Mangi Lal and Another vs State of Rajasthan and Another

Gopal Krishan Vyas, J.—In this petition filed by the Petitioners u/s 482, Cr.P.C., it is prayed that impugned order dated 30.08.2010 passed by Addl. Chief Judl. Magistrate, Sojat City on FR No. 20/10 arising out of FIR No. 28/2010 of Police Station Sojat Road may be quashed.

As per facts of the case, Respondent No. 2 filed a complaint in the Court of Addl. Chief Judl. Magistrate, Sojat City against as many as 15 persons including the present Petitioners for allegedly committing offences under Sections 420, 463, 464, 465, 468, 471 and 120B, I.P.C. Said complaint was transmitted to the Police Station Sojat Road for registration of first information report, upon which, FIR No. 28/2010 was registered. In this FIR registered against inter alia the Petitioners, investigation was commenced and, after investigation, the police filed negative report. After filing FR, Respondent No. 2 filed an application u/s 173 (8), Code of Criminal Procedure before the learned Addl. Chief Judl. Magistrate, Sojat City and raised so many grounds for re-investigation in the matter. Learned Magistrate vide order dated 30.08.2010 declined to accept the FR filed by the police and sent the matter back for re-investigation to the police with a direction to get examined the alleged documents mentioned in the FIR from the FSL and, on the basis of FSL report, the police was directed to submit report afresh.

Being aggrieved and dissatisfied with the said order, the Petitioners have preferred this petition u/s 482, Code of Criminal Procedure

Learned Counsel for the Petitioner, at the first instance, argued that no prima facie case was found in the investigation against the Petitioners but, on account of order passed by the learned Magistrate the police are going to make investigation in the matter in accordance with the order passed by the Magistrate. Learned Counsel for the Petitioners invited attention of the Court towards Section 178 (3), Code of Criminal Procedure and submits that Magistrate himself has no jurisdiction to entertain such application filed by the complainant and direct for reinvestigation. Further, it is pointed out that upon perusal of the impugned order, it is revealed that allegations are vague and police filed FR after thorough investigation but the Magistrate has illegally found it necessary to get reinvestigation in the matter. Further, he has gone to the extent of directing the investigating officer to conduct investigation in a particular manner which is not permissible under the law.

It is also pointed out by learned Counsel for the Petitioners that direction for re-investigation creates harassment for the Petitioners and, so also, learned Magistrate passed order which is totally non-speaking order and as per the investigation the matter is of civil nature, therefore, FIR registered against the Petitioners and order of re-investigation passed by the Magistrate deserve to be quashed. Learned Counsel for the Petitioners invited my attention towards judgments of this Court, reported in, Sagar Mal and Ors. v. State of Rajasthan 2010 (1) Cri.L.R 113 in which the co-ordinate Bench of this Court set aside the order to the extent of direction of re-investigation on the points raised by the complainant. Learned Counsel for the Petitioners vehemently argued that the direction issued by the Magistrate to conduct investigation in particular manner deserves to be quashed in view of the aforesaid judgment.

Learned Counsel for the Petitioners further invited attention towards order passed by this Bench in Criminal Misc. Petition No. 471/2010, decided on 27.09.2010, in which, this Court has held that no specific direction can be given to the investigating officer to conduct investigation in particular manner. Further, it has been held that investigation is pure and simple domain of the investigating officer. It is submitted that the said judgment was challenged before the Hon''ble apex Court and vide order dated 28.01.2011 Hon''ble Supreme Court dismissed the SLP (Crl.) No. 373/2011, therefore, in this case also, it is abundantly clear from the impugned order that the learned Magistrate has passed order to conduct investigation in a particular manner.

Learned Counsel appearing on behalf of the State submits that there is jurisdiction left with the Magistrate to pass order for re-investigation as per provisions of the Criminal Procedure Code. Magistrate is not under obligation to accept the negative report in each and every case because there is jurisdiction with the Magistrate to apply mind whether the investigation made is proper or not. It is submitted that after due application of mind the impugned order has been passed, in which, no interference is required.

Learned Counsel appearing on behalf of the complainant invited my attention towards recent judgment of the co-ordinate Bench of this Court, reported in, Jugal Kishore Sharma (Shukla) and Anr. v. State of Rajasthan, 2010 (1) R. Cri.11 in which, the co-ordinate Bench of this Court has held that there is jurisdiction left with the Magistrate to pass order u/s 173 (8), Code of Criminal Procedure and to direct the investigating officer to carry out impartial investigation. Therefore, no interference is warranted in this matter. Learned Counsel for the complainant further invited attention of the Court towards judgment of the Kerala High Court, reported in, Ummer v. State of Kerala 2010 (2) Cri CC 578 in which, it has been held that accused has no right to be heard in the matter of investigation or further investigation, therefore, this petition deserves to be dismissed.

After hearing both the parties, I have perused the order impugned, so also, perused the FR given by the investigating officer.

It is apparent from the record of the case that upon protest petition filed u/s 173 (8), Code of Criminal Procedure by Respondent No. 2, the impugned order has been passed. Admittedly, the complaint was filed by Respondent No. 2 Banshi Lal with regard to issuance of patta illegally and while committing fraud. The learned Magistrate, after taking into consideration the grounds taken in the application, passed order that negative report is rejected and S.H.O., P.S. Sojat Road is directed to conduct reinvestigation in the matter and disputed documents may be sent to the FSL and, on the basis of the report of the FSL proceed afresh and submit result of the investigation. Following order was made on 30.08.2010 by the Addl. Chief Judl. Magistrate, Sojat:

mijksDrkuqlkj izLrqr ,Q- vkj- vLohdkj dh tkrh gS vkSj iqu% ,l- ,p- vks- lkstr jksM dks bl funsZ''k ds lkFk ykSVkbZ tkrh gS fd ,Q- vkbZ vkj- esa of.kZrkuqlkj rFkkdfFkr nLrkost dh fof/k foKku iz;ksx''kkyk ls tkap djkosa vkSj mudh fjiksVZ ds vk/kkj ij u;s fljs ls urhtk izLrqr fd;k tk;s A dsl Mk;jh ykSVkbZ tk;s A

For adjudicating this matter, I have perused the given by the S.H.O., Police Station Sojat Road. It is very strange that 12986 Sq ft land has been allotted to the Petitioner Mangilal on meagre cost of Rs. 200/- but, in spite of that, in the FR filed by the police, it is observed as under:

^^exj vkjksih Jh ekaxhyky dk ftl ckMk dk i�k cuk;k x;k ogka iqjkuk edku gksuk vkjksih ekaxhyky o izkFkhZ ds HkkbZ Jh jktey o vkseizdk''k crkrs gSa exj orZeku le; esa ml ckM+s esa dksbZ ugha jgus ds dkj.k edku g x;k o lery gks x;k gS A blds vykok Hkh xzke iapk;r us T;knk jkf''k dh ctk; de jkf''k esa vxj vkjksih Jh ekaxhyky dks i�k tkjh fd;k gS rks iapk;r foHkkx }kjk vkWfMV dj rRdkyhu ljiap o xzqi lfpo ls jkf''k olwy fd tk ldrh gS A blds vykok Jheku~ fodkl vf/kdkjh ekjokM tD''ku us vius vkns''k �ekad 966 fnukad 21- 5- 2010 esa i�k tkjh djus esa vU; dksbZ =qfV ;k deh gksuk ugha crk;k gS A**

In my opinion, the investigating officer while giving the FR on the ground that matter is related to partition and being of civil nature has resorted to exercise power of adjudication. It is very serious matter that 12986 Sq ft land has been allotted vide patta dated 03.05.2008 for only Rs. 200/- under receipt No. 63 dated 05.02.2008, therefore, the learned Magistrate has rightly issued direction to re-investigate the matter. It is true that as per adjudication made by the apex Court and this Court, no direction to conduct investigation in particular manner can be issued but, at the same time, the Magistrate is not required to pass any order in vague manner and is required to examine the negative report for the purpose of re-investigation also. Though it is observed in the order dated 30.08.2010 that disputed documents may be sent to the FSL and, thereafter, investigating officer may proceed but such type of direction by the Magistrate cannot be said to be a direction for conducting investigation in a particular manner.

After perusal of the FR also, I am of the opinion that re-investigation is required to be made in this case with due caution and as per provisions of the Criminal Procedure Code, therefore, I deem it just and proper not to interfere in the order passed by the Magistrate. However, it is made clear that the investigating officer shall conduct fair and transparent investigation in this matter and submit report. The observations made by the Magistrate may be treated advisory for the purpose of conducting investigation.

With aforesaid observation, this petition filed u/s 482, Code of Criminal Procedure is dismissed.