Further Investigation U/S 173(8) CrPC After Framing Of Charge Cannot Be Ordered Routinely; Must Be Backed By Reasons: Bombay High Court

The Bombay High Court has held that though an application for further investigation under Section 173(8) of the Code of Criminal Procedure may be maintainable even after framing of charge, such power cannot be exercised mechanically or routinely, and must be supported by strong and justifiable reasons demonstrating serious lapses in investigation. The Court observed that a fair investigation implies sufficient opportunity to conduct the investigation, and one cannot challenge the investigation unless there is justifiable ground to doubt the investigation.Justice S. M. Modak was hearing a criminal application filed by the accused challenging the order dated 14 December 2018 passed by the Additional Chief Metropolitan Magistrate in a private complaint case arising out of commercial transactions between the complainant's firm and the accused's firm. Initially, Vakola Police Station investigated the complaint and submitted a report treating the dispute as civil, which was accepted; that order was later set aside by the High Court, leading to an investigation by the Economic Offences Wing. The EOW also submitted an 'A' summary report. The Magistrate rejected the summary and issued a process against the accused. After framing of charge, the complainant moved an application under Section 173(8) seeking further investigation, which was allowed by the Magistrate, leading to the present challenge.While recognising that the Magistrate does have the power to order further investigation even after cognisance and framing of charge, the Court emphasised that such power is not unfettered and must be exercised sparingly.“… Complainant's application under Section 173(8) is maintainable even after framing of charge. Whether to allow such application is question to be decided on facts and circumstances. If it is at fag end of trial, the Court should be reluctant to allow it,” the Court observed.The Court noted that the Magistrate had relied on general observations from judgments without applying the correct ratio to the facts of the case, and had failed to distinguish between the wider powers of constitutional courts and the limited jurisdiction of a trial court.The Court held that the Magistrate had not recorded any justifiable reason to doubt the fairness or adequacy of the investigation. The Court observed that merely alleging faulty investigation or seeking arraignment of additional accused, without demonstrating serious lacunae, cannot justify reopening the investigation after framing of charge. It observed:“Fair investigation implies sufficient opportunity to conduct investigation. It also implies an opportunity to the Complainant put forth any fault in the investigation. However, pointing out fault does not mean you can challenge the investigation unless there is justifiable ground thereby doubting investigation.”Accordingly, the High Court allowed the criminal application, quashed and set aside the order dated 14 December 2018 directing further investigation, and dismissed the complainant's application under Section 173(8) of the CrPC. Case Title: Dineshkumar Gokuldas Kalantry v. State of Maharashtra & Anr. [CRIMINAL APPLICATION NO.573 OF 2019]Click Here To Read/Download Order

Further Investigation U/S 173(8) CrPC After Framing Of Charge Cannot Be Ordered Routinely; Must Be Backed By Reasons: Bombay High Court

Saksham Vaishya

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