Jharkhand High Court
Abhay Agrawal vs The State Of Jharkhand on 29 June, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2918 of 2021
Abhay Agrawal ..... ... Petitioner
Versus
The State of Jharkhand ..... ... Opposite Party
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate.
For the State : Mr. Ravi Prakash, Spl.P.P.
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06/ 29.06.2022 This petition has been filed for quashing of the entire criminal
proceedings and prosecution including the order dated 02.01.2021, by
which, on the basis of supplementary chargesheet, summon has been
issued against the petitioner, in connection with Dumari P.S. Case No. 17
of 2015, corresponding to G.R. No. 1040 of 2015, pending in the court of
learned Additional Chief Judicial Magistrate, Gumla.
2. Mr. A.K. Kashyap, learned senior counsel appearing for the
petitioner submits that the summoning order is not in accordance with law.
3. It is settled that if the further investigation has been done
would lead to the filing of a supplementary report, such supplementary
report shall be dealt with as part of the primary report. This is clear from
the fact that the provisions of Sections 173(3) to 173(6) of the Cr.P.C.
would be applicable to such reports in terms of Section 173(8) of the
Code. A reference may be made to the case of Binay Tyagi Versus Irshad
Ali, repotted in (2013) 5 SCC 762, wherein the Hon'ble Supreme Court in
paras- 41 to 43 held as follows:-
"41. Having discussed the scope of power of the
Magistrate under Section 173 of the Code, now we
have to examine the kinds of reports that are
contemplated under the provisions of the Code and/or
as per the judgments of this Court. The first and the
foremost document that reaches the jurisdiction of the
Magistrate is the first information report. Then, upon
completion of the investigation, the police is required
to file a report in terms of Section 173(2) of the Code.
It will be appropriate to term this report as a primary
report, as it is the very foundation of the case of the
prosecution before the court. It is the record of the
case and the documents annexed thereto, which are
considered by the court and then the court of the
Magistrate is expected to exercise any of the three
options aforenoticed. Out of the stated options with
the court, the jurisdiction it would exercise has to be
in strict consonance with the settled principles of law.
The power of the Magistrate to direct "further
investigation" is a significant power which has to be
exercised sparingly, in exceptional cases and to
achieve the ends of justice. To provide fair, proper and
unquestionable investigation is the obligation of the
investigating agency and the court in its supervisory
capacity is required to ensure the same. Further
investigation conducted under the orders of the court,
including that of the Magistrate or by the police of its
own accord and, for valid reasons, would lead to the
filing of a supplementary report. Such supplementary
report shall be dealt with as part of the primary
report. This is clear from the fact that the provisions
of Sections 173(3) to 173(6) would be applicable to
such reports in terms of Section 173(8) of the Code.
42. Both these reports have to be read conjointly and
it is the cumulative effect of the reports and the
documents annexed thereto to which the court would
be expected to apply its mind to determine whether
there exist grounds to presume that the accused has
committed the offence. If the answer is in the negative,
on the basis of these reports, the court shall discharge
an accused in compliance with the provisions of
Section 227 of the Code.
43. At this stage, we may also state another well-
settled canon of the criminal jurisprudence that the
superior courts have the jurisdiction under Section
482 of the Code or even Article 226 of the
Constitution of India to direct "further investigation",
"fresh" or "de novo" and even "reinvestigation".
"Fresh", "de novo" and "reinvestigation" are
synonymous expressions and their result in law would
be the same. The superior courts are even vested with
the power of transferring investigation from one
agency to another, provided the ends of justice so
demand such action. Of course, it is also a settled
principle that this power has to be exercised by the
superior courts very sparingly and with great
circumspection."
4. By the impugned order dated 02.01.2021, the summon has
been issued, however, the same is not required to be issued as the
cognizance on 16.05.2020 has already been taken in view of chargesheet
and in view of the judgment of the Hon'ble Supreme Court in the case of
Binay Tyagi (Supra), in which, it has been held that Section 173(8)
Cr.P.C. does not mandate the police for taking prior permission from the
Magistrate for further investigation and the supplementary report has to
be treated by the court in continuation of the primary report
filed earlier, and the same provisions of law i.e. Sub-Section 2 of Section
173 Cr.P.C. shall apply when the court deals with such report, therefore,
the supplementary report is to be considered at the time of framing of
charge.
5. As such, the learned court below will proceed with the
supplementary report at the time of framing of charge, as discussed above
and in accordance with law. So far as the summoning order dated
02.01.2021, by which, summon has been issued against the petitioner, in
connection with Dumari P.S. Case No. 17 of 2015, corresponding to G.R.
No. 1040 of 2015, pending in the court of learned Additional Chief
Judicial Magistrate, Gumla, is concerned, the same is set aside.
6. The learned trial court shall proceed strictly in terms of the
direction of the Hon'ble Supreme Court in the case of Binay Tyagi
(Supra) at the time of framing of charge and also in accordance with law.
7. This petition is, accordingly, disposed of.
8. Let this order be communicated to the concerned court
forthwith.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
