Allahabad High Court
Ajay Singh vs State Of U.P. Thru. Prin. Secy. Home Lko. … on 22 October, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:70853 Court No. - 12 Case :- CRIMINAL MISC. WRIT PETITION No. - 7893 of 2024 Petitioner :- Ajay Singh Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Petitioner :- Satendra Nath Rai Counsel for Respondent :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard learned counsel for the petitioner and Sri S.P. Tiwari, learned AGA appearing for the State and perused the record.
2. Present petition has been filed by the petitioner to quash the impugned order dated 12.03.2024 passed in Criminal Case No. 8520 of 2023 by learned Civil Judge (S.D.)/ACJM, Lakhimpur Kheri (“Magistrate”) and also the order dated 07.09.2024 passed in Criminal Revision No. 63 of 2024 (Ajay Singh vs. Vikram Yadav and Another) by the Additional Session Judge, Court No. 6, Lakhimpur Kheri (in short “Revisional Court”).
3. Brief facts, which are required for disposal of present petition, are to the effect that an FIR was lodged by the petitioner on 07.05.2023, registered as Case Crime No. 0275 of 2023 under Section 304-A, 504 & 506 IPC. According to this FIR, the accused Vikram Yadav forcefully entered into a piece of land related to the father of the petitioner with tractor and harrow and tried to plough the same, which was opposed by the father of the petitioner and in return, the accused hurled abuses to his father and on account of the said act of the accused, father of the petitioner died.
4. Thereafter, process of inquest was carried out and as per inquest report, duly signed by the Police Officer including the witnesses present at the time of carrying out the inquest, the deceased expired on account of heart attack. The inquest report is annexed as Annexure No. 3 to the present petition.
5. On 04.05.2023 the body of the deceased was sent for postmortem and according to the postmortem report, (annexed as Annexure No.4), the cause of death is due to shock as a result of cardiac discor (M.I.).
6. The Investigating Officer (in short “I.O.”), upon completion of investigation, filed the charge sheet under Section 304-A, 504, 506 IPC against accused Vikram Yadav, upon which, cognizance was taken by the Court concerned on 19.09.2023. Thereafter, petitioner preferred an application dated 15.09.2023 in terms of Section 173(8) CrPC and the Magistrate vide order dated 12.03.2024, rejected the said application.
7. It would be apt to indicate that the application dated 15.09.2023 under Section 173(8) CrPC was preferred on the basis of an application dated 03.05.2023, which according to petitioner, was given to the In-charge, Police Station-Mohamadi, District-Lakhimpur Kheri. According to this application, the accused-Vikram Yadav killed the father of the petitioner by throttling his neck.
8. It would be apt to note that upon examination, mark of throttling ought to have been found and indicated by the autopsy surgeon, which does not find place in the post-mortem report, annexed as Annexure No. 4 to the present petition.
9. At the cost of repetition, it is apt to indicate that cause of death shown in the post-mortem report is shock as a result of cardiac discor (MI) and in regard to ante-mortem injury, the post-mortem report indicates ‘Nil’.
10. Being aggrieved by the order dated 12.03.2024, the petitioner filed Criminal Revision No. 63 of 2024 (Ajay Kumar Singh vs. Vikram Yadav & Another). The Revisional Court, upon due consideration of the facts of the case as also that opportunity is available to the petitioner during trial, rejected the said revision vide order dated 07.09.2024. The relevant portion of the order dated 07.09.2024 reads as under:-
“सूची में संलग्न आरोप पत्र के अवलोकन से विदित होता है कि निगरानीकर्ता/वादी मुकदमा के अतिरिक्त विवेचक सहित पांच अन्य गवाहों के बयान लिये गये हैं तथा निगरानी याचिका में उल्लिखित अभियोजन कथानक के अनुसार, घटनास्थल पर वादी व उसके मृतक पिता उपस्थित थे। जहां तक विवेचक द्वारा कोई गवाह किसी के भी बयान अंकित न किये जाने सम्बन्धी तर्क का प्रश्न है, तो यह महत्वपूर्ण है कि अभियोजन साक्ष्य के स्तर पर विचारण न्यायालय के समक्ष आरोपपत्र में अंकित साक्षीगण को न केवल अपना साक्ष्य अंकित कराने का अवसर प्राप्त होगा, अपितु युक्तियुक्त आधारों पर घटनाक्रम के महात्वपूर्ण साक्षीगण, यदि कोई हो, के सम्बन्ध में अभियोजन द्वारा विचारण न्यायालय के समक्ष विधि अनुसार प्रार्थना करने का अवसर भी प्राप्त है। इसके अलावा जिन धाराओं के सम्बन्ध में आरोप पत्र प्रेषित किये जाने व संज्ञान लिये जाने सम्बन्धी तर्क का प्रश्न है, तो उक्त धाराएं अंतिम नहीं है तथा न्यायालय आरोप विरचन के समय व निर्णय के पूर्व कभी भी सुसंगत धाराओं में विधि अनुसार आरोप विरचन/ संशोधन कर सकती है। इस सम्बन्ध में निम्नलिखित विधिक दृष्टांत संदर्भ योग्य है-
10- रामवीर सिंह बनाम स्टेट ऑफ यू०पी०, 2017 प्रयाग निर्णय प्रकाशिका (क्रिमिनल) 960 (इला०) में माननीय उच न्यायालय इलाहाबाद द्वारा धारित किया गया कि – “जहां मजिस्ट्रेट ने पुलिस द्वारा अन्वेषण के पश्चात दाखिल आरोपपत्र के आधार पर अपराध का संज्ञान लिया है, तो मजिस्ट्रेट किसी भी धारा को अपवर्जित या सम्मिलित नहीं कर सकता है। आरोप की विवेचना करने के प्रक्रम के पूर्व आरोप पत्र को प्राप्त करने के पश्चात पारित संज्ञान लेने के आदेश को मजिस्ट्रेट द्वारा परिवर्तित या संशोधित नहीं किया जा सकता।” उक्त प्रकरण में विधिक दृष्टांत स्टेट ऑफ गुजरात बनाम गिरीश राधाकृष्णन वरदे, 2014 (1) जे०आई०सी० 595 (एस०सी०) में माननीय सर्वोच न्यायालय द्वारा किये गये प्रेक्षण का अबलम्व लिया गया। विधिक दृष्टांत अनुरन रस्तोगी स्टेट ऑफ यू०पी०, 2007 प्रयाग निर्णय प्रकाशिका 620 (क्रिमिनल) में भी माननीय सर्वोच न्यायालय द्वारा उक्त आशय का प्रेक्षण किया गया है।
11- इस प्रकार विद्वान अवर न्यायालय द्वारा विधि अनुसार आलोच्य आदेश पारित किया गया है और उसमें कोई विधिक त्रुटि दर्शित नहीं होती है तथा विद्वान अवर न्यायालय द्वारा स्वयं में निहित क्षेत्राधिकार का प्रयोग करने में कोई अनियमितता कारित नहीं की गयी है। आलोच्य आदेश दिनांकित 12-03-24 में हस्तक्षेप करने का कोई न्यायोचित आधार नहीं है। तदनुसार निगरानीकर्ता की ओर से प्रस्तुत दाण्डिक निगरानी निरस्त होने योग्य है।”
11. Impeaching the orders impugned dated 12.03.2024 and 07.09.2024, learned counsel for the petitioner says that the application dated 03.05.2023 initially preferred, (annexed as Annexure No. 1 to the present petition) was not taken by the In-charge Police Station-Mohamadi, District-Lahimpur Kheri, and the FIR was lodged after taking signature on the blank paper and further stated that during investigation the I.O. has not recorded statement(s) of petitioner and other witnesses of the prosecution and as such, further investigation/re-investigation is required in the matter.
12. Learned AGA opposing the present petition and supporting the order(s), impugned, submitted that there is no requirement for further investigation/re-investigation. It is for the reason that charge sheet has already been filed and petitioner during trial can establish his case by adducing appropriate evidence and evidence, which was could be collected, has already been collected and submitted before the Trial Court including inquest report and postmortem report. He also stated that on evidence the petitioner can request the Court concerned to alter the charge. As such, the present petition is liable to be dismissed.
13. Considered the aforesaid submissions advanced by the learned counsel for the parties and perused the record.
14. The subject matter in this case relates to re-investigation/further investigation, as prayed, in the instant petition and accordingly, it would be apt to refer expression “investigation” which is defined in Section 2(h) of Cr.P.C.:-
“investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;”
15. Regarding expression “investigation”, it would be appropriate to refer para(s) 53 to 55 of the judgment passed in the case of Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC 569, which are extracted hereinunder:-
“53. The Code vide Chapter XII, ranging from Section 154 to Section 176, deals with information to the Police and their power to investigate. Section 154 deals with the information relating to the commission of a cognizable offence and fiats the procedure to be adopted when prima facie commission of a cognizable offence is made out. Section 156 authorises a police officer in-charge of a Police station to investigate any cognizable offence without the order of a Magistrate. Sub-section (3) of Section 156 provides for any Magistrate empowered under Section 190 to order an investigation as mentioned in Section 156(1). In cases where a cognizable offence is suspected to have been committed, the officer in-charge of the Police station, after sending a report to the Magistrate empowered to take cognizance of such offence, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for discovery and arrest of the offender. Clauses (a) and (b) of the proviso to sub-section (1) to Section 157 give discretion to the officer in-charge not to investigate a case, when information of such offence is given against any person by name and the case is not of serious nature; or when it appears to the officer in-charge of the Police station that there is no sufficient ground for entering the investigation. In each of the cases mentioned in clauses (a) and (b) to the proviso to sub-section (1) to Section 157, the officer in-charge of the Police station has to file a report giving reasons for not complying with the requirements of sub-section (1) and in a case covered by clause (b) to the proviso, also notify the informant that he will not investigate the case or cause it to be investigated. Section 159 gives power to a Magistrate, on receiving such report of the officer in-charge, to either direct an investigation or if he thinks fit, proceed to hold a preliminary inquiry himself or through a Magistrate subordinate to him, or otherwise dispose of the case in the manner provided by the Code.
54. Sections 160 to 164 deal with the power of the Police to require attendance of witnesses, examination of witnesses, use of such statements in evidence, inducement for recording statement and recording of statements. Section 165 deals with the power of a Police officer to conduct search during investigation in the circumstances mentioned therein.
55. The power under the Code to investigate generally consists of following steps : (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173.”
16. On the issue involved in this petition, it would also be apt to refer the judgment of Hon’ble Apex Court passed in the case of Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another; (2019) 17 SCC 1. Relevant para(s), referred, of the same are extracted hereinunder:-
“25. It is thus clear that the Magistrate’s power under Section 156(3) CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police–which such Magistrate is to supervise–Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) CrPC would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) CrPC.
26. However, Shri Basant relied strongly on a three-Judge Bench judgment in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [Devarapalli Lakshminarayana Reddy v.V. Narayana Reddy, (1976) 3 SCC 252 : 1976 SCC (Cri) 380] . This judgment, while deciding whether the first proviso to Section 202(1) CrPC was attracted on the facts of that case, held : (SCC p. 258, para 17)
“17. Section 156(3) occurs in Chapter XII, under the caption:’Information to the Police and their powers to investigate’; while Section 202 is in Chapter XV which bears the heading:’Of complaints to Magistrates’. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding’. Thus 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 proceedings already instituted upon a complaint before him.”
This judgment was then followed in Tula Ram v. Kishore Singh [Tula Ram v. Kishore Singh, (1977) 4 SCC 459 : 1977 SCC (Cri) 621] at paras 11 and 15.
27. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines “investigation” in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference — that “investigation” after the 1973 Code has come into force will now include all the proceedings under CrPC for collection of evidence conducted by a police officer. “All” would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).”
17. At this stage, it would be appropriate to take note of some more para(s) of the judgment passed in the case of Vinubhai Haribhai Malaviya (Supra), as the same would indicate that what was the issue and why the Hon’ble Apex Court directed to lodge the FIR and investigate the issue therein. The same are as under:-
“This case arises out of a first information report (hereinafter referred to as “FIR”) that was lodged on 22-12-2009. The FIR is by one Nitinbhai Mangubhai Patel, power-of-attorney holder of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, who are allegedly residing at “UK or USA”. The gravamen of the complaint made in the FIR is that one Vinubhai Haribhai Malaviya is blackmailing these two gentlemen with respect to agricultural land which is just outside the city of Surat, Gujarat and which admeasures about 8296 sq m. The FIR alleges that Ramanbhai Patel and Shankarbhai Patel are absolute and independent owners of this land, having obtained it from one Bhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year 1975. The FIR then narrates that because of a recent price hike of lands in the city of Surat, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have hatched a conspiracy in collusion with each other, and published a public notice under the caption “Beware of Land-grabbers” in a local newspaper on 7-6-2008. Sometime thereafter, Vinubhai Haribhai Malaviya then contacted an intermediary, who in turn contacted Nitinbhai Patel (who lodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviya demanded an amount of Rs 2.5 crores in order to “settle” disputes in respect of this land. It is alleged in the said FIR that apart from attempting to extort money from the said Nitinbhai Patel, the heirs of Bhikhabhai and Bhikiben together with Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya have used a fake and bogus “Satakhat” and power of attorney in respect of the said land, and had tried to grab this land from its lawful owners Ramanbhai and Shankarbhai Patel.
2. The background to the FIR is the fact that one Khushalbhai was the original tenant of agricultural land, bearing Revenue Survey No. 342, admeasuring 2 ac, 2 gunthas, situated at Puna (Mauje), Choriyasi (Tal), District Surat. Khushalbhai died, after which his son Bhikhabhai became tenant in his place. Bhikhabhai in turn died on 23-12-1984 and his wife Bhikiben died on 18-12-1999. A public notice dated 7-6-2008 was issued in Gujarat Mitra and Gujarat Darpan Dainik by the heirs of Bhikhabhai, stating that Ramanbhai and Shankarbhai Patel are landgrabbers, and are attempting to create third-party rights in the said property. This led to the legal heirs of Bhikhabhai, through their power-of-attorney holder, applying on 12-6-2008 to the Collector, Nanpura (Surat), to cancel revenue entries that were made way back in 1976.
3. Pursuant to the filing of the FIR, investigation was conducted by the police, which resulted in a charge-sheet dated 22-4-2010 being submitted to the Judicial Magistrate (First Class), Surat. On 23-4-2010, the said Magistrate took cognizance and issued summons to the accused regarding offences under Sections 420, 465, 467, 468, 471, 384 and 511 of the Penal Code, 1860 (hereinafter referred to as “IPC”). Pursuant to the summons, the accused appeared before the said Magistrate. On 10-6-2011, an application (Ext. 28) was filed by Accused 1 Vinubhai Haribhai Malaviya for further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) and another application (Ext. 29) for discharge. Likewise, on 14-6-2011, applications for further investigation (Ext. 31) and for discharge (Ext. 32) were filed by Accused 2 to 6. By an order dated 24-8-2011, the Magistrate dismissed the applications that were filed for further investigation (i.e. Exts. 28 and 31), stating that the facts sought to be placed by the applicants were in the nature of evidence of the defence that would be taken in the trial. Likewise, on 21-10-2011 the learned Magistrate also rejected the discharge applications that were made (i.e. Exts. 29 and 32).
4. Meanwhile, on 26-7-2011, Criminal Miscellaneous Application No. 816 of 2011 was moved by Vinubhai Haribhai Malaviya and the other accused to register an FIR, or for the Magistrate to order investigation under Section 156(3) CrPC into the facts stated in their applications. This was rejected by the learned Magistrate by an order dated 9-9-2011.
5. Separate criminal revision applications were filed before the Sessions Court, Surat, being Revision Applications Nos. 376 and 346 of 2011, insofar as the dismissal by the learned Magistrate of further investigation and the order rejecting registration of the FIR were concerned. Both these revision applications were decided by the learned Second Additional Sessions Judge, Surat by a common order dated 10-1-2012. By this order, the learned Second Additional Sessions Judge went into details of facts that were alleged in the application under Section 173(8) and found that a case had been made out for further investigation. Accordingly, he held:
“As per the abovereferred discussion, it can be seen that no effective investigation or discussions have been carried out in all these respect during the course of the investigation of the said offence and further, it is very noteworthy here that matters for which the prayers are made in these revision applications, all these matters are pertaining to the complaint of this case. Hence, it is very much necessary that for the purpose of carrying out a detailed and full investigation of this complaint, all these matters should also be investigated. But for the said purpose, it is not necessary that a separate complaint be registered and thereafter its investigation be carried out. But by covering this investigation also in the complaint of the present matter, if it is found out in such investigation that any offence was committed, then appropriate criminal proceedings can be initiated against such person.”
6. Pursuant to this order, the investigation was handed over to Investigating Officer R.A. Munshi (hereinafter referred to as “IO Munshi”) on 6-3-2012, who then submitted two further investigation reports–one within three days, dated 9-3-2012 and a second one dated 10-4-2012, in which the IO Munshi went into the facts mentioned in the Section 173(8) CrPC applications that were filed. On 13-6-2012, the original accused withdrew [Shantaben v. State of Gujarat, 2012 SCC OnLine Guj 6476] Special Criminal Application No. 727 of 2012 filed in the High Court, which was filed challenging the order by which the learned Revisional Court had confirmed the order rejecting the discharge applications, with liberty to move an appropriate application for discharge before the Magistrate. The High Court heard Criminal Revision Application No. 44 of 2012 together with Criminal Miscellaneous Application No. 1746 of 2012, and arrived [Nitinbhai Mangubhai Patel v. State of Gujarat, 2013 SCC OnLine Guj 8980] at the conclusion that, as a matter of law, the Magistrate does not possess any power to order further investigation after a charge-sheet is filed and cognizance is taken. The High Court further castigated IO Munshi, holding that the furnishing of interim investigation reports, not through a special Public Prosecutor and not to the Magistrate, but to the Additional Sessions Judge himself smacks of mala fides, as if IO Munshi wanted to oblige and/or favour the accused persons.
7. The High Court further found that the two interim investigation reports virtually acquitted the accused persons, and therefore, the High Court set aside the judgment of the learned Second Additional Sessions Judge dated 10-1-2012, and consequently, the two further interim investigation reports. So far as Criminal Revision Application No. 346 of 2011 (which was disposed of by the learned Second Additional Sessions Judge without considering merits, in light of its order in Criminal Revision Application No. 376 of 2011) was concerned, the High Court remanded the same for fresh consideration to the learned Second Additional Sessions Judge, who would then decide as to whether an FIR should be registered, insofar as the allegations contained in the applications for further investigation are concerned. Pursuant to the aforesaid remand, by judgment dated 23-4-2016, the learned Additional Sessions Judge has rejected the application under Section 156(3) CrPC on merits, against which Special Criminal Application No. 3085 of 2016 has been filed and is awaiting disposal. Several other proceedings that are pending between the parties have been pointed out to us, with which we have no immediate concern in this case.
8. Shri Dushyant Dave, learned Senior Advocate, appearing on behalf of the appellants, has forcefully argued, placing reliance on a number of provisions of CrPC, and a number of our judgments, that the High Court was wholly incorrect as a matter of law, in holding that post-cognizance a Magistrate would have no power to order further investigation into an offence. He read out in great detail the FIR dated 22-12-2009, the contents of the charge-sheet dated 22-4-2010, and relied heavily on a communication made by the Commissioner of Revenue, Gujarat to the Collector, Surat dated 15-3-2011. According to him, the contents of this communication would show that there is no doubt that further investigation ought to have been carried out on the facts of this case, in that, a huge fraud had been perpetrated on his clients by land grabbing mafia, and it would be a travesty of justice if the learned Second Additional Sessions Judge’s judgment dated 10-1-2012 was not upheld. According to him, the High Court judgment was greatly influenced by the fact that : (1) IO Munshi submitted further interim investigation reports very quickly, and (2) had submitted these reports to the Additional Sessions Judge instead of the Magistrate; resulting in the throwing out of the baby with the bathwater. He therefore urged us to uphold the order of the Second Additional Sessions Judge who ordered further investigation, as that would lead to the truth of the matter in this case.
9. On the other hand, Shri Basant and Shri Navare, learned Senior Advocates appearing on behalf of the respondents, supported the judgments of the trial court and the High Court, stating that there is no doubt that without filing a cross-FIR, what was sought to be adduced is evidence which may perhaps amount to a defence in the trial to be conducted, which would be impermissible. They emphasised that at no stage had an application been moved to quash the proceedings, and obviously, a belated application made more than a year after cognizance had been taken, to obtain by way of further investigation facts which were wholly divorced from the FIR would be wholly outside the Magistrate’s power under Section 173(8) CrPC. They relied upon several judgments, and particularly recent judgments of this Court, in order to show that post-cognizance and particularly after summons is issued to the accused, and the accused appears pursuant to such summons, the Magistrate has no suo motu power, nor can he be moved by the accused, for further investigation at this stage of the proceedings.
10. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.
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43. We now come to certain other judgments that were cited before us. King Emperor v. Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203 : AIR 1945 PC 18] , was strongly relied upon by Shri Basant for the proposition that unlike superior courts, Magistrates did not possess any inherent power under CrPC. Since we have grounded the power of the Magistrate to order further investigation until charges are framed under Section 156(3) read with Section 173(8) CrPC, no question as to a Magistrate exercising any inherent power under CrPC would arise in this case.
44.Union of India v. W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , is a judgment which states that the accused has no right to participate in the investigation till process is issued to him, provided there is strict compliance with the requirements of fair investigation. Likewise, the judgments in Nagawwa v. V.S. Konjalgi [Nagawwa v. V.S. Konjalgi, (1976) 3 SCC 736 : 1976 SCC (Cri) 507] , Prabha Mathur v. Pramod Aggarwal [Prabha Mathur v. Pramod Aggarwal, (2008) 9 SCC 469 : (2008) 3 SCC (Cri) 787] , Narender G. Goel v. State of Maharashtra [Narender G. Goel v. State of Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] and Dinubhai Boghabhai Solanki v. State of Gujarat [Dinubhai Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384] , which state that the accused has no right to be heard at the stage of investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable. Further, Babubhai v. State of Gujarat [Babubhai v. State of Gujarat, (2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , is a judgment which distinguishes between further investigation and re-investigation, and holds that a superior court may, in order to prevent miscarriage of criminal justice if it considers necessary, direct investigation de novo, whereas a Magistrate’s power is limited to ordering further investigation. Since the present case is not concerned with re-investigation, this judgment also cannot take us much further. Likewise,Romila Thapar v. Union of India [Romila Thapar v. Union of India, (2018) 10 SCC 753 : (2019) 1 SCC (Cri) 638] , held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including asking for a court-monitored investigation. This judgment also is far removed from the question that has been decided by us in the facts of this case.
45.When we come to the facts of this case, it is clear that the FIR dated 22-12-2009 is concerned with two criminal acts, namely, the preparing of fake and bogus “Satakhat” and power of attorney in respect of the agricultural land in question, and the demanding of an amount of Rs 2.5 crores as an attempt to extort money by the accused persons. The facts that are alleged in the application for further investigation are facts which pertain to revenue entries having been made in favour of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how their claim over the same land is false and bogus. Shri Basant is, therefore, right in submitting that the facts alleged in the applications for further investigation are really in the nature of a cross-FIR which has never been registered. In fact, the communication of the Commissioner of Revenue, Gujarat dated 15-3-2011 to the Collector, Surat–so strongly relied upon by Shri Dushyant Dave–bears this out. In this communication, the learned Commissioner doubts that a particular order dated 14-4-1976 passed by a revenue authority ever existed, and that by making an application in the name of the long since deceased Bhikhabhai Khushalbhai in 2010, for getting a copy of Form No. 3 would, prima facie, amount to a criminal offence. Further, the learned Commissioner goes on to state that Bhikiben (Bhikhabhai’s widow), who had passed away in December 1999, could not possibly have made an application in the year 2000; which shows that her signature is also prima facie forged. Further, the said Ramanbhai and Shankarbhai Patel are at present 48 and 53 years old, and if they could be said to be in possession of the said agricultural land since 1934, they could be said to be in possession at a time when they were not yet born. Further, since these two gentlemen were abroad from the very beginning, it is stated that they could not possibly be farmers cultivating agricultural land. For these, and various other reasons, the Commissioner concluded:
“Thus, looking to all the aforesaid particulars, as per the submission made by the lady applicant, scam has been made in respect of her land by creating false bogus cases/resolutions/orders passed or by forging fake documents. Submission is made for initiating criminal proceedings against all those who are involved in such scam and whether there is substance in this matter or not? Thorough inquiry be made in that connection at your level. Till the real particulars in this matter are not becoming clear, it is appearing necessary to stop the NA permission/construction activities. Therefore, after making necessary proceedings in that regard, detailed report having basis of the proceedings done is to be immediately submitted to the undersigned and periodical information of the proceedings done in this matter also be given to the undersigned.”
46. Given the allegations in the communication of 15-3-2011, we are of the view that this is not a case which calls for any further investigation into the facts alleged in the FIR lodged on 22-12-2009. Yet, having regard to what is stated by the learned Commissioner in the said letter, we are of the view that the police be directed to register an FIR qua these facts, which needs to be investigated by a senior police officer nominated by the Commissioner of Police concerned.
47. We, therefore, set aside the impugned High Court judgment [Nitinbhai Mangubhai Patel v. State of Gujarat, 2013 SCC OnLine Guj 8980] insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation. However, given that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22-12-2009, we uphold the impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated 10-1-2012 which had ordered further investigation, and also the consequential order setting aside the two additional interim reports of the IO Munshi. So far as Criminal Revision Application No. 346 of 2011 is concerned, we set aside the impugned High Court judgment which remanded the matter to the Revisional Court. Consequently, the judgment of the learned Additional Sessions Judge dated 23-4-2016 upon remand is also set aside, rendering Special Criminal Application No. 3085 of 2016 infructuous.
48. However, given the serious nature of the facts alleged in the communication of the Commissioner of Revenue dated 15-3-2011, we direct that the police register an FIR based on this letter within a period of one week from the date of this judgment. This FIR is to be enquired into by a senior police officer designated by the Commissioner of Police concerned, who is to furnish a police report pursuant to investigation within a period of three months from the date on which such officer is appointed to undertake such investigation. If such police report results in a prima facie case being made out, and if the Judicial Magistrate takes cognizance of such charge-sheet, charges will then be framed and trial held. In the meanwhile, the trial in FIR dated 22-12-2009, which has been stayed by this Court by an order dated 24-4-2019 [Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 43] , will not be commenced until the police report is submitted in the FIR to be lodged by the police pursuant to this judgment. The learned Magistrate may then decide, in the event that cognizance is taken of the police report in the FIR to be filed, as to whether a joint trial should take place, or whether separate trials be conducted one after the other pursuant to both the FIRs.”
18. The Hon’ble Apex Court in the case of State vs. Hemendhra Reddy, 2023 SCC OnLine SC 515, observed as under:-
“35. Section 169 of the CrPC reads as under:
“169. Release of accused when evidence deficient.–
If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.”
36. The perusal of the aforesaid Section would reveal that the Investigating Officer is under an obligation to release such person, who is in custody on executing a bond with or without sureties, if evidence is not sufficient and/or there are no reasonable grounds of suspicion to forward such person to the Magistrate.
37. The plain reading of Section 169 of the CrPC, therefore, postulates that when the Investigating Officer reports his action to the learned Magistrate, it will not be a report, however it will be a report of his action either by the Investigating Officer or by the Officer in-charge of the police station.
38. Section 173 of the CrPC states about the steps to be taken by the Investigating Officer after the completion of the investigation. The Officer in-charge of the police station is required to forward the report under said Section to the Magistrate empowered to take cognizance of the offence in prescribed form.
39. Section 173 of the CrPC reads thus:
“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 an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E 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, whether 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 sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Penal Code, 1860 (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 subsection (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 subsections (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).”
(Emphasis supplied)
40. Thus, Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an obligation to submit its report to the Magistrate under Section 173 of the CrPC. Thus, though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear if and when so required before the Magistrate empowered to take cognizance of the offence on a police report and such report is contemplated under Section 173 of the CrPC. Clauses (d) and (f) of Section 173(2)(i) of the CrPC read as under:
“173(2)(i)
xxx xxx xxx xxx xxx
(d) whether any offence appears to have been committed and, if so, by whom;
xxx xxx xxx xxx xxx
(f) whether he has been released on his bond and, if so, whether with or without sureties”.
41. Section 173(8) of the CrPC deals with further investigation and supplementary report. In the Code of Criminal Procedure, 1898 (for short, ‘the Old Code’), there was no identical provision to that of Section 173(8) of the CrPC. The same is a newly added provision in the CrPC. It was added on the recommendation of the Law Commission in its 41st Report that the right of the police to make further investigation should be statutorily affirmed.
42. In the Old Code, there was no provision prescribing the procedure to be followed by the police for fresh investigation, when fresh facts came to light, upon the submission of the police report and subsequent to taking cognizance by the Magistrate. There was, also, no express provision prohibiting further investigation by the police.
43. The said omission was sought to be supplied for the first time by a two-Judge Bench of the Madras High Court as early as in 1919 in Divakar Singh v. A. Ramamurthi Naidu reported in AIR 1919 Mad 751, where it was observed that:
“Another contention is put forward that when a report of investigation has been sent in under Section 173 of the Cr PC, the police has no further powers of investigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received.”.
44. After recognition of the right of the police to make repeated investigations under the Old Code in Divakar’s case, a three-Judge Bench of this Court in H.N. Rishbud v. State of Delhi reported in AIR 1955 SC 196, held that:–
“It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.”
45. Some High Courts were also of the view that with the submission of a chargesheet under Section 173, the power of the police to investigate into an offence comes to an end and the Magistrate’s cognizance of the offence started. For instance, in State v. Mehar Singh reported in 1974 Cri LJ 970, a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a chargesheet by the police and thereafter, further investigation by the police was not permissible.
46. It was, however, observed that in light of the decision in H.N. Rishbud (supra), it would be open to the Magistrate to ‘suspend cognizance’ and direct the police to make further investigation into the case and submit a report.
47. The said inconsistency and incongruity in the judicial decisions was recognized by the Law Commission in its 41st Report (under Clause 14.23) and it was recommended that the right of the police to make further investigation should be statutorily affirmed. Accordingly, in the CrPC, Section 173(8), came to be introduced, which statutorily empowered the police to undertake further investigation after submission of the final report under Section 173(2) of the CrPC. Conspicuously, it still did not confer such powers on the Magistrate to direct further and/or fresh investigation after submission of the final report by the Police.
48. Section 173(8) of the CrPC may be fragmented or dissected as under:
(1) Further investigation can be done in respect of an offence wherein report under Section 173(2) has been forwarded to the Magistrate; and
(2) During further investigation, the officer-in-charge has power
(a) to obtain further evidence, oral or documentary,
(b) to forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed,
(3) The provisions of sub sections (2) to (6) shall, as far as may be, apply in relation to such further report or reports.
49. Sub section (1) of Section 173 of the CrPC provides that every investigation by the police shall be completed without unnecessary delay and sub section (2) of Section 173 of the CrPC provides that as soon as such investigation 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.
50. Under sub section (2) of the Section 173 of the CrPC, a police report (chargesheet or Challan) is filed by the police after investigation is complete.
51. Sub section (8) of Section 173 of the CrPC, states that nothing in the section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate.
52. Thus, even where chargesheet or Challan has been filed by the police under sub section (2) of Section 173 of the CrPC, the police can undertake further investigation in respect of an offence under sub section (8) of Section 173 of the CrPC. (Reference : Article titled “Different Aspects of Section 173(8) of the CrPC” by D. Nageswara Rao, Prl. JCJ, Manthani.)
What is the meaning of the term “Further Investigation”?
53. In Rama Chaudhary v. State of Bihar reported in (2009) 6 SCC 346, this Court held that, “further investigation within the meaning of provision of Section 173(8) CrPC is additional; more; or supplemental. “Further investigation”, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”
What are the alternatives before a Magistrate when a “Final Report” is filed?
54. Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magistrate may either:
(1) accept the report and take cognizance of offence and issue process,
(2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer,
(3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC.
(4) may treat the protest complaint as a complaint, and proceed under Sections 200 and 202 of the CrPC.
What is the prime consideration for “Further Investigation”?
55. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice.
Difference between “Further Investigation” and “Re-investigation”
56. There is no doubt that “further investigation” and “re-investigation” stand altogether on a different footing. In Ramchandran v. R. Udhayakumar reported in (2008) 5 SCC 413, this Court has explained the fine distinction between the two relying on its earlier decision in K. Chandrasekhar v. State of Kerala reported in (1998) 5 SCC 223. We quote paras 7 and 8 as under:
“7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291]. It was, inter alia, observed as follows : (SCC p. 237, para 24)
“24. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional; more; supplemental’. ‘Further’ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a ‘further’ report or reports–and not fresh report or reports–regarding the ‘further’ evidence obtained during such investigation.”
8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by CB CID as directed by the High Court.”
Position of Law on the subject of “Further Investigation”
57. In King-Emperor v. Khwaja Nazir Ahmad, (1943-44) 71 IA 203 the Privy Council delineated the powers of the police to investigate. It was held thus:
“Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Courts to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus.”
58. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. reported in (1999) 5 SCC 740, it was held in paras 10 and 11:
“10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791]. The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation.”
59. In Hemant Dhasmana v. Central Bureau of Investigation reported in (2001) 7 SCC 536, it was held:
“15. When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person, it is open to the court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the court has the power to ignore the contrary conclusions made by the investigating officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging therefrom and it can even take cognizance of the offences which appear to it to have been committed, in exercise of its power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. …
16. Although the said sub-section does not, in specific terms, mention about the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by a court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. …”
60. In Union Public Service Commission v. S. Papaiah reported in (1997) 7 SCC 614, it was held in Para 13:
“The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 CrPC.”.
61. This Court in Hasanbhai (supra) held thus:
“12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.”
62. In Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 SCC 322, this Court held thus:
“21. As observed by us earlier, there was no provision in the CrPC, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.”
63. In State of Andhra Pradesh v. A.S. Peter reported in (2008) 2 SCC 383, this Court held thus:
“9. Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not.”
64. In Nirmal Singh Kahlon v. State of Punjab reported in (2009) 1 SCC 441, this Court held as follows:
“68. An order of further investigation in terms of Section 173(8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision. Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of U.P. [(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440], correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.”
65. In Vinay Tyagi (supra), it was held that “further investigation” in terms of Section 173(8) of the CrPC can be made in a situation where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court. The report on such further investigation under Section 173(8) of the CrPC can be termed as a supplementary report.
66. In Vinay Tyagi (supra), it was held that:
“40.2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code.
x x x x x x x x x
40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue “further investigation” and file supplementary charge-sheet. …”
67. In Vinubhai (supra); a three-Judge Bench of this Court has endeavoured to lay at rest the controversy enveloping the evasive issue of further investigation directed by the Magistrate. This Court, speaking through Justice R.F. Nariman, has laid down at Para 38 that:
“To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law.” It was also clarified that, “The “investigation” spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continues until charges are framed by the Court, at which stage the trial can be said to have begun.”.
68. Thus, this Court, in conclusion, observed that, “when Section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).”
69. Thus, in view of the law laid down by this Court in the various decisions cited hereinabove, it is well settled that sub section (8) of Section 173 of the CrPC permits further investigation, and even dehors any direction from the court, it is open to the police to conduct proper investigation, even after the court takes cognizance of any offence on the strength of a police report earlier submitted.
70. However, the question before this Court is whether sub section (8) of Section 173 of the CrPC permits further investigation after the Magistrate has accepted a final report (closure report) under sub section (2) of Section 173 of the CrPC. The contention raised on behalf of the accused persons is that acceptance of a closure report would terminate the proceedings finally so as to bar the investigating agency from carrying out any further investigation in connection with the offence.
71. The learned counsel appearing for the accused persons submitted that an order accepting the closure report under Section 190(1)(c) of the CrPC is a judicial order and not an administrative order. Relying on the decision of this Court in Kamlapati Trivedi v. State of West Bengal reported in (1980) 2 SCC 91, it was submitted that when a final report of the police is submitted to the Magistrate and the Magistrate passes an order (a) agreeing with the report of the police and filing proceedings; or (b) not agreeing with the police report and holding that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and takes cognizance of the offence complained of, such order is a judicial order.
72. We are at one with the aforesaid submission canvassed on behalf of the accused persons. However, this is not going to make any difference. What is necessary to be examined is as to whether an order passed under Section 190(1) of the CrPC accepting a final report being a judicial order would bar further investigation by the police or the CBI as in the present case, in exercise of the statutory powers under chapter XII of the CrPC?
73. In State of Rajasthan v. Aruna Devi reported in (1995) 1 SCC 1, a complaint was filed in the Court of Munsif and Judicial Magistrate, First Class, Bilara, against the respondents under various sections of the IPC. The gravamen of the allegation was that the respondents had, in pursuance of a conspiracy, transferred some land on the strength of a special power of attorney bearing forged signature. The Magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by Section 156(3) of the CrPC. A case was registered thereafter, by the police and a final report was submitted on 18.07.1981 stating that complaint was false. The report came to be accepted by the Magistrate on 23.09.1981. It, however, so happened that the Superintendent of Police had independently ordered further investigation on 24.09.1981 and a challan came to be filed by police against the respondents, inter alia, under Sections 420 and 467 of the IPC. The Magistrate took cognizance on 25.06.1984. A challenge was made to this act of the Magistrate before Sessions Judge, Jodhpur, who dismissed the revision. On further approach to the High Court, the revision was allowed and the order of cognizance was set aside. The State came in appeal under Article 136 of the Constitution.
74. This Court observed in paras 3 and 4 respectively as under:
3. A perusal of the impugned judgment of the High Court shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as Section 173(8) of the Code permits further investigation in respect of an offence after a report under sub-section (2) has been submitted. Sub-section (8) also visualises forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard.
4. Shri Francis for the respondents, however, contends that the order of the Magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not permissible in law. To substantiate the legal submission, we have been first referred to Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [1962 Supp (2) SCR 297 : AIR 1962 SC 876 : (1962) 1 Cri LJ 770], in which a three-Judge Bench of this Court dealt with this aspect. A perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. Further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. In the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.
75. The aforesaid decision of this Court has been rightly referred to and relied upon by the High Court in its first order dated 11.09.2014.
76. This Court in K. Chandrasekhar (supra) was considering a case, where on the complaint of a Police Inspector, a case was registered by the Kerala Police against the appellants therein for the offences punishable under Sections 3 and 4 respectively of the Official Secrets Act, 1923 read with Section 34 IPC on the allegation that in collusion with some Indians and foreigners they had committed acts prejudicial to the safety and sovereignty of India. During the investigation, certain other persons (appellants in accompanying appeals) were arrested. Thereafter, a DIG of Police, who was the head of the team conducting the investigation, recommended the case for being investigated by the CBI. Pursuant to such recommendation, the Government of Kerala by a notification dated 02.12.1994 accorded its consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, ‘the Act’) for further investigation of the case by the CBI. Accordingly, the CBI took up the investigation. After completion of the investigation, on 16.04.1996, the CBI filed its report in the final form under Section 173(2) of the CrPC, stating that the charges were not proved and were false. Accepting the report, the Magistrate discharged the accused-appellants. Thereafter, on 27.6.1996, the Government of Kerala issued a notification withdrawing the consent earlier given to the CBI to investigate the said case. The object of the said notification was to enable a reinvestigation of the case by a team of State Police Officers. By a mandatory notification dated 08.07.1996, the words “reinvestigation of the case” were substituted by the words “further investigation of the case”. The State Government notification dated 27.6.1996 (as amended) was upheld by the High Court. This Court held that, from a plain reading of Section 173 of the CrPC, it is evident that even after submission of police report under sub section (2) on completion of investigation, the police has a right of “further” investigation under sub section (8), but not “fresh investigation” or “reinvestigation”. The dictionary meaning of “further” (when used as an adjective) is “additional; more; supplemental”. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. The Court drew inspiration from the fact that sub section (8) clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report or reports – and not fresh report or reports-regarding the “further” evidence obtained during such investigation. The Court held that once it is accepted that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that “further investigation” is a continuation of such investigation which culminates in a further police report under Section 173(8), it necessarily means that withdrawal of consent in the said case would not entitle the State Police to further investigate into the case. However, the Court further observed thus:”To put it differently, if any further investigation is to be made, it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government.” (Emphasis supplied). Thus, what was held by the Court was that after submission of report under Section 173(2) Cr. P.C. reinvestigation or fresh investigation is not permissible. However, it has been expressly observed that if any further investigation is to be made, it is the CBI alone which can do so. In other words, further investigation could be carried out, but that the same could be done by the CBI alone as it was entrusted to investigate into the case by the State Government and had carried out the investigation and submitted final report in connection therewith.
77. In S. Papaiah (supra) on a complaint made by the UPSC, investigation had been carried out by the CBI and final report was submitted under Section 173 of the CrPC before the Metropolitan Magistrate, before whom the first information report had been lodged, seeking closure of the case. The CBI in spite of the request made to it by the UPSC did not inform about the filing of the final report seeking closure of the case to the UPSC. The report was returned by the learned Metropolitan Magistrate as notice had not been issued to the complainant by the CBI though the CBI had asserted that it had informed the UPSC regarding the filing of the closure report. The final report was resubmitted by the CBI to the Court of the Metropolitan Magistrate along with a copy of the notice sent by the CBI to the UPSC. It appears that the report was again returned by the Metropolitan Magistrate seeking proof of service of notice on the de facto complainant. While the proceedings of submission of the final report were pending, the UPSC addressed a letter to the Director of CBI pointing out that the investigation had not been carried out properly and that the filing of the closure report was not justified. While the UPSC was awaiting further communication from the CBI in that behalf, the CBI resubmitted the closure report and the learned Metropolitan Magistrate accepted the final report submitted by the CBI and closed the file without any opportunity being provided to the UPSC to have its say. Upon receipt of communication of the order of the court accepting the closure report, the UPSC filed a petition before the learned Metropolitan Magistrate submitting that the complaint had not been properly investigated and that it had no notice about the acceptance of the final report. The Court rejected the petition of the UPSC observing that it had accepted the final report filed by the CBI on 16.03.1995, since the UPSC had not filed its objections to the acceptance of the final report and as such, it could not complain. The Court also opined that since an order accepting final report was a judicial order and not an administrative order, therefore, it had no power to review such an order passed by it “rightly or wrongly” and that the UPSC could file a revision petition seeking appropriate orders against the acceptance of the final report from the revisional court. The revision petition filed by the UPSC was dismissed by the revisional court. In appeal before this Court, it was held thus:
“13. The appellant brought the contents of communication dated 23.01.1995 to the notice of the learned Metropolitan Magistrate through its Miscellaneous Petition No. 2040 of 1995 seeking ‘reinvestigation’ but the learned Magistrate, rejected the petition vide order dated 4.11.1995, observing that ‘rightly or wrongly that court had passed an order and it had no power to review the earlier order.’ Here, again the learned Magistrate fell into an error. He was not required to ‘review’ his order. He could have ordered ‘further investigation’ into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also.”
(Emphasis supplied)
78. After referring to the provisions of Section 173(8) of the CrPC, the Court observed that the Magistrate could, thus, in exercise of the powers under Section 173(8) of the CrPC, direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the UPSC to the investigation and the “new” report to be submitted by the Investigating Officer would be governed by sub-sections (2) to (6) of Section 173 of the CrPC. The Court held that the learned Magistrate failed to exercise the jurisdiction vested in him by law and his order dated 04.11.1995 cannot be sustained.
79. In the light of the aforesaid decision of the Supreme Court, it appears that though the order passed by the learned Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC. As held by this Court in the said decision, the provisions of Section 173(8) of the CrPC have been enacted to take care of such like situations also.
80. In N.P. Jharia v. State of M.P. reported in (2007) 7 SCC 358, proceedings had been initiated against the appellant therein in connection with possession of pecuniary resources disproportionate to his known sources of income. After investigation the Special Police Establishment (SPE) submitted a “final report” on 01.03.1990 informing the court that no offence was made out against the appellant. The final report was accepted by the Special Judge on 17.04.1990. But on 01.07.1992, the SPE submitted an application before the Special Judge, seeking permission for further investigation. The Special Judge permitted further investigation. Thereafter, the sanction for prosecution was obtained from the State Government on 01.03.1995. The chargesheet was filed in the court on 24.07.1995. On behalf of the appellant, it was urged that once the final report was submitted there is no scope for further investigation. The Court held that so far as further investigation was concerned in the background of Section 173(8) of the CrPC the plea was clearly untenable.
81. In Kari Choudhary v. Mst. Sita Devi reported in (2002) 1 SCC 714, FIR No. 135 was registered on the basis of a complaint lodged by Sita Devi and investigation was commenced thereafter. During investigation, the police found that the murder of the victim, Sugnia Devi was committed pursuant to a conspiracy hatched by her mother-in-law Sita Devi and her daughters-in-law besides the others. So, the police sent a report to the court on 30.11.1998 stating that the allegations in FIR No. 135 were false. The police continued with the investigation after informing the court that they had registered another FIR as FIR No. 208 of 1998. This Court, inter alia, held thus:
“11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation would be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during the investigation that persons not named in FIR No. 135 are the real culprits. To quash the proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it.
12. Even otherwise, the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under sub-section (2) of section 173 of a previous occasion. This is clear from Section 173(8) of the Code.”
(Emphasis supplied)
82. Thus, a conspectus of the aforesaid decisions of this Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report.
83. We may summarise our final conclusion as under:
(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted.
(ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.
(iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.
(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC.”
19. Upon due consideration of the facts of the instant case, indicated above, as also the observations made by the Hon’ble Apex Court in various pronouncements, referred above, this Court finds that in the instant case, request/prayer for re-investigation/further investigation by the informant, who is petitioner in the instant case, is not liable to be acceded. It is for the following reasons:-
(i) Post-mortem Report does not support the case of the petitioner based upon application dated 03.05.2023. It is for the reason that Post-mortem Report indicates that the cause of death is due to shock as a result of Cardiac Discor (MI) and autopsy surgeon did not find any ante-mortem injury on the body of the deceased whereas, according to the application dated 03.05.2023, the cause of death is throttling.
(ii) To, prima facie, establish the fact(s) that application dated 03.05.2023 of the petitioner was not accepted and I.O. did not record the statement during investigation including the statement of informant/petitioner, no proof has been placed on record.
(iii) From the record, this Court finds that ‘investigation’ as per observations made by the Hon’ble Apex Court in the case of Kailash Vijayvargiya (Supra), was carried out by the I.O.
20. For the reasons aforesaid, this Court finds no force in the present petition. It is accordingly dismissed. No order as to costs.
Order Date :-22.10.2024
Vinay/-