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Criminal Miscellaneous No.29486 of 1999
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In the matter of an application under section 482 of the Code of Criminal Procedure
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Satya Narayan Yadav, son of Bhairo Yadav, resident of village-Purainiya, P.S. – Darpa,
District East Champaran——————————————————(Petitioner)
Versus
The State Of Bihar———————————————————–(Opposite Party)
For the petitioner: Mr. Sandeep Kumar, Advocate
For the State: Lala Kailash Bihari Prasad, Sr. Advocate
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PRESENT
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
Shiva Kirti Singh, J. Heard learned counsel for the petitioner and
learned counsel for the State.
2. The prayer made in this application under
section 482 of the Code of Criminal Procedure
(hereinafter referred to as Cr. P.C) is to quash the order
of learned Sub-divisional Judicial Magistrate, Raxaul,
Motihari in Raxaul PS case no. 123/96 whereby he
declined to accept the final form submitted by the police
and directed for further investigation under section
173(8) of the Cr. P.C.
3. On behalf of the petitioner the only issue
raised is that of jurisdiction. It has been submitted that
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once the police completed investigation and submitted
final form indicating that the occurrence was true but no
clues could be found, the Magistrate had no option but to
accept the final report of the police declaring the case
closed. In support of this proposition learned counsel for
the petitioner has placed reliance upon a judgement of
the Supreme Court in the case of Reeta Nag Vrs. State of
West Bengal & Others reported in (2009) 9 SCC 129.
4. No doubt the wordings used in paragraph
25 of that judgement prima facie go to support the
aforesaid contention advanced on behalf of the petitioner
but on a careful reading of the said judgement, it is found
that the conclusion in paragraphs 25 and 26 are not
abstract principles of law but conclusion derived in the
peculiar facts of that case.
5. To appreciate the law laid down in that
case, it is necessary to note the facts and submissions
advanced on behalf of rival parties. In that case on the
basis of charge sheet filed by the Investigating Officer,
the Magistrate took cognizance of offences alleged
against six of the original 16 accused persons and 10
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other accused persons were discharged on the prayer of
Investigating Officer. Subsequently, on an application
filed by “de facto” complainant learned Magistrate in
effect sought to review his earlier order discharging 10
accused persons and in that context the Calcutta High
Court set aside the order of the Magistrate ordering for
reinvestigation and such order of the Calcutta High Court
was confirmed by the Supreme Court. The arguments
advanced were primarily based upon provisions under
section 362 of the Cr. P.C which clearly lays down that a
criminal court after signing its judgement or final order
disposing of a case cannot alter or review the same
except to correct a clerical or arithmetical error. The
court further considered that in the facts of that case
appropriate remedial measure could be taken by the trial
court in exercise of power under section 319 of the
Cr. P.C. but it was not open for the Magistrate to direct
reinvestigation or further investigation in respect of 10
accused persons whom he discharged by his judicial
order.
6. The principle of law noticed above has
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been settled since long by a catena of judgements of the
Supreme Court, some of which have been noted by the
Apex Court in the case of Reeta Nag (Supra).
7. The power of the Magistrate to direct
further investigation under section 173(8) of the Cr. P.C
was noticed in that judgement also in paragraph 9 while
referring to the judgement of the Supreme Court in the
case of UPSC Vrs. V.S. Papaiah (1997) 7 SCC 614 and
neither that judgement was criticized nor it was
distinguished or dissented from by the Apex Court in the
case of Reeta Nag (Supra).
8. In the present case, learned Magistrate has
in no way departed from his earlier order and he had the
necessary jurisdiction to direct further investigation to
collect further evidence and for submitting new report.
Such power is manifest from different sub-sections in
Section 173 (8) of the Cr. P.C.
9. In view of aforesaid discussions and
findings, this court finds no good ground to interfere
with impugned order of learned Magistrate. This
application is, therefore, dismissed.
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10. It goes without saying that since the
matter has become old, learned Magistrate will ensure
that it does not linger unnecessarily and is disposed of in
accordance with law without any delay.
(Shiva Kirti Singh, J.)
Patna High Court
The 28th April, 2010
AFR/BKS