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Wednesday, July 15, 2015

“Whether the Magistrate should direct “further investigation” or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct “further investigation” or “reinvestigation” as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation.” 21. We respectfully concur with the said view. As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such investigation shall be supervised by the concerned Superintendent of Police. After the further investigation, the report shall be submitted before the learned Chief Judicial Magistrate who shall deal with the same in accordance with law. We may hasten to add that we have not expressed any opinion relating to any of the factual aspects of the case. 22. In view of the aforesaid analysis and conclusion, the order passed by the High Court is set aside except where it has held that the learned Magistrate could not have allowed another agency to investigate. We have clarified the position in the preceding paragraph. 23. The appeal stands disposed of accordingly.

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.866 OF 2015
                [Arising out of SLP (Crl.) No. 5702 of 2012]


CHANDRA BABU @ MOSES              ... Appellant
                                   Versus
STATE THROUGH INSPECTOR OF POLICE
& ORS.                                               ... Respondents


                               J U D G M E N T


Dipak Misra, J.
      Leave granted.

In this appeal, by special leave, the informant-appellant calls in  question
the defensibility of the  order  dated  13.12.2011  passed  by  the  learned
Single Judge of the High  Court  of  Judicature  of  Madras  at  Madurai  in
Criminal Revision No. 790/2011 whereby  he  has  annulled  the  order  dated
2.9.2010  passed  by  the  learned  Chief  Judicial  Magistrate,   Nagercoil
directing further investigation in exercise of power  under  Section  173(8)
of  the  Code  of  Criminal  Procedure  (CrPC)  and   also   directing   the
investigation to be carried out by C.B.C.I.D.; on  the  foundation  that  in
the obtaining fact situation there  are  no  exceptional  circumstances  for
ordering re-investigation.
As the facts would  unfurl,  the  appellant  filed  an  FIR  with  the  Sub-
Inspector of Police,  Kulasekaram  Police  Station,  upon  which  Crime  No.
119/2007 was registered u/s 147, 148, 341, 324, 323 and 307 of Indian  Penal
Code (IPC). The informant had alleged  that  on  05.06.2007  about  2  p.m.,
Manikandan,  Jegan, Murugan, Vijayan, Sunil and  some  others  attacked  him
with ‘Vettu Kathi’, knife and iron rod and in the said attack  he  sustained
multiple injuries. The motive behind the assault, as per the  FIR,  was  due
to business rivalry that existed between the appellant  and  Manikandan,  as
both are contractors. The Inspector of Police,  Kulasekaram  Police  Station
conducted  the  initial  investigation  and  subsequently   the   case   was
transferred  to  the  District  Crime   Branch   Police,   Kanyakumari   and
thereafter, the Inspector of Police, District Crime  Branch  filed  a  final
report before the learned Judicial Magistrate, Padmanabhapuram stating  that
the case was  a  mistake  of  fact.   The  learned  Judicial  Magistrate  on
intimation to the informant accepted the final report.
In the meantime, the appellant had filed a protest petition  dated  5.1.2009
forming the subject matter of Crl. M.P. no. 1974/2009 on  the  file  of  the
learned Judicial Magistrate praying therein to direct CBCID to  re-open  the
case and file a fresh report. However, as the final report had already  been
accepted before disposing the  protest  petition,  the  appellant  preferred
Crl. O.P. no. 1727/2009 before the Madurai Bench of the Madras  High  Court.
The High Court called for  the  report  from  the  Magistrate’s  Court  and,
thereafter, set aside the order accepting the final report and directed  the
Magistrate to consider the final report along with the protest petition.
The learned Magistrate vide order dated  29.07.2009  dismissed  the  protest
petition. It took note of the decisions in Hasanbhai  Valibhai  Quareshi  vs
State of Gujarat and Ors.[1] and Hemant Dhasmana vs  CBI  and  Anr.[2],  and
held that as the investigation officer had examined  all  the  witnesses  as
averred by the informant and received the evidence and as no  new  witnesses
were cited  to  be  examined,  there  was  no  justification  for  directing
reinvestigation of the case.  It further directed that the protest  petition
to be treated as a separate private complaint.
Being  aggrieved  by  the  said  order,  the  appellant  preferred  Criminal
Revision Petition, i.e., Crl. R.C. No.  458  of  2009  in  the  High  Court.
Before the High Court,  the  appellant  contended  that  the  order  of  the
Magistrate was based on the acceptance of the final report submitted by  the
police and the order did not reflect any application of mind  on  his  part.
It was further urged  that  the  order  was  bereft  of  discussion  of  the
evidence gathered by the Investigating Officer, and  that  apart  there  was
total non-application of mind either for  acceptance  or  rejection  of  the
statements of the witnesses filed along with  the  final  report.  The  High
Court while setting aside the order of learned Magistrate observed that  the
lower court fell into error by neither discussing  the  material  available,
nor clearly spelling out  the  reasons   and  shirked  its  duty  by  merely
permitting the petitioner, therein, to pursue his cause by  way  of  private
complaint. The learned Single Judge, accordingly, allowed the  revision  and
concluded thus:-
“This Court has resisted from entering upon a discussion on  the  merits  of
the case or on the materials before it so as to avoid  prejudice  to  either
side.  With the aim is to avoid  prejudice  and  alleged  bias,  as  rightly
submitted by the learned  senior  counsel,  it  would  be  better  that  the
reconsideration of the final report and also the materials towards  arriving
at a finding of whether the case is  one  calling  for  further  proceedings
against the accused or otherwise, be left  to  the  judicial  discretion  of
another Court. Accordingly, the  Judicial  Magistrate,  Padmanabhapuram,  is
directed to forward all records pertaining to Crime no. 119 of 2007  on  the
file  of  the  respondent  police  to  the  Court  of  the  Chief   Judicial
Magistrate, Nagercoil within a period of two weeks from the date of  receipt
of a copy of this order. The Chief  Judicial  Magistrate,  Nagercoil  is  in
turn directed to consider the 173 report as also the  materials,  hear  both
the public prosecutor  and  the  de-facto  complainant  who  has  filed  the
protest petition and pass orders in accordance of law.”

After the remit, the Chief Judicial Magistrate, Nagercoil, took up the  case
for further enquiry. The Court after hearing  both  the  appellant  and  the
Assistant Public Prosecutor came to the conclusion  that  the  investigation
by the Inspector of Police, District Crime Branch had been  conducted  in  a
biased manner and the said authority had laboured hard to save  the  accused
persons and hence, the final report submitted by the  investigating  officer
was not acceptable. Thereafter, it took note  of  the  judgments  in  Hemant
Dhasmana (supra), Sonalai Soni vs State  of  Chattisgarh  and  Ors.[3],  and
Hasanbhai Valibhai Quareshi  (supra), and came to hold that in terms of  the
said judgments there is power under S.  173  (8)  of  CrPC  to  forward  the
complaint  for  further  investigation  and  resultantly  by   order   dated
02.09.2010 directed the Additional Director  General  of  Police,  CBCID  to
confer the power on the Inspector, CBCID, Nagercoil to investigate the  case
in Crime no. 119/2007 and file a report.
Being aggrieved by  the  said  order,  one  of  the  accused,  Jegan,  filed
Criminal Revision No. 790 of  2011.   The  High  Court,  vide  the  impugned
order, after discussing the evidence on record,  came  to  hold  that  there
were  material  discrepancies  in  the  evidence  brought  on  record   and,
therefore,  in  the  present  fact  situation  there  were  no   exceptional
circumstances for ordering re-investigation, and that apart, the  scheme  of
Section 173(8) CrPC only enables the investigating officer  to  request  for
further investigation. The High Court, accordingly, set aside the  order  of
the Chief Judicial Magistrate and  further  observed  that  as  the  learned
Judicial Magistrate in his order dated  13.07.2009  had  directed  that  the
protest petition was to be treated as  a  private  complaint,  the  de-facto
complainant still had an opportunity for  presenting  the  case  before  the
Court and no prejudice was caused to him.
We have  heard  Mr.  K.V.  Vishwanathan,  learned  senior  counsel  for  the
appellant and Mr. M. Yogesh Kanna, learned counsel for the State and Mr.  S.
Thananjayan, learned counsel for the respondent no.3.
It is submitted by Mr. Vishwanathan, learned senior counsel  that  the  High
Court has absolutely flawed by entering into the merits  of  the  case  when
the learned Chief Judicial Magistrate had only directed for  reinvestigation
by different investigating agency.  It is urged by him  that  if  the  order
passed by the Chief Judicial  Magistrate  is  read  in  entirety,  it  would
convey that he in actuality has directed for further investigation, but  has
used the expression “reinvestigation” as it was directing  investigation  to
be carried out by another agency.  It is  his  further  submission  that  in
view of the earlier order passed by the High Court, the  order  impugned  in
this appeal is wholly unsustainable.
Learned counsel for the private respondent no.3 in support of  the  decision
of the High Court has submitted that the learned  Magistrate  has  no  power
for directing reinvestigation, and hence,  the  order  passed  by  the  High
Court is absolutely impregnable.  It is also  his  submission  that  when  a
protest petition is filed and it has  been  directed  to  be  treated  as  a
private  complaint,  the  appellant,  in  no  manner,  is  prejudiced   and,
therefore, there is no warrant for interference in this appeal.
First, we shall dwell upon the issue whether the High Court, in exercise  of
the revisional jurisdiction, should have adverted to the merits of the  case
in extenso.  As the factual matrix would reveal, the  learned  Single  Judge
has dwelled upon in great detail on  the  statements  of  the  witnesses  to
arrive at the  conclusion  that  there  are  remarkable  discrepancies  with
regard to the facts and there is nothing wrong with the  investigation.   In
fact, he has noted certain facts and deduced certain conclusions, which,  as
we find, are beyond the exercise of revisional  jurisdiction.   It  is  well
settled in law that inherent as well as revisional  jurisdiction  should  be
exercised  cautiously.   Normally,  a  revisional  jurisdiction  should   be
exercised on a question of  law.   However,  when  factual  appreciation  is
involved, then it must find place in the  class  of  cases  resulting  in  a
perverse finding.  Basically, the power is required to be exercised so  that
justice is done and there is no abuse of power  by  the  Court.   (see  Amit
Kapoor v. Ramesh Chander[4]).
Judging on the aforesaid premises, we have no shadow of doubt that the  High
Court has adverted to the facts not to see the perversity  of  approach,  or
to see that justice is done, but analysed it from  an  angle  as  if  it  is
exercising  the  appellate  jurisdiction.   Therefore,  the   High   Court’s
conclusion with regard to the factual score is unsustainable.
Presently to the thrust of the matter, the controversy  before  the  learned
Single Judge was basically  two-fold,  namely,  whether  the  learned  Chief
Judicial Magistrate could have directed for  reinvestigation  and  secondly,
whether it could have directed for reinvestigation by another  investigating
agency.  To appreciate the said issues,  it  is  necessary  to  analyse  the
scheme of Section 190 of the CrPC.  The said provision reads as follows:-
“190.  Cognizance  of  offences  by  Magistrates.  –  (1)  Subject  to   the
provisions of this Chapter, any Magistrate  of  the  first  class,  and  any
Magistrate of the second class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence_

(a) upon receiving a complaint of facts which constitute such offence.
 upon a police report of such facts;
upon information received from any person other than a  police  officer,  or
upon his own knowledge, that such offence has been committed.

(2)   The Chief Judicial  Magistrate  may  empower  any  Magistrate  of  the
second class to take cognizance under sub-section (1) of  such  offences  as
are within his competence to inquire into or try.”

In  Uma  Shankar  Singh  v.  State  of  Bihar[5],  a  two-Judge  Bench   was
considering the issue pertaining  to  the  power  of  the  Magistrate  under
Section  190(1)(b)  of  CrPC.   The  Court,  scanning  the  anatomy  of  the
provision, opined that the Magistrate is  not  bound  to  accept  the  final
report filed by the investigating agency under Section 173(2)  of  the  Code
and is entitled to issue process against an accused even  though  exonerated
by the said authorities.  The principle stated by the two-Judge Bench  reads
as follows:-
“19. … even if the investigating authority is of the view that no  case  has
been made out  against  an  accused,  the  Magistrate  can  apply  his  mind
independently to the materials contained  in  the  police  report  and  take
cognizance thereupon in exercise  of  his  powers  under  Section  190(1)(b)
CrPC.”

      The said principle was followed by another  two-Judge  Bench  in  Moti
Lal Songara v. Prem Prakash[6].
15.   In Dharam Pal v. State of Haryana[7], the  Constitution  Bench,  while
accepting the view in Kishun Singh v. State of Bihar[8], has held thus:-
“35.  In our view, the Magistrate has a role to play  while  committing  the
case to the Court of Session upon taking cognizance  on  the  police  report
submitted before him under Section 173(2) CrPC. In the event the  Magistrate
disagrees with the police report, he has two choices.  He  may  act  on  the
basis of a protest petition that may be filed, or he may, while  disagreeing
with the police report, issue process and summon  the  accused.  Thereafter,
if on being satisfied that a case had been made out to proceed  against  the
persons named in column 2 of the report, proceed to try the said persons  or
if he was satisfied that a case had been made out which was triable  by  the
Court of Session, he may commit the case to the Court of Session to  proceed
further in the matter.

36.   This brings us to the  third  question  as  to  the  procedure  to  be
followed by the Magistrate if he was satisfied that a prima facie  case  had
been made out to go to trial despite  the  final  report  submitted  by  the
police. In such an event, if the Magistrate decided to proceed  against  the
persons accused, he would have to proceed on the basis of the police  report
itself and either inquire into the matter or  commit  it  to  the  Court  of
Session if the same was found to be triable by the Sessions Court.”

16.   We have referred to the aforesaid authorities to reiterate  the  legal
position that a Magistrate can disagree with  the  police  report  and  take
cognizance and  issue  process  and  summons  to  the  accused.   Thus,  the
Magistrate has the jurisdiction to  ignore  the  opinion  expressed  by  the
investigating officer and independently apply his mind  to  the  facts  that
have emerged from the investigation.
17.   Having stated thus, we may presently proceed to deal  with  the  facet
of law where the Magistrate disagrees with the report and  on  applying  his
independent mind feels there has to be a  further  investigation  and  under
that circumstance what he is precisely required to do. In  this  regard,  we
may usefully refer to a notable passage from a  three-Judge  Bench  decision
in Bhagwant Singh v. Commr. of Police[9], which is to the following effect:-

“4. Now, when the report forwarded by the officer  in  charge  of  a  police
station to the Magistrate under sub-section (2)(i) of Section 173  comes  up
for consideration by the Magistrate, one of  two  different  situations  may
arise. The report  may  conclude  that  an  offence  appears  to  have  been
committed by a particular  person  or  persons  and  in  such  a  case,  the
Magistrate may do one of three things: (1) he  may  accept  the  report  and
take cognizance of the offence and issue process, or  (2)  he  may  disagree
with the report and drop the  proceeding,  or  (3)  he  may  direct  further
investigation under sub-section (3) of Section 156 and  require  the  police
to make a further report. The report may on the other hand  state  that,  in
the opinion of the police, no offence appears to  have  been  committed  and
where such a report has been made, the Magistrate again  has  an  option  to
adopt one of three courses: (1) he  may  accept  the  report  and  drop  the
proceeding, or (2) he may disagree with the report and taking the view  that
there is sufficient ground for proceeding further, take  cognizance  of  the
offence and issue process, or (3) he may direct further investigation to  be
made by the police under sub-section (3) of Section 156.  Where,  in  either
of these two situations, the Magistrate decides to take  cognizance  of  the
offence and to issue process, the informant is  not  prejudicially  affected
nor is the injured or in  case  of  death,  any  relative  of  the  deceased
aggrieved, because cognizance of the offence is taken by the Magistrate  and
it is decided by the Magistrate that the case  shall  proceed.  But  if  the
Magistrate decides  that  there  is  no  sufficient  ground  for  proceeding
further and drops the proceeding or takes the  view  that  though  there  is
sufficient ground for  proceeding  against  some,  there  is  no  sufficient
ground for proceeding against others  mentioned  in  the  first  information
report, the informant  would  certainly  be  prejudiced  because  the  first
information report lodged by him would have failed of  its  purpose,  wholly
or in part. Moreover, when the interest  of  the  informant  in  prompt  and
effective action being taken on the first information report lodged  by  him
is clearly recognised by the provisions  contained  in  sub-section  (2)  of
Section 154, sub-section (2) of  Section  157  and  sub-section  (2)(ii)  of
Section 173, it must  be  presumed  that  the  informant  would  equally  be
interested in seeing that the Magistrate takes  cognizance  of  the  offence
and  issues  process,  because  that  would  be  culmination  of  the  first
information report lodged by him. There can, therefore,  be  no  doubt  that
when, on a consideration of the report made by the officer in  charge  of  a
police station under sub-section (2)(i) of Section 173,  the  Magistrate  is
not inclined to take cognizance  of  the  offence  and  issue  process,  the
informant must be given an opportunity of being heard so that  he  can  make
his submissions to [pic]persuade the Magistrate to take  cognizance  of  the
offence and issue process. We are accordingly of the view  that  in  a  case
where the Magistrate to whom a report is forwarded under sub-section  (2)(i)
of Section 173 decides not to take cognizance of the  offence  and  to  drop
the proceeding or takes the view that there  is  no  sufficient  ground  for
proceeding against some of the persons mentioned in  the  first  information
report, the Magistrate must give notice to the informant and provide him  an
opportunity to be heard at the time of consideration of the report.  It  was
urged before us on behalf of the respondents that if in such a  case  notice
is required to be given to the informant, it  might  result  in  unnecessary
delay on account of the difficulty of effecting service  of  the  notice  on
the informant. But we  do  not  think  this  can  be  regarded  as  a  valid
objection against the view we are taking, because in  any  case  the  action
taken by the police on the first information report has to  be  communicated
to the informant and a copy of the report has to be supplied  to  him  under
sub-section (2)(i) of Section 173 and if that be  so,  we  do  not  see  any
reason why it should be difficult to serve notice of  the  consideration  of
the report on the informant. Moreover,  in  any  event,  the  difficulty  of
service  of  notice  on  the   informant   cannot   possibly   provide   any
justification for depriving the informant of the opportunity of being  heard
at the time when the report is considered by the Magistrate.”

18.   Relying on the said paragraph, a two-Judge Bench  in  Vinay  Tyagi  v.
Irshad Ali[10], has opined thus:-
“37.  In some judgments of this Court, a view has  been  advanced,  [amongst
others in Reeta Nag v. State of W.B[11],  Ram  Naresh  Prasad  v.  State  of
Jharkhand[12] and Randhir Singh Rana v.  State  (Delhi  Admn.)[13]]  that  a
Magistrate cannot  suo  motu  direct  further  investigation  under  Section
173(8) of the Code or direct reinvestigation into a case on account  of  the
bar contained in Section 167(2) of the Code, and  that  a  Magistrate  could
direct filing of a charge-sheet where the police submits a  report  that  no
case had been made out for sending up an accused for trial. The gist of  the
view  taken  in  these  cases   is   that   a   Magistrate   cannot   direct
reinvestigation and cannot suo motu direct further investigation.

38.   However, having given our considered thought to the principles  stated
in these judgments, we are of the view that the  Magistrate  before  whom  a
report under Section 173(2) of the Code is filed, is  empowered  in  law  to
direct “further investigation” and require the police to  submit  a  further
or a supplementary report. A three-Judge Bench of  this  Court  in  Bhagwant
Singh has, in no uncertain terms, stated that principle, as aforenoticed.
[pic]
39.   The contrary view taken by the Court in Reeta Nag  and  Randhir  Singh
do not consider the view of this Court  expressed  in  Bhagwant  Singh.  The
decision of the Court in Bhagwant Singh in  regard  to  the  issue  in  hand
cannot be termed as an obiter. The  ambit  and  scope  of  the  power  of  a
Magistrate in terms of Section 173 of the Code was squarely  debated  before
that Court and the three-Judge  Bench  concluded  as  aforenoticed.  Similar
views having been taken by different Benches of this Court  while  following
Bhagwant Singh, are thus squarely in line with the  doctrine  of  precedent.
To some extent, the view expressed in Reeta  Nag,  Ram  Naresh  and  Randhir
Singh, besides being different on facts, would have to be examined in  light
of the principle of stare decisis.”

      And eventually the Division Bench ruled:-
“40. Having analysed the provisions of the Code and  the  various  judgments
as aforeindicated, we would state the following  conclusions  in  regard  to
the powers of a Magistrate in terms of  Section  173(2)  read  with  Section
173(8) and Section 156(3) of the Code:

40.1. The Magistrate has no power  to  direct  “reinvestigation”  or  “fresh
investigation” (de novo) in the case initiated on  the  basis  of  a  police
report.

40.2. A Magistrate has the power to  direct  “further  investigation”  after
filing of a police report in terms of Section 173(6) of the Code.

40.3. The view expressed in Sub-para 40.2 above is in  conformity  with  the
principle of law stated in Bhagwant Singh case by a  three-Judge  Bench  and
thus in conformity with the doctrine of precedent.

40.4. Neither the scheme of the Code  nor  any  specific  provision  therein
bars exercise of such  jurisdiction  by  the  Magistrate.  The  language  of
Section 173(2) cannot be  construed  so  restrictively  as  to  deprive  the
Magistrate of such powers particularly in face of the provisions of  Section
156(3) and the language of Section 173(8) itself. In fact, such power  would
have to be read into the language of Section 173(8).

40.5.  The  Code  is  a  procedural  document,  thus,  it  must  receive   a
construction which would  advance  the  cause  of  justice  and  legislative
object sought to  be  achieved.  It  does  not  stand  to  reason  that  the
legislature provided power of  further  investigation  to  the  police  even
after filing a report, but intended to curtail the power  of  the  court  to
the extent that even where the facts of the case and  the  ends  of  justice
demand, the court can still not direct the investigating agency  to  conduct
further investigation which it could do on its own.”

19.   We have reproduced the conclusion in extenso as  we  are  disposed  to
think that the High Court has fallen into error in its appreciation  of  the
order passed by the  learned  Chief  Judicial  Magistrate.   It  has  to  be
construed in the light of the eventual direction.  The order,  in  fact,  as
we perceive, presents that the learned Chief Judicial Magistrate was  really
inclined to direct further investigation but because he had  chosen  another
agency, he has used the word “reinvestigation”.  Needless to say, the  power
of the Magistrate to direct for further investigation has to  be  cautiously
used.  In Vinay Tyagi (supra) it has been held:
“The power  of  the  Magistrate  to  direct  “further  investigation”  is  a
significant power which has to be exercised sparingly, in exceptional  cases
and  to  achieve  the  ends  of  justice.  To  provide  fair,   proper   and
unquestionable investigation is the obligation of the  investigating  agency
and the court in its supervisory capacity is required to  ensure  the  same.
Further investigation conducted under the orders  of  the  court,  including
that of the Magistrate or by the police of its own  accord  and,  for  valid
reasons,  would  lead  to  the  filing  of  a  supplementary  report.   Such
supplementary report shall be dealt with as  part  of  the  primary  report.
This is clear from the fact  that  the  provisions  of  Sections  173(3)  to
173(6) would be applicable to such reports in terms  of  Section  173(8)  of
the Code.”

20.   In the said case, the  question  arose,  whether  the  Magistrate  can
direct for reinvestigation.  The Court, while dealing with the  said  issue,
has ruled that:-
“At this stage,  we  may  also  state  another  well-settled  canon  of  the
criminal jurisprudence that the superior courts have the jurisdiction  under
Section 482 of the Code or even Article 226 of the Constitution of India  to
direct  “further   investigation”,   “fresh”   or   “de   novo”   and   even
“reinvestigation”. “Fresh”, “de novo” and “reinvestigation”  are  synonymous
expressions and their result in law would be the same. The  superior  courts
are even vested with  the  power  of  transferring  investigation  from  one
agency to another, provided the ends of justice so demand  such  action.  Of
course, it is also a settled principle that this power has to  be  exercised
by the superior courts very sparingly and with great circumspection.”

      And again:-
“Whether the Magistrate should direct  “further  investigation”  or  not  is
again a matter which will depend  upon  the  facts  of  a  given  case.  The
learned Magistrate or the  higher  court  of  competent  jurisdiction  would
direct “further investigation” or “reinvestigation” as the case may  be,  on
the facts of a given case. Where the  Magistrate  can  only  direct  further
investigation,  the  courts  of  higher  jurisdiction  can  direct  further,
reinvestigation or even investigation de novo depending on the  facts  of  a
given case. It will be the specific order of the court that would  determine
the nature of investigation.”

21.   We respectfully concur  with  the  said  view.   As  we  have  already
indicated, the learned Chief Judicial Magistrate has basically directed  for
further investigation.  The said part of the order  cannot  be  found  fault
with, but an eloquent one, he could not have directed another  investigating
agency to investigate as that would not be  within  the  sphere  of  further
investigation and, in any case, he does not have the jurisdiction to  direct
reinvestigation by another  agency.   Therefore,  that  part  of  the  order
deserves  to  be  lancinated  and  accordingly  it  is  directed  that   the
investigating agency that  had  investigated  shall  carry  on  the  further
investigation and such investigation shall be supervised  by  the  concerned
Superintendent of Police.   After  the  further  investigation,  the  report
shall be submitted before the learned Chief Judicial  Magistrate  who  shall
deal with the same in accordance with law.  We may hasten  to  add  that  we
have not expressed any opinion relating to any of  the  factual  aspects  of
the case.
22.   In view of the aforesaid analysis and conclusion, the order passed  by
the High Court is set aside except  where  it  has  held  that  the  learned
Magistrate could not have allowed another agency to  investigate.   We  have
clarified the position in the preceding paragraph.
23.   The appeal stands disposed of accordingly.


                                              ............................J.
                                                               [Dipak Misra]



                                              ............................J.
                                                           [V. Gopala Gowda]
New Delhi
July 7, 2015

-----------------------
[1]     (2004) 5 SCC 347
[2]     (2001) 7 SCC536
[3]     2005 Crl.L.J. 4461 (Chattishgarh)
[4]     (2012) 9 SCC 460
[5]     (2010) 9 SCC 479
[6]     (2013) 9 SCC 199
[7]     (2014) 3 SCC 306
[8]     (1993) 2 SCC 16
[9]     (1985) 2 SCC 537
[10]    (2013) 5 SCC 762
[11]    (2009) 9 SCC 129
[12]    (2009) 11 SCC 299
[13]    (1997) 1 SCC 361

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