Thursday, November 29, 2018

Inherent Powers Under Sec.482 CrPC Cannot Be Invoked By Accused At Stage Of Investigation As No Proceeding Is Pending Against Him : Allahabad HC

A petition filed under Section 482 of CrPC by the accused challenging an order of Magistrate directing reinvestigation by police was dismissed by the Allahabad High Court on the principle that accused has no right of hearing during investigation. The Court held that investigation cannot be regarded as a proceeding pending against the accused so as to invoke Section 482.
“ is apparent that an accused has no right of hearing during the course of investigation. The various orders passed by the Magistrate before summoning the accused is an attempt on the part of the Magistrate to arrive at a just conclusion on the allegations made in the complaint or the F.I.R. as the case may be. The accused will have the right to prove his innocence at the time of trial but that by itself will not give a right to the accused to interfere before the stage of summoning either by invoking the revisional powers of the Court or the inherent powers of the High Court under Section 482 Cr.P.C. as the Code clearly prohibits holding of two trials in respect of the same wrong”, held the judgment authored by Justice Rajeev Misra in the case Simplex Infrastructure and others vs State of UP and Another.
The petition was filed by a company, against which an FIR was registered on the allegation that it had committed cheating and criminal breach of trust by failing to make payments to the complainant as per their contract. On the police filing a refer report after investigation, the complainant filed a protest complaint. Acting on it, the Chief Judicial Magistrate, Meerut, ordered “re-investigation” invoking powers under Section 173(8) of CrPC.
The company approached the High Court challenging the CJM’s order, contending that Magistrate can only order ‘further investigation’ and not ‘re-investigation’ under Section 173(8) CrPC. Reliance was placed on the decision  Vinay Tyagi Vs. Irshad Ali @ Deepak (2013) 5 SCC 762 to advance this contention.
The complainant contended that it was immaterial that the CJM used the term ‘reinvestigation’ in the order, and in essence it meant ‘further investigation’. Relying on Chandra Babu @ Moses Vs. State Inspector of Police & Ors (2015) 8 SCC 774 it was pointed out that CJM has the power to take cognizance of the offence, independent of the final report. It was also contended that the petition was challenge, as accused was yet to be summoned by the Magistrate.
The High Court did not dwell on the issue whether the CJM committed illegality by ordering ‘re-investigation’. Rather, it confined the issue to whether the petition could have been filed by the accused when no process against it has been issued by the CJM.
Agreeing with the contention of the complainant, the HC held “In the case in hand, no process has been issued by the court below summoning the accused. As such, no proceedings can be said to be pending against the accused i.e. the applicants herein. The power under Section 482 Cr.P.C. can be exercised only in relation to certain proceedings which are pending against the person who approaches the High Court by means of an application under Section 482 Cr.P.C.”  The precedents of SC in Chandra Deo Vs. Prakash Chandra, AIR 1963 SC 1430,Divine Retreat Centre Versus State of Kerala & Ors. AIR 2008 SC 1614,,Narendra G. Goel Versus State of Maharashtra & Another  2009 (6) SCC 65 and Allahabad HC Full Bench decision in Ranjeet Singh & Another Vs. State of U.P. & Others, 2000 (3) Cr.L.J. 2738 were followed
Holding that the matter is still at the stage of investigation and the applicants who are the prospective accused
persons have not yet been summoned by the Court till date, the petition was dismissed.

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