- (1.) This revisional application has been preferred by the petitioner praying for quashing the criminal proceeding being G. R. Case No. 278 of 1998 which arose out of Balagarh P. S. Case No. 29 dated 5.3.98 and for setting aside the order of the learned Sub-Divisional Judicial Magistrate (in short the S.D.J.M.) dated 7.2.04 taking cognizance of the offence.
(2.) Mr. Joymalya Bagchi, the learned Advocate for the petitioner submitted that concerning incident dated 5.3.1998 there were case and counter case. The Balagarh P.S. Case No. 28 dated 5.3.98 was registered on the basis of written complaint/F.I.R. lodged by Badsha Hossain, husband of the petitioner as the accused persons seriously assaulted the husband of the petitioner and made attempt to murder him. After completing investigation in the said case charge-sheet has been submitted under Sections 148,149, 448, 325, 326, 341 and 307 of the Indian Penal Code (in short the I.P.C.) against several accused persons including Ansar Ali, the de facto complainant of Balagarh PS. Case No. 29 dated 5.3.98. In the counter case being Balagarh P. S. Case No. 29 dated 5.3.98 the alleged offences were under Sections 147,148,149,341 and 325 of the I.P.C. and it was the allegation of de facto complainant Ansar Ali that his wife Sakina Bibi was seriously assaulted by Badsha Hossain and others. The Balagarh P.S. Case No. 29 dated 5.3.98 after investigation ended in FRT, i.e. the police after investigation found that there was no basis into the alleged incident and charge-sheet was not submitted, and the police officer also submitted a prayer to initiate a proceeding under Section 211 of the I.P.C. against the de facto complainant. The de facto-complainant filed a 'naraji' petition challenging the said FRT and over such application the teamed Magistrate directed "reinvestigation". After reinvestigation the police has submitted charge-sheet in the said case. At present both the Balagarh P.S. Case No. 28 dated 5.3.98 and Balagarh P.S. Case No. 29 dated 5.3.98 are pending in the Court of the learned Assistant Sessions Judge for trial.
(3.) Mr. Bagchi further submitted that the order of the learned Magistrate directing "reinvestigation" was bad in law and there is gulf of difference between the words "reinvestigation" and the words "further investigation". Provisions of Section 173(8) of the Cr.P.C. prescribes further investigation in appropriate cases and there is no scope of reinvestigation within that section. "Reinvestigation" connotes fresh or new investigation whereas "further investigation" indicates additional, supplemental report after such further investigation. Scope of further investigation is limited and it is only additional over any new point or over any point which was not considered during earlier investigation. But "reinvestigation" indicates fresh investigation, and that is why the Parliament in its wisdom did not incorporate the word "reinvestigation" within the Section 173 of the Cr.P.C. The learned Magistrate acted illegally by passing the order for "reinvestigation" on the basis of 'naraji' petition filed by the de facto complainant in connection with Balagarh P.S. Case No. 29 dated 5.3.98. It is not legally permissible for a Magistrate to direct "reinvestigation". When after further investigation supplementary report is filed the learned Magistrate has to consider the report submitted on the basis of further investigation and at the same time he has to consider the earlier report submitted by the police and the earlier report does not become non-est. In the present matter the learned Magistrate after obtaining report of the police officer on the basis of such subsequent investigation took cognizance of offence which was bad in law as the learned Magistrate did not take into consideration the earlier police report.;