Narayan Shukla, J. - (1.) HEARD Mr. K.S.Rastogi, learned counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
(2.) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the order dated 3rd December, 2010, passed by the Judicial Magistrate, Mohammadi, District Kheri in Case Crime No. 1152 of 2010, under Sections 419,420 I.P.C, Police Station Mohammadi, District Kheri whereby the Magistrate has permitted allegedly for reinvestigation of the case. Briefly the facts of the case as set out by the petitioner, are that even after submission of final report, the Investigating Officer submitted an application before the learned Judicial Magistrate, Mohammadi, District Kheri seeking permission for reinvestigation of the case. The learned Magistrate by means of order dated 3rd of December, 2010 permitted so. Learned counsel for the petitioner Mr.K.S.Rastogi, invited the attention of this Court towards Section 173 of the Code of Criminal Procedure and submitted that the Investigating Officer is empowered only to make further investigation and thus he submits that the direction for reinvestigation is not permissible under law. In support of his submission, he cited several decisions, which are referred hereunder : (1) K. Chandrasekhar v. State of Kerala and others, AIR 1998 SC 2001. (2) Abhinandan Jha and others v. Dinesh Mishra, AlR 1968 SC 117. (3) Bhagwant Singh v. Commissioner of Police and another, (1985) 2 SCC 537. (4) Ramachandran v. R. Udhayakumar and others, (2008) 2 SCC (Cri.) 631. (5) Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and others, (1999) 5 SCC 740.
(3.) THE provisions of investigation are provided under Section 173 of the Code of Criminal Procedure under the different sub-sections. However, in the context of present case, I am very much concerned about sub-Section (8) of Section 173 of the Code of Criminal Procedure, which reads 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, where upon such investigation, the documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsection (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)." A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. THE abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. The Hon'ble Supreme Court in the case of Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346, has held that even after submission of police report under Sub-section (2) of Section 173 of the Code of Criminal Procedure on completion of investigation, the police has a right to further investigate the case under Sub-section (8) of Section 173 of the Code of Criminal Procedure. The relevant paragraphs 16,17,18 and 22 of the judgment are reproduced herebelow: "16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under subsection (2) on completion of the investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. 18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not a fresh report regarding the "further" evidence obtained during such investigation. 22. The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the police (vide K.Chandrasekhar v. State of Kerala). The material collected in further investigation cannot be rejected only because it has been filed at the stage of the trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 Cr.P.C. That the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. ;