ASHA KUMARI Vs. STATE OF H.P.

JUDGEMENT

(1.) The criminal case from out of which this petition has arisen is pending in the court of learned Special Judge, Chamba and is at the stage of framing of the charge. Whether the charge has to be framed or it has not to be framed is in the domain of the learned Trial Judge. The thrust of the arguments advanced by Mr. Cheema, learned Senior Counsel appearing for the petitioner and the thrust of most of his submissions made in the course of hearing of this petition revolved around his basic premise that the charge against the petitioner should not be framed because the material on record clearly suggest that the petitioner has not committed any offence. In the course of his arguments Mr. Cheema also referred to a judgment passed by a Division Bench of this court on 26.7.1996 in CWP 1732/95 in an attempt to buttress his argument that the charge against the petitioner did not deserve to be framed. Mr. cheema submits that in the face of the aforesaid judicial pronouncement by this court there is no warrant for framing of charge against the petitioner. (Whether this judgment would be applicable at all to the criminal case in hand is an issue which is not for me to decide. The learned trial Court alone has the jurisdiction to decide about the applicability of this judgment.)

(2.) The aforesaid observations in the opening part of this judgment have been made by me only to high light the non -maintainability of this petition.

(3.) The petitioner has come up to this Court in this petition challenging an order passed by the learned Special Judge on 4.12.2004 whereby he dismissed the application filed by the prosecution under Section 173(8) of the Code of Criminal Procedure for permission to re -investigate the case. I am clearly of the opinion that an accused person facing a trial either before the state of the framing of the charge, or at a stage thereafter, cannot maintain a petition challenging or assailing an order passed by the trial Court dismissing the States application filed for reinvestigation under Section 173(8) of the Code of Criminal Procedure. If the trial Court dismisses the States application for reinvestigation (as has been done presently), the aggrieved party (if at all) is the State or such other person covered by sub -section (8) of Section 173 who would have filed the application. The accused cannot consider herself to be an aggrieved party qua such an order. Admittedly, the application for reinvestigation was not filed by the petitioner nor was it filed at her instance. It is not open to the accused to urge that the re -investigation application filed by the prosecution was for her benefit nor is the accused entitled to urge that in the ultimate analysis the result of reinvestigation would or might have been to her advantage. If, for reasons assigned in the application, the State as a prosecuting agency thought that it needed to re -investigate the case, necessarily it did not mean that such re -investigation would result in any benefit or advantage to the accused. That is the settled legal position in criminal jurisprudence.