- (1.) U. S. Tripathi, J. The petitioner has filed this petition for issue of writ, order or direction in the nature of mandamus com manding the respondents to hand over the investigation of case crime No. 142 of 2000, State v. Ved Pmkash under Sections 342,376 and 506, I. P. C. , P. S. Musajhag District Budaun, in pursuance of F. I. R. lodged by respondent No. 4 against the husband of the petitioner to some other independent agen cy or the C. B. C. I. D. , for issue of direction in the nature of mandamus commanding the respondents not to allow the respondent No. 3 Station Officer, P. S. Musajhag to investigate into the matter in above case crime No. 142 of 2000, and for directing expeditious disposal of the bail applica tion of the husband of the petitioner.
(2.) THE petitioner is the wife of Vijay Kumar. It is alleged that in the year 1996 Sushil and Rajan Singh, sons of Ved Prakash R/o Dattaganj, district Budaun had committed gang rape on the petitioner regarding which she had lodged a report and a criminal case at crime No. 56 of 1996 was registered at P. S. Dattaganj under Sec tions 376 and 5061. P. C. against said Sushil' and Rajan Singh. THE police after inves tigation submitted charge sheet in the said case and the case was pending. However, the accused of the said case obtained order from this Court staying their arrest and they could not be arrested. THE above ac cused Rajan Singh and Sushil are sons of one Shatish Pathak a local leader and Ex. M. L. A. THE accused of the said case through their father and Station Officer, P. S. Musajhag, who was son of their father, were pressurising the petitioner and her husband to withdraw the said case of rape and in this connection they along with Station Officer, P. S. Musajhag came to the house of petitioner on 18-8- 2000. When the petitioner and her husband refused to withdraw the case they threatened to false ly implicate the husband of petitioner in some rape case. THEy procured one Smt. Noor Jahan, aged about 35 years, wife of respondent No. 4 a lady of loose character and provided money to respondent No. 4 and his wife. THE respondent No. 4 accord ingly, lodged a false report on 21-8- 2000 against Vijay Kumar husband of the petitioner under Sections 342,376 and 506 I. P. C. alleging that he along with two other persons committed rape on Sml. Noor Jahan on 20-8-2000 at 8. 30 P. M. in the way between Musajhag and Badaun, on the basis of which a case at crime No. 142/2000 under Sections 342,376 and 506 I. P. C. was registered, S. O. Musajhag himself was in vestigating the said case and since he was under influence of father of accused of case intimated on the report of the petitioner, he would not investigate the case fairly. THE petitioner moved application, to police and other higher authorities for transferring investigation to some other agency or C. B. C. I. D. but to no effect, therefore she had no other alternative remedy except to file this writ petition. We have heard Sri Vinod Prasad, learned counsel appearing for the petitioner' and the learned A. G. A. and have perused the record. The learned counsel for the petitioner contended that I. O. of the case crime No. 142 of 2000 was in hands and gloves with Rajan Singh and Sushil, who had committed rape on the petitioner and therefore, there was no hope of fair inves tigation and therefore, the investigation of case be handed over to some other agency. During course of argument, the learned counsel for the petitioner conceded that the police after investigation submitted charge-sheet in case crime No. 142 of 2000 against the submission of charge sheet in vestigation can be ordered as required by Section 173 (8) Cr. PC. In support of his above contention he placed reliance on case of Ram Lal Narag v. State (Delhi Ad ministration), AIR 1979 SC 1791. The case Of Ram Lal Narag v. State (Delhi Ad ministration) was under old Cr. PR. It was held in the said case that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exer cise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cog nizance of the case had been taken by the Magistrate. Neither Section 173 nor Sec tion 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigation on discovery of fresh facts. AIR 1969 Cal 316 and AIR 1951 Raj 131 and 1974 Cri. LJ 970 (Punj and Har) (Full Bench), overruled.
(3.) THE position after enforcement of New Code of Criminal Procedure changed and specific provision for further inves tigation was incorporated in Section 173 (8) Cr. PC. , which reads as under :- "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 for as may be, apply in relation to such report or reports as they apply in relation to a report for warded under sub-section (2 ). " The above decision of Ram Lal (supra) was again considered by the Apex Court in the case of Randhir Singh Rana v. State (Delhi Administration), 1998 (36) ACC 487 and (sic) has laid down that despite a Magistrate taking cognizance of an offence upon a police report, the right of police to further investigate even under the old 1898 Code was not exhaustive and the police could exercise such right often as necessary when fresh information come to light. (This position is now beyond pale of controversy because of sub-section (8) of Section 173 of the new Code ). But then a rider was added stating that after cog nizance has been taken, then with a view to maintain independence of the magistracy and the judiciary, interests of the purity of administration of criminal justice and in terests of the comity of the various agen cies and institutions entrusted with dif ferent stages of such administration, it would "ordinarily by desirable that the police should inform the court and seek formal permission to make further inves tigation when fresh facts come to light. ";