THE STATE OF BIHAR Vs. N. NAGMANI

JUDGEMENT

(1.) This application has been filed on behalf of the State of Bihar under Sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), for quashing, an order dated the 20th April, 1976 passed by the Additional Sessions Judge, Fourth Court, Patna, during the course of trial of the accused -opposite party for offences under Sec. 302, read with Sec. 201 of the Indian Penal Code. From the statements made in the application it appears that a case was registered by the Bukhtiarpur police station on the 3rd March, 1973 in connection with the alleged murder of the wife of the accused opposite party in the night of 2nd/3rd March, 1973. After investigation, a final form, in accordance with the provisions of Sec. 173(1) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Old Code') was submitted on the 21st January, 1974, in the Court of the Sub -divisional Magistrate, Barh. In due course, the accused -opposite party was summoned to stand his trial and thereafter an inquiry under Chapter XVIII of the old Code was started. While the commitment inquiry was pending, the Code of Criminal Procedure, 1973 came into force on the 1st April, 1974 and, in view of the proviso to Sub -section (2) of the. Sec. 484 of the Code, an order of commitment was passed in accordance with the provisions of Sec. 209 of the Code. Sessions trial of the accused -opposite party was taken up on the 19th August 1975 when charges under Ss. 302 and 201 of the Indian Penal Code were framed against him. According to the petitioner, the 24th November, 1975 was a date fixed for examination of the prosecution witnesses, and thereafter several witnesses were examined on behalf of the prosecution. It has been stated in paragraph 8 of the application filed before this Court that, during the course of the trial, it transpired that certain facts required further clarification and it was thought desirable to hold a further investigation under Sec. 173(8) of the Code. It has been further stated that, accordingly, the investigating officer of the case submitted a supplementary diary which has been recorded during the further investigation. A petition, together with the supplementary case diary, was filed on the 14th April, 1976 before the learned Additional Sessions Judge, saying that further investigation had been held in the case by the investigating officer, who had forwarded a report regarding the evidence collected by him, copies whereof had been furnished to the accused -opposite party, and it was being filed in court in accordance with the provisions of Sub -section (8) of Sec. 173 of the Code. A prayer was; therefore, made that the materials produced by the investigating officer may be taken into evidence and the prosecution may be allowed to lead evidence on the basis thereof.

(2.) During the hearing of the application in this Court a copy of the said petition was produced by the learned counsel appearing for the petitioner, along with which a copy of the report of the investigating officer, referred to above, is also enclosed. The relevant portion of the report says that, in course of the trial of the case in the Sessions Court during the cross -examination one prosecution witness Lakhan Prasad, who was the Secretary to the then Health Commissioner (accused) had introduced an ambiguity by his answer to a question put on behalf of the accused that the mother of the accused -opposite party was hospitalised and operated upon in the Patna Medical College Hospital in March, 1973. That had created some confusion in the sequence of events and, as such, it was necessary to make further Investigation in the matter. Thereafter, he reported what he had found on further investigation, about the admission and the operation of the mother of the accused in March, 1973.

(3.) The learned Additional Sessions Judge, after hearing the parties, by the impugned order, rejected the said petition, taking the view that once the sessions trial had commenced, the investigating officer could not hold further investigation in connection with the said case and that also for taking away the effect of the statement made during the cross -examination of a prosecution witness.