(1). This revisional application has been preferred by the petitioner praying for quashing the criminal proceeding being G. R. Case No. 278 of 1998 which arose out of Balagarh P. S. Case No. 29 dated 5.3.98 and for setting aside the order of the learned Sub-Divisional Judicial Magistrate (in short the S.D.J.M.) dated 7.2.04 taking cognizance of the offence.

(2). Mr. Joymalya Bagchi, the learned Advocate for the petitioner submitted that concerning incident dated 5.3.1998 there were case and counter case. The Balagarh P.S. Case No. 28 dated 5.3.98 was registered on the basis of written complaint/F.I.R. lodged by Badsha Hossain, husband of the petitioner as the accused persons seriously assaulted the husband of the petitioner and made attempt to murder him. After completing investigation in the said case charge-sheet has been submitted under Sections 148,149, 448, 325, 326, 341 and 307 of the Indian Penal Code (in short the I.P.C.) against several accused persons including Ansar Ali, the de facto complainant of Balagarh PS. Case No. 29 dated 5.3.98. In the counter case being Balagarh P. S. Case No. 29 dated 5.3.98 the alleged offences were under Sections 147,148,149,341 and 325 of the I.P.C. and it was the allegation of de facto complainant Ansar Ali that his wife Sakina Bibi was seriously assaulted by Badsha Hossain and others. The Balagarh P.S. Case No. 29 dated 5.3.98 after investigation ended in FRT, i.e. the police after investigation found that there was no basis into the alleged incident and charge-sheet was not submitted, and the police officer also submitted a prayer to initiate a proceeding under Section 211 of the I.P.C. against the de facto complainant. The de facto-complainant filed a naraji petition challenging the said FRT and over such application the teamed Magistrate directed "reinvestigation". After reinvestigation the police has submitted charge-sheet in the said case. At present both the Balagarh P.S. Case No. 28 dated 5.3.98 and Balagarh P.S. Case No. 29 dated 5.3.98 are pending in the Court of the learned Assistant Sessions Judge for trial.

(3). Mr. Bagchi further submitted that the order of the learned Magistrate directing "reinvestigation" was bad in law and

there is gulf of difference between the words "reinvestigation" and the words "further investigation". Provisions of Section 173(8) of the Cr.P.C. prescribes further investigation in appropriate cases and there is no scope of reinvestigation within that section. "Reinvestigation" connotes fresh or new investigation whereas "further investigation" indicates additional, supplemental report after such further investigation. Scope of further investigation is limited and it is only additional over any new point or over any point which was not considered during earlier investigation. But "reinvestigation" indicates fresh investigation, and that is why the Parliament in its wisdom did not incorporate the word "reinvestigation" within the Section 173 of the Cr.P.C. The learned Magistrate acted illegally by passing the order for "reinvestigation" on the basis of naraji petition filed by the de facto complainant in connection with Balagarh P.S. Case No. 29 dated 5.3.98. It is not legally permissible for a Magistrate to direct "reinvestigation". When after further investigation supplementary report is filed the learned Magistrate has to consider the report submitted on the basis of further investigation and at the same time he has to consider the earlier report submitted by the police and the earlier report does not become non-est. In the present matter the learned Magistrate after obtaining report of the police officer on the basis of such subsequent investigation took cognizance of offence which was bad in law as the learned Magistrate did not take into consideration the earlier police report.

(4). Mr. Bagchi next contended that in the previous investigation report, the bed head ticket of the alleged injured Sakina Bibi was seized and, there were names of few witnesses who were examined by the I.O. during investigation. In the final report submitted after the alleged "reinvestigation" or "further investigation" names of three new witnesses transpired and two witnesses who were examined previously were left out. During the course of "reinvestigation" or "further investigation" the same bed head ticket was seized. When the bed head ticket of Sakina Bibi was seized already during prior investigation, question of again seizing the same bed head ticket was illegal. These materials clearly establish that submission of charge-sheet is not a product of "further investigation". It is, in fact, a fresh investigation which is bad in law and for the said reason the charge-sheet should be quashed. In support of his contention Mr. Bagchi placed reliance on K. Chandrasekhar v. State of Kerala, reported in 1998 SCC (Cri) 1291 [LQ/SC/1998/530] .

(5). Mr. Tapas Kumar Ghosh, the learned Advocate for the opposite party (in short the OP.) submitted that the submission of FRT during prior investigation was bad in law and the said investigation was perfunctory. The de facto-complainant filed a naraji petition before the learned Magistrate and the learned Magistrate directed further investigation. Due to inadvertence or clerical mistake the word "reinvestigation" was used in the order of the learned Magistrate but, the word "reinvestigation" should be treated as "further investigation" which is permissible in view of provisions of Section 173(8) of the Cr. P. C. Concerning the same incident dated 5.3.98 Balagarh P.S. Case No. 28 dated 5.3.98 and Balagarh P.S. Case No. 29 dated 5.3.98 were registered and it established that there was a case and counter case concerning same incident. In view of the settled principles of law both the cases were transferred to the Court of the learned Assistant Sessions Judge for trial. The present O.Ps. are the accused persons in the sessions triable case and the petitioners are the accused persons in the Magistrate triable case. Though Balagarh P.S. Case No. 29 dated 5.3.98 was a Magistrate triable case; in view of the principle of law the said case was also transferred in the same Court in which the sessions triable case is pending. The allegation of the petitioners are that the concerned documents of the first final report were not supplied to them. The remedy lies under Section 91 of the Cr. P. C. and the learned Judge by invoking provisions of Section 91 of the Cr. P. C. may call for the records of the prior investigation including documents.

(6). Mr. Tapas Kumar Middya, the learned Advocate for the State submitted that over the same incident two cases were instituted, out of which one is triable by Court of Sessions while the other is triable by Magistrate. The Balagarh P.S. Case No. 28 dated 5.3.98 is a sessions triable case whereas, Balagarh P.S. Case No. 29 dated 5.3.98 is Magistrate triable case. In view of the guidelines laid down by the Honble Supreme Court and this Court both the cases were sent to the same Court for decision in order to avoid conflicting decisions.

(7). Mr. Middya further submitted that "reinvestigation" is in fact "further investigation". Taking of cognizance on the basis of final report submitted after completing further investigation would not be bad in law. Prima facie case was made out against the accused petitioners in connection with Balagarh P.S. Case No. 29 dated 5.3.98. There is nothing to interfere with the order of the learned Magistrate as taking of cognizance was not bad in law. The learned Trial Court may be directed to proceed with the trial of both the cases.

(8). I have duly considered the submissions of the learned Advocates for the parties and perused the contents of the revisional application and the annexures made thereto. In K. Chandrasekhar v. State of Kerala (supra) the Supreme Court observed that the dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In that decision the Honble Supreme Court indicated that after submission of report by police under Section 173(2) of Cr. P. C., the police has a right of "further" investigation under sub-section (8) but not "fresh investigation" or "reinvestigation". The principle of law laid down by the Supreme Court need not require any further discussion as it is the settled principle of law though I find that the factual matrix in the reported decision were different. In the reported decision the Delhi Police was proceeding with investigation under the provisions of the Delhi Special Police Establishment Act. Subsequently, the investigation was transferred to the C.B.I. pursuant to the consent given by the State Government. Thereafter, C.B.I. submitted charge-sheet and on that background the Supreme Court laid down the aforesaid principle of law.

(9). In the present matter both the investigations were conducted by police and no other agency conducted the investigation. During the first investigation the police submitted report in final form in the manner of FRT. This signifies that charge-sheet was not submitted and police found that it was a case of mistake of fact and police tried to prosecute the de facto complainant under Section 211 of the I.P.C. The de facto complainant challenged the submission of FRT before the learned Magistrate by filing naraji petition. While considering the naraji petition the learned Magistrate directed "reinvestigation" in the said case. It was a mistake on the part of the learned Magistrate while he directed reinvestigation of the case. In view of provisions of the Cr. P. C. "reinvestigation" is not permissible and under the provisions of sub-section (8) of Section 173 of the Cr.P.C. "further investigation" can be conducted by police. The police has the authority and power to cause further investigation and submit further report or supplementary report after conducting "further investigation" suo motu. "Further investigation" may be done also on the strength of the order of the learned Magistrate. During "further investigation" police may cause investigation, if new materials comes to light before the police during investigation or, if it is found that during earlier investigation certain omissions were made which were vital for which "further investigation" was necessary. "Further investigation" does not operate as a bar to the police officer conducting further investigation to examine new witnesses. New witnesses examined, or new documents or papers seized, or new materials collected are parts of the power of police to conduct "further investigation", otherwise further investigation would become meaningless. The learned Magistrate has to consider report of "further investigation" and he is not debarred from looking into the report of the previous investigation.

(10). The addition of sub-section (8) of Cr. P. C. in the Code of Criminal Procedure, 1973 was for the ends of justice to unearth the truth through investigation as in many cases earlier it was found that after submission of report in final form new elements came to the light before the police. In spite of submission of report in final form under sub-section (2) of Section 173 of the Cr. P. C. the police has the power to cause further investigation under sub-section (8) of Section 173 of the Cr.P.C. and to send supplementary report or reports to the Magistrate. In spite of taking of cognizance by the Magistrate on the basis of final report submitted under sub-section (2) of Section 173 of the Cr. P. C., the police can carry "further investigation" on discovery of fresh facts and fresh materials. The order of the learned Magistrate taking cognizance on subsequent police report is competent and cannot be regarded as bad in law. In 1986 Cri.LJ 51 (Ram Autar Jalan v. State of Bihar) the Officer-in-Charge of police station submitted final report under Section 173(2) of the Cr.P.C. stating final report true, no clue. However, the superior police officer on receipt of certain clues applied for further investigation which was granted. It was held that procedure that was adopted was legal. In the present case almost the same facts and circumstances are present. In connection with Balagarh P. S. Case No. 29 dated 5.3.98 after investigation the police submitted final report as FRT i.e. mistake of fact and no clue. Thereafter, there was direction for further investigation though the learned Magistrate used the word "reinvestigation". I clarify the position that, the word "reinvestigation" used by the learned Magistrate was in fact a direction for "further investigation". After further investigation, if report is submitted by police, the learned Magistrate has the power to take cognizance over such report and taking of cognizance cannot be regarded as bad in law.

(11). It is the contention of Mr. Bagchi that in the prior investigation out of the witnesses examined two witnesses were left out during "further investigation" and three witnesses were shown afresh. During "further investigation" police has the power to proceed with investigation on the basis of fresh materials, fresh evidence and accordingly examination of new witnesses to reveal or unearth the truth cannot be regarded as illegal procedure or illegal investigation. During trial the learned Judge would consider everything and, if the prosecution does not like to examine the witnesses who were left out during further investigation though shown as witnesses during earlier investigation, the accused persons would be at liberty to examine such witnesses as defence witnesses, and if the prosecution desires to examine such witnesses there cannot be any grievance for the accused petitioners. The learned Judge would exercise his powers under Section 91 of Cr.P.C., if he thinks that production of relevant papers of the prior investigation is necessary during trial of the case and would also consider whether copy of such papers would be supplied to the accused petitioners or not.

(12). As there was case and counter case and trial was proceeding in the Court of the learned Assistant Sessions Judge I do not find any ground to quash the criminal proceeding being G.R. Case No. 278 of 1998 which arose out of Balagarh P.S. Case No. 29 dated 5.3.98. On legal principle also there is no ground to quash the criminal proceeding in view of discussions made above. The revisional application accordingly having no merit fails and is dismissed.