JIWAN SHANKER SHARMA Vs. STATE

JUDGEMENT

(1.) IS an application under Section 482 of Cr.P.C. by Jiwan Shanker Sharma against an order of the learned Additional Sessions Judge, Jhansi, allowing the prosecution to submit a report under Section 173(8), Cr.P.C. in a week and give copies of the statements so collected to the accused and further ordering to summon witnesses through special messenger. The applicant Jiwan Shanker Sharma was Special Intelligence Officer in Intelligence Department of the State of U.P. He was posted at Jhansi in that capacity from September 9, 1986 to November 24, 1968. He IS said to have submitted hIS traveling allowance bills mentioning false particulars of first class tickets and thereby drew certain amount as traveling allowance. After investigation a charge sheet was submitted in the court of learned Sessions Judge, Jhansi on September 24,1976 by S.M. Zaidi, Investigating Officer. The Sessions Judge took cognizance and thereafter transferred the case to the learned I Additional Sessions Judge. After statement of ten witnesses had been recorded by the trial court an application was moved on behalf of the prosecution seeking that they may be permitted to submit an additional report under the provISions of Section 173(8), Cr.P.C. ThIS application was opposed on behalf of the applicant but was ultimately allowed by the trial court. It has been contended on behalf of the applicant that provISions of subsection (8) of Section 173, Cr.P.C. were not applicable at the stage of trial and the trial court was not justified in allowing the investigating officer to investigate the case further and to adduce such evidence as may be collected in fresh investigation. Section 173, Cr.P.C. IS to be found in Chapter XII of the Code titled as 'Information to the police and their power to investigate. Sub-section (1) of Section 173 enjoins upon an investigating officer to complete the investigation without unnecessary delay. Sub-section (2) provides that after the investigation has been completed the officer incharge of the police station IS to forward hIS report to a MagIStrate empowered to take cognizance. Sub-section (3) further provides that where a superior officer of police has been appointed under Section 158 the report shall be submitted through him and such an officer IS also empowered to direct the officer incharge of the police station to make further investigation pending the orders of the MagIStrate. It IS clear that the words 'pending the orders of the MagIStrate' in sub-section (3) contemplated an order taking cognizance. ThIS meaning IS clear from the expression 'forward to a MagIStrate empowered to take cognizance of the offence on a police report in sub-section (2). Therefore, a superior officer can pass an order to the investigating officer to make further investigation under sub-section (3) before the MagIStrate takes cognizance. Subsection (4) empowers the MagIStrate to make an order for the dIScharge of a bond if the accused has been released on bond. Sub-section (5) provides as to what documents have to be submitted to the MagIStrate along with hIS report. Sub-section (8) provides as follows: "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 investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the MagIStrate a further report or reports regarding such evidence in the form prescribed; and the provISions of subsections (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)." The words after a report under subsection (2) has been forwarded to the MagIStrate to show that the officer-in-charge of a police station IS empowered to investigate even after the report has been forwarded to the MagIStrate. But if the provISions of sub-sees. (2), (3) and (8) are read together it imply that even the powers of the investigation by the in-charge of police station have to be exercISed before cognizance IS taken. It IS also significant that cognizance has to be taken under the provISions of Section 190, Cr.P.C. and the MagIStrate IS given power to take cognizance upon a police report which means the additional report, if any, submitted under sub-sections (3) and (8). Sub-section (8) does not empower the investigating officer to submit an additional report after the cognizance had been taken. The order of the learned Special Judge was, therefore, clearly without jurISdiction. The application IS, therefore, allowed and the impugned order of the learned Special Judge IS set aside.