1. This is a reference by the Addl. District Magistrate, Keonjhar, against an order passed by a First Class Magistrate of Keonjhar in a commitment proceeding under section 302, Indian Penal Code, against the opposite party.
2. The local Police, after usual investigation, submitted charge-sheet against the opposite party under section 302, I. P. C. on 30-3-51. TheSub Divisional Magistrate of Sadar, Keonjhar transferred the case to Mr. K. K. Bannerji, Magistrate, First Class. That Magistrate, after 2 or 3 adjournments, took up the case on 21-5-51 for enquiry under Chapter XVIII of the Criminal Procedure Code. But on that date, though 7 prosecution witnesses were present, the Prosecuting Inspector filed a petition for adjournment saying that the investigation of the case had to be reopened and some other witnesses examined. He also prayed for permission to be accorded to the Investigating Officer to make further investigation into the case. The Investigating Officer also filed a similar petition before that Magistrate. The learned Magistrate thought that the reopening of the investigation at such a belated stage would be prejudicial to the accused persons and, therefore, passed the following order:
'Under the circumstances and for the reasons stated above I reject the petitions filed by the P. I. and the I. O. and disallow further investigation by the I. O. But however, I allow the prosecution to file a supplementary list of witnesses before commencement of hearing tomorrow.'
On the next date (22-5-51), one of the prosecution witnesses was examined and cross-examined. Then an adjournment was taken for moving the Superior Court in revision against the order passed by the Magistrate on 21-5-51.
3. It is now well settled that the Police have the right to reopen investigation even after submission of charge-sheet under section 173, Criminal Procedure Code, if fresh facts come to light. (See -- 'Divakar Singh v. Ramamurthi Naidu', 19 Cri LJ 901 (Mad); -- 'Mohinder Singh v. Emperor', AIR 1932 Lah 103 at p. 109; -- 'Hanumantha Gowd v. Official Receiver, Bellary', AIR 1946 Mad 503 and -- 'Mohd. Niwaz v. The Crown', 48 Cri LJ 774 (Lah) ). Such fresh investigation can be made even after, commitment proceeding had commenced and even after commitment proceeding had terminated. Doubtless the fact that such witnesses were examined at a belated stage may be one of the circumstances for discrediting the testimony of those witnesses during trial unless reasonable explanation can be offered for such delay. This, however, is a matter for the trial Court to decide. Consequently, the order of the First Class Magistrate of Keonjhar in disallowing further investigation by the Police is without jurisdiction and must be set aside. Doubtless if he had refused to grant adjournment and continued the enquiry, his order, being of a discretionary nature, could not be questioned. He could have examined the witnesses produced in Court and decided whether to frame a charge and commit the accused to the Court of Sessions or to discharge them. But independent of his commitment enquiry, the Police also could have reopened the investigation if fresh facts came to light. There is no bar to the Public Prosecutor citing new list of witnesses before the commencement of the Sessions trial and the Sessions Judge will-exercise his discretion in allowing the examination of such additional witnesses bearing in mind the principles laid down in -- 'Mt. Niamat v. Emperor', 37 Cri LJ 742 (Lah) (FB) and --'Emperor v. Mukhtiyar Khan', AIR 1942 Bom 207 about avoiding prejudice to the accused persons. But as I have already pointed out, the value to be attached to the evidence of those witnesses who were examined at such a belated stage is mainly a question for the consideration of the Sessions Judge. There is no question of the Police requiring the permission of the Committing Magistrate before reopening investigation once commitment proceeding had commenced and the Magistrate has no jurisdiction to disallow further investigation.
4. I would, therefore, accept the referenceand set aside the aforesaid order of theMagistrate dated 21-5-51. His discretion tocontinue the commitment proceeding from thestage at which it was left on 23-5-51 is notinterfered with in any way; but if prior to hisfixing a date for continuing the enquiry thePolice succeed in completing the supplementaryinvestigation and give a further list of witnessesto be examined on the side of the prosecution,the Magistrate may examine them and thenproceed, in accordance with the provisions ofChapter XVIII of the Criminal Procedure Codeand either discharge the accused or committhem for trial to the Court of Sessions if he issatisfied about the existence of a prima faciecase.