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GR 2909 of 2015
CIS No. GR 2909 of 2015
Order no. 61 .dated 01-08-2022
Today is fixed for passing order in respect of an application U/S- 173 (8) of Code of
Criminal Procedure, 1973 filed by Sri. Palatak Ghosh, defacto complainant of this case.
All the parties have filed hazira.
Heard the parties on earlier occasion.
Perused the entire materials on record.
It is found that by filing this application U/S- 173 (8) of Code of Criminal Procedure,
1973, the defacto complainant of this case Sri. Palatak Ghosh has prayed for an order
before this Court praying for further investigation of this case on some points which are
necessary in the opinion of the defacto and left out by the Investigating Agency.
Though the acccused no. 2 to 5 filed written objection against the said application of
the defacto and participated in the hearing but the Ld. Advocate representing the defacto
complainant at the conclusion of hearing drew the attention of this Court to the decision of
the Hon’ble Apex Court reported in (1999) 5 supreme Court Cases 740 Sri Bhagwan
Samardha Sreepada Vallabha Vs. State of A.P. and Others and (2020) 4 SCC 22
Satishkumar Niyalchan to show that Court is not obliged to hear the accused before any
direction for further investigation is made.
After going through the above mentioned decision referred by the Advocate for the
defacto, it is found that in para 11 of (1999) 5 supreme Court Cases 740 Sri Bhagwan
Samardha Sreepada Vallabha Vs. State of A.P. and Others, Hon’ble Apex Court while
dealing with such an issue made following observation:
“ 11. In such a situation the power of the Court to direct the police to conduct further
investigation cannot have any inhibition. There is nothing in section 173(8) to suggest that
the Court is obliged to hear the accused before any such direction is made. Casting of any
such obligation on the Court would only result in encumbering the Court with the burden of
searching for all the potential accused to be aforded with the opportunity of being heard.
As the law does not require it, we would not burden the Magistrate with such an
obligation”.
Thus, though the accused persons filed a written objection and participated in the
hearing but at this stage while the application U/S- 173 (8) of Code of Criminal Procedure,
1973 is taken up for consideration, in view of the observation of the Hon’ble Apex Court as
referred above, the written objection by the accused no. 2 to 5 and the submissions made
during the hearing by their Ld. Advocate is not taken into consideration.
Now before going into the question whether an order for further investigation is
required to be made in this case or not, it is to be decided whether such an order for further
investigation can be made by the Magistrate on an application filed by the defacto
complainant U/S- 173 (8) of Code of Criminal Procedure, 1973 .
On this point this Court would like to rely upon two decisions of Hon’ble Apex Court
reported in (2009) 9 Supreme Court Cases 129 Reeta Nag Vs. State of West Bengal and
Others and (2017) 4 Supreme Court Cases 177 Amrutbhai Shambhubhai Patel Vs.
Smanbhai Kantibhai Patel and Others (which was also discussed by the Advocate for
defcato during hearing) wherein such an issue came up before the Hon’ble Apex Court for
decision.
In the case reported in (2009) 9 Supreme Court Cases 129 Reeta Nag Vs. State of
West Bengal and Others. Hon’ble Apex Court in para no. 25 and 26 made following
observations:
“25. What emerges from the above mentioned decisions is that once a charge sheet
is filed under section 173(2) Cr.P.C. and either charges framed or the accued 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 suomoto direct a further
investigation under section 173(8) Cr.P.C. or direct a reinvestigation into a case on account
to the bar of sections 167 (2) of the Code.
26. 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 reinvestigate the matter.
As we have already indicated above, such a course of action was beyond jurisdictiona
competence of the Magistrate. Not only was the Magistrate wrong in directing a
reinvestigation on the application made by the defacto complainant, but he also exceeded
his jurisdiction in entertaining the said application filed by the defacto complainant.
27. 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 opened 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”.
In another decision reported in (2017) 4 Supreme Court Cases 177 Amrutbhai

Shambhubhai Patel Vs. Smanbhai Kantibhai Patel and Others almost similar view was
expressed by the Hon’ble Apex Court and in para 51 of the said decision , the Hon’ble Apex
Court observed following:
“that in a way, in view of three options opened to the Magistrate, after the report is
submitted by the police on completion of the investigation, as has been amongst
authoritatively enummerated in Bhagwant Singh, the Magistrate in both the contengencies,
namely; when he takes cognizance of the offence, or discharges the accused, would be
committed to a course, whereafter though the investigating agencies may for good reason
inform him and seek his permission to conduct further investigation, he Suomoto cannot
embark upon such a stage or take that initiative on the request or prayer made by the
complainant/informant”.
Thus, from the above mentioned decisions of the Hon’ble Apex Court it is clear that
the Magistrate may have power for further investigation under section 173 (8) but he
cannot order a further investigation on an application made by the defacto complainant.
It is pertinent to be mentioned here during hearing the Ld. Advocate for the defacto
referred one decision of Hon’ble Apex Court reported in (2019) 17 SCC 1; Haribhai
Malaviya vs. State of Gujrat to impress upon the Court that the decision reported in
(2009) 9 Supreme Court Cases 129 Reeta Nag Vs. State of West Bengal and Others and
(2017) 4 Supreme Court Cases 177 Amrutbhai Shambhubhai Patel Vs. Smanbhai Kantibhai
Patel and Others have been overruled and now the Court can order further investigation on
the prayer of the defacto complainant also.
After going through the abovementioned decision referred by the Advocate

representing the defacto, it is found that in the said decision Hon’ble Apex Court overruled
only that part of the Judgment of (2009) 9 Supreme Court Cases 129 Reeta Nag Vs. State of
West Bengal and Others and (2017) 4 Supreme Court Cases 177 Amrutbhai Shambhubhai
Patel Vs. Smanbhai Kantibhai Patel and Others which limits the power of the Magistrate to
order for further investigation till charges are framed. No such issue was discussed in the
abovementioned decision as to the authority of the defacto -complainant praying for
further investigation under section 173 (8).
Accordingly, the decision referred by the Advocate representing the defacto
complainant cannot be any help in this case.
Thus, in view of the above mentioned consideration it is found that this Court has no scope
to order for further investigation under section 173 (8) of Cr.P.C. on the prayer of the
defacto complainant.
Hence, it is ordered that the application U/S- 173 (8) of Code of Criminal Procedure,
1973 filed by Sri. Palatak Ghosh, defacto complainant of this case is hereby rejected being
misconceived.
Fix the matter for hearing of appliaction under section 239 of CR.P.C filed by the accused
persons.
To 23.11.2022 for hearing of appliaction under section 239 of CR.P.C filed by the accused
persons.
Sd/- xx xx
JM4 th Court (Siliguri)
(WB01324)

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GR 2909 of 2015

CIS No. GR 2909 of 2015

Order no. 61 .dated 01-08-2022

In another decision reported in (2017) 4 Supreme Court Cases 177 Amrutbhai

After going through the abovementioned decision referred by the Advocate

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