Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.40308 of 2011 ====================================================== 1. Upendra Shah, Son of Late Haleshwar Shah,. 2. Umesh Shah, Son of Upendra Shah, both residents of Village- Rajgaon, Ward No.6, P.O. Koriapatti, P.S.- Jadia, District- Supaul--Petitioners. Versus 1. The State Of Bihar. 2. Naresh Kumar Jaiswal, Son of Sri Tara Prasad, Block Supply Officer, Triveniganj, P.S.-Triveniganj, Distrcit-Supaul .... Opposite Parties. ====================================================== Appearance : For the Petitioner/s : Mr. Mr. Rana Randheer Singh,Adv. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V NATH ORAL ORDER 3 07-03-2013 Heard Mr. Rana Randheer Singh, the learned counsel appearing on behalf of the petitioners. 2. This quashing application has been filed for quashing the entire criminal proceeding initiated against the petitioners in Jadia P.S.Case No. 79/2009 dated 24.11.2009 under Section 7 of the Essential Commodities Act including the order allowing the prayer of the police for permission for further investigation under Section 173 (8)Cr.P.C.
Legal Reasoning
3. It is not in dispute that the First Information Report was lodged against the petitioners alleging commission of offence under Section 7 of the Essential Commodities Act. The police after investigation submitted the final report finding the allegation to be mistake of fact. However before the order accepting the final report could be passed, the police submitted an application before 2 Patna High Court Cr.Misc. No.40308 of 2011 (3) dt.07-03-2013 2 / 5 the learned Chief Judicial Magistrate, Supaul seeking permission to make further investigation, which has been allowed by the order dated 22.10.11. 4. Mr Singh, the learned counsel appearing for the petitioners has submitted that the police has adopted a harassing attitude against the petitioners by seeking to reopen the investigation, which has already been completed and a final report has been submitted finding the case to be mistake of fact. It has
Legal Reasoning
been canvassed by the learned counsel that under the provision of Section 173(8) Cr.P.C no reinvestigation can be permitted but the learned Chief Judicial Magistrate has precisely done the same by the impugned order. It has also been contended by the learned counsel for the petitioners, relying upon a judgment of Gujrat High Court in the case of Mitesh Kumar Rameshbhai Patel Vs. State of Gujrat And Anr. 2006 Cr. Law Journal 3198, that there are limitations on the power of further investigation under Section 173(8) Cr.P.C and no reinvestigation can be done in the garb of further investigation after submission of the final report. 5. Learned Additional Public Prosecutor has, however, and submitted that there is no limitation on the power of police to further investigate even after the submission of the final report which is clearly evincible from the wordings of the provisions of 3 Patna High Court Cr.Misc. No.40308 of 2011 (3) dt.07-03-2013 3 / 5 Section 173(8) Cr.P.C. It has also been submitted that even no permission by the court is required in such a matter. 6. The power of the police to take on further investigation even after submission of final report is well recognized in view of Section 173(8) Cr.P.C. However, the submission of the learned counsel for the petitioners is that the police, in fact, has sought to re-investigate the matter and the learned Magistrate has granted the permission for the same. The maladroit effort on behalf of the petitioners to take benefit of the word “iqu: vuqla/kku” as used in the order by the Magistrate is more than apparent and is in fact the basis of their entire submission. 7. Delving into this issue, the Apex Court in the case of K. Chandrashekhar Vs. State of Kerala 1998 (5)SCC 223 has observed that the further investigation, as envisaged in Section 173(8) Cr.P.C., is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out earlier investigation altogether. In the present case, there is nothing in the impugned order of the Magistrate to suggest that earlier investigation made in the case has been ordered to be wiped out altogether and fresh investigation has been directed. The Hindi Phraseology as used in the impugned order may mean reinvestigation but in absence of anything in the order affecting 4 Patna High Court Cr.Misc. No.40308 of 2011 (3) dt.07-03-2013 4 / 5 the prior investigation, the inference is clear that the re- investigation referred to in the impugned order is in fact further investigation. 8. One must bear in mind that the ultimate object of investigation is to arrive at the truth. Mere submission of final report informing the court that the allegations against the petitioners are the result of mistake of fact, which is still to be accepted by the court, cannot result in accrual of a right in the petitioners sufficient to preempt further investigation. Almost in similar facts where the final report was submitted informing the court that no offence was made out against the accused but the court has permitted further investigation, the Apex Court in the case of N.P. Jharia Vs. State of Madhya Pradesh, AIR 2007 SC 2677, repelled the submission that there was no scope for further investigation once after the submission of the final report and has held that in view of Section 173(8) Cr.P.C, such plea is clearly untenable. 9. The submission that the prayer for investigation as made by the police is malafide and fraught with intention to harass the petitioners has also got no merit. It is almost inconceivable as to how the further investigation would result in harassment to the petitioners. But in any view of the matter, the final discretion to 5 Patna High Court Cr.Misc. No.40308 of 2011 (3) dt.07-03-2013 5 / 5 proceed further even after the submission of further report is always with the court which can also consider the aspect of malafide and abuse of power by the police during such further investigation. This is sufficient safeguard against the misuse of the power by the police. 10. The decision by the Single Judge of Gujrat High court in the case of Mitesh Kumar Rameshbhai Patel Vs. State of Gujrat And Anr also does not support the contentions raised on behalf of the petitioners. In paragraph 20 of this decision, which has been specifically relied by the learned counsel for the petitioners, it has been only held that the power of the police to further investigate under Section 173(8) Cr.P.C. is unfettered but the court, after taking cognizance upon the police report, cannot direct such further investigation. In the present case the court has not directed for further investigation on its own, but has only accepted the prayer of the police for further investigation. 11. For the aforesaid premised reasons, I do not find that this is fit case for invoking the inherent jurisdiction of this Court. 12. The application is, accordingly, dismissed. Nitesh/- (V Nath, J)