IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc.6390-M of 2008 DATE OF DECISION : DECEMBER 10, 2008 DEEPAK NAGPAL ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr.SC Arora, Advocate, for the petitioner(s). Mr. Shilesh Gupta, DAG, Punjab. AJAI LAMBA, J. (Oral) This petition under Section 482, Code of Criminal Procedure, has been filed in challenge to order dated 13.2.2008 (Annexure P-2), passed by the Sub Divisional Judicial Magistrate, Fazilka. It has been pointed out that FIR No.33 dated 10.3.2006 under Sections 498-A, 406, 506, Indian Penal Code, was registered at Police Station, City Fazilka. The matter was thoroughly investigated under Chapter XII, Code of Criminal Procedure. No incriminating material was Criminal Misc.6390-M of 2008 2 found to indicate commission of the alleged offences. Accordingly, a cancellation report was presented in court. The complainant, however, gave a statement that she did not agree with the cancellation report. Under the circumstances, the matter was sent for reinvestigation vide order dated 22.9.2007 (Annexure P-1). The matter was again investigated and the conclusion drawn was that no offence was made out. Therefore, the cancellation report was filed. Yet again, the complainant gave a statement that she did not agree with the cancellation report. Vide the impugned order, the matter has again been referred for reinvestigation, which is under challenge in the present petition. Despite notice, none has put in appearance on behalf of complainant-respondent No.2 today. The documents placed before this court do not indicate any reason having been assigned by the complainant in challenge to the cancellation report filed by the Investigating Agency. It has not been pointed out as to which relevant witness had not been examined or any aspect of the case that had not been investigated. The conduct of the petitioner having been investigated twice, I find that the matter could not have been referred time and again without assigning any reason, for investigation under Section 173 sub-section (8), Code of Criminal Procedure. Be that as it may, the provisions of Section 173 sub-section (8), Code of Criminal Procedure provide for further investigation only. The Magistrate or the complainant cannot force the Investigating Agency to file a report under Section 173, Code of Criminal Procedure, showing Criminal Misc.6390-M of 2008 3 the petitioner as guilty. The Hon'ble Supreme Court of India has considered a somewhat related issue in Union of India v. Prakash P. Hinduja and another, (2003) 6 Supreme Court Cases 195. Exact reference to paras 13 and 14 is required to be made. Paras 13 and 14 read as under:- “13. The provisions referred to above occurring in Chapter XII of the Code show that detailed and elaborate provisions have been made for securing that an investigation takes place regarding an offence of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer in charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Sections 169 and 170 is to be that of the officer in charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under Section 173, the requisite details have to be submitted by the officer in charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by clause (d) of sub-section (2)(i) of this Section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of Section 7A thereof and Prevention of Corruption Act, 1988 by virtue of Section 22 thereof. 14. The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the Criminal Misc.6390-M of 2008 4 police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 Cr. P.C. The statutory provisions are, therefore, absolutely clear that the Court cannot interfere with the investigation.” This court while dealing with Harinder Pal Singh v. State of Punjab, 2004(2) RCR (Criminal) 307, has held in the following terms:- “13. Thus, from the aforesaid judgments, it is clear that the Police is the master of the investigation and formation of opinion as to whether on the material collected, a case is made out to place the accused for trial is the exclusive function of the officer in charge of the Police Station and/or his superior officers. The Magistrate, while accepting or rejecting the report, can not compel the investigating agency to change its opinion and to form a particular opinion or to submit the challan. The formation of the said opinion by the Police is the final step in the investigation and that final step is to be taken only by the Police and not by other authority. 14. In the light of the aforesaid legal position, I have examined the impugned order. In my opinion, the Special Judge, while not accepting the closure report for the second time and order re-investigation in the matter for the third time, has not given valid reasons. On the first occasion when the cancellation report was not accepted and direction was issued for further investigation, it was mentioned that Jump Slip in question was not taken into possession by the investigating agency. During the re-investigation, after taking all the relevant documents including the Jump Slip Criminal Misc.6390-M of 2008 5 into possession, the CBI again came to the conclusion that in view of the fact that Jump Slip was issued by the petitioner on 1.6.2000, there was no reason and motive for him to demand and accept bribe on 6.6.2000. After going through the contents of the cancellation report submitted by the CBI for the second time, in my opinion, there was no reason for issuing direction to further re-investigate the matter. The Special Judge could not reject the cancellation report submitted for the second time on the same ground and again order for further investigation. If at all he was not satisfied with the closure report submitted by the CBI for the second time and was of the opinion that report was not based on full and complete investigation, he could have taken cognizance of the offence under Section 190(1)(c) of the Code, but could not order for re-investigation of the matter for the third time. .........” Investigation is the statutory duty of the Investigating Agency under Chapter XII, Code of Criminal Procedure. It seems that the complainant wants the police to file a challan against the petitioner, which is not permissible in law. In such circumstances, the complainant can file a complaint, if so advised. The conduct of the petitioner having been investigated twice over, no further investigation could have been ordered, in the facts and circumstances of the case. The petition is allowed and the impugned order (Annexure P- 2) is hereby set aside. The complainant, however, would be at liberty to file a complaint, if so advised. December 10, 2008 ( AJAI LAMBA ) Kang JUDGE