A Magistrate cannot direct further investigation after taking cognizance and the accused person appears pursuant thereto, as per the legal principles established by the Hon'ble Supreme Court.

JUDGMENT :

1. In the instant petition challenge is thrown to order dated 15.12.2016, passed by the Court of Judicial Magistrate First Class, Kotranka (for brevity 'JMIC') in case titled as 'State of J&K vs. Shamsheer Hussain'.

2. It is being stated that upon presentation of Challan before the Court in case FIR No. 56/2013, Police Station, Darhal trial against shamsheer Hussain was commenced, charge under Section 363 Cr.P.C. framed against him, inasmuch as, evidence of various witnesses was also recorded.

3. It is stated that none of the witness deposed regarding rape of respondent No. 3 by the petitioners or even by Shamsheer Hussain.

4. It is being stated that the trial court after almost about three years of the trial of the case passed the impugned order dated 15.12.2016 banking upon the statement of the respondent No. 3 and ordered returning of Challan along with relevant material to respondent No. 2-Sr. Superintendent of Police, Rajouri for further investigation in the light of the statement of prosecutrix as well as her statement recorded under Section 164-A Cr.P.C. and directed submission of compliance report on or before 23.03.2017.

5. The petitioners challenges the impugned order dated 15.12.2016, inter alia amongst other on the grounds that the same is against law and facts of the case. It is being urged that learned Magistrate merely on the basis of the statement of respondent No. 3 directed further investigation in the case, ignoring the other evidence on record which did not remotely corroborate the allegation of rape of respondent No. 3. It is being urged that respondent No. 3 levelled the allegations of rape against the petitioners and Shamsheer Hussain falsely without alleging the same at the time of registration of FIR. The said allegation is stated to have been alleged after 23 days of registration of FIR which allegation, however, got demolished by the statement of Naseem Akhter recorded under Section 164-A Cr.P.C., corroborated with the statement of her brother-in-law, namely, Miran Baksh.

The trial court is stated to have committed serious illegality while directing further investigation in the matter on the grounds that allegation of rape levelled by respondent No. 3 against the petitioners is highly improbable and misconceived, in presence of the medical reports which is stated to have been overlooked by the trial court while passing the impugned order.

6. It is being further alleged in the grounds that the impugned order has been passed without any jurisdiction and competence in light of the law laid down by Hon'ble Supreme Court reported in 2017 SCC Online SC 86, Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai Patel & Ors., wherein it is stated to have been held that once cognizance is taken by the Magistrate and the accused person appears pursuant thereto, the Magistrate would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the petitioners reiterated the contentions raised and grounds urged in the petition, whereas the counsel for the respondents resisted and controverted the same and sought dismissal of the petition defending the impugned order under challenge.

8. In the light of the case set up by the petitioners in the instant petition the moot point that begs consideration of this Court is that whether a Magistrate has power to direct further investigation in a case, after submission of police report under Section 173 Cr.P.C. The laws is no more res integra and stands settled by long line of decisions of the Hon'ble Supreme Court on the subject.

9. A Reference to the judgments of the Hon'ble Apex Court reported in 2019 (5) SCC 542, Bikash Ranjan Rout vs. State, Th. Secretary (Home) Government of NCT of Delhi, New Delhi and 2018 (14) SCC 298, Athul Rao vs. State of Karnataka and another would also be appropriate and advantageous,