R.A. Mehta, J.
1. The petitioner-original accused, has filed this petition dated 16th September 1982 with a prayer that the order dated 28th September 1981 passed in Criminal Case No. 602 of 1981 directing the police to make further investigation be quashed and that the proceedings of the Criminal Case No. 910 of 1982 started in pursuance of the further investigation also be quashed.
2. One Induprasad Mangaldas Kachia had lodged a complaint in respect of one pump having been stolen from his field before the Dholka police. The police investigated the offence and charge-sheeted the petitioner for an offence under Section 379, I.P.C. It appears that the learned Magistrate took cognizance and registered the case as Criminal Case No. 602 of 1981. It also appears that plea of the accused was recorded. On 4th September 1981 the complainant submitted an application to the learned Magistrate pointing out that the police had not made a complete and proper investigation; that the pump was a very heavy and bulky article and it could not have been removed single handed and there might be other persons involved in the crime and it may have been transported in a vehicle and may have been sold and all the other persons involved in the case are required to be traced by proper police investigation and, therefore, the complainant requested the learned Magistrate to direct the police for further investigation. The application was fixed for hearing and after hearing the learned Magistrate passed an order on 28th September 1981 and observed that reading the report of the investigating officer, it appeared that there was scope for further investigation in the case so that other facts can be brought out and, therefore, in the interest of justice, the trial Court directed further investigation by the police and the charge-sheet was returned with direction to submit a report of investigation. Against this order the accused did not take any proceedings.
3. Thereafter the police investigated further and made a report to the Court and in that report no new facts or new accused are indicated and the learned Magistrate has registered the criminal case under a new number being Criminal Case No. 910 of 1982. In this case the petitioner gave as application to discharge him and pleaded double jeopardy. The learned Magistrate rejected that application by his order dated 18th August 1982. Being aggrieved thereby the petitioner has challenged that order also in the present Misc. Criminal Application.
4. The Learned Counsel for the petitioner has contended that the learned Magistrate having once taken cognizance in the Criminal Case No. 602 of 1981 had no power or jurisdiction to order further investigation by the police under Section 156 of Criminal Procedure Code and the order returning the charge-sheet amounts to discharge and acquittal of the accused and, therefore, he cannot be tried for the same offence again. This submission is misconceived. There is no discharge or acquittal. In fact that proceeding has not terminated at all. The question whether the learned Magistrate could have directed further investigation by the police is in a way academic because the police after further investigation has not reported any new fact and/or involved any new accused. The learned Magistrate had taken cognizance on the earlier charge-sheet against the petitioner-accused and that proceeding has not been terminated or disposed of by any order of quashing the process, discharge, acquittal or conviction. Really speaking, the additional report of the police should have been received in the earlier Criminal Case No. 602 of 1981 and not re-registered as new Criminal Case No. 910 of 1982. Registering a new case has enabled the petitioner-accused to contend that he is being tried for the same offence again. Really speaking, there is no second trial. The registering of the new criminal case is merely an irregularity and no illegality is committed and, therefore, nothing is required to be quashed.
5. The Learned Counsel for the petitioner has contended that after the learned Magistrate having taken cognizance on the charge-sheet and registering Criminal Case No. 602 of 1981, had no jurisdiction or power to direct further investigation by the police and has relied on the judgment of the Calcutta High Court in the case of Jitendra Nath Ghosh and Anr. v. The State 1976 Cri. L.J. 1296. In that case the Magistrate had accepted the report submitted by the police under Section 173(2) and proceeded with the trial of the case and three of the accused persons were convicted and sentenced. Thereafter the learned Magistrate had directed further investigation by the police at the time of consideration of the charge against the remaining accused, and the Calcutta High Court held that the Magistrate having proceeded with the trial of the case had no power under Section 173(8) of the Code to direct police to make further investigation and 'in all such circumstances, the impugned order cannot be sustained and must be set aside'. With this observation the High Court set aside the order of further investigation and sent back the case for disposal in accordance with law, from the stage prior to passing of the impugned order of further investigation. Even if this judgment lays down the correct ratio and is applied to the facts of the present case, the first Criminal Case No. 602 of 1981 has to proceed from the stage when the learned Magistrate had directed further investigation by the police. The resultant further investigation has not brought out anything new except a new number of the Criminal Case (No 910 of 1982). Therefore, there is no illegality.
6. However, on principle it is difficult to agree with the ratio and interpretation of Section 173(8) of the Code made by the Calcutta High Court. Section 173(8) is in absolute and wide terms, namely, '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 the police authorities have the power 'to forward to the Magistrate a further report or reports' regarding the further evidence, oral or documentary, and in relation to such further report or reports, the provisions of Sub-section (2) to (6) shall apply. It is thus clear that the police have the right and authority to make subsequent and additional report or reports even after cognizance is taken by the Magistrate on the charge-sheet or report submitted by the police in the first instance and on such further report the Magistrate is to take further proceedings in accordance with law as laid down in the Code. If there is an authority which is competent to make additional report or reports there does not appear to be any reason why the Court should not have power to direct the authority to make further report.
7. In the case of Deepak Dwarkadas Patel and Anr. v. State of Gujarat 21 G.L.R 135, the police had submitted a charge-sheet against some accused and a number of witnesses were named in the charge-sheet. At the time of framing of the charge the Public Prosecutor orally mentioned before the learned Magistrate that two persons were initially named as accused in the F.I.R. but were cited as witnesses in the charge-sheet. However, in his opinion they were required to be made accused. The matter was adjourned and thereafter the investigating officer submitted an additional charge-sheet seeking to delete the petitioners from the list of witnesses and prayed for their being impleaded as accused. The learned Magistrate had accepted the charge-sheet. These additional accused carried the matter to the High Court and the High Court held that under Clause (8) of Section 173, which was newly added in the Code, the power was reserved for the police station officer to submit an additional charge-sheet. The Court further held that this power of making an additional report was not confined to further investigation and discovery of new material. It was held to be wide power in the form of enabling provision and the police officer does not become functus officio once the charge-sheet was filed. The police officer was held to be competent under Section 173(8) to file an additional charge-sheet. The High Court held that the power of the investigating officer cannot be restricted to recovery or discovery of new material. Thus, this Court has recognised the power of the police authorities to make additional report or reports after the Magistrate has taken cognizance.
8. The learned Magistrate has merely directed the authorities competent to make further investigation and report. It cannot be said that there is any illegality committed by the learned Magistrate. It is not possible to agree with the view taken by the Calcutta High Court.
In the result, the application fails and is rejected. Rule discharged. Interim relief vacated.