Uttarakhand High Court
Unknown vs Saurabh on 3 January, 2023
Office Notes,
reports, orders or
proceedings or
Sl. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
C482 No.1505 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Navneet Kaushik, Advocate, for the
applicants.
Mr. Atul Kumar Shah, D.A.G. with Mrs.
Mamta Joshi, B.H., for the State of
Uttarakhand.
Mr. B.N. Molakhi, Advocate, for the
respondent.
The applicant to the present C482
Application is a complainant, who has
registered the FIR being FIR No.343, dated
01.05.2020, for trying the named accused
persons, respondent, herein, for their alleged
involvement in the commission of the offence
under section 406 of IPC.
The matter was investigated upon and the
Chargesheet, being Chargesheet No.06 of 2022,
dated 07.01.2022, was submitted by the
Investigating Officer as against the accused
persons Shri Saurabh Malhora and Tarun
Malhotra. On submission of the chargesheet,
the cognizance has been taken by the court of
Additional Chief Judicial Magistrate, Laksar,
District Haridwar by registering a Criminal
Case No.31 of 2022, "State Vs. Saurabh
Malhotra and others", whereby the respondent
has been summoned to be tried for the offence
under section 406 of IPC. It is during the
pendency of the trial, the present applicant had
filed an application making a request for further
investigation before the DGP, Uttarakhand.
The grievance of the present
applicant/complainant, is that at the behest of
the application filed by the respondent nos.5
and 6, before the DGP, Uttarakhand, the
directions have been issued for reinvestigation,
which will not be an ambit falling under the
provisions contained under section 173 (8) of
CrPC, for the reason being that in the light of
the principles laid down by the Hon'ble Apex
Court in the two judgments, which he has
referred to, a judgment in the matters of "Rama
Chaudhary Vs. State of Bihar". The Hon'ble
Apex Court in paragraph nos. 9 and 10, of the
said judgment, has drawn a distinction, as to
what would be the impact of considering the
implications of the "reinvestigation" and
"further investigation", in the light of the
provisions contained under section 173 (8) of
CrPC. The relevant paragraph nos.9 and 10, of
the said judgment is extracted hereunder:-
"9) The above said provision also
makes it clear that further
investigation is permissible,
however, reinvestigation is
prohibited. The law does not
mandate taking of prior permission
from the Magistrate for further
investigation. Carrying out a further
investigation even after filing of
the charge-sheet is a statutory right
of the police. Reinvestigation
without prior permission is
prohibited. On the other hand,
further investigation is permissible.
10) From a plain reading of sub-
section (2) and sub-section (8) of
Section 173, it is evident that even
after submission of police report
under sub-section (2) on completion
of investigation, the police has a
right to "further" investigation under
sub-section (8) of Section 173 but
not "fresh investigation" or
"reinvestigation". The meaning of
"Further" is additional; more; or
supplemental. "Further"
investigation, therefore, is the
continuation of the earlier
investigation and not a fresh
investigation or reinvestigation to be
started ab initio wiping out the
earlier investigation altogether. Sub-
section (8) of Section 173 clearly
envisages that on completion of
further investigation, the
investigating agency has to forward
to the Magistrate a "further" report
and not fresh report regarding the
"further" evidence obtained during
such investigation."
The Hon'ble Apex Court while drawing
a distinction has observed that while exercising
a powers under section 173 (8) of CrPC only a
further investigation could be directed and there
could not be a direction for reinvestigation as it
has been observed in the impugned order,
which is under challenge before this Court.
Based upon the judgment of "Rama
Chaudhary Vs. State of Bihar", the matter was
once again considered by the Hon'ble Apex
Court in Criminal Appeal No.941 of 2009,
"Mithabhai Pashabhai Patel and others Vs.
State of Gujarat", and the Hon'ble Apex
Court, yet again while considering the
implications and drawing a distinction with
regards to the "further investigation" and
"reinvestigation" has considered vividly in
paragraph no.25, as to how the implications of
section 173 (8) of CrPC, is to be construed for
the purposes of further investigation and while
drawing its inference, the Hon'ble Apex Court
in paragraph no.25, has extracted, its analogy
from the contents of paragraph 9 and 10 of the
judgment of "Rama Chaudhary Vs. State of
Bihar".
In the instant case, even if the application
filed by the respondent nos.5 and 6, are
considered, they have prayed for further
investigation, and not for reinvestigation as it
has been observed in the impugned order, in the
light of the fact that under section 173 (8) of
CrPC, there cannot be a reinvestigation, as it
has been observed by the impugned order
passed by the Magistrate concerned on
25.07.2022.
The impugned order under challenge in
the present C482 Application cannot be
sustained. Hence, the same is hereby quashed.
However, having quashed the order dated
25.07.2022, it will not preclude the Judicial
Magistrate to consider the application for
further investigation as prayed for by the
respondent nos.5 and 6, and pass an appropriate
order on the same in accordance with law.
Subject to the aforesaid, the C482
Application stands allowed.
(Sharad Kumar Sharma, J.)
03.01.2023
NR/
