Pitambar Ram and Others vs State of Uttarakhand and Another

Servesh Kumar Gupta, J.—Vide order-dated 8.11.2010, the petition was dismissed in non-prosecution. his Court has given hearing to the learned Counsel on the restoration application. For hearing the petition on merits, the restoration application is allowed and the petition is heard on merits.

By way of this criminal miscellaneous application, the prayer has been made to quash the order dated 18.3.2008 passed by the learned Chief Judicial Magistrate, Chamoli whereby the Final Report No. 46 of 2007, Sabar Singh Kunwar v. Pitambar Ram and Ors., was rejected and the matter was directed to be investigated further by an office of Naib Tehsildar rank or competent regular police officer.

The background facts in controversy are that an FIR was lodged by Respondent No. 2 on dated 29.10.2006 regarding the incident, allegedly happened with him in the intervening night of 12/13.10.2006 at 1:10 AM in village Pana of District Chamoli. On the previous date, i.e. on 12.10.2006, he went to village Pana to take stock of his property there which is looked after by Smt. Sita Devi and her husband Ram Singh along with her other relatives. On that intervening night, the applicants along with other co-accused persons came there with the intention to assault and plunder the Respondent No. 2.

Investigation was made by some Patwari rank revenue official as is customarily done in the hills, enjoying all the powers of the Sub-Inspector of police. This investigation was ended by submission of the final report on dated 5.2.2007 by Patwari, village Gauna. This final report was resisted by Respondent No. 2 who is a practicing advocate in Gopeshwar, Chamoli and on the protest petition, this final report was rejected by the learned Chief Judicial Magistrate, who directed the re-investigation as stated above. Feeling aggrieved, the applicants have challenged the said order through this petition u/s 482 of Code of Criminal Procedure

Learned Counsel of the applicants has contended that with the identical facts, a complaint No. 765 of 2006 was filed by Smt. Sita Devi on the behest of Respondent No. 2 for the offence of Sections 395, 147, 458, 354, 427, 504, 506(2) and 452 Indian Penal Code. In that complaint too, the incident narrated was also of intervening night of 12/13.10.2006 when she along with her family was sleeping in her room. Needless to mention that Smt. Sita Devi along with her other family members resided in village Pana to look after the land of Respondent No. 2.

Learned Counsel of the applicants has argued that for the similar facts, two proceedings could not have been initiated taking the recourse of law, either through the court or investigating agency. But this argument is not tenable at all because in that eventuality, Section 210 of Code of Criminal Procedure comes into play and the proceedings of the complaint case are stopped till the result of the investigation is arrived of. Learned Counsel could not explain to this Court as to what happened regarding that complaint case in the court.

Secondly, the facts complained of by Smt. Sita Devi are not absolutely identical which are entailed by Respondent No. 2 in his FIR dated 29.10.2006. Smt. Seeta Devi complained all the acts of the applicants along with other co-accused persons regarding the offence which they have allegedly committed with her and her house, while in the same course of action, another offence was committed by the applicants along with other co-accused vis-�-vis to Respondent No. 2 who was staying at a distance in his own house.

It has been contended on behalf of the applicants that this Respondent No. 2 is an Advocate, so being effective and influential on the strength of his profession, he strives to grab the land in village Pana and Gauna and this fact is evident from the letter written by Tehsildar, Chamoli to District Collector, Chamoli dated 19.5.2009 disclosing that Respondent No. 2 does not have any kind of land, either regular or on lease in village Gauna or Lasi, while the Respondent No. 2 alleges himself to own a well constructed building in village Pana and also alleges to be the owner of some land there. On the other hand, the argument has been raised on behalf of Respondent No. 2 that all the applicants, on the strength of their influential position being a Pradhan of the village/ Panchayats, remain indulged in committing the crime relating to the forest and they always remain annoyed and irked when their ill-deeds are resisted by the vigilant and public spirited advocate Sri Sabar Singh Kunwar. Be that as it may, this is not the controversy in question to be adjudicated upon by this Court.

The fact remains whether the impugned order of the Magistrate dated 18.3.2008 is a legal order on the anvil of the procedure of law, as envisaged under the Code of Criminal Procedure Learned Counsel of the applicants has relied upon a precedent of the Hon''ble Apex Court in the case of K. Chandrasekhar Vs. The State of Kerala and Others, , wherein it was held that "on completion of investigation, the police has a right of "further" investigation under Sub-section (8) but not "fresh investigation" or "reinvestigation". That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27.6.1996 (quoted earlier) that the consent was being withdrawn in public interest to order a "reinvestigation" of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a "further investigation of the case" instead of "reinvestigation of the case". 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".

On the other hand, learned Counsel on behalf of Respondent No. 2 as well as the learned brief holder for the State have placed reliance upon a precedent of the Hon''ble Apex Court in the case of Ramachandran Vs. R. Udhayakumar and Others, , wherein the similar ratio was laid down by the Hon''ble Apex Court and it was held that instead of fresh investigation, the Magistrate could have directed the further investigation, if required u/s 173(8) of the Code.

On a bare reading of the impugned order, it emerges out that the Patwari had recorded the statement of the single witness Sri Prem Singh while there were a number of witnesses, named, Ram Singh, Kalpeshwari, Prakash Singh, Premlata and Sita Devi, but they were not enquired by Patwari, so the order of the learned Magistrate amounts to proceed with the investigation further, keeping in mind that the Investigating Officer failed to record the statements of a number of witnesses which ought to have been recorded by him. So, the intention of the order impugned reflects the further investigation not the investigation de novo. Besides, the impugned order is in the nature of an interlocutory one, as has been held by the Full Bench of the Hon''ble Allahabad High Court in the case of Father Thomas Vs. State of U.P. and Another, .

In view of the above, this petition is meritless and liable to be dismissed at the threshold. Petition is accordingly dismissed.