Rajasthan High Court

Bhagirathi Devi Wife Of Shri Ganeshram vs State Of Rajasthan (2024:Rj-Jp:37455) on 5 September, 2024

Author: Sameer Jain

Bench: Sameer Jain

[2024:RJ-JP:37455]

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

         S.B. Criminal Miscellaneous (Petition) No. 5742/2024

1.        Bhagirathi Devi Wife Of Shri Ganeshram, Aged About 75
          Years, Resident Of Village Singodara, Police Station
          Balara, District Sikar (Rajasthan)
2.        Rajendra Kumar Dehwa Son Of Shri Ganeshram, Resident
          Of Village Singodara, Police Station Balara, District Sikar.
                                                                      ----Petitioners
                                       Versus
1.        State Of Rajasthan, Through P.P.
2.        Omprakash Mahariya Son Of Masharam, Aged About 60
          Years, Resident Of Village Singodara, Police Station
          Balara, District Sikar (Rajasthan)
                                                                    ----Respondents

For Petitioner(s) : Mr. Amit Singh Shekhawat For Respondent(s) : Mr. Manvendra Singh Shekhawat, PP with Mr. Rishi Raj Singh Rathore, PP

HON'BLE MR. JUSTICE SAMEER JAIN

Order

05/09/2024

1. The present petition is filed under Section 528 of B.N.S.S.

2023 with the following prayers:

"It is, therefore, most respectfully prayed that this criminal misc. petition may kindly be allowed and the impugned order dated 30.07.2024 passed by Civil Judge & Judicial Magistrate, Laxmangarh (Sikar), Rajasthan in Case No.88/2022 titled complainant Omprakash Mahariya may kindly be quashed and set aside:

And may pass any other order(s) which this Hon'ble Court deems just and proper in the facts and circumstances of the case."

2. Learned counsel for the petitioner has submitted that vide

order dated 30.07.2024 after formulating the points of

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investigation, directions have been issued for the further

investigation. Thereafter, the complainant submitted a complaint

dated 03.02.2022, before Judicial Magistrate, Laxmangarh, for the

offences under Section 420, 467, 468, 471, 199, and 120B of IPC.

It is further submitted that the foundation of entire case has been

an FIR bearing No.51/2022 registered at Police Station Balaran,

District Sikar for offences under Sections 420, 467, 468, 471,

120-B, 191 and 199 of the IPC.

3. Further, learned counsel has submitted that the order dated

30.07.2024 is arbitrary in nature and has been passed sans

jurisdiction. Moreover, the said order is violative to the provisions

of Section 173(8) of Cr.P.C., as while allowing the said application

the learned Trial Court formulated the points and directed to

conduct the investigation in a specified direction, without

considering the vital aspects of the instant dispute.

4. In this regard, learned counsel has placed reliance upon the

ratio encapsulated in Popular Muthiah Vs. State Represented

by Inspector of Police reported in (2006) 7 SCC 296 and a

dictum passed by the Co-ordinate Bench of this Court in S.B.

Criminal Misc. Petition No.521/2007 titled as Sagarmal &

Ors. Vs. State of Rajasthan, while placing reliance upon the

afore-cited, it is submitted that as per the provisions of Section

173(8) Cr.P.C., the powers of the Magistrate are limited and hence

the Magistrate cannot direct re-investigation while drawing

conclusions, nor the authorities can be given directions to carry

out investigation based on the suggestion of the complainant.

5. Per contra, learned counsel for the respondents has

vehemently opposed the contentions made by the counsel

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representing the petitioners and has submitted that the order

dated 30.07.2024 is passed after due consideration of the vital

aspects of the instant matter and is sans any error and

irregularity.

6. Considering the foregoing facts and circumstances of the

instant matter and upon a perusal of the record, this Court has

drawn the following observations:

6.1 That from a bare perusal of the provisions of Section 173(8) of

Cr.P.C., it can be inferred that under the statute forwarding powers

have been given for directing further investigations in the facts

and circumstances to the Magistrate, after a report has been filed

in the prescribed manner, before the Magistrate. Considering the

genuineness of the matter, the Magistrate can exercise the powers

as specified from Section 173(2) - 173(6) mutatis mutandis as

per the facts and circumstances of the dispute before it, to meet

out the ends of justice. For the sake of brevity provisions of

Section 173 Cr.P.C. are reproduced herein below:

"(1) Every investigation under this Chapter shall be completed without unnecessary delay.

1[(1A) The investigation in relation to 2[an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E] from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

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(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170. 3[(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under 4[sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the Indian Penal Code (45 of 1860)].]

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from

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the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

(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)."

6.2 That in the matter in hand, learned Magistrate while passing

order dated 30.07.2024, after considering the necessary facts,

issued directions qua further investigation. It is evident that the

learned Trial Court has not drawn any conclusion pertaining to a

pre-determined notion. Moreover, noting the crucial aspects of the

instant dispute, the investigating authorities have been directed to

conduct the investigation in a particular direction. It prima facie

appears that the said investigation had not been conducted in the

desired manner at the initial stage. The relevant extract of the

order dated 30.07.2024 is reproduced herein below:

"vf/koDrk ifjoknh mifLFkrA cgl izkFkZuk i= iw.kZ ntZA fuEu fcUnqvksa ij izdj.k izsf'kr fd;k tkdj further investigation mfpr izrhr gksrk gSA

1- izkFkhZ ds uewuk lSEiy izkIr dj vius Lrj ij xokg ds :i esa rFkk dfFkr vfHk;qDrx.k }kjk fn, x;s xokg ds gLrk{kj fd;s tkus ds lEcU/k esa vuqla/kku fd;k tkosA

2- rRle; iSa"ku Lohd`r dSEi esa ekStwn xzke lsod] gYdk iVokjh] fodkl vf/kdkjh ,ao rglhynkj vkfn ls iqNrkN dj c;ku ys[kc)

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gksaA ckn vuqla/kku fjiksVZ U;k;ky; le{k vfoyEc is"k gksA dsl Mk;jh further investigation gsrq fu;ekuqlkj izsf'kr gksA i=k- okLrs bUrtkj fjiksVZ gsrq fnukad 21-10-2024 dks is"k gksA"

6.3 That the judgments cited by learned counsel for the

petitioner pertains to the factual narrative wherein, the Magistrate

has drawn a conclusion on predetermined notions in the

investigation and then directed for investigation. Hence, the same

stand on a distinguishable factual matrix.

7. In light of the aforementioned observation, this Court is of

the view that there is zilch palpable error in the order dated

30.07.2024. Moreover, the said order has categorically stated that

only after due consideration of all the evidences placed on record,

the Court had formulated its opinion qua further direction.

8. Accordingly, the present petition is dismissed. Pending

applications, if any, stand disposed of.