IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 Crl.MC.No. 211 of 2010() ------------------------ SC.863/2004 of THE ADDITIONAL SESSIONS JUDGE (Ad Hoc-II) KASARAGOD IN CRIME NO.167 OF 2001 OF KUMBALA POLICE STATION .................... PETITIONER/IST ACCUSED -------------------------------------- P.MURALI, S/O.RAMAN KUTTY NAIR, AGED 30 YEARS, KRISHNAKRIPA, NEAR SREE GOPALAKRISHNA THEATRE, KUMBALA, KODIPPADY VILLAGE,KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.JOHNY THOMAS RESPONDENT/COMPLAINANT ------------------------------------------- STATE-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. --------------------------- CRL.M.C. No. 211 OF 2010 -------------------------- Dated this the 10th day of March, 2010 O R D E R By Annexure-AV order, Additional Sessions Judge, Adhoc- II, Kasargod directed further investigation under Section 173(8) of Code of Criminal Procedure. Petition is filed by the first accused to quash Annexure-AV order contending that learned Sessions Judge of his own is not competent to order further investigation and in the absence of an application filed by the investigation officer seeking permission to conduct further investigation as provided under Section 173(8), learned Sessions Judge could not have directed further investigation and therefore, Annexure-AV order is to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Annexure-AV order shows that learned Additional Sessions Judge after recording the evidence, found that several ambiguous elements have crept into investigation and for getting clear picture of the incident and culprits, a further investigation is desirable. It is based on that finding, a further investigation was ordered. Crl. M.C. No.211/2010 2 4. Sub Section 8 of Section 173 provides for further investigation. Under the Section, the fact that a final report has been submitted by the court will not preclude the investigating officer from conducting further investigation, if he receives any material warranting investigation. Though Sub Section 8 does not specifically provide that sanction of the court is mandatory for conducting further investigation, as declared by the Supreme Court when cognizance has already been taken on the final report submitted before the court, before conducting further investigation a formal sanction of the court is to be taken. The question is whether learned Sessions Judge was justified in directing further investigation of his own without an application by the investigating officer seeking permission. 5. The position has been settled by the Apex Court in Randhir Singh Rana v. State (Delhi Admn.) (AIR 1997 SC 639). Their Lordship held: “The aforesaid being the legal position as discernible from the various decision of this court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record.” (underline supplied) Crl. M.C. No.211/2010 3 6. In the light of the declaration of law by the Apex Court Annexure-AV order can only be quashed. Petition is allowed. Annexure-AV order is quashed. It is made clear that if the investigating officer finds that a further investigation is warranted, he is at liberty to approach the learned Sessions Judge, as provided under Sub Section 8 of Section 173 for permission and the learned Sessions Judge is at liberty to grant sanction. M.SASIDHARAN NAMBIAR (JUDGE) vps Crl. M.C. No.211/2010 4