- (1.) S. K. Phaujdar, J. Through this ap plication 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 charge- sheet as well as the entire criminal proceedings now pending before the IInd ACJM, Allahabad, in Criminal Case No. 253 of 1997, under Sections 147,148,149, 323,324,325,505,506 and 3071pc.
(2.) THIS criminal case arose out of case Crime No. 290aof 1994. After an FIR 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 charge-sheet was submitted, cognizance was taken and the present applicants were sum moned and this order was also challenged. It was urged that the Magistrate had wrongly relied on the materials placed before him alongwith 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 in juries, a board was subsequently con stituted under the orders of the Commis sioner of the Division and the injured per sons never appeared before the board and this would only suggest that there were no in juries at all. A question arose if the Commis sioner of the Division, an outright ad ministrative officer, could have given any direction in a matter which was pending investigation. The learned counsel relied upon 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 inves tigation 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 al lowed 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 investiga tion 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 exer cise of powers under Section 3 of the Police Act, the Chief Secretary of the State sug gested 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 un biased manner. Taking the due from this part of the decision, as reported in para graph 22 of the judgment, the learned counsel submitted that the Commissioner could have given such a direction upon the CMO 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 injured and had found injuries caused by pellets. One of such injuries was kept under obser vation and a fracture was observed to the corresponding injury when the injured was examined radio logically in the T. B. Sapru Hospital (a Govt. 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 con stituted under the orders of the Commis sioner. This aspect must be left for the consideration of the trial Court while ap preciating evidence and before the trial Court gives a finding of fact it would be too early for this Court to jump upon a con clusion on a point of fact in exercise of its powers under Section 482 Cr. P. C. 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 direc tion could not be given by a Magistrate who on the face of the materials, was satis fied that the final report was not an acceptable one.
(3.) IN the second investigation, that was directed by the Magistrate, police sub mitted a charge-sheet. The materials are proposed to be assailed on the ground, as stated above, that there was doubt regard ing 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 the evidence in the case-diary barring the alleged discrepancy on existence of injuries, the order of the Magistrate may not be interfered with. As a result, neither the order directing the investigation nor the order of cognizance and summoning the present applicants could be interferred with. Con sequently, there cannot be quashing of these orders of the criminal proceedings in the connected case. The application, thus, stands dismissed. Application dismissed. .;