- (1.) B. B. Agarwal, J. This petition has been moved to quash the orders dated 17th April, 2002 (17th April, 2001 has wrongly been typed in petition) passed by ACJM VIII, Lucknow and 26th February, 2003 passed by Additional Chief Judicial Magistrate, Court No. 27, Lucknow as contained in Annexure Nos. 1 and 2 of this petition.
(2.) HEARD Sri Ritu Raj Awasthi, Advocate from the side of the petitioner and Sri V. K. Srivastava from the side of the State. It appears that an application under Section 156 (3) Cr. P. C. was filed in the Court of Magistrate concerned whereby the learned Magistrate vide order dated 17th April, 2002 passed order for registration of the case and for investigation of the same. No revision was preferred against that order. The order was revisable one, therefore, this petition under Section 482 Cr. P. C. is not maintainable against the said order on account of alternative remedy. In my opinion, this prayer is not maintainable. Learned counsel for the petitioner, during the course of argument did not press this prayer. Thus, this prayer for quashing of the order dated 17th April, 2002 is devoid of force and is rejected. Second prayer has been made for quashing of the order dated 26th February, 2003 passed by the Additional Chief Judicial Magistrate, Court No. 27, Lucknow. It appears that the case was investigated under the order of the Magistrate after 17th April, 2002 by the police and after investigation, the police submitted final report in the matter. The complainant filed a protest petition and after hearing the complanant of this case, the learned Magistrate passed the impugned order, whereby the final report was rejected and re-investigation of the case was ordered. It is argued that under the provision of Cr. P. C. the learned Magistrate had no power to order for re-investigation of the case. According to him, at the most under the provision of Section 173 (8) Cr. P. C. the learned Magistrate could direct the Inquiry Officer to further investigate the matter and to submit report, but he got no jurisdiction to order for re- investigation. In this connection, he placed reliance in (2002 (2) JIC 375 (All), Virendra Singh v. State of U. P. & Ors. . It has been observed by their Lordships as laid down as follows: " (a) Criminal Procedure Code, 1973, Section 173 (2) and (8) Re- investigation - Scope of - Magistrate directing re- investigation - Legality of - Provisions of Cr. P. C. only confers power of further investigation and no fresh or re- investigation - Hence, order of Magistrate cannot be sustained - 1998 (2) JIC 1015 (SC)-Relied on. " (b) Criminal Procedure Code, 1973, Sections 156 (3) and 173 (2) - Investigation by a particular officer - Note permission under law - 2002 (1) JIC 31 (SC)-Relied on. Their Lordships further observed as follows: Submissions made by the learned counsel are loaded with substance. In K. Chandra Shekhar etc. v. State of Kerala & Ors. , 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' he case, therefore, cannot be sustained in law. "
(3.) I have gone through the aforesaid ruling. In view of the rulings noted above the Magistrate, in my opinion, had no jurisdiction to pass order for re-investigation of the case and in the present case, as the learned Magistrate had passed the order for re- investigation, therefore, the order deserves to be set aside and the petition may be allowed. This petition is hereby allowed and the impugned order dated 26th February, 2003 passed by Additional Chief Judicial Magistrate, Court No. 27, Lucknow is hereby set-aside. However, it is made clear that the learned Magistrate has the liberty to pass appropriate order on the final report after considering the protest petition in accordance with law as observed in the body of this judgment. Petition allowed. .;