STATE Vs. PRITHVI RAJ (MAJOR)

JUDGEMENT

(1.) I have heard Mr. B.S. Manhas, learned senior Additional Advocate General, as well as Mr. Harbans Lal, learned advocate for respondents, in extenso.

(2.) IT may be pointed out at the first flush that a peep into a little grey area of the criminal law has become necessituous in this reference, as has been called upon to decide as to whether an order of re -investigation can be made by Chief Judicial Magistrate in a case in which the Sessions Judge, after committal of the case, framed the charge against the accused, proceeded and record the evidence of the witnesses produced in sustenance of the charge by the prosecution. However, power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation, the power of the Court to direct the police to conduct further investigation cannot have any inhibition. In other words, 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, notwithstanding that the Court has taken cognizance of the offence upon a police report submitted under section 173 of the Code of Criminal Procedure. Practice, convenience and preponderance of authority, permitted repeated investigation on discovery of fresh facts. It, therefore, follows that such a power is available to police after submission of charge sheet, is no longer a debatable question in view of sub -section 8 of Section 173 (in Chapter XIV information to the police and their powers to investigate) of the Code of Criminal Procedure, 1989 (hereafter referred to as the "Act")

(3.) THE sole question that calls for determination in this reference is, whether a Judicial Magistrate can pass an order under Section 173(8) Cr. P.C. in a case after the case is committed by another Magistrate to the Court of Sessions where, after the frame of the charge, the trial is commenced and some witness have also been recorded. There having been no direct authority on this question brought to my notice during arguments, it is required to be examined as a matter of first principle, with the assistance of some related decisions of the Apex Court and various High Courts on the issue at hand. It is immaterial, in such circumstances, as to whether order of re -investigation is passed by a Judicial Magistrate First Class or a Chief Judicial Magistrate having not committed the case to the Court of the Sessions, in the discharge of their judicial functions. There remains nothing t* be dealt with the case, after it is committed being exclusively to be triable by the Sessions Court, by the Judicial Magistrate or the Chief Judicial Magistrate, and order reinvestigation in terms of Section 173(8) Cr.P.C. In this case, the order of re -investigation has been passed by the Chief Judicial Magistrate, when after the trial commenced before the learned Sessions Judge and the evidence of witnesses have been recorded. The Chief Judicial Magistrate has transgressed his jurisdiction and the order passed by him on 1 -3 -2000 in exercise of powers under Section 173(8) Cr. P.C. is legally lacunic and is without jurisdiction. That apart, if such practice is allowed and the Judicial Officers pass the order in casual and cavillier manner without application of mind and without anticipating its serious reprecussions, it would result into judicial indiscipline and put the interest of administration of justice to jeopardy.