Point of Law: Magistrates power under Section 156 (3) Cr.P.C. is very wide for which his judicial authority must be satisfied that a proper investigation by police had taken place. After a report is submitted under Section 173 (2) Cr.P.C. this power would continue to ensure and would be available at all stages of progress of a criminal proceeding until Trial itself commences.

JUDGMENT :

SANGEETA CHANDRA, J.

1. Heard the learned counsel for the petitioner and Shri S.P. Tiwari, who appears for the State-Respondents.

2. It is the case of the petitioner that he is an accused in F.I.R. dated 10.04.2021 where the complainant Chandra Shekhar had borrowed Rs. 20 lacs in the form of Recurring Deposit from the petitioner for the purpose of investment in real estate. The load had also been admitted by him. The complainant instead of refunding the amount has falsely implicated the petitioner.

3. The petitioner filed a cross F.I.R.

4. The complainant had approached this Court in a Petition No. 4300 of 2021 which was dismissed by this Court on 11.02.2021 refusing to interfere in the F.I.R.

5. The petitioner approached the Investigating Officer annexing all evidence with regard to Video and Photographs taken on 29.07.2019 saying that money had been given to the servant of the complainant. The Investigating Officer did not take the same on record.

6. It has been argued that in Sakiri Vasu vs. State of U.P. (2008) 2 SCC 409 and Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another, (2019) 17 SCC 1. The Supreme Court has observed that a fair and just investigation is a fundamental right of the accused, and that the Magistrate can direct the Investigating Officer to take the evidence produced by the accused on record while submitting his report. The petitioner, therefore, filed an application before the Additional Chief Judicial Magistrate-1, Lucknow namely C.M. Application No. 4377/2021 under Section 156 (3) Cr.P.C. and prayed for a direction to the concerned Investigating Officer to take the above said evidence of the accused on record. This application was rejected on 20.09.2021 on the ground that the concerned Investigating Officer had filed a report on 19.08.2021 wherein it was stated that the accused had denied to give any statement to him.

7. Even after rejection of his application by the concerned Magistrate on 20.09.2021, the petitioner approached the Commissioner by filing application on 24.09.2021 mentioning that he wished to give evidence to the concerned Investigating Officer and the same be directed to be taken on record. On failure to pay heed to such application, the petitioner was left with no other remedy but to approach this Court by filing Writ Petition No. 22926 (M/B) of 2021 (Dinesh Kumar Yadav vs. State of U.P. and Others) wherein this Court dismissed the petition observing that since the Investigation was under way, it is the prerogative of the Investigating Officer to record the statement/evidence of the petitioner as and when required and necessary and that no interference was called for by the Court in its extraordinary power under Article 226 of the Constitution of India.

8. After his petition was rejected on 07.10.2021, the petitioner sent a representation to the concerned Investigating Officer as well as to the Police Commissioner and the concerned Station House Officer on 18.10.2021 but no heed was paid. Apprehending that the concerned Investigating Officer shall file a report without taking into account the evidence produced by the petitioner, this petition has been filed praying for quashing of the order dated 20.09.2021 and for directing the Investigating Officer to conduct fair investigation in F.I.R. No. 297/2021.

9. Learned counsel for the petitioner has placed reliance upon judgment rendered in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (Supra) and has read out the Paragraph-42 of the said judgment to argue that the concerned Trial Court has power to direct the police to conduct further investigation as per law settled already by Hon'ble the Supreme Court in its earlier judgments.

10. Paragraph-42 of the said judgment rendered in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (Supra) as read out by the learned counsel for the petitioner is being quoted herein-below:

“There is no good reason given by the Court in these decis