spb/- 1 wp-129-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 129 OF 2011 Dr. Prithi Paul Singh Sethi ... Petitioner . V/s. The State of Maharashtra & Anr. ... Respondents. --- Mr. Subhash Jha i/by Law Global for the Petitioner. Mr. J.P. Yagnik, APP for the State. Mr. Niranjan Mundargi for the Respondent No.4. ----- CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : 25TH APRIL, 2011. P.C. 1 This is a petition under Article 226 of the Constitution of India by which the petitioner prays for further investigation in the matter and that the investigation be directed to be conducted either by the CBI or State CID to ensure that the investigation is conducted objectively so as to plug loose ends in the investigation. The petitioner has made further prayer for interim relief for giving such directions by way of ad-interim relief. 2 It appears that the petitioner is a complainant who had lodged a complaint and on the basis of whose complaint an offence came to be registered. After investigation, the Police submitted A-Summary before the Magistrate. At that point of time, the petitioner appeared before the spb/- 2 wp-129-11.sxw learned Magistrate and opposed the acceptance of A-summary by submitting the written objections. In the written objections, the petitioner pointed out certain grey-areas in respect of which the police had not probed at all and therefore, requested the learned Magistrate to direct the Police for further investigation in exercise of powers under section 173 (8) of the Code of Criminal Procedure. The learned Magistrate by a detailed order refused to accept A-Summary tendered by the Police and directed that the cognizance of the offence be taken for offence punishable under sections 409, 418,420, 467, 468, 471, 506 (II) 201 read with section 34 of the Indian Penal Code. The aforesaid order was passed by the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai on 07.08.2010. 3 The petitioner at paragraph 26 of the petition has pointed out grey- areas in respect of which the petitioner claims that the investigating officer had not probed at all and thus there are deficiencies in the investigation and therefore, has sought direction from this court for fresh investigation under section 173(8) of the Code of Criminal Procedure. It appears that the petitioner has pointed out the so called grey areas/grey aspects which had not been probed at all by the Police at a juncture when the Magistrate was considering acceptance or rejection of A- Summary. The petitioner had requested the learned Magistrate to direct further investigation under section 173(8) of the Code of Criminal Procedure. The power or the jurisdiction of the Magistrate to direct further investigation by exercising powers under section 173(8) of the Code of Criminal Procedure had been invoked by the petitioners at a stage where the Magistrate could not have exercised the said powers. spb/- 3 wp-129-11.sxw The learned Magistrate in its order dated 07.08.2010 has rightly not considered this aspect. The petitioner instead of invoking powers of the Magistrate under section 173(8) of the Cr.P.C., subsequently has chosen to file this writ petition. 4 Accordingly, therefore, in the light of the fact that at no point of time the learned Magistrate was called upon to consider whether any case was made out for directing further investigation, the matter needs to be decided by the learned Magistrate in accordance with law. At this stage, Shri Subhsh Jha, the learned counsel for the petitioner requests that the petitioner be permitted to withdraw this petition with liberty to file appropriate application before the learned Magistrate, invoking jurisdiction of the learned Magistrate under section 173(8) of the Code of Criminal Procedure. The learned counsel for the petitioner also prays for liberty to raise these same issues which are raised in the petition inasmuch as to point out the same aspects to the learned Magistrate including the liberty to point out further additional grey-areas in the investigation which may need attention of the learned Magistrate for further investigation. Since at no point of time the jurisdiction of the Magistrate was invoked under section 173 (8) of the Code of Criminal Procedure, we do not see any impediment whatsoever in granting the liberty as prayed for by the petitioner. 5 Accordingly, we permit the petitioner to withdraw this petition with liberty to submit an application to the Magistrate under section 173(8) of the Code of Criminal Procedure in respect of further investigation by pointing out to the learned Magistrate certain grey areas spb/- 4 wp-129-11.sxw which had not been probed by the Police. We grant liberty to the petitioner to agitate further grounds for his prayer for further investigation which may not have been referred at paragraph 26 of the petition. We, accordingly, direct the learned Magistrate to decide such application, if tendered by the petitioner, as expeditiously as possible and in accordance with law. We also grant liberty to the petitioner to challenge the order of the Magistrate if it is adverse to the interest of the petitioner. Since the petitioner cannot make a request before the learned Magistrate for transfer of the investigation either to the CBI or to the State CID, we grant liberty to the petitioner for filing appropriate proceedings including a writ petition in this court, praying for the said reliefs as and when occasion arises for the petitioner to pray for the same reliefs. 6 Writ petition is accordingly, dismissed as withdrawn with liberty as aforesaid. [M.N.GILANI,J.] [P.V. HARDAS, J.]