Rajasthan High Court - Jaipur
Pramod Kumar Saini And Anr. vs State Of Rajasthan And Anr. on 2 June, 2006
Equivalent citations: 2006CRILJ3525
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
ORDER Gopal Krishan Vyas, J.
1. By way of filing the present petition under Section 482, Cr. P.C., the petitioners have challenged the order dated 17-2-2006 passed by Additional Chief Judicial Magistrate, Bhadra in F.R. No. 13/2006.
2. Brief facts of the case are that a complaint was filed by one Niranjan Lal before the learned Additional Chief Judicial Magistrate, Bhadra on 6-1-2006 alleging that one Dinesh Kumar was running a shop of sweets at Sahwa Bus Stand. On 20-4-2005, the complainant and his other friends were taking breakfast in the said shop and at that time the complainant was not having cash in his hand, therefore, a cheque of Rs. 200/- was given to accused-Dinesh Kumar. It was further alleged that the complainant due to old relation with the shop keeper issued a cheque bearing No. 994725 without mentioning the date and could not write the amount in words upon the said cheque on account of being in hurry. It was further alleged that the accused by way of making conspiracy increased the amount of cheque to Rs. 2,22,000/- instead of Rs. 200/- and forged the cheque and submitted the same in the Bank for encashment. The accused never gave the money as debt but the accused persons gave threatening to the complainant that if he will not make the payment of cheque then they would finish him. The said complaint filed before the Magistrate was sent to the SHO, Bhadra under Section 156(3), Cr. P.C. for investigation and was registered as FIR No. 14/2006 against the petitioners for offence under Sections 420, 467, 468, 471 and 120-B, I.P.C. After completion of investigation, the police filed negative report (adm vaku). Thereafter, a notice was given to the complainant when final report was filed and before the Magistrate, the complainant requested to send the matter for re-investigation and on his request, the learned trial Court sent the matter for reinvestigation vide impugned order dated 17-2-2006.
3. Learned Counsel for the petitioners contended that the order dated 17-2-2006 is totally abuse of process of the Court and the learned trial Court has committed an error while directing the Investigating Officer to reinvestigate the matter in a particular manner. Further, it is argued by the learned Counsel for the petitioners that the learned trial Court cannot pass any order, directing the investigating agency to investigate the matter in a particular manner as desired by the Court because Investigating Officer has his discretion and prerogative to investigate the matter as per his subjective satisfaction and the method to be adopted to investigate the matter is totally left with the discretion of the Investigation Officer. It is also contended that accused-petitioner-Dinesh Kumar gave a notice under Section 138 of Negotiable Instruments Act and the said notice was served upon the complainant non-petitioner No. 2 on 21-12-2005 and thereafter, he filed complaint before the learned trial Court on 9-1-2006 under Section 138 of N.I. Act meaning thereby only to save himself from the proceedings under Section 138, N.I. Act, this complaint was filed, therefore, the intention of the complainant goes to show that for taking defence, immediately after the service of the notice, the complainant filed the complaint even after lapse of 13 days from the date of service of notice and the learned Magistrate while passing the impugned order failed to consider this aspect of the matter, directed the Investigating Officer to re-investigate the matter in a particular manner, therefore, the order impugned deserves to be quashed. In support of his argument, learned Counsel for the petitioners has placed reliance upon the judgments in case of Kashi Ram v. State of Raj. reported in 1995 Cr LR (Raj) 86; Gajanand Gupta v. State reported in 1999 Cr LR (Raj) 862; Sohan Singh v. State reported in 1998 Cr LR (Raj) 332 and Mahipal Singh v. State reported in 1998 Cr LR (Raj) 813 and prayed that the order impugned may be quashed and set aside.
4. Per contra, learned Counsel appearing on behalf of the non-petitioner vehemently opposed the prayer of the learned Counsel for the petitioners for quashing of the impugned order dated 17-2-2006 and contended that as per Section 173(8), Cr. P.C., there is power left with the trial Court to send the case back for re-investigation, so also, if any particular query is to be made, it is within his domain to pass such an order under Section 173(8), Cr. P.C. for re-investigation of the matter, if police has filed final negative report. Further, it is contended by the learned Counsel for the non-petitioner that still no process has been issued by the trial Court nor any order has been passed against the petitioners, therefore, they have no locus standi in the matter to challenge the said order.
5. I have heard learned Counsel for the petitioners as well as learned Counsel appearing on behalf of non-petitioner and perused the impugned order dated 17-2-2006. I have also gone through the judgments cited by the learned Counsel for the petitioners.
6. From a bare perusal of Section 173(8), it is clear that the Magistrate has power to send the case back for re-investigation, if he is not satisfied with the investigation. According to provisions of Section 173(8), Cr. P.C., the Magistrate is not precluded to pass an order for further investigation and Investigating Officer is also under obligation to follow the directions issued by the Magistrate and to take further evidence oral or documentary and to send further report as per the directions of the Court. Therefore, in my considered opinion, there is no restriction under the law for the Magistrate to send the case back for further investigation under Section 173(8), Cr. P.C. The question as to whether any particular mode of investigation can be made or not while passing such an order, has been decided by this Court in so many cases and particularly in case of Mahipal Singh (supra) wherein this Court in paras 4 and 5 has categorically held as follows:
4. There is merit in the contention of Mr. Garg. The Magistrate is empowered to direct further investigation, when the police submits F.I.R., but it is not permissible that the Magistrate binds down the police to investigate in particular manner or recover the articles. The Magistrate can order that further investigation be conducted on the allegations of the complainant. In the instant case, the learned Spl. Judge has given direction with regard to making of investigation in a particular manner. He has been directed the recoveries to be made. Such direction could not be given in exercise of revisional jurisdiction. The directions given in this regard are liable to be quashed.
5. Consequently, this revision-petition is partly allowed. This part of the order of Spl. Judge is set aside wherein it was directed that investigation shall now be made in particular manner or with regard to the allegations of particular paragraphs. The learned Magistrate may direct the I.O. to make further investigation in the light of observations made above.
7. The operative portion of the impugned order dated 17-2-2006 reads as follows:
(Vernacular matter omitted...Ed.)
8. In my opinion though the order with regard to further investigation is in consonance with the provisions of law but the operative portion of the impugned order is not sustainable in view of the judgment rendered in case of Mahipal Singh (supra).
9. In this view of the matter, the petition is partly allowed. The part of the impugned order dated 17-2-2006 so far as directing investigation in a particular manner is set aside. The Investigating Officer is directed to make further investigation as per his satisfaction in the light of observations made in the impugned order dated 17-2-2006 and submit the report before the trial Court.