1 wp19811 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 198 OF 2011 Amol Pandharinath Vedak ...Petitioner V/s. The State of Maharashtra & Ors. ...Respondents Mr. R.V. Sipahimalani for the Petitioner Mr. D.P. Adsule, A.P.P., for the State. CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 2ND FEBRUARY, 2011 P.C.:- By this petition under Article 226 of the Constitution of India, it is prayed that further investigation in the matter may be directed to be carried out by the C.B.I. or such other suitable investigating agency. Also, to direct the trial Court to allow the respondents to carry out further investigation as ordered by the Metropolitan Magistrate vide his order dated 20th December, 2010. 2 wp19811 2. Insofar as the second relief is concerned, what is noticed is that the petitioner, in the first place, approached the trial Court where the case has already been committed upon filing of police report under Section 173(2) as well as 173(8) of the Code of Criminal Procedure. The petitioner applied to the trial Court seeking order under Section 156(3) read with 173(8) of the Code. That application, being Exhibit 10 in S.C. No. 701 of 2008, was rejected by the Sessions Court on the finding that the question of issuing order to investigate under Section 156(3) of the Code cannot be granted by the Sessions Court. At the same time, it observed that the stage for issuing such direction had already exhausted in the facts and circumstances of the present case after filing of the police report under Section 173(2) and cognizance taken on the basis of the said report, coupled with the fact that the matter is already committed to the Sessions Court for trial. 3. Insofar as direction for further investigation under Section 173(8) of the Code is concerned, the Court observed that the legal position is well settled that it is open to the Investigating Officer to proceed with further investigation if the fact situation so warrants. That order is dated 17th January, 2009. In our opinion, the purport of that order, in no way, allowed the petitioner to, once again, go back to the 3 wp19811 Magistrate to invite direction under Section 156(3) of the Code. Under some misconception, the petitioner did approach the Magistrate, and unfortunately, the Magistrate also proceeded to issue direction to the Investigating Officer vide order dated 20th December, 2010. But the direction was to conduct further investigation which could be done only in terms of Section 173(8) of the Code by the Investigating Officer. In other words, the order passed by the Magistrate dated 20th December, 2010 cannot be taken forward, as it is without authority of law. 4. We are conscious of the fact that the prosecution has not challenged the said order, though it ought to have done so. Even so, the petitioner cannot succeed on the bass of some illegal order passed by the Magistrate, and persuade this Court to exercise its Writ Jurisdiction to direct the parties and all concerned to act upon such illegal order. Suffice it to observe that the question of accepting the grievance of the petitioner, which is founded on the order dated 20th December,2010 passed by the Magistrate, cannot be countenanced. 5. The other relief made is about issuing direction to the respondents to transfer the investigation to independent agency. 4 wp19811 The counsel for the petitioner submits that the investigation already done by the State C.I.D. is not proper, and is replete with deficiencies. In his opinion, the matter requires further investigation at least in the context of the issues raised by the petitioner. 6. Insofar as the grievance of the petitioner that the matter requires further investigation is concerned, that ought to have been made, in the first instance, before the trial Court itself. Whether the trial Court accepts that grievance or otherwise is a different matter. If the trial Court were to be convinced that the issues raised by the petitioner are pertinent, it would be free to pass such orders as may be warranted in the fact situation of the present case. The petitioner intends to exhaust that remedy before the trial Court. We have no difficulty in giving liberty to the petitioner to approach the trial Court by way of formal application inviting directions as may be permissible in law. It will be open to the trial Court to pass appropriate orders, in accordance with law, on such application. 7. Accordingly, this petition is disposed of on the above terms. A.R. JOSHI, J. A.M. KHANWILKAR, J.