The de facto complainant has the right to file an application for further investigation under Section 173(8) of the Code of Criminal Procedure and the Magistrate having jurisdiction has the authority to allow the prayer of the Investigating Officer to pray for search warrant for recovery of the Stridhan articles in cases under Section 406 of the Indian Penal Code.

Indrajit Chatterjee, J.

1. This is an application under Sections 401 and 482 of the Code of Criminal Procedure, 1973 wherein this petitioner/de facto complainant/wife has assailed the order dated 28.11.2014 passed by the learned Additional Chief Judicial Magistrate, Basirhat in G. R. Case No. 1811 of 2010 by which the prayer for further investigation of the de facto complainant/petitioner dated 10/05/2011 as filed under Section 173(8) of the Code of Criminal Procedure was rejected.

2. The matter is taken up for hearing.

3. State is represented by Mrs. Debjani Sahu. She has produced the case docket.

4. Mr. Khan, learned Advocate, appearing on behalf of the petitioner took me to the running page no. 26, i.e. the prayer as made by the de facto complainant, who filed one petition for further investigation under Section 173(8) of the Code of the Criminal Procedure. He also took me to the order impugned dated 28/11/2014. He submitted that it is true that as per the decision of the Apex Court reported in (2009)2 C. Cr. LR (SC) 820 (Rita Nag Vs. State of West Bengal), the de facto complainant has no locus standi to file petition under Section 173(8) of the Code of Criminal Procedure but he cited other decisions of the Apex Court as reported in (2007) 8 SCC 770 ( Dinesh Dalmia Vs. C. B. I.), AIR 2012 SC 243 (Jakia Nasim Ahesan & Anr. Vs. State of Gujarat) and 2013 Cri. L.J. 336 (Vipul Sital Prasad Agarwal Vs. State of Gujarat) where the Apex Court held that the de facto complainant has every right to file an application for further investigation under Section 173(8) of the Code of Criminal Procedure.

5. Mr. Khan further submitted that actually the Investigating Officer prayed for issuance of search warrant for recovery of the Stridhan articles as the de facto complainant did not co-operate with him before submission of charge sheet as regards the recovery of Stridhan articles.

6. Mrs. Sahu, learned Advocate, appearing on behalf of the State submits that the learned trial court ought to have allowed the prayer of the Investigating Officer for issuance of search warrant for recovery of Stridhan articles as because the case was initiated under Section 406 of the Indian Penal Code and the charge sheet was also submitted in respect of the section. But she claimed that in view of the decision of the Apex Court as passed in Rita Nag (Supra), the de facto complainant cannot file an application under Section 173(8) of the Code of Criminal Procedure and as such, the learned trial court was right in not entertaining the said application.

7. On behalf of the opposite party/husband, it is submitted by Ms. Gupta, learned Advocate, that the gold ornaments as per Muslim Law is with the mother of this de facto complainant and some furniture, bedding etc. may be in custody of her husband, i.e. the opposite party no. 2. She further submits that this opposite party no. 2 is ready to return back such articles.

8. This Court is not unmindful of the fact that Mr. Rahaman has conceded that the decision of the Apex court as passed in Reeta Nag (supra) is an authority on the point whether the de facto complainant/the complainant can make an application under Section 173 (8) of the Cr.P.C. On this point this Court can rely upon the decision of the Apex Court as passed in Bhagwant Singh vs. the Commissioner of Police as reported in 1985 SCC (Cri) 267, a three judge bench decision wherein right of the complainant to get a notice from the court as regards submission of report to the Magistrate under Section 173 has been enunciated. It is now a settled law that a complainant can file one ‘Naraji Petition’ before the Magistrate having jurisdiction, if he is not satisfied with the report of the Investigating Officer and the Magistrate has every authority to make an order for further investigation. There is a decision of the Apex Court as passed in Vinay Tyagi vs. Irshad Ali as reported in 2013 (5) SCC 726 wherein Apex Court held that the decision of Bhagwant Singh (