SURENDRABHAI BABUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner was working as an Accountant in Dharamsinh Desai Foundation since 1971. Against him one Vithalbhai S. Patel filed a complaint before the Chief Judicial Magistrate Nadiad. The Chief Judicial Magistrate passed an order under sec. 156(3) of the Criminal Procedure Code for investigation by the police. In the complaint it was alleged that the petitioner had committed an offence punishable under sec. 408 of the Indian Penal Code as he had misapp- roptiated the amount alleged in the complaint. The investigating officer submitted the charge-sheet on 18-1-83 for the offence punishable under sec. 408 of the Indian Penal Code Thereafter the case was registered as Criminal Case No. 350 of 1983. It is the say of the petitioner that his plea was recorded and some evidence was also taken by the learned Magistrates

(2.) Thereafter an application Ex. 31 was filed on behalf of the prosecution contending that investigating officer had not seized certain important documents and that it was necessary that investigating officer may be directed to make further investigation in the matter and should be directed to submit further charge-sheet in the interest of justice and till then further proceedings in the matter may be stayed. This application was resisted by the petitioner-accused. It was contended by him that on behalf of the Prosecution the complainant is examined and he leas produced certain documents on record. He further submi- tted that by granting the application filed by the prosecution the accused would he prejudiced. After considering the fact that the inves- tigating officer has not recorded the statements of the important witnesses and that important documents were not seized the learned Chief Judicial Magistrate ordered on 1-10-84 that investigating officer should make further investigation and submit his further report. Against the said judgment and order the petitioner has filed this revision application. In this revision application it was vehemently contended by the petitioner that once the Court had taken cognizance of the matter the Court has no jurisdiction to direct the investigating officer to make further investigation in the matter and make further report or charge-sheet.

(3.) In my view the said contention of the learned advocate is without any substance because under sec. 173(8) of the Criminal Proc- edure Code it has been made clear that after a report under sub-sec (2) of sec. 173 is forwarded to the Magistrate it would not preclude further investigation in respect of an offence for which a report is already submitted. The said sub-section empowers the investigating officer to obtain further evidence oral or documentary and it further requires that he shall forward a further report or reports regarding such evidence in the form prescribed under the provisions of suh-secs. (2) to (6) as they apply in relation to a report forwarded under sub- sec. (2). In Special Criminal Application No. 293 of 1984 decided by me on 21/08/1984 I have taken the view that even after taking cognizance of the matter the Court is entitled to direct the investi- gnting officer to make further investigation in the case. In the aspect Ram Lal Narang v. State (Delhi Adnan.) A.I.R. 1979 Supreme Court 1791 the Supreme Court has held that notwithstanding than a Magis- trate haul taken cognizance of the offence upon a police report submitted under sec 173 of the Code (old) the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. The right to further investigation is specifically given by sub-sec. (8) of sec. 173 of the Criminal Procedure Code. The Court has taken into considera- tion 1st report of the Law Commission with regard to this aspect which is reproduced as under: