State v. Ayush Agarwal) whereby, application filed by
Case Details
Neutral Citation No. - 2024:AHC:124692 Court No. - 76 Case :- APPLICATION U/S 482 No. - 23988 of 2024 Applicant :- Nidhi Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rohit Sharan Tomar Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been preferred against the order dated 31.05.2024 passed by the Additional District and Sessions Judge, F.T.C.I Ghaziabad in S.T No.295 of 2024 (State Vs. Ayush Agarwal) whereby, application filed by applicant under Section 173(8) Cr.P.C. for further investigation has been rejected.
Legal Reasoning
3. Learned counsel for the applicant submitted that applicant is informant of the case and she has lodged the first information report on 11.01.2024 against the opposite party no.2, under Sections 376, 493 I.P.C. After investigation, police have submitted charge sheet against the opposite party no.2 but the relevant evidence was not collected. As per version of applicant/informant, opposite party no.2 committed rape upon the applicant/informant at OYO Hotel but the evidence regarding the said hotel was not collected during investigation. In view of these facts, applicant has filed an application under Section 173(8) Cr.P.C. for further investigation so that the record pertaining to the hotel, where opposite party no.2 has committed rape upon the informant, may be collected. Learned counsel for the applicant submitted that said application has been rejected in an arbitrary manner without considering facts and law. 4. Learned AGA has opposed the application and submitted that after investigation, police have submitted charge sheet dated 25.01.2024 against the opposite party no.2. The Court took cognizance on 07.02.2024 and later on case was committed to the Court of Sessions. At the time of cognizance, the informant/applicant did not move any application regarding further investigation. Further, during investigation, the applicant/informant has not told any name or address of the hotel. The said application has been moved while the case is fixed for framing of charge. It was submitted that there is no illegality or perversity in the impugned order. 5. I have considered the rival submissions and perused the record. 6. Section 173(8) Cr.P.C. provides that nothing in this section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) of Section 173 Cr.P.C. has been forwarded to the Magistrate. It is well-settled that wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. One of the option available to the Magistrate is that he may direct further investigation under Section 173(8) Cr.P.C., if facts of this case so warrant. In Hemant Dhasmana v. Central Bureau of Investigation reported in (2001) 7 SCC 536, the Court held: "15. When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person, it is open to the court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the court has the power to ignore the contrary conclusions made by the investigating officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging therefrom and it can even take cognizance of the offences which appear to it to have been committed, in exercise of its power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. … 16. Although the said sub-section does not, in specific terms, mention about the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by a court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. …" 7. In the instant matter, perusal of the record shows that applicant is informant of the case and she had lodged first information report against opposite party no.2. After investigation, police have submitted the charge sheet dated 25.01.2024 and the Court has taken cognizance and at that time no application for further investigation under Section 173(8) Cr.P.C was moved. The trial Court has observed that applicant has appeared before the committal Court on 01.03.2024 and 28.03.2024 but no such prayer for further investigation was made. It was also noticed that during investigation, the applicant has not told name or address of any such hotel. The application under Section 173(8) Cr.P.C. for further investigation has been moved at the stage of charge. The application filed by the applicant has been rejected by a reasoned order considering all facts of the matter. Considering the entire facts of the matter as well as position of law, this Court does not find any such material illegality or perversity in the impugned order so as to require any interference by this Court by invoking powers of under Section 482 Cr.P.C. 8. The instant application u/s 482 Cr.P.C. lacks merit and the same is hereby dismissed. Order Date :- 2.8.2024 Imtiyaz