Patna High Court
Renu Kumari & Ors vs State Of Bihar & Anr on 3 April, 2018
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.42451 of 2017
Arising Out of PS.Case No. -265 Year- 2015 Thana -PURNEA SADAR District- PURNIA
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1. Renu Kumari wife of Rajendra Kumar Yadav, resident of Ram Bagh College
Road, P.S.-Sadar, District- Purnea.
2. Sanjay Poddar, son of Gopal Poddar resident of Rambagh P.S.- Sadar, District-
Purnea.
3. Sunil Poddar, son of Indradeo Poddar, resident of Rambagh, P.S.- Sadar,
District- Purnea.
4. Anil Kumar, son of Satya Narayan Yadav, resident of Khairuganj, P.S.- Sadar,
District- Purnea.
5. Manoj Kumar, son of Rajendra Prasad, resident of K. Hat, P.S.- K. Hat,
District- Purnea.
6. Rajeev Kumar son of Jagannath Choudhary, resident of Rambagh, P.S.- Sadar,
District- Purnea.
7. Manoj Choudhary son of late Gonu Choudhary, resident of Rambagh P.S.-
Sadar, District- Purnea.
8. Nageshwar Prasad Yadav @ Nageshwar Yadav son of Dinesh Yadav, resident
of Professor Colony Rambagh, P.S.- Sadar, District- Purnea.
9. Jai Kumar Choudhary son of Lattoo Choudhary resident of Ram Bagh College
Road, P.S.- Sadar, District- Purnea.
10. Nirmal Kumar Kar, son of Narayan Kar, resident of Madhubani Colony, P.S.- K
Hat, District- Purnea.
.... .... Accused- Petitioners
Versus
1. The State of Bihar
2. Anil Kumar son of late Rameshwar Singh, Revenue Officer-cum-Incharge
Circle Officer, resident of Shivpuri Ward No. 6, P.S.- K. Hat, District- Purnea.
.... .... Opposite Parties.
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Appearance :
For the Petitioners : Mr. Kaushal Kumar Jha, Advocate
Mr. S. K. Choudhary, Advocate
Mr. K. C. Jha, Advocate
Mr. Amish Kumar, Advocate
For the Opposite Parties : Smt. Gulnar Begam, APP
Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 03-04-2018
In the present application preferred under Section 482 of
the Code of Criminal Procedure, 1973 (for short „Cr.P.C.‟), the
petitioners have prayed for quashing of the order dated 30.06.2017
passed by the learned Chief Judicial Magistrate, Purnea in Sadar P.
S. Case No. 265 of 2015 whereby he has recalled the order taking
cognizance and has allowed the petition dated 28.06.2017 filed by
the investigating officer under Section 173(3) of the Cr.P.C. for
reinvestigation of the case.
2. Mr. Kaushal Kumar Jha, learned counsel for the
petitioners submitted that the order impugned has been passed by the
learned Chief Judicial Magistrate, Purnea mechanically without
application of judicial mind. He submitted that the law does not
permit re-investigation, but without adhering to the statutory
provision learned Chief Judicial Magistrate allowed the prayer of the
investigating officer and recalled his earlier order passed pursuant to
the receipt of the charge-sheet submitted by the police.
3. Mrs. Gulnar Begam, learned Additional Public
Prosecutor for the State submitted that there is no illegality in the
order impugned whereby the learned Chief Judicial Magistrate has
Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018
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allowed the prayer of the investigating officer for re-investigation of
the case. She submitted that after completion of investigation and
submission of police report, certain new facts transpired on which
investigation was found necessary pursuant to which the Inspector
General of Police had directed the investigating officer to seek
permission of the court for re-investigation, which has rightly been
allowed by the court.
4. I have heard learned counsel for the parties and perused
the order impugned.
5. The facts of the case in brief are that an FIR was
instituted on the basis of written report submitted by one Anil
Kumar, Revenue Officer-cum-Incharge Circle Officer, Purnea East
to the Officer-in-charge, Sadar, Purnea under Sections 467, 468, 471
and 420 read with 34 of the Indian Penal Code against four accused
persons, namely, Anirudh Prasad Singh son of Kavilal Singh,
Anirudh Prasad Singh son of late Pravin Kumar Singh, Vijay Kumar
Chaudhary son of Chotey Lal Chaudhary and Jagarnath Chaudhary.
In course of investigation, the police came to know that Anirudh
Prasad Singh son of Kavilal singh and Anirudh Prasad Singh son of
late Pravin Kumar Singh is one and the same person. Since Jagarnath
Chaudhary had died during investigation, on completion of
investigation, the police submitted charge-sheet against Anirudh
Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018
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Prasad Singh and Vijay Kumar Chaudhary under Sections 467, 468,
471 and 420 read with 34 of the Indian Penal Code vide Charge-
sheet No.181 of 2016 dated 31.07.2016. On perusal of the police
report submitted under Section 173(2) of the Cr. P.C. and the case
diary, the learned Chief Judicial Magistrate vide order dated
25.05.2017took cognizance of the offences and issued summons against the two charge-sheeted accused persons fixing 17.08.2017 as the next date.
6. Subsequently, the Investigating Officer filed an application on 28.06.2017 in the court of Chief Judicial Magistrate, Purnea stating therein that the Inspector General of Police, Darbhanga Range, Darbhanga had directed the Superintendent of Police, Purnea to re-investigate the case and in turn the Superintendent of Police, Purnea directed the Investigating Officer to re-investigate the case after obtaining permission of the court. The said petition filed by the Investigating Officer was allowed by the learned Chief Judicial Magistrate vide order dated 30.06.2017 whereby while directing the police to re-investigate the case under Section 173(2) of the Cr. P.C. and also recalled the order taking cognizance of the offence.
7. Having considered the rival submissions and perused the record, I find that two important questions of law are involved in the Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 5/10 present case. They are:-
(i) Whether the Investigating Officer is empowered to re-investigate the case after submission of a report under Section 173(2) of the Cr. P.C.? and;
(ii) Whether the criminal court can review its order on merit and recall the same?
8. Section 154 of the Cr. P.C. places a duty upon the Officer-in-charge of the police station to register an FIR upon receipt of an information about cognizable offence. Once an FIR is instituted, the police have got power to investigate a case under Section 156(1) of the Cr. P.C. and, on completion of investigation, they are required to submit a report before the court under Section 173(2) of the Cr. P.C. Even after filing of such report, if the police come into possession of further information or material, the police have power to make further investigation in terms of Section 173(8) of the Cr. P.C. and submit a supplementary report to the Magistrate notwithstanding the fact that the Magistrate has taken cognizance of the offence upon a police report submitted earlier.
9. While acknowledging the power of the police authority to carry out investigation in terms of Section 173 of the Cr. P.C. in Ram Lal Narang vs. State (Delhi Administration) [(1979) 2 SCC 322], the Supreme Court observed as under:-
Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 6/10 ".... In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light.
Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation."
10. In K. Chandrasekhar, Mariam vs. The State of Kerala & Ors. [(1998) 5 SCC 223], the Supreme Court observed as under:-
"....The dictionary meaning of "further" (when used as an adjective) is "additional"; more; 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. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports - regarding the "further"
Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 7/10 evidence obtained during such investigation. ..."
11. In Mithabhai Pashabhai Patel and Ors. vs. State of Gujarat [(2009) 6 SCC 332], the Supreme Court observed as under:-
"It is, however, beyond any cavil that "further investigation" and "reinvestigation" stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issued such a direction."
12. Thus, it would be manifest that after filing of police report under Section 173(2) of the Cr. P.C. if the police come into possession of further information or material, they may make further investigation with the leave of the court and where during further investigation they collect further evidence oral or documentary. They are obliged to submit the same with one or more further reports. However, the police have no power to re-investigate a case wiping out the earlier investigation altogether.
13. In that view of the matter, the permission given by the Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 8/10 learned Chief Judicial Magistrate, Purnea, vide impugned order dated 30.06.2017 to re-investigate the case is wholly without jurisdiction.
14. Coming back to the second issue, it is to be seen as to whether a criminal court can exercise the power to recall/review its order after passing.
15. Section 362 of the Cr. P.C. stipulates that save as otherwise provided by the Cr. P.C. or any other law, for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. This Section applies to judgment or final order. It is altering or reviewing any judgment or final order after it has been singed except for the purpose of correction of clerical or arithmetical error.
16. In Sooraj Devi vs. Pyare Lal and Anr. [(1981) 1 SCC 500], the Supreme Court observed as under:-
".... It is true that the prohibition in Section 362 against the court altering or reviewing its judgment is subject to what is "otherwise provided by this Court or by any other law for the time being in force". Those words, however, refer to those provisions only where the court has been expressly authorized by the Code or other law to alter or review its judgment. The inherent power of the court is Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 9/10 not contemplated by the saving provision contained in section 362 and, therefore, the attempt to invoke that power can be of no avail".
17. In Sooraj Devi (supra), it has further held as under:-
"A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. The inherent power of the court is not contemplated by the saving provision contained in section 362 and, therefore, the attempt to invoke that power can be of no avail".
18. Thus, it can safely be said that the prohibition contained in Section 362 is absolute after the order is signed. The Code of Criminal Procedure does not authorize the criminal court to review its order after it is signed.
19. In view of specific prohibition contained in Section 362 of the Cr. P.C., the learned Chief Judicial Magistrate was not empowered to recall the order of cognizance passed pursuant to receipt of a police report under Section 173(2) of the Cr. P.C., as the same amounts to reviewing the final order passed on the point of cognizance.
20. Having reached to the finding on both the issues framed hereinabove, the order impugned passed by the learned Chief Judicial Patna High Court Cr.M isc. No.42451 of 2017 dt.03-04-2018 10/ 10 Magistrate cannot be sustained.
21. Accordingly, the impugned order dated 30.06.2017 passed by the learned Chief Judicial Magistrate, Purnea in Sadar P. S. Case No. 265 of 2015 is hereby quashed. The learned Chief Judicial Magistrate is directed to pass fresh order on the application filed by the police seeking re-investigation of the case in accordance with law.
22. With the aforesaid observation and direction, the application is allowed.
(Ashwani Kumar Singh, J.) Kanchan/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 09.04.2018 Transmission 09.04.2018 Date