G.B.Singh - (1.) THIS is a criminal revision against the order dated 15-9-1988 passed by the Special Judge, Barabanki, recalling his order dated 12-8-1988 and fixing a date to proceed with the sessions trial.
(2.) A charge sheet for offences under Sections 8/18/21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was submitted against the revisionists by the Station Officer of P. S. Zaidpur on 2-3-1988 whereupon the Chief Judicial Magistrate, Barabanki, took cognizance and committed the case to the Court of Sessions on 8-4-1988. The sessions trial is pending before the Special Judge, Barabanki. On 10-5-1988 the Special Judge framed charges against all the accused and fixed 1-6-1988 for evidence It appears that the case could not be taken up on 1-6-1988 and it was adjourned to 12-8-1988 on that date an application was moved on the allegation that the State Government vide its order dated 30-4-1988 has entrusted the matter for further investigation to CB, CID, Uttar Pradesh and permission for further investigation under section 173 (8) CrPC may be given. Learned Special Judge on that application passed the following order :- "Heard L. C. for State. In the interest of justice the application is allowed " By,a separate order learned Special Judge adjourned the hearing of the case to 14-9-1988. From the impugned order it appears that none appeared on that date on behalf of CB, CID, Uttar Pradesh to intimate that court what was the stage of investigation. The application on behalf of the accused-revisionists had, however, been moved for dropping the proceedings till the report of CB CID, Uttar Pradesh is received. This application was opposed on behalf of the State. The State Counsel insisted that the prosecution witnesses were present and their statements may be recorded. The learned Special Judge rejected the application moved on behalf of the accused observing that none was present on behalf of the CB, CID, Uttar Pradesh to inform about the Stale and result of further investigation and thus the CB, CID Uttar Pradesh was interested in postponement of the hearing of the case the learned Special Judge, therefore, recalled the order dated 12-8-1988 and directed the prosecution to give its evidence on the next date fixed i. e. 1-10-1988. Feeling dissatisfied with this order the accused have filed the present revision. In the counter affidavit filed on behalf of the State a preliminary objection has been raised about maintainability of the revision on the ground that it is against an interlocutory order. The impugned order is undoubtedly an interlocutory order because it was passed at an intermediate stage of the trial before final hearing of the case. It is purely an order of interim or temporary nature and does not decide the rights and liabilities of the parties. Section 397 (2) of the CrPC clearly lays down that powers of revision shall not be exercised in interlocutory order passed in any appeal, enquiry, trial or other proceedings. From all this it follows that the objection raised on behalf of the State, opposite party, has substance. Learned counsel for the revisionists in order to meet this preliminary objection argued that the criminal revision can be taken as a petition under Section 482 CrPC and made an oral request in this connection at the time of arguments and moved an application in writing also. Learned counsel for the revisionists in order to support his contention relied upon the case of Banka kandaswamy Reddy v. State of AP, 1982 CrLJ 393 in which it has been observed that even though section 397 (2) CrPC bars the exercise of revisional powers regarding interlocutory order, the court has got the necessary powers to secure the ends of justice by proceeding to consider the revision as an application made under section 482 CrPC. Since the point involved in the case is of important nature and the parties have argued it at length the prayer made on behalf of the revisionists can be allowed and the revision is accordingly treated as a petition under section 482 CrPC.
(3.) IT has been argued by the learned counsel for the petitioner that when the learned Special Judge had permitted the CB, CID, Uttar Pradesh for further investigation, there was no justification for recalling that order because no unreasonable delay has occurred in submission of the report by the CB, CID, Uttar Pradesh. There is much force in this contention. From the facts disclosed in the affidavit, counter affidavit, rejoinder affidavit and supplementary affidavits it is evident that the contention of the accused was that they have been falsely implicated in the case and on their representation the State Government entrusted the matter for further investigation to CB, CID, Uttar Pradesh, vide its order dated 20-4-1988. The CB, CID, Uttar Pradesh had conducted the checkup and when found that it is a fit case for further investigation the CB, CID, Inspector moved an application on 12-8-1988 for permission of the Special Judge for further investigation. IT has been held in Ram Lal Narang v. State (Delhi Administration), 1979 CrLJ 1346-(Supreme Court) that further investigation by police can be made even when cognizance for the offence had been taken. IT has been further observed in this connection at page 1357 :- "In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation". IT seems that in accordance with the aforesaid observation the CB, CID Uttar Pradesh Inspector sought for formal permission of the learned Special Judge for further investigation. The learned Special Judge found it a fit case for further investigation and accordingly granted permission prayed for by his order dated 12-8-1988 reproduced above. Though in the order dated 12-8-1988 the learned Special Judge did not make any clear observation to the effect that the hearing of the sessions trial shall remain stayed, by implication it can be inferred that he had postponed the hearing for further investigation and submission of the report by CB, CID, Uttar Pradesh. In Daya Shanker Singh v. State of U. P., 1988 ACrR 301 it has been observed that the Court is not bound to stay further judicial proceedings in all the cases of reinvestigation and the matter has to be considered on the facts and circumstances of each case. These observations also indicated that when permission for further investigation is given the proceedings can be stayed if the facts and circumstances of the case justify. The learned Special Judge while granting the permission for further investigation postponed hearing of the case. It indicates that he felt satisfied that the proceedings should be stayed for further investigation.;