Vinod Kumar And Others vs State Of U.P. And Others
2021 Latest Caselaw 2851 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 4.2.2021
 
Delivered on 23.2.2021
 
Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 12352 of 2004
 

 
Applicant :- Vinod Kumar And Others
 
Opposite Party :- State of U.P. and Others
 
Counsel for Applicant :- D.K. Tripathi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Shri D.K. Tripathi, learned counsel for the applicants and Shri Manoj Kumar Dwivedi, learned AGA for the State and perused the record.

2. Counsel for the applicants argues that the present application has been filed challenging the order dated 14.10.2004 whereby the Additional Chief Judicial Magistrate, Jaunpur in case crime no.C-1/2002, under Sections 419 and 420 IPC has allowed the application filed by the Anti-Corruption Bureau, Varanasi permitting them to re-investigate the matter.

3. The facts in brief are that the opposite party no.2 filed an application under Section 156(3) Cr.P.C. alleging the forgery committed upon him by the applicants. The matter was investigated by the police authority and a final report was submitted under Section 173(2) Cr.P.C. on 10.01.2003 before the Magistrate concerned. The Magistrate vide its order dated 01.07.2003 has accepted the said final report, which is placed on record as Annexure-5. Subsequent to the acceptance of the final report, an application dated 13.10.2004 was filed by the Anti-Corruption Bureau before the court concerned stating that in terms of the investigation completed by the police authority a final report was filed, which has been accepted by the court below, however, the State authorities on the basis of some new facts which had come to its knowledge wants to re-investigate the matter and thus requested that the said authority be permitted to ''re-investigate' the matter in exercise of power under Section 173(8) Cr.P.C.. The said application was allowed by the Magistrate concerned vide its order dated 14.10.2004 recording that an application has been filed for re-investigation and as the offence is grave in nature, the permission is granted.

4. Counsel for the applicant argues that although the law is very well settled on the question of reinvestigation and argues that although in the interest of justice when the matter is pending before the Magistrate, he has the authority to permit further investigation, re-investigation cannot be done by the Magistrate moreso after the acceptance of the final report, as has been done in the present case. He further argues that the police authority had investigated the matter at the earlier instance and had filed the final report, thus, a new agency namely Anti-Corruption Bureau had no authority to file an application seeking permission to re-investigate the matter and thus the order suffers from arbitrariness on that ground also.

5. Counsel for the applicant further argues that once the final report is accepted by the Magistrate, he becomes functus officio and coupled with the fact that there was no protest petition on record, it was only the higher/superior Court which could have directed for further investigation and in any event the re-investigation could not have been directed but only by the Superior Court. He further argues that the application was filed seeking permission for re-investigation at the instance of third party who has no concern with either the informant or the police authority and has merely stated that he is the power-of-attorney holder of opposite party no.2 without producing any record to substantiate the averments thus, the order is liable to be set aside.

6. Counsel for the applicant has placed reliance upon the judgments of the Supreme Court in the cas of Vinay Tyagi Vs. Irshad Ali @ Deepak and Others [2012 LawSuit(SC) 845], K. Chandrasekhar etc. Vs. The State of Kerala & Others [1998(4) Supreme 374] in support of his submissions.

7. Counsel for the applicant has drawn my attention to the relevant paragraphs of the aforesaid judgments to argue that Cr.P.C. is very clear in terms of the power conferred upon the Magistrate which has been lucidly explained by the Supreme Court in judgments cited above.

8. Learned AGA on the other hand argues that there is no error in the order passed by the court concerned inasmuch as the intent of the Court is to find out the truth and thus, if any material comes before the Court, the Court is not powerless to direct re-investigation/further investigation as has been done in the present case. He argues that the authority namely Anti-Corruption Bureau is also a wing of State Police Authority and thus, the argument of the learned counsel for the applicant that it is a different agency deserves to be rejected. He further argues that the application in question clearly indicates that there was sufficient material for the Anti-Corruption Bureau to request for permission to carry out further investigation/re-investigation, which cannot be faulted with.

9. Learned AGA has placed reliance upon the judgments of Supreme Court in the case of State of Rajasthan Vs. Aruna Devi and Others [(1995) 1 SCC 1], Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Others [(2017) 4 SCC 177], Vinubhai Haribhai Malviya and Others Vs. State of Gujrat and another [(2019) 17 SCC 1] in support of his submissions.

10. In the light of the arguments advanced and the pleadings on the record what is to be considered by this Court is as to whether the re-investigation could have been directed by the Additional Chief Judicial Magistrate, Jaunpur as has been done by means of the impugned order.

11. The question regarding scope of Section 173 (8) of the CrPC as has been considered very lucidly by the Supreme Court in the case of Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another, (2020) 3 Supreme Court Case (Cri) 228 wherein the Supreme Court considered the entire scheme of the CrPC and noticed the Law Commission's Report whereafter Section 173 CrPC was amended to include Section 173 (8) under the CrPC. The Supreme Court emphasised the requirement of a fair and speedy trial, right to just and fair trial is a facet of Article 21 of the Constitution of India although in the said case Supreme Court was considering the question of further investigation by the Magistrate after the police report has been forwarded to him under Section 173 CrPC and in the light of the said questions before the Court, it held as under:

"20. With the introduction of Section 173(8) in the CrPC, the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question before us is as to whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173?"

"22. What is recognised by this decision is that in the circumstance that the Magistrate does not agree with the police report, he may order further investigation - which is done in his capacity as a supervisory authority in relation to investigation carried out by the police."

"25. It is thus clear that the Magistrate's power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156(1) of the CrPC would, as per the definition of "investigation" under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC."

"39. Paragraph 39 of the judgment then referred to the "inquiry" stage of a criminal case as follows:

"39. Section 2(g) CrPC and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under CrPC by the Magistrate or the court. The word "inquiry" is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial."

A clear distinction between "inquiry" and "trial" was thereafter set out in paragraph 54 as follows:

"54. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 CrPC."

40. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that case, the Appellant/Informant therein sought a direction under Section 173(8) from the Trial Court for further investigation by the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the earlier judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in cases where, after cognizance is taken, the accused had appeared in pursuance of process being issued. In particular, Devarapalli Lakshminarayana Reddy (supra) was strongly relied upon by the Court. We have already seen how this judgment was rendered without adverting to the definition of "investigation" in Section 2(h) of the CrPC, and cannot therefore be relied upon as laying down the law on this aspect correctly. The Court therefore concluded:

"49. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and the accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.

50. The unamended and the amended sub-section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorised to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifestly heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.

51. In contradistinction, Sections 156, 190, 200, 202 and 204 CrPC clearly outline the powers of the Magistrate and the courses open for him to chart in the matter of directing investigation, taking of cognizance, framing of charge, etc. Though the Magistrate has the power to direct investigation under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by CrPC to order further investigation even after the cognizance is taken, the accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of CrPC adumbrated hereinabove. Additionally had it been the intention of the legislature to invest such a power, in our estimate, Section 173(8) CrPC would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, as has been amongst authoritatively enumerated in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] , the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 CrPC, whereunder any witness can be summoned by a court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus the impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference. Even otherwise on facts, having regard to the progression of the developments in the trial, and more particularly, the delay on the part of the informant in making the request for further investigation, it was otherwise not entertainable as has been rightly held by the High Court."

12. The Supreme Court has specifically held that the case of Amrutbhai Shambubhai Patel Vs. Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177, Athul Rao Vs. State of Karnataka, (2018) 14 SCC 298 and Bikash Ranjan Rout vs. State (NCT of Delhi), (2019) 5 SCC 542 does not lay down the correct law. Supreme Court specifically overruled all judgments in the case of Reeta Nag Vs. State of West Bengal, (2009) 9 SCC 129.

13. As regards the question of distinction between further investigation, the Supreme Court referred to the earlier judgment of the Supreme Court in the case of Babubhai Vs. State of Gujarat, (2010) 12 SCC 254.

14. The other specific judgment of the Supreme Court considering the question of power of ''re-investigation' is the case of Vinay Tyagi Vs. Irshad Ali @ Deepak & otheres, 2012 LawSuit(SC) 845 wherein the Supreme Court specifically dealt with the question of powers of a Magistrate for ''further investigation' and ''re-investigation' and held as under:

"15. ''Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ''further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ''supplementary report'. ''Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ''reinvestigation', ''fresh' or ''de novo' investigation.

16. However, in the case of a ''fresh investigation', ''reinvestigation' or ''de novo investigation' there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ''fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ''fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ''fresh investigation'. In the case of Sidhartha Vashisht v. State (NCT of Delhi) [(2010) 6 SCC 1], the Court stated that it is not only the responsibility of the investigating agency, but also that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. An equally enforceable canon of the criminal law is that high responsibility lies upon the investigating agency not to conduct an investigation in a tainted or unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society. The maxim contra veritatem lex nunquam aliquid permittit applies to exercise of powers by the courts while granting approval or declining to accept the report. In the case of Gudalure M.J. Cherian & Ors. v. Union of India & Ors. [(1992) 1 SCC 397], this Court stated the principle that in cases where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders. Further, in the case of R.S. Sodhi, Advocate v. State of U.P. [1994 SCC Supp. (1) 142], where allegations were made against a police officer, the Court ordered the investigation to be transferred to CBI with an intent to maintain credibility of investigation, public confidence and in the interest of justice. Ordinarily, the courts would not exercise such jurisdiction but the expression ''ordinarily' means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. ''Ordinarily' excludes extra- ordinary or special circumstances. In other words, if special circumstances exist, the court may exercise its jurisdiction to direct ''fresh investigation' and even transfer cases to courts of higher jurisdiction which may pass such directions.

18. Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct ''further investigation' or ''fresh investigation'. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct ''fresh' or ''de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223]; Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413], Nirmal Singh Kahlon v State of Punjab & Ors. [(2009) 1 SCC 441]; Mithabhai Pashabhai Patel & Ors. v. State of Gujarat [(2009) 6 SCC 332]; and Babubhai v. State of Gujarat [(2010) 12 SCC 254].

15. The Supreme Court finally recorded as under:

30. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :

1. The Magistrate has no power to direct ''reinvestigation' or ''fresh investigation' (de novo) in the case initiated on the basis of a police report.

2. A Magistrate has the power to direct ''further investigation' after filing of a police report in terms of Section 173(6) of the Code.

3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.

4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).

5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.

6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue ''further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.

31. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ''further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.

33. At this stage, we may also state another well-settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct ''further investigation', ''fresh' or ''de novo' and even ''reinvestigation'. ''Fresh', ''de novo', and ''reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

35. The power to order/direct ''reinvestigation' or ''de novo' investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct ''further investigation', or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

36. The Code does not contain any provision which deals with the court competent to direct ''fresh investigation', the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a ''fresh'/''de novo' investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon ''further investigation' or a report upon ''fresh investigation', shall have to be construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction."

16. Ultimately, the Supreme Court answered the question came before it as under:

No investigating agency is empowered to conduct a ''fresh', ''de novo' or ''re-investigation' in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate."

17. In the light of the judgment as referred above and facts before this Court what is now noticed that after the completion of investigation, a final report was submitted on 14.1.2003 which was accepted by the Magistrate on 1.7.2003 and there was absolutely no protest petition filed except an application filed at the behest of Anti-Corruption Bureau wherein it was specifically requested that they may be permitted to reinvestigate the matter. In the said application absolutely no reasons were mentioned except stating that some new facts have come to the knowledge which required re-investigation and thus, it may be permitted for re-investigation and the same application was allowed without even recording any findings as to the justification for ordering re-investigation by the impugned order dated 14.10.2004 or with regards to the fate of earlier investigation.

18. In view of the law as recorded above, it is very well settled that power of ''re-investigation' is not available to the Magistrate and can be exercised only by a superior Court. What is also relevant is that the power of further investigation should also be exercised based upon some material and it cannot be based on whims and fancies of an authority which have not initially investigated the matter and in any event, the re-investigation is not at all permissible that too at the behest of a new authority without there being anything on record to have suggested that there is a valid ground for re-investigation. Needless to add that re-investigation as held by Supreme Court can be directed only by a superior Court that too on the basis of some material.

19. In view of the facts and law discussed above, I am of the firm view that the order dated 14.10.2004 is wholly illegal, arbitrary and contrary to mandate of Section 173 (8) of the CrPC on both the counts i.e. lack of power for directing re-investigation; secondly, lack of any material ground before it leading to passing of the said order. Accordingly, the application is allowed and the order dated 14.10.2004 is set aside.

Order Date :- 23.2.2021

vinay/pks