B.P Singh, J.:— Sri Zulfiqar Beg has moved this petition under Section 48Z, Cr. P.C for quashing the order dated 16.1.1991 passed by the C.J.M and the order dated 23.1.91 passed by the Sessions Judge, Bijnor in Criminal Revision-Zulfiqar Beg v. State. The facts giving rise to this petition are as follows:

2. In Mahalla Chah Sheri, Bijnor, there are two political groups, one group headed by Javed Aftab and the other headed by Abdul Malik. Beg alias Hithaura Pahalwan. It is alleged that initially there was no difference between the two groups as all of them were working in the political and social fields of the city. Subsequently a dispute arose and the two groups became antagonistic to each other over some election. In Oct. 1988 elections for the post of Chairman, Municipal Board, Bijnor were held in which Javed Aftab was a eandidate against others including one Chaudhary Nepal Singh Arva. The petitioner opposed the candidature of Javed Aftab and supported the rival candidate Chaudhary Nepal Singh Arya. Javed Aftab was successful in the election and after becoming the Chairman of Nagar Palika, Bijnor he started nursing ill will towards the petitioner.

3. On 26.5.89 one Margoob alias Kale, son of Mahfooz, was murdered within the local limits of Police Station Kotwali, Margoob was an appointee of Javed Aftab in the Nagar Palika. Although Margoob was murdered by some unknown person, an F.I.R was lodged by his father, Mahfooz, and the petitioner was implicated as one of the accused. The petitioner belongs to Janata Dal while Javed Aftab is of the Congress party.

4. Having come to know about his involvement in the said F.I.R, the petitioner moved an application to the Chief Minister, Uttar Pradesh Lucknow or 3.6.1989 requesting that the investigate of the case may be transferred to C.B C.I.D The petitioner's request was accepted and the investigation of case crime No. 327 of 1989 under Section 302 I.P.C P.S Kotwali was ordered to be handed over to C.B C.I.D Thereafter Javed Aftab got an application moved in the name of Mahfooz that the case in question may be investigated by the local police and not by the C.B.C.I.D On this application the State Government passed an order on 6.7.1989 directing that the case was to be investigated by the local police of Bijnor and not by C.B C.I.D

5. Again the petitioner moved an application before the State Government praying that the investigation of the case in question may be handed over to C.B, C.I.D on this application the secretary of the Home Department of the Uttar Pradesh Government sought reports from the District Magistrate and S.P Bijnor. The S.P Bijnor reported to the State Government that there was enmity between the two groups and as there were allegations against the local police, therefore, in all fairness he was of the view that the case may be investigated by the C.B, C.I.D Although the S.D Bijnor and the Deputy S.P concerned were recommending that the investigation of the case be handed over to C.B, C.I.D a charge sheet was submitted against the petitioner and his two co-accused in the court of C.J.M Bijnor on 1.8.89 The Home Secretary of the Government on receipt of the report from the district authorities, directed the District Magistrate and the S.P Bijnor vide order dated 26.8.89 that the investigation of the case be handed over to C.B, C.I.D

6. In pursuance of the order dated 26.8.89 one Inspector of the C.B, C.I.D i.e Sri V.M Sharma applied in the court of C.J.M Bijnor for the papers of the case. It was also requested by Sri V.M Sharma that further proceedings on the basis of the charge sheet submitted by the local police may he stayed. Learned C.J.M directed that the papers of the case may be handed over to Inspector V.M Sharma except the charge-sheet. It was also directed by the learned C.J.M that Inspector V.M Sharma shall complete investigation within two months and will submit his report. Inspector V.M Sharma started investigation and recorded statements of the petitioner as well as a few other persons.

7. It appears that having come to know that C.B, C.I.D was investigating the case, Sri Javed Aftab again approached the State Government and got an order passed by the Joint Secretary, Ministry of Home, U.P Lucknow, directing the Inspector General of Police that the investigation of case crime No. 327 of 1989 may now to be taken back from the C.B, C.I.D and may be given to the Civil Police, Bijnor. This order passed by the Joint Secretary, Ministry of home U.P Lucknow, was communicated to the Inspector C.B, C.I.D who, thereafter, submitted the papers and the orders of the State Government without completing the investigation to the Chief Judicial Magistrate, Bijnor. At this stage, the Chief Judicial Magistrate, Bijnor issued a non-bailable warrant against the petitioner and summoned the remaining two accused vide his order dated 28.10.89, finally Sri Javed Aftab had succeeded in starting proceedings in the court of Chief Judicial Magistrate, Bijnor, on the basis of the charge sheet which was submitted by the Inspector, Civil Police. It was highly irregular on the part of the Joint Secretary, Ministry of Home, U.P Lucknow, to take back the investigation of the case from C.B, C.I.D

8. As no other alternative was available to the petitioner, he moved this court through a petition under Section 482 Cr. P.C for getting the case investigated by C.B, C.I.D In this petition Crl. Misc. Petition No. 9524 of 1989 Zulfiqar Beg alias Baby v. State of U.P initially the proceedings before the learned Chief Judicial Magistrate, Bijnor, were stayed by the court and after exchange of counter and rejoinder affidavits, the petition was finally decided by Hon'ble Giridhar Malviya, J. on 23.7.90 The operative portion of the order in Crl. Misc. Petition No. 9524 of 1989 runs as follows:

“Accordingly this application is allowed. It is directed that the investigation of this case shall be transferred to the Sector Officer of C.B, C.I.D of Bareilly Sector within ten days from the production of the certified copy of this order before the Home Secretary, Government of U.P Thereafter, the C.B, C.I.D shall complete investigation in this crime within three months and submit the report to the C.J.M alongwith the conclusions arrived at by him.

However, since after a case is instituted before a competent court, it cannot be withdrawn under any circumstances, save on an application by the Public Prosecutor when the court alone can permit withdrawal of the case, the procedure hereafter to be adopted in the case shall be decided by the C.J.M Bijnor before whom the case is pending. Since the petition is finally disposed of, the interim order is automatically vacated.”

9. A certified copy of the above order was produced by the petitioner before C.J.M Bijnor on 14.8.90 and 14.11.90 was fixed in the case. Communal riots broke out in Bijnor city as a result of which the City remained under the grip of curfew and the work in the courts remained paralysed. It was on 20.12.90 that Inspector C.B, C.I.D Sri V.M Sharma again applied to the C.J.M Bijnor for taking back the relevant papers and also prayed for staying further proceedings in the case. On the same day, learned C.J.M directed that the case diary excluding the charge-sheet be handed over to the Inspector C.B, C.I.D No order were passed by the C.J.M on the request of Inspector C.B, C.I.D regarding stay of further proceedings in the case. On 16.1.91, the complainant moved an application before the C.J.M Bijnor for issuing non-bailable warrant against Zulfiqar Beg alias Baby and on the same day learned Magistrate passed the following order:

Stay has been vacated.

Issue non-bailable warrant against the accused fixing 24.1.91 for appearance.”

10. The contentions of the petitioner are that since this court had directed that the present case be investigated by C.B, C.I.D and since the Inspector C.B C.I.D investigated the case, C.J.M was not justified in issuing the non-bailable warrant against the petitioner. The petitioner filed a revision in the court of Sessions Judge, Bijnor against the order dated 16.1.91 The revision-criminal Revision. No. nil of 1991, Zulfiqar Beg v. State of U.P and another was rejected on 23.1.91 The petitioner has thus come to this Court with the present petition with the prayer that the impugned order dated 16.1.91 passed by the C.J.M Bijnor and the order dated 23.1.91 passed by the Sessions Judge, Bijnor may be quashed and further proceedings in Criminal Case No. 1717 of 1989 State v. Zulfiqar Beg alias Baby pending in the court of C.J.M Bijnor may be stayed.

11. I have heard the learned counsel for the parties at some length. Two questions arise for determination in this case. Firstly, whether further investigation in the case can be allowed to continue in spite of the fact that a charge-sheet has already been submitted by the Investigating agency; and secondly whether the proceedings in the court of C.J.M Bijnor which commenced after the filing of the charge-sheet by the local police in the case are to be stayed till such time the C.B, C.I.D submits a report in the case.

12. Coming to the first question, I may observe that prior to the coming in force of the new Criminal Procedure Code on 1.4.74, there was some doubt regarding the view whether submission of a report by the investigating agency under Section 173 of the Code of Criminal Procedure was an end of the investigation once the Magistrate has taken cognizance. Some courts had taken the view that the investigation came to an end as soon as Police report was submitted in the court of the Magistrate under Section 173 of the Code. This view had placed obstacles in the way of the investigating agency where investigation was not reopened even after the disclosure of material and relevant evidence. The result was that in some cases injustice was done to the prosecution and for that matter even to the accused. The position stands clarified by the addition of sub-section (8) to Section 173 which runs as under:

“173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer incharge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

13. The above cited sub-section makes it clear that submission of a report under Sub-section (2) does not preclude further investigation in a crime by the investigating agency, supplementary reports can be submitted by the investigating agency to the Magistrate notwithstanding that the Magistrate has taken cognizance of the offence upon a police report submitted under sub-section (2) of Section 173 of the Code.

14. No doubt, the Magistrate under Section 156(3) of the Code can direct further investigation of the case, but this power of the Magistrate does not take away the power of the executive wing of the Government to direct further investigation in the case. The framers of the Code of Criminal Procedure have kept the two jurisdictions quite separate. Upto the stage of submission of a charge-sheet final report in the case by the Police under Section 173 of the Code, the executive wing of the State Government has full power and control over the investigation of the case. Once the report is submitted to the Magistrate under Section 173(2) of the Code, the executive wing of the State Government cannot interfere with the trial of the case. Of course, there is a power with the executive wing of the State Government to withdraw the case with the courts permission, but at the same time the executive wing of the State Government retains the power to direct further investigation in the case even if upon an earlier report submitted to the Magistrate under Section 173(2) of the Code, the cognizance of the case has been taken by the Magistrate. In this connection, I may refer to the following observation of the Supreme Court made in the case of State of Bihar v. J.A.C Saldanna(1):

“The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case evenafter submission of the report as provided in section 173(8) Therefore, the High Court was inerror in holding that the State Government in exercise of the power of superintendence under S. 3 of the Act lacked the power to direct further investigation into the case.”

15. Coming to the second question, it may be stated that even in the order dated 23.7.90, this court had observed that the C.B, C.I.D was to complete the investigation in the crime in question within three months. Now more than six months have passed and investigation by C.B, C.I.D is still pending. The contention of the learned counsel for the respondent is that in case the proceedings before the Magistrate are stayed, C.B C.I.D will be at liberty not to complete the investigation for years. In that case, it was further contended that the very purpose of the petitioner would be fulfilled and the case will remain pending even though a charge-sheet against him and two others has been submitted in the court of the Magistrate and due cognizance has been taken by the Magistrate. The contention of the learned counsel for the respondent has force. No provision of law was shown under which Magistrate was bound to stay the proceeding of case in which he has taken cognizance on the basis of charge sheet submitted under Section 173(2) of the Code for the simple reason that further investigation of the case was going on either under the orders of the State Government or the High Court. A similar question arose in the case of Daya Shanker Singh v. State of U.P and Hon'bie K.K Birla, J. has taken the view that the trial court was not bound to stay a case for the simple reason that, the case was further being investigated by C.B, C.I.D I am in agreement with this view. There may be cases where in special circumstance the High Court may stay the proceeding in a Magistrate's court who has taken cognizance of the case after the receipt of the charge sheet under Section 173(2) of the Code, but no universal rule can be laid down that in every case where investigation has ben ordered by the State Government or the High Court, proceedings in the court of the Magistrate are to be stayed even though the Magistrate has taken cognizance of the charge sheet submitted by the investigating agency in the case. The present case is an example where such a power should not be exercised by the Court. The F.I.R in this case was lodged on 26.5.89 More than 1 and a half years have passed and the case is yet to be committed to the court of Session although the charge sheet was submitted by the investigating agency for the offence under Section 302 I.P.C Even at the stage of the investigation the executive wing of the State Government had been vacillating and was not certain as to who was to investigate the case. The investigation changed hands more than once and it was only after considerable delay that the charge-sheet in the case was submitted on 1.8.89 To stay further proceedings before the learned C.J.M Bijnor would amount to abuse of the process of the Court.

16. Under these circumstances, the petition fails and is hereby dismissed.

Petition dismissed.