REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1171 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.3338 OF 2015)
AMRUTBHAI SHAMBHUBHAI PATEL .…APPELLANT
VERSUS
SUMANBHAI KANTIBHAI PATEL & ORS. ....RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
The assail is of the verdict dated 10.04.2015 rendered by the High
Court, setting at naught the order dated 27.5.2014 passed by the Chief
Judicial Magistrate, Gandhinagar, whereby the Trial Court had allowed the
application filed by the appellant, the original informant, under Section
173(8) of the Code of Criminal Procedure, 1973 (for short, hereinafter
referred to as “the Code/1973 Code”) for further investigation by the
police.
2. We have heard Mr. Sanjay Hegde, learned senior counsel for the
appellant and M/s. Zakir Hussain, Nitya Ramakrishan, and Shamik
Sanjanwala, learned counsel for the respondent Nos. 1,2 and 3 respectively.
3. The facts indispensable for the present adjudication, portray that
the appellant had lodged a First Information Report (for short hereafter
referred to as “FIR”) against the respondents under Sections 406, 420, 426,
467, 468, 471, 477B and 120B of the Indian Penal Code (for short also
referred to as “IPC”). The materials offered in the FIR and the
investigation by the police that followed, divulged that there was a
dispute between the parties relating to agricultural land and that the
appellant/informant had alleged forgery of the signatures and thumb
impression of his as well as of his family members in the register
maintained by the Notary (Public). After the charge-sheet was submitted,
charge was framed against the respondents and they stood the trial
accordingly, as they denied the imputations. As would be gleanable from
the records, the oral evidence of the appellant/first informant was
concluded on 03.07.2012 followed by that of the investigating officer of
the case on 10.09.2013. Subsequent thereto, the statements of the
respondents were recorded under Section 313 Cr.PC on 03.12.2013, whereafter
an application was filed at the culminating stages of the trial by the
appellant/informant seeking a direction under Section 173(8) from the Trial
Court for further investigation by the police and in particular to call for
a report from the Forensic Science Laboratory as regards one particular
page of the register of the Notary (Public), which according to the
appellant/informant was of debatable authenticity, as it appeared to have
been affixed/pasted with another page thereof. To be precise, this
application was filed at a stage when the case was fixed for final
arguments.
4. The Trial Court, however, by the order impeached before the High
Court granted the prayer made and issued a direction to the police for
further investigation. Significantly, prior thereto in Special Leave
Petition being SLP (Crl.) No.9106 of 2010, this Court had directed
expeditious disposal of the trial. It is also worthwhile to record that the
application filed by the appellant/informant under Section 173(8) of Cr.PC
had been opposed by the respondents herein, who being dissatisfied with the
order of the Trial Court, thus impugned the same before the High Court.
5. The High Court, as the impugned decision would disclose exhaustively
examined the purport of Section 173(8) in the particular context of the
scope of further investigation by the police after it had submitted a
charge sheet and the Trial Court had taken cognizance on the basis thereof
and had proceeded with the trial, following the appearance of the accused
persons. It, amongst others took note of the 41st Report of the Law
Commission of India which after reflecting on the oftly adopted view of the
Courts that once a final report under Section 173 had been submitted by the
police, the latter could not touch the case again and reopen the
investigation, recommended that it ought to be made clear that under the
said provision of the Code, it was still permissible for the police to
examine any evidence even after the submission of the charge-sheet and to
submit a report to the Magistrate. Thus, the Law Commission's emphasis was
to obviate any hindrance in the way of the investigating agency, which in
certain fact situations could be unfair to the prosecution as well as to
the accused.
6. The High Court having regard to this recommendation and the
incorporation of Section 173(8) as a sequitur thereof held that it was
permissible for the investigating officer or the officer-in-charge of the
police station to undertake a further investigation even after the filing
of the charge sheet, but neither the informant nor the accused could claim
as a matter of right, any direction from the Court directing such further
investigation under the said provision after a charge-sheet was filed. The
High Court traced the law as expounded by this Court from its renderings in
Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC 322 vis-à-vis
the scope and purport of Section 173 of Cr.P.C. in particular, qua further
investigation by the police after it had submitted charge-sheet in a case.
The exposition by this Court in Ram Lal Narang (supra) that neither
Sections 173 nor 190 of the Code of Criminal Procedure, 1898 did suggest
exhaustion of the power of the police to further investigate even after the
Magistrate had taken cognizance of the offence already on record and that
the police could exercise such right as often as necessary when fresh
information would come to light and it desired to make further
investigation was noted. However, while doing so, it was observed that in
deference to the Court, the police ought to ordinarily seek its formal
permission to make further investigation. The High Court in this
perspective, observed that a further investigation could in a given factual
setting, sub-serve the interest of the prosecution and even of the defence.
7. The High Court in its verdict also adverted to the decision of the
Privy Council in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC18 which
stressed upon the restraint of the judiciary against interference with the
police in matters which were within its province, holding that the roles of
these two institutions were complementary and not overlapping, subject
however to the right of the Courts to intervene in an appropriate case for
directions in the nature of habeas corpus.
8. The decision of this Court in Abhinandan Jha & Ors. v. Dinesh Mishra,
AIR 1968 SC 117 to the effect that the Magistrate could not direct the
police the course of investigation or to submit a charge-sheet when it had
already submitted a final report, was referred to as well. Reference to
the explication of law laid down by this Court in Randhir Singh Rana v.
State (Delhi Administration), (1997)1 SCC 361 on the powers available to a
Magistrate at different stages of a case before him in the singular context
of its competence to direct further investigation with reference thereto,
was relied upon. It was noted as well that a Magistrate, of his own, could
not order further investigation after an accused, pursuant to the process
issued against him on the basis of the charge-sheet already submitted, had
appeared in the case.
9. The pronouncement of this Court in Hasanbhai Valibhai Qureshi v.
State of Gujarat and others, (2004) 5 SCC 347 ruling that the police had
the power to conduct further investigation de hors any direction from the
Court even after it had taken cognizance was relied upon to reinforce its
conclusion.
10. The enumeration of this Court in Reeta Nag v. State of West Bengal &
Ors., (2009) 9 SCC 129 also to the same effect was adverted to. The High
Court thus deduced on the basis of an in-depth survey of the state of law,
as above, on the import and ambit of Section 173(8) Cr.P.C. that in absence
of any application or prayer made by the investigating authority for
further investigation in the case, the Trial Court had erred in allowing
the application filed by the appellant/informant for the same.
11. Without prejudice to this finding, the High Court was further of the
view that having regard to the sequence of events and the delay on the part
of the informant to make such a prayer at the closing stages of the trial,
it was not entertainable. In arriving at this determination, the High
Court, amongst others marked that the evidence of the appellant/informant
had been recorded in the year 2012 when he did have sufficient opportunity
to scrutinise the document in question but for inexplicable reasons did
wait for more than two years to register the prayer for further
investigation. It was of the view that the attendant factual setting did
not demonstrate any defective investigation which demanded curation through
a further drill and that in any view of the matter, additional report from
the Forensic Science Laboratory had not been called for. This is more so,
as in the view of the High Court, the entire register of the Notary
(Public) had been seized by the investigating officer and that any unusual
or suspicious feature therein would have been certainly examined by the FSL
and findings in connection therewith recorded. The High Court thus
interfered with the order of the Magistrate permitting further
investigation by the police in the case and ordered for expeditious
disposal of the trial.
12. Whereas the learned senior counsel for the appellant has strenuously
urged that the impugned order is patently indefensible, inasmuch as, if
maintained, it would result in travesty of justice and that not only the
Trial Court was within its competence to order further investigation in the
attendant facts and circumstances but also the same was essential to
unravel the truth bearing on the charge levelled against the respondents-
accused, the impugned order has been endorsed on behalf of the respondents
pleading that the same has been in abidance of the consistent judicially
pronounced postulations qua the scope and purport of Section 173(8) Cr.P.C.
and that no interference therewith is warranted.
13. Having regard to the contentious assertions, expedient it would be to
retrace the law propounded by this Court on the import and impact of
Section 173 Cr.PC, with particular reference to sub-Section (8) thereof.
For immediate reference, the afore-stated provision is extracted in full as
hereunder:
“173. Report of police officer on completion of investigation.- (1) Every
investigation under this Chapter shall be completed without unnecessary
delay.
(1A) The investigation in relation to rape of a child may be completed
within three months from the date on which the information was recorded by
the officer in charge of the police station.
(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 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, weather with or
without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under section 376, 376A,
376B, 376C or 376D of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the person,
if any, by whom the information relating to the commission of the offence
was first given.
(3) Where a superior officer of police has been appointed under section
158, the report, shall, in any case in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct the officer in charge
of the police station to make further investigation,
(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order-
for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies,
the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation;
(b) the statements- recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject- matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.
(7) Where the police officer investigating the case finds it convenient so
to do, he may furnish to the accused copies of all or any of the documents
referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub- section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form prescribed; and the
provisions of sub- sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in relation to a report
forwarded under sub- section (2).”
14. It would be appropriate at this juncture to set out as well the
Section 173 of the Code of Criminal Procedure 1898.
“Section 173. Report of police-officer.-
(1) Every investigation under this Chapter shall be completed without
unnecessary delay, and, as soon as it is completed, the officer in charge
of the police-station shall-
(a) 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,
setting forth the names of the parties, the nature of the information and
the names of the persons who appear to be acquainted with the circumstances
of the case, and stating whether the accused (if arrested) has been
forwarded in custody, or has been released on his bond, and, if so,
whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the State
Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer,
and he may, pending the orders of the Magistrate, direct the officer in
charge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond, the Magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.
(4) After forwarding a report under this section, the officer in charge
of the police-station shall, before the commencement of the inquiry or
trial, furnish or cause to be furnished to the accused, free of cost, a
copy of the report forwarded under sub-section (1) and of the first
information report recorded under section 154 and of all other documents or
relevant extracts thereof, on which the prosecution proposes to rely,
including the statements and confessions, if any recorded under section
164 and the statements recorded under sub-section (3) of section 161 of all
the persons whom the prosecution proposes to examine as its witnesses.
(5) Notwithstanding anything contained in sub-section (4), if the police-
officer is of opinion that any part of any statement recorded under sub-
section (3) of section 161 is not relevant to the subject-matter of the
inquiry or trial of that its disclosure to the accused is not essential in
the interests of justice and is inexpedient in the public interests, he
shall exclude such part from the copy of the statement furnished to the
accused and in such a cause, he shall make a report to the Magistrate
stating his reasons for excluding such part.
Provided that at the commencement of the inquiry or trial, the Magistrate,
shall after perusing the part so excluded and considering the report of the
police-officer, pass such orders as he thinks fit and if he so directs, a
copy of the part so excluded or such portion thereof, as he thinks proper,
shall be furnished to the accused.
15. A plain comparison of these two provisions would amply demonstrate
that though these relate to the report of a police officer on completion of
investigation and the steps to ensue pursuant thereto, outlining as well
the duties of the officer in-charge of the concerned police station,
amongst others to communicate, the action taken by him to the person, if
any, by whom the information relating to the commission of offence was
first given, it is explicit that the recast provision of the 1973 Code did
incorporate sub-clause 8 as a significant addition to the earlier
provision.
16. The Forty-first Report of the Law Commission of India (for short,
hereinafter to be referred to as “the Commission”) on the Code of Criminal
Procedure, 1898 dealt with the aspect of reopening of investigation in the
context of the existing Section 173 of the Code 1898 and recommended in the
following terms:
“14.23: A report under section 173 is normally the end of the
investigation. Sometimes, however, the police officer after submitting the
report under section 173 comes upon evidence bearing on the guilt or
innocence of the accused. We should have thought that the police officer
can collect that evidence and send it to the magistrate concerned. It
appears, however, that courts have sometimes taken the narrow view that
once a final report under section 173 has been sent, the police cannot
touch the case again and cannot re-open the investigation. This view
places a hindrance in the way of the investigating agency, which can be
very unfair to the prosecution and, for that matter, even to the accused.
It should be made clear in section 173 that the competent police officer
can examine such evidence and send a report to the magistrate. Copies
concerning the fresh material must of course be furnished to the accused.”
17. The Commission in the above perspective proposed a revision of
Section 173 of Code 1898 in the following terms:
“14.24: We propose that section 173 should be revised as follows:-
I73. (1) Every investigation under this Chapter shall be completed without
unnecessary delay.
(2) 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 po1ice-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 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 under section 169, and, if so,
whether with or without sureties,-
(g) whether he has been forwarded in custody under section 170.
The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him to the person,
if any, by whom the information relating to the commission of the offence
was ?rst given.
(3) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct that officer in charge
of the police-station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order
for the discharge of such bond or otherwise as he thinks ?t.
(5) When such report is in respect of a case to which section 170 applies,
the police-officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation; and
(b) the statements recorded under.....section 161 of all persons whom the
prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject-matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.
(7) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2)
has been forwarded to the Magistrate. Where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the provisions of sub-
sections (2) to (5) shall, as far as may be, apply in relation to such
report or reports as they apply in relation to a report under sub-section
(2).”
18. The Bill to consolidate and amend the law relating to criminal
procedure followed and was circulated in the Gazette of India,
Extraordinary, Part II, published on December 10, 1970 proposing, the Code
of Criminal Procedure, 1970. The Statement of Objects and Reasons clearly
disclosed that the recommendations of the Commission to overhaul the Code
1898 as made were accepted and vis-a-vis Section 173, which corresponded to
Section 176 in the aforementioned report, the amendment proposed was to
facilitate collection of evidence by the police after filing the charge-
sheet and production thereof before the Court, subject to the accused being
given usual facilities for copies. The remodelled Section 173 was identical
in form and substance to the one, as proposed by the Commission in chime
with its recommendation as contained in the Report. Sub-clause (7) of the
new Section 173, as proposed by the Commission and integrated in the Bill,
however eventually appeared as sub-clause (8) to the Section under Code
1973.
19. The newly added sub-section (8), as its text evinces, permits further
investigation by the concerned officer in-charge of the police station in
respect of an offence after a report under sub-section 2 had been forwarded
to the Magistrate and also to lay before the Magistrate a further report,
in the form prescribed, whereafter such investigation, he obtains further
evidence, oral or documentary. It is further ordained that on submission of
such further report, the essentialities engrafted in sub-sections 2 to 6
would apply also in relation to all such report or reports.
20. The integration of sub-section 8 is axiomatically subsequent to the
41st Report of the Law Commission Report of India conveying its
recommendation that after the submission of a final report under Section
173, a competent police officer, in the event of availability of evidence
bearing on the guilt or innocence of the accused ought to be permitted to
examine the same and submit a further report to the Magistrate concerned.
This assumes significance, having regard to the language consciously
applied to design Section 173(8) in the 1973 Code. Noticeably, though the
officer in-charge of a police station, in categorical terms, has been
empowered thereby to conduct further investigation and to lay a
supplementary report assimilating the evidence, oral or documentary,
obtained in course of the said pursuit, no such authorization has been
extended to the Magistrate as the Court is seisin of the proceedings. It
is, however no longer res integra that a Magistrate, if exigent to do so,
to espouse the cause of justice, can trigger further investigation even
after a final report is submitted under Section 173(8). Whether such a
power is available suo motu or on the prayer made by the informant, in
absence of request by the investigating agency after cognizance has been
taken and the trial is in progress after the accused has appeared in
response to the process issued is the issue seeking scrutiny herein.
21. Though noticeably the High Court, in the decision impugned, has aptly
referred to and relied upon the relevant pronouncements of this Court on
the issue involved, the authorities cited at the Bar in course of the
arguments demand recapitulation.
22. In Bhagwant Singh v. Commissioner of Police & Anr., (1985) 2 SCC 537,
a three Judge Bench of this Court was seized with the poser as to whether
in a case where the First Information Report is lodged and after completion
of the investigation initiated on the basis thereof, the police submits a
report that no offence has been committed, the Magistrate if is inclined to
accept the same, can drop the proceeding without issuing notice to the
first informant or to the injured or in case where the incident has
resulted in death, to the relatives of the deceased. This Court in its
adjudicative pursuit, embarked upon a scrutiny of the provisions of Chapter
XII of the Cr.P.C., dealt with Sections 154, 156, 157 thereof before
eluding to Section 173 of the Code. It noticed that under sub-Section (1)
of Section 154, every information relating to the commission of a
cognizable offence, if given orally to an officer in-charge of a police
station has to be reduced into writing by him or under his direction and is
to be read over to the informant and every such information whether given
in writing or reduced to writing, shall be signed by the person giving it
and that a copy thereof shall be given forthwith to the informant, free of
cost. It noticed that under Section 156(1), the officer in-charge of a
police station is vested with the power to investigate any cognizable case
without the order of the Magistrate and that sub-Section (3) authorized the
Magistrate empowered under Section 190 Cr.P.C. to order an investigation,
as mentioned in sub-Section (1). The prescription under Section 157(1)
requiring the officer in-charge of a police station to forthwith send a
report of the information to a Magistrate empowered to take cognizance of
such offence upon a police report, in case he has reason to suspect the
commission of an offence which he is empowered under Section 156 to
investigate, was taken note of. The mandate of Section 157(2) for the
police officer to notify the informant, in case he was of the view that no
sufficient ground for entering on an investigation had been made out, was
also referred to.
23. It noted as well that under Section 173(2)(i), the officer in-charge,
as soon as the investigation is completed, is required to forward to the
Magistrate empowered, a report in the prescribed form so as to enable the
Court to take cognizance of the offence based thereon. This Court also
adverted to Section 190 enumerating the modes of taking cognizance of an
offence by a Magistrate, as specified therein, either upon receiving a
complaint of facts which constituted such offence or upon a police report
of such facts or upon information received from any person other than a
police officer or upon his own knowledge that such offence had been
committed.
24. In the conspectus of the provisions of Cr.P.C. traversed, this Court
held the view that an informant who lodges the first information report
does not fade away therewith and is very much concerned with the action
initiated by the officer in-charge of the police station pursuant thereto,
so much so, that not only a copy of the said report is to be supplied to
him free of cost and in case, no investigation is intended, he has to be
notified of such decision. The reason, in the contemplation of this Court,
for the officer in-charge of a police station to communicate the action
taken by him to the informant and a report to the Magistrate under Section
173(2) Cr.P.C. was that the informant, who sets the machinery of
investigation into motion, was required to know what was the result of the
exercise initiated on the basis thereof, as he would be vitally interested
therein and hence, the obligations cast by law on the officer in-charge.
25. This Court assayed the courses open to the Magistrate on receipt of a
report by the police on the completion of the investigation. It was
enunciated that if the report submitted by the police divulged that no
offence had been committed, there again, the Magistrate would be left at
liberty to adopt one of the three courses, namely; he could accept the
report and drop the proceeding, or he could disagree with the report and
taking the view that there was sufficient ground for proceeding further,
take cognizance of the offence and issue process or he could direct further
investigation to be made by the police under sub-Section (3) of Section
156. Noticeably, these three courses referred to hereinabove are at the
pre-cognizance stage and can be opted for by the Magistrate depending on
his satisfaction on an assessment of the materials then on record.
26. Be that as it may, this Court held that whereas neither the informant
nor the injured nor the relative of the deceased in case of death, would be
prejudicially affected in case the Magistrate decides to take cognizance of
the offence and to issue a process, they would certainly be prejudiced in
case, the Court holds the view that there is no sufficient ground for
proceeding further and is inclined to drop the proceeding. Having regard to
the scheme of Sections 154, 157 and 173 in particular of the Cr.P.C and the
pattern of consequences to follow in the two contingencies referred to
herein above, this Court propounded that in case the Magistrate is not
inclined to take cognizance of the offence and issue process, the informant
must be given an opportunity of being heard so that he can make his
submissions to persuade the Magistrate to take cognizance of the offence
and issue process. Qua the requirement of issuance of such notice to the
injured person or to a relative of the deceased, in case of death, who
is/are not the informant(s) who had lodged the first information report, it
was elucidated that it would be open for the Magistrate in the exercise of
his discretion, if he thinks fit, to give such notice. However, the locus
standi of the injured person or any relative of the deceased, though not
entitled to notice on the Magistrate to apply for the Court at the time of
consideration of the report, if he/they otherwise come to know of such
stage of the proceeding, was recognized, so much so that in case he/they
would want to advance any submission with regard to the report, the
Magistrate would be bound to hear him/them as the case may be.
27. This verdict in re the issue presently involved is significant, so
far as it outlines the different modes of taking cognizance of an offence
by a Magistrate and also the procedures and powers available to him on the
submission of a police report following the completion of investigation.
This decision is pellucid in its statement that the Magistrate, on receipt
of the report, at that stage before taking cognizance of the offence
alleged, may direct further investigation under sub-Section (3) of Section
156 Cr.P.C. and require the police to make further report and that such
power can be exercised suo motu, contingent on its satisfaction of the
necessity thereof to espouse the cause of justice.
28. The question that fell for appraisal in Randhir Singh Rana
(supra) was as to whether a judicial Magistrate, after taking cognizance of
an offence, on the basis of a police report and after appearance of the
accused in pursuance of the process issued, can order of its own, further
investigation in the case. The significantly additional feature of this
query is the stage of the proceedings for directing further investigation
in the case i.e. after the appearance of the accused in pursuance of the
process already issued. This Court reiterated that such power was
available to the police, after submission of the charge-sheet as was
evident from Section 173(8) in Chapter XII of the Code, 1973. That it was
not in dispute as well that before taking cognizance of the offence under
Section 190 of Chapter XIV, the Magistrate could himself order
investigation as contemplated by Section 156(3) of the Code was noted as
well. This Court also noticed the power under Section 311 under Chapter
XXIV to summon any person as a witness at any stage of an inquiry/trial or
other proceedings, if the same appeared to be essential to the just
decision of the case.
29. It recalled its earlier rendering in Tula Ram and others v. Kishore
Singh, (1977) 4 SCC 459 to the effect that the Magistrate could order
investigation under Section 156(3) only at the pre-cognizance stage under
Sections 190, 200 and 204 Cr.P.C and that after he decides to take
cognizance under the provisions of Chapter XIV, he would not be entitled in
law to order any investigation under Section 156(3), and further though in
cases not falling within the proviso to Section 202, he could order such
investigation by the police, the same would be in the nature of an inquiry
only as contemplated by Section 202.
30. This Court also recounted its observations in Ram Lal Narang (supra)
to the effect that on the Magistrate taking cognizance upon a police
report, the right of the police to further investigate even under the 1898
Code was not exhausted and it could exercise such right often as necessary,
when fresh information would come to light. That this proposition was
integrated in explicit terms in sub-Section (8) of Section 173 of the new
Code, was noticed. The desirability of the police to ordinarily inform the
Court and seek its formal permission to make further investigation, when
fresh facts come to light, was stressed upon to maintain the independence
of the judiciary, the interest of the purity of administration of criminal
justice and the interest of the comity of the various agencies and
institutions entrusted with different stages of such dispensation.
31. The pronouncement of this Court in Devarapalli Lakshminarayana Reddy
and others v. V. Narayana Reddy and others, (1976) 3 SCC 252 emphasizing on
the distinction in the power to order police investigation under Section
156(3) and under Section 202(1) of the Cr.P.C, was referred to. It was
ruled that the two powers operate in separate distinct spheres at different
stages, the former being exercisable at the pre-cognizance stage and the
latter at the post-cognizance stage when the Magistrate is in seisin of the
case. It was underlined that in the case of a complaint regarding the
commission of a cognizable offence, the power under Section 156(3) could be
invoked by the Magistrate before he takes cognizance of the offence under
Section 190(1)(a), but once such cognizance is taken and he embarks upon
the procedure embodied in Chapter XV, he would not be competent to revert
to the pre-cognizance stage and avail Section 156(3). On the other hand,
it was observed that Section 202 would be invocable at a stage when some
evidence has been collected by the Magistrate in the proceedings under
Chapter XV, but is deemed to be insufficient to take a decision as to the
next step and in such an event, the Magistrate would be empowered under
Section 202 to direct, within the limits circumscribed by that provision,
an investigation for the purpose of deciding whether or not, there is
sufficient ground for proceeding. It was thus exposited that the object of
an investigation under Section 202 is not to initiate a fresh case on
police report but to assist the Magistrate in completing the proceedings
already instituted upon a complaint before him. It was thus concluded on an
appraisal of the curial postulations above referred to, that the Magistrate
of his own, cannot order further investigation after the accused had
entered appearance pursuant to a process issued to him subsequent to the
taking of the cognizance by him.
32. The scope of the judicial audit in Reeta Nag (supra), to reiterate,
was whether, after the charge-sheet had been filed by the investigating
agency under Section 173(2) Cr.P.C, and charge had been framed against some
of the accused persons on the basis thereof, and other co-accused had been
discharged, the Magistrate could direct the investigating agency to conduct
a re-investigation or further investigation under sub-Section (8) of
Section 173. The recorded facts revealed that the Magistrate had in the
contextual facts directed for re-investigation and to submit a report,
though prior thereto, he had taken cognizance of the offences involved
against six of the original sixteen accused persons, discharging the rest.
The informant had thereafter filed an application for re-investigation of
the case and the prayer was acceded to. This Court referred to its earlier
decisions in Sankatha Singh and others v. State of Uttar Pradesh, AIR 1962
SC 1208 and Master Construction Company (P) Ltd. v. State of Orissa and
another, AIR 1966 SC 1047 to the effect that after the Magistrate had
passed a final order framing charge against some of the accused persons, it
was no longer within his competence or jurisdiction to direct a re-
investigation into the case. The decision in Randhir Singh Rana (supra),
which propounded as well that after taking cognizance of an offence on the
basis of a police report and after the appearance of the accused, a
Magistrate cannot of its own order further investigation, though such an
order could be passed on the application of the investigating authority,
was recorded. It was reiterated with reference to the earlier
determination of this Court in Dinesh Dalmia v. CBI, (2007) 8 SCC 770 that
the power of the investigating officer to make a prayer for conducting
further investigation in terms of Section 173(8) of the Code was not taken
away only because a charge-sheet had been filed under Section 173(2) and a
further investigation was permissible even if cognizance had been taken by
the Magistrate. This Court, therefore summed up by enouncing that once a
charge-sheet was filed under Section 173(2) Cr.P.C and either charges have
been framed or the accused have been discharged, the Magistrate may on the
basis of a protest petition, take cognizance of the offence complained of
or on the application made by the investigating authority, permit further
investigation under Section 173(8), but he cannot suo motu direct a further
investigation or order a re-investigation into a case on account of the bar
of Section 167(2) of the Code. It was thus held that as the investigating
authority did not apply for further investigation and an application to
that effect had been filed by the defacto complainant under Section 173(8),
the order acceding to the said prayer was beyond the jurisdictional
competence of the Magistrate. It was, however observed, that a Magistrate
could, if deemed necessary, take recourse to the provisions of Section 319
Cr.P.C at the stage of trial.
33. This decision reinforces the view that after cognizance is taken by
the Magistrate on the basis of a report submitted by the police on the
completion of the investigation, no direction for further investigation can
be made by the Magistrate suo motu and it would be permissible only if such
a request is made by the investigating authority on the detection of fresh
facts having bearing on the case and necessitating further exploration
thereof in the interest of complete and fair trial.
34. The query in Vinay Tyagi v. Irshad Ali @ Deepak & Ors., (2013) 5 SCC
762 was whether in exercise of powers under Section 173 Cr.P.C, the Trial
Court has the jurisdiction to ignore any of the police reports, where there
was more than one, whether by the same or different investigating agencies
submitted in furtherance of the orders of a Court. The respondents therein
were sought to be prosecuted by filing a First Information Report under
Sections 120B, 121 and 122 of the IPC read with Section 25 of the Arms Act
and Sections 4 and 5 of Explosives Substance Act, 1908. The FIR was filed
by the Special Cell of Delhi Police, which the respondents alleged had been
lodged to falsely implicate them. Being aggrieved, the respondents
challenged this action before the High Court and inter alia prayed that the
investigation in the case be transferred to the CBI. As the High Court did
not, though it had issued notice in the writ petition, stay the
investigation, eventually the Special Cell of Delhi Police did file a
charge-sheet before the Trial Court. The High Court finally, while
disposing of the writ petition and being satisfied, directed the CBI to
undertake an inquiry into the matter and submit a report. Subsequent
thereto the CBI filed its report indicating in substance that the
recoveries, amongst others made from the respondents in course of the
inquisition made by the Special Cell of Delhi Police did not inspire
confidence and that further investigation was needed.
35. The CBI, after detailed investigation, submitted a closure report,
whereafter one of the respondents filed an application before the Trial
Court seeking discharge. This prayer was declined by the Trial Court as pre-
matured, observing that no definite conclusion could be drawn at that stage
to ascertain the truthfulness of the version of the two different agencies.
The High Court, being approached under Section 482 of the Cr.P.C by one of
the respondents, seeking to quash the First Information Report, it disposed
of the same by holding that once the report had been filed by the CBI, it
ought to be construed as a investigating agency, and thus its closure
report should be considered by the Trial Court and thus remanded the case
by observing that in undertaking the exercise, as directed, the Trial Court
should not be influenced by the report of the Special Cell of Delhi Police.
This order formed the subject matter of challenge before this Court.
36. After referring to Section 156(3) in particular and Section 190
Cr.P.C, this Court reverted to Section 173 and ruled that a very wide power
was vested in the investigating agency to conduct further investigation
after it had filed its report in terms of sub-Section (2) thereof. It held
on an elucidation of the contents of Section 173(8) that the investigating
agency was thus competent to file a report supplementary to its primary
report and that the former was to be treated by the Court in continuation
of the latter, and that on an examination thereof and following the
application of mind, it ought to proceed to hear the case in the manner
prescribed. It was elaborated that after taking cognizance of the offence,
the next step was to frame charge in terms of Section 228 of the Code
unless the Court found, upon consideration of the record of the case and
the documents submitted therewith, that there did exist no sufficient
ground to proceed against the accused, in which case it would discharge
him on reasons to be recorded in terms of Section 227 of the Code.
Alluding to the text of Section 228 of the Code which is to the effect that
if a Judge is of the opinion that there is ground for presuming that the
accused had committed an offence, he could frame a charge and try him,
this Court propounded that the word “presuming” did imply that the opinion
was to be formed on the basis of the records of the case and the documents
submitted therewith along with the plea of the defence to a limited extent,
if offered at that stage. The view of this Court in Amit Kapoor v. Ramesh
Chander and another, (2012) 9 SCC 460 underlining the obligation of the
Court to consider the record of the case and the documents submitted
therewith to form an opinion as to whether there did exist or not any
sufficient ground to proceed against an accused was underlined. This aspect
was dilated upon logically to respond to the query in the contextual facts
as to whether both the reports submitted by the Special Cell of the
Delhi Police and the CBI were required to be taken note of by the Trial
Court.
37. Additionally, this Court also dwelt upon the three facets of
investigation in succession i.e. (i) initial investigation (ii) further
investigation and (iii) fresh or de novo or reinvestigation. Whereas
initial investigation was alluded to be one conducted in furtherance of
registration of an FIR leading to a final report under Section 173(2) of
the Code, further investigation was a phenomenon where the investigating
officer would obtain further oral or documentary evidence after the final
report had already been submitted, so much so that the report on the basis
of the subsequent disclosures/discoveries by way of such evidence would be
in consolidation and in continuation of the previous investigation and the
report yielded thereby. “Fresh investigation” “reinvestigation” “de novo
investigation”, however is an exercise, which it was held, could neither be
undertaken by the investigating agency suo motu nor could be ordered by the
Magistrate and that it was essentially within the domain of the higher
judiciary to direct the same and that too under limited compelling
circumstances warranting such probe to ensure a just and fair investigation
and trial. Adverting to Section 173 of the Code again, this Court recalled
its observations in State of Punjab v. CBI and others, (2011) 9 SCC 182
that not only the police had the power to conduct further investigation in
terms of Section 173(8) of the Code, even the Trial Court could direct
further investigation in contradistinction to fresh investigation even
where the report had been filed.
38. The decisions in Minu Kumari and another v. State of Bihar and
others, (2006) 4 SCC 359 and Hemant Dhasmana v. CBI and another, (2001) 7
SCC 536 to the effect that a Court could order further investigation under
Section 173(8) of the Code even after a report had been submitted under
Section 173 (2) thereof, was adverted to.
39. Noticeably, none of these decisions, however pertain to a situation
where after the final report had been submitted, cognizance had been taken,
accused had appeared and trial is underway, the Court either suo motu or on
the prayer of the informant had directed further investigation under
Section 173(8) in absence of a request to that effect made by the concerned
investigating officer.
40. The rendition in Bhagwant Singh (supra) was also relied upon. It was
eventually held, by drawing sustenance from the pronouncement in Bhagwant
Singh (supra) that a Magistrate before whom a report under Section 173(2)
of the Code had been filed, was empowered in law to direct further
investigation and require the police to submit a further or a supplementary
report. To reiterate, in Bhagwant Singh (supra), this Court had in
particular dealt with the courses open to a Magistrate, once a charge-sheet
or a closure report is submitted on the completion of investigation under
Section 173(2) of the Code and thus did essentially concentrate at the pre-
cognizance stage of the proceedings.
41. From the issues sought to be answered in this decision and having
regard to the overall text thereof, it is not possible to discern that the
power of the Magistrate, even at the post cognizance stage or after the
accused had appeared in response to the process issued, the suo motu power
of the Magistrate to direct further investigation was intended to be
expounded thereby. Significantly, the adjudication was essentially related
to the pre-cognizance stage.
42. In Chandra Babu alias Moses v. State through Inspector of Police and
others, (2015) 8 SCC 774, the appellant had filed a FIR with the
Kulasckaram Police Station against the respondents-accused alleging
unlawful assembly and assault resulting in multiple injuries. After the
initial investigation, the same was transferred to the District Crime
Branch Police, Kanyakumari which eventually filed a final report in favour
of the respondents-accused, which was accepted by the learned Magistrate.
Meanwhile, however the appellant/informant filed a protest petition before
the Magistrate praying for a direction to the CBCID to reopen the case and
file a fresh report. As before any decision on this protest petition, the
final report filed by the police had already been accepted, the appellant
approached the High Court, which called for the report from the learned
Magistrate and finally interfered with the order accepting the final report
and directed the Magistrate to consider the same along with the protest
petition. The Magistrate next held that there was no justification for
ordering reinvestigation of the case and directed that the protest petition
be treated as a separate private complaint.
43. This order being challenged again before the High Court, the matter
was remanded to the learned Magistrate with a direction to consider the
final report and the other materials on record and pass appropriate orders
after hearing both the public prosecutor and the de facto complainant. This
time, the learned Magistrate returned a finding that the investigation by
the District Crime Branch was a biased one and that the final report was
not acceptable and consequently forwarded the complaint for further
investigation by the CBCID, which was a different investigating agency. The
matter was taken to the High Court by one of the respondents/accused,
whereupon it annulled the direction of the learned Magistrate for
reinvestigation, holding that not only there were material discrepancies in
the evidence brought on record, but also there was no exceptional
circumstance for such a course to be adopted by the Magistrate. It was also
of the view, having regard to the scheme of the Section 173(8) of the Code
that the investigating officer only could request for further
investigation.
44. While disapproving the approach of the High Court in reappreciating
the facts in the exercise of its revisional jurisdiction, this Court
adverting, amongst others to the three Judge Bench exposition in Bhagwant
Singh (supra) reiterated that a Magistrate could disagree with the police
report and take cognizance and issue process and summon the accused, if
satisfied as deemed fit in the attendant facts and circumstances. The
rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately
expounded that the learned Magistrate had really intended to direct further
investigation, but as a different investigating agency had been chosen, the
word re-investigation had been used. This Court thus construed the
direction for investigation by the CBI to be one for further investigation
and upheld the same, but nullified the selection of a new investigating
agency therefor. As a corollary, the investigating agency that had
investigated the case earlier and had submitted the final report, was
directed by this Court to undertake further investigation to be supervised
by the Superintendent of Police and to submit a report before the learned
Chief Judicial Magistrate to be dealt with in accordance with law.
45. This decision too was concerned with a fact situation, pertaining to
the pre-cognizance stage of the proceedings before the learned Magistrate
and therefore, does not, in our comprehension, further the case of the
appellant.
46. As adumbrated hereinabove, Chapter XIV of the Code delineates the
conditions requisite for initiation of proceedings before a Magistrate.
Section 190, which deals with cognizance of offences by Magistrate, sets
out that any Magistrate of the first Class and any Magistrate of the second
class specially empowered, as contemplated, may take cognizance of any
offence either upon receiving a complaint of facts which constitute such
offence or upon a police report of such facts or upon information received
from any person other than the police officer, or upon his own knowledge
that such offence had been committed. Section 156, which equips a police
officer with the power to investigate a cognizable case mandates vide sub-
section 3 thereof that any Magistrate empowered under Section 190 may order
such an investigation. The procedure for dealing with complaints to
Magistrate is lodged under Chapter XV of the Code. Section 202 appearing
therein predicates that any Magistrate on receipt of a complaint of an
offence of which he is authorized to take cognizance or which had been made
over to him under Section 192, may, if he thinks fit and shall in a case
where the accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process against the
accused and either enquire into the case himself or direct an investigation
to be made by a police officer or by such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for
proceeding. The contents of this text of Section 202(1) of the Code
unmistakeably attest that the investigation that can be directed by the
Magistrate, to be undertaken by a police officer would essentially be in
the form of an enquiry for the singular purpose of enabling him to decide
whether or another there is sufficient ground for proceeding with the
complaint of an offence, of which he is authorised to take cognizance.
This irrefutably is at the pre-cognizance stage and thus logically before
the issuance of process to the accused and his attendance in response
thereto. As adverted to hereinabove, whereas Section 311 of the Code
empowers a Court at any stage of any inquiry, trial or other proceeding, to
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, if construed to be essential to be just decision of the
case, Section 319 authorizes a Court to proceed against any person, who
though not made an accused appears, in course of the inquiry or trial, to
have committed the same and can be tried together. These two provisions of
the Code explicitly accoutre a Court to summon a material witness or
examine a person present at any stage of any inquiry, trial or other
proceeding, if it considers it to be essential to the just decision of the
case and even proceed against any person, though not an accused in such
enquiry or trial, if it appears from the evidence available that he had
committed an offence and that he can be tried together with the other
accused persons.
47. On an overall survey of the pronouncements of this Court on the scope
and purport of Section 173(8) of the Code and the consistent trend of
explication thereof, we are thus disposed to hold that though the
investigating agency concerned has been invested with the power to
undertake further investigation desirably after informing the Court
thereof, before which it had submitted its report and obtaining its
approval, no such power is available therefor to the learned Magistrate
after cognizance has been taken on the basis of the earlier report, process
has been issued and accused has entered appearance in response thereto. At
that stage, neither the learned Magistrate suo motu nor on an application
filed by the complainant/informant direct further investigation. Such a
course would be open only on the request of the investigating agency and
that too, in circumstances warranting further investigation on the
detection of material evidence only to secure fair investigation and trial,
the life purpose of the adjudication in hand.
48. The un-amended and the amended sub-Section (8) of Section 173 of the
Code if read in juxtaposition, would overwhelmingly attest that by the
latter, the investigating agency/officer alone has been authorized to
conduct further investigation without limiting the stage of the proceedings
relatable thereto. This power qua the investigating agency/officer is thus
legislatively intended to be available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st Report which manifesting
heralded the amendment, significantly had limited its proposal to the
empowerment of the investigating agency alone.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the
Cr.P.C clearly outline the powers of the Magistrate and the courses open
for him to chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate has the power to
direct investigation under Section 156(3) at the pre-cognizance stage even
after a charge-sheet or a closure report is submitted, once cognizance is
taken and the accused person appears pursuant thereto, he would be bereft
of any competence to direct further investigation either suo motu or acting
on the request or prayer of the complainant/informant. The direction for
investigation by the Magistrate under Section 202, while dealing with a
complaint, though is at a post-cognizance stage, it is in the nature of an
inquiry to derive satisfaction as to whether the proceedings initiated
ought to be furthered or not. Such a direction for investigation is not in
the nature of further investigation, as contemplated under Section 173(8)
of the Code. If the power of the Magistrate, in such a scheme envisaged by
the Cr.P.C to order further investigation even after the cognizance is
taken, accused persons appear and charge is framed, is acknowledged or
approved, the same would be discordant with the state of law, as enunciated
by this Court and also the relevant layout of the Cr.P.C. adumbrated
hereinabove. Additionally had it been the intention of the legislature to
invest such a power, in our estimate, Section 173(8) of the Cr.P.C would
have been worded accordingly to accommodate and ordain the same having
regard to the backdrop of the incorporation thereof. In a way, in view of
the three options open to the Magistrate, after a report is submitted by
the police on completion of the investigation, as has been amongst
authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in
both the contingencies, namely; when he takes cognizance of the offence or
discharges the accused, would be committed to a course, whereafter though
the investigating agency may for good reasons inform him and seek his
permission to conduct further investigation, he suo motu cannot embark upon
such a step or take that initiative on the request or prayer made by the
complainant/informant. Not only such power to the Magistrate to direct
further investigation suo motu or on the request or prayer of the
complainant/informant after cognizance is taken and the accused person
appears, pursuant to the process, issued or is discharged is incompatible
with the statutory design and dispensation, it would even otherwise render
the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can
be summoned by a Court and a person can be issued notice to stand trial at
any stage, in a way redundant. Axiomatically, thus the impugned decision
annulling the direction of the learned Magistrate for further investigation
is unexceptional and does not merit any interference. Even otherwise on
facts, having regard to the progression of the developments in the trial,
and more particularly, the delay on the part of the informant in making the
request for further investigation, it was otherwise not entertainable as
has been rightly held by the High Court.
50. In the result, the appeal, being devoid of any merit, fails and is
dismissed.
.............................................J.
(DIPAK MISRA)
…...........................................J.
(AMITAVA ROY)
NEW DELHI;
FEBRUARY 02, 2017.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1171 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.3338 OF 2015)
AMRUTBHAI SHAMBHUBHAI PATEL .…APPELLANT
VERSUS
SUMANBHAI KANTIBHAI PATEL & ORS. ....RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
The assail is of the verdict dated 10.04.2015 rendered by the High
Court, setting at naught the order dated 27.5.2014 passed by the Chief
Judicial Magistrate, Gandhinagar, whereby the Trial Court had allowed the
application filed by the appellant, the original informant, under Section
173(8) of the Code of Criminal Procedure, 1973 (for short, hereinafter
referred to as “the Code/1973 Code”) for further investigation by the
police.
2. We have heard Mr. Sanjay Hegde, learned senior counsel for the
appellant and M/s. Zakir Hussain, Nitya Ramakrishan, and Shamik
Sanjanwala, learned counsel for the respondent Nos. 1,2 and 3 respectively.
3. The facts indispensable for the present adjudication, portray that
the appellant had lodged a First Information Report (for short hereafter
referred to as “FIR”) against the respondents under Sections 406, 420, 426,
467, 468, 471, 477B and 120B of the Indian Penal Code (for short also
referred to as “IPC”). The materials offered in the FIR and the
investigation by the police that followed, divulged that there was a
dispute between the parties relating to agricultural land and that the
appellant/informant had alleged forgery of the signatures and thumb
impression of his as well as of his family members in the register
maintained by the Notary (Public). After the charge-sheet was submitted,
charge was framed against the respondents and they stood the trial
accordingly, as they denied the imputations. As would be gleanable from
the records, the oral evidence of the appellant/first informant was
concluded on 03.07.2012 followed by that of the investigating officer of
the case on 10.09.2013. Subsequent thereto, the statements of the
respondents were recorded under Section 313 Cr.PC on 03.12.2013, whereafter
an application was filed at the culminating stages of the trial by the
appellant/informant seeking a direction under Section 173(8) from the Trial
Court for further investigation by the police and in particular to call for
a report from the Forensic Science Laboratory as regards one particular
page of the register of the Notary (Public), which according to the
appellant/informant was of debatable authenticity, as it appeared to have
been affixed/pasted with another page thereof. To be precise, this
application was filed at a stage when the case was fixed for final
arguments.
4. The Trial Court, however, by the order impeached before the High
Court granted the prayer made and issued a direction to the police for
further investigation. Significantly, prior thereto in Special Leave
Petition being SLP (Crl.) No.9106 of 2010, this Court had directed
expeditious disposal of the trial. It is also worthwhile to record that the
application filed by the appellant/informant under Section 173(8) of Cr.PC
had been opposed by the respondents herein, who being dissatisfied with the
order of the Trial Court, thus impugned the same before the High Court.
5. The High Court, as the impugned decision would disclose exhaustively
examined the purport of Section 173(8) in the particular context of the
scope of further investigation by the police after it had submitted a
charge sheet and the Trial Court had taken cognizance on the basis thereof
and had proceeded with the trial, following the appearance of the accused
persons. It, amongst others took note of the 41st Report of the Law
Commission of India which after reflecting on the oftly adopted view of the
Courts that once a final report under Section 173 had been submitted by the
police, the latter could not touch the case again and reopen the
investigation, recommended that it ought to be made clear that under the
said provision of the Code, it was still permissible for the police to
examine any evidence even after the submission of the charge-sheet and to
submit a report to the Magistrate. Thus, the Law Commission's emphasis was
to obviate any hindrance in the way of the investigating agency, which in
certain fact situations could be unfair to the prosecution as well as to
the accused.
6. The High Court having regard to this recommendation and the
incorporation of Section 173(8) as a sequitur thereof held that it was
permissible for the investigating officer or the officer-in-charge of the
police station to undertake a further investigation even after the filing
of the charge sheet, but neither the informant nor the accused could claim
as a matter of right, any direction from the Court directing such further
investigation under the said provision after a charge-sheet was filed. The
High Court traced the law as expounded by this Court from its renderings in
Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC 322 vis-à-vis
the scope and purport of Section 173 of Cr.P.C. in particular, qua further
investigation by the police after it had submitted charge-sheet in a case.
The exposition by this Court in Ram Lal Narang (supra) that neither
Sections 173 nor 190 of the Code of Criminal Procedure, 1898 did suggest
exhaustion of the power of the police to further investigate even after the
Magistrate had taken cognizance of the offence already on record and that
the police could exercise such right as often as necessary when fresh
information would come to light and it desired to make further
investigation was noted. However, while doing so, it was observed that in
deference to the Court, the police ought to ordinarily seek its formal
permission to make further investigation. The High Court in this
perspective, observed that a further investigation could in a given factual
setting, sub-serve the interest of the prosecution and even of the defence.
7. The High Court in its verdict also adverted to the decision of the
Privy Council in King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC18 which
stressed upon the restraint of the judiciary against interference with the
police in matters which were within its province, holding that the roles of
these two institutions were complementary and not overlapping, subject
however to the right of the Courts to intervene in an appropriate case for
directions in the nature of habeas corpus.
8. The decision of this Court in Abhinandan Jha & Ors. v. Dinesh Mishra,
AIR 1968 SC 117 to the effect that the Magistrate could not direct the
police the course of investigation or to submit a charge-sheet when it had
already submitted a final report, was referred to as well. Reference to
the explication of law laid down by this Court in Randhir Singh Rana v.
State (Delhi Administration), (1997)1 SCC 361 on the powers available to a
Magistrate at different stages of a case before him in the singular context
of its competence to direct further investigation with reference thereto,
was relied upon. It was noted as well that a Magistrate, of his own, could
not order further investigation after an accused, pursuant to the process
issued against him on the basis of the charge-sheet already submitted, had
appeared in the case.
9. The pronouncement of this Court in Hasanbhai Valibhai Qureshi v.
State of Gujarat and others, (2004) 5 SCC 347 ruling that the police had
the power to conduct further investigation de hors any direction from the
Court even after it had taken cognizance was relied upon to reinforce its
conclusion.
10. The enumeration of this Court in Reeta Nag v. State of West Bengal &
Ors., (2009) 9 SCC 129 also to the same effect was adverted to. The High
Court thus deduced on the basis of an in-depth survey of the state of law,
as above, on the import and ambit of Section 173(8) Cr.P.C. that in absence
of any application or prayer made by the investigating authority for
further investigation in the case, the Trial Court had erred in allowing
the application filed by the appellant/informant for the same.
11. Without prejudice to this finding, the High Court was further of the
view that having regard to the sequence of events and the delay on the part
of the informant to make such a prayer at the closing stages of the trial,
it was not entertainable. In arriving at this determination, the High
Court, amongst others marked that the evidence of the appellant/informant
had been recorded in the year 2012 when he did have sufficient opportunity
to scrutinise the document in question but for inexplicable reasons did
wait for more than two years to register the prayer for further
investigation. It was of the view that the attendant factual setting did
not demonstrate any defective investigation which demanded curation through
a further drill and that in any view of the matter, additional report from
the Forensic Science Laboratory had not been called for. This is more so,
as in the view of the High Court, the entire register of the Notary
(Public) had been seized by the investigating officer and that any unusual
or suspicious feature therein would have been certainly examined by the FSL
and findings in connection therewith recorded. The High Court thus
interfered with the order of the Magistrate permitting further
investigation by the police in the case and ordered for expeditious
disposal of the trial.
12. Whereas the learned senior counsel for the appellant has strenuously
urged that the impugned order is patently indefensible, inasmuch as, if
maintained, it would result in travesty of justice and that not only the
Trial Court was within its competence to order further investigation in the
attendant facts and circumstances but also the same was essential to
unravel the truth bearing on the charge levelled against the respondents-
accused, the impugned order has been endorsed on behalf of the respondents
pleading that the same has been in abidance of the consistent judicially
pronounced postulations qua the scope and purport of Section 173(8) Cr.P.C.
and that no interference therewith is warranted.
13. Having regard to the contentious assertions, expedient it would be to
retrace the law propounded by this Court on the import and impact of
Section 173 Cr.PC, with particular reference to sub-Section (8) thereof.
For immediate reference, the afore-stated provision is extracted in full as
hereunder:
“173. Report of police officer on completion of investigation.- (1) Every
investigation under this Chapter shall be completed without unnecessary
delay.
(1A) The investigation in relation to rape of a child may be completed
within three months from the date on which the information was recorded by
the officer in charge of the police station.
(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 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, weather with or
without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the report of medical examination of the woman has been
attached where investigation relates to an offence under section 376, 376A,
376B, 376C or 376D of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the person,
if any, by whom the information relating to the commission of the offence
was first given.
(3) Where a superior officer of police has been appointed under section
158, the report, shall, in any case in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct the officer in charge
of the police station to make further investigation,
(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order-
for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies,
the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation;
(b) the statements- recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject- matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.
(7) Where the police officer investigating the case finds it convenient so
to do, he may furnish to the accused copies of all or any of the documents
referred to in sub- section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub- section
(2) has been forwarded to the Magistrate and, where upon such
investigation, the officer in charge of the police station obtains further
evidence, oral or documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form prescribed; and the
provisions of sub- sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in relation to a report
forwarded under sub- section (2).”
14. It would be appropriate at this juncture to set out as well the
Section 173 of the Code of Criminal Procedure 1898.
“Section 173. Report of police-officer.-
(1) Every investigation under this Chapter shall be completed without
unnecessary delay, and, as soon as it is completed, the officer in charge
of the police-station shall-
(a) 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,
setting forth the names of the parties, the nature of the information and
the names of the persons who appear to be acquainted with the circumstances
of the case, and stating whether the accused (if arrested) has been
forwarded in custody, or has been released on his bond, and, if so,
whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the State
Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the offence was first given.
(2) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer,
and he may, pending the orders of the Magistrate, direct the officer in
charge of the police-station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond, the Magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.
(4) After forwarding a report under this section, the officer in charge
of the police-station shall, before the commencement of the inquiry or
trial, furnish or cause to be furnished to the accused, free of cost, a
copy of the report forwarded under sub-section (1) and of the first
information report recorded under section 154 and of all other documents or
relevant extracts thereof, on which the prosecution proposes to rely,
including the statements and confessions, if any recorded under section
164 and the statements recorded under sub-section (3) of section 161 of all
the persons whom the prosecution proposes to examine as its witnesses.
(5) Notwithstanding anything contained in sub-section (4), if the police-
officer is of opinion that any part of any statement recorded under sub-
section (3) of section 161 is not relevant to the subject-matter of the
inquiry or trial of that its disclosure to the accused is not essential in
the interests of justice and is inexpedient in the public interests, he
shall exclude such part from the copy of the statement furnished to the
accused and in such a cause, he shall make a report to the Magistrate
stating his reasons for excluding such part.
Provided that at the commencement of the inquiry or trial, the Magistrate,
shall after perusing the part so excluded and considering the report of the
police-officer, pass such orders as he thinks fit and if he so directs, a
copy of the part so excluded or such portion thereof, as he thinks proper,
shall be furnished to the accused.
15. A plain comparison of these two provisions would amply demonstrate
that though these relate to the report of a police officer on completion of
investigation and the steps to ensue pursuant thereto, outlining as well
the duties of the officer in-charge of the concerned police station,
amongst others to communicate, the action taken by him to the person, if
any, by whom the information relating to the commission of offence was
first given, it is explicit that the recast provision of the 1973 Code did
incorporate sub-clause 8 as a significant addition to the earlier
provision.
16. The Forty-first Report of the Law Commission of India (for short,
hereinafter to be referred to as “the Commission”) on the Code of Criminal
Procedure, 1898 dealt with the aspect of reopening of investigation in the
context of the existing Section 173 of the Code 1898 and recommended in the
following terms:
“14.23: A report under section 173 is normally the end of the
investigation. Sometimes, however, the police officer after submitting the
report under section 173 comes upon evidence bearing on the guilt or
innocence of the accused. We should have thought that the police officer
can collect that evidence and send it to the magistrate concerned. It
appears, however, that courts have sometimes taken the narrow view that
once a final report under section 173 has been sent, the police cannot
touch the case again and cannot re-open the investigation. This view
places a hindrance in the way of the investigating agency, which can be
very unfair to the prosecution and, for that matter, even to the accused.
It should be made clear in section 173 that the competent police officer
can examine such evidence and send a report to the magistrate. Copies
concerning the fresh material must of course be furnished to the accused.”
17. The Commission in the above perspective proposed a revision of
Section 173 of Code 1898 in the following terms:
“14.24: We propose that section 173 should be revised as follows:-
I73. (1) Every investigation under this Chapter shall be completed without
unnecessary delay.
(2) 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 po1ice-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 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 under section 169, and, if so,
whether with or without sureties,-
(g) whether he has been forwarded in custody under section 170.
The officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him to the person,
if any, by whom the information relating to the commission of the offence
was ?rst given.
(3) Where a superior officer of police has been appointed under section
158, the report shall, in any cases in which the State Government by
general or special order so directs, be submitted through that officer, and
he may, pending the orders of the Magistrate, direct that officer in charge
of the police-station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order
for the discharge of such bond or otherwise as he thinks ?t.
(5) When such report is in respect of a case to which section 170 applies,
the police-officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation; and
(b) the statements recorded under.....section 161 of all persons whom the
prosecution proposes to examine as its witnesses.
(6) If the police officer is of opinion that any part of any such statement
is not relevant to the subject-matter of the proceedings or that its
disclosure to the accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate to exclude that part
from the copies to be granted to the accused and stating his reasons for
making such request.
(7) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2)
has been forwarded to the Magistrate. Where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the provisions of sub-
sections (2) to (5) shall, as far as may be, apply in relation to such
report or reports as they apply in relation to a report under sub-section
(2).”
18. The Bill to consolidate and amend the law relating to criminal
procedure followed and was circulated in the Gazette of India,
Extraordinary, Part II, published on December 10, 1970 proposing, the Code
of Criminal Procedure, 1970. The Statement of Objects and Reasons clearly
disclosed that the recommendations of the Commission to overhaul the Code
1898 as made were accepted and vis-a-vis Section 173, which corresponded to
Section 176 in the aforementioned report, the amendment proposed was to
facilitate collection of evidence by the police after filing the charge-
sheet and production thereof before the Court, subject to the accused being
given usual facilities for copies. The remodelled Section 173 was identical
in form and substance to the one, as proposed by the Commission in chime
with its recommendation as contained in the Report. Sub-clause (7) of the
new Section 173, as proposed by the Commission and integrated in the Bill,
however eventually appeared as sub-clause (8) to the Section under Code
1973.
19. The newly added sub-section (8), as its text evinces, permits further
investigation by the concerned officer in-charge of the police station in
respect of an offence after a report under sub-section 2 had been forwarded
to the Magistrate and also to lay before the Magistrate a further report,
in the form prescribed, whereafter such investigation, he obtains further
evidence, oral or documentary. It is further ordained that on submission of
such further report, the essentialities engrafted in sub-sections 2 to 6
would apply also in relation to all such report or reports.
20. The integration of sub-section 8 is axiomatically subsequent to the
41st Report of the Law Commission Report of India conveying its
recommendation that after the submission of a final report under Section
173, a competent police officer, in the event of availability of evidence
bearing on the guilt or innocence of the accused ought to be permitted to
examine the same and submit a further report to the Magistrate concerned.
This assumes significance, having regard to the language consciously
applied to design Section 173(8) in the 1973 Code. Noticeably, though the
officer in-charge of a police station, in categorical terms, has been
empowered thereby to conduct further investigation and to lay a
supplementary report assimilating the evidence, oral or documentary,
obtained in course of the said pursuit, no such authorization has been
extended to the Magistrate as the Court is seisin of the proceedings. It
is, however no longer res integra that a Magistrate, if exigent to do so,
to espouse the cause of justice, can trigger further investigation even
after a final report is submitted under Section 173(8). Whether such a
power is available suo motu or on the prayer made by the informant, in
absence of request by the investigating agency after cognizance has been
taken and the trial is in progress after the accused has appeared in
response to the process issued is the issue seeking scrutiny herein.
21. Though noticeably the High Court, in the decision impugned, has aptly
referred to and relied upon the relevant pronouncements of this Court on
the issue involved, the authorities cited at the Bar in course of the
arguments demand recapitulation.
22. In Bhagwant Singh v. Commissioner of Police & Anr., (1985) 2 SCC 537,
a three Judge Bench of this Court was seized with the poser as to whether
in a case where the First Information Report is lodged and after completion
of the investigation initiated on the basis thereof, the police submits a
report that no offence has been committed, the Magistrate if is inclined to
accept the same, can drop the proceeding without issuing notice to the
first informant or to the injured or in case where the incident has
resulted in death, to the relatives of the deceased. This Court in its
adjudicative pursuit, embarked upon a scrutiny of the provisions of Chapter
XII of the Cr.P.C., dealt with Sections 154, 156, 157 thereof before
eluding to Section 173 of the Code. It noticed that under sub-Section (1)
of Section 154, every information relating to the commission of a
cognizable offence, if given orally to an officer in-charge of a police
station has to be reduced into writing by him or under his direction and is
to be read over to the informant and every such information whether given
in writing or reduced to writing, shall be signed by the person giving it
and that a copy thereof shall be given forthwith to the informant, free of
cost. It noticed that under Section 156(1), the officer in-charge of a
police station is vested with the power to investigate any cognizable case
without the order of the Magistrate and that sub-Section (3) authorized the
Magistrate empowered under Section 190 Cr.P.C. to order an investigation,
as mentioned in sub-Section (1). The prescription under Section 157(1)
requiring the officer in-charge of a police station to forthwith send a
report of the information to a Magistrate empowered to take cognizance of
such offence upon a police report, in case he has reason to suspect the
commission of an offence which he is empowered under Section 156 to
investigate, was taken note of. The mandate of Section 157(2) for the
police officer to notify the informant, in case he was of the view that no
sufficient ground for entering on an investigation had been made out, was
also referred to.
23. It noted as well that under Section 173(2)(i), the officer in-charge,
as soon as the investigation is completed, is required to forward to the
Magistrate empowered, a report in the prescribed form so as to enable the
Court to take cognizance of the offence based thereon. This Court also
adverted to Section 190 enumerating the modes of taking cognizance of an
offence by a Magistrate, as specified therein, either upon receiving a
complaint of facts which constituted such offence or upon a police report
of such facts or upon information received from any person other than a
police officer or upon his own knowledge that such offence had been
committed.
24. In the conspectus of the provisions of Cr.P.C. traversed, this Court
held the view that an informant who lodges the first information report
does not fade away therewith and is very much concerned with the action
initiated by the officer in-charge of the police station pursuant thereto,
so much so, that not only a copy of the said report is to be supplied to
him free of cost and in case, no investigation is intended, he has to be
notified of such decision. The reason, in the contemplation of this Court,
for the officer in-charge of a police station to communicate the action
taken by him to the informant and a report to the Magistrate under Section
173(2) Cr.P.C. was that the informant, who sets the machinery of
investigation into motion, was required to know what was the result of the
exercise initiated on the basis thereof, as he would be vitally interested
therein and hence, the obligations cast by law on the officer in-charge.
25. This Court assayed the courses open to the Magistrate on receipt of a
report by the police on the completion of the investigation. It was
enunciated that if the report submitted by the police divulged that no
offence had been committed, there again, the Magistrate would be left at
liberty to adopt one of the three courses, namely; he could accept the
report and drop the proceeding, or he could disagree with the report and
taking the view that there was sufficient ground for proceeding further,
take cognizance of the offence and issue process or he could direct further
investigation to be made by the police under sub-Section (3) of Section
156. Noticeably, these three courses referred to hereinabove are at the
pre-cognizance stage and can be opted for by the Magistrate depending on
his satisfaction on an assessment of the materials then on record.
26. Be that as it may, this Court held that whereas neither the informant
nor the injured nor the relative of the deceased in case of death, would be
prejudicially affected in case the Magistrate decides to take cognizance of
the offence and to issue a process, they would certainly be prejudiced in
case, the Court holds the view that there is no sufficient ground for
proceeding further and is inclined to drop the proceeding. Having regard to
the scheme of Sections 154, 157 and 173 in particular of the Cr.P.C and the
pattern of consequences to follow in the two contingencies referred to
herein above, this Court propounded that in case the Magistrate is not
inclined to take cognizance of the offence and issue process, the informant
must be given an opportunity of being heard so that he can make his
submissions to persuade the Magistrate to take cognizance of the offence
and issue process. Qua the requirement of issuance of such notice to the
injured person or to a relative of the deceased, in case of death, who
is/are not the informant(s) who had lodged the first information report, it
was elucidated that it would be open for the Magistrate in the exercise of
his discretion, if he thinks fit, to give such notice. However, the locus
standi of the injured person or any relative of the deceased, though not
entitled to notice on the Magistrate to apply for the Court at the time of
consideration of the report, if he/they otherwise come to know of such
stage of the proceeding, was recognized, so much so that in case he/they
would want to advance any submission with regard to the report, the
Magistrate would be bound to hear him/them as the case may be.
27. This verdict in re the issue presently involved is significant, so
far as it outlines the different modes of taking cognizance of an offence
by a Magistrate and also the procedures and powers available to him on the
submission of a police report following the completion of investigation.
This decision is pellucid in its statement that the Magistrate, on receipt
of the report, at that stage before taking cognizance of the offence
alleged, may direct further investigation under sub-Section (3) of Section
156 Cr.P.C. and require the police to make further report and that such
power can be exercised suo motu, contingent on its satisfaction of the
necessity thereof to espouse the cause of justice.
28. The question that fell for appraisal in Randhir Singh Rana
(supra) was as to whether a judicial Magistrate, after taking cognizance of
an offence, on the basis of a police report and after appearance of the
accused in pursuance of the process issued, can order of its own, further
investigation in the case. The significantly additional feature of this
query is the stage of the proceedings for directing further investigation
in the case i.e. after the appearance of the accused in pursuance of the
process already issued. This Court reiterated that such power was
available to the police, after submission of the charge-sheet as was
evident from Section 173(8) in Chapter XII of the Code, 1973. That it was
not in dispute as well that before taking cognizance of the offence under
Section 190 of Chapter XIV, the Magistrate could himself order
investigation as contemplated by Section 156(3) of the Code was noted as
well. This Court also noticed the power under Section 311 under Chapter
XXIV to summon any person as a witness at any stage of an inquiry/trial or
other proceedings, if the same appeared to be essential to the just
decision of the case.
29. It recalled its earlier rendering in Tula Ram and others v. Kishore
Singh, (1977) 4 SCC 459 to the effect that the Magistrate could order
investigation under Section 156(3) only at the pre-cognizance stage under
Sections 190, 200 and 204 Cr.P.C and that after he decides to take
cognizance under the provisions of Chapter XIV, he would not be entitled in
law to order any investigation under Section 156(3), and further though in
cases not falling within the proviso to Section 202, he could order such
investigation by the police, the same would be in the nature of an inquiry
only as contemplated by Section 202.
30. This Court also recounted its observations in Ram Lal Narang (supra)
to the effect that on the Magistrate taking cognizance upon a police
report, the right of the police to further investigate even under the 1898
Code was not exhausted and it could exercise such right often as necessary,
when fresh information would come to light. That this proposition was
integrated in explicit terms in sub-Section (8) of Section 173 of the new
Code, was noticed. The desirability of the police to ordinarily inform the
Court and seek its formal permission to make further investigation, when
fresh facts come to light, was stressed upon to maintain the independence
of the judiciary, the interest of the purity of administration of criminal
justice and the interest of the comity of the various agencies and
institutions entrusted with different stages of such dispensation.
31. The pronouncement of this Court in Devarapalli Lakshminarayana Reddy
and others v. V. Narayana Reddy and others, (1976) 3 SCC 252 emphasizing on
the distinction in the power to order police investigation under Section
156(3) and under Section 202(1) of the Cr.P.C, was referred to. It was
ruled that the two powers operate in separate distinct spheres at different
stages, the former being exercisable at the pre-cognizance stage and the
latter at the post-cognizance stage when the Magistrate is in seisin of the
case. It was underlined that in the case of a complaint regarding the
commission of a cognizable offence, the power under Section 156(3) could be
invoked by the Magistrate before he takes cognizance of the offence under
Section 190(1)(a), but once such cognizance is taken and he embarks upon
the procedure embodied in Chapter XV, he would not be competent to revert
to the pre-cognizance stage and avail Section 156(3). On the other hand,
it was observed that Section 202 would be invocable at a stage when some
evidence has been collected by the Magistrate in the proceedings under
Chapter XV, but is deemed to be insufficient to take a decision as to the
next step and in such an event, the Magistrate would be empowered under
Section 202 to direct, within the limits circumscribed by that provision,
an investigation for the purpose of deciding whether or not, there is
sufficient ground for proceeding. It was thus exposited that the object of
an investigation under Section 202 is not to initiate a fresh case on
police report but to assist the Magistrate in completing the proceedings
already instituted upon a complaint before him. It was thus concluded on an
appraisal of the curial postulations above referred to, that the Magistrate
of his own, cannot order further investigation after the accused had
entered appearance pursuant to a process issued to him subsequent to the
taking of the cognizance by him.
32. The scope of the judicial audit in Reeta Nag (supra), to reiterate,
was whether, after the charge-sheet had been filed by the investigating
agency under Section 173(2) Cr.P.C, and charge had been framed against some
of the accused persons on the basis thereof, and other co-accused had been
discharged, the Magistrate could direct the investigating agency to conduct
a re-investigation or further investigation under sub-Section (8) of
Section 173. The recorded facts revealed that the Magistrate had in the
contextual facts directed for re-investigation and to submit a report,
though prior thereto, he had taken cognizance of the offences involved
against six of the original sixteen accused persons, discharging the rest.
The informant had thereafter filed an application for re-investigation of
the case and the prayer was acceded to. This Court referred to its earlier
decisions in Sankatha Singh and others v. State of Uttar Pradesh, AIR 1962
SC 1208 and Master Construction Company (P) Ltd. v. State of Orissa and
another, AIR 1966 SC 1047 to the effect that after the Magistrate had
passed a final order framing charge against some of the accused persons, it
was no longer within his competence or jurisdiction to direct a re-
investigation into the case. The decision in Randhir Singh Rana (supra),
which propounded as well that after taking cognizance of an offence on the
basis of a police report and after the appearance of the accused, a
Magistrate cannot of its own order further investigation, though such an
order could be passed on the application of the investigating authority,
was recorded. It was reiterated with reference to the earlier
determination of this Court in Dinesh Dalmia v. CBI, (2007) 8 SCC 770 that
the power of the investigating officer to make a prayer for conducting
further investigation in terms of Section 173(8) of the Code was not taken
away only because a charge-sheet had been filed under Section 173(2) and a
further investigation was permissible even if cognizance had been taken by
the Magistrate. This Court, therefore summed up by enouncing that once a
charge-sheet was filed under Section 173(2) Cr.P.C and either charges have
been framed or the accused have been discharged, the Magistrate may on the
basis of a protest petition, take cognizance of the offence complained of
or on the application made by the investigating authority, permit further
investigation under Section 173(8), but he cannot suo motu direct a further
investigation or order a re-investigation into a case on account of the bar
of Section 167(2) of the Code. It was thus held that as the investigating
authority did not apply for further investigation and an application to
that effect had been filed by the defacto complainant under Section 173(8),
the order acceding to the said prayer was beyond the jurisdictional
competence of the Magistrate. It was, however observed, that a Magistrate
could, if deemed necessary, take recourse to the provisions of Section 319
Cr.P.C at the stage of trial.
33. This decision reinforces the view that after cognizance is taken by
the Magistrate on the basis of a report submitted by the police on the
completion of the investigation, no direction for further investigation can
be made by the Magistrate suo motu and it would be permissible only if such
a request is made by the investigating authority on the detection of fresh
facts having bearing on the case and necessitating further exploration
thereof in the interest of complete and fair trial.
34. The query in Vinay Tyagi v. Irshad Ali @ Deepak & Ors., (2013) 5 SCC
762 was whether in exercise of powers under Section 173 Cr.P.C, the Trial
Court has the jurisdiction to ignore any of the police reports, where there
was more than one, whether by the same or different investigating agencies
submitted in furtherance of the orders of a Court. The respondents therein
were sought to be prosecuted by filing a First Information Report under
Sections 120B, 121 and 122 of the IPC read with Section 25 of the Arms Act
and Sections 4 and 5 of Explosives Substance Act, 1908. The FIR was filed
by the Special Cell of Delhi Police, which the respondents alleged had been
lodged to falsely implicate them. Being aggrieved, the respondents
challenged this action before the High Court and inter alia prayed that the
investigation in the case be transferred to the CBI. As the High Court did
not, though it had issued notice in the writ petition, stay the
investigation, eventually the Special Cell of Delhi Police did file a
charge-sheet before the Trial Court. The High Court finally, while
disposing of the writ petition and being satisfied, directed the CBI to
undertake an inquiry into the matter and submit a report. Subsequent
thereto the CBI filed its report indicating in substance that the
recoveries, amongst others made from the respondents in course of the
inquisition made by the Special Cell of Delhi Police did not inspire
confidence and that further investigation was needed.
35. The CBI, after detailed investigation, submitted a closure report,
whereafter one of the respondents filed an application before the Trial
Court seeking discharge. This prayer was declined by the Trial Court as pre-
matured, observing that no definite conclusion could be drawn at that stage
to ascertain the truthfulness of the version of the two different agencies.
The High Court, being approached under Section 482 of the Cr.P.C by one of
the respondents, seeking to quash the First Information Report, it disposed
of the same by holding that once the report had been filed by the CBI, it
ought to be construed as a investigating agency, and thus its closure
report should be considered by the Trial Court and thus remanded the case
by observing that in undertaking the exercise, as directed, the Trial Court
should not be influenced by the report of the Special Cell of Delhi Police.
This order formed the subject matter of challenge before this Court.
36. After referring to Section 156(3) in particular and Section 190
Cr.P.C, this Court reverted to Section 173 and ruled that a very wide power
was vested in the investigating agency to conduct further investigation
after it had filed its report in terms of sub-Section (2) thereof. It held
on an elucidation of the contents of Section 173(8) that the investigating
agency was thus competent to file a report supplementary to its primary
report and that the former was to be treated by the Court in continuation
of the latter, and that on an examination thereof and following the
application of mind, it ought to proceed to hear the case in the manner
prescribed. It was elaborated that after taking cognizance of the offence,
the next step was to frame charge in terms of Section 228 of the Code
unless the Court found, upon consideration of the record of the case and
the documents submitted therewith, that there did exist no sufficient
ground to proceed against the accused, in which case it would discharge
him on reasons to be recorded in terms of Section 227 of the Code.
Alluding to the text of Section 228 of the Code which is to the effect that
if a Judge is of the opinion that there is ground for presuming that the
accused had committed an offence, he could frame a charge and try him,
this Court propounded that the word “presuming” did imply that the opinion
was to be formed on the basis of the records of the case and the documents
submitted therewith along with the plea of the defence to a limited extent,
if offered at that stage. The view of this Court in Amit Kapoor v. Ramesh
Chander and another, (2012) 9 SCC 460 underlining the obligation of the
Court to consider the record of the case and the documents submitted
therewith to form an opinion as to whether there did exist or not any
sufficient ground to proceed against an accused was underlined. This aspect
was dilated upon logically to respond to the query in the contextual facts
as to whether both the reports submitted by the Special Cell of the
Delhi Police and the CBI were required to be taken note of by the Trial
Court.
37. Additionally, this Court also dwelt upon the three facets of
investigation in succession i.e. (i) initial investigation (ii) further
investigation and (iii) fresh or de novo or reinvestigation. Whereas
initial investigation was alluded to be one conducted in furtherance of
registration of an FIR leading to a final report under Section 173(2) of
the Code, further investigation was a phenomenon where the investigating
officer would obtain further oral or documentary evidence after the final
report had already been submitted, so much so that the report on the basis
of the subsequent disclosures/discoveries by way of such evidence would be
in consolidation and in continuation of the previous investigation and the
report yielded thereby. “Fresh investigation” “reinvestigation” “de novo
investigation”, however is an exercise, which it was held, could neither be
undertaken by the investigating agency suo motu nor could be ordered by the
Magistrate and that it was essentially within the domain of the higher
judiciary to direct the same and that too under limited compelling
circumstances warranting such probe to ensure a just and fair investigation
and trial. Adverting to Section 173 of the Code again, this Court recalled
its observations in State of Punjab v. CBI and others, (2011) 9 SCC 182
that not only the police had the power to conduct further investigation in
terms of Section 173(8) of the Code, even the Trial Court could direct
further investigation in contradistinction to fresh investigation even
where the report had been filed.
38. The decisions in Minu Kumari and another v. State of Bihar and
others, (2006) 4 SCC 359 and Hemant Dhasmana v. CBI and another, (2001) 7
SCC 536 to the effect that a Court could order further investigation under
Section 173(8) of the Code even after a report had been submitted under
Section 173 (2) thereof, was adverted to.
39. Noticeably, none of these decisions, however pertain to a situation
where after the final report had been submitted, cognizance had been taken,
accused had appeared and trial is underway, the Court either suo motu or on
the prayer of the informant had directed further investigation under
Section 173(8) in absence of a request to that effect made by the concerned
investigating officer.
40. The rendition in Bhagwant Singh (supra) was also relied upon. It was
eventually held, by drawing sustenance from the pronouncement in Bhagwant
Singh (supra) that a Magistrate before whom a report under Section 173(2)
of the Code had been filed, was empowered in law to direct further
investigation and require the police to submit a further or a supplementary
report. To reiterate, in Bhagwant Singh (supra), this Court had in
particular dealt with the courses open to a Magistrate, once a charge-sheet
or a closure report is submitted on the completion of investigation under
Section 173(2) of the Code and thus did essentially concentrate at the pre-
cognizance stage of the proceedings.
41. From the issues sought to be answered in this decision and having
regard to the overall text thereof, it is not possible to discern that the
power of the Magistrate, even at the post cognizance stage or after the
accused had appeared in response to the process issued, the suo motu power
of the Magistrate to direct further investigation was intended to be
expounded thereby. Significantly, the adjudication was essentially related
to the pre-cognizance stage.
42. In Chandra Babu alias Moses v. State through Inspector of Police and
others, (2015) 8 SCC 774, the appellant had filed a FIR with the
Kulasckaram Police Station against the respondents-accused alleging
unlawful assembly and assault resulting in multiple injuries. After the
initial investigation, the same was transferred to the District Crime
Branch Police, Kanyakumari which eventually filed a final report in favour
of the respondents-accused, which was accepted by the learned Magistrate.
Meanwhile, however the appellant/informant filed a protest petition before
the Magistrate praying for a direction to the CBCID to reopen the case and
file a fresh report. As before any decision on this protest petition, the
final report filed by the police had already been accepted, the appellant
approached the High Court, which called for the report from the learned
Magistrate and finally interfered with the order accepting the final report
and directed the Magistrate to consider the same along with the protest
petition. The Magistrate next held that there was no justification for
ordering reinvestigation of the case and directed that the protest petition
be treated as a separate private complaint.
43. This order being challenged again before the High Court, the matter
was remanded to the learned Magistrate with a direction to consider the
final report and the other materials on record and pass appropriate orders
after hearing both the public prosecutor and the de facto complainant. This
time, the learned Magistrate returned a finding that the investigation by
the District Crime Branch was a biased one and that the final report was
not acceptable and consequently forwarded the complaint for further
investigation by the CBCID, which was a different investigating agency. The
matter was taken to the High Court by one of the respondents/accused,
whereupon it annulled the direction of the learned Magistrate for
reinvestigation, holding that not only there were material discrepancies in
the evidence brought on record, but also there was no exceptional
circumstance for such a course to be adopted by the Magistrate. It was also
of the view, having regard to the scheme of the Section 173(8) of the Code
that the investigating officer only could request for further
investigation.
44. While disapproving the approach of the High Court in reappreciating
the facts in the exercise of its revisional jurisdiction, this Court
adverting, amongst others to the three Judge Bench exposition in Bhagwant
Singh (supra) reiterated that a Magistrate could disagree with the police
report and take cognizance and issue process and summon the accused, if
satisfied as deemed fit in the attendant facts and circumstances. The
rendition in Vinay Tyagi (supra) was also alluded to. It was ultimately
expounded that the learned Magistrate had really intended to direct further
investigation, but as a different investigating agency had been chosen, the
word re-investigation had been used. This Court thus construed the
direction for investigation by the CBI to be one for further investigation
and upheld the same, but nullified the selection of a new investigating
agency therefor. As a corollary, the investigating agency that had
investigated the case earlier and had submitted the final report, was
directed by this Court to undertake further investigation to be supervised
by the Superintendent of Police and to submit a report before the learned
Chief Judicial Magistrate to be dealt with in accordance with law.
45. This decision too was concerned with a fact situation, pertaining to
the pre-cognizance stage of the proceedings before the learned Magistrate
and therefore, does not, in our comprehension, further the case of the
appellant.
46. As adumbrated hereinabove, Chapter XIV of the Code delineates the
conditions requisite for initiation of proceedings before a Magistrate.
Section 190, which deals with cognizance of offences by Magistrate, sets
out that any Magistrate of the first Class and any Magistrate of the second
class specially empowered, as contemplated, may take cognizance of any
offence either upon receiving a complaint of facts which constitute such
offence or upon a police report of such facts or upon information received
from any person other than the police officer, or upon his own knowledge
that such offence had been committed. Section 156, which equips a police
officer with the power to investigate a cognizable case mandates vide sub-
section 3 thereof that any Magistrate empowered under Section 190 may order
such an investigation. The procedure for dealing with complaints to
Magistrate is lodged under Chapter XV of the Code. Section 202 appearing
therein predicates that any Magistrate on receipt of a complaint of an
offence of which he is authorized to take cognizance or which had been made
over to him under Section 192, may, if he thinks fit and shall in a case
where the accused is residing at a place beyond the area in which he
exercises his jurisdiction, postpone the issue of process against the
accused and either enquire into the case himself or direct an investigation
to be made by a police officer or by such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient ground for
proceeding. The contents of this text of Section 202(1) of the Code
unmistakeably attest that the investigation that can be directed by the
Magistrate, to be undertaken by a police officer would essentially be in
the form of an enquiry for the singular purpose of enabling him to decide
whether or another there is sufficient ground for proceeding with the
complaint of an offence, of which he is authorised to take cognizance.
This irrefutably is at the pre-cognizance stage and thus logically before
the issuance of process to the accused and his attendance in response
thereto. As adverted to hereinabove, whereas Section 311 of the Code
empowers a Court at any stage of any inquiry, trial or other proceeding, to
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, if construed to be essential to be just decision of the
case, Section 319 authorizes a Court to proceed against any person, who
though not made an accused appears, in course of the inquiry or trial, to
have committed the same and can be tried together. These two provisions of
the Code explicitly accoutre a Court to summon a material witness or
examine a person present at any stage of any inquiry, trial or other
proceeding, if it considers it to be essential to the just decision of the
case and even proceed against any person, though not an accused in such
enquiry or trial, if it appears from the evidence available that he had
committed an offence and that he can be tried together with the other
accused persons.
47. On an overall survey of the pronouncements of this Court on the scope
and purport of Section 173(8) of the Code and the consistent trend of
explication thereof, we are thus disposed to hold that though the
investigating agency concerned has been invested with the power to
undertake further investigation desirably after informing the Court
thereof, before which it had submitted its report and obtaining its
approval, no such power is available therefor to the learned Magistrate
after cognizance has been taken on the basis of the earlier report, process
has been issued and accused has entered appearance in response thereto. At
that stage, neither the learned Magistrate suo motu nor on an application
filed by the complainant/informant direct further investigation. Such a
course would be open only on the request of the investigating agency and
that too, in circumstances warranting further investigation on the
detection of material evidence only to secure fair investigation and trial,
the life purpose of the adjudication in hand.
48. The un-amended and the amended sub-Section (8) of Section 173 of the
Code if read in juxtaposition, would overwhelmingly attest that by the
latter, the investigating agency/officer alone has been authorized to
conduct further investigation without limiting the stage of the proceedings
relatable thereto. This power qua the investigating agency/officer is thus
legislatively intended to be available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st Report which manifesting
heralded the amendment, significantly had limited its proposal to the
empowerment of the investigating agency alone.
49. In contradistinction, Sections 156, 190, 200, 202 and 204 of the
Cr.P.C clearly outline the powers of the Magistrate and the courses open
for him to chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate has the power to
direct investigation under Section 156(3) at the pre-cognizance stage even
after a charge-sheet or a closure report is submitted, once cognizance is
taken and the accused person appears pursuant thereto, he would be bereft
of any competence to direct further investigation either suo motu or acting
on the request or prayer of the complainant/informant. The direction for
investigation by the Magistrate under Section 202, while dealing with a
complaint, though is at a post-cognizance stage, it is in the nature of an
inquiry to derive satisfaction as to whether the proceedings initiated
ought to be furthered or not. Such a direction for investigation is not in
the nature of further investigation, as contemplated under Section 173(8)
of the Code. If the power of the Magistrate, in such a scheme envisaged by
the Cr.P.C to order further investigation even after the cognizance is
taken, accused persons appear and charge is framed, is acknowledged or
approved, the same would be discordant with the state of law, as enunciated
by this Court and also the relevant layout of the Cr.P.C. adumbrated
hereinabove. Additionally had it been the intention of the legislature to
invest such a power, in our estimate, Section 173(8) of the Cr.P.C would
have been worded accordingly to accommodate and ordain the same having
regard to the backdrop of the incorporation thereof. In a way, in view of
the three options open to the Magistrate, after a report is submitted by
the police on completion of the investigation, as has been amongst
authoritatively enumerated in Bhagwant Singh (supra), the Magistrate, in
both the contingencies, namely; when he takes cognizance of the offence or
discharges the accused, would be committed to a course, whereafter though
the investigating agency may for good reasons inform him and seek his
permission to conduct further investigation, he suo motu cannot embark upon
such a step or take that initiative on the request or prayer made by the
complainant/informant. Not only such power to the Magistrate to direct
further investigation suo motu or on the request or prayer of the
complainant/informant after cognizance is taken and the accused person
appears, pursuant to the process, issued or is discharged is incompatible
with the statutory design and dispensation, it would even otherwise render
the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can
be summoned by a Court and a person can be issued notice to stand trial at
any stage, in a way redundant. Axiomatically, thus the impugned decision
annulling the direction of the learned Magistrate for further investigation
is unexceptional and does not merit any interference. Even otherwise on
facts, having regard to the progression of the developments in the trial,
and more particularly, the delay on the part of the informant in making the
request for further investigation, it was otherwise not entertainable as
has been rightly held by the High Court.
50. In the result, the appeal, being devoid of any merit, fails and is
dismissed.
.............................................J.
(DIPAK MISRA)
…...........................................J.
(AMITAVA ROY)
NEW DELHI;
FEBRUARY 02, 2017.
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