(o^ ^F^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (Cr.) N0. 5245 OF 2008 PETITIONER RESPONDENTS Nitesh Kumar Jain, S/o Moti Lal Jain, Aged about 24 years, R/o Sector 2,Street No.16, Quarter No.16-B,Bhilai Nagar, District Durg (CG) Versus 1. State of Chhatlisgarh, through Secretary, Home Department, D.K.S. Bhawan, Raipur (CG). 2. Director General of Police, Police Head Quarter, Raipur (CG). 3. Superintendent of Police, Kanker, District Kanker (CG) 4. Sub Divisional Officer of Police, Bhanupratappur, District Kanker (CG) 5. Virendra Satpathi, Station House Officer, Police Station Bhanupratappur, District Kanker (CG) 6. Sub Inspector, Kamlesh Singh Thajkur, Police Station Bhanupratappur, District Kanker (CG) 7. Neeraj Chopda, S/o Late Lal Chand Chopda, Aged about 30 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) 8. Kshitij Chopda, S/o Late Lal Chand Chopda, Aged about 28 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) 9. Deepesh Chopda, S/o Late Lal Chand Chopda, Aged about 22 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) 10. Dharmendra Chopda, S/o Late Shri Pokhraj Chopda, Aged about 44 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) 11. Ritesh Sancheti,S/o Shri Uttamchand Sancheti, Aged about 25 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) f^ - ^- 12. Prakash Chand Bafna, S/o not known, Aged about 45 years, R/o Sambalpur, Police Station Bhanupratappur, District Kanker (CG) (Writ petition under Article 226 ofthe Constitution of india) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Vivek Sharma, counsel for the petitioner. Shri M. P.S.Bhatia, Dy. Govt. Advocate for the State. ORAL ORDER (Passed on this 11th day ofApril, 2009) With the consent of learned counsel appearing for the parties, the petition is heard finally. 2) Shri Vivek Sharma, learned counsel appearing for the petitioner would submit that initially a complaint was made by the petitioner against the respondents No.6 to 12 for having committed offence punishable under Sections 147,149,294, 506-B, 325, 346,347 and 323 of the Indian Penal Code. On the basis of the said complaint, investigation was initiated and charge sheet was filed in the Court of Judicial Magistrate First Class, Balod in Crime No. 123/2007. Learned counsel would further submit that the Investigating Officer i.e., Respondent No.5 has not conducted proper enquiry. Accordingly, a complaintwas made to the Director General of Police for getting the enquiry conducted by a senior officer (Annexure P-3). Now, the charge sheet has been filed before the competent Court. If the enquiry has not been properly conducted, the Magistrate is fully competent under the provisions of Section 156 (3) of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") to direct further investigation. Learned counsel would next submit that the investigation against the respondent No.5 can be made only by a senior officer, which cannot be directed by the Magistrate in exercise of power under the provisions of Section 156 (3) of the Cr.P.C. 3) Shri Vivek Sharma, in his rejoinder would submit that the investigation should be conducted by a Police Officer superior in rank to the Station House Officer Police Station as per the provisions of (oc/ z- hu»..- Section 36 of the Cr.P.C., but in the present case no steps have been taken for conducting proper enquiry. In support of his contention, learned counsel placed reliance upon of the decision of Supreme Court in Sakiri Vasu vs. State of U.P. and others1. In the said decision the Supreme Court observed as under: "17. In our opinion Section 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.1. R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation." 4) Per Contra, learned counsel for the State would submit that there is no provision that further investigation should be conducted by the Superintendent of Police, as the Superintendent of Police is not an investigating officer under any provisions of law. Once the matter is pending consideration before the Magistrate, the learned Magistrate can decide asto whether further investigation is necessary in the facts ofthe case and if it is found that the further investigation is necessary, the investigation can be directed to be conducted by any other officer not by respondent No.5 alone. 5) I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. This Court cannot direct the concerned Superintendent of Police to investigate the matter afresh under the provisions of Section 1 56 (3) or Section 36 of the Cr.P.C. when matter is pending consideration before the Judicial Magistrate First Class. Therefore, 1 do not feel proper to pass any comment or express any opinion on the investigation asto whether it is proper or improper. At this stage, when the Judicial Magistrate is seized of the matter, power under section 1 (2008) 2 SCC 409 ^^l. o5' 36 of the Cr.P.C. cannot be invoked by a police officer to get the matter conducted by the superior officer on its own. The petitioner has not made out a case where a departure should be made from the statutory procedure as has been prescribed under the provisions of the Cr.P.C. 6) Applying the well settled principles of law as enunciated by the Supreme Court in Sakiri Vasu (supra) and for the reasons mentioned hereinabove, this petition stands disposed of. Consequently, I.A.No.1 also stands disposed of. Liberty is reserved to the petitioner to move the Judicial Magistrate wherein the case is pending consideration for appropriate relief, if so advised. __-_— Sd/- Satish K. Agnihotri Judge Tumane