Rajasthan High Court - Jodhpur
Ritesh Patel vs State Of Rajasthan on 2 March, 2022
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3104/2021
Ritesh Patel S/o Shri Ramesh Parkash, Aged About 29 Years, R/o
Sarswati Sadan, Barna Road, Bilara, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through PP
2. Sangeeta Devi D/o Babu Lal Sirvi, Aged About 31 Years,
R/o Bilara Bera Jhalara, Ward No. 21, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Firoz Khan
Mr. Lakshya Singh Udawat
For Respondent(s) : Mr. Vineej Jain, Sr. Adv.
Mr. A.R. Choudhary, PP
JUSTICE DINESH MEHTA
Order
02/03/2022
1. The present petition under section 482 of Cr.P.C. is directed
against the action of the D.G.P. Bilara who is trying to arrest the
petitioner in connection with FIR No.243/2017, in relation
whereof not only a negative final report has been submitted but
also the same has been accepted, by the competent criminal
Court.
2. Mr. Firoz Khan, learned counsel for the petitioner invited
Court's attention towards the requisite facts and pointed out that
an FIR dated 12.06.2017 came to be registered against the
petitioner at the instance of the complainant - respondent No.2
alleging that the petitioner had been sending obscene messages
on her mobile number.
(2 of 3) [CRLMP-3104/2021]
3. During the course of investigation, the concerned I.O.,
submitted negative final report in the competent Court, on the
basis of the statements of the complainant (respondent No.2).
4. The negative final Report so submitted was duly accepted by
the Additional Chief Judicial Magistrate - Bilara, District Jodhpur
vide its order dated 03.01.2018.
5. Learned counsel for the petitioner submits that after three
years of acceptance of the negative final report, a complaint
came to be filed by the respondent No.2 afresh in the Police
Station, Bilara alleging that the petitioner has again started
harassing the respondent No.2, in furtherance whereof, the I.O.
has reopened the earlier FIR and recommenced the investigation.
He submits that the police is likely to apprehend the petitioner.
6. Learned counsel argued that once negative final report has
been submitted and accepted by the competent Court, fresh
investigation cannot be done by the Investigation Officer, without
the leave of the Court as envisaged under sub-section (8) of
Section 173 of Cr.P.C.
7. He invited Court's attention towards judgment of Hon'ble the
Supreme Court reported in 2013 Cr.L.R. (SC) 337 [Vinay Tyagi
Vs. Irshad Ali @ Deepak & Ors.] (Para No.16) and argued that the
procedure adopted by the I.O. is wholly illegal and without
jurisdiction.
8. Learned Public Prosecutor argued that the I.O. is well within
the jurisdiction to conduct further investigation in exercise of
powers available to him under sub-section (8) of section 173 of
Cr.P.C. He added that on the basis of fresh material and evidence
collected during further investigation, the case that was lodged
initially against the petitioner was found to be made out and thus,
(3 of 3) [CRLMP-3104/2021]
the I.O. was justified in reopening the final report already
submitted by him.
9. Mr. Vineet Jain, learned Sr. Counsel on the other hand
submitted that as a matter of fact, the complainant has lodged
the complaint alleging fresh incidents of harassment and thus, it
was incumbent upon the I.O. to have registered a fresh case and
ideally a fresh FIR ought to have been registered.
10. Heard.
11. Concededly, before commencement of fresh investigation
and reopening the FIR, prior permission of the competent Court
has not been obtained.
12. In the opinion of this Court, reopening of the FIR or further
investigation in relation to FIR No.243/2017 is clearly illegal and
fundamentally without jurisdiction in light of the judgment of
Hon'ble the Supreme Court rendered in case of Vinay Tyagi
(supra). The same is therefore, quashed and set-aside.
13. Needless to observe that the I.O. shall be free to register a
fresh FIR (if deemed appropriate) and proceed in accordance with
law. The investigation/material gathered by the I.O. shall not go
waste and the same shall be used in relation to the new FIR (if so
registered).
14. The miscellaneous petition as well as the stay petition stands
disposed of accordingly.
(DINESH MEHTA),J
3-Amar/-
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