IMPORTANT POINT
Further investigation cannot be ordered by Magistrate suo motu.

ALTAMAS KABIR, J.

( 1 ) IN this special leave petition, we are called upon to decide whether after chargesheet has been filed by the investigating agency under Section 173 (2)of the Code of Criminal Procedure, hereinafter referred to as "cr. PC", and charge has been framed against some of the accused on the basis thereof and the other co-accused have been discharged, the Magistrate can direct the investigating authorities to conduct a re-investigation or even further investigation under Sub-section (8) of Section 173 Cr. PC.

( 2 ) IN the instant case, on the basis of a chargesheet filed by the Investigating officer, the Sub-divisional Judicial Magistrate, Asansol, West Bengal, on 9th July, 2004, took cognizance of offences alleged to have been committed by six of the original sixteen accused persons under Sections 467/468/ 120b of the Indian Penal Code. The other ten accused persons were discharged on the prayer of the Investigating Officer. Subsequently, on 20th August, 2004, while considering an application filed by the de facto Complainant, who is the Petitioner before us, under Section 173 (8) Cr. PC, praying for reinvestigation of the case, the learned Magistrate directed the Officer in-Charge, Asansol (South) Police Station, to reinvestigate the case and to submit a report.

( 3 ) THE Respondents No. 2 and 3 filed an application under Section 482 cr. PC, being CRR No. 2318 of 2004, before the Calcutta. High Court, for quashing the said Order and the same was allowed by a Judgment and order, dated, 31st January, 2007, which is the subject matter of challenge in the present special leave petition

( 4 ) BEFORE the learned Single Judge of the Calcutta High Court it was submitted on behalf of the abovementioned Respondents that after framing charge against six of the accused persons and discharging the rest, the learned Magistrate had no jurisdiction to order a reinvestigation as had been done in the instant case, having regard to the provisions of Section 362 cr. PC as considered by this Court in the case of Sooraj Devi v. Pyare Lal and Anr. (1981) 1 SCC 500. The said submission was accepted by the High court.

( 5 ) APART from the above, the learned Single Judge also took the view that merely because, out of sixteen accused persons ten had been discharged, it did not necessarily mean that they could not be tried subsequently. The learned Judge then referred to the provisions of Section 319 Cr. PC which empowers the Court to proceed against the other persons if any material is disclosed against them during the trial. The learned Single Judge observed that although the Magistrate could not direct reinvestigation on the basis of an application made by the de facto Complainant and that too on the technical ground of non-service of notice upon him, he could take recourse to Section 319 Cr. PC at the stage of trial.

( 6 ) HAVING regard to the view taken by him, the learned Single Judge by his order, dated, 31st January, 2007, allowed the revisional application and directed the Trial Court to proceed with the case, in accordance with law.

( 7 ) APPEARING on behalf of the Petitioner, Mr. Jaideep Gupta, learned Senior advocate, urged that the application filed on behalf of the Petitioner herein, was really for the purpose of further investigation, as contemplated under section 173 (8) Cr. PC, and not for reinvestigation, which expression had been inadvertently included in the prayer of the said application. Mr. Gupta submitted that the use of the expression "reinvestigation" had been taken literally and a decision had been rendered on the basis thereof. Mr. Gupta urged that the application filed by the Petitioner ought to have been considered for the purpose of further investigation as contemplated under section 173 (8) Cr. PC.

( 8 ) MR. Gupta submitted that on a plain reading of Sub-section (8) of Section 173 Cr. PC, it cannot be argued that a further investigation could not be directed by the learned Magistrate even if the chargeshee