K T SIMON Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has come to this Court aggrieved by Annexure-B order passed by the learned Additional Sessions Judge on Annexure-A petition filed by the Investigating Officer. By the said order, further investigation under Sec.173(8) of the Cr.P.C. was sanctioned. The petitioner was originally shown as accused; but in the final report filed no allegations were raised against him.

(2.) The petitioner claims to be aggrieved by the impugned order. What is the grievance? The short contention raised by the learned counsel for the petitioner is that the application - Annexure-A under Sec.173(8) of the Cr.P.C. has been filed by the Investigating Officer not on his own; but on the basis of the assessments made by the Prosecutor-in-charge of the case. The learned counsel for the petitioner submits that the investigation and prosecution are two different functions in two different domains and that the Prosecutor was not justified in compelling the Investigating Officer to file a petition under Sec.173(8) of the Cr.P.C. to conduct further investigation. Inasmuch as the decision has not been taken by the Investigating Officer himself and inasmuch as he has been prompted to take a decision to conduct further investigation under Sec.173(8) of the Cr.P.C. at the behest of Prosecutor, Annexure-A application and Annexure-B order are not sustainable, it is contended. The learned counsel for the petitioner places heavy reliance on the decision of the Supreme Court in R. Sarala v. T.S. Velu (AIR 2000 SC 1731). In particular, the learned counsel relies on the observations in para-12 of the said judgment.

(3.) I am afraid, the dictum in the said case is not applicable to the facts of this case at all. That was a case where the High Court directed an Investigating Officer to compulsorily take back the case from the court and to consult with the Public Prosecutor and submit a fresh charge sheet in tune with the opinion of the Public Prosecutor. The acceptability of such a course fell for consideration of the learned Honourable Judges in R. Sarala v. T.S. Velu (AIR 2000 SC 1731).