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S.173(8) CrPC | Magistrate Not Barred To Order Further Investigation After Taking Cognizance, Until Trial Commences: Orissa HC Reiterates

Jyoti Prakash Dutta
7 Dec 2022 11:45 AM GMT
S.173(8) CrPC | Magistrate Not Barred To Order Further Investigation After Taking Cognizance, Until Trial Commences: Orissa HC Reiterates

The Orissa High Court has reiterated that the power of Judicial Magistrates to order further investigation under Section 173(8) of the Code of Criminal Procedure is not taken away only because cognizance was taken of an offence.

A Single Judge Bench of Chief Justice Dr. S. Muralidhar, while clarifying the position of law, placed reliance on 2019's three-judge bench ruling of the Supreme Court in Vinubhai Haribhai Malaviya v. The State of Gujarat, wherein after overruling certain previous contradictory judgments, the Court held,

"It is thus clear that the Magistrate's power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the "investigation" referred to in Section 156(1) of the CrPC would, as per the definition of "investigation" under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC."

The challenge in the instant petition was to an order dated 10th April, 2017 passed by the S.D.J.M., Rourkela declining the prayer of the petitioner for further investigation of the case. The S.D.J.M. rejected the prayer only because cognizance had already been taken of the offence under Section 363, IPC on 4th November, 2014.

Having regard for the settled position of law, the Court set aside the impugned order and directed,

"In that view of the matter, the impugned order of the trial Court is hereby set aside. The effect of the present order would be that the prayer of the Petitioner would stand allowed and the Magistrate will pass appropriate orders regarding further investigation under Section 173(8) Cr.P.C."

Case Title: Manoj Kumar Agarwal v. State of Odisha

Case No.: CRLMC No. 1794 of 2017

Order Dated: 2nd December 2022

Coram: Dr. S. Muralidhar, CJ.

Counsel for the Petitioner: Mr. Partha Sarathi Nayak, Advocate

Counsel for the Respondent: Mr. Ishwar Mohanty, Additional Standing Counsel

Citation: 2022 LiveLaw (Ori) 162

Click Here To Read/Download Order

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