Jharkhand High Court
Smt. Chandrakanta Kumari vs The State Of Jharkhand And Others on 1 May, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 22 of 2013
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Smt. Chandrakanta Kumari, w/o Sri Suresh Prasad, at present resident of
Hunterganj, P.O. and P.S. Hunterganj, District-Chatra (Jharkhand)
.... Petitioner
-- Versus --
The State of Jharkhand and Others .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Rajiv Nandan Prasad, Advocate
For the State :- Mr. Rishi Raj Verma, Advocate
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22/01.05.2023 This petition has been filed for quashing of the order dated
1.10.2012 as well as entire criminal proceeding in connection with
B.Nagar (Chatra) P.S. Case No.16 of 2007, G.R.No.251 of 2007, pending
in the court of learned Civil Judge, Junior Division VI, Chatra.
2. Learned counsel for the petitioner submits that the case
was investigated by the police and final form has been submitted against
the petitioner and subsequently a petition was filed before the learned
Chief Judicial Magistrate for further investigation of the matter by the
C.I.D and said petition was allowed by learned Chief Judicial Magistrate
by order dated 7.2.2019. He submits that the CID has submitted final
form and CID has exonerated the petitioner. He submits that by
impugned order the learned court has not accepted the final form of the
CID however liberty was provided to the petitioner to take plea of the
facts at the trial stage.
3. Learned counsel for the respondent State submits that the
reports are there and the leraned court is requires to consider both the
reports.
4. In view of submission of the learned counsel for the parties,
in view of the judgment in the case of Vinay Tyagi v. Irshad Ali alias
Deepak and Others, (2013) 5 SCC 762, it is well settled that positive and
negative reports submitted under sub-sections (2) and (8) of section 173
respectively must be read conjointly to determine if there is prima facie
ground for believing that the accused has committed the offence or not.
the decision of Vinay Tyagi(supra) was considered in the caes of Vinubhai
Haribhai Malaviya v. State of Gujarat, reported in (2019) 17 SCC 1 and
the Hon'ble Supreme Court has held as under:
"42. There is no good reason given by the Court in these
decisions as to why a Magistrate's powers to order further
investigation would suddenly cease upon process being issued, and
an accused appearing before the Magistrate, while concomitantly,
the power of the police to further investigate the offence continues
right till the stage the trial commences. Such a view would not
accord with the earlier judgments of this Court, in
particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 :
(2008) 1 SCC (Cri) 440] , Samaj Parivartan Samudaya [Samaj
Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 :
(2012) 3 SCC (Cri) 365] , Vinay Tyagi [Vinay Tyagi v. Irshad Ali,
(2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] , and Hardeep
Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
SCC (Cri) 86] ; Hardeep Singh [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly held that a
criminal trial does not begin after cognizance is taken, but only
after charges are framed. What is not given any importance at all
in the recent judgments of this Court is Article 21 of the
Constitution and the fact that the Article demands no less than a
fair and just investigation. To say that a fair and just investigation
would lead to the conclusion that the police retain the power,
subject, of course, to the Magistrate's nod under Section 173(8) to
further investigate an offence till charges are framed, but that the
supervisory jurisdiction of the Magistrate suddenly ceases midway
through the pre-trial proceedings, would amount to a travesty of
justice, as certain cases may cry out for further investigation so
that an innocent person is not wrongly arraigned as an accused or
that a prima facie guilty person is not so left out. There is no
warrant for such a narrow and restrictive view of the powers of the
Magistrate, particularly when such powers are traceable to Section
156(3) read with Section 156(1), Section 2(h) and Section 173(8)
CrPC, as has been noticed hereinabove, and would be available at
all stages of the progress of a criminal case before the trial
actually commences. It would also be in the interest of justice that
this power be exercised suo motu by the Magistrate himself,
depending on the facts of each case. Whether further investigation
should or should not be ordered is within the discretion of the
learned Magistrate who will exercise such discretion on the facts of
each case and in accordance with law. If, for example, fresh facts
come to light which would lead to inculpating or exculpating
certain persons, arriving at the truth and doing substantial justice
in a criminal case are more important than avoiding further delay
being caused in concluding the criminal proceeding, as was held
in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State
of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603] . Therefore, to
the extent that the judgments in Amrutbhai Shambhubhai
Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai
Patel, (2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331] , Athul Rao [Athul
Rao v. State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri)
594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of
Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613] have held to the
contrary, they stand overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi
Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051]
also stand overruled."
5. In view of clear position of law as discussed above,
particularly, the judgment of Vinay Tyagi(supra) and Vinubhai Haribhai
Malaviya(supra), the learned Magistrate is required to take in to account
both the report under section 173(2) as well section 173(8). The Court
finds further that by the impugned order the learned court has observed
that the petitioner may take the said ground at the trial stage. If such
observation is already there, the said report is also required to be on the
record so that looking into both the reports the trial may proceed. The
observation is already there in favour of the petitioner to take all the
facts at trial stage, the report of the CID shall remain on the record.
6. Accordingly, W.P.(Cr.) No.22 of 2013 is disposed of and the
trial court shall proceed in accordance with law.
7. Pending petition if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
