- (1.) S. K. Phaujdar, J. The matter was heard on 5-10-1998.
(2.) THE applicant is the complainant in case Crime No. 505 of 1997 relating to PS. Handia, District Allahabad. THE report was lodged on 12-9-1997 and the case was registered for an offence under Section 147/302, IPC, Police, however, submitted charge-sheet for an offence under Section 306, IPC only. After submission of charge-sheet the present applicant moved an ap plication before the court below for a direction for further investigation. Both the parties were heard and certain case laws were also considered by the court below. THE application was rejected on the ground that uiere was no reason to direct further investigation under Section 173 (8), Cr. PC. THE Magistrate was of the view that both the offences under Sections 302 and 306, IPC were triable by the Court of Sessions and it was open for the com plainant to urge before the Trial Judge that an offence of murder was made out on the basis of the materials in the case diary. This order of the Magistrate dated 22-8-1998 is under challenge in the instant application. It appears that the applicant had pointed out before the court below that the post-mortem examination of the deceased had indicated 13 ante-mortem injuries. It was further indicated that the applicant was illiterate and was a poor labourer and could not understand the intricacies of law and investigation was not done properly and the persons who could throw light on the incident were not ex amined. A paper said to have been written by the deceased was relied on, although the deceased was illiterate. The complainant was not examined, according to the com plainant himself. The Magistrate relied on two decisions, one of the Supreme Court and another of the Allahabad High Court. The decision of the Supreme Court stands 1997 Cr. L, J. 779. Two Hon'ble Judges of the Supreme Court observed in this case that "a peep into a little grey area of the criminal law has become necessary in this appeal, as we have been called upon to decide as to whether a Judicial Magistrate, after taking cognizance of an offence on the basis of police report and after ap pearance of the accused in pursuance of the process issued, can order of his own further investigation in the case. That such a power is available to police after submission of charge-sheet is no longer a debatable question in view of sub-section (8) of Section 173 (in Chapter XII: Infor mation to police and their powers to inves tigate) of the Code of Criminal Procedure 1973. " The Supreme Court after discuss ing several decisions on this point came to the finding that "within the gray area to which we have referred the Magistrate of his own cannot order for further investiga tion. " The Supreme Court further ob served that "this will be subject to the caveat that even if the order be of dis charge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge-sheet. "
(3.) THE decision of the Allahabad High Court stands 1990 Crl. L. J, 456. In relation to the powers under Section 173 (8), Cr. PC. an Hon'ble Judge of this High Court had observed that when the charge-sheet had already been filed neither the informant nor the accused could claim further investigation as of right. These two decisions, when read carefully, suggest that neither the Magistrate can direct further investigation of his own nor such a right could be claimed either by the informant or by the accused, but the case laws do not forbid in general a direction of further investigation by a court if at all circumstances could be there and such circumstances are brought on record. In fact, another decision of the Supreme Court rendered by two Hon'ble Judges also took up the provision of Sec tion 173 (8), Cr. P. C. Here was a case where the CBI had made a final report recom mending that the proceedings be dropped. The Magistrate accepted the report without any notice or intimation to the informant. The Supreme Court observed that the CBI could be directed to inves tigate further and to collect more evidence and the matter was remitted to the Magistrate to issue direction as per the provision of Section 173 (8), Cr. PC. This decision is rendered in the case between Union Public Service Commission v. S. Papaiah and others, and stands 1997 (35) ACC 533. The judgment 1997 Crl. L. J. 779, was delivered on 20-12-1996. The instant judgment stood delivered on 11-9-1997. Another judgment of the Supreme Court on the interpretation of Section 173 (8), Cr. P. C. stands AIR 1988 SC 1323. Here was a case where allegations of death in police custody were there. and the detenu was allegedly beaten by police. The case was registered under Section 302, IPC but was converted to one under Section 304, IPC within hours of registration, even without waiting for post-mortem report. Subsequently, it was further diluted to an offence under Section 323/34, IPC. Con sidering that police had acted in a partisan manner the Supreme Court directed the Trial Court to direct the CBI for proper investigation of the case in exercise of its powers under Section 173 (8), Cr. P. C.;