NANDAN SINGH BORA Vs. STATE OF U P

JUDGEMENT

(1.) Heard Mr. S. K. Tiwari, learned counsel for the petitioner as well as Mr. R. P. Shukla, learned Additional Government Advocate. The petitioner has challenged the order dated 22. 5. 2008 passed in case No. 338 of 2007 by Special Chief Judicial Magistrate (Custom), Lucknow, on the ground that the learned Magistrate has issued direction for reinvestigation of the case, which is not permissible under law. To substantiate his arguments, he drew the attention of this Court towards the provisions of sub-section (8) of Section 173 Code of Criminal Procedure, 1973, which is reproduced as under:- "173 (8 ). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2 ). On the other hand, learned Additional Government Advocate urged that the order impugned itself speaks that after reading the final report submitted by the police, learned Magistrate has found that the investigating officer has not formed any opinion with respect to inquiry conducted by the Awas Vikas Parishad, therefore, feeling it proper on the said point the matter requires investigation, he issued direction for further investigation only on some limited points. Therefore, it cannot be said that there is a direction for reinvestigation. So far as reinvestigation is concerned, under the order of reinvestigation, the investigating officer is empowered to make a fresh investigation on each and every fact whereas in the present case direction for further investigation is confined only upon some limited point. Therefore, only mentioning a word in the order passed by learned Magistrate for reinvestigation, does not tantamount to the order issued for reinvestigation. In support of his contentions, he cited some decisions, which are discussed hereinunder;- Popular Muthiah vs. State 2006 (7) SCC 296. In this case, since the provisions of Section 173 (2) (i) had not been complied with, the High Court issue following direction:- "we are of the view that this is a fit case where we have to direct the prosecution of Murugan as well as Popular Muthiah; and the learned State Public Prosecutor shall advise the State as to under what section they have to be charged and tried. We may be able to relax a bit only after directing CB, CID to take up the matter. We direct CB, CID to take up the matter. We direct CB, CID to take over the matter and reinvestigate and prosecute the said Murugan and Popular Muthiah" It was furthermore directed : " (b) In view of our conclusion that since there is evidence at every stage implicating Murugan and Popular Muthiah in the crime relating to the murder of George, justice requires that the investigating agency must have a fresh look at the materials already available on record and the materials to be collected pursuant to this order in the reinvestigation connecting Popular Muthiah and Murugan also with the crime. Therefore, we order fresh investigation by the investigating agency so far as Popular Muthiah and Murugan are concerned. Consequently, the Director General of Police is directed to entrust the investigation in this case relating to the involvement of Popular Muthiah and Murugan to CB, CID. The Director General of Police is also directed to nominate an officer, not below the rank of Superintendent of Police, to monitor the investigation to be done by CB, CID. The order of the High Court was challenged before the Hon'ble Supreme Court on several grounds, one of which is as under :- " (viii) In any view of the matter, the investigating officers having found lacunae in the prosecution case, particularly in view of the fact that one of the appellants was found to have suffered fracture in an accident four days prior to the date of occurrence, it was wholly improper on the part of the High Court to direct reopening of the investigation. " On the aforesaid point, the matter was contested by other side with the following arguments. " (ix) Section 173 (8) of the Code of Criminal Procedure does not postulate any power on the part of the courts to direct reinvestigation as the statutory power to make investigation always remains with the investigating agency. In view of rival contentions as has been quoted hereinabove, the Hon'ble Supreme Court formulated several questions including the following question (ii) Whether only because of the fact that the appellate power of the High Court in terms of Sections 374 (2), 386 and 391 does not contain any specific power to direct further investigation, the High Court lacked jurisdiction from seeking recourse to its inherent and supervisory powers under Sections 482 and 483 of the Code of Criminal Procedure in a case of this nature. The Hon'ble Supreme Court after discussing the several judgments on the point answered it in the following manner:- "we have noticed hereinbefore that the jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefor. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (ii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct reinvestigation into the matter. (see Abhinandan Jha vs. Dinesh Mishra and Minu Kumari vs. State of Bihar.) Thus, the Hon'ble Supreme Court has permitted for issuing direction for reinvestigation also whereas the present case is not a case of re-direction as the learned Magistrate has limited further investigation on some limited point as has been held in the case of K. Chandrasekhar vs. State of Kerala and others Air 1998 SC 2001 cited by learned counsel for the petitioner. The Hon'ble Supreme Court has also clarified the position that 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, meaning thereby, the investigation report submitted by the police has been taken as it is but since the matter requires further investigation on some particular point, a direction has been issued by learned Magistrate, which is also permissible under law laid down by Hon'ble Supreme Court in the case of K. Chandrasekhar (supra ). Therefore, in view of law laid down by Hon'ble Supreme Court as has been discussed hereinabove, I am of the view that it is not a case of re-investigation rather it is a case of further investigation. Therefore, I am not inclined to interfere in the order impugned. However, it is clarified that the investigating officer shall confine himself to investigate the case further only on the points limited by learned Magistrate and the report submitted by him shall be taken under Section 173 Cr. P. C. In view of the aforesaid observation, the petition is disposed of. .