Allahabad High Court
Dharmveer vs State Of U.P. And 5 Others on 21 January, 2021
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 89
Case :- APPLICATION U/S 482 No. - 19760 of 2020
Applicant :- Dharmveer
Opposite Party :- State Of U.P. And 5 Others
Counsel for Applicant :- Arvind Kumar Dixit
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. A.K. Dixit, learned counsel for applicant and learned A.G.A. for State.
This application under Section 482 Cr.P.C. has been filed challenging order dated 03.11.2020 passed by Additional Civil Judge (J.D.) Jalesar, District- Etah, whereby application dated 27.10.2020 submitted by subsequent Investigating Officer before the court below demanding that photocopy of case diary etc. be supplied to enable him to continue re-investigation has been allowed and also order dated 07.10.2020, which is on record at page-25 of the paper book passed by the Senior Superintendent of Police, Etah in exercise of power in terms of Section 173(8) Cr.P.C., whereby it has been directed that case crime number in question be reinvestigated.
Learned counsel for applicant contends that in respect of incidents which occurred from 12.06.2019 to 13.06.2019, an F.I.R. dated 15.06.2019 was lodged by applicant- Dharmveer and was registered as Case Crime No.128 of 2019, under Sections 504, 506, 354, 307 I.P.C. In the aforesaid F.I.R., three persons, namely, Ramesh, Subhash and Karu have been nominated as named accused. Upon completion of statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C., Investigating Officer ultimately submitted a charge-sheet dated 30.01.2020 against two of the named accused, namely, Ramesh Jain and Karu as well as one Rekha Devi, who was not nominated as an accused in the F.I.R..
Upon submission of aforesaid charge-sheet dated 30.01.2020, cognizance was taken by court concerned vide Cognizance Taking Order dated 15.10.2020, photocopy of which is on record at page-15 of the paper book. Subsequent to aforesaid, an application dated 03.10.2020 was filed by Ramesh Chandra (accused) before Senior Superintendent of Police. On the aforesaid application, opposite party no.2- Senior Superintendent of Police, Etah passed order dated 07.10.2020 directing reinvestigation of above-mentioned case crime number. Pursuant to aforesaid, subsequent Investigating Officer submitted application dated 22.10.2020 before court below demanding photocopies of case diary etc. to enable him to continue with re-investigation. It is this application which has been allowed by court below vide order dated 03.11.2020.
On the aforesaid factual premise, it is contended by learned counsel for applicant that once cognizance has been taken by the court concerned vide Cognizance Taking Order dated 15.10.2020, then in that eventuality power under Section 173(8) Cr.P.C. could not have been exercised by Senior Superintendent of Police, Etah without obtaining the permission of Court. In support of aforesaid submission, reliance is placed upon judgment of Hon'ble Apex Court in Vinubhai Haribhai Malaviya and Others Vs. State of Gujarat and Another, (2019) 17 SCC 1.
It is next contended that in view of above, concerned Magistrate could not have proceeded to allow the application dated 27.10.2020 submitted by subsequent Investigating Officer vide his order dated 03.11.2020. As such order dated 03.10.2020 is also liable to be quashed.
Per contra, learned A.G.A. could not dispute the aforesaid submissions.
Having heard learned counsel for the parties and upon perusal of record, the undisputed position that has emerged is that Investigating Officer submitted charge-sheet dated 30.01.2020 upon which cognizance was taken by concerned Magistrate vide order dated 15.11.2020. Therefore, by virtue of law as noted above, no further direction in terms of Section 173(8) Cr.P.C. regarding re-investigation could have been issued by Senior Superintendent of Police, Etah without seeking permission of Court.
In view of above, order dated 03.10.2020 passed by Senior Superintendent of Police, Etah is totally without jurisdiction. The concerned Magistrate in ignorance of aforesaid has proceeded to allow the application filed by subsequent Investigating Officer by order dated 03.11.2020. Once re-investigation itself could not commence without permission of Court, there was no occasion to direct that photostat copy of case diary etc. be supplied to subsequent Investigating Officer for re-investigation.
In view of above, present application succeeds and is allowed. Order dated 03.11.2020 passed by court below is hereby quashed. It is further provided that Investigating Officer shall not proceed with re-investigation of above-mentioned case crime number without obtaining prior permission of Court in light of law noted above.
Order Date :- 21.1.2021
Saif
