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TMI Blog2009 (8) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. ince no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) Cr.P.C., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. No reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial. - Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and Anr. (1981) 1 SCC 500. The said submission was accepted by the High Court. 5. Apart from the above, the learned Single Judge also took the view that merely because out of sixteen accused persons ten had been discharged, it did not necessarily mean that they could not be tried subsequently. The learned Judge then referred to the provisions of Section 319 Cr.P.C. which empowers the court to proceed against the other persons if any material is disclosed against them during the trial. The learned Single Judge observed that although the Magistrate could not direct reinvestigation on the basis of an application made by the de facto complainant and that too on the technical ground of non-service of notice upon him, he could take recourse to Section 319 Cr.P.C. at the stage of trial. 6. Having regard to the view taken by him, the learned Single Judge by his order dated 31st January, 2007, allowed the revisional application and directed the trial court to proceed with the case, in accordance with law. 7. Appearing on behalf of the petitioner, Mr. Jaideep Gupta, learned Senior Advocate, urged that the application filed on behalf of the petitioner herein was really for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port by the Magistrate does not debar him from taking cognizance of the offence if on further investigation fresh material came to be discovered. 11. Mr. Gupta urged that since in Sub-section (8) of Section 173 Cr.P.C. there is no express prohibition, the Magistrate was always within his jurisdiction to order a further investigation into the question of discharge of ten of the sixteen accused persons. Mr. Gupta submitted that the order of the High Court was contrary to the provisions of Section 173(8) Cr.P.C. and was, therefore, liable to be quashed. 12. Mr. K.K. Venugopal, learned Senior Advocate, on the other hand, urged that the order of the learned Magistrate, which had been quashed by High Court, could not be supported since it had been passed by the learned Magistrate without jurisdiction. Re-emphasizing the provisions of Section 362 Cr.P.C., Mr. Venugopal submitted that the order passed by the learned Magistrate on 20th August, 2004, amounted to review of his order dated 9th July, 2004, which he was not competent to do. Mr. Venugopal submitted that Magistrates being creatures of statute, cannot act in excess of the powers vested in them by the statute. Mr. Venugopal su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact that he had already passed an order of discharge of ten of the accused persons and such an order is contrary to the provisions of Section 362 Cr.P.C. As has been rightly held by the High Court, having regard to the decisions of this Court in the Master Construction Co. (P) Ltd.'s case AIR 1966 SC 1047 and the Sankatha Singh' s case AIR 1962 SC 1028, which were reflected in Sooraj Devi's case (supra), having passed a final order framing charge against six persons and discharging the remaining accused persons, it was no longer within the Magistrate's jurisdiction to direct a re-investigation into the case. 16. The aforesaid question was considered by a three Judge Bench of this Court in Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338, on a reference made with regard to the correctness of the law laid down by the Supreme Court in K.M. Mathew v. State of Kerala (1992) 1 SCC 217, where it was held that the Court issuing summons was entitled to recall the same on being satisfied that the issuance of summons was not in accordance with law. Holding that the said decision did not lay down the correct law, this Court held that the Magistrate had no jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 167(2) of the Code. 20. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. 21. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) Cr.P.C., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. 22. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the exam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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