Bombay High Court
Janta Nagri Sahakari Pat Sanstha ... vs The State Of Maharashtra Thr. The ... on 15 February, 2021
Bench: S.B. Shukre, Avinash G. Gharote
(1) 12.cri.wp.397.2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.397 OF 2018
Janata Nagri Sahakari Pat Sanstha Maryadit, Deulgaon Raja through its President, Shantilal
Nemlalsa Singalkar
Vs.
The State of Maharashtra through the Ministry of Home Department, Mantralaya, Mumbai -
32 and Ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri M. R. Joharapurkar, Advocate for petitioner.
Shri S. M. Ghodeswar, Addl. P. P. for respondent/State.
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED : 15/02/2021
1. Heard Shri Joharapurkar, learned counsel
for the petitioner and Shri Ghodeswar, learned Addl. P. P.
for respondent/State.
2. By this petition, the petitioner is seeking
issuance of direction to respondent no.2 Police Station,
Deulgaon Raja to conduct further investigation in Crime
No.112/2010 and submit the report in Criminal Case
No.10/2012 pending on the file of learned Judicial
Magistrate First Class, Deulgaon Raja. By making such a
prayer, the petitioner is only seeking a direction to the
Investigating Officer in terms of Section 173(8) of the
(2) 12.cri.wp.397.2018
Code of Criminal Procedure, 1973 which reads as under:
"(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub-section (2) has
been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of
the police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports regarding
such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far
as may be, apply in relation to such report or
reports as they apply in relation to a report
forwarded under sub-section (2)."
3. It is thus clear that ultimately the direction
sought by the petitioner in this case does not travel
beyond the scope of Section 173(8) of the Cr. P.C. A
similar petition with similar prayer was earlier filed by
the petitioner, but that was before the learned Single
Judge. Learned Single Judge then found that the
petition was not maintainable in view of the law laid
down by the Hon'ble Supreme Court in the case of
Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai
Patel and others, (2017) 4 SCC 177, according to which,
(3) 12.cri.wp.397.2018
the right to move the Court under Section 173(8) of the
Code of Criminal Procedure, vests only in Investigating
Officer and it is only the Investigating Officer who can
seek a direction or leave to further investigate the matter.
This law also makes it clear that the complainant or
informant has no locus standi to ask for any additional or
further investigation. In view of the law so settled by the
Hon'ble Apex Court, the petitioner sought leave of the
learned Single Judge to withdraw the petition and the
petition was permitted to be withdrawn with liberty as
per the order passed on 21.03.2018 in Criminal Writ
Petition No.45 of 2018. As similar prayer has been made
in this petition also, this petition would not be
maintainable.
4. Of course, learned counsel for the petitioner
submits that Criminal Writ Petition No.45 of 2018 was
filed before learned Single Judge and it was disposed of
by learned Single Judge and that the present petition is
filed before the Division Bench. We do not understand
as to what difference it would make in filing a petition
before the Division Bench when the law is equally
(4) 12.cri.wp.397.2018
applicable to the lis decided by the learned Single Judge
and the lis to be decided by the Division Bench when, the
lis involved in both cases is identical. However, if any
difference is to be seen in the earlier attempt of the
petitioner and the present similar attempt, the difference
would be only in terms of the change in the Advocate
representing the petitioner.
5. Learned counsel for the petitioner submits
that in Criminal Writ Petition No.45 of 2018, what was
actually challenged was the order passed by the learned
Judicial Magistrate First Class in rejecting the application
of the petitioner for issuing a direction to the
Investigating Officer to further investigate the matter and
whereas, the petitioner in the present case has come
before this Court without challenging the said order of
the Magistrate and independently of the power of the
Magistrate. This is only another way of making an
attempt to mask this petition as the one which would be
maintainable under Article 226 of the Constitution but
what lies underneath it is the locus of the petitioner, who
is the complainant, to seek further investigation and this
(5) 12.cri.wp.397.2018
issue is already well settled by the judgment of the
Hon'ble Apex Court in the case Amrutbhai Shambhubhai
Patel (supra), relied upon by the learned Single Judge.
6. Thus, we find no substance in this petition,
and same stands dismissed.
JUDGE JUDGE
Sarkate
