Himachal Pradesh High Court Upholds Magistrate’s Power | Further Investigation Under Section 173(8) CrPC Permissible Even After Cognizance Is Taken
Sanchayita Lahkar
The High Court of Himachal Pradesh Single Bench of Justice Sushil Kukreja held that the accused could not be discharged at the pre-trial stage and upheld the trial court's directive for further investigation into the alleged embezzlement of milk delivery proceeds. The Court stated that the Magistrate is empowered to direct further investigation under Section 173(8) of the Cr.P.C., even after taking cognizance, if such action is essential to ensure a fair and just probe. The revision petition challenging the trial court's order was dismissed as devoid of merit.
The case arises out of a complaint filed by a clerk, Lal Chand, at the H.P. Milk Federation Mandi Unit at Chakkar. An FIR No. 10/2002 dated 01.07.2002 was registered under Sections 409, 420, 467, 468, 471, 120-B of IPC and Section 13(2) of the Prevention of Corruption Act, 1988. The complaint alleged that officers and officials transporting milk from the Kataula Milk Chilling Centre to the Chakkar unit misappropriated and embezzled proceeds by selling a portion of the milk en route.
The petitioner Dharam Chand was serving as Incharge of MCC Kataula and was found responsible in a preliminary inquiry conducted by ASI Kapoor Chand of the Enforcement North Zone, Dharamshala. The inquiry found discrepancies in the milk quantities received at the Chakkar unit for multiple financial years spanning from June 1994 to March 2001. Specifically, it reported shortages amounting to a total of Rs.5,56,656/- in value.
It was revealed that the milk collected from cooperative societies and a Government Livestock Farm was transported with challans. The challans had duplicate copies, which were recorded and reconciled at the Chakkar unit. Monthly bills from milk cooperative societies were forwarded through several verifications before payment. The petitioner verified these bills before they were further validated and processed for payment.
During the investigation, for the financial year April 1995 to March 1996 alone, a shortfall of 12,683 litres of milk amounting to Rs.1,07,198/- was observed. It was alleged that Dharam Chand, along with Ram Singh, sold a portion of milk en route and failed to account for the proceeds.
In response to the charges, the petitioner filed an application under Section 227 of the Cr.P.C. seeking discharge, citing lack of evidence, retirement in 2006, and delayed filing of the charge sheet in 2011. He also contended that he was not supplied the complete records as mandated by Section 207 of the Cr.P.C., despite orders from the High Court.
The trial court, however, dismissed the application for discharge via its order dated 28.09.2024 and returned the charge sheet to the Police Station for further investigation, particularly on the issue of whether the proceeds from the alleged milk sale during transit were deposited into the government treasury.
The petitioner then approached the High Court through a revision petition challenging this order, reiterating his innocence and stating the prolonged investigation since 2002, claiming it resulted in harassment and delay without substantial evidence.
Justice Sushil Kukreja recorded that the core issue in the case was whether the Magistrate could direct further investigation under Section 173(8) of the Cr.P.C. after taking cognizance.
The Court stated “Law is no more res integra and stands settled in regard to the ambit and scope of Section 173 (8) of the Cr.P.C."
Citing the Supreme Court's decision in Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another, (2019) 17 SCC 1, the High Court reiterated:
"There is no good reason... why a Magistrate's powers to order further investigation would suddenly cease upon process being issued... What is not given any importance at all in the recent judgments... is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation... Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate..."
The Court noted that the petitioner had failed to demonstrate that no case was made out against him. It was observed that the proper investigation on the aspect of TR-V bill deposits related to milk sale proceeds was lacking. The trial court, in directing further investigation, was exercising a well-established statutory power.
"...when the proper investigation has not been conducted on the said aspect of the case, at this stage, the accused cannot be discharged, but it is in the interest of justice that the investigating agency should be directed to conduct further investigation..."
The Court further observed that arguments related to harassment or delay could not override the statutory mandate to conduct a fair and complete investigation. The framing of charges, the Court noted, could only be done after such investigation is complete.
The High Court concluded that the Trial Court had exercised its jurisdiction correctly under the law. It stated: "This Court finds that the learned Court below had passed a reasoned order, which was well within its power, and, as such, the order under revision, being in accordance with law, requires no interference by this Court."
"Accordingly, the present revision petition, being devoid of any merits, is dismissed, so also the pending miscellaneous application(s), if any."
Advocates Representing the Parties:
For the Petitioners: Mr. G.R. Palsra, Advocate
For the Respondents: Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Ankush Thakur and Mr. Anish Banshtu, Deputy Advocates General
Case Title: Dharam Chand vs. State of H.P.
Neutral Citation: 2025: HHC:14250
Case Number: Cr. Revision No. 751 of 2024
Bench: Justice Sushil Kukreja
[Read/Download order]
