- (1.) S. S. Kulshrestha, J. This application under Section 482 of the Code of Criminal Procedure (the Code) has been brought for quashing the order dated 1. 10. 2007 passed by the learned Chief Judicial Magistrate, Gautam Budh Nagar in Criminal Case No. 8422 of 2007, Sfafe of U. P. v. Ashok K. Aggarwal, whereby taking cognizance of the offences under Sections 406/420/379/448ipc in Case Crime No. 89709/758/06 of 2006, registered at P. S. Sector 20, NOIDA, Gautam Budh Nagar on the charge-sheet submitted by the police under Section 173 (1) of the Code.
(2.) IT is said that the entire case has been fabricated against the applicant. Whatever the allegations have been attributed they all relate to the period (1. 1. 2006) when he was working in the capacity of the President and Djrector of the com plainant-company but the report of this incident was lodged after inordinate delay. The applicant after making substantial contribution to the growth of the company of the complainant left it on 28. 2. 2006 and joined another group. He was taken to high esteem in the Industrial Group and was also one of the directors of B. H. E. L. He had unnecessarily been draggedrinto these proceedings. The allegations with regard to non-vacating of the House No. B-115, Sector 26, NOIDA and also non-refund of sum of Rs. 1,22,500/- are all a matter of civil nature. Further such allega tions have been attributed with ulterior motive. Even when applicant was paid his provident fund gratuity, superannuation fund, leave encashment amount Rs. 50 lacs in the months of January and February, 2006, such outstanding dues were not shown against him. No amount of the company is due against the applicant. On the other hand applicant's claims which are in the tune of crores of rupees have not been settled by the complainant-company. It has next been contended that the applicant was being harassed by the O. P. No. 2 by bringing one or the other proceedings. Even the complainant in tended to get the House No. B-115, Sector 26, NOIDA vacated by forceful and illegal means. Resultantly appellant had to bring Suit No. 533 of 2006 for injunc tion in the Court of the Civil Judge (Sr. Division), Gautam Budh Nagar for restrain ing the complainant-company to interfere into his possession till due process of law is adopted. The FIR was also got registered by the complainant-company at case crime No. 89709/758/06 so as to cause damage to the reputation of the applicant who had unblemished career in the profession. The allegations with regard to the non-return of the C. D. and certain other records, earlier accusations were made against one Sri Deepak Vashistha and report was lodged at Crime No. 89709/235/06 under Section 406, IPC at P. S. Sector 20, NOIDA, Gautam Budh Nagar and now that blame has been designed to be shifted against appli cant. Police made extensive investigation in Case Crime No. 89709/758/06 of 2006 and submitted final report on 27. 2. 2007. As against that final report protest petition was filed by the complainant on 1. 5. 2007. That protest petition was treated as complaint case by the learned Magistrate vide his order dated 28. 5. 2007. Statement of the witnesses were also recorded under Sections 200 and 202 of the Code by the learned Magistrate and cognizance for the offences under Sec tions 406/420/379/448, IPC was taken. The investigating officer, however, moved an application on 26. 4. 2007 before the Chief Judicial Magistrate for the grant of permission for feinvestigation/further investigation. That request was declined by the learned Magistrate on 24. 5. 2007. The investigating officer proceeded at his own for further investigation in defiance of the order of learned Magistrate and submitted charge-sheet for the offences under Sections 406/420/379/448, IPC in Case Crime No. 89709/758/06 of 2006. The learned Magistrate had taken cogni zance of the offences vide the order dated 1. 10. 2007 and issued summons against the applicant.
(3.) FIRST and foremost point raised in this application by the learned Counsel for the applicant is that the police had no power to proceed for making further investigation without the permission of the learned Magistrate. Before appropriat ing an answer to this moot question, a brief resume of the facts may be made. Police earlier submitted final report in Case Crime No. 89709/758/06 of 2006 for the offences under Sections 406/420/379/448, IPC against the applicant. The learned Judicial Magistrate, to whom the final report was forwarded under sub section (2) (l) of Section 173 of the Code after giving notice of the hearing to the informant, fixed the date for the consideration of the report vide his order dated 1. 10. 2007. After taking into consideration the evidence and materials in the case diary treated the protest petition as complaint case and recorded the statement of the witnesses under Sections 200 and 202 of the Code. After the conversion of the protest petition as complaint case an application in case crime No. 89709/ 758/06 was moved by the investigating officer for seeking permission to make further investigation and the learned-Magistrate vide the order dated 24. 5. 2007 denied permission as no one was there to press that application. It is submitted by the learned Counsel for the complainant that investigat ing agency could not be tied down on the ground that once the final report has been submitted he is debarred to take up further investigation. Sub-section (8) of Section 173 of the Code permits further investigation and even de-hors any direc tion from the Court as such, it is open to the police to conduct proper investiga tion even after the Court, took cognizance of any offence on the strength of the police report earlier submitted. Before proceeding for making such further investi gation it is only desirable t6 give information to the learned Magistrate and in the instant case that information was given by the investigating officer to the learned Magistrate by moving an application. To the contrary from the side of the appli cant it has been submitted that the police should inform to the Court and seek formal permission to make further investigation when fresh facts come to the light instead of being silent over the matter. The powers of the police to conduct further investigation envisaged therein, can be triggered into motion only at the instance of the Court. The Hon'ble Apex Court in the case of Ram La/ Narang v. Sfate (Delhi Administration), 1979 (2) SCC 322 had also observed as under: ". . . . . . . What action a Magistrate is to take in accordance with the provi sions of the Cr. P. C. in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great sub stance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the co mity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. ";