Can a accused appeal if magistrate orders reinvestigation of fir when police submitted cancellation
Querist :
Anonymous
(Querist) 04 November 2011
This query is : Resolved
My Brother is running a Coaching centre & one of the students father filed a complaint against him for fraudulently taking Rs5 Lacs for sending his daughter abroad. The complaint was completely false & baseless So the Police Cancelled the complaint after enquiry. After 1 month of Cancellation of the complaint,the complainant got the complaint reopened by Political links/Other means & this case was again Reinvestigated. During Reinvestigation my Brother was not even called for his statement & after 2 months of Reinvestigation Police registered a FIR & Booked my Brother under Section 420 IPC.
By a lot of efforts interference by local media SSP marked the Reinvestigation of FIR. SP(D) & SP(HQ) investigated & found my brother innocent in their Reports( During the reinvestigation by SP, the comaplainant was called and his statement as well as the statement of my brother was taken) & on the basis of these Reports, SHO submitted a Unntraced Report under Section 173 IPC. On the basis of that Report SSP submitted a Cancellation Report to Magistrate.
Magistrate sent the summons to the complainant & summons were returned as such as the complainant has changed his address and nobody in his locality is telling his present address.
Due to this the Magistrate ordered Reinvestigation to the Police on the plea that if the complainant is not residing at the given address, then he has not joined the reinvestigation & order also reads that why SHO has submitted Untraced report when accused is named in FIR.
Now the thing is, Magistrate didnt look the complete File as the complainant did take part in the reinvestigation & even gave his statement that is present in File & in the Report by SP. SHO submitted the untraced Report to SSP Who submitted a Cancellation/Untraced Report to magistrate.
My Brother is sufferinf for last 1 year, he was implicated in a false case. Due to media awareness he was not arrested & he didnt even took a bail as reinvestigation was marked. HE HAS SEEN A PRETTY BAD TIME DEALING WITH THE POLICE DURING REINVESTIGATION.
HE HAS BEEN PROVED INNOCENT IN ALL THE 3 INVESTIGATIONS BY THE POLICE. HE IS NOT IN POSITION TO JOIN ANY INVESTIGATIONM AGAIN, SO PLEASE GUIDE IF HE HAS THE RIGHT TO APPEAL TO SESSIONS JUDGE WHO IS SENIOR TO THE MAGISTRATE WHO ORDERED REINVESTIGATION EVEN WITHOUT LOOKING AT THE FILE & Is their any such similar case in the past for Reference. Please help
Shonee Kapoor
(Expert) 04 November 2011
NO.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Querist :
Anonymous
(Querist) 05 November 2011
He has been found innocent in 3 investigations by Police but the
Magistrate again ordered Reinvestigation without even looking at the File.
YOU TOLD THAT HE CANT APPEAL IN THE HIGHER
COURT AGAINST THE WRONG ORDER OF THE MAGISTRATE. MAGISTRATE WRONGLY QUOTED IN HIS ORDER THAT COMPLAINANT DID NOT TAKE PART IN REINVESTIGATION. Please tell what
to do as we dont believe the Police, they already took 8 months for Reinvestigation
of FIR & he was always under threat & now again he is at the same stage as he was 1 year back. Please guide & help.
Querist :
Anonymous
(Querist) 05 November 2011
Kindly tell what are the Suo moto powers of the court
Ravikant Soni
(Expert) 05 November 2011
In crminal matters appeal lies only from order of conviction/ acquittal/ enhancement or if convicted lower offence, not for such an order of reinvestigation.
Moreover I anticipate that a revision also can not be lain because it is an interlocutory order not a final and does not prejudice accused.
However under inherent power sec 482 it can be challenged in High court.
Kiran Kumar
(Expert) 05 November 2011
Magistrate is no competent to order Re-Investigation into the matter.
As per the powers provided to a Magistrate, he is either to accept or reject the cancellation report submitted by the Police.
if he accepts the Cancellation Report then the matter comes to an end there....but it has not been accepted then the Magistrate can himself take cognizance of the matter and put it for evidence as per the procedure prescribed.
you must definitely challenge the said order before the appropriate court and under the guidance of your local lawyer...your lawyer will be able to find out various judgments in this regard.
prabhakar singh
(Expert) 05 November 2011
True the power of investigation vests in police which is so large that it can go for further investigation even when a trial has started only after keeping magistrate informed.
But magistrate is not empowered to order to re investigate or to further investigate.
Magistrate can simply accept the result of investigation or reject the same and can accordingly have powers to proceed.
Guest
(Expert) 05 November 2011
suo motto powers can only be sparingly used. in these matters of investigation there must be manifest error apparent on record then only magistrate can interfere . if it is solely the accused defence the magistrate cannot interfere.
Arun Kumar Bhagat
(Expert) 06 November 2011
I differ with the reply of Ravi Kant Soni which is:
"Moreover I anticipate that a revision also can not be lain because it is an interlocutory order not a final and does not prejudice accused."
The said order of Magistrate is not interlocutory order since it substantially affects the liberty of the accused.
I differ with the reply of Prabhakar Singh which is :
"But magistrate is not empowered to order to re investigate or to further investigate.
Magistrate can simply accept the result of investigation or reject the same and can accordingly have powers to proceed."
It is totally misconceived notion. There are three options 1) To accept the report and take cognizance or discharge the accused(s).
2) To reject the report and do vice-verse.
3) To order re-investigation on the basis of NARAJI PETITION or PROTEST PETITION by defacto complainant but in this case magistrate acted suo-moto which is also not debarred to achieve the ends of justice.
u/s 173(8) CR. P.C the Police Officer is empowered to investigate further.
