[1.0] RULE. Shri L.B. Dabhi, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent Nos.1 to 3 and Ms. Kruti M. Shah, learned advocate waives service of notice of Rule on behalf of respondent No.5 and Shri R.J. Goswami, learned advocate waives service of notice of Rule on behalf of respondent No.6. [1.1] Respondent No.7 is reported to have expired. Hence, Shri B.S. Patel, learned advocate appearing on behalf of the petitioner seeks permission to delete respondent No.7. Permission is, accordingly, granted. Shri B.S. Patel, learned advocate appearing on behalf of the petitioner seeks permission to delete respondent No.4 also. Permission is, accordingly, granted. Consequently respondent Nos.4 and 7 stand deleted. Shri B.S. Patel, learned advocate appearing on behalf of the petitioner seeks permission to delete prayer No.7A. Permission is, accordingly, granted.
[1.2] In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, present petition is taken up for final hearing today.
[2.0] Present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner herein, who can be said to be the complainant/victim in NDPS Case No.7 of 2008 challenging the impugned order passed below Exh.8 by the learned Additional Sessions Judge, Fast Track Court No.1, Vadodara in NDPS Case No.7 of 2008 by which the learned Sessions Court has rejected the said application submitted by the applicant for further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”).
[3.0] After the matter was argued at length, there is broad consensus between learned advocates appearing on behalf of the respective parties that they have no objection if the impugned order passed below Exh.8 in NDPS Case No.7 of 2008 by the learned Additional Sessions Judge, Vadodara is quashed and set aside and the said application Exh.8 is allowed and further investigation under Section 173(8) of the CrPC is ordered. However, though respondent Nos.5 and 6 are not required to be heard at this stage, as they are already joined as party to the present proceedings, the request made by learned advocate appearing on behalf of respondent Nos.5 and 6 that while conducting further investigation, whatever is produced by respondent Nos.5 and 6, is also required to be considered by the Investigating Officer and therefore, it is requested to make suitable observation and therefore, they are heard to the aforesaid extent and their request is noted. Learned advocates appearing on behalf of respective parties do not invite any further reasoned order while quashing and setting aside the impugned order and order further investigation as prayed in the application Exh.8.
[4.0] In view of the above, this Court is not passing any further reasoned order while quashing and setting aside the impugned order passed below Exh.8 application in NDPS Case No.7 of 2008 by the learned Additional Sessions Judge, Vadodara. However, suffice it to say that the observation and the reasoning given by the learned Additional Sessions Judge that once the chargesheet is filed, no further investigation under Section 173(8) of the CrPC at the instance of the complainant cannot be sustained.
In a given case if it is found that the IO has deliberately not investigated the case in right direction and to have the full proof case against the accused, there can be a further investigation under Section 173(8) of the CrPC. This Court is not further elaborating the above as the learned advocates appearing on behalf of the respective parties have not pressed for any further reasons.
[5.0] In view of the above broad consensus recorded herein above, the impugned order passed below Exh.8 in NDPS Case No.7 of 2008 by the learned Additional Sessions Judge, Vadodara is hereby quashed and set aside and the said application Exh.8 is hereby allowed and the concerned Investigating Officer/Agency is hereby directed to further investigate the case on the grounds stated in the application Exh.8 and submit the report before the concerned Court within a period of two months. It goes without saying that whatever the evidence/material collected by the IO during the course of further investigation and/or produced by anybody, the IO is bound to consider the same in accordance with law and on merits. Rule is made absolute accordingly.
CRIMINAL MISCELLANEOUS APPLICATION NO.14054 OF 2012 In view of disposal of main Special Criminal Application No.2431 of 2009, no order in Criminal Miscellaneous Application No.14054 of 2012 and it stands disposed of accordingly.
Sd/ (M.R. Shah, J.) menon