JUDGMENT & ORDER : All the above petitions, challenge has been made to the proceeding of Special Case No. 28 of 2012 pending in the Court of Special Judge, Assam, Guwahati and certain orders thereof, hence all the cases are taken up together for disposal by way of this common judgment and order. 2. The facts in nutshell is that one A.K.Trivedi, A.C.S., lodged an FIR before the Officer-in-Charge, Kokrajhar Police Station on 2.6.2006 stating inter alia that the Platoon Commandant of Home Guard Office, Kokrajhar have cheated several other Homeguards. Accordingly, Kokrajhar P.S. Case No.137/06 U/S 7 of the Prevention of Corruption Act, 1988 was registered. On completion of the investigation police submitted final report as on 14.12.2011 and then the learned Special Judge served notice upon the informant to file his response. Thereafter, by an order dated 9.1.2012 the learned Special Judge rejected the final report and directed the S.P., Kokrajhar to re-investigate the case and submit appropriate report. In pursuance to the aforesaid order reinvestigation was carried out and charge-sheet was submitted against Dharmaduttta Rava and Sarbananda Mali U/S 7 of the Prevention of Corruption Act and the Court upon taking cognizance of the offence proceeded for trial in Special Case No. 28 of 2012 against said two accused person Dharma Dutta and Sarbananda Mali. 3. During the trial prosecution examined... number of witnesses and subsequently by the order dated 9.5.2013 the learned Special Judge took cognizance against three police officers namely, Hemanta Kumar Das, the then Addl. S.P.Kokrajhar, Prasanta Kumar Dutta, the then S.P.Kokrajhar and Sri Abdus Shubhan Laskar the then I.O.of the said case U/S 120B/217/218 IPC with the following observation: “Thus from the evidence of PW 13 Sri Abdus Shubhan Laskar and the case diary it appears that the then Addl. S.P., Kokrajhar, Sri Hementa Kumar Das and Sri Prasanta Kumar Das, S.P. Kokrajhar made conspiracy with investigating officer Sri Abdus Shubhan Laskar to save the accused persons namely, Dharmadutta Rava, Platoon Commandant and Havildar Sarvananda Mali from legal punishment and all of them disobeyed the direction of law as to the way in which they were to conduct themselves as supervising and investigating police officials leading to filing of final report in favour of the two accused persons who had alleged taken illegal gratification at the rate of Rs.2000/- to Rs.5000/- from 31 Homeguards Trainees assuring them to get them depoloyed. Prima facie there are incriminating materials against those senior police officer U/S 120B/217/218 IPC. Accordingly, cognizance is taken against them and issued summons to them.” 4. Challenging the aforesaid order for taking cognizance two above named petitioners Prasanata Kumar Dutta and Hemanta Kumar Das have preferred the Criminal Petition No.637/13 and Criminal Petition No. 638/13 on the twin grounds that the order of taking cognizance on the basis of re-investigation conducted by the investigating officer is itself bad in law and further taking of cognizance only on the basis of evidence of I.O. without obtaining sanction U/S 197 CrPC (the petitioners being the superior police officers discharging their duties while conducting the investigation) is bad in law and hence cannot sustain. 5. The learned counsel for the petitioner, Mr. S. Borgohain vehemently contended that there is express bar on the part of the Court to direct for reinvestigation and order of taking cognizance without prosecution sanction against the officials discharging official duties is itself illegal. Mr. Buragohain heavily relied upon the decision of Hon’ble Apex Court reported in (2009) 6 SCC 332 Mithabhai Pashabhai Patel & ors-vs- State of Gujarat; (2013) 5 SCC 762 Vinay Tyagi –vs- Irshad Ali @ Deepak and ors and (2016) 8 SCC 722 Surinderjit Singh Mand and another –vs- State of Punjab and another. 6. The scope of direction for re-investigation has been dealt with in the aforesaid decisions and it has been categorically held that the Magistrate before whom a report U/S 173 (2) of the Code is filed is empowered in law to direct further investigation and required the police to submit a further or a supplementary report. The reinvestigation being forbidden in law, no superior Court would ordinarily issue direction for reinvestigation. In Vinay Tyagi (supra) in paragraph 40.1 it has been held that – “the Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of police report. In paragraph 40.2 it has been held that- “the Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173 (6) of the Code. 7. In paragraph 40.2 it has been held that- “the Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173 (6) of the Code. 7. As regards the requirement of section U/S 197 CrPC the Hon’blle Apex Court in Surinderjit Singh (supra) has observed that sanction U/S 197 CrPC and or sanction required under a Special Statute (as postulated under Section 19 of the Prevention of Corruption Act, 1988 is mandatory pre-requisite even when cognizance is taken under Section 319 CrPC. Further it is held that determination rendered by Court U/S 319 CrPC is not subservient to the decision of competent authority U/S 197 as order granting or declaring sanction can be achieved by taking recourse to judicial review. 8. Attention of this Court is drawn to the decision of this Court in Criminal Petition No. 498 of 2013 dated 23.1.2015, wherein this Court has set aside the impugned order dated 9.5.2013 as regards the other accused petitioner Abdush Subhan Laskar and it has been contended that the present two petitioners i.e. Sri Hemanta Kumar Das and Sri Prasanta Kumar Dutta being similarly situated be given the same benefit under the same circumstances. 9. I have considered the submission of Mr. Borgohian, the learned counsel for the petitioners and Mr. H. Sarma, learned Addl. P.P., Assam. It has been fairly submitted by the learned Addl. P.P. that the present two petitioners who have challenged the same impugned order which has already been set aside as against one petitioner Abdush Subhan Laskar and as the present petitioners are similarly situated the benefit of said order can be extended to the present two petitioners also. As is apparent that the case of present two petitioners is squarely covered by the aforesaid decision and hence, they deserve the same benefit. Accordingly the impugned order dated 9.5.2013 as regards the present two petitioners Sri Hemanta Kumar Das and Sri Prasanta Kumar Dutta is hereby set aside. 10. Now we are left to the Criminal Petition No. 82 of 2017 filed by the petitioner Sri Sarbananda Mali who has challenged the case on the ground that the aforesaid Special Case No. 28 of 2012 is bad in law as the learned Special Judge has illegally directed for re-investigation, refusing to accept the final report which is wholly bad in law. It has been contended that the further proceeding of the aforesaid case being illegal, unjust and without authority of law which has resulted the abuse of the process of Court. 11. The learned senior counsel for the petitioner Mr. K.K.Mahanta has also referred and relied upon the same citations that have been discussed above, wherein the Hon’ble Apex Court has unanimously declared that the Magistrate has no power to direct for re-investigation save and except, Court is empowered to direct for further investigation. In this context let us reproduce the relevant observations of the Hon’ble Supreme Court in Vinay Tyagi case (supra): “23. However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. 28. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. 28. The Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct ‘further investigation’ or ‘fresh investigation’. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct ‘fresh’ or ‘de novo’ investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in investigation’. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct ‘fresh’ or ‘de novo’ investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in investigation’. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct ‘fresh’ or ‘de novo’ investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. 38. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. 38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct ‘further investigation’ and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in the case of Bhagwant Singh (supra) has, in no uncertain terms, stated that principle, as afore-noticed. 40. Having analyzed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code : 40.1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report. 40.2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code. 40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh’s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence. 43. At this stage, we may also state another well-settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct ‘further investigation’, ‘fresh’ or ‘de novo’ and even ‘reinvestigation’. ‘Fresh’, ‘de novo’, and ‘reinvestigation’ are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection. 45. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection. 45. The power to order/direct ‘reinvestigation’ or ‘de novo’ investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct ‘further investigation’, or even on the basis of the record of the case and the documents annexed thereto, summon the accused. 46. The Code does not contain any provision which deals with the court competent to direct ‘fresh investigation’, the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a ‘fresh’/‘de novo’ investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon ‘further investigation’ or a report upon ‘fresh investigation’, shall have to be construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction. “ 12. “ 12. In the instant case, the learned Court directed for reinvestigation which is beyond its jurisdiction and on the basis of such reinvestigation charge-sheet has been filed and trial proceeded and as such, entire proceeding culminated into gross illegality which now cannot be cured. Such an illegality has vitiated the whole trial and any further proceeding of the aforesaid case will be nothing but abuse of the process of law and will also result in injustice. 13. In the light of the above, and the reasons recorded the petition filed by the petitioner Sri Sarbananda Mali stands allowed. In the result, the entire proceeding pertaining to the Special Case No. 28 of 2012 pending in the Court of Special Judge, Assam, Guwahati stands quashed and set aside. All the petitions stands disposed accordingly. Return the LCR.