Rikhab Das vs Manak Chand and Another

Amaresh Ku. Singh, J.—Heard the learned counsel for the petitioner and the learned Public Prosecutor.

A perusal of the order dated 1-8-1991 passed by the Munsif and Judicial Magistrate, Banner shows that on 31-7-1984 a complaint was filed against Rikhab Das alleging the commission of offences under Sections 417, 419, 420, 465 and 468 of the Indian Penal Code. The Chief Judicial Magistrate, Banner, before whom the above mentioned complaint was filed, forarded the complaint to the Station House Officer of the Police Station Kotwali. Barmer, u/s 156(3) of the Criminal Procedure Code.

On the basis of the abovementioned complaint tiie police registered the ITR No. 204 of 1984. After investigation a final report was submitted on 4-10-1984. The final report was accepted by the Chief Judicial Magistrate on 13-10-1984 but the order accepting the final report was passed without issuing notice to the complaint.

On 70-10-1984 the complainant filed objections against final report. The final report was called from the Police Station, Meanwhile, the Superintendent of Police, Banner, live orders for further investigation to Inspector Beg. On 25 -5-1985, the accused moved an application stating therein that further investigation was being conducted without the order of the Court and, therefore, the same be ordered to be stopped. No order was passed on thai application. The Court wai ted for the submission of the report u/s 173 of the Criminal Procedure Code. On 2-6-1987, the final report was received. The Court fixed 2-12-1988. Meanwhile, the file was transferred to the Munsif and Judicial Magistrate, Barmer. On 28-6-1990, after hearing the arguments of the complainant''s side, the file-was returned to the police for furtehr investiga-lion. The Station House Officer of the Police Station returned the file with the endorsement that after the acceptance of She Final Report by l the Magistrate, further investigation was not permissible.

After hearing the arguments, the learned Munsif and Judicial Magistrate, by his order dated 13-3-1991, held that the order dated 28-6-1990 had become final and that he could not revise that order. It was further held by the learned Munsif and Judicial Magistrate, Banner that the Station House Officer of the Police Station, was bound to carry out the order and he could not refuse to obey the order of the Court on the, ground that after acceptance of final report further investigation was not permissible. He directed that notice be sent to the concerned Police Officer to show cause why he should not be prosecuted for the offence u/s 166 of the Indian Penal Code.

A perusal of the impugned order dated 28-6-1990 shows that it was submitted before him by the complainant that the Police did not seize the record and did not conduct investigation on certain points He, therefore, directed the Superintendent of Police to conduct further investigation in view of the complainant''s application dated 29-9-1987.

I have carefully considered the facts and circumstances of this case and considered the submissions made by the parties. There is no doubt in it that alter the submission of the final report u/s 173 of the Criminal Procedure Code, the Magistrate/Court competent to take cognizance can direct further investigation u/s 156(3) of the Criminal Procedure Code, if cognizance of the offences is not taken on the basis of the police report. (See Abhinandan Jha and Others Vs. Dinesh Mishra, . It is also true that even after the submission of the report u/s 173 of the Criminal Procedure Code, the Police Officer can conduct further investigation. This power to conduct further investigation was available to the Police Officer under the Criminal Procedure Code of 1898 and for the removal of doubts, the power to conduct further investigation has been expressly saved by Section 173(8) of the Criminal Procedure Code.

The view that if the Court has taken cognizance of the offence or the Police cannot conduct investigation or further investigation is inconsistent with the law declared by the five Judge Bench of the Hon''ble Supreme Court in Girdhari Lal Gupta and Another Vs. D.N. Mehta, Assistant Collector of Customs and Another, . Investigation by the Police is, therefore, permissible even after the taking of cognizance by the Magistrate/Court under any one or more of the Clauses (a), (b) or (c) of Sub-section (1) of Section 190 of the Criminal Procedure Code. In some cases, it has been observed that if further investigation is started the Court should be informed but it is well established that if further investigation is carried out, without informing the Court or without seeking formal permission of the Court, no illegality is committed. There is nothing to suggest that the power of the police to investigate/re-investigate into a cognizable offence is further circumscribed by the condition that permission to conduct investigation or further investigation must be obtained by the police nor there is anything to show that investigation further investigation without the permission o the Court, in cognizable offences would be illegal or void. The law hud down by the Judicial Committee in AIR 1945 18 (Privy Council) lays down the general rule this the statutory power ot" the Police to'' conduct investigation into cognizable offences is not subject to control by the Court save when iii interfered with under inherent, powers. In th Criminal Procedure Code, anotst exceptiont the above mentioned genetasd rule is 10 be found in Section 167(5) of the Criminal Procedur Code, 1973 which empowers the Court to direct stopping of investigation if the same is not com pieted within the prescribed time. Therefore, the impugned order dated 28-6-1990 was within the jurisdiction of the Chief Judicial Magistrate, i so far it directed further investigation. But ther was no justification for giving further direction that investigation should be carried in view of th application of the complainant. The Magistrate empowered to direct investigation u/s 156(3) of the Criminal Procedure Code is not permitted to place the investigating agency under the control of the complainant or any other person Therefore, the direction dial investigation b conducted keeping in view the application of the complainant was without jurisdiction and this direction is, hereby, quashed.

For reasons mentioned above, I do not fine any force in the submission that the order for further investigation, passed by Judicial Mag istrate on 28-6-1990 deservesd to be quashed. The petition has no force, it deserves to be dismissed and is, hereby, dismissed, but the direction this investigation be conducted in view of the complainant''s application is quashed.

Petition is disposed of accordingly.