JUDGMENT
J.K. Mohanty, A.C.J.
1. The husband of the petitioner, Baikuntha Nath Patnaik, and her two sons, Biranchi and Bikram were charge-sheeted by the police on 5.9.1983 and were committed to the Court of Session for committing offences under Sections 302 and 201 read with Section 34 I. P. C The allegation against them was that they committed murder of Swarnalata (daughter-in-law of Baikuntha and wife of Biranchi) and caused disappearance of evidence of the offence committed and gave false information that the death of Swarnalata was by suicidal hanging. While the matter stood thus, the I. O. submitted a supplementary charge-sheet on 18.1.1984 arraying the petitioner as an accused. The petitioner thereafter was committed to the Court of session to stand trial. So he filed Criminal Revision No. 92 of 1984 to quash the order of commitment. This Court, by order, dated 23.3.1984 was pleased to dismiss the revision petition with the observation that the learned Sessions Judge is to consider as to whether charge should be framed against the petitioner or not. The learned Sessions Judge, by his order dated. 9/16.5.1984 directed framing of charge against the present petitioner under Sections 302 and 201 read with Section 34, I. P. C. Against the aforesaid order, the petitioner has come up in revision.
2. Miss. Ghose, learned counsel appearing on behalf of the petitioner, submitted that, after the cognizance of the offence had been taken and the three accused persons had been committed to the Court of session, the police had no power to submit a supplementary charge-sheet except on receipt of further evidence, oral or documentary.
3. The question for consideration, therefore, is as to whether without obtaining further evidence, oral or documentary, further report can be submitted by the police. Section 173 of the Code of Criminal Procedure provides that on completion of investigation, the officer-in-charge of the police station shall forward a report to a Magistrate empowered to take cognizance of the offence. Section 173(8) of the Code of Criminal Procedure provides that further investigation in respect of an offence can be made after a report under Sub-section (2) of Section 173, Cr. P. C, has been forwarded to the Magistrate and if the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed Section 173(8) of the Code of Criminal Procedure is as follows:
“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, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).”
This is a new provision which has been inserted in the Code of Criminal Procedure of 1973 empowering the police to make further investigation in respect of the offence after submission of charge-sheet and under this provision a supplementary charge-sheet can be submitted if on further investigation fresh evidence is available. The question now for consideration is whether in the present case a supplementary charge-sheet has been submitted by the police on the basis of further evidence, oral or documentary, obtained regarding the offence. The supplementary charge-sheet reveals that reliance was placed on the further statement of Kunjalata Mohapatra, who was earlier examined by the police and of another Purna Chandra Prusty. According to the learned counsel for the petitioner Kunjalata has not added anything to her previous statement. The I. O. has stated in the report, “On further examination she repeated her previous statement and added nothing more important on the point raised in the S. note of D. I. G.” On a careful perusal of the statement of Purna Chandra Prusty made before the police, it transpires that he has not made any statement from which it can be gathered that the petitioner has committed any offence. Purna Chandra Prusty has only stated, “On the next day he heard a rumour which had been spread in Puri town that Biranchi and his family members murdered Biranchi’s wife. There is nothing incriminating against the petitioner and under the provisions of Section 173(8) of the Cr. P. C, supplementary charge-sheet cannot be filed without further investigation by the police and without obtaining any further evidence against the petitioner. Under the provisions of Section 173(8) of the Cr. P.C. the police is not precluded from investigating further into the case in respect of the offence after a report under Sub-section (2) of this section has been forwarded to the Magistrate. If the officer-in-charge obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). So supplementary charge-sheet cannot be submitted without making “further investigation and without obtaining further evidence, oral or documentary, in respect of an offence. Learned counsel for the petitioner cited a decision reported in 1981 Cri. L. J. 976 : Ramesh Lal Yadav and Ors. v. The State Of Bihar, in support of his contention. In that case no further investigation was at all done before submission of the supplementary charge-sheet, and it has been held that supplementary charge-sheet cannot be submitted without making further investigation and without obtaining further evidence. After a careful consideration of the argument of both sides and the facts and circumstances of the case, we are of the view that no further evidence, oral or documentary, has been obtained by the I.O. in this case against the present petitioner. So the order of the Sessions Judge directing framing of the charge against the petitioner is not justified.
In the result, the revision is allowed and the impugned order of the Sessions Judge, dated 9/16. 5. 1984 is set aside.
B.K. Behera, J.
4. I agree.
