- (1.) The accused-petitioners have filed this Criminal Misc.Petition under Section 482 Cr.P.C.with a prayer to quash and set aside the FIR No.9/2012 registered at Police Station Bander Sindri (District Ajmer) for the offences under Sections 143, 341, 323, 354 and 452 IPC and for offence under Section 3 (1) (x) of the Schedule Caste and Schedule Tribes (Prevention of Attrocities) Act, 1989 (hereinafter to be referred as "the Act"). Although, in the petition order dated 18.7.2012, passed by the Additional Chief Judicial Magistrate, Kishangarh (District Ajmer) whereby the learned Magistrate returned the final report along with case diary for re-investigation, has not been challenged, but during the course of hearing of the petition the aforesaid order has also been challenged.
(2.) Brief relevant facts for the disposal of this petition are that for an alleged incident of 24.1.2012, the respondent-complainant filed a complaint against the petitioners for offences under Sections 143, 341, 323. 354 and 452 IPC and Section 3 (1) (x) of the Act in the Court of Additional Chief Judicial Magistrate, Kishangarh (District Ajmer) which was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Bander Sindri, where FIR No.9/2012 was registered on 2.2.2013 for the aforesaid offences and initially investigation was conducted by Deputy Superintendent of Police, Police Circle Kishangarh and after investigation petitioners Shri Hanuman Bhadu, Shri Rajendra Bhadu and Shri Jagdish Bhadu were found to be involved for the offences punishable under Sections 323, 341, 354 and 452 IPC and for offence under Section 3 (1) (x) of the Act, but under the order dated 6.3.2012 of the Superintendent of Police, Ajmer the investigation was ordered to be conducted by Deputy Superintendent of Police, Circle Ajmer Rural and after this second investigation aforesaid three petitioners were again found to be involved in the incident for the aforesaid offences. The investigation was again changed and handed over to Additional Superintendent of Police Shahpura (District Bhilwara) under the order dated 25.4.2012 of I.G.Ajmer and as a result of this third investigation no offence of any kind was found to have been committed by the petitioners or any of them and F.R.No.62/2012 was prepared and submitted before the trial Court. Perhaps after submission of final report, a fresh order was passed by I.G.Ajmer and investigation was handed over to Additional Superintendent of Police (Crime & Vigilence), Ajmer. On the strength of this fresh order, an application was filed by the SHO Police Station Bander Sindri on 18.7.2012 before the trial Court with a prayer to return the case diary alongwith final report so submitted, so that the matter may further be investigated and the learned trial Court vide impugned order dated 18.7.2012 returned the case diary and final report. It is to be noted that in the meanwhile the final report being filed, trial Court issued notice to the complainant to file objection, if any, against the final report. In these circumstances, the present petition came to be filed on 13.8.2012 and by way of interim order dated 28.8.2012 the accused-petitioners were ordered not to be arrested and during the pendency of this petition in compliance of the order dated 17.9.2012, factual report of the case dated 4.10.2012 was filed before this Court which may be taken on record.
(3.) In support of the petition, learned counsel for the petitioner raised the following grounds:- (1) Even if for the sake of arguments the allegations made in the FIR and the facts stated therein are to be taken at their face value and considered to be true and correct in entirety, even then no offence is disclosed against petitioners or any of them as essential ingredients to constitute such offences are entirely lacking as the FIR has been lodged by the respondent-complainant with enmity due to political reasons. (2) Once after investigation negative final report has been filed, the same cannot be taken back even for the purpose of further investigation as provisions of Section 173 (8) Cr.P.C. are not applicable when negative final report is filed with the finding that no offence was found to have been committed by the accused. (3) Once negative final report is filed, it is for the Magistrate to accept or not to accept it. Magistrate can take cognizance either on the basis of FR itself or on the basis of protest petition and evidence produced in support thereof by the complainant under Sections 200 and 202 Cr.P.C., but the Magistrate cannot send it back even for further investigation at his own or on the prayer of the investigating agency. (4) In the present case, as soon as the FR was filed, notice was issued to the respondent-complainant to file objection, if any, against FR and the respondent despite duly served filed neither any objection nor protest petition and thereafter, course was not open to the Magistrate to return the case diary alongwith the FR on the prayer made by the SHO. (5) Power vests neither in the Magistrate nor in the investigating agency to order or undertake re-investigation/fresh investigation/denovo investigation in any circumstance, but in the present case the Magistrate without any legal authority only on the prayer of the SHO returned the case diary alongwith the FR for the purpose of re-investigation. (6) Fresh investigation can be undertaken in continuation of and supplemental to previous investigation and no fresh evidence can be collected in the garb of fresh investigation and the course of previous investigation cannot be changed, but in the present case on the strength of fourth investigation the course of previous investigation was entirely changed and it has now been found that three of the petitioners were involved in the incident. (7) As per Circular dated 3.8.2012 investigation cannot be changed more than three times, but in the present fourth investigation was ordered by I.G.Ajmer and thus, the report prepared on that basis is illegal and charge-sheet cannot be filed against any of the petitioners on the basis of investigation so conducted.;