The main legal point established in the judgment is that taking cognizance against the accused pending investigation does not preempt their right to request further investigation, and the plea for conducting narco test and handing over the case to another agency is not a matter of right.

Samarendra Pratap Singh, J.

1. Heard the learned Counsel for the parties.

2. The learned Counsel for the petitioners submits that one Ram Bechan Rai lodged an F.I.R. on 16.9.2006 alleging therein that accused persons including the petitioners ransacked his house and set it to fire and threw 3-4 years child consequence to which she died.

3. After some investigation charge sheet was submitted under Sections 147, 148, 341, 323, 447, 436, 427, 504 and 302 of I.P.C., against accused No. 2 to 4, whereas the investigation against petitioner No. 1 continued. Learned court below on perusal of the materials in the charge sheet took cognizance and summoned all the petitioners including petitioner No. 1 to face the trial.

4. Thereafter the petitioners filed a petition before the learned C.J.M., Sitamarhi for a direction to the police for proper and further investigation and to conduct Narco test in order to ascertain the truth. The aforesaid petition was rejected by the C.J.M., Sitamarhi vide his order dated 9.4.2007.

5. Learned Counsel for the petitioners assail the impugned order on the following grounds:

(a) Magistrate taking cognizance of offence against the petitioners and summoning him to face trial pending investigation preempts his rights for plea for further investigation including application of narco and brain maping test.

(b) The investigation has been defective and as such the same be investigated by the C.I.D. for unfolding the truth.

6. He submits that cognizance can be also taken against an accused on filing of chargesheet against some of the accused persons, though investigation against him may be pending. In this respect he relied upon decision of Apex Court in case of State of Maharashtra V/s. S.V Dongre and Ors. reported in 1995 (Cr.) SCC 16.

7. Heard the learned Counsel for the parties and perused the record.

8. Now I take up the first issue, whether cognizance against the petitioners even pending investigation would preempt his right from making a prayer for making proper investigation. The cognizance is taken of the offence, on the basis of materials collected in course of investigation. In course of investigation the police can file more than one chargesheet. If on basis of one of chargesheet court is satisfied from materials placed before him that cognizance of offence can be taken, nothing precludes him from doing so and summoning those accused even, against whom investigation may be pending.The magistrate merely has to be satisfied whether materials on record discloses prima facie offence against such other accused also against whom investigation is pending. The view of mine finds support in decision reported in 1995 SCC (Criminal) 16, (State of Maharashtra V/s. S.V. Dongre and Ors.).

9. The issue is whether taking of cognizance against an accused consequent to filing of charge sheet against some other accused persons would preclude him from making a prayer for proper investigation. It cannot be denied that at times the investigation is defective and even at times accentuated by bias. To shut the right of an accused or the prosecution, from bringing to the notice of the Court such glaring acts of omissions and commissions in investigation would lead to undesirable results. Thus, I am of the view that taking of cognizance of an offence and summoning an accused to face trial pending further investigation of a case, does not preempt his right from bringing it to notice of the court, that investigation is not being carried out in an appropriate manner . The basis behind aforesaid right is to ensure proper and fair investigation. The Hon ble Apex Court in the case of Sakari Vasu V/s. State of U.P. and Ors. reported in 2008 SCC(2) 409 has also observed that if investigation is not being carried out properly, an aggrieved party can bring the same to the notice of the court.

10. Now I take up the next issue whether the plea of the accused for conducting narco test, brain mapping and paliography test can be condu