[Cites 16, Cited by 0]
Rajasthan High Court - Jodhpur
Mangat Ram vs State Of Rajasthan (2026:Rj-Jd:13908) on 24 March, 2026
[2026:RJ-JD:13908]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2186/2026
Mangat Ram S/o Nikku Ram, Aged About 60 Years, Resident Of
Jhandawali, Tehsil And District Hanumangarh Raj..
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hathe Singh S/o Kamal Singh, Resident Of Gandhi Nagar,
Barmer Raj..
3. Muse Khan S/o Male Khan, Resident Of Baiya Jhijhanyali,
Jaisalmer Raj..
4. Mala Ram S/o Sardara Ram, Resident Of Viratra Nagar,
Barmer Raj..
5. Drish S/o Aadam Khan, Resident Of Khara Rathodan,
Barmer Raj..
----Respondents
For Petitioner(s) : Mr. Gopi Ram Goyal
For Respondent(s) : Ms. Sonu Manawat, PP
HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU
Order
24/03/2026
The present criminal miscellaneous petition has been filed
under Section 528 of the BNSS against the order dated
16.02.2026 passed by the learned Additional District and Sessions
Judge No. 2, Barmer, whereby the application filed by the
petitioner under Section 173(8) Cr.P.C. on 04.07.2024, seeking
further investigation in Sessions Case No. 148/2024 (arising out of
FIR No. 328/2022 registered at Police Station Kotwali, District
Barmer for offences under Sections 302/34 IPC), has been
dismissed.
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Learned counsel for the petitioner has challenged the
aforesaid order dated 16.02.2026 on the ground that the learned
trial Court failed to appreciate the material irregularities and
lapses in the investigation. It is submitted that the investigation
conducted by the Investigating Agency is wholly lacunose and
perfunctory. The statements of the eye-witnesses have not been
recorded, and no meaningful investigation has been carried out.
It is further submitted that the FIR itself records that media
persons were present at the spot, indicating the existence of video
recordings; however, no effort has been made by the
Investigating Agency to collect or produce such vital evidence.
Learned counsel submits that several other important aspects
were specifically pointed out before the learned trial Court, but the
same have not been properly considered, and the application has
been rejected in a cursory manner.
It is contended that the case was fit for directing further
investigation. In support of his submissions, learned counsel has
placed reliance upon the judgments of the Hon'ble Apex Court in
Neetu Kumar Nagaich vs. State of Rajasthan, AIR 2020 SC
5267 , Pooja Pal v. Union Of India reported in (2016) AIR
(SCW)1345 and Vinubhai Haribhai Malaviya & Ors. v. State
of Gujarat, reported in 2019 INSC 1146.
Per contra, the learned Public Prosecutor has vehemently
opposed the petition and submitted that the police conducted a
proper investigation and thereafter filed the report in accordance
with law.
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This Court has considered the rival submissions and perused
the impugned order dated 16.02.2026.
The Hon'ble Apex Court in Pooja Pal v. Union of
India(supra) has emphatically held that a fair, transparent and
judicious investigation is a constitutional imperative, and any
investigation which is tainted, unfair or incomplete cannot be
sustained in the eyes of law. The relevant observations are
reproduced hereinbelow:--
"64. This Court in Babubhai (supra) while examining the
scope of Section 173(8) of the Code, did recall its
observations in Manu Sharma vs. State (NCT of Delhi),
(2010) 6 SCC 1,that it is not only the responsibility of the
investigating agency but as well as of the courts to
ensure, that investigation is fair and does not in any way
hamper the freedom of an individual except in accordance
with law. It underlined, that the equally enforceable canon
of criminal law is that high responsibility lies upon the
investigating agency, not to conduct an investigation in a
tainted and unfair manner and that such drill should not
prima facie be indicative of a biased mind and every effort
should be made to bring the guilty to law de hors his
position and influence in the society as nobody stands
above law. It propounded that the word "ordinarily"
applied under Section 173(8) of the Code, did attest that
if the investigation is unfair and deliberately incomplete
and has been done in a manner with an object of helping
a party, the court may direct normally for further
investigation, and not for re investigation. It was however
added as a sequiter that in exceptional circumstances, the
court in order to prevent the miscarriage of criminal
justice, and if it is considered necessary, may direct for de
novo investigation as well. It was observed that if an
investigation has not been conducted fairly, the resultant
charge sheet would be invalid. It was held as well, that
such investigation would ultimately prove to be a
precursor of miscarriage of criminal justice and the court
in such a contingency would be left to guess or conjecture,
as the whole truth would not be forthcoming to it. It was
held that fair investigation is a part of the constitutional
rights guaranteed under Articles 20 and 21 of the
Constitution of India and thus the investigating agency
cannot be permitted to conduct an investigation in a
tainted or biased manner. It was emphasised that where
non-interference of the court would ultimately result in
failure of justice, the court must interfere and in the
interest of justice choose an independent agency to make
a fresh investigation."
(emphasis supplied)
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The Hon'ble Apex Court in Common Cause Vs. Union of
India [(1996) 6 SCC 775] has categorically held that further
investigation can be directed at any stage prior to the framing of
charges as "trial" means determination of issues adjudging the
guilt or innocence of a person, the person has to be aware of what
is the case against him and it is only at the stage of framing of
charges that the Court informs him of the same, and therefore,
the "trial" commences only upon charges being framed. Thus, the
view that in a criminal case trial commences on cognizance being
taken is not approved.
The Hon'ble Apex Court in Vinubhai Haribhai Malaviya &
Ors. (supra) has categorically held that further investigation can
be directed at any stage prior to the framing of charges. The
relevant portion of the judgment is reproduced herein:
"38.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
(supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi
(supra), and Hardeep Singh (supra); Hardeep Singh
(supra) 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
mid- way 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
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Section 173(8) of the 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 (supra).
Therefore, to the extent that the judgments in Amrutbhai
Shambubhai Patel (supra), Athul Rao (supra) and Bikash
Ranjan Rout (supra) have held to the contrary, they stand
overruled. Needless to add, Randhir Singh Rana v. State
(Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v.
State of West Bengal and Ors. (2009) 9 SCC 129 also
stand overruled."
(emphasis supplied)
Considering the facts of the present case and the law laid
down by the Hon'ble Apex Court, this Court finds merit in the
contentions raised by the petitioner. The issues raised by the
petitioner also find mention in the order passed by the learned
trial Court, wherein the petitioner had raised all points in a
detailed and point-wise manner, which prima facie appear to be
relevant and significant for ensuring a fair consideration of the
matter.
It is noteworthy that, despite specific allegations against the
accused, the charge-sheet has been filed under Section 304 IPC.
However, the learned trial Court rejected the application primarily
on the ground of delay and on the premise that no relevant issue
had been pointed out by the petitioner.
In the opinion of this Court, the said grounds of rejection are
unsustainable. At this stage, even the charges have not yet been
framed. The issues raised by the petitioner are clearly relevant, as
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is evident from the record, and cannot be brushed aside merely by
observing that they are not material.
It is also pertinent to note that the petitioner is not the
Investigating Agency and cannot be expected to place such
evidence on record himself. It is the duty of the Investigating
Agency to collect all relevant material. The petitioner can only
point out glaring omissions in the investigation, which has been
done in the present case.
In view of the above- mentioned judgments and facts of this
case, this Court finds that the impugned order passed by the
learned trial Court is not sustainable in the eyes of law. The
application filed by the petitioner ought to have been considered
on merits in a pragmatic manner, keeping in view the nature of
the issues raised.
Accordingly, the order dated 16.02.2026 is hereby quashed
and set aside, and the matter is remanded to the learned trial
Court for fresh consideration in accordance with law and in light of
the principles laid down by the Hon'ble Apex Court.
With these observations, the present criminal miscellaneous
petition stands allowed.
(BALJINDER SINGH SANDHU),J
92-deep/-
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