- (1.) This petition has been preferred by petitioner aggrieved by inaction of the police in not filing challan against accused for offence under Section 302 IPC, with the prayer that police be directed to reinvestigate the matter in F.I.R. No.211/2011 for offence under Section 302 IPC, originally registered for offence under Section 323 IPC, because now the injured has died.
(2.) Shri Nemi Chand Choudhary, learned counsel for petitioner has invited attention of the court towards FIR No.211/2011 lodged with Police Station Sadar, Gangapurcity, District Sawaimadhopur, for offence under Sections 341, 323, 34 of the IPC and 3 (i)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, and argued that originally the first information report was registered under those provisions but eventually the injured Bablu died of injuries, which he received in incident in question, yet police did not investigate the matter from the point of view of offence under Section 302 IPC. The charge-sheet has been filed only for offence under Section 323 IPC. Learned counsel in this respect referred to opinion as to the cause of death in the postmortem report.
(3.) Shri Paresh Choudhary, learned Public Prosecutor, while opposing the petition, argued that once the challan has been filed and cognizance has been taken by the Magistrate, he would have no jurisdiction to direct reinvestigation. In the present case, challan having already been filed and cognizance having been taken, the only stage for the Magistrate or the trial court is to take cognizance for graver offence would be when some evidence has been recorded and it is only at that stage by recourse of Section 173(8) of the Cr.P.C. can he take cognizance.;