JUDGMENT
G. Sasidharan, J.
1. An order made by the Judicial Magistrate of the First Class, Irinjalakuda refusing to give direction for conducting further investigation of the crime by saying that the Magistrate has no power to give such direction is under challenge. The petition was filed before the Magistrate by the defacto complainant requesting that further investigation of the crime has to be conducted. The Magistrate took the decision that he has no power for giving direction for conducting further investigation. The question whether in the circumstances of the case it was necessary for giving direction for conducting further investigation of the crime was not considered on merits.
2. The learned Magistrate took cognizance of the offence and it was after that
the defacto complainant filed an application for giving direction to the investigating
agency to conduct further investigation of the crime. Even though the order does not
say that the Magistrate has no power to direct further investigation of a case in which
cognizance of the offence was taken by the Magistrate what has to be understood
from a reading of the order is that the dismissal of the application for giving direction
for conducting further investigation was for the reason that the Magistrate has no
power to do that.
3. In Sri Bhagwan Samardha Sreepad Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and Ors. AIR 1999 SC 2332 the Supreme Court had the occasion to consider about the powers of the court under Section 173(8) Cr.P.C. for giving direction for conducting further investigation. That was a case in which police filed final report before the Magistrate after conducting investigation referring the case as “mistake of fact”. But the Magistrate was not prepared to accept the report filed by the police and made an order for further investigation of the crime. Further investigation was conducted by the investigation agency and an additional report was filed saying that the accused committed the offence. The Magistrate took cognizance of the offence on receipt of the report and issued warrant of arrest against the accused. When the accused approached the High Court for quashing the proceedings on the ground that the Magistrate had no jurisdiction to order further investigation after receipt of the first report of the police and that the allegations in the complaint would not constitute an offence, the High Court dismissed the petition and the matter was taken up before the Supreme Court. The Supreme Court said that the Magistrate has the power to order further investigation in a crime in which final report had already been filed by the investigating agency. Here, the question which comes up for consideration is whether the Magistrate can direct further investigation of the crime after taking cognizance of the offence. In paragraph 30 of the judgment the Supreme Court says that police have the power to conduct further investigation after filing final report and that power is recognised under Section 173(8) Cr.P.C. The Supreme Court held that even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. The Court went on to say that the only rider is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. After saying that even after the court takes cognizance of any offence on the strength of police report first submitted, it is open to the police to conduct further investigation, the Supreme Court observed that in such a situation the powers of the court to direct the police to conduct further investigation cannot have any inhibition. In making the above observation what the Supreme Court said was that the Court is having the power to direct the police to conduct further investigation and that observation has to be understood as one by which the Supreme Court held that even after the court takes cognizance of the offence, the Court can direct the investigating agency to conduct further investigation in the crime.
4. Section 173(8) Cr.P.C. says that nothing in that 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. On conducting further investigation, the officer in charge of the police station if he obtains further evidence, oral or documentary, has to forward to the Magistrate a further report or reports regarding such evidence. The question of conducting further investigation in a crime arises after filing of final report under Sub-clause (2) of Section 173 Cr.P.C. The Magistrate has the power to give direction to the investigating agency to conduct further investigation of a crime if it is found that there is need for conducting such investigation. A reading of Section 173(8) will not go to show that in exercising the powers under that sub-clause, the court cannot give direction for conducting further investigation of the crime in a case in which he has taken cognizance of the offence on the basis of a report filed under Sub-clause (2). There is no provision in the Cr.P.C. which says that the Magistrate who has taken cognizance of an offence on the basis of a report filed under Section 173(2) Cr.P.C. cannot direct further investigation of the offence. In giving direction for conducting further investigation, what the Magistrate does is directing the investigating agency to exercise jurisdiction which that agency is having under Section 173(8) of the Code. If the investigating agency has the power to conduct further investigation under Section 173(8) of the Code even after a court has taken cognizance of the offence on the basis of a report filed under Section 173(2), there is no reason for saying that after taking cognizance of the offence, a court cannot ask the investigating agency to exercise jurisdiction which has been conferred on that agency under Section 173(8) of the Code. A criminal court can direct that further investigation has to be conducted in respect of an offence even after taking cognizance of the offence on the basis of a report filed udner Section 173(2) of Code. That power has to be exercised with circumspection and not without having due consideration of the consequences.
5. The view taken by the learned Magistrate that the Magistrate has no power to direct further investigation does not appear to be correct. The Magistrate has to take a decision on the application on merits. Ext. P7 order is quashed directing that Ext. P6 petition has to be decided on merits.
The Original Petition is disposed of as above.