IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 51 of 2003 Mukesh Kumar Baniwal S/o Shri Kripal Singh Verma R/o West Canal Road, M ajra, Dehradun. ...…………. Petitioner Versus 1. State of Uttaranchal 2. Naresh Chandra Mishra S/o late Sri Bihari Lal Mishra R/o Village Baghi Patti, District Tehri Garhwal. ...…………. Respondents Mr. Arvind Vashistha, Advocate for the petitioner. Mrs. Mamta Bisht, Asstt. Govt. Advocate for respondent State. None appeared on behalf of respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the impugned order dated 06.03.2003, passed by the then Chief Judicial Magistrate, Tehri Garhwal, on Final Report No. 01 of 2002; State Vs. M.K. Baniwal, whereby said final report has been rejected and re-investigation has been directed to be made by another Investigating Officer. 2 2) Heard learned counsel for the parties present and perused the affidavits. 3) Brief facts of the case are that the petitioner is an Assistant Engineer with Uttar Pradesh Cooperative and Cold Storage Federation Limited (for short Pec.Fed.). The Pec.Fed. assigned some construction work relating to beautification of Betal Shila (in Dev Prayag) to a private contractor M/s S.R. Builders. The petitioner’s case is that it was the contractor who had to get the work done by engaging labour. Respondent No. 2, a village Pradhan / complainant, was engaged by said contractor to do certain work. He (complainant) lodged a first information report, after obtaining orders under Section 156(3) of Cr.P.C., against the petitioner that he did not get payment for the work done by him and got cheated. A Crime No. 01 of 2001 was registered in respect of offences punishable under Section 420, 467, 468, 471 of I.P.C. against the petitioner. After investigation, the police submitted final report No. 03 of 2001. The Magistrate on receipt of the final report, issued notices to the complainant, who filed protest petition. The Magistrate, after hearing the complainant, passed the impugned order dated 06.03.2003, rejecting the final report, and directing that reinvestigation be made by a different Investigating Officer, which is challenged in this petition. 3 4) Learned counsel for the petitioner submitted that the impugned order passed by the Magistrate is erroneous in law, as he has no power to direct reinvestigation in the matter. In this connection attention of this Court is drawn to Mithabhai Pashabhai Patel Vs. State of Gujarat (2009) 6 Supreme Court Cases 332, in which Apex court has observed in Para 12 and 13, as under: “12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. 13. It is, however, beyond any cavil that “further investigation” and “reinvestigation” stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a “State” to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran V. R. Udhayakumar opined as under: (SCC p. 415, para 7) 4 “7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub- section (8), but not fresh investigation or reinvestigation.” A distinction, therefore, exists between a reinvestigation and further investigation.” 5) In view of above principle of law, the impugned order appears to be erroneous in law, and liable to be set aside. Apart from this, on the facts also learned counsel for the petitioner submitted that during investigation it has been found that whatever payment was to be made by the Pec.Fed. (with whom petitioner was employed) was to be made to M/s S.R. Builders, who were the contractors. They have not made any complaint that they did not receive the amount. It is pleaded that infact the payment was made to said agency. If said agency has engaged Village Pradhan for doing its work, the matter was between the Village Pradhan and the construction company. It is argued that there is no criminal liability on the part of the petitioner as against the complainant, who was a rank outsider for him, as there was no privity of contract with the complainant. In the final report the Investigating Officer has also reported that neither the 5 petitioner / accused had taken any work from the respondent No. 2, nor was he liable to pay any amount to the complainant. 6) In the above circumstances, the petition under Section 482 of Cr.P.C. deserves to be allowed. Accordingly, the same is allowed. The impugned order dated 06.03.2003, passed by the Chief Judicial Magistrate, Tehri Garhwal, on Final Report No. 01 of 2002, State Vs. M.K. Baniwal, is hereby quashed. (Prafulla C. Pant, J.) Dt. March 23, 2010. H. Negi 6