SURENDRA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) On the basis of evidence obtained subsequent to forwarding of report under Sub -section (2) of Section 173 of the Code of Criminal Procedure, 1973 (in short, the 'Code'). Investigating Officer forwarded a report to the learned Judicial Magistrate, First Class, Nimapara, who took cognizance of offence punishable Under Section 307 read with Section 34, Indian Penal Code, 1860 (in short, IPC), in addition to cognizance taken in respect of offences punishable Under Section 341, 325, 323 read with Section 34, IPC. The accused -petitioners have assailed legality of the order. According to the learned counsel for petitioners, the action taken by the learned JMFC is contrary to law. The learned counsel for State and the informant have submitted that the learned JMFC acted within the para meter of law and the order is perfectly legal.

(2.) IN order to appreciate the rival submissions it is necessary to refer to Section 173 of the Code, which deals with the role of police officer on completion of investigation. Sub -section (8) is relevant for the purpose of adjudication of controversy at hand. The said provision reads as follows ; '173. Report of police officer on completion of investigation. CD to (7) xx xx xx (8) 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 such 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 Sub -secstions (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).' Sub -section (8) is a new provision which authorises the police officer to make further investigation of an offence after submission of the police report Under Section 173(2) to the Magistrate and if upon such investi - gation, 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 in that event, provisions of Sub -sees. (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) of the section.

(3.) IN Ram Lal Narang v. State (Delhi Admn.): AIR 1979 SC 1791, it was observed by the apex Court that notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted Under Section 173 of 1898 Code, 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. Neither Section 173 or Section 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts. The Law Commission in its 41st report recommended that the right of the police to make further investigation should be statutorily affirmed, and in Clause 14. 23 of the report necessary recommendations were made. Accordingly, the new provision of Section 173(8) was introduced.