- (1.) VIJAY Kumar Verma-"Whether the Magistrate is empowered to pass the order for re-investigation or further investigation on the final report submitted by the police?" is the main question that falls for consideration in this revision, which has been preferred against the judgment and order dated 20.9.2003 passed by the Addl. Sessions Judge, Court No. 3, Aligarh in Criminal Revision No. 102 of 2003, Babu Khan v. State of U. P. and another.
(2.) BY the impugned judgment, the learned lower revisional court has allowed the revision and order dated 6.2.2003, passed by the Addl. Chief Judicial Magistrate, Court No. 8, Aligarh on the final report submitted by the police of P. S. Gonda, District Aligarh in Case Crime No. 196 of 2001 under Section 420, I.P.C. has been set aside. The Magistrate concerned vide order dated 6.2.2003 has passed the order for re-investigation under the provisions of Section 173 (8) of the Code of Criminal Procedure (in short, 'the Cr. P.C.') after rejecting the final report. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that an F.I.R. was lodged by the revisionist Gopi Singh at P. S. Gonda (Aligarh), where a case under Section 420, I.P.C. was registered at Crime No. 196 of 2001 against Babu Khan (opposite party No. 2 herein). After investigation, the police submitted final report on 15.12.2001, which was rejected by the Addl. Chief Judicial Magistrate Court No. 8, Aligarh vide order dated 6.2.2003 and order for re-investigation under the provisions of Section 173 (8), Cr. P.C. was passed. That order was challenged by the accused by means of Criminal Revision No. 102 of 2003, which was allowed by Addl. Sessions Judge, Court No. 3, Aligarh vide impugned judgment, whereby the order dated 6.2.2003 passed by the Magistrate has been set aside. Hence, this revision. I have heard arguments of Sri Hemendra Pratap Singh, learned counsel for the complainant/ revisionist, Sri Nasiruzzaman advocate, appearing for the accused/ opposite party No. 2 and learned A.G.A. for the State.
(3.) IT was submitted by the learned counsel for the revisionist that view of the learned lower revisional court that on final report, order for re-investigation or further investigation cannot be made is wholly erroneous and hence the impugned judgment being illegal should be set aside and the matter be sent back to the police station concerned for further investigation. The contention of the learned counsel of the revisionist was that the Magistrate is fully empowered under Section 156 (3), Cr. P.C. to pass the order for re-investigation or further investigation on the final report and the police has unfettered power of further investigation under Section 173 (8), Cr. P.C. On the contrary, it was contended by the learned counsel for the opposite party No. 2 that order for further investigation can be made only if the charge-sheet is submitted by the police and in the case of a final report, the Magistrate is not empowered to pass the order even for further investigation. It was also contended by the learned counsel for the opposite party No. 2 that re-investigation cannot be ordered in any case and hence, no illegality has been committed by the learned lower revisional court in setting aside the order dated 6.2.2003, as the learned Magistrate had passed wholly illegal order about re-investigation after rejecting the final report.;