- (1.) HEARD the learned counsel for the applicants, learned counsel appearing on behalf of the opposite party no. 3, the learned A.G.A. and perused the record.
(2.) THE instant petition has been filed with a prayer for quashing the proceedings of Misc. Case No. 288 of 2002 pending in the court of IVth Metropolitan Magistrate, Kanpur Nagar. THE opposite party no. 3 had lodged a first information report against the applicants, which was registered as case Crime No. 52 of 2002, under Section 392 I.P.C. police station Bajaria, district Kanpur Nagar. Later on the case was converted under Section 504 I.P.C. After investigation the Investigating Officer had submitted the final report on 29.5.2002. The complainant/opposite party no.3 filed a protest petition but the learned Magistrate has rejected the protest petition and accepted the final report by order dated 10.1.2003. Aggrieved by the order rejecting the protest petition the complainant filed a revision before the District Judge, Kanpur Nagar. The revisional court allowed the revision by an order dated 17.2.2003 and remanded the case to consider the protest petition of the complainant afresh. The trial court after perusing the case diary found that there are various lapses committed by the Investigating Officer while investigating the case as the statement of material witnesses were not recorded by him, therefore, the protest petition was accepted by the court below and rejected the final report. The Investigating Officer was directed to further investigate the case. The said order was passed on 6.3.2003. It is contended by the learned counsel for the applicants that the applicants are the responsible persons and have been maliciously prosecuted by the opposite party no.3 against whom many cases are pending and with ulterior motive the case has been filed against the applicants, therefore, the proceedings are liable to be quashed at the very inception. The learned counsel relied upon the decision of the Apex Court reported in 2009 (1) JIC 245 (SC) M/s. Eicher Tractor Limited and others Vs. Hari Har Singh and another where it is held that criminal proceedings initiated as a counter blast with mala fide intention can be quashed exercising inherent powers. Learned counsel appearing on behalf of the opposite party no.3 has contended that there is no illegality in the order passed by the court below in directing the Investigating Officer to further investigate the case. The Investigating Officer has not done the investigation in fair manner though the first information report was registered under Section 392 I.P.C. but after five hours converted into Section 504 I.p.C. and without recording the statements of complainant submitted the final report. The accused applicants had approached this court by filing the petition whereby the proceedings have been stayed by order dated 22.4.2003. when the order was to further investigate the case. The counter affidavit was filed on behalf of opposite party no.3 on 22.5.2003 but the applicants have not filed any rejoinder affidavit and today only the rejoinder affidavit has been filed. The applicants have protracted the case by obtaining an ex parte order on account of which the investigation has not been completed. The authority cited by the learned counsel for the applicant is not applicable in the present case as no cognizance has yet been taken and the court below has merely directed to further investigate the case. There is no illegality in the order passed by the court below. Hence the petition is misconceived and liable to be dismissed.
(3.) I have considered the rival submissions of the learned counsel for the parties. The court below exercises his power under Section 173 (8) Cr.P.C. directing the police to further investigate the case if the investigation is found to be tainted or otherwise unfair or is necessary in the ends of justice. There is nothing in Section 173 (8) Cr.P.C. to suggest that the court is obliged to here the accused before any such direction is made. During the stage of investigation the accused has no right of intervention as to the mode or manner of investigation. The prospective accused has no locus standi to challenge a direction for further investigation before cognizance or issuance of process against him and the police has statutory right to investigate the case, therefore, there is no illegality in the order rejecting the final report as the court below was dissatisfied by the investigation done by the Investigating Officer. In these circumstances the petition has no force and is hereby dismissed. Interim order, if any, is vacated. The Investigating Officer is directed to further investigate the case as directed by the court below and expeditiously submit its report as early as possible. However, during the pendency of the investigation no coercive steps shall be taken against the applicants.;