An accused cannot request further investigation under Section 173(8) of Cr.P.C. after a charge sheet is filed, as clarified by previous Supreme Court judgments.

ORDER

This Criminal Revision Petition has been filed challenging the impugned order dated 21.04.2023 in Crl.M.P.No.1617 of 2022 in Spl.S.C.No.31 of 2021 in Cr.No.20 of 2020 passed by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Chennai.

2.The petitioner/de-facto complainant, on whose complaint a case in Crime No.20 of 2020 registered by the first respondent against the second respondent and on completion of investigation, charge sheet filed in Spl.S.C.No.31 of 2021 for offence under Sections 342, 376 AB of I.P.C. and Section 5 (m) r/w 6 of Protection of Children from Sexual Offences Act , 2012 (hereinafter referred as 'POCSO Act'). The second respondent/accused filed a petition under Section 173(8) of Cr.P.C. in Crl.M.P.No.1617 of 2022 seeking to order for further investigation. The trial Court by order dated 21.04.2023, allowed the same, against which, the present revision.

3.The contention of the learned counsel for petitioner is that the trial Court ought not to have entertained the petition filed by the accused under Section 173(8) of Cr.P.C. seeking for further investigation, which is against law, which has been reiterated and confirmed by the Hon'ble Apex Court in several cases. He further submitted that the trial Court relying on the judgment of Vinubhai Haribhai Malaviya vs. The State of Gujarat and another reported in (2019) 17 SCC 1 , had given a finding that the accused has locus standi to file an application for further investigation, which is based on a sheer misinterpretation and misunderstanding of the judgment. In the above referred case, the Hon'ble Apex Court confirmed the order of trial Court dismissing the petition for further investigation on the petition filed by the accused therein. Thus the order of the trial Court is contrary to the law laid down by the Hon'ble Apex Court in Vinubhai Haribhai Malaviya case. He further submitted that the question of law framed in the Apex Court judgment is that “whether, after filing a charge sheet by the police, a Magistrate has the power to order further investigation and if so, upto what stage of criminal proceeding”. It never considered or discussed the right of accused in filing a petition under Section 173(8) of Cr.P.C. On the other hand, the Apex Court had categorically held that the accused has no say in the manner of investigation, choosing the investigating agency and questioning the investigation and deprecated the practice of entertaining any petition from the accused questioning the investigation. In such circumstances, allowing the above petition by the trial Court is not proper.

4.Further, in the said judgment in para 40, 40.2 and 40.6, it had given its conclusion with regard to the powers of Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code. Those powers are the magisterial powers. Further, it is held that it is a judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the Court cannot be permitted to direct further investigation to clear its doubt and to