Hon’ble Abhay Mahadeo Thipsay, J.—Heard Shri Amarjeet Singh Rakhra, learned counsel for the petitioner, Shri S.N. Tilhari, learned Additional Government Advocate and Shri Anoop Kumar Upadhyay, learned counsel for the opposite party No. 2-complainant.

2. Pursuant to the direction given by this Court on 17.8.2016, the Investigating Officer-Shri Shailkant Upadhyay, Sub-Inspector, Police Station Khodare, District Gonda, is present in Court, with the case-diary.

3. The petitioner is one of the accused in case crime No. 157 of 2016 registered at Police Station Khodare, District Gonda. The said case relates to offences punishable under Section 307 IPC, Section 326 IPC, and Section 324 IPC. The First Information Report came to be lodged on 7.5.2016. It was in respect of an offence punishable under Section 307 IPC. Later on, allegations of offences punishable under Section 326 IPC and Section 324 IPC were added. The petitioner, who is named in the First Information Report as one of the assailants, came to be arrested on 5.6.2016.

4. On 7.7.2016, when the petitioner had been remanded in judicial custody, the Investigating Officer made an application before the Magistrate stating that upon investigation, he had come to the conclusion that there was nothing to show that the petitioner was present on scene of the offences. He categorically stated that there was no material from which the commission of the alleged offences by the petitioner could be established. He, therefore, prayed to the Magistrate that the petitioner be released, as contemplated under Section 169 of the Code of Criminal Procedure (the ‘Code’). This application was rejected by the Magistrate by a detailed order dated 15.7.2016. The Magistrate, by the said order, dismissed the said application, and also directed a copy of the order to be forwarded to the Superintendent of Police, Gonda and Director General of Police, Uttar Pradesh for taking legal action against the Investigating Officer.

5. Being aggrieved by the said order, the petitioner has approached this Court by filing the present petition invoking the inherent powers of this Court and praying that the impugned order be set aside and the petitioner be directed to be released forthwith.

6. The learned counsel for the petitioner submitted that the order passed by the learned Magistrate is erroneous. He submitted that the tenor of the order indicates that the Magistrate was extremely displeased with the Investigating Officer for having formed an opinion that the petitioner needed to be released under the provisions of Section 169 of the Code; and that it was not fair to the Investigating Officer.

7. The learned A.G.A., on the other hand, submitted that the Magistrate had jurisdiction to pass the impugned order; and that the order has been rightly passed by him. It is submitted that the opinion of the police would not matter and, ultimately, it would be the opinion of the Magistrate that would matter with regard to the involvement, or otherwise, of a particular accused in the alleged offences. It is submitted that the Magistrate, after examining the material against the petitioner, formed an opinion that her involvement in the alleged offences was revealed, and that, therefore, the Magistrate was right in rejecting the application under Section 169 of the Code, as filed by the Investigating Officer.

8. With the assistance of the learned counsel for the parties, I have gone through the impugned order carefully and considered the authoritative pronouncements of the Superior Courts and even of the Hon’ble Apex Court, which have been brought to my notice by the learned counsel for the parties.

9. There appears to be some confusion with respect to the ambit and scope of Section 169 of the Code, for removal of which the provisions of Section 169 of the Code need to be considered, alongwith the provisions of Sections 170 & 173 of the Code. The confusion with respect to the area of operation of these provisions, appare