VIJAY NARAYAN UTTEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD . Rule. By consent, the rule is made returnable forthwith.

(2.) THE petitioners challenge the order dated 16th October, 2003 passed by the Learned Additional Sessions Judge, Mumbai, in Sessions Case No.644 of 1996.

(3.) THE impugned order is sought to be challenged on the ground that there was no prior leave or permission obtained from the Learned Magistrate for collecting the additional statement of the witnesses by the investigation officer, and therefore, any such material collected after the submission of the report to the Learned Magistrate without the leave of the Court cannot be entertained. It is further contention of the petitioners that re investigation can be ordered only if there are new and fresh facts revealed to the investigation officer and that is not the case in the matter in hand. Allowing such additional statement would virtually amount to allowing the investigating agency to cure the defects in the investigation by resorting to illegal method. It is the contention of the petitioners that in terms of Section 173 (8) of the Code of Criminal Procedure, 1973, only re investigation and production of the supplementary charge sheet are permitted and not the additional statement of the witnesses, and that too with the prior permission of the Court in terms of Section 173 (3) of the Code of Criminal Procedure. Reliance is sought to be placed in the decision in the matter of Smt . Pusparani Samal Vs. Suretha Kumar Biswal and Ors. , reported in 1998 Cri.L.J.3764 ( Orissa ), of Gobardhan Das and Ors. Vs. State of Orissa , reported in 2000 Cri.L.J . 1641 ( Orissa ), and of Prithwis Kumar Nag Vs . State of West Bengal and Ors. , reported in 1998 Cri.L.J . 3502 ( Calcutta ) in support of the contentions sought to be raised in the matter.