Faujdar Khan and Others vs State of U.P. and Another

S.K. Agarwal, J.—This revision was admitted by this Court at the initial stage on the specific question that after the rejection of the final report, whether the Court has competence to return the case for re-investigation or it can only direct further investigation.

The brief facts of the case as available from the record are that the revisionists were nominated in the first information report lodged by opposite party No. 2, Hashim Ali. After the completion of the investigation, a final report was forwarded by the police to the Court. The informant filed an objection (protest petition) to the submission of the final report by the police on the ground that the evidence recorded by the Investigating Officer was incomplete in nature and the statements of his witnesses were twisted to suit the accused persons because he is hand-in-glove with them. Hashim Ali and injured Izahar Ahmad had filed their affidavits, nominating those accused persons who injured them by discharging their guns before the Judicial Magistrate. After examination of the protest petition, affidavits of the informant and injured person and the statements recorded by the Investigating Officer, the learned Magistrate came to the conclusion that the investigation in this case was not conducted in accordance with the provisions of law. If it would have been conducted in accordance with law, the accused persons may have been charge-sheeted, therefore, he directed the case to be reinvestigated. In the operative portion of the judgment also, he has used the word "punarvivechana" which, when translated in English means, reinvestigtion and not further investigation.

It was contended by learned Counsel for the revisionists that the Courts under the law have no power to direct reinvestigtion of any offence once the investigation was concluded and a report u/s 173, Criminal Procedure Code (charge-sheet or final report) is sent to the Court by it. It is further contended that the Court is only empowered to direct further investigation of the offence by the police in exercise of its powers conferred by Section 173(8), Criminal Procedure Code I have closely examined the order of the lower court dated 5.1.2001 and I am of clear opinion that the learned Magistrate had not committed any serious error. The terms of Hindi are open to different meanings as earlier stated, ''punarvivechana'', the term used by the learned Judicial Magistrate on its translation in English means ''reinvestigtion''. The entire order when read as a whole shows what the Court has directed. It directed: ''the record of the case shall be returned back to S.H.O., Lalganj, who after reinvestigting it will submit a report in accordance with law''. Undoubtedly the word ''punarvivechana'' is more close to reinvestigtion and, therefore, generally it can be presumed that he had intended for a fresh investigation in the matter but since the papers were directed to be returned to the same police officer or to the senior-most police officer of the same police station, the intention of the court below can safely be gathered. It can be gathered that the Court intended the police to further investigate the case and, therefore, the order does not warrant any interference. Even if it is interpreted strictly, this Court is competent to clarify the situation and direct the police to further investigate this case.

It is further contended by the learned Counsel for the complainant that the applicants have absolutely no right to intervene in the proceedings before the court below and, therefore, they had no right to file this revision in this Court challenging that order. I do not see eye to eye with this submission made by opposite party No. 2. Undoubtedly, the accused persons had no locus standi as long as the Court was dealing with the protest petition and the question whether the final report is to be accepted or not. Once an order adverse to their interest was passed, a right does accrue to them to challenge the same if it is a final order or an intermediary order by filing a revision petition or if it is an interlocutory order, any other remedy that may be available to them under the law. No fetters possibly can be put in the way of the accused. There is absolutely no bar created by the Criminal Procedure Code in this regard nor it can be so created by the Courts by interpreting the provisions of law negatively. It can further be clearly understood if the status of a summoning order is to be taken into consideration. A summoning order is open to challenge by an accused. Similarly, in my opinion, an order, which is adverse to the interest of an accused and is likely to reopen the investigation again against their interest, they have an unquestioned right to challenge it. It will not be possible for the Court to create a bar against their right to challenge such an order. The principle of equity and natural justice has also some role to play in the criminal cases as well. The principle cannot any further be denied its entry in the criminal law in the present state of affairs. A right to arrest them accrues to the police. Joginder Singh''s case is not adhered to in its true spirit in this State by police officials. Arrest begets not only infamy to the sufferer but also causes other serious consequences in his life.

In the result, this revision fails with the modification that the police of P.S. Lalganj, will further investigate the offence in accordance with the provisions of Section 173(8), Criminal Procedure Code and intimate the result of further investigation to the Court in accordance with law as soon as it is concluded. The investigation will be expeditiously completed.