Further investigation under Section 173(8) requires new evidence; reliance on existing evidence does not justify additional investigation.

ORDER :

(C. JAYACHANDRAN, J.)

The petitioner - the sole accused in Crime no.1890/2021 of Thiruvalla Police Station, which is now pending consideration before the Additional Sessions Court-IV, Pathanamthitta as S.C. No.644/2022 - is aggrieved by Annexure-A8 supplementary final report, the grounds of which challenge will be discussed in detail here below. The offences alleged are under Sections 366 and 376(2)(n)of the Penal Code.

2. Heard the learned Counsel for the petitioner, learned Public Prosecutor and the learned Counsel for the defacto complainant. Perused the records.

3. Learned Counsel for the petitioner would submit that as per Annexure-A1 F.I.S., the incident occurred on a Monday, after 14^th April, 2021. Specific reference is made to the commemoration of Vishu on 14^th April, 2021. Thereafter, the victim was subjected for medical examination, wherein the date of incident is specifically stated to be 19.04.2021, which is the first Monday, after Vishu. This is decipherable from Annexure-A2, below the history recorded therein. Again, in the statement recorded under Section 164 Cr.P.C., the defacto complainant would reiterate that the incident occurred on 19^th April, 2021 when they went to Munnar together. Further statement of the defacto complainant was recorded under Section 161 on 26.08.2021, wherein she would reiterate that they went to Munnar on the first Monday, coming after Vishu. However, the Investigating Officer, after investigation, arrived at the conclusion that the incident occurred on 12.04.2021 and a report in this regard is preferred before the Magistrate’s Court concerned, produced at Annexure-A4. This conclusion has been arrived at by the Investigating Officer only on the basis of the call data records between the petitioner and the defacto complainant, as also, their mobile tower location. On the basis of such conviction, the Investigating Officer filed Annexure-A5 final report, specifically concluding that the incident took place on 12.04.2021. Thereafter, the matter was committed and the Sessions Court took cognizance of the offences alleged. Ultimately, the matter was scheduled for trial. The defacto complainant/victim was examined on 21.03.2023, wherein she stuck to her stand that the incident occurred on 19.04.2021 (see in this regard page no.4 of the evidence of the defacto complainant, as PW1). When the Investigating Officer was about to be examined, he filed Annexure-A7 report, stating that the date of the incident, stated by the victim/PW1 as 19.04.2021, is nothing but a mistake, for which reason a further investigation has to be conducted. A complaint in this regard was preferred by the defacto complainant before the District Police Chief, Pathanamthitta, who ordered to conduct further investigation. On such premise, Annexure-A7 report was filed seeking the trial has to be stalled, since further investigation has to be conducted. The said report is filed under Section 173(8), has a caveat that, if the trial proceeds based on the date spoken to by the defacto complainant, the prosecution case is likely to fail. Acting upon this, the following order was passed by the learned Sessions Judge, a copy of which is handed over to this Court today by the learned Counsel for the petitioner.

“Accused present. The learned Additional public prosecutor filed report stating that further investigation is ordered in the case. So the further proceedings in case is to be stopped. The accused has no serious objection. For further investigation report.Call on 05.05.2023.”

The said order is marked, for the sake of convenience as Court Ext.X1.

4. Accordingly, further investigation was conducted and Annexure-A8 supplementary final report was filed, wherein the date of incident is stated to be 12.04.2021.

5. Learned Counsel for the petitioner would submit that, the course adopted by the Investigating Officer, which has been sanctioned by the trial Court, is grossly illegal and impermissible. Learned Counsel would emphasize tha