JUDGMENT Poonam Srivastava, J.
1. Heard Sri D.N. Wali, learned counsel appearing for the applicants and learned A.G.A. for the State.
2. This Application has been filed invoking inherent powers to quash the charge sheet dated 23.4.1999 submitted by the C.B. C.I.D. Gorakhpur in crime No. 88-A of 1994 under Sections 147, 148, 149, 307, 336, 427, 323, 504 I.P.C. P.S. Bilariyaganj District Azamgarh and also order dated 15.6.1999 passed by the 1st Additional Chief Judicial Magistrate Azamgarh in case No. 731 of 1999 State v. Manju Vadav and Ors..
3. Facts giving rise to the dispute is that opposite party No. 5 Gayasuddin s/o Fariduddin is an accused in the Murder case of Rajdev, which took place on 26.4.1994 and the First Information Report was registered at 11.30 a.m. The opposite party No. 5 with a view to create defence moved an application under Section 156(3) Cr.P.C. after lapse of four months in respect of the same occurrence and the cross case was registered at crime No. 88-A of 1994 under Sections 147, 148, 149, 307, 336, 504, 427 and 323 I.P.C. and after the investigation was completed, the police submitted final report in crime No. 88-A of 1994 whereas charge sheet was submitted in the murder case crime vide No. 88 of 1994. The Session Trial No. 281 of 1994 commenced before learned Sessions Judge in respect of crime No. 88 of 1994. I am informed that the trial under Section 302 I.P.C. ended in conviction against which criminal appeal is already pending in this Court. After submission of the final report, in case crime No. 88-A of 1994 the opposite party No. 5 filed a protest petition, After hearing counsel for the complainant, the 1st Additional Chief Judicial Magistrate accepted final report on 14.3.1995. This order was challenged by way of filing a revision numbered as criminal revision No. 100 of 1995, which was allowed by the learned IInd Additional District and Sessions Judge vide order dated 16.11.1995. The revisional court while setting aside the order of the Magistrate accepting the Final Report, also summoned the applicants. This order was challenged in this Court by the applicants in criminal revision No. 1485 of l994 and the same was allowed vide order dated 28.11.1995. A copy of the order as been annexed annexure No. 3 to this Application. This Court remanded the matter to the Magistrate for taking afresh decision but the remand order was with a rider that reconsideration shall be done by the C.J.M. Azamgarh and not by the Ist Additional Chief Judicial Magistrate who had parsed the earlier order dated 16.11.1995. After remand the C.J.M. once again examined the entire matter and accepted the final report vide order dated 2l5.10.3996. This order was challenged before the learned Sessions Judge by filing revision No. 317 of 1996, Gayasuddin v. State, which was also dismissed on 26.8.2000. The revisional order has not been annexed with the affidavit of this Application, the learned counsel submitted a certified copy of the said order during the course of arguments, which is kept on record. After final report was accepted by the C.J.M. the Investigating Agency moved an application Before the IIIrd Additional District and Sessions Judge Azamgarh under Section 173(8) Cr.P.C., which has been annexed as annexure No. 6 to this Application. This application was moved in case crime No. 88 of 1994 under Sections 147, 148, 149, 307, 302, 504, 506 I.P.C. It appears that after permission was granted for further investigation, the C.B. C.I.D. started investigating the cross case which was registered at case crime No. 88-A of 1994 and submitted charge sheet against the applicants on 23.4.1999 which is impugned in this Application and has been annexed as annexure No. 7 to this Application. Submission on behalf of the applicants is that since the final report was submitted by the police and the same was accepted, there was no occasion to investigate further unless and until specific direction was granted by the court below. Admittedly, the application for , further investigation was moved under Section 173(8) Cr.P.C. in case crime No. 88 of 1994 and not in case crime No. 88-A of 1994. In the circumstances, there was no justification for the Investigating Agency to start the investigation once again. The submission of the counsel for the applicants is that subsequent investigation and the consequent filing of the charge sheet is without jurisdiction and is liable to be quashed. Learned A.G.A. for the State has tried to emphasize and support the charge sheet on the basis of certain observations of this Court in the order dated 28.11.1995 in criminal revision No. 1484 of 1995 where in the first paragraph of the order, it has been mentioned in that connection second part of the judgment and order, of the learned Sessions Judge be set aside affirming |the earlier portion by which he had set aside the order of trial court. In the circumstances, it has been argued that only second part of the judgment was set aside and the earlier part was maintained. How ever, Sri D.N. Wali, Advocate has tried to place the subsequent portion of the judgment where it has been stated and this Court Had observed "... the order of the learned Additional Sessions Judge directing to issue process straightaway under Section 190(1)(b) Cr.P.C. is hereby set aside, the entire matter is remanded to the trial court for taking a decision as per observation is made above..." It is, therefore, emphasized that the entire matter was remanded and not only acceptance of the final report, even if the argument of the learned State counsel is accepted then it is also to be considered that the C.J.M. accepted final report for the second time vide order dated 26.10.1996, which was confirmed in revision on 28.8.2000. This revisional order was never challenged in the Superior court as such acceptance of the final report submitted by the police could not be reopened unless and until permission was granted by the court under Section 173(8) Cr.PC. I do not agree with the submission made by the learned A.G.A. Once the final report was accepted by the C.J.M. after the case was remanded by this Court, the Investigating Agency is diverted of any authority to further investigate unless permission is granted by the Magistrate under Section 173(8) Cr.P.C. The Investigating Agency had only sought further investigation in case crime No. 88 of 1994 but not in Cross case No. 88-A of 1994. In the circumstances, submission of the charge sheet by the C.B. C.I.D. and the learned Magistrate who had taken cognizance on the basis of the said charge sheet was without jurisdiction and is patently illegal. The court could not have taken cognization on the basis of the charge sheet on 1.6.1996. which is annexure No. 9 to this Application. In fact, the police had submitted its report under Section 169 Cr.P.C. and the Magistrate after liking into consideration entire evidence collected by the police and also other documents on record accepted final report. In the case of Sanpat Singh v. State of Harayana 1993 SCC criminal page 3676 it has been laid down that when an investigation culminates into final report it is the duty of the Magistrate or court to scrupulously: scrutinize the report and the accompaniments by applying judicial mind. In the instant case, acceptance of the final report is by a well reasoned order and the same was also challenged and confirmed by the revisional court. In the circumstances, it is not a case where the police started further investigation after seeking permission under Section 173(8) Cr.P.C. and in the circumstances, the entire prosecution of the applicants on the basis of the charge sheet submitted by the C.B. C.I.D. is rendered without jurisdiction and is liable to be quashed. Accordingly this application is allowed.