The power to order further investigation under Section 173(8) of the Code of Criminal Procedure exists until the trial commences, and the de facto complainant cannot seek such an order once the trial has significantly progressed.

ORDER :

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ”the Code”), the petitioner has prayed to quash and set aside order dated 15.10.2015 passed by the learned District and Sessions Judge, Gandhinagar in Criminal Revision Application No.46 of 2015.

2. Heard learned advocates appearing for the respective parties.

3. Though served, none remained present for the respondent No.1.

4. In a criminal case, the de facto complainant preferred an application Exh.13 for seeking further investigation of the offence at the stage where 8 witnesses are already examined. Learned CJM, Gandhinagar vide order dated 7.5.2015 dismissed the application by giving cogent reasons relying upon various judgments by believing that right to seek further investigation is lying with the investigating officer if he found some new and cogent evidence. The de facto complainant has no right to prefer application u/s 173(8) of the Code in the midst of trial.

4.1 Having been aggrieved by said judgment and order, the de facto complainant preferred Criminal Revision Application No.46 of 2015 before the learned Sessions Court, Gandhinagar, who was pleased to allow the Criminal Revision Application without examining the stage of the trial and went on to discuss the power of magistrate to direct further investigation after taking assistance from the judgment of the Hon’ble Apex Court in case of Chandra Babu @ Moses Vs. State through Inspector of Police reported in 2015 (AIJEL) Sc 56718 and has also taken the assistance from other judgment and held that the learned Magistrate has power to direct further investigation and this significant power may be exercised sparingly, but in exceptional cases, it can be exercised to achieve the end of justice. The learned Sessions Court upon such finding, allowed the revision and directed to make further investigation as pointed out in para B,C and D of the application.

4.2 Having aggrieved by the aforesaid order, the accused is before thi Court inter alia on the ground mentioned in the petition.

5. The issue raised in the petition is squarely covered by the judgment of this Hon’ble Court in case of Dalpatbhai Dhirubhai Katariya Vs. State of Gujarat rendered in Special Criminal Application No.8608 of 2023 . This Court referring to section 173(8) of the Code, in para 18 to 21 reads as under:-

“18. It is undoubted that the constitutional Court can direct further investigation even by some other investigating agency. The fair investigation is a pivotal to fair trial. It is undoubted that the power to order fresh/ de novo or re-investigation are being vested with the constitutional Court. The proceeding of the trial or examination of some witnesses cannot be an absolute impediment and fatuous the constitutional power from exercising it ensuring for the fair and just investigation.

19. At this juncture, I may refer to the observations and findings of the Hon’ble Apex Court in case ofAnant Thanur Karmuse (supra) in para 8.1 and 8.2, which reads as under:-

8.1 In the case of Bharati Tamang (supra), after taking into consideration the decisions of this Court in the case of Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the subsequent decision of this Court in the case of Ram Jethmalani Vs. Union of India (2011) 8 SCC 1 and other decision on the point, ultimately the principles, which are culled out are as under:-

41. From the various decisions relied upon by the petitioner counsel as well as by respondents' counsel, the following principles can be culled out.

41.1. The test of admissibility of evidence lies in its relevancy.

41.2. Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of even an illegal search or seizure is not liable to be shut out.

41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious defi