ORDER

Hansaria, J.

1. A peep into a little grey area of the criminal law has become necessary in this appeal, as we have been called upon to decide as to whether a Judicial Magistrate, after taking cognizance of an offence on the basis of a police report and after appearance of the accused in pursuance of the process issued, can order of his own further investigation in the case. That such a power is available to police after submission of charge-sheet is no longer a debatable question in view of sub-section (8) of section 173 (in Chapter XII : Information to Police and their Powers to Investigate) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). It is also not in dispute that before taking of cognizance under section 190 (Part of Chapter XIV :

Conditions Requisite for Initiation of Proceedings), the Magistrate may himself order investigation, as contemplated by sub-section (3) of section 156 of the Code. Further, in exercise of power under section 311 finding place in Chapter XXIV (General Provisions as to Enquiries and Trials), the Court may at any stage of an inquiry, trial or other proceedings under the Code summon any peison as a witness if his evidence appears to be essential to the just decision of the case. But in the present appeal the learned Magistrate ordered for further investigation after the appellant had made his appearance and the case was otherwise ready for considering the queslion whether charge should be framed or appellant should be discharged.

2. There having been no direct authority of this Court on the question, it was required to be examined as a mailer of first principle, with the assistance of some related decisions of this Court and that of the High Courts on the issue ai hand. In view of the importance of the point, we had requested Shri Sudhir Walia, a panel Advocate of the Slate of Punjab, to assist us as amicus curiae and he did so admirably. After the conclusion of the hearing. written submissions had also been filed on behalf of the respondent-Delhi Adminis-tration, which too we have perused.

3. Coming to the decision of this Court, reference may first be made to Abhinandan Jha v. Dinesh Mishra, AIRI968 SC 117 , 1968 (0 )BLJR273 , 1968 CriLJ97 , [1967 ]3 SCR668 117) in which it was held that even where on pcrusul of the police report to the effect that no case has been made out foe sending up an accused for trial, it is not open to the Magistrate, despite his having certain supervisory powers in this regard, to direct the police to file a charge-sheet because that would amount to encroaching on the sphere of police. As in the prcsenicase the direction is not to file charge-sheet, what was stated by the two-Judge Rcnch has no direct application and cannot assist the appellant.

4. Shri Vasdev has, however, strongly pressed into service the summing up of law as to the powers of the Magistrate relating to ordering of investigation before and after taking cognizance as finding place in para 15 of Tula Ram v. Kishore Singh. AIRI977 SC 240 I , 1978 CriL18 , (1977 )4 SCC459 , [I978 ] I SCR615 , in which Fazul Ali, J: speaking for a two-Judge Bench culled out the following legal proposition in this regard:

" I. That a Magistrate ean order investigation under Section 156(3) only at the pre-cognizance stage, that is to say. before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but befor