ORDER
1. The short question that crops up for consideration in this petition is:
“Whether the Magistrate has jurisdiction to direct the investigating agency to re-investigate the matter”?
This question arises in the backdrop of a police complaint. The Deputy Director of Public Instructions, Bangalore, lodged a complaint against the accused/petitioners that, sanction to run a school by them had been obtained by creating fake documents and forgery. The said complaint was referred to the COD for investigation. The COD filed a ‘B’ Report. The learned Magistrate issued notice of this ‘B’ report to the complainant for which the complainant showed no interest. The third party filed an affidavit explaining certain circumstances bringing it to the notice of the Courts certain other facts. However, the accused persons committed fraud on the Government. The learned Magistrate acting upon these information supplied by the third party through his affidavit, directed the COD to re-investigate the matter. Aggrieved by the said order of the Magistrate, the accused have challenged the same seeking to quash the said proceedings solely on the ground that the Magistrate has no jurisdiction to direct for investigation.
2. Sri S.P. Shankar, learned Counsel for the petitioner reiterating the petition contentions submitted that, the learned Magistrate has erred in directing the COD to investigate the matter and relied on the few decisions of the Apex Court. The Apex Court in Abhinandan Jha and Others v Dinesh Mishra, has elaborately discussed on this question laid down the law as follows:
“Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a ‘final report’? Even in those cases, if the Magistrate agrees with the said report, he may, accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report”.
3. The Apex Court has reiterated this proposition of law in M/s. India Carat Private Limited v State of Karnataka and Another. In the light of this proposition of law, the further grievance of the learned Counsel for the petitioners is that, the learned Magistrate has referred the complaint for further investigation acting upon the affidavit filed by a third party.
4. Further investigation can only be made by the Magistrate under Section 156(3) of the Cr. P.C. if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation.
5. Entertaining a third party at that stage by the Magistrate though he was prepared to furnish an information is not contemplated as the Magistrate is required to form his opinion only upon a report submitted by the I.O. It is a dangerous proposition to allow third parties to intervene at the stage of Section 173 and act upon the said information. Therefore, the learned Magistrate is not right in entertaining an affidavit of a third party and acted upon that further information to direct the Investigating Agency to re-investigate the matter. What made the said third party withholding this information from the I.O. is not forthcoming. It is not known whether the investigating agency has not interrogated this witness (third party).
6. One another submission canvassed by Sri S.P. Shankar, learned Counsel for the petitioners is:
“Whether the third person instead of filing an affidavit in a complaint pending before the Magistrate could have filed a separate complaint under Section 200 of the Cr. P.C.”.
7. There is no prohibition for any person to approach the Magistrate with allegations of an offence and it is always for the learned Magistrate to act upon the said complaint in accordance with law.
8. However, in the light of the facts referred to in the impugned order and the complaint allegations itself, the order of the learned Magistrate directing the COD to further probe the complaint and re-investigate the matter cannot be stated to be without jurisdiction. I, therefore find no merit in the petition.
9. The petition is accordingly dismissed.