Fir closed as mistake of fact, further remedy
G.Padmanabhan
(Querist) 15 September 2011
This query is : Resolved
A case was registered against the 7 accused persons, u/s.498A on reference from a magistrate. Biased investigation is carried out by the investigating officer. The defacto complainant, after making several futile attempts to know the status of investigation, files an application under RTI Act to know the status of the investigation, in response to which the police informs the defacto complainant that final report already filed and case was closed nearly one year ago as mistake of fact. No RC notice was served on the defacto complainant. But the police states that RC notice was served on the defacto complainant. What is the remedy open to the defacto complainant? is there any judgement of a High court/SC in support of the suggested remedy? Would our experts clarify?
prabhakar singh
(Expert) 15 September 2011
One should file a petition in the court in which final report is being claimed to have been filled,alleging all facts and that no notice was ever served on de facto complainant.
Raj Kumar Makkad
(Expert) 15 September 2011
Jakia Nasim Ahesan and another vs State of Gujarat and others [SUPREME COURT OF INDIA, 12 Sep 2011]
Indian Penal Code, 1860 - Code of Criminal Procedure, 1973, 190, 200, 173(2), 173(8) - Case under investigation - Registration of further FIR - Permissibility - Appellant lost her husband in Gujarat riot - Police registered an FIR and filed charge-sheet thereto - Appellant subsequently received certain materials that showed that the incidents were aided, abetted and conspired by some responsible persons in power, in connivance with the State Administration, including the Police - Appellant sought registration of another FIR against certain persons under various provisions of IPC - Police decline to take cognizance of appellant's complaint - Appellant filed writ petition - HC dismissed writ petition holding that since a remedy u/s. 190 r/w s. 200 of the Code was available to the appellant, the writ petition was not tenable - HC further held that if the appellant had got certain additional material against some persons accused in her complaint, it was open to her to approach the investigating agency, requesting further investigation, or, alternatively she could herself approach the Court concerned for further investigation in terms of s. 173(8) of the Code - Whether the facts and circumstances of the case warranted to issue a direction to the investigating agency to take cognizance of the complaint filed by the appellant - Held, Special Investigation Team (SIT), which had been constituted for investigating the incident, was directed to look into the allegations averred in the appellant's complaint - SIT had submitted its report and the SC, after examining the report, by its vide order dated 5-5-2011, asked the Amicus Curiae to form an opinion on the basis of materials on the record - Amicus Curiae subsequently submitted his report and the question for determination was the future course of action in the matter - Once the investigation had been conducted and completed by the SIT, in terms of the orders passed by the SC from time to time, there was no course available in law, save and except to forward the final report u/s. 173 (2) of the Code to the Court empowered to take cognizance of the offence alleged - SIT, accordingly, was asked to submit final report to the Trial Court u/s. 173(2) of the Code - However, if for any stated reason the SIT opined in its report, to be submitted in terms of instant order, that there was no sufficient evidence or reasonable grounds for proceeding against any person named in the appellant's complaint before taking a final decision on such 'closure' report, the Court should issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law as enunciated by SC in Bhagwant Singh v. Commissioner of Police & Anr. 1985 INDLAW SC 48 - Hence, direction as sought by the appellant in the instant case was not warranted - (B) Whether the SC should continue to monitor the case any further - Held, SC, in Union of India & Ors. v. Sushil Kumar Modi & Ors, 1997 INDLAW SC 1391, held that once a charge-sheet was filed in the competent court after completion of the investigation, the process of monitoring by SC for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned came to an end; and thereafter it was only the court in which the charge-sheet was filed which was to deal with all matters relating to the trial of the accused, including matters falling within the scope of s. 173(8) of the Code - Similar views had been echoed by the SC in Narmada Bai v. State of Gujarat & Ors 2011 INDLAW SC 244 - Hence, in the instant case, it was reached a stage where the process of monitoring of the case should come to an end - It would neither be desirable nor advisable to retain further seisin over the instant case - Appeal disposed of.
G.Padmanabhan
(Querist) 16 September 2011
Thanks to our experts. Rajkumarji thanks for the judgement.
