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Submitted By: Prakash Naidu Advocate

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Gajanan v. State of Maharashtra (Bombay) : Law Finder Doc Id # 369293

2000(2) CCR 109
BOMBAY HIGH COURT
Before:- J.N. Patel, J.
Criminal Application No. 89 of 1999. D/d. 16.3.1999.
Gajanan - Applicant
Versus
State of Maharashtra & Ors. - Non-Applicants
For the Applicant :- Mr. Vishal Umre, Advocate.
For the Non-applicant No. 1 :- Mr. Ramesh Agarwal, A.P.P.
A. Criminal Procedure Code, 1973, Section 173 (8) - Further Investigation - Power under
Section 173 (8) can be used only when further facts or material come to light - It cannot
be used to fill up any lacuna in prosecution case - In instant case, Investigating officer
had admittedly not seized the blood-stained clothes of that stage of investigation of case
and has filed the report without such seizure - He did not sought permission of court for
further investigation and then moved the court for tendering the blood-stained clothes
by way of filing further report regarding such evidence - Complainant on his own after a
lapse of 16 months, when case was fixed for recording evidence sought to tender blood-
stained clothes for used as evidence - Absence of any procedure permitting complainant
to tender further evidence not part of charge-sheet, Magistrate not empowered to accept
it - Nothing but attempt on part of prosecution to fill in lacuna - Impugned order
quashed and set aside.
[Para 7]
B. Criminal Procedure Code, 1973, Section 173 (8) - Further Investigation - Order in excess
of jurisdiction, final and conclusive - Rectification - Sessions Judge overlooked position of
law and rejected revision application by merely recording impugned order was an
interlocutory order - Order permitting to tender additional evidence by complainant in
case instituted on police report, not part of charge-sheet or material relied upon by
prosecution but in excess of jurisdiction of Magistrate is final and conclusive - It was
different matter - If question before Trial Court was regarding admissibility of evidence
i.e. part of charge-sheet and not relied upon by prosecution, matter would have been
different - Therefore impugned order will have to be rectified in order to secure the
ends of justice as it is an order passed in excess of jurisdiction and was nullity.
[Para 7]
JUDGMENT
J.N. Patel, J. - The applicant is prosecuted for having committed offence under Section 324 r/w

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Submitted By: Prakash Naidu Advocate
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Section 34 of I.P.C. on a complaint lodged by one Janardhan Ganpat Mokalwar of Betura (Kh.)
village. After the investigation was over, the police filed charge sheet before the J.M.F.C., Akola,
which came to be registered as Criminal Case No. 19 of 1996. During the pendency of the trial, the
complainant filed an application before the Trial Court that he may be permitted to deposit in the
Court his blood-stained clothes. The complainant stated that at the time the accused assaulted him,
he was wearing one white tericot Pajama and white cotton banyan, which were having blood-
stains. These clothes were preserved by him till date and the police has not seized these clothes and,
therefore, the complainant wants to deposit these clothes in the Court along with one Dupatta and
towel, on the ground that this is important property and relevant for the purpose of giving the
evidence.
2. This application came to be allowed by the Trial Court on the ground that if the said clothes are
deposited, no prejudice would be caused to the accused. This order dated 26.6.1998 came to be
challenged before the learned Sessions Judge, by the accused, by preferring a Criminal Revision
Application No. 226 of 1998. In the said Criminal Revision Application, the learned Sessions Judge
found that the impugned order granting prayer to produce blood-stained clothes, which were
important property for the trial of the accused, is interlocutory order and, therefore, no revision
would lie against such order and dismissed the revision, by his order dated 17.11.1998. The
applicant then filed Misc. Criminal Application No. 69 of 1998, praying for restoration of Criminal
Revision Application No. 226 of 1998, decided by the Court of Sessions on 17.11.1998, on the ground
that the revision has been dismissed in default because of non-appearance of the petitioner, which
has been rejected by the learned Sessions Judge on the ground that the revision petition can be
dismissed in absence of the party and as the Court of Sessions has dismissed the revision petition
not in default, but after going through the record and holding that the revision petition is not
tenable because the impugned order was interlocutory, it need not be restored and rejected the
application. It is against this order the accused/applicant has approached this Court by filing an
application under Section 482 of Cr.P.C.
3. It is contended by the learned Counsel for the applicant/accused that the complainant by his
application has sought to tender the blood- stained clothes after the charge was framed and the
case was fixed for recording evidence of the witnesses of the prosecution which would certainly
cause prejudice to the applicant/accused as the said clothes were no: seized by the Investigating
Officer during the investigation of the case. It is further submitted that in the application seeking
permission to produce the clothes, no reason is given for not producing the same by the
complainant on earlier occasion and it is only after lapse of 16 months that such an attempt was
made. It is submitted that in the application made by the complainant, no case is made out to show
that the complainant was wearing these clothes at the time of alleged incident on 26.2.1996 and,
therefore, this attempt on the part of the complainant to produce the alleged blood-stained clothes
is nothing but to fill in the lacuna in the prosecution case.
4. It is submitted that the learned Sessions Judge dismissed the criminal revision filed by the
applicant/accused without offering him an opportunity of hearing, otherwise the applicant/accused
would have been able to explain as to how the revision is maintainable against the impugned order
as according to the applicant/ accused, the impugned order allowing the complainant to produce
the blood-stained clothes, is not an interlocutory order. It is, therefore, submitted that the learned
Trial Court having passed the order in excess of its jurisdiction, the impugned order is a nullity and
deserves to be quashed and set aside.
5. Mr. Agarwal, the learned A.P.P., submits that it is in the discretion of the Trial Court to permit the

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prosecution to tender material on which the prosecution wants to rely even after filing of the
charge-sheet. But what has been done in the matter is that the Trial Court has allowed the
application filed by the complainant and permitted him to tender blood-stained clothes in a case
instituted on the police report, which was improper. It is submitted that if the Trial Court was
satisfied that such a tender of blood-stained clothes was required in the interest of justice and fair
trial, it should have directed the learned Assistant Police Prosecutor to present an appropriate
application seeking permission to carry out further investigation and after seizure of the blood-
stained clothes from the complainant, could have filed the supplementary charge-sheet. It is,
therefore, submitted that the Trial Court should not have accepted the prayer of the complainant
permitting him to tender blood-stained clothes, by observing that it did not cause any prejudice to
them and to that extent the order is vitiated.
6. The complainant filed the application on 26.6.1998 i.e. the day on which the case was fixed for
recording evidence. The learned Trial Court called upon the accused to file their say on which the
Counsel for the accused recorded his objection by stating that this is State case. There is no
provision in State case to file any document without help of Police and hence it be rejected out
rightly in the interest of justice. Thereafter the Trial Court heard the learned A.P.P. and the Counsel
for the accused and proceeded to pass the impugned order.
7. The applicant/accused alongwith two others has been prosecuted in a case instituted on police
report. The charge-sheet in the case has been filed by the police as required under section 173(2)(i)
of the Code of Criminal Procedure, 1973 which provides for report of Police Officer on completion of
investigation. section 173(2)(i) of Code of Criminal Procedure, 1973 reads as under:
173(2)(i) As soon as it is completed, the officer in-charge of the Police Station shall forward to a
Magistrate empowered to take cognizance of the offence on a police report, a report in the
form prescribed by the State Government, stating
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears as to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170?
Thus, what is contemplated is that the material collected during the course of investigation has
to be tendered in the Court by way of report as contemplated under Section 173(2)(i), Cr.P.C.
Sub-section (7) of Section 173, Cr.P.C. clearly provides that the accused is entitled to obtain all
documents or relevant extracts thereof on which the prosecution proposes to rely other than
those already sent to the Magistrate during investigation and the statements recorded under
Section 161 of all the persons to whom the prosecution proposes to examine as its witnesses
which is required to be forwarded to the Magistrate alongwith the report as contemplated
under Sub-section 5 of Section 173, Cr.P.C. The whole object of this provision is to put the
accused on notice of what he has to meet at the time of enquiry or trial. Further this is the
only channel provided for acceptance of material collected during the course of investigation

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either by way of oral statements recorded under Section 161, Cr.P.C. of the witness, or the
documents and other -material collected in the course of the investigation to be used by way of
corroborative evidence. As in the present case, the blood-stained clothes of the complainant,
which could have, in the normal course, been seized from the complainant in the course of the
investigation. The Code of Criminal Procedure, 1973 does not provide for any other mode of
receiving evidence in a case instituted on Police report.
In case, after filing of the report as contemplated under Section 173(2)(i), Cr.P.C. the Police Officer
comes across any fresh facts or fresh information, he is not precluded from further investigation of
the case as contemplated in Sub-section 8 of Section 173 of Cr.P.C., but then the power to make
further investigation and send further report could be exercised only when fresh facts or fresh
information come to light, it that case, the Investigating Officer obtains further evidence oral or
documentary upon such investigation. He can forward the same to the Magistrate by submitting
further report or reports recording such evidence in the form prescribed. Therefore, it is very clear
that the power under Sub-Section 8 of Section 173, Cr.P.C. can be used only when further facts or
material come to light when it could not be come to the light of the Investigating Officer when he
made investigation and forwarded the report. But, it cannot be used and this power under Sub-
section 8 of Section 173, Cr.P.C. was not intended to be used to fill up any lacuna in the prosecution
case. In the present case, what has happened is that the investigating Officer had admittedly not
seized the blood- stained clothes of the complainant at the stage of the investigation of the case and
has filed the report without such seizure. Therefore, it cannot be said that this was a case where
the Investigation Officer has sought permission of the Court for further investigation and then
moved the Court for tendering the blood-stained clothes by way of filing further report regarding
such evidence. On the other hand, the complainant on his own after a lapse of 16 months, when
the case is fixed for recording evidence, seeks to tender the blood- stained clothes for being used as
evidence. In absence of any such procedure permitting the complainant to tender further evidence
which was not part of the charge-sheet, the learned Magistrate had no power to accept it. The only
justification which weighed in the mind of the learned Magistrate that this would not prejudice the
accused in the case. This Court fails to understand that how the Magistrate could form such an
opinion, and the tendering of blood-stained clothes which were not seized during the course of
investigation and were not the part of the charge-sheet, does not prejudice the case of the accused,
apart from the fact that as to whether it is doubtful that the clothes of the complainant were
stained with blood in the incident itself. Obviously this was nothing but an attempt on the part of
the prosecution to fill in the lacuna. I say so because the learned A.P.P. was heard in the matter and
it appears that he did not assist the Court in justifying such tender of further evidence by the
complainant himself. The fact that the complainant is permitted to engage an Advocate to assist the
Assistant Public Prosecutor in conducting case also cannot be overlooked. It appears that the
learned Assistant Public Prosecutor has actually abdicated his duties in permitting such further
evidence being tendered in the Court from a source independent from the prosecution agency, i.e.
the complainant. It was not the case before the learned Trial Court that there has been no proper
or objective investigation by the police nor the Court has observed in its order that the investigation
is defective. If that was so,then probably in a given circumstance, the Court could have at the most
ordered fresh investigation during the course of the trial. But even that cannot be the case as no
where it is so submitted or conceded by the learned A.P.P. The contention of the complainant that
he had preserved the blood-stained clothes till today, but police did not seize it, cannot by itself, be a
ground to allow the complainant to tender blood- stained clothes as it cannot be a case of defective
investigation. Unfortunately, the learned Magistrate in his impugned order has not recorded as to
what the learned Assistant Police Prosecutor has to say in the case. This, therefore, leads to an

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Submitted By: Prakash Naidu Advocate
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inference that the blood-stained clothes are now sought to be tendered by the complainant only to
fill in the lacuna in the prosecution case. Therefore, this Court finds that the impugned order
deserves to be quashed and set aside as the learned Magistrate has passed the said order not only
in excess of his jurisdiction, but without applying the principle of procedural law correctly.
8. The learned Sessions Judge also overlooked this position of law and rejected the revision
application by merely recording that as the impugned order is an interlocutory order, the revision
does not lie. This Court would like to make it clear that the learned Sessions Judge also misdirected
himself by observing that it was an interlocutory order. An order permitting to tender an additional
evidence by the complainant in a case instituted on the police report and which is not part of the
charge-sheet or material relied upon by the prosecution in support of its case, though not to be
conclusive of the main dispute, but such an order which is obviously in excess of jurisdiction of the
Magistrate who have permitted the complainant to tender blood-stained clothes, is final and
conclusive insofar as it admits further evidence which is not permitted under the Code of Criminal
Procedure. It was a different matter if the question before the Trial Court was as regards the
admissibility of any evidence i.e. otherwise relied upon by the prosecution and found to be part of
the charge-sheet. Therefore, impugned order will have to be rectified in order to secure the ends of
justice as it is an order passed in excess of jurisdiction and is nullity.
9. The application is allowed. The impugned order passed on 2.12.1998 by the learned Additional
Sessions Judge, Akola, as well as that of the Trial Court dated 26.6.1998 passed in Criminal Case No.
19 of 1996, is quashed and set aside. The Court to proceed with the trial in accordance with law.
Rule made absolute in the aforesaid terms with no order as to costs.
Application allowed.

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