Delhi District Court
State vs Gaurav Sharda on 22 July, 2009
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution: 06.02.2009
Date of judgment reserved on: 14.07.2009
Date of decision: 22.07.2009
Criminal Revision No. 5/2009
State .... Revisionist
Versus
Gaurav Sharda ....Respondent.
ORDER.
Petitioner revisionist Sh.Gaurav Sharda husband of complainant wife Smt. Jyotsana Sharda was chargesheeted along with other accused family members for offence U/s 498-A/406 , 420, 467, 648, 506 & 342/34 IPC before the court of Judicial Magistrate First Class, Gurgaon from Police Station DLF Gurgaon in a case FIR 1195 dated 18/11/2006. Ld MM took cognizance of the offence and accused appeared before the court meanwhile prosecution moved an application before Ld Magistrate for further investigation in the case and that application came up for hearing and disposal before Ld Magistrate on 30/5/2008. Application was allowed on the same date and that order was challenged through the present revision petition filed before Ld District & Sessions Judge Gurgaon.
The case file including revision file have been received on transfer under the order of Hon'ble Supreme Court and this revision was 2 assigned to this court by Sessions Judge IV, New Delhi, Patiala House Courts for its disposal. I heard both sides in this revision.
Counsel Ms. Preeti Sharma appeared for the revisionist and Ld APP assisted by counsel Sh. Jai Bansal appearing for the complainant argued on behalf of state. Emphasis from respondent side was that revision is misconceived as the police had jurisdiction and power to take up further investigation if any fresh material came up before the investigating officer. That power could be exercised by the police even after the cognizance of offences had already been taken and as such in the present case if police wanted to take up further investigation in to the matter and matter was brought to the notice of the court for a formal permission and the court granted permission through impugned order, there was no illegality in order to call for any interference in this revisional jurisdiction. In this regard ld counsel referred to certain Supreme Court judgments like in a case Rama Chaudhry Vs State of Bihar Crl. Appeal No.0517/09 decided on 2/4/2009 where it has been held that further investigation is permissible though reinvestigation is prohibited. Law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the chargesheet is a statutory right of the police. Reinvestigation without prior permission is prohibited but further investigation is permissible.
Another judgment relied upon by ld counsel is by High Court of Jharkhand in a case Kanhaiya Prasad Vs State of Jharkhand Cr.M.P 3 833/08 decided on 12/8/08. where the same proposition of law has been reiterated. Counsel also relied upon another Supreme Court judgment in a case State of A.P Vs A.S Peter Crl. Appeal No.1119/04 decided on 13/12/2007 where it has been held that there is a distinction between further investigation and reinvestigation. Whereas reinvestigation without prior permission is forbidden, further investigation is not. Several other judgments have been referred to by ld counsel on this proposition of law.
On the other hand ld counsel from the petitioner side relied upon a Delhi High Court judgment reported as Rajinder Prasad Vs State 1995 (3) Crimes 15 where it is held that despite jurisdiction and power with the police to take up further investigation, prosecution could not be allowed to improve upon its case in absence of any new material or evidence. It has been held, ''After hearing learned counsel for the parties at length, I am of the considered opinion and this what follows from the observations of the Supreme Court in Ram Lal Narang's case (supra) that in the event of any fresh material or evidence coming in the possession or knowledge of the investigating officer, the investigating officer or the police is not without power to investigate further in view of the new evidence or new material which has come to its notice. It is for the benefit of the prosecution as well as for the accused. The sub-section 8 of Section 173 of the Code on the basis of this new material or evidence which has come to the light has given power to the Police to further investigate in the matter to find the truth. However, can this power be exercised in relation to a case property which was before the prosecution on the basis of 4 which chargesheet has been filed and after two years prosecution comes before the Court seeks permission that they may be allowed to draw a second sample for further test, the answer is in negative. This would amount to a roving and fishing enquiry or to fish out evidence against the accused after the chargesheet has been filed against the accused.'' Similarly further investigation could not be permissible only because complainant had moved an application for that and on this point ld counsel relied upon a judgment 1998 Cril. L.J 3075. I have considered these submissions.
To my view the impugned order deserves to be set aside where it observes:
'' In view of the statement of the counsel for accused and the facts as mentioned in the application, the prosecution is allowed to reinvestigate the matter''.
Certainly reinvestigation in to the case could not be permitted unless the court granted permission but then exercise of such a power should have been by analysing the facts already investigated and need for reinvestigation keeping in view the interest of accused not jeoparadised. The impugned order is absolutely silent as to why and in what circumstances reinvestigation in to the case was required and was to be permitted to be carried out. Ld counsel appearing for complainant and assisting Ld APP argued that in fact expression ''reinvestigation'' was a 5 typographical error whereas it was only a further investigation. On the other hand ld counsel appearing for the petitioner referred to the application moved by the police before JMIC Gurgaon where it has mentioned that in view of a protest/complaint received from complainant Jyotsana Sharda pointing out certain faults and deficiencies in the investigation, further investigation was necessary. Counsel submits that too to fill up lacuna by further investigation was an impermissibility as has been held in judgment of Delhi High Court in a case Rajinder Prasad Vs State. The submission appears to be logical and with a sound basis. Further investigation was permissible and within the jurisdiction of the police to carry out provided there was new evidence or new material which came to its notice. During arguments it came up that the alleged further investigation which police wanted to take up was concerning an operation of a bank locker by the accused husband Gaurav Sharda. It has been argued and submitted that operation of the bank locker was by way of forging the signatures of the complainant and thereby cheating complainant through that forgery. Complaint given by Jyotsana Sharda to Director General of Police Haryana pursuant to which police wanted to take up further investigation/reinvestigation as referred to above alleged that bank official Rakesh Jain had not been interrogated who was alleged to have allowed operation of the bank locker. He was made neither an accused nor cited as a witness. The chargesheet filed in this case reveals that even bank locker agreement had been seized by the police and it had 6 been got examined from Forensic Science Laboratory Haryana and probably on the basis of a report received from FSL that accused persons were chargesheeted for offences of cheating, forgery etc etc. What was a new evidence or material on the basis of which police required to take up further investigation was not clear from the application moved by police before Ld Magistrate. Anyhow the impugned order permitting police to reinvestigate into the matter is an illegal order. It is difficult to accept submissions from respondent complainant side that it was simply an order granting permission for further investigation. The impugned order is set aside. Ofcourse the police in this case is not prevented or prohibited from exercising its jurisdiction available under law in accordance with law. Trial court record be sent back along with copy of this order. Criminal revision file be consigned to record room.
Announced in the Open (J. R. ARYAN)
court on 22/07/2009 ADDITIONAL SESSIONS JUDGE
NEW DELHI.
7
CR No.5/09
State Vs Gaurav Sharda etc.
22/7/2009
Present: Both sides through advocates.
Vide separate order, revision petition in this matter is allowed and impugned order dated 30/5/2008 is set aside. The case has been received in transfer under the order of Hon'ble Supreme Court. Let trial court record for offences triable by Magistrate be placed with a copy of this order before Ld District & Sessions Judge IV to assign trial of this case to Magistrate competent to try the same. File be placed before Ld District & Sessions Judge IV on 3/8/2009.
(J. R. ARYAN) ADDITIONAL SESSIONS JUDGE NEW DELHI.
22/07/2009