dead body was lying on the road. He saw gun shots present on the dead body of the deceased. On the basis of driving licence recovered from the possession of the deceased, he was identified as Putul Jha, son of Kanchan Jha, resident of village-Jhopari Colony, Shivamdih, Bokaro, Jharkhand. In course of investigation, the police suspected the hands of altogether 14 accused persons in the alleged offence. However, a report under Section 173(2) of the Code was submitted in the court on 27.5.2010 holding accusation against the petitioners and others on the basis of suspicion only.

5. It is contended that one Sudarshan Ojha (respondent no. 7), father of the deceased has filed a protest-cum- complaint in the court of learned Chief Judicial Magistrate, Buxar on 17.7.2008 while the case was still under investigation. The protest petition filed on behalf of the respondent no. 7 is still pending before the learned Chief Judicial Magistrate, Buxar.

6. Learned Senior Counsel further submitted that the learned Chief Judicial Magistrate, Buxar has not passed any order on the report submitted by the police under Section 173(2) of the Code.

7. Learned Senior Counsel contended that the father 5 Patna High Court CR. WJC No.417 of 2012 (3) of the deceased filed a petition before the Bihar State Human Rights Commission (hereinafter referred to as “the Commission”). The Commission issued notice to the respondent no. 5 and after hearing the parties, ordered the Superintendent of Police, Buxar, to get the matter reinvestigated. The Superintendent of Police, Buxar in a mechanical manner without appreciating the distinction between the further investigation and reinvestigation directed the investigating officer to reinvestigate the matter and also to furnish information to the concerned court.

8. It is further contended that on 18.4.2011, the Inspector of Police Brahmpur Circle filed an application before the learned Chief Judicial Magistrate, Buxar informing him that the police has already taken up reinvestigation of the case in terms of the direction issued by the Superintendent of Police, Buxar.

9. Learned Senior Counsel submitted that the direction for reinvestigation/fresh investigation, after concluding the investigation and submitting the police report is illegal, vitiated and unsustainable. He submits that the direction for reinvestigation is forbidden in law in as much as the Code does not envisage reinvestigation/fresh investigation after closure of investigation.

10. On the other hand, learned counsel appearing on behalf of the State submitted that the word „reinvestigation‟ has 6 Patna High Court CR. WJC No.417 of 2012 (3) been used loosely and the police would not carry out fresh investigation. According to him, it is true that the commission directed the police for reinvestigation of the case but, it is equally true that the Superintendent of Police, thereafter, objectively examined the whole case and came to a conclusion that the matter needs to be investigated further.

11. Mr. Bindhya Keshari Kumar, learned senior counsel appearing on behalf of respondent no. 7 submitted that the issued raised herein has already been clarified in the court below as the prosecution has filed a petition through the Inspector of Police, Brahmpur, in which, it has clearly been asserted that actually the police has to carry out further investigation into the matter and inadvertently, in the earlier petition, the word “reinvestigation” has been scribed.

12. Sri Kumar, learned Senior Counsel further contended that the learned Chief Judicial Magistrate, Buxar has taken judicial notice of the petition filed on behalf of the prosecution which would reflect from his order dated 1.6.2011.

13. In Ramachandran v. R. Udhay Kumar & Ors., since reported in 2008(5) SCC 413 the Apex Court has observed in paragraph nos. 7 & 8 as under:- “7. At this juncture it would be necessary to take note of Section 173 of the Code. From a 7 Patna High Court CR. WJC No.417 of 2012 (3) plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala. It was, inter alia, observed as follows:- “24. The dictionary meaning of „further‟ (when used as an adjective) is „additional; more; 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. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation investigating agency has to forward to the Magistrate a „further‟ report or reports-and not fresh report or reports-regarding the „further‟ evidence obtained during such investigation.”

8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be 8 Patna High Court CR. WJC No.417 of 2012 (3) further investigation required under Section 173(8) of the Code. The same can be done by CB CID as directed by the High Court.”

14. In view of the position of law as indicated above, it is true that there cannot be any reinvestigation or fresh investigation after submission of charge sheet/final report. However, Sub-section (8) of Section 173 of the Code clearly permits further investigation after submission of report under Sub- section (2) of Section 173 of the Code.

15. As noted hereinabove, the investigating agency has already realized their mistake. The Inspector of Police, Brahmpur, has filed a petition in the court stating therein that the word “reinvestigation” was inadvertently used in earlier petitions filed on behalf of the prosecution and as a matter of fact the prosecution wanted to complete further investigation and not reinvestigation of the case. The learned Chief Judicial Magistrate, Buxar has taken note of such petition filed on behalf of the prosecution and has permitted them to proceed with the further investigation.

16. Taking into consideration facts and circumstances of the case, these writ petitions are disposed of with a direction to the investigation agency to carry out further investigation in terms of Sub-Section (8) of Section 173 of the 9 Patna High Court CR. WJC No.417 of 2012 (3) Code but not investigation or reinvestigation. The investigation agency may forward to the Magistrate a further report and not fresh report regarding further evidence obtained during such investigation.

17. The interim order dated 10.2.2012 passed in Cr. W.J.C. No. 510 of 2011 stands vacated. Sanjeet/- (Ashwani Kumar Singh, J.)