Can a judicial magistrate order further investigation under Section 173(8) of the Criminal Procedure Code after taking cognizance on charge sheet?

The Calcutta High Court has held that a magistrate has ample power to direct further investigation after submission of the charge sheet by the police even when cognizance has been taken on the charge sheet.

Justice Shivakant Prasad, while deciding a revision application, said, “I hold that the submission of a report under Subsection 173(2) does not preclude the power of the Magistrate to direct further investigation by the investigating agency and submission of supplementary charge sheet thereon notwithstanding the Magistrate has taken cognizance of the offence on a police report submitted under the said provision although such power may be precluded at the culminating stage of trial after cognizance has been taken on framing of charge against the accused on the basis of the Final Report.”

In the instant case, petitioner Indranil Mukherjee had approached the high court assailing the charge sheet filed by the police in a case of assault on July 29, 2016, under Sections 341/325/506 IPC and order dated May 4, 2017, passed by the Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas.

The petitioner had filed an FIR alleging that on May 26, 2016, while he was going to meet his sharebroker, he was restrained by one Rabindranath Bhattacharjee and Ramkrishna Ghosh with two other unknown persons who jointly assaulted him to settle a personal grudge.

The petitioner suffered injury and was shifted to Salt Lake Sub-Divisional Hospital and then to Emergency Ward of NRS Medical College & Hospital.

On May 27, 2016, before getting admitted to the hospital, the petitioner went to Bidhannagar (E) Police Station to lodge a complaint against the culprits namely, Rabindranath Bhattacharjee and Ramkrishna Ghosh, but the officer concerned refused to accept the complaint.

He then wrote to the Commissioner of Police but in vain.

After his treatment at the hospital, the petitioner once again pursued the matter and the police finally filed a charge sheet but booked only accused Rabindranath Bhattacharjee and were silent on accused Ramkrishna Ghosh.

Aggrieved with the charge sheet, the petitioner filed an application for a further investigation under Section 173(8) of the Code but his plea was rejected by the magistrate on May 4, 2017, on the ground that charge sheet has been taken cognizance of and therefore, further probe cannot be ordered.

The petitioner moved high court for setting aside the order of the magistrate on the ground that despite specific allegation against Respondent No. 2 (Ghosh) in the FIR, neither the same was considered by the I.O. during investigation nor did the magistrate consider it while taking cognizance on the charge sheet.

Advocate Ayan Bhattacharya appearing for the petitioner submitted that the magistrate erred in law by holding that magistrate has no power to allow further investigation on the prayer of the complainant after cognizable is taken on the charge sheet or to suo motu call for further investigation unless the same is called by the police.

The court’s attention was invited to formal FIR Annexure- P which revealed that both Rabindranath Bhattacharjee and Ramkrishna Ghosh were arraigned as accused for assaulting the complainant and that while the complainant was medically examined at NRS Medical College Hospital, he gave the history of assault by the said persons inflicting injury on him.

“In the Final Report, I.O. has exonerated one of the accused Ramkrishna Ghosh. Admittedly the learned Magistrate has already taken cognizance against the charge sheeted accused namely Rabindranath Bhattacharjee on 05.8.2016 and issued service of notice on the petitioner impliedly informing him that I.O. has sought for discharge of the said accused Ramkrishna Ghosh as not sent up in the charge sheet. The I.O. does not appear to have taken into consideration medical evidence and the statement of the injured before submission of the Final Report which has resulted in the abuse of power vested in the I.O,” noted the high court.

While refusing to entertain the application of the de facto complainant for further investigation, ACJM, Bidhannagar, had relied on a decision of the Supreme Court in case titled Amrut Bhai Patel vs. Suman Bhai Kanti Bhai Patel and Ors to conclude that de facto complainant cannot insist for further investigation in view of the interpretation of the apex court in the cited decision, especially when cognizance has already been taken in respect of the offence alleged.

The high court noted that “[i]n the instant case as it is revealed from the materials on record that the charge sheet has been submitted against one accused and another accused was not sent up who allegedly assaulted the complainant. It was the complainant who approached the learned Magistrate only after having the information and notice with regard to the submission of the charge sheet. Therefore, it was expedient on the part of the learned Magistrate to have disposed of the application for further investigation under Section 173 (8) of the Code”.

“…I am of the considered opinion that the Magistrate has ample power to direct further investigation after submission of the charge sheet by the police even when cognizance has been taken on the charge sheet because the decision in Amrut Bhai case (supra) is on a different set of facts as it was at culminating stage of argument,” said Justice Prasad.

“Thus, in the larger interest of the justice and for fair trial, it is imperative for the Magistrate to grant further investigation because if the order impugned is allowed to be sustained, it will amount to arming the police with unbridled power to exonerate any person from the periphery of the investigation and it would be playing into the hands of the I.O. who submitted the charge sheet against one accused exonerating another by not sent up him in the charge sheet with an ulterior design.

“Ergo, I direct learned Additional Chief Judicial Magistrate, Bidhannagar to decide on the final report of the Investigating Agency on consideration of the police papers placed in the Case Diary before he takes cognizance on the final report. In consequence thereof the order impugned stands set aside,” the high court ordered.