- (1.) MITHLESH Chaudhary, J. Heard Sri Dilip Kumar, learned Counsel for the petitioner, the learned AGA representing the State and Sri G. C. Saxena, learned Counsel representing respondent No. 2.
(2.) THE writ petition seeks issuance of a writ in the nature of certiroari quashing the FIR of case crime No. 18 of 2000 under Section 147, 323, 504 and 506 IPC and Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Nanauta District Saharanpur as well as the order dated 21-7-2001 passed by the Additional Chief Judicial Magistrate, Deobandh, District Saharanpur in case No. 133 of 2001, Sunita v. Virendra and others. A perusal of the impugned FIR prima facie indicates commission of cognizable offence and hence we are not persuaded to quash the same at this stage. So far as question of the impugned order dated 21-7-2001 is concerned, it would appear that on application under Section 156 (3) of the Crpc, learned Magistrate directed the police to register and investigate the case under appropriate provision of law. The police on investigation seems to have submitted a final report against which protest petition was filed by the complainant Respondent No. 2. Upon hearing the protest petition, learned Magistrate passed the impugned order dated 21-7-2001 thereby directing the police officer Sheo Ram Yadav to re- investigate the case. The impugned order has been sought to be quashed firstly on the ground that the re-investigation is not permissible in law and secondly that it is vitiated by reason that the learned Magistrate has specified a particular officer for re- investigating the case. Submissions made by the learned Counsel are loaded with substance. In K. Chandra Shekhar etc. v. State of Kerala and others, 1998 (2) JIC 1015 (SC) : 1998 (37) ACC 136, Hon'ble Supreme Court has held that even after submission of police report under 173 (2) of the Code of Criminal Procedure on completion of investigation the police has a right of further investigation under sub-section (8) thereof but, not fresh investigation 'or' re-investigation. Further investigation is therefore, in the continuation of earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. The direction given by the learned Magistrate to 're-investigate' the case therefore, cannot be sustained in law.
(3.) THE order passed by the learned Magistrate is also not sustainable due to the reasons that he has directed a particular officer to re-investigate the case. In Hemant Dhasmana v. Central Bureau of Investigation and another, 2002 (1) JIC 31 (SC) : 2001 (43) ACC 570 at page 575, it has been laid down by the apex Court that it is not within the province of the Magistrate while exercising the power under Section 173 (8) of the Code of Criminal Procedure to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. We, therefore, do not find any justification to quash the impugned FIR at this stage. Accordingly the writ petition succeeds and is allowed in part. The impugned order dated 21-7-2001 passed by the learned Magistrate is quashed with a direction that learned Magistrate concerned shall pass the order afresh in accordance with law. Petition allowed. .;