A Magistrate lacks jurisdiction to order further investigation without an application from investigating authorities under Section 173(8) of the Code of Criminal Procedure.

Order :

1. This writ petition has been filed by the petitioner challenging the order dated 30.09.2023 passed by the Court of learned Civil Judge & Metropolitan Magistrate No. 6, Metro-II, whereby the application filed by the petitioner for further investigation u/S 173(8), Cr.P.C . as regards the FR No. 12/2023 in connection with FIR No. 231/2021, Police Station Murlipura for offences punishable u/S 420, 467, 468, 471 & 120-B IPC was dismissed.

2. No one is present on behalf of the accused petitioner.

3. On perusal of the averments made in the petition, it is borne out that a report was lodged by the petitioner which was registered as FIR No. 231/2021 at Police Station Murlipura for offences punishable u/S 420, 467, 468, 471 & 120-B IPC. After completion of investigation, the police has submitted final negative report before the concerned Magistrate observing that the allegations levelled against the accused respondents were false.

4. The petitioner preferred an application before the learned Magistrate with a prayer to order for further investigation claiming that investigation made by the police is not fair and impartial.

5. Learned Magistrate, vide order dated 30.09.2023 had dismissed the application after relying upon the judgment of Hon’ble Apex Court in the case of Azija Begum Vs. State of Maharashtra 2012(2) Cr.C.C. 358 after taking into consideration the provisions contained in Section 173(8).

6. Hon’ble Apex Court in the case of Reeta Nag Vs. State of West Bengal; (2009) 9 SCC 129 has observed as follows:-

“19. What emerges from the above-mentioned decisions of this Court is that once a charge-sheet is filed under Section 173 (2) Cr.P.C . and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173 (8). The Magistrate cannot suo moto direct a further investigation under Section 173 (8) Cr.P.C . or direct a re- investigation into a case on account of the bar of Section 167(2) of the Code.

20. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the defacto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re- investigation on the application made by the defacto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the defacto complainant.

21. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173 (8) Cr.P.C ., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial.

22. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial.”

7. Any application filed by the complainant for further investigation can only be at the most be treated as a protest petition, but on the application of the complainant, no order for further investigation can be passed.

8. Taking into consideration the totality of the facts and circumstances of the case and the observation of Hon’ble Apex Court in the case of Reeta Nag (supra), this Court finds no ground to interfere in the impugned order.

9. Accordingly, this petition is dismissed.