Partly allowed

Kalpana Vinod Shah and Anr. v. Vishni Lanchand Rajusth and Anr.

Bombay HC25 Nov 2014WP/43/2014

Case brief

AI extract

What is this about?

The High Court partly allowed a writ petition challenging an order directing further investigation under CrPC s. 173(8). The Court held that the investigating officer must be heard before such an order is passed regarding the necessity of further investigation.

What did the court decide?

Impugned order setting aside; direction to Magistrate to consider application for further investigation after hearing the investigating officer.

Kalpana Vinod Shah and Anr. Vs Vishni Lanchand… — Civil Procedure and Limitation | Bombay HC (2014)

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Ingale 1/4 1.wp.43.14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 43 OF 2014

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Kalpana Vinod Shah and another .. Petitioners

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Versus

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Smt. Vishni Lanchand Rajusth and another

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.. Respondents

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Mr.Niranjan Mundargi, Advocate for the Petitioners. Mr.Saeed Akhtar a/w Mr.Hitesh Thorat and Mr.Rohan Ansari, Advocate for Respondent No.1. Ms.Anamika Malhotra, APP for the Respondent No.2 - State.

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CORAM : ABHAY M. THIPSAY, J. DATED : 25^th NOVEMBER, 2014.

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P.C. :

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1 Rule. By consent, Rule is made returnable forthwith. By consent, heard finally.

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2 The petitioners are the accused in C.C.No. 90/PW of 2004, pending before the Metropolitan Magistrate, 34^th Court at Vikhroli. The case has been instituted on a police report. The respondent No.1 is the original first informant. A charge has been framed against the petitioners, and the case is to proceed further by recording of evidence. The respondent No.1 made an application to the learned Magistrate stating that certain relevant and crucial evidence had not been collected by the police in the course of investigation, and therefore, the police should be directed to carry out further investigation as contemplated under section 173(8) of the Code of Criminal Procedure. This application

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Ingale 2/4 1.wp.43.14

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was opposed by the petitioners. The learned Magistrate, however, by his order dated 26/09/2013 directed the police to investigate into the matter further, in accordance with the provisions of section 173(8) of the Code. The petitioners are aggrieved by the said order, and have approached this Court by filing the present petition, invoking the jurisdiction of this Court under Article 227 of the Constitution.

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3 The only contention that has been advanced by Mr.Mundargi, the learned Counsel for the petitioners, is that the order passed by the learned Magistrate is not in accordance with law. He submitted that the learned Magistrate had no jurisdiction to order investigation as contemplated under section 173(8) of the Code at the instance of the first informant, or the complainant. He placed reliance on the decision of the Supreme Court of India in the case of Reeta Nag Vs. State of West Bengal and Others, 2010 ALL MR (Cri) 1337.

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4 Mr.Saeed Akhtar, the learned Counsel for the respondent No.1, on the other hand, contended that there would be no bar for a Magistrate to direct further investigation into the matter, where it would appear to him that collection of evidence was necessary, and that the police had failed to do so. He placed reliance on the observations made by Their Lordship of the Supreme Court of India in the case of Samaj Parivartan Samudaya and others Vs. State of Karnataka and others, AIR 2012 SC 2326.

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Ingale 3/4 1.wp.43.14

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5 In the course of hearing, it transpired that the impugned order had been passed without calling for the say, or the remark of the investigating officer. Therefore, without going into the question as to whether a Magistrate can order the police to investigate into the matter further, even after the filing of the charge-sheet and if so, under what circumstances; and whether the Magistrate cannot under any circumstances, direct further investigation at the instance of the first informant or original complainant which would indeed be a rather complex and comprehensive question requiring the analysis of several decisions of the Apex Court, I think it proper to dispose of the petition as follows.

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6 In the light of the fact that the powers of the police under section 173(8) are independent, and the police are entitled to carry out further investigation in accordance with the said provision, should it appear necessary to the investigating officer to do so, I have heard the learned Counsel for the parties, and learned APP on this aspect. The learned Counsel for the parties, as also the learned APP agree before me that since the impugned order came to be passed without giving any notice to the investigating officer, or without calling for his say or remark, it may be set aside, with a direction to the learned Magistrate to consider the question of directing further investigation into the matter after hearing the investigating officer, or after ascertaining his views in the matter.

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