- (1.) IN the instant writ petition under Article 226 of the Constitution of India the petitioner has challenged the order of Chief Security Commissioner, Railway Protection Force, North Eastern Railway, Varanasi, dated 11 -6 -2003 (contained in Annexure -8 to the writ petition), directing the Inspector, Railway Protection Force, Eastern Railway, Varanasi for re - investigation of Case Crime No. 4 of 2003 under Section 3 of the Railways Property (Unlawful Possession) Act and under Section 177 of the Railways Act. A further prayer has been made for quashing of the FIR dated 2 -4 -2003 (contained in Annexure -3 to the writ petition), and for issuing a writ of Mandamus commanding the respondents to release the remaining 4 DA Gas Cylinders seized pursuant to the impugned FIR.
(2.) LEARNED counsel for the petitioner contended that once investigation by the police is completed and report is prepared, re -investigation cannot be directed in view of the provisions contained in Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). Placing reliance on a judgment of the Apex Court in the case of K. Chandra Shekhar etc. v. State of Kerala and others, reported in 1998(2) JIC 1015, it is argued that after submission of police report, the police can only make further investigation as provided in sub -section (8) of Section 173 of the Code, but no fresh or re - investigation can be ordered. To appreciate the contention raised, it is necessary to set out the relevant facts as averred in the writ petition. It appears that the petitioner was given contract by the Director General of Supplies and Disposal, Government of India, New Delhi vide rate contract 3/RC 09020501/072002/Indus Gases/ 2002 - 2003/COAD/799 for supply of cylinders filled with oxygen gas. However, on1 -4 -2003, 90 cylinders alleged to be empty was loaded in Truck No. UP -65 -H/7916 of the petitioner as per terms and conditions of the rate contract. The Inspector, Crime Branch, Railway Protection Force, D.L.W., Varansi on suspicion, detained the vehicle and asked for relevant papers, such as, gate pass, challan of empty cylinders, tools etc. On search it was found that those 90 cylinders were not empty and gas worth Rs. 12,152/ - was found in those cylinders. Consequently, the impugned FIR dated 2 -4 -2003 was lodged alleging that the gas found in the seized cylinders was railway property and they were not empty. The Investigating Officer after investigation was of the view that no offence is disclosed against the petitioner and, therefore, he forwarded his report dated 7 -5 -2003 (Annexure -6) to the respondent No. 3, the Chief Security Commissioner for his approval for transmitting it to the concerned Magistrate as required under Section 158 of the Code. Respondent No. 3, however, having examined the report, found that not a single witness of prosecution has been examined by the Investigating Officer and, therefore, he did not accept the proposal for submitting final report in the Court and by the impugned order directed for re -investigation of the matter.
(3.) THE Code nowhere expressly prohibits or circumscribes the powers of police of re -investigation or further investigation of a cognizable offence. Sub -section (8) of Section 173 of the Code on which reliance is placed, provides that nothing in this section shall be deemed to preclude further investigation in respect of an offence after submission of report under sub - section(2) of Section 173. Sub -section (8) of Section173 reads as under: “(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 incharge 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).”;