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Bombay High Court
Vachistha Nivrutti Raswe vs The State Of Maharashtra on 11 August, 2025
2025:BHC-AUG:21708
1 Cri. Appln 51-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 51 OF 2025
Vachistha Nivrutti Raswe
Age : 56 years, Occu. Agriculture,
R/o. Lavul No. 1,
Tq. Majalgaon, Dist. Beed. .. Applicant
Versus
The State of Maharashtra
Through Police Inspector,
Rural Police Station, Majalgaon,
Tq. Majalgaon, Dist. Beed. .. Respondent
Mr. M. B. Kolpe, Advocate for the Applicant.
Smt. M. N. Ghanekar, APP for Respondent/State.
CORAM : KISHORE C. SANT, J.
Date on which reserved for order : 12th June, 2025.
Date on which order pronounced : 11th August, 2025.
FINAL ORDER :-
. The petitioner, original informant has approached this Court
challenging an order dated 26.07.2024 passed by the learned 2 nd
J.M.F.C., Majalgoan thereby rejecting his application seeking
further investigation under Section 173(8) of the Code of Criminal
Procedure (for short "Cr.P.C.").
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2. The facts in short are that, the informant lodged a compliant
at Police Station, Majalgoan (Rural) on 08.11.2023 against the
accused persons for the offences punishable under Sections 306,
506 r/w Section 34 of the Indian Penal Code (for short "I.P.C."). It
is the case that, his son namely Sunil Vachistha Raswe was having
relations with accused Shital. Because of the relations the accused
Shital started blackmailing the deceased. She started harassing
him and insisting for marriage. The marriage of deceased son of
the informant, however, was settled with some other lady. It is on
that the accused started threatening the deceased Sunil through
accused No. 2 Divya. It was threatened that, if he performs
marriage with any other person, she would make the photographs
from her mobile phone viral. Thereafter, the accused persons also
met the deceased on 30.10.2023. It is alleged that, because of this
the deceased committed suicide by jumping into a well on
30.10.2023. On this the offence came to be registered. Charge-
sheet came to be filed. The learned J.M.F.C. on filing of the
charge-sheet committed the case to the learned Sessions Court on
30.08.2024.
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3. The petitioner thereafter filed an application before the
learned Magistrate for direction to the Police to conduct further
investigation. The said application was filed in R.C.C. No.
118/2024 on 06.07.2024. The learned J.M.F.C. on going through
the application and on hearing the parties rejected the application
by impugned order dated 26.07.2024. It is observed that, the case
is already committed to the Court of Sessions and therefore, it is
the learned Sessions Court where the application needs to be filed.
The role of learned J.M.F.C. is only to monitor the compliance of
Sections 207 and 208 of the Cr.P.C. The petitioner is thus before
this Court.
4. The learned advocate Mr. Kolpe for the petitioner
vehemently argued that, the power under Section 173 (8) is only
with the learned Magistrate and not with the learned Sessions
Court as the wording itself is clear of the section. He further
submits that, though the section requires such application to be
filed by the learned A.P.P., still the informant has right to file such
an application. It is necessary in the interest of justice to bring the
evidence on record which can only be done by directing further
investigation in the present case.
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5. The learned A.P.P. vehemently opposes the petition. She
submits that, the petitioner has alternative remedy of filing
revision application. Without availing the remedy he has directly
approached this Court. The petition thus deserves to be
dismissed. Further objection raised by the learned A.P.P. is that the
accused is not made a party. So far as prayer to change the
investigating agency, she submits that no such prayer can be made
before the learned J.M.F.C. Presently the case is committed to the
Court of Sessions. It is open for the petitioner to apply to the
learned Sessions Court by making accused as party.
6. During the course of argument the learned advocate for the
petitioner relied upon the judgment in the case of Vinubhai
Haribhai Malaviya and others Vs. State of Gujarat and another
reported in (2019) 17 SCC 1. Three judges Bench of the Hon'ble
Apex Court while dealing with the provisions of Sections 173(8),
156(3), 228 and 240 of the Cr.P.C. held that, the power under
Section 156(3) of the Cr.P.C. is available to the learned Magistrate
even at post cognizance stage till the trial commences i.e. framing
of the charges. It is further held that, this power can be exercised
even suo motu by the learned Magistrate himself. The power is
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held to be wide. The Hon'ble Apex Court by relying upon the
judgment in the case of Common Cause Vs. Union of India
reported in (1996) 6 SCC 775 has decided the case. In the case of
Common Cause (supra), it is held that, the trial of the warrant
case by the learned Magistrate in cases instituted upon police
report shall be treated to have commenced when charges are
framed under Section 240 of the Cr.P.C. In the cases instituted
otherwise than on police report such trial shall be treated to have
commenced when charges are framed against the accused under
Section 246 of the Cr.P.C. On relying this judgment the learned
advocate submitted that, till now the charges are not framed and
since charges are not framed the trial has not yet commenced and
therefore, the learned Magistrate has every power to direct the
investigation.
7. The learned advocate for the petitioner further relied upon
the judgment in the case of Dharam Pal and others Vs. State of
Haryana and another reported in (2014) 3 SCC 306. The
consideration was mainly of the Section 319 of the Cr.P.C. It is
held that, the learned Sessions Court has jurisdiction on committal
of a case to it, to take cognizance of the offences of the persons
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not named as offenders, but whose complicity in the case would
be evident from the material available on record. Thus, it is seen
that, it is the learned Sessions Court after the case is committed
has the power to take cognizance against the accused persons not
named in the complaint.
8. The learned advocate for the petitioner further relied upon
the judgment in the case of Athul Rao Vs. State of Karnataka and
Ors. reported in AIR 2017 SC 4021. There the party had moved
an application before the Trial Court for further investigation in
two offences. The Trial Court rejected the application. The High
Court set aside the said order. In that case, one of the questions
was as to whether the informant can file an application for further
investigation. It is held that, after the appearance of the accused
neither the learned Magistrate suo motu, nor on an application
filed by complainant/informant direct further investigation. It is
open only on the request of the investigating agency in the
circumstances warranting further investigation on detection of
material evidence to secure fair investigation.
9. The learned advocate further relied upon the judgment in
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the case of K. Vadivel Vs. K. Shanthi & Ors. in SLP Criminal No.
4360/2022. The Hon'ble Apex Court dealt with the aspect of
Section 173(8) of the Cr.P.C. In that case, an application was filed
for further investigation after considering of the evidence. It was
answered relying upon the case of Vinubhai Haribhai Malaviya
(supra) that further investigation could at best have been ordered
till commencement of trial.
10. The question in this case is thus only about the stage the
application can be moved.
11. The learned A.P.P. relied upon the judgment in the case of
Avinash Trimbakrao Dhongade and ors. Vs. The State of
Maharashtra and ors. reported in 2017 All MR (Cri.) 5289. This
Court finds that, the said case is of no use in the present case. She
further relied upon the judgment in the case of Mohit Alias Sonu
and another Vs. State of U.P. and another reported in (2013) 7
S.C.R. 86. The Hon'ble Apex Court in the said case considered
powers of the High Court under Section 482 of the Cr.P.C. and
Sections 319 and 397 (2) of the Cr.P.C. This Case is also of no use
in the present case.
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12. Considering all the judgments cited, this Court finds that,
the question in the present case is only as to whether the order
passed by the learned J.M.F.C. needs to be quashed and set aside
with a direction to the Police to carry further investigation. In the
present case, this Court finds that, since now the case is already
committed to the learned Sessions Court, it was necessary for the
informant to move the learned Sessions Judge by filing an
application. It is for the learned Sessions Judge before whom the
application would be filed to consider the said application as to
whether to pass such order on an application by the informant ?
whether case is made out to direct further investigation ? will be
decided by the learned Sessions Court. This Court does not find it
appropriate to answer those questions till the same are considered
by the learned Sessions Court.
13. Considering above, I pass the following order :
ORDER
(i) Criminal application stands dismissed.
(ii) Liberty is granted to the petitioner to apply afresh to the
learned Sessions Judge.
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(iii) With this, criminal application stands disposed of.
( KISHORE C. SANT, J. )
P.S.B.
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