Delhi High Court
Rajneesh Kumar Singhal vs The State (National Capital Territory ... on 24 November, 2000
Equivalent citations: 2001IIAD(DELHI)37, 2001CRILJ1192, 89(2001)DLT511, 2001(57)DRJ411
Bench: Cyriac Joseph, R.S. Sodhi
ORDER Anil Dev Singh, J.
1. This petition under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') read with Article 227 of the Constitution of India was assigned to a learned Single Judge of this Court. The learned Single Judge was of the opinion that the petition should be heard and decided by a Division Bench in view of the fact that the impugned order passed by the learned Metropolitan Magistrate dated December 11, 1996 entrusting investigation of the case under section 498A/306/34 I.P.C. to the D.C.P. (Crime) was based on a judgment of the Division Bench of this Court in Criminal Writ No. 359/96 dated August 26, 1996 taking the view that under sub-section (3) of section 156 of the Code a magistrate always has the power to order investigation into a crime and this power does not get extinguished with the filing of the challan before him under section 173(2) of the Code, which was contrary to the decision of the Supreme Court in Randhir Singh Rana v. State, reported as 65 (1997) D.L.T. 207. Pursuant to the order of the learned Single Judge the file was placed before Hon'ble the Chief Justice on the administrative side for assigning the matter to a Division Bench. However, Hon'ble the Chief Justice considered it appropriate to constitute a Full Bench to hear the matter. This is how the petition was listed before us for disposal.
2. This petition arises in the following circumstances:
The deceased Geeta was married to the petitioner Rajneesh son of Trilok Chand Singhal. The marriage took place in the year 1986. On January 4, 1996, Geeta was admitted in Deen Dayal Upadhyay Hospital by Rajneesh where she died on January 5, 1996. On January 4, 1996 itself at about 4.05 P.M., Mahesh, the brother of the deceased, made a statement at Police Station Rajouri Garden by way of a complaint. According to the complaint, after a few days of marriage of his sister, her mother-in-law, Nirmala, and father-in-law, Trilok Chand, started making demands on account of dowry. They taunted her for bringing insufficient dowry. The deceased was ill-treated, abused and given beating by Munish, younger brother of the petitioner, Trilok Chand, and Nirmala. This situation came about a year before her death and after the time of marriage of Munish. They used to deride her saying that Munish's wife had brought more dowry as compared to her. The deceased used to complain about the behavior of her in-laws over the telephone and on her visits to the parental home. On her last visit on January 3, 1996, she complained that Trilok Chand and Nirmala had told her that unless a sum of Rs.50,000/- was paid to them she will not be permitted to return to the matrimonial home. A day after, on January 4, 1996 the complainant received a telephone call from Rajneesh that Geeta had consumed something and was admitted in DDU Hospital. Her condition was so serious that the complainant on reaching the DDU Hospital found that Geeta was not even fit to make a statement. In his complaint he expressed his suspicion that the crime was committed by her in-laws. Pursuant to the complaint a search of the matrimonial home was made but nothing was recovered. After the death of the deceased an FIR was registered at Police Station Rajouri Garden on January 5, 1996 under sections 498A and 306 IPC. On January 5, 1996 a search of the matrimonial home of the deceased was allegedly conducted for the second time and the police claimed recovery of a suicide note in the handwriting of the deceased from under her pillow. The police also asserted that C.F.S.L report supports their claim. On culmination of the investigation a challan was filed before the Metropolitan Magistrate against Rajneesh, Munish, Trilok Chand and Nirmala accusing them of having committed offences under sections 498A and 306 I.P.C. On the filing of the challan, the Metropolitan Magistrate passed the following order on March 23, 1996:-
"Present: APP for State.
Fresh challan filed today. Let it be checked and registered. Accused Rajnish and Munish are in J.C. till 29.3.1996. Accused Trilok, Smt. Nirmala are not arrested, as directed by Hon'ble Court (Accused not to be arrested till 20.4.96). Accordingly case be put up on 29.3.1996."
3. On May 8, 1996 Mahesh Kumar, brother of the deceased wrote a letter to the Chief Justice of this Court with the grievance that despite the fact that his sister was murdered and the case was covered under section 302 I.P.C., the police had registered the FIR under sections 498A and 306 I.P.C. It was also asserted that the police was conniving with the accused persons and had manipulated the investigation. It was also stated that the admitted signatures of the deceased were not sent to the C.F.S.L. It was also pointed out that opinion of another handwriting expert was sought and the handwriting expert on April 27, 1996 gave a categorical finding that the suicide note was a forged one and was not in the handwriting of the deceased. It was inter alia prayed therein that the fresh investigation be ordered in the case. The letter was treated as a criminal writ being Criminal Writ Petition No. 359/96 and was posted before a Division Bench. That petition was contested by the accused and a preliminary objection in those proceedings was raised by Shri D.C. Mathur, learned Senior Advocate, appearing on behalf of the accused persons to the effect that the petitioner had an alternative remedy of moving the Magistrate for relief and he was fully empowered to order further investigation. The arguments advanced by Mr. Mathur and as noted by the Division Bench are as follows:-
" xx xx xx ...... To be precise, the submission of the learned counsel is that the grievances which the petitioner is placing before this Court can very well be brought to the notice of the learned Magistrate and the Magistrate is fully empowered to give to the police whatever directions he may deem appropriate in this behalf. According to them, when a court of competent jurisdiction is fully empowered to deal with the grievances of the petitioner, this Court should not assume jurisdiction and the petitioner should be left to seek his remedy in the appropriate court.
xx xx xx "
The submission made by the learned counsel prevailed with the Division Bench which by its order dated August 27, 1996 held as follows:-
" In view of the above discussion we conclude that a Magistrate has power to order further investigation into an alleged crime even after a challan is filed by the investigating agency in his court as per Section 173(2) Code of Criminal Procedure. In the present case, the Magistrate is still seized of the matter. He has not so far passed any order under Section 209 Cr.P.C. committing the case to the Sessions Court. Surely the Magistrate is empowered to consider and deal with whatever grievances the petitioner may have and which he may like to place before the Magistrate. We are sure that the Magistrate will consider the grievances of the petitioner if placed before him and pass appropriate orders in accordance with law. In view of the efficacious and appropriate alternative remedy available to the petitioner, we decline to exercise jurisdiction under Article 226 of the Constitution of India. Not only the remedy before the Magistrate is efficacious and appropriate, we are of the view that the court of the Magistrate is the right forum where the grievances of the petitioner can be considered and appropriately dealt with."
4. Thereafter, Mahesh Kumar, brother of the deceased, in accordance with aforesaid decision of the Division Bench, approached the learned Metropolitan Magistrate with an application to direct further investigation in the matter. The learned Metropolitan Magistrate by order dated December 11, 1996 directed the D.C.P. (Crime) to carry out further investigation. Accused Rajneesh Kumar feeling aggrieved of the order passed by the learned Metropolitan Magistrate has filed this petition under section 482 of the Cr.P.C.
5. Mr. D.C. Mathur, appearing in support of the instant petition, has now taken a diametrically opposite stand to the one urged before the Division Bench in CWP No. 359/96. Before us he contended that the Metropolitan Magistrate did not have the power to order further investigation in the matter as it is the police alone which has the power under section 173(8) of the Cr.P.C to carry out further investigation after filing of the challan.
6. The submission of the learned senior bcounsel overlooks the fact that a party cannot normally be allowed to approbate and reprobate. If a party has taken up a specific stand at a particular stage of the court proceedings it should not be open for him to take a contrary position at a subsequent stage of litigation or in different proceedings. The principle serves well as it does not allow a litigant to blow hot and cold at successive stages of the same litigation, or another litigation. The doctrine is well illustrated in Dwijendra Narain v. Joges Chandra, 39 C.L.J. 40 (at page 52) where it was held as follows:-
" It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent. This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided that the second suit grows out of the judgment in the first."
7. In Bartlam v. Evans, (1936) 1 K.B. 202, it was held that the power of the court to set aside a judgment properly obtained, albeit by default, is one conferred upon, it by rule of Court, but that power has not displaced the fundamental principle on which the court has always acted that a person cannot approbate and reprobate. He cannot be allowed to affirm at one time and deny at another-making a claim on those whom he had deluded to their disadvantage, and founding that claim on the very matters of the delusion. The same principle was applied by Allahabad High Court in case titled Ram Khelawan Singh v. Maharajah of Benares, , and Udrej Singh and another v. Ram Bahal Singh and others,
8. The Division Bench in Criminal Writ Petition No. 359/96 concluded that the magistrate before whom the trial was pending had the power to order further investigation even after a charge sheet was filed by the investigating agency. Thus, the argument of Mr. Mathur canvassed before the Division Bench that the Magistrate was empowered to direct further investigation after taking cognizance of the offence was accepted. Now when the magistrate pursuant to the decision of the Division Bench and on consideration of the material on record has directed the police to further investigate the matter, the petitioner has taken a somersault and is basically questioning the decision of the Division Bench in this petition under section 482 of the Code read with Article 227 of the Constitution in the garb of challenging the order of the learned Metropolitan Magistrate directing the police to carry out further investigation in the matter. This is apparent from the order of reference dated August 10, 1999 which reads as follows:-
" In this petition the petitioner challenges the order dated 11th June, 1996 passed by the learned Metropolitan Magistrate, Delhi, disposing of an application moved by one Mahesh Kumar Garg for directions to entrust the investigation of a case to an independent investigation agency. As per the impugned order a direction was given to entrust the investigation to the D.C.P. (Crime). Apparently, the impugned order was passed in view of the judgment of a Division Bench of this Court in Crl. Writ Petition No. 359/96. According, to the petitioner, the said judgment of the Division Bench was wrong in view of the judgment of the Hon'ble Supreme Court in Randhir Singh Rana v. The State, reported in Vol. 65 (1997) D.L.T. 207. When this case was listed before Hon'ble Mr. Justice K.S. Gupta on 23rd July, 1999, his Lordship observed that the order dated 27th August, 1996 passed by the Division Bench in Crl. W. 359/96 is virtually under challenge in this petition. I also feel that it will be necessary to consider the correctness of the judgment of the Division Bench in Crl. W. No. 359/96 in order to dispose of this petition. Therefore, it is only proper that this petition is heard and decided by a Division Bench. Learned counsel for the parties also expressed the same view. Hence, this case is referred to a Division Bench.
The file be placed before the Hon'ble Chief Justice for appropriate directions."
9. We are afraid that the decision of the Division Bench cannot be questioned in these proceedings and it could only be challenged by way of a Special Leave Petition as otherwise litigation will never acquire quietus in a particular court. That apart we have no power to review the earlier order passed by the Division Bench. We, however, should not be understood to hold that even in the Special Leave Petition the petitioner could not have taken a contrary stand to the one taken before the Division Bench on the interpretation of section 173(8) of the Code, that being a question of law. But he cannot be allowed to attack the order of the Division Bench before us in a round about manner by impugning the order of the Magistrate which was passed in consonance with the view of the Division Bench on the ground that the decision of the Division Bench was erroneous. For this reason we cannot reopen the decision of the Division Bench which had attained finality as far as this court is concerned, by permitting the party to reverse its earlier stand. Otherwise, it will also amount to abuse of the process of the court.
10. Be that as it may, we proceed to consider the basic question raised by the petitioner in the light of the relevant provisions of the Code of Criminal Procedure. The provision relating to further investigation is comprised in sub-section (8) of section 173 of the Code which falls in Chapter XII of the Code. Chapter XII starts from section 154 and ends with section 176. The provisions inter alia deal with information to the police and their powers to investigate. Statute confers right and obligation on the police to carry out investigation under this chapter before a prosecution in a cognizable offence is launched. The informant under section 154 of the Code can give information relating to commission of a cognizable offence orally or in writing to the officer in charge of a police station. In case he gives the information orally the same is required to be reduced to writing by the officer in charge of the police station or under his direction. The information so given is to be read out to the informant and is required to be signed by the person giving the same and substance thereof is required to be entered in a book by such officer in the form prescribed by the State Govt. in this behalf. In case the information is not being recorded by an officer in charge of the police station, the informant can send the substance of such information in writing to the Superintendent of Police concerned who, if satisfied that such information discloses commission of a congnizable offence, can either investigate the case himself or direct investigation to be made by any police officer subordinate to him in accordance with the provisions of the Code. Under section 155, the substance of the information given by the informant to officer in charge of the police station in respect of a non-cognizable offence is also required to be entered in a book kept by such officer in the form prescribed by the State Government in this behalf. Under sub-clause (2) of section 155, the police officer is debarred from investigating a non-cognizable offence without the order of the Magistrate. But in case of commission of a cognizable offence, the officer in-charge of a police station under section 156 read with section 157 is empowered to proceed to the spot of the incident and investigate the facts and circumstances of the case himself or depute a subordinate officer of a rank prescribed by the State Government. For investigating a cognizable offence, the police officer does not require any permission from a Magistrate, but under section 157 he is required to send report of the commission of the cognizable offence (for short 'Special Report') to the Magistrate empowered to take cognizance of the same (cognizable offence) on a police report under section 190(1)(b) of the Code. Under sub-section (3) of section 156, a magistrate empowered under section 190 of the Code can also order an investigation. The order of the Magistrate under section 156(3) is in the nature of a peremptory reminder and an intimation to the police to exercise its plenary power of investigation under section 156(1). Even under section 159, the magistrate receiving the Special Report is empowered to direct investigation or if he thinks fit hold a preliminary enquiry himself or depute any magistrate subordinate to him to hold the same. The magistrate, however, does not have the power to restrain police investigation and order magisterial enquiry in a case where investigation of a cognizable offence by the police is already afoot. Investigation can also be directed where the police officer under proviso (b) to sub-section (1) of section 157 has decided not to investigate.
11. A police officer making investigation can require the attendance of any person who is acquainted with the circumstances of the case to appear before him under section 160 of the Code. Section 161 authorises the police officer to examine orally any person supposed to be acquainted with the facts. The statements made by such a person is required to be reduced in writing by the police officer, but the person making the statement is not to sign the same. An officer in charge of a police station or a police officer making the investigation is authorised to make a search in connection with investigation of a case of any place within the limits of the police station of which he is in charge or to which he is attached for the purpose of investigation provided he fulfills the requirements laid down in section 165 of the Code. In a case where an accused is arrested and detained in custody in connection with the investigation, the police officer making the investigation is required under section 167 to produce him before a magistrate within a period of 24 hours and he can seek remand for the purpose specified therein. On culmination of the investigation by the police the officer in charge of police station under section 173 is required to forward to the magistrate empowered to take cognizance of the offence a report in the form prescribed by the State Government. Under sub-section (8) thereof the filing of the report does not prevent further investigation in respect of the offence. Sub-section (8) of section 173 of the Code reads as follows:-
173. Report of police officer on completion of investigation.
xx xx xx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
12. Thus, there is no doubt that the police has been given plenary power to investigate cognizable cases without the permission and intervention of the magistrate empowered to take cognizance of the offence on filing of a police report. But this does not mean that the magistrate has no power to direct investigation of a cognizable offence. As noted above, that power has been specifically conferred on the magistrate.
13. The question for determination is whether or not the Magistrate is debarred from ordering further investigation in a case where the police after investigation of the matter files a challan and the Magistrate takes cognizance of the offence. There are at least three judgments of the Supreme Court which show that the trial court is not precluded from ordering further investigation even in a case where cognizance of the offence has been taken by it or where the court has accepted the closure report filed by the police. In Union Public Service Commission v. S. Papaiah and others, 1997 VII AD S.C. 265, (decided on September 11, 1997) the U.P.S.C. filed a complaint with the Joint Director, C.B.I., to the effect that in respect of conduct of Indian Forest Service Examination for the year 1992, at one of the centres of the examination at Hyderabad, respondent No.1 appeared as a candidate and used unfair means in collusion and in connivance with the Supervisor, in charge of the said centre. The C.B.I. filed a final report under section 173 of the Code in the Court of the Fifth Metropolitan Magistrate, Hyderabad, seeking closure of the case without informing the U.P.S.C. The Fifth Metropolitan Magistrate returned the final report as it found that copy of the notice required to be issued to the complainant-U.P.S.C. by the C.B.I. had not been filed along with it. Subsequently, again a final report was submitted by the C.B.I. to the court of the Fifth Metropolitan Magistrate along with a copy of the notice sent by the C.B.I. to the U.P.S.C. The Fifth Metropolitan Magistrate once again returned the final report to the C.B.I. for want of proof of service of notice on the U.P.S.C. with a direction that in the notice to be served by the C.B.I. upon the U.P.S.C. it should be mentioned that the U.P.S.C. may file objections to the final report. Again for the third time the C.B.I. filed the final report. Again for the third time the C.B.I. filed the final report but without carrying out the direction of the Metropolitan Magistrate inasmuch as neither a fresh notice was issued nor was U.P.S.C. told that it could file objections to the final report. This time again the final report was returned by the Metropolitan Magistrate to the C.B.I. The U.P.S.C. by a communication dated January 23, 1995 to the Director, C.B.I., asserted that there was no proper investigation of the offence and the C.B.I. was not justified in filing the closure report. According to the U.P.S.C., there was need for reinvestigation as certain vital points raised in the complaint had not been touched at all by the investigating officer during the investigation. The C.B.I. in the meanwhile presented a final report fourth time to the Metropolitan Magistrate. This time final report was accepted by the Metropolitan Magistrate. The U.P.S.C. not knowing about the fate of the complaint, sent a reminder to the Director, C.B.I., asking for information regarding reinvestigation of the case. Thereupon, the Deputy Inspector General of Police, C.B.I., responded by saying that the closure report was filed in the court of the Fifth Metropolitan Magistrate on February 24, 1995 under section 173 of the Code. On hearing from the C.B.I., the U.P.S.C. filed a criminal miscellaneous petition before the Metropolitan Magistrate at Hyderabad seeking reinvestigation of the matter. It was pointed out that no notice was issued to the U.P.S.C. by the Metropolitan Magistrate before accepting the final report. The Metropolitan Magistrate while rejecting the petition of the U.P.S.C. pointed out that the final report had been accepted as the appellant had not filed any objections thereto. The Metropolitan Magistrate also held that since the order accepting the final report was a judicial order in criminal proceedings, no review was permissible under law. Dissatisfied by the order of the Metropolitan Magistrate, the U.P.S.C. filed a revision petition. This revision petition was dismissed by the first Additional Metropolitan Sessions Judge at Hyderabad. The matter was finally carried to the Supreme Court. It was noticed by the Supreme Court that the communication dated January 23, 1995 of the U.P.S.C. to the C.B.I. seeking reinvestigation of the case was not filed before the Metropolitan Magistrate while submitting the final report. It appears that the U.P.S.C. claimed further investigation of the matter before the Supreme Court. The Supreme Court while accepting the appeal of the U.P.S.C. held that the magistrate was not required to review his order but he could have ordered further investigation into the case under section 173(8) of the Code. In this regard the Supreme Court held as under:-
" 13. The appellant brought the contents of its communication dated January 23, 1995 to the notice of the learned Metropolitan Magistrate through its Misc. Petition No. 2040 of 1995 seeking "reinvestigation" but the learned Magistrate, rejected the petition vide order dated November 4, 1995 observing that "rightly or wrongly that Court had passed an order and it had no power to review the earlier order". Here again the learned Magistrate fell into an error. He was not required to "review" his order. He could have ordered "further investigation " into the case. It appears that the learned Metropolitan Magistrate over-looked the provisions of Section 173(8) which have been enacted to take care of such like situations also. That provision reads:-
xx xx xx The Magistrate could thus in exercise of the powers under Section 173(8) Cr.P.C direct the CBI to "further investigate" the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the 'new' report to be submitted by the investigating officer would be governed by sub-section (2) to (6) of Section 173 Cr.P.C. The learned Magistrate failed to exercise the jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained.
xx xx xx
15. Thus, for what we have said above we are of the opinion that the learned Magistrate was not justified in accepting the final report of the CBI and closing the case without any notice to the appellant and behind its back. The order of the learned Magistrate dated March 16, 1995 closing the case and of November 4, 1995 dismissing the petition filed by the appellant as well as the order of the learned Sessions Judge dated March 8, 1996 dismissing the revision petition are set aside. The matter is remitted to the learned Metropolitan Magistrate for its disposal in accordance with law. The learned Metropolitan Magistrate shall, in the larger public interest to ensure the purity of the examination conducted by the UPSC for All India Services, to select the best talent, issue directions under Section 173(8) Cr.P.C to the CBI to further investigate the case and collect further evidence keeping in view the points raised by the appellant in its communication addressed to the Director, CBI, dated January 23, 1995 (supra) (treating it as a 'protest petition') and then proceed further in the matter. It would be appropriate that further investigation to be carried out by the CBI under Section 173(8) Cr.P.C. is directed to be carried out by an officer, other than the officer who had earlier investigated the case and filed the final report seeking closure of the case. The learned Metropolitan Magistrate shall issue directions to that effect also to the investigating agency when calling upon them to under take further investigation under Section 173(8) Cr.P.C. The CBI shall be directed to complete the investigation expeditiously and proceed in the matter in accordance with law in the light of the observations made by us above."
(underlining supplied) Thus, it is apparent that the Supreme Court remitted the case to the Metropolitan Magistrate for disposal with the direction that in larger public interest the C.B.I. should be directed to further investigate the matter. It needs to be noted that the Supreme Court recognised the power of the magistrate under section 173(8) to order further investigation of offence by the police. It can, therefore, safely be stated that the magistrate before whom a report under section 173(2) is filed is empowered to direct the police to further investigate the matter under section 173(8) and to collect further evidence.
14. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh & Ors. , (decided on July 15, 1999), the Supreme Court held that section 173(8) of the Code did not preclude the police to conduct further investigation in the matter even after taking of the cognizance by the court. That was a case where the appellant obtained payments of large sums of money from the complainant on the assurance that he would heel the latter's daughter of an ailment from which she was suffering as the former was possessed of divine powers. When the condition of the child did not improve, the complainant lodged a complaint with the police under section 420 IPC. After investigation of the matter the police forwarded a closure report to the magistrate. However, the magistrate did not accept the report and ordered reinvestigation of the case. The appellant moved the High Court for quashing of the proceedings on the ground that the magistrate had no jurisdiction to order reinvestigation on receipt of the report. In this context the Supreme Court held as follows:-
"10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.),. The only rider provided by the aforesaid decision is that it would he desirable that the police should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
At this stage, we would like to dispel the impression, if any, that in the aforesaid case it was the police which sought permission to further investigate the matter. Rather the police had filed a closure report and it was on the direction of the magistrate that the police was required to conduct further investigation.
15. In Kashmeri Devi v. Delhi Administration and another, , one Gopi Ram was picked up by the police and taken to the police station where he was beaten to death. The case initially was registered under sections 302/342 I.P.C. against the police officers of Police Station Patel Nagar, but subsequently the case was converted to one under section 304 I.P.C. for the purpose of investigation. The appellant, wife of the deceased, moved the High Court under Article 226 of the Constitution for seeking transfer of the investigation of the case from Crime Branch of the Delhi Police to the Central Bureau of Investigation. However, the High Court did not interfere and dismissed the writ petition. The appellant thereafter filed a Special Leave Petition before the Supreme Court. The Supreme Court while disposing of the matter held that the police acted in a partisan manner to shield the real culprits and directed the trial court to exercise its powers under section 173(8) to direct the C.B.I. to conduct proper and thorough investigation. It is significant to note that this direction was given by the Supreme Court despite the fact that the police had completed the investigation and had filed the charge sheet in the trial court. In this regard the Supreme Court observed as follows:-
"5. After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar. The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by heating and torturing. the appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint......
6. ......... As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from 304 IPC to 323/34 IPC. Prime facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner. We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.
7. Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge-sheet has been submitted to exercise his powers under Section 173(8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly."
16. Thus, it is obvious that the Supreme Court specifically acknowledged the power of the Magistrate under section 173(8) of the Code to direct further investigation even after filing of a charge sheet.
17. In view of the aforesaid discussion we hold that the Magistrate is empowered to direct the police to further investigate the matter after the filing of the challan before it and even after taking cognizance of the offence and such a direction on the analogy of the decision of the Supreme Court in Union Public Service Commission v. S. Papaiah and others (supra) will not amount to review of its earlier order whereby cognizance of the offence was taken. Before, however, parting with this point we would like to refer to the decisions cited by the learned senior counsel for the petitioner. He first relied upon a two judge Bench decision of the Supreme Court in Randhir Singh Rana v. State being the Delhi Administration, 65 (1997) Delhi Law Times 207 (SC), (decided on December 20, 1996), which was also noted in the order of reference of the learned Single Judge. In that case it was held that the magistrate acting suo motu has no power to order further investigation after taking cognizance of the offence. This case, however, does not deal with a situation where an application is made to the magistrate for directing further investigation of the matter by the complainant or the police. Besides, as seen above, in at least three decisions of the Supreme Court, out of which two are decisions which were rendered after the decision in Randhir Singh Rana's case (supra), the power of the trial court, before whom police reports were filed, to direct the police to carry out further investigation have been recognised. There is no provision in the Code which bars the magistrate before whom the report under section 173(2) of the Code is filed to direct further investigation of the offence even in a case where cognizance has already been taken. All procedural laws are meant to do justice and not to stifle the same. In a given situation where a magistrate finds that the matter requires further investigation in view of the partisan attitude of the police there can be no bar to his directing the investigating agency to conduct further investigation in the case. The magistrate by giving such a direction does not trench upon the jurisdiction of the police who are empowered to further investigate the matter. The magistrate simply by asking the police to further investigate the matter in a sense is directing it to exercise the jurisdiction which has been conferred on the police under section 173(8) of the Code. Restricting the powers of the Magistrate will adversely affect the administration of justice. Magistracy cannot be made so powerless that it becomes incapable of correcting a wrong and advancing the cause of justice.
18. The learned counsel for the petitioner also relied upon the decision of the Supreme Court in R. Sarla v. T.S. Velu and others, 2000 S.C.C. (Cri) 823. That was a case where the High Court directed the investigating officer to take opinion of the Public Prosecutor for filing a charge-sheet. In that context it was held that there is no stage during which the investigating officer is legally obliged to take opinion of the Public Prosecutor or any authority, except the superior police officer in rank. It was also pointed out that the Public Prosecutor is appointed under section 24 of the Code for conducting any prosecution, appeal or other proceedings in court, but he is not involved in investigation. The Supreme Court noted that in the scheme of the Code there was no warrant for supporting or sponsoring the theory of any combined operation between the public prosecutor and an investigating officer for filing a report in the court. The question raised in that case was entirely different from the one which is involved in the present proceedings. Therefore, the petitioner cannot derive any support or sustenance for the argument that the magistrate has no power to direct further investigation of the case after taking cognizance of the offence by him.
19. Learned counsel for the petitioner finally urged that the learned magistrate was not right in directing further investigation of the matter as facts and circumstances of the case did not warrant passing of such a direction. We do not find any force in the submission as the learned magistrate has given cogent reasons for directing the police to further investigate the matter.
We answer the reference accordingly and dismiss the petition, being Crl. Misc. (Main) 113/97.