THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 634 of 2008 Date: 18.01.2010 Between: Anju Devi Agarwal .. Petitioner/De facto complainant. And The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad and others. .. Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 634 of 2008 Order: This revision is directed against the orders dated 04.03.2008 passed by the learned II Additional Judicial Magistrate of First Class, Kothagudem, in Crl. M.P. No.281 of 2008 in C.C. No.1154 of 2007. The brief facts of the case are as follows. The petitioner herein is the de facto complainant in C.C. No.1154 of 2007. The complainant’s specific case is that she has been doing wholesale and retail sale of Vizag Steel, Rebars, Cement etc. A1 is the wife of A2. It is alleged that accused Nos.1 and 2, having purchased the material from the complainant, failed to pay the amount and fled away and thus cheated the complainant. Alleging that the accused have committed the offence punishable under Section 420 read with 34 IPC complaint was filed before the learned Magistrate and the same was referred to the police for investigation. The police, after completing investigation, have filed charge sheet. After receiving summons from the lower Court for giving evidence, the complainant filed a petition, under Section 173(8) read with 482 Cr.P.C, contending inter alia that there were certain defects in the investigation and therefore further investigation is required. It is the case of the de facto complainant that the person who purchased the property from her is not shown as accused and he is shown as one of the prosecution witnesses. The learned Magistrate, by impugned order dated 26.02.2008, dismissed the said application by passing a very cryptic order, which is as follows. “Heard. The learned A.P.P. filed counter stating that the police expressed their helplessness to sleize the material as the investigation had been completed long back involvement of LW.13 could not be established. Be it noted that at any rate it is the sphere of the police to investigate further in any case as postulated under Section 173(8) of Cr.P.C. and there is no provision of law providing for the Court giving direction to the police to further investigate and file additional charge sheet against so and so person. As such, the petition is highly misconceived and the same is dismissed accordingly.” Learned counsel for the petitioner submits that the further investigation at the instance of the de facto complainant may be ordered. In support of his contention he has relied on the judgments reported in Hasanbhai Valibhai Qureshi v. State of Gujarat[1], Kishan Lal v. Dharmendra Bafna[2], Istakuddin Mondal @ Haradhan Mondal v. The State of West Bengal[3], Dharmendra Bafna v. Kishan Lal and the Inspector of Police, Crime Branch CID[4] and Ram Lal Narang v. State (Delhi Admn.)[5]. The only point that arises for consideration is whether further investigation can be ordered at the instance of the de facto complainant. Section 173(8) Cr.P.C is as follows. “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, where upon 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).” It is settled law that the power of the police to investigate further, after filing charge sheet, is recognized under sub-section (8) of Section 173 Cr.P.C. The Hon’ble Supreme Court, in case between Ram Lal Narang v. State (Delhi Admn.) (5 supra), observed that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. In case between Dharmendra Bafna v. Kishan lal and the Inspector of Police, Crime Branch CID (4 supra), the Madras High Court observed that even after taking cognizance, if the de facto complainant comes straight by way of protest petition, the Court concerned will have to exercise the power of ordering further investigation under Section 173(8) of the Code of Criminal Procedure. It is further observed that the Court concerned has power to order further investigation even after taking cognizance of the case at the instance of the de facto complainant or at the instance of the investigating agency. In the case between Istakuddin Mondal @ Haradhan Mondal v. The State of West Bengal (3 supra), the Calcutta High Court observed that even after the Court took cognizance of any offence on the strength of the police first submitted, it is open to the police to conduct further investigation and in such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. In a situation like this it may be that the Court on its own cannot pass such an order but being approached either by the investigation agency or by any other aggrieved person, the Court has certainly powers to pass an order directing further investigation under Section 173(8) of Cr.P.C even when the Court has taken cognizance for any offence on the strength of the police report first submitted. In case between Kishan Lal v. Dharmendra Bafna (2 supra), the Hon’ble Supreme Court held as follows. “It is now a well settled principle of law that when a final form is filed by any Investigating Officer in exercise of his power under sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. It is also permissible for a learned Magistrate to direct further investigation.” We should not forget that ultimately justice has to be done to the victims in criminal justice delivery system. The State has to do justice. After completion of investigation a report will be filed under Section 173 Cr.P.C. The Court may take cognizance upon such report. But when the de facto complainant or the victim feels that some important material has not been collected and such lacuna may result in injustice, the de facto complainant or the victim has every right to approach the Court seeking a direction for further investigation contemplated under sub-section (8) of Section 173 Cr.P.C. However, it is for the Court to examine the matter and decide. If the Court feels that further investigation is necessary for the ends of justice, the Court may pass appropriate orders. However, the Court cannot say that at the instance of the de facto complainant or the victim the Court cannot order further investigation. It is the discretion of the Court and after examining the entire material and even after taking cognizance, the Court may, if it feels, that the further investigation may be necessary, then the Court is empowered to order further investigation. In view of the same, the impugned order is set aside and the matter is remitted to the lower Court for passing appropriate orders in accordance with law. The Criminal Revision Case is allowed. ______________________ B. CHANDRA KUMAR, J. Date: 18.01.2010 Nsr [1] (2004) 5 Supreme Court Cases 347 [2] 2009(9) SCALE 768 [3] (2004)3 CAL LT 407(HC) [4] Crl.RC No.245 of 2008 and MP No.1 of 2008, dt.13.03.2008(MANU/TN/0476/2008) [5] AIR 1979 Supreme Court 1791