ORDER
1. Heard both sides.
2. The order Impugned is dated 22nd April, 1994 which only allows the application of the respondent-State for permission to record the statement of the prosecutrix Chaitrali under sub-sec. (8) of S. 173 of the Code of Criminal Procedure. The brief facts of the case are as under :
3. On 10th September 1993, the prosecutrix Chaitrali is alleged to have been raped by the petitioner-accused. Chaitrali was admittedly about five years of age at that time. Chaitrali narrated the incident to her mother. The statement of the mother of Chaitrali was recorded. Unfortunately, however, it is stated that because of the incident, Chaitrali's mother suffered a shock and died on 1st January 1994. The petitioner-accused is on bail.
4. The death of the mother of Chaitrali has occurred during the course of the trial. As a result of this unfortunate event, the prosecution thought it fit to now supply to the Court for permission to record the statement of Chaitrali herself. Obviously the poor girl is of tender age. For reasons, for more than one, it might have been thought advisable, at that time, to rest contest with recording the statement of the girl's mother. Since, however, the mother has died on 1st January, 1994, the prosecution has come forward with an application for permission to record the statement of the girl Chaitrali in accordance with sub-sec. (8) of Section 173 of the Code of Criminal Procedure. This has been permitted to be done and it is directed that the statement should be submitted to the Court.
5. Shri Bhosale's contention is that the power under sub-sec. (8) of Sec. 173 cannot be exercised at this stage of the proceedings in the facts and circumstances of the case. He also contended that the Sessions Court has no such powers to permit the prosecution to record the statement of the prosecutrix when trial had already commenced.
6. In this behalf, I may usefully refer to the observations of the Supreme Court in the case of Ram Lal Narang v. State (Delhi Admn.) reported in : 1979CriLJ1346 . Headnote 'B' of the said report reads as under :
'Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor S. 190 lead to say that the power of the police to further investigate was exhausted by Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority permits repeated investigations on discovery of fresh facts.'
In paras 21 and 22 of the report at pages 1801 and 1802 (of AIR) : (at pp. 1356 and 1357 of Cri LJ), the Supreme Court has observed as under :
'Any one acquainted with the day-today working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interest of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may case to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons, who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive one or abuse of power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in that interests of the independence of the magistracy and the judiciary in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to take further investigation when fresh facts come to light.
22. As observed by us earlier, there was no provision in the Code of Criminal Procedure 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often necessary when fresh information came to light. Where the police desired to make a further investigation the police could express their regard and respect for the Court by seeking its formal permission to take further investigation.'
6A. Similar in the case of State of Bihar v. J. A. C. Saldanas reported in : 1980CriLJ98 , the Supreme Court has observed thus in para 19 at page 334 (of AIR) : (at p. 106 of Cri LJ) of the report.
'The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(3). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under S. 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provisions contained the Section 156(2) that an investigation by an officer-incharge of a police station, which expression includes police officer superior in rank to such officer cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigating; otherwise that provision would have been a short answer to the contention raised on behalf of respondent 1.'
7. Apart from the above two pronouncements of the Supreme Court, Shri Patil, the learned A.O.P. has also invited my attention to the provisions of Section 311 of the Code of Criminal Procedure which reads as under :
'Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.'
8. In the present case all that is permitted to be done under the Impugned order is to allow the investigating officer to record the statement of the prosecutrix Chaitrali and submit the same to the Court. In the larger interests of justice and in the peculiar facts and circumstances of this case, I do not think that the revisional powers of this Court under Section 401 of the Code of Criminal Procedure should be exercised in this case. To do so would, in my opinion, perhaps defeat the justice of the matter. It is because of unfortunate circumstance viz. the death of the mother of the prosecutrix that the prosecution has to thought it fit to fall back upon the evidence of the prosecutrix herself. Now good would be her evidence is a matter with which I am not concerned at this stage.
9. Under the above circumstances, I do not think that any interference is called for under Section 401 of the Code of Criminal Procedure. Hence, revision application is rejected.
10. Revision dismissed.