S.K.Phaujdar - (1.) THROUGH this application under Section 482, Cr. P.C., the applicants challenge the order dated 4.11.1995. as per Annexure-19, the order dated 19.3.1997 summoning them in the trial, as per Annexure-21, as also the charge-sheet, as per Annexure-20 and have prayed for quashing of these orders and the chargesheet as well as the entire criminal proceedings now pending before the Ilnd A.C.J.M., Allahabad, in Criminal Case No. 253 of 1997, under Sections 147. 148, 149. 323, 324, 325. 505, 506 and 307. I.P.C.
(2.) THIS criminal case arose out of case Crime No. 290A of 1994. After an F.I.R. was lodged investigation was taken up and police had submitted a final report. The complainant had raised an objection which was heard by the Magistrate and he directed investigation afresh by his order dated 4.11.1995 which is under challenge. On a subsequent Investigation, a change-sheet was submitted, cognizance was taken and the present applicants were summoned and this order was also challenged. It was urged that the Magistrate had wrongly relied on the materials placed before him along with the objection against the final report and had wrongly directed further investigation. It was contended that all the injuries on the part of the complainant and others were manufactured ones and although there was a medical report supporting the injuries, a board was subsequently constituted under the orders of the Commissioner of the Division and the injured persons never appeared before the board and this would only suggest that there were no injuries at all. A question arose if the Commissioner of the Division, an outright administrative officer, could have given any direction in a matter which was pending investigation. The learned counsel relied on a decision of the Supreme Court in this connection, as reported in AIR 1980 SC 326. It was a case where the State Government had directed the Inspector General of Vigilance to take over investigation of a cognizable offence registered at a police station. The Patna High Court was of the view that this was an improper exercise of power. The State of Bihar went up in appeal and the Supreme Court allowed the appeal and held that there was no conflict between Section 3 of the Police Act and Section 173 (8) of the Cr. P.C. It was held that the power to direct investigation or further investigation was entirely different from the method and procedure of investigation and the competence of the person to investigate. In this case in exercise of powers under Section 3 of the Police Act, the Chief Secretary of the State suggested change of the investigating machinery in the circumstances disclosed by various reports and complaints. It was held that his action could not be said to be without authority. He acted in the public interest for vindication of truth in an unbiased manner. Taking the cue from this part of the decision, as reported in paragraph 22 of the judgment, the learned counsel submitted that the Commissioner could have given such a direction upon the C.M.O. to constitute a board to re-examine the injured persons. It is unnecessary to go into the legality or otherwise of the order of the Commissioner so far the present case is concerned. Materials are there on the record that the doctor at the Primary Health Centre had examined the injury and had found injuries caused by pellets. One of such injuries was kept under observation and a fracture was observed to the corresponding injuries when the injured was examined radiologically in the T. B. Sapru Hospital (a Government Hospital) at Allahabad. The existence of the injuries has not been negatived by any further examination. The only thing that has come in the averments of the applicants is that the injured did not present himself before the board constituted under the orders of the Commissioner. This aspect must be left for the consideration of the trial court while appreciating evidence and before the trial court gives a finding of fact, it would be too early for this Court to jump upon a conclusion on a point of fact in exercise of its powers under Section 482, Cr. P.C. 3. So far the order dated 4.11.1995 is concerned, final report is just an opinion of the Investigating Officer and the Magistrate is not bound to accept the same. It is within the competence of the Magistrate not to accept the final report and, if materials were there in the case diary, to take cognizance of an offence on such materials. Section 173 (8), Cr. P.C. speaks of a further investigation despite submission of a report (either charge-sheet or final report) earlier. If the police officer could make such an investigation, it does not appeal to reason why such a direction could not be given by a Magistrate who, on the face of the materials, was satisfied that the final report was not an acceptable one. In the second investigation, that was directed by the Magistrate, police submitted a charge-sheet. The materials are proposed to be assailed on the ground, as stated above, that there was doubt regarding existence of injuries. It has already been observed that it must be left to the trial court for appreciation of the evidence. It is within the competence of the Magistrate, it may be reiterated, to have acted upon the charge-sheet and when he takes cognizance upon the charge-sheet and when it is not the case of absolute absence of evidence in the case diary barring the alleged discrepancy or existence of injuries, the order of the Magistrate may not be interfered with.
(3.) AS a result, neither the order directing the investigation nor the order of cognizance and summoning the present applicants could be interfered with. Consequently, there cannot be quashing of these orders or the criminal proceedings in the connected case. The application, thus, stands dismissed.;