State vs Gaurav Sharda on 22 July, 2009
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
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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
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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.