Arvind K.Tripathi, J. - (1.) THE present criminal miscellaneous application under Section 482 Cr.P.C. has been filed for quashing of the order dated 4.5.09 passed by the trial court in S.T. No.1146/08 PS Kotwali, District Moradabad under Sections 364, 420, 411 I.P.C. directing the police for further investigation.
(2.) HEARD learned counsel for the applicant, learned AGA and perused the record. Learned counsel for the applicant submitted that during trial eight prosecution witnesses were examined. Thereafter an application was moved on behalf of D.G.C. Criminals for further investigation in respect of the connection between the accused and the mobile used in the present case. He further contended that an application was purposely filed on behalf of the prosecution just to fill up the lacuna at such a belate stage. The official of the Mobile Company had already appeared with the relevant record and his statement was recorded, hence firstly no further investigation was required and secondly the learned Additional Sessions Judge, F.T. Court No.3 Moradabad has no power to direct for further investigation under Section 173(8) Cr.P.C. The aforesaid power is with the police for further investigation. Even after submission of the charge sheet the power to direct for further investigation is only with the Magistrate under Section 156(3) Cr.P.C. Further under Section 173(8) Cr.P.C. there is no power with the learned Sessions Judge to direct for investigation, hence the impugned order directing for further investigation is liable to be quashed. Learned AGA has opposed the aforesaid prayer and submitted that in view of the provision of Section 173(8) Cr.P.C. the police has a right for further investigation after submission of the charge sheet and during trial. He further contended that though no direction from the court is required but since the trial is pending hence the permission of the court was sought, the police has right of further investigation, to collect and place addition evidence before the court concerned for just and proper disposal of the case.
(3.) FROM a perusal of the record it appears that officer of the concerned mobile company appeared as a witness who was examined. There was no application of the investigating officer or on behalf of the S.H.O. concerned for permission for further investigation. After officer from the Mobile Company was examined an application was moved to A.D.G.C. to direct for further investigation. In the case of Mithabhai Pashabhai Patel and others vs. State of Gujrat, 2009 (6) SCC 332 it was held by the Apex Court that the Supreme Court or the High Court can direct to get an offence investigated or further investigated under the provision of 156(3) Cr.P.C. the Magistrate concerned has power to issue direction for investigation. Under section 173(8) Cr.P.C. the police has a right of further investigation and to collect oral or documentary evidence. The report after further investigation has to be forwarded to the learned Magistrate in the form prescribed and the provision of Sub Section (2)(6) of Section 173 Cr.P.C. shall apply in relation to such report forwarded under Sub Section 2 of the said section. Further investigation is in continuation of earlier investigation and not re-investigation. In case of Hasanbhai Valibhai Qureshi vs. State of Gujrat, 2004 (5) SCC 347 it was held by the Apex Court that the provision Section 173(8) Cr.P.C. permits further investigation even if congizance is taken by the court. When the defective investigation comes to light, during the course of trial, it might be cured by further investigation. If circumstances so permit it would ordinarily be desirable with the police who inform the court and seek formal permission to make further investigation with fresh fact which comes to the light instead of being silent over the matter keeping in view of only need for an early trial. The proper investigation is made relevant and necessary instead of expeditiously disposal of the matter by the court.;