The Bombay High Court  has  held that even after charges are framed, a court can still consider an application for further investigation under Section 173(8) of the CrPC. However, this power should not be used as a matter of routine. It can be exercised only when there are strong and valid reasons showing serious gaps or lapses in the investigation. The Court emphasised that an investigation is considered fair if it has been given sufficient opportunity to examine the case, and it should not be questioned unless there are clear and convincing grounds that cast doubt on its fairness or credibility.

Background:

Justice S.M. Modak adjudicated a criminal application filed  by the accused challenging  the Additional Chief Metropolitan Magistrate's order of December 14, 2018, in a private complaint arising  from business dealings between the complainant's and the  accused's firms.

 The Vakola Police Station first probed the matter and filed a report deeming it civil in nature, which the Magistrate accepted; the High Court later overturned that, prompting an Economic Offences Wing (EOW) inquiry. The EOW too filed an 'A' summary report, which the Magistrate dismissed, issuing process against the accused. Post-charge framing, the complainant sought further investigation via Section 173(8), which the Magistrate granted, prompting this challenge.

Acknowledging the Magistrate's authority to order further probe even after  taking cognizance and  framing charges, the Court clarified that  this discretion  is limited and must be carefully used.

The court noted, “… 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 noted  that the Magistrate relied on general judicial observations without applying the principles to the facts of the case, and failed to recognize the difference between the wide powers of higher courts and the limited authority of a trial court.

 The court ruled that the Magistrate had no strong reason to doubt the investigation, and that just claiming mistakes or asking to add new accused, without proof of serious problems, is not enough to reopen the case after charges are framed.

The judge stated, “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  granted the criminal application, set aside the December 14, 2018 order for further investigation, and rejected the complainant's Section 173(8) of the CrPC plea.

Case Title: Dineshkumar Gokuldas Kalantry v. State of Maharashtra & Anr. [CRIMINAL APPLICATION NO.573 OF 2019]

Appearance: 

Advocates for Applicant: Mr.Aabad Ponda (Sr.Advocate) i/b. Mr.Karan L. Jain

APP for Respondent No.1-State: Mr.H.J.Dedhia

Advocate for Intervenor in Interim Application No.295: Mr.Jamshed Ansari

Advocates for Respondent No.2: Mr.Subhash Jha a/w Mr.Siddharth Jha, Mr.Sumeet Upadhaya, Mr.Ashish Saxena and Mr.Chetan Gogawale i/b.Law Global Advocates