1. Petitioner has assailed the Charge Sheet No. 49 of 2016, dated 29.7.2016 under Sections 341/325/506 IPC and order dated 04.5.2017 passed by the learned Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas in G.R. No. 463 of 2016 arising out of Bidhannagar (E) Police Station Case No. 48 of 2016 dated 03.6.2016 under Sections 341/325/506/34 IPC. Question which falls for consideration in this case is whether after taking cognizance on charge sheet, Judicial Magistrate can order further investigation under Section 173(8) of the Criminal Procedure Code.

2. Factual matrix leading to the case is that the petitioner as the complainant filed an FIR with the allegation that on 26.5.2016 while petitioner was going with his driver namely Chapa Oraon to meet with his share broker, he was restrained by the respondent no. 2 and one Rabindranath Bhattacherjee and Ramkrishna Ghosh with two other unknown persons jointly assaulted the petitioner in order to settle their personal grudge against him as a result he suffered injury and was shifted to Salt Lake Sub-Divisional Hospital and then to Emergency Ward of NRS Medical College & Hospital for his treatment who was advised for admission to the Hospital after preliminary treatment.

3. On 27.5.2018 petitioner before getting admission into the Hospital at Shurshura Nursing Home Pvt. Ltd., he went to Bidhannagar (E) Police Station to lodge a complaint against the culprits namely, Rabindranath Bhattacharjee and Ramkrishna Ghosh but the officer concerned refused to accept the complaint. Then the petitioner sent a letter of complaint vide speed post EW219330724IN dated 27.5.2016 to Commissioner of Police, Bidhannagar with a copy to I.C., Bidhannagar East Police Station but of no effect.

4. The petitioner got himself admitted to the Shurshura Nursing Home Pvt. Ltd. for treatment and after preliminary treatment, he was discharged on 28.5.2016. The petitioner again went to the said Police Station for lodging complaint on 28.5.2016 and 29.5.2016 and on 01.6.2016 with his earlier letter of complaint but the complaint was not registered. Failing to lodge any case through Bidhannagar (E) Police Station, petitioner complained the same to the Bidhannagar Commissioner of Police on 30.5.2016 and on 01.6.2018 through his written letter and on 03.6.2016 the petitioner was called by the said Police Station and Bidhannagar (E) Police Station Case No. 48 of 2016 dated 03.6.2016 under Sections 341/325/506/34 IPC was started and on completion of investigation, charge sheet was submitted against only accused Rabindranath Bhattacharjee but the accused Ramkrishna Ghosh was not sent up.

5. On being aggrieved with the charge-sheet, the petitioner filed an application for further investigation under Section 173(8) of the Code but by the impugned order dated 04.5.2017 the learned Magistrate rejected the same. Hence, petitioner has sought for setting aside the order impugned, inter alia, on the grounds that despite specific allegation against the respondent no. 2 in the FIR, neither the same was considered by the I.O. during investigation nor the Magistrate considered it while taking cognizance on the charge sheet.

6. Mr. Ayan Bhattacharya appearing for the petitioner submitted that the learned Magistrate erred in law by holding that the post cognizance stage, Magistrate has no power to allow further investigation on the prayer of complainant after cognizable is taken on the charge sheet or to suo motu call for further investigation unless the same is called by the police.

7. It is also submitted that the legislature in its wisdom has protected the de facto complainant by asserting his right under Section 173(2) (ii) of the Code of Criminal Procedure, 1973.

8. My attention is invited to the formal FIR Annexure- P which reveals that both Rabindranath Bhattacharjee and Ramkrishna Ghosh are arraigned as accused persons for assaulting the complainant on 26.5.2016 at about 3.45 P.M. to 4.00 P.M. While the compl