A supplementary charge sheet under Section 173(8) of the Code of Criminal Procedure can only be filed if it is based on further investigation and the collection of additional evidence. Reconsideration of evidence already collected does not constitute further investigation and does not justify the filing of a supplementary charge sheet.

Om Prakash, A. N. Chaturvedi, JJ.

1. Supplementary affidavit has been filed on behalf of the petitioner. Keep it on the record.

2. Heard Mr. Madan Mohan Prasad, learned counsel for the petitioner and Mr. Ashok Kumar Choudhary, the learned Additional P. P. for the State.

3. It appears that Sikarpur P. S. Case No.29, dated 13th March, 1981 under different sections of the Indian Penal Code was registered on the basis of F. I. R. lodged by one Raj Kishore Prasad, Superintendent of Excise, West Champaran, Bettiah (Annexure-4 ). Police held investigat ion and submitted charge sheet against four persons showing petitioner yamuna Pathak and some others as not sent up) Annexure-5 ).

4. The Chief Judicial Magistrate, Bettiah, looked into the case diary and in his order dated 6-7-1985, he found and held that "the case diary does not contain material to summon them" i. e. petitioner Yamuna pathak and some others. Accordingly, he discharged petitioner Yamuna pathak and some others after observing that "the I. O. has rightly not sent them" (Annexure-2 ).

5. It further appears that latter on, a "supplementary" chargesheet no.49, dated 17-3-1989 (Annexure-3) was submitted against p titioner yamuna Pathak. It has been mentioned in such chargesheet that after investigation chargesheet No.19, dated 17-3-1985 was submitted. But that chargesheet was not submitted against Yamuna Pathak, "because sufficient evidence was not found against him. But latter on, one dharmesh Prasad Verma, a member of Vidhan Sabha, filed a petition before the Director General of Police for reconsideration of some of the points in the evidence collected in course of the investigation. Accord-ingly, opinion of the Assistant P. P, concerned was sought for. As per his opinion, chargesheet could be submitted. Therefore the evidence collected was reconsidered. But "no fresh evidence" was found to have come. After reconsideration (of the evidence collected earlier) it was found that the circumstantial evidence collected against petitioner Yamuna pathak, may be put up before the Court. And the supplementary chargesheet no.49, dated 17-3-1989 was submitted (Annexure-3 ).

6. By the impugned order dated 30-7-1989 passed in T. R. No.35 of 1992, the Chief Judicial Magistrate, took cognizance in absence of the petitioner mechanically (Annexure-1 ). Criminal Revision No.26 of 1990 preferred against such order was dismissed by the 4th Additional Sessions judge on 19-5-1992, without due consideration of petitioners plea that no new evidence to warrant charge sheeting and taking cognizance on the the same has been found "and observing, without any material before him that the matter was "further investigated upon subsequently" and relying on Assistant P. P. s plea that police is empowered under Section 173 (8), C. P. C. to file a supplementary chargesheet (Annexure-6 ).

7. The main thrust of the argument of the learned counsel for the petitioner is that the so-called supplementary chargeshet submitted against petitioner Yamuna Pathak cannot be submitted in view of the facts and circumstances of this case even under Sec.173 (8), Cr. P. C.

8. Section 173 (8) of the Code of Criminal Procedure lays down as under ;

"173 (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 sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in in relation to a report forwarded under sub-section (2 ). "

9. From a simple perusal of the above provision of law, it is crystal clear that a supplementary chargesheet can legally be submitted provided "further investigation" in respect