Once charges are framed in a criminal case, an application for further investigation under Section 173(8) can only be considered before this stage.

JUDGMENT

The above W.P.(Crl.) is filed challenging Ext.P4 order passed by the Judicial First Class Magistrate Court – I, Chalakudy in Crl.M.P.No.4711/2021 in C.C.No.943/2018. Petitioner is the defacto complainant. The petitioner is not satisfied with the investigation and hence she filed Ext.P3 petition under Section 173 (8) Cr.P.C. The learned Magistrate dismissed the same as per Ext.P4 order. Aggrieved by the same this Writ petition (Crl.) is filed.

2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

3. This Court perused Ext.P4 order. The learned Magistrate considered the matter in detail in the impugned order and dismissed the petition. It will be better to extract the relevant portion of Ext.P4 order:

“5. Heard the learned Assistant Public Prosecutor. He submitted and argued that the investigating officer had collected all evidence and produced before the court along with final report. There is no need for conducting further investigation at the whims and fancies of the defacto complainant. I have perused the records. The investigation was conducted by the Inspector of Police, Chalakudy and he had collected and produced all documentary evidence along with the final report and the statement of all witnesses. It is submitted by the counsel for the defacto complainant that the investigation officer had cited one Ambika as witness No.3 in the final report. But the statement of the said material witness who is the sister of defacto complainant and who is alleged to have witnessed the transaction, was not filed along with the final report. I have perused the final report. It is true that the statement of the said witness is not filed along with the final report. The list of documents filed along with the final report also doesn't contain the 161 statement of Sm. Ambika who is cited as CW3. The final report filed by the police was taken on file as C.C.943/18 and both the accused appeared before the court on 26.04.2021 and took bail. The accused were heard and charge was framed and read over to them on 26.04.2021. In Vinubhai Haribhai Malaviya and Ors. Vs Surie of Gujarai and another reported in 2019 (4) KLJ 429 , the Hon'ble Supreme Court held that the Magistrates power u/S. 156(3) to order further investigation would be available at all stages of the progress of a criminal case before the trial actually commences. It is not legal to order, further investigation after the charge has been framed and read over to the accused only for the reason that the final report has not been accompanied by the 161 statement of W3 Ambika. But, it is the duty of the investigating officer to cure the defect after obtaining necessary orders w/S.173(8) of Cr.P.C. The investigating officer can approach the court for further investigation u/S.173(8) at any time before passing of the judgment.

6. In the result, the petition is dismissed.

But, it is hereby remembered that the investigating officer is duty bound to produce the 161 statement if any of CW3 Smt.Ambika before the court in accordance with Sec.173(8) Cr.P.C.”

4. I see no reason to interfere with the above finding of the learned Magistrate. If the petitioner wants to avail any other legal remedies available as per Criminal Procedure Code , the petitioner is free to do the same in accordance with law. If any such remedy is availed by the petitioner, Ext.P4 order will not stand in the way of the petitioner in proceeding further in accordance with law.

With the above observation, this Writ Petition (Crl.) is closed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM

APPENDIX OF WP(CRL.) 721/2022 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE FIR IN CRIME

916/2017 OF THE CHALAKUDY PS DATED

15-07-2017 EXHIBIT P2 TRUE COPY OF THE FINAL REPORT FILED BY THE 3RD RESPONDENT IN CRIME 916/2017 WITH THE JFCM 1, CHALAKUDY COURT EXHIBIT P3 TRUE COPY OF THE CMP 4711/2021 FILED IN CC 943/2018 BY THE WRIT PETITIONER HEREIN AT THE JFCM 1, CHALAKUDY COURT EXHIBIT P4 TRUE COPY OF THE ORDER DATED 10-02