Jammu & Kashmir High Court
M/S E5 Infrastructure Pvt Ltd Th ... vs U.T Of J&K And Others on 18 September, 2024
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
Sr.No.248
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM (M) No. 721/2024
CrlM No. 1468/2024
M/S E5 Infrastructure Pvt Ltd th Rajender Singh ....Appellant/Petitioner(s)
and others
Through :- Mr. Achal Sharma, Advocate.
V/s
U.T of J&K and others ....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
18.09.2024
1. The short argument which has been advanced by the learned counsel for
the petitioners is that power to order reinvestigation lies only with the
Constitutional Courts and not with the subordinate Courts in the light of law laid
down by the Apex Court and this Court in the catena of judgments.
2. Learned counsel for the petitioners has placed reliance upon the judgment
dated 23.02.2024 passed by this Court in CRM (M) No. 157/2023 in case titled,
"Kewal Krishal and others Vs. Union Territory of J&K", relevant part whereof
reads as under:-
"........
61. As far as the facts of the present case are concerned, initially,
the learned Judge while ordering the re-investigation of the case
has over stepped to the extent of ordering re-investigation into the
case which was the domain of the Higher Courts under Section
482 of the Code. Whether a Magistrate should order further
investigation depends on the circumstances of each case. It is
within the domain of the Magistrate to order further investigation
only, however, the power to direct re-investigation lies with the
higher Courts, based on the facts in each case".
3. It has been argued by learned counsel for the petitioners that the order
impugned dated 24.06.2024 passed by the Court of learned Additional Special
Mobile Magistrate, Doda whereby a direction has been issued to reinvestigate the
matter, is bad in the eyes of law, as the learned Magistrate upon receiving the final
report under Section 173 Cr. P.C has three options:- (i) Accept the said report and
close the case (ii) Disagree with the report and proceed with the case and (iii)
order further investigation.
4. Learned counsel for the petitioners submits that the learned Magistrate
acting contrary to the law laid down by the Apex Court, has issued the order
impugned whereby a direction has been issued to the Investigating Agency to
reinvestigate the matter, which is not permissible, and, thus, the order impugned
cannot sustain the test of law and is liable to be quashed.
5. He further submits that respondent No. 2 has given a criminal color to a
civil dispute which is against the mandate of various judgments passed by the
Apex Court as the registration of impugned FIR is bad in the eyes of law and the
same is an outcome of malice and ill-will on the part of respondent No. 2.
6. Learned counsel for the petitioners submits that the order impugned also
bad in the eyes of law on the ground that investigation was conducted by the
Investigating Agency in furtherance of the order passed by the learned
Magistrate in pursuance to the application filed under Section 156 (3) Cr. P.C.
and after investigation by the Investigating Officer, a closure report was filed by
respondent No. 2 and in case, if the learned Magistrate was not inclined to accept
the said closure report, the learned Magistrate was under an obligation to record
the reasons for rejecting the said closure report but in the instant case, order
impugned dated 24.06.2024 clearly reveals the non-application of mind on the
part of the learned Magistrate as no reasons have been discussed in the order
impugned while ordering reinvestigation which is not permissible under law.
7. Heard learned counsel for the petitioners at length and perused the record.
8. Prima facie, a case for indulgence is made out.
9. Issue notice to the respondents, returnable within a period of four weeks.
10. Requisite steps for service be taken within one week.
11. List on 21.10.2024.
12. Meanwhile, subject to objections from other side and till next date of
hearing, order impugned dated 25.06.2024 passed by passed by the Court of
learned Additional Special Mobile Magistrate, Doda shall remain stayed.
Alteration/modification/vacation on motion.
(Wasim Sadiq Nargal)
Judge
Jammu:
18.09.2024
Renu
