Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Rajnesh Oswal, J.
Ghulam Hassan Sofi and Anr. – Appellant
Versus
State of J&K through VOK Kashmir - Respondents
CRR No.13/2017
Decided on : 02-04-2021
Code of Criminal Procedure, 1973-Section 173(8)-Further investigation-Further investigation can be ordered suo-motu by Magistrate himself depending upon facts of each case-Whether further investigation should or should not be ordered is within discretion of Magistrate who can exercise such discretion facts of each case and in accordance with law-It is not at all necessary that court can order further investigation only on the basis of subsequent facts brought to its notice, further investigation can be ordered by court even when defective investigation comes into light, may be even before framing of charge-Trial court has given cogent reasons while ordering further investigation-Petition dismissed. (Paras 12, 15, 16 and 17)
Result-Petition dismissed.
Judgment
Rajnesh Oswal, J.-The order dated 10th April 2017 (hereinafter referred to as the ‘order impugned) passed by the learned court of Special Judge Anti-Corruption Srinagar (hereinafter referred to as trial court) has been impugned by the petitioner through the medium of present petition by virtue of which the learned trial court has directed the SSP VOK Srinagar (now ACB) to conduct or get conducted further investigation on the aspects stated in the order.
2. The petitioner has challenged the order impugned on the following grounds: -
(ii) That the order impugned is liable to be quashed as the learned trial court had no power to order further investigation on its own, without any motion or application on the part of the investigating / prosecuting agency. The trial court has infact passed the order impugned so as to unable the prosecution to fill up the lacunas in their case and the order impugned amounts to ordering reinvestigation.
(iii) That the learned trial court had not heard the petitioner for the purposes of passing orders on the issue of further investigation as the trial court had simply heard the arguments on charge/discharge of the accused.
3. Before examining the issues raised by the petitioner, it is necessary to have the brief resume of the allegations leveled against the petitioner.
4. The charge sheet for commission of offence under section 5 (2) PC Act read with 109 RPC was filed against the petitioner and the other accused on the ground that the petitioner is in possession of disproportionate assets to the extent of Rs.67,88,189/-. It is further stated in the charge sheet that the petitioner was appointed as a Patwari in the year 1974 and was posted in Rakhs and Farms Department and served there for about a decade and later on was transferred to the Revenue Department District Budgam. The check period in the case of the petitioner has been fixed from 1986 to 2006. During this whole period, the total income of the petitioner was Rs.13,72,324/- and expenditure during check period has been considered as Rs. 5,96,921/- whereas the income at the beginning of the check period of the petitioner was Rs. 3,53,816/-. The prosecution has determined the total value of the assets acquired by the petitioner during the check period as Rs. 79,17,408/-.
5. The prosecution has alleged the petitioner to have acquired following immovable assets through various deeds/mutations either in his name or in the names of his relatives. Details of the same are reproduced as under:-
| S. No. | Details of properties | Situated at | Mode of acquisition | Declared value | Cost assessed. | On the name of |
| 1. | Three storied house double storey annexe and six shops have been constructed on 2.5 kanals | Krimshore | Gift | ---------- | 23,19,455/- | Gh. Mohd. Bhat |
| 2. | Residential house at Gulberg Colony Hyderpora | Gulbery Colony, Huderpora |
|
| 19,81,799/- | Self |
| 3. | 03 & 02 marlas | Krimshore | Gift |
|
| Two Sons |
| 4. | 01 kanal 14 marlas | Krimshore | Gift | Total consideration for 1 K.19- M. 1.57 lacs |
| Gh. Mohd. Bhat |
| 5. | 6 marlas | Krimshore | Gift | 90,000/- |
| Gh. Mohd. Bhat |
| 6. | 01 kanal 03 Marlas | Krimshore | Gift | 3.00 lacs |
| Son |
| 7. | 07 kanals and 14 marlas | Parnewa | Gift | 3.50 lacs |
| Two sons |
| 8. | 04 kanals and 12 marlas | Parnewa | Gift | 4.50 lacs |
| Mst. Saja Begum |
| 9. | 12 ½marlas | Burgoo | Mutated u/s 4 & 8 AR Act | 75,000/- | | |
The accused do not possess the right to request further investigation under Section 173(8) of the Cr.P.C., as this power is reserved for the investigating agency and the court, ensuring that the inve....
Under Section 173(8) of Cr.P.C., only the investigating agency can request further investigation after a charge sheet has been filed, not the accused. Failure to adhere to this principle leads to the....
Court affirmed that Magistrate can order further investigation, but not after charges have been framed without compelling justification.
The court emphasized that further investigation must be justified by new evidence or deficiencies in the prior investigation, and the discretion to order it lies with the Magistrate based on case fac....
Further investigation – Whether further investigation should or should not be ordered is within discretion of Magistrate who will exercise such discretion on facts of each case and in accordance with....
The Magistrate has the power to order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage....
The accused has no right to seek further investigation after a charge sheet is filed, and discrepancies in evidence are to be resolved at trial.
The main legal point established in the judgment is that further investigation is a statutory right of the police under Section 173(8) of Cr.P.C, and formal permission from the Court is required if t....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
