JUDGMENT P. S. Sahay, J. This application is for quashing the police Investigation of Kotwali P.S. Case no. 17(6)74 and also for a direction to the Chief Judicial Magistrate, Patna (respondent no. 4) not to proceed with the case. 2. In order to appreciate the points raised in this application it will be necessary to state some facts. On 5th June, 1974 on the statement of respondent no. 5 a case under sections 120 (B), 307 and 324 of the Indian Penal Code and sections 25 (a), 26 and 27 of the Arms Act was registered against the petitioner and others which gave rise to Kotwali P. S. Case no, 17(6)74. A copy of the First Information Report has been filed along with the application marked Annexure 1. According to this report, a procession of the Chatra Sangharsh Samiti was passing, and some people fired on the procession causing injury to some persons who were going in the procession. The petitioner and others were arrested in connection with the aforesaid case, and, after investigation charge-sheet was submitted in the case on 3.8.1974 against them. A copy of the same has been filed along with the application marked Annexure 2. After cognizance was taken the case was pending before the Chief Judicial Magistrate, Patna. 3. The Public Prosecutor, Patna, filed an application on 25.11.1975 before the Chief Judicial Magistrate for permission to withdraw the case on the ground of inexpediency and also on the ground of public policy. On the same day the Chief Judicial Magistrate allowed the prayer of the Public Prosecutor and discharged the petitioner and others. A copy of the order passed by him has been filed along with the application marked Annexure 3. The petitioner was a member of the Indian National Congress and was also a Member of the Bihar Legislative Assembly. He again contested the election held in 1977 but lost the same. The Janta party came into power and a Ministry was duly installed. On 1.12.77 a revision petition was filed on behalf of the State before the Sessions Judge, Patna, with a prayer to set aside the order of the Chief Judicial Magistrate allowing the withdrawal of the case (vide Annexure 3), and that gave rise to Criminal Revision 548 of 1977. That application was withdrawn by the State on 15.2.1978. On 1.12.77 a revision petition was filed on behalf of the State before the Sessions Judge, Patna, with a prayer to set aside the order of the Chief Judicial Magistrate allowing the withdrawal of the case (vide Annexure 3), and that gave rise to Criminal Revision 548 of 1977. That application was withdrawn by the State on 15.2.1978. A copy of the order has been filed along with the application marked Annexure 4. On 13.4.1978 a requisition was made by the D.S.P., C.I.D., Bihar, for issue of non-bailable warrants of arrest with processes under section 82 and 83 of the Code of Criminal Procedure (herein after referred to as the 'Code') against the petitioner and others, as the investigation of the case was re-opened under the orders of the Additional I.G., C.I.D, Bihar, Patna, by his order dated 31.12.1977. A copy of the aforesaid requisition has been filed along with this application marked Annexure 5. On receipt of the aforesaid requisition, the Chief Judicial Magistrate (respondent no. 4) called for the records and by his order dated 20.4.78 ordered for issuance of non• bailable warrants of arrest against the petitioner and others. A copy of the order has been filed along with the application marked Annexure 6. The petitioner has therefore, filed this writ application. 4. Mr. Brajkishore Prasad appearing on behalf of the petitioner has contended that the reopening of the investigation is mala fide and the action taken by the Chief Judicial Magistrate (respondent no. 4) on the requisition by the police on 13.4.78 and 20.4.78 was wholly without jurisdiction. Learned Standing Counsel appearing on behalf of the State has on the other hand contended that it is the statutory duty of the police to investigate a cognizable case and also to re-open investigation which may amount to further investigation and, therefore, this court should not interfere. It has been further contended that it is the subjective satisfaction of the police officers which cannot be gone into by this court which will virtually amount to interference with the investigation. It has been further contended that it is the subjective satisfaction of the police officers which cannot be gone into by this court which will virtually amount to interference with the investigation. Reliance has been placed on section 173 (8) of the Code which reads as follows: “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, where upon such investigation; the officer-in-charge 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 may be apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)”. 5. Any officer-in-charge of a police station has the right to investigate cognizance cases under section 156 of the Code and the procedure for such investigation has been mentioned in section 157 and other sections. Information of such investigation has to be submitted to the Magistrate empowered to take cognizance under section 158 of the Code. Police Officer may take various actions and record statement of witnesses, interrogate accused persons, hold test identification parade etc. After investigation, Final Form is submitted, as required under section 173 (2), may be final report or charge-sheet and it has to be forwarded to the Magistrate who acts on the same under section 190 of the Code. It is well settled that it is the statutory right of the police to investigate, and courts cannot interfere, as held in Abhinandan Jha v. Dinesh Mishra and S. N. Sharma v. Bipin Kumar. Section 173 (8), which is a new provision in the Code, gives power to re-open investigation in certain cases. Formerly, under the old Code no such power was there and re-investigation could be done only on the direction of the superior officers under section 551 of the old Code, which corresponds to section 36 of the new Code. Now under section 173 (8) powers have been given to investigating officers to reopen investigation in which a Final Form has been submitted earlier, and after the investigation is completed a fresh report has to be submitted before the Magistrate under section 173 (2) of the Code. Now under section 173 (8) powers have been given to investigating officers to reopen investigation in which a Final Form has been submitted earlier, and after the investigation is completed a fresh report has to be submitted before the Magistrate under section 173 (2) of the Code. But this does not necessarily mean that police officers have been given a free hand to re-open any case which bas been fully investigated and a final report has been submitted. This can be done on such materials which could not come to the knowledge of the investigating officer while be was conducting the investigation and gives a new look to the case. It should not be a mere routine affair. Take an example. 'A' was murdered by 'x' and a small girl is the sole eye witness. She lodges information, and during investigation, she becomes traceless, and in spite of the best efforts of the police officers she is not to be traced. She being the sole witness and there being no other material, the police, after investigation, submits final report in the case, and 'X', who is on bail, is discharged by the Magistrate. After three years the girl appears before the police officers and satisfies them about her absence for three years. She is most competent witness in the murder of ‘A’ against 'X', and in such circumstance the police has every right to re-open investigation under section 173 (8). After further investigation is taken up, information will have to be sent to the Magistrate concerned under section 157 (1) of the Code. If the accused is not to be found, then the police officer may also make a prayer for issuance of warrant of arrest and for interrogation of the accused. The Magistrate concerned will be justified to pass necessary orders in this regard and may issue processes for getting the accused apprehended. This will naturally mean that the old case, which had ended in the discharge of the accused, will have to be revived and the Magistrate will also be kept informed. The accused, if not on bail, will have to be produced before Magistrate from time to time. I am unable to accept the contention raised on behalf of the petitioner that after discharging an accused no order for his re-arrest can be made because at one point of time bail had been granted to him. The accused, if not on bail, will have to be produced before Magistrate from time to time. I am unable to accept the contention raised on behalf of the petitioner that after discharging an accused no order for his re-arrest can be made because at one point of time bail had been granted to him. But in the changed circumstance it will be necessary to issue processes if the accused is not found. I am also not prepared to accept the submission of Mr. Prasad that it will amount to reviewing previous order passed by the Magistrate and the case of Bindeshwari Prasad Singh v. Kali Singh, which bas been relied upon, has, therefore, no application to such case. 6. Thus, on a careful consideration of the submission made at the Bar, I am of the opinion that- (1) Police has statutory right to investigate a cognizable case; (2) The investigating Officer can re-open investigation under section 173 (8) of the Code in exceptional circumstances and not in a routine manner and on such fresh materials which could not be obtained earlier; (3) The Police Officer, after re-opening investigation, shall report to the Magistrate concerned who will have to revive the earlier proceeding and he may give necessary directions for arresting the accused persons, keeping them in police custody for Interrogation, for holding test identification parade etc.; (4) After the re-investigation is completed information has to be sent to the Magistrate as required under section 173 (2), giving all particulars on which the Magistrate will apply his mind to the report, and he may or may not take cognizance. 7. This is rather an unusual case, in which after investigation not only charge-sheet but also the supplementary charge• sheet was submitted and the petitioner, along with others, was summoned for trial, which was pending before respondent no. 4. Thereafter the case was withdrawn. In the 1977 election the petitioner was a Congress candidate for the Assembly seat and he lost the same. The Janta Party Government was formed in June, 1977. Thereafter, this case, which was withdrawn earlier, was sought to be revived and, as I have said, as against the order of discharge a revision petition was filed before the Sessions Judge, Patna, much beyond the period of limitation. That was also withdrawn. The Janta Party Government was formed in June, 1977. Thereafter, this case, which was withdrawn earlier, was sought to be revived and, as I have said, as against the order of discharge a revision petition was filed before the Sessions Judge, Patna, much beyond the period of limitation. That was also withdrawn. The investigation has been ordered to be re-opened under the orders of the Additional I.G, C.I.D., Bihar, by his letter dated 21.12.1977, mention of which has been made in Annexure 5. Nothing has been brought on the record to show on what materials the investigation had been ordered to be re-opened. The petitioner in paragraphs 7, 8, 12, 13, 16 and 17 has alleged mala fides against the present Government and some of the officers. In this connection, our attention has been drawn to the fact that respondent no. 2 had sent a requisition to the Chief Judicial Magistrate. Patna (vide Annexure 5) for issue of non bailable warrant of arrest and also of processes under sections 82 and 83 of the Code simultaneously. No counter affidavit has been filed on behalf of the respondents Learned Standing Counsel has contended that since there is no allegation of mala fides against any particular individual, no counter affidavit was necessary; and in this connection he has drawn our attention to a decision of the Supreme Court in E. P. Royappa v. State of Tamil Nadu. It has also been urged that on mere change of Government mala fides cannot be inferred and in this connection reliance was placed on State of J. & K. v. Bakshi Gulam Mohammad. This part of submission will be discussed in greater detail. 8. Now, the question for consideration is whether on the facts and circumstances of the case the action of the police officers in re-opening investigation can be said to be justified, they having been held to have that power to re-open investigation under section 173 (B) of the Code. The case was investigated and was found to be true, Charge-sheet was submitted against the petitioner and others and again a supplementary charge-sheet, on which cognizance was taken. The case was pending before respondent no. 4 and the State Government withdrew the prosecution for some reason or other, with which we are not concerned in this application. Again, after a lapse of about three years efforts were made to revive the proceeding. The case was pending before respondent no. 4 and the State Government withdrew the prosecution for some reason or other, with which we are not concerned in this application. Again, after a lapse of about three years efforts were made to revive the proceeding. A revision petition was filed before the Sessions Judge, Patna, which was hopelessly barred by time and it was also withdrawn. Thereafter came the direction from the Additional I. G., C.I.D. in his letter dated 31.12.77. No material has been brought on the record which, in my opinion, can justify the action in re-opening the investigation. It has been faintly argued by learned counsel for the State that a very important person, connected with the incident, was not examined and it was, therefore, necessary to examine him now. But the question is why he was not examined earlier, for which there is absolutely no explanation. If investigation is reopened in this manner, it will give a big hand to the police officers to re-open each and every case on such flimsy ground, in which final report has been submitted and accused persons may have been discharged under the purported exercise of powers conferred on them under section 173 (8) of the Code. There may be genuine cases that due to faulty Investigation offenders could not be apprehended or brought to book. There may also be cases where the investigating officers may have a soft corner for the accused persons and thus spoil the prosecution case. But in such situation it cannot be said that there is no remedy, because superior police officers generally supervise important cases, and this can be brought to their notice who may give necessary directions in this regard under section 36 of the Code which will set the matter right. But to hold that in each and every case the police officers will have the right to re-open investigation under section 173 (8) will be dangerous to the extreme and will have far-reaching consequences affecting the liberty of citizens. Certainly, this could not have been object of the law makers in drafting this new provision. It is difficult to give illustration in this regard, but the fresh materials should be of such nature which will change the entire complexion of the case. Therefore, each case will have to be judged on its own merit. 9. Certainly, this could not have been object of the law makers in drafting this new provision. It is difficult to give illustration in this regard, but the fresh materials should be of such nature which will change the entire complexion of the case. Therefore, each case will have to be judged on its own merit. 9. Generally, the main object of reopening the investigation is to file a fresh charge sheet in order to revive the case against the accused who had been discharged earlier for want of sufficient materials. There may also be few cases, I hope in which final report is submitted after further investigation though the accused persons were charge-sheeted earlier. But in this case charge sheet was actually submitted on which cognizance was taken and later it was withdrawn by the State. Efforts were made to revive the case by filing a revision petition before the Sessions Judge which was hopelessly time barred. Having failed to get the order of discharge set aside by the superior court, recourse has been taken under section 173 (8) of the Code to revive the case against the petitioner and others which cannot be held to be justified. The contention of Mr. Prasad that the State through Its officers have acted in a malafide manner cannot be said to be without substance. It is true that allegations of mala fides are made in all such application which may be even without any foundation. But allegations of mala fides have been made in this petition and no counter-affidavit has been filed on behalf of the State. No material except the reference of the letter of the Additional I.G., C.I.D. dated 31.12.77 has been brought on the record to justify the action of the investigating officers in order to reopen the investigation. In C. S. Rowjee V. State of Andhra Pradesh it has been held that if allegations of mala fides are made in the petition then it becomes the duty of the court to scrutinize those allegations with are so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In C. S. Rowjee V. State of Andhra Pradesh it has been held that if allegations of mala fides are made in the petition then it becomes the duty of the court to scrutinize those allegations with are so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. If those allegations are controverted, then it becomes easy for the court to decide, but in absence of any counter affidavit or of materials placed before the Court by the authorities the court is left to judge the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer. This is exactly the position in the instant case. What is mala fide exercise of power has been clearly held by Ramaswami, J. in Jaichand Lal Sethia v. The State of West Bengal that a mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended. In other words, the power conferred by the statute has been utilized for some indirect purpose not connected with the object of tie statute or the mischief it seeks to remedy. In the State of Punjab v. Ramji Lal it was sought to be argued on behalf of the State that the plea that the action of State was not bona fide cannot be said to be established unless the party alleging that case names the office or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose and, therefore the plea that the act was not bona fide must fail. Shah, J, repelled that argument and held: “The State Government has undoubtedly to act through its officers. Shah, J, repelled that argument and held: “The State Government has undoubtedly to act through its officers. What matters were considered, matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it will be placing an intolerable burden in proof of a just, claim to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.” 10. On a consideration of the above authorities I am of the opinion that it is a fit case in which this court acting under Articles 226 & 227 of the Constitution of India should stop the police investigation on the ground of mala fides, as held in the case of S. N. Sharma v. Bipin Kumar where their Lordships have held as follows : It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate an cases where they suspect that a congnizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.” In the case of State of Haryana v. The Haryana Co-operative Transport Ltd their Lord ships, while considering a case under Industrial Disputes Act held that the rights conferred by Article 226 can be abridged or taken away only by an appropriate amendment of the Constitution and their operation cannot be whittled down by a provision like the one contained in section 9 (1) of the Industrial Disputes Act. 11. On a careful consideration of the points which have been raised in this case, I find that there is merit in this application. Let a writ of mandamus issue directing respondents 2, 3 and 5 not to proceed with the investigation, and a writ of prohibition issue to the Chief Judicial Magistrate, Patna (respondent no. 11. On a careful consideration of the points which have been raised in this case, I find that there is merit in this application. Let a writ of mandamus issue directing respondents 2, 3 and 5 not to proceed with the investigation, and a writ of prohibition issue to the Chief Judicial Magistrate, Patna (respondent no. 4) not to proceed with Kotwali P. S. Case No. 17 (6) 74. Uday Sinha, J. I agree to the order proposed Application allowed