Ashish Mani Tripathi vs State of U.P.and Another

S.K. Jain, J.—This Criminal Revision by Ashish Mani Tripathi is directed against the order dated 2332002 passed by the Judicial MagistrateIII, Gorakhpur in Criminal Case No. 2753/2001, State v. Rakesh Mani and Ors., under Sections 323, 307, 504, 506 IPC, P.S. Campierganj, District Gorakhpur, whereby the learned Magistrate refused to accept the report submitted by the S.I.S. under Section 169, Cr.P.C.

The essential facts have to be noticed briefly for adjudication of the present petition. The opposite party No. 2, Ram Chander Pandey made a written complaint on 1312001 at 2.10 p.m. at P.S. Campierganj, District Gorakhpur for registration of a case under Sections 323, 307, 504 and 506, I.P.C. On the basis of this written report, F.I.R. No. 5/2001 dated 1312001 was registered against Rakesh Mani Tripathi, Sanjay Mani Tripathi and Ashish Mani Tripathi (the revisionist). After investigation of the case, the chargesheet was submitted against the three named accused in the F.I.R. Thereafter the permission for further investigation of the case was sought by the investigating agency under Section 173(8) of Cr.P.C. The learned Magistrate vide order dated 312002 accorded the permission for further investigation by S.I.S. Consequently, after further investigation the S.I.S. found that the revisionist at the time of occurrence was admitted in a Hospital 200 Kms. away from the place of occurrence and, therefore, S.I.S. submitted the report under Section 169, Cr.P.C. The learned Magistrate by impugned order 2322002 observed that this report cannot be accepted as cognizance has already taken and the same be kept on file.

The notice of this revision petition was issued to the Opposite Party No. 2.

I have heard the learned Counsel for the revisionist Shri A.P. Tewari, Kamal Kishore Misra Counsel for the opposite party No. 2 and the learned A.G.A. and have perused the record carefully.

The learned Counsel for the revisionist has submitted that the learned Magistrate erred in not accepting the report filed by the S.I.S. under Section 169, Cr.P.C. As per the report, at the time of occurrence, the revisionist was admitted in the hospital 200 kms away from the place of occurrence, as such, the investigating agency found that his name wrongly appeared in the chargesheet filed by the police.

The learned Counsel for the opposite party No. 2 and learned A.G.A. submitted that there is no illegality in the order. It was further submitted by them that after challan is submitted to the Court, the Magistrate can order further investigation of the case. The police has a right to further investigate under sub section (8) of Section 173, Cr.P.C. but it has no right of fresh investigation or reinvestigation. The police after re investigation submitted a report under Section 169, Cr.P.C. Therefore, nonconsideration of supplementary report under Section 169, Cr.P.C. by the learned Magistrate was proper.

I have given my thoughtful consideration to the submission made by the learned Counsel for the parties.

Hon''ble Supreme Court in the case of K. Chandrasekhar v. State of Kerala, 1998(2) JIC 1015 (SC) : AIR 1998 SC 2001 in para 25 of the judgment has observed that from a plain reading of Section 173 (8) Cr.P.C., it is evident that even after submission of police report under subsection (2) on completion of investigation, the police has right of further investigation under subsection (8) but has no right of fresh investigation or reinvestigation.

The learned Counsel for the revisionist has relied upon the case of Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., 2004(2) JIC 173 (SC) : 2004 (49) ACC 238 (SC). In this case also, the Apex Court has observed that Section 173(8) of Cr.P.C. permits further investigation.

My attention has also been drawn by the learned Counsel for the revisionist towards the case of C.B.I. v. R.S. Pai and Anr., 2002(1) JIC 983 (SC) : 2002 (44) ACC 1028, where Hon''ble Apex Court has observed that where relevant document is not produced at the time of submitting of chargesheet, the investigating office can produce it later on with the permission of the Court after submission of the chargesheet. Further investigation is not precluded.

From the perusal of the above noted rulings of Hon''ble Apex Court, it appears that the police has right of further investigation under Section 173(8), Cr.P.C. But it has no right of fresh investigation or reinvestigation.

In the present case, admittedly the chargesheet against the revisionist was submitted by the police. Thereafter S.I.S. sought permission for further investigation which was accorded by the learned Magistrate as per order dated 312002. What S.I.S. did after obtaining the permission, instead of further investigating the case, it reinvestigated the case and submitted the report in favour of the revisionist under Section 169, Cr.P.C. stating therein that at the time of occurrence the revisionist was admitted in a hospital 200 kms. away from the place of occurrence, therefore, he be discharged.

In the light of foregoing discussions, I am of the view that the S.I.S. had no right to reinvestigate the case and the learned Magistrate by impugned order rightly ignored the report submitted by S.I.S. under Section 169, Cr.P.C. against the revisionist.

The revision petition is devoid of merits and is accordingly dismissed.

Revision dismissed.