( 1 ) THIS petition raises an interesting and important question regarding the interpretation of clause (8) of sec. 173 of the Criminal Procedure Code 1973

( 2 ) A few facts require to be slated:- on 12-9-77 one Mr. P. J. Sheth one of the engineers of the Gujarat Electricity Board lodged a first information report with Sabarmati Police Station alleging offences under sec. 417 42 165 468 471 201 and 114 of the I. P. Code. The allegation was that some capacitors rejected initially were sold to the Board because they were accompanied by the certificates of fitness which were ultimately found to be forged. In the F. I. R. these petitioners the proprietors of one concern were said to be the persons responsible for that forgery for the purpose of cheating the Gujarat Electricity Board. The PSI Mr. Gadhavi attached to the Sabarmati Police Station conducted the investigation and submitted the charge-sheet under sec. 173 of the Cr. P. Code Mr. Gadhavi however mentioned these two persons as witnesses in the case and impleaded five persons as the accused. The learned Magistrate started examining the case for the purpose of deciding what charge should be framed and at the stage the Public Prosecutor incharge of the State orally mentioned before the learned Magistrate that these two petitioners who were initially named as the accused in the first information report and who were cited as witnesses were in fact in his opinion the accused. It seems that the matter stood adjourned on that day but the accused apprehended that perhaps under the advice of the Public Prosecutor in charge of the case in the earned Magistrates court they might be harassed by being arrested and so they sought from the Sessions Court Ahmedabad anticipatory bail. It seems a notice was issued to the Police Officer Mr. Gadhavi who declared before the learned Sessions Judge that he did not contemplate any such arrest. That application for anticipatory bail was therefore not pressed.

( 3 ) IT seems that then the wheels moved and PSI Mr. Gadhavi under the orders of his superiors submitted an additional charge-sheet seeking to delete the petitioners from the list of witnesses in the Column of the earlier charge-sheet and prayed for their being impleaded as the accused. The learned Magistrate has accepted the charge-sheet. The original petitioners have therefore moved this court by challenging the submission of that additional charge-sheet and its entertainment by the learned Magistrate on the ground that the Police Station Officer had no such authority at 13w to submit an additional charge-sheet one the chargesheet under sec. 173 of the Cr. P. Code was filed.

( 4 ) MR. H. K. Thakore the learned Advocate for the petitioners took me through the history of the earlier similar provisions in the Code of 1898 and compared those provisions with the present provision of sec. 173 and urged that after submitting a charge-sheet a police officer ordinarily becomes a functuous officio. He however submitted that by virtue of the newly added subsec. (8) the power was reserved for the police station officer to submit an additional charge-sheet. But Mr. Thakore urged that this power was hedged and in his submission the hedge was the discovery of some new material as the result of further investigation. His insistance was that an additional charge-sheet could be submitted by a Police Station Officer if and only if there was further investigation in the course of which some further evidence oral or documentary was available which necessitated the involvement of some more person or persons

( 5 ) I am not in a position to concede to the stand taken by Mr. Thakore. All that newly added clause (8) mentions is what was impliedly understood before the provisions of the new Criminal Procedure Code came to be enacted. There were reported cases speaking of such controversy being raised and the legislature while making this new law made a provision to set at rest the earlier controversy tha