High Court
Case Details
Court No. - 91 Neutral Citation No. - 2023:AHC:174925 Case :- APPLICATION U/S 482 No. - 29575 of 2023 Applicant :- Ramesh Tiwari Opposite Party :- State Of U.P.And 5 Others Counsel for Applicant :- Akhilanand Mishra,Amit Kumar Counsel for Opposite Party :- G.A. Hon'ble Gajendra Kumar,J. 1. Heard learned counsel for the applicant and learned A.G.A. for the State. Perused the record. 2. This application U/S 482 Cr.P.C. has been filed with the prayer to quash the order dated 10.05.2019 passed by SHO, Police Station Cant, Gorakhpur as well as order dated 08.07.2019 passed by Chief Judicial Magistrate, Gorakhpur and initiate criminal proceedings against the opposite party no.2 to 6 in Case No.2302298/2018 (State Vs. Surendra Kohli), under sections 147,
Legal Reasoning
307, 323, 504, 506 IPC arising out of Case Crime No.0056/2018, Police Station- Cant, District- Gorakhpur, pending in the court of Chief Judicial Magistrate and summon the opposite party no.2 to 6 under the aforesaid sections. 3. Brief facts of the case is that on 20.01.2018 the applicant lodged a first information report against the opposite party no.2 to 6 and some other unknown bearing Case Crime No.0056/2018, under section 147, 307, 323, 504 and 506 IPC with the allegation that on 20.01.2018 when the applicant was constructing his boundary wall on his land, the opposite party nos.2 to 6 along with other unnamed persons came there and abused and assaulted him. The aforesaid persons also threatened to kill him and he was saved by the persons present there who were eye witnesses of the alleged incident. 4. Submission of learned counsel for the applicant is that the proceedings was initiated against opposite party nos.2 to 6 after lodgment of FIR by the applicant. The opposite party nos.2 to 6 filed a writ petition before this Court and interim protection was granted to them. The investigating officer after recording the statements under section 161 CrPC of first informant and other witnesses namely Shyam Sunder Chaudhary, Durvasha Tiwari and Gajendra Nath and after collecting materials on record completed the investigation and submitted charge sheet on 24.03.2018. The case was registered before the trial court after submission of charge sheet and the case was registered being Case No.2302298/2018 (State Vs. Surendra Singh Kohali and others) and cognizance was taken and the accused were summoned vide order dated 04.08.2018. It is also submitted that the opposite party no.5, Circle Officer Cant, Gorakhpur on the application of accused Satyapal Singh Talwar in the month of April 2019 wrote a letter to the Inspector Incharge, Police Station Cant. Gorakhpur regarding further investigation under section 173(8) Cr.P.C. and SHO of the concerned Police Station gave a direction to the concerned SI to do further investigation. Thereafter, the Sub Inspector submitted his report before the Chief Judicial Magistrate, Gorakhpur and stated that he has got the order for further investigation under section 173(8) Cr.P.C. and prayed for giving the photocopy of the entire record related to the aforesaid case. The learned Chief Judicial Magistrate, Gorakhpr vide order dated 08.07.2019 gave a direction that copy of the entire record be provided to the Investigating Officer and ordered for further investigation without application of judicial mind.
Legal Reasoning
5. The main contention of the learned counsel for the applicant is that the aforesaid order given for further investigation is highly delayed and after the cognizance taken on the charge sheet submitted by the Investigation Officer. Further, the order for further investigation under section 173(8) Cr.P.C. can be issued by concerned Magistrate, only and in the present case SHO has passed the order for further investigation. Submission is that the impugned order is illegal, arbitrary and without jurisdiction in the eyes of law. 6. Per contra, learned A.G.A. opposed the prayer made by learned counsel for the applicants and submits that the court below after considering all the aspects of the case has rightly passed the order as police has statutory power for further investigation U/S 173(8) Cr.P.C. after cognizance was taken on the charge sheet submitted by the Investigating Officer. 7. The Apex Court in the Case of State Through Central Bureau of Investigation v. Hemendhra Reddy and Another Etc. [2023] 7 S.C.R. 134 has levelled various guidelines which are as under : "What is the prime consideration for “Further Investigation”? 50. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice. 53. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and Others reported in (1999) 5 SCC 740, it was held in paras 10 and 11: “10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. 11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation.” DELAY IN TRIAL ON ACCOUNT OF FURTHER INVESTIGATION 83. It was vehemently submitted on behalf of the accused that further investigation if permitted after such a long lapse of time, would result in delay in trial. For years to come, the sword of Damocles should not be kept hanging on the neck of the accused persons. In such circumstances, it was argued before us that keeping in mind that this litigation is now almost more than a decade old, it will not be in fitness of things to put the accused persons to trial. 84. In the aforesaid context, we may only say that the general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. (See: Japani Sahoo v. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394.) 85. The following observations in Hasanbhai (supra), have been made by this Court in reference to further investigation: “13. ….if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. …”" 7. Having gone through the entire materials available on record, considering all the facts and circumstances of the case as well as in view of the law laid down in the aforesaid judgement by the Hon'ble Supreme Court and from perusal of the record, it is apparent that the Circle Officer in the month of April 2019 wrote a letter to the Inspector Incharge, Police Station Cant. Gorakhpur regarding application filed under section 173(8) Cr.P.C. and SHO of the concerned Police Station gave a direction to the concerned SI to do further investigation. Thereafter, the Sub Inspector submitted his report before the Chief Judicial Magistrate, Gorakhpur and stated that he has got the order for further investigation under section 173(8) Cr.P.C. and prayed for giving the photocopy of the entire record related to the aforesaid case. The learned Chief Judicial Magistrate, Gorakhpr vide order dated 08.07.2019 gave a direction that copy of the entire record be provided to the Investigating Officer. Therefor, I do not find any illegality or perversity reflected in the impugned orders. 8. In any view of the matter, from the perusal of the record and the impugned proceedings, it is found that there is no such glaring abuse of court's process which may justify to invoke its inherent jurisdiction provided under section 482 Cr.P.C. to interference in the same. In view of above, the prayer for quashing the impugned orders of the aforementioned case is refused. 7. The present application under Section 482 is devoid of merit and is accordingly dismissed. Order Date :- 22.8.2023 Shiv/ v.k.updh. Digitally signed by :- SHIV KUMAR SHARMA High Court of Judicature at Allahabad