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1993 Supreme(Ori) 18
High Court Of Orissa
S. C. MOHAPATRA
CHANDRASEKHAR MOHANTY - Appellant
Versus
STATE - Respondent
Criminal Revision 615 Of 1992
Decided On : 02/22/1993
P.Ch.Das, R.N.ACHARYA, Satyabadi Das
The prosecution has the power to conduct further investigation under Section 173(8) of the Cr.P.C. even after cognizance of the offense has been taken by the Magistrate, provided that permission is obtained from the court.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 173(8) - ADDITIONAL CHARGE-SHEET - WITNESSES - SUMMONING - POWER OF COURT - FURTHER INVESTIGATION - PERMISSION OF COURT - NECESSITY - PREJUDICE TO ACCUSED - AVOIDANCE.
Fact of the Case:
Petitioners, accused in a criminal case, challenged the order of the Sessions Court summoning four witnesses named in an additional charge-sheet filed by the prosecution. The prosecution had sought to summon these witnesses under Section 311 of the Code of Criminal Procedure (Cr.P.C.) after the Investigating Officer (IO) had been examined as a witness. The petitioners argued that the trial court had earlier refused to summon these witnesses, and that the additional charge-sheet was an abuse of process.
Finding of the Court:
The court held that the prosecution had the power to conduct further investigation under Section 173(8) of the Cr.P.C. even after cognizance of the offense had been taken by the Magistrate, provided that permission was obtained from the court. However, in this case, the prosecution had not obtained prior permission from the court for the further investigation, which was a breach of mandatory provisions. Despite this breach, the court declined to interfere with the order summoning the witnesses, considering that the petitioners would not be prejudiced and that the examination of additional witnesses was in the interest of justice.
Issues: 1. Whether the prosecution can conduct further investigation under Section 173(8) of the Cr.P.C. after cognizance of the offense has been taken by the Magistrate? 2. Whether the prosecution is required to obtain permission from the court before conducting further investigation under Section 173(8) of the Cr.P.C.? 3. Whether the trial court can summon witnesses named in an additional charge-sheet after the IO has been examined as a witness? 4. Whether the petitioners would be prejudiced by the examination of additional witnesses?
Ratio Decidendi: 1. The court held that the prosecution has the power to conduct further investigation under Section 173(8) of the Cr.P.C. even after cognizance of the offense has been taken by the Magistrate, provided that permission is obtained from the court. This power is necessary to ensure that all relevant evidence is gathered and presented before the court. 2. The court held that the prosecution is required to obtain permission from the court before conducting further investigation under Section 173(8) of the Cr.P.C. This requirement is intended to safeguard the rights of the accused and to prevent abuse of the process of law. 3. The court held that the trial court can summon witnesses named in an additional charge-sheet after the IO has been examined as a witness, provided that the accused is not prejudiced by such examination. The court noted that the trial court has the discretion to determine whether the examination of additional witnesses is necessary for the just decision of the case. 4. The court held that the petitioners would not be prejudiced by the examination of additional witnesses, as the statements of these witnesses had been furnished to them and they would have an opportunity to cross-examine them.
Final Decision: The court allowed the revision petition to the extent of directing the trial court to furnish copies of the statements of the additional witnesses to the petitioners and to recall the IO for further examination. The court also clarified that its observations would not influence the trial court's appreciation of the evidence.
S. C. MOHAPATRA, J.
( 1 ) ACCUSED persons are petitioners in this revision against order of summoning witnesses named in the supplementary charge-sheet.
( 2 ) ON information by P. W. 1 on 26-4-1990 against petitioners, they were charge-sheeted after investigation to be tried for offences under Ss. 147/148/430/436/294/506 Indian Penal Code. Petitioners were committed to Court of Session for facing trial in respect of offences under Ss. 436/437 and 147 Indian Penal Code. When the Investigating Officer was being examined as P. W. 11, learned Associate Public Prosecutor filed an application praying to summon two witnesses in exercise of power under S. 311, Cr. P. C. Subsequently another application was filed by learned Associate Public Prosecutor to summon another two witnesses. Learned trial Judge refused to summon those witnesses on objection of the accused persons. Thereafter an additional charge-sheet was filed before the learned Magistrate under S. 173 (8), Cr. P. C. Learned Magistrate forwarded the additional charge-sheet to the Sessions Court where those four persons have been named as witnesses. Learned Assistant Sessions Judge on receipt of the additional charge-sheet directed to issue summons to the four witnesses. This revision has been filed against the said order.
( 3 ) MR. Satyabadi Des, learned counsel for the petitioners assails the order on four grounds. They are :- (i) Trial Court having refused to summon the witnesses on the finding that they are not necessary for just decision of the case, additional charge-sheet including the four witnesses should not have been accepted since privilege to prosecution under S. 173 (8), Cr. P. C. has been misused. (ii) Supplementary charge-sheet could not have been entertained without giving opportunity to accused. Since learned Magistrate could not have committed an accused without his appearing or being produced as required under S. 209, Cr. P. C. (iii) Investigating Officer and other witnesses having already been examined, examination of the four witnesses would be prejudicial to the petitioner since they have come prepared to patch the lacuna of the prosecution; and (iv) No sufficient reason has been shown by prosecution for submission of the supplementary charge-sheet.
( 4 ) IN order to appreciate submissions on Mr. Das, the provisions in Section 173 (8), 209 and 311 Cri. P. C. are to be interpreted. They read as follows :-"173. Report of Police Officer on completion of investigations - (1) to (7) xxx xxx xxx xxx (8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2 ). ""209. Commitment of case to Court of Session when offence is triable exclusively by it :- when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - (a) Commit, after complying with the provisions of Section 207 or Section 208, as the case may be the case to the Court of session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitm
