Allahabad High Court
Smt. Rashmi Sundrani vs State Of U.P. And Another on 13 December, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:193580 HIGH COURT OF JUDICATURE AT ALLAHABAD ***** A.F.R. Judgement Reserved on 26.09.2024 Judgement Delivered on 13.12.2024 Court No. - 53 Case :- MATTERS UNDER ARTICLE 227 No. - 7549 of 2022 Petitioner :- Smt. Rashmi Sundrani Respondent :- State of U.P. and Another Counsel for Petitioner :- Mohd.Aslam Azhar Khan,Rajeev Ratan Shukla,Sr. Advocate Counsel for Respondent :- Aman Kumar,Ayush Mishra,Chandra Shekher Dwivedi,G.A.,Gaurav Tiwari,Prabha Shanker Mishra,Udai Chandani Connected with Case :- APPLICATION U/S 482 No. - 29958 of 2019 Applicant :- Hari Kishan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- A.C.Srivastava,Beni Madhav Pandey,Chandra Shekher Dwivedi,Gaurav Tiwari,Krishna Kumar Mishra,Udai Chandani Counsel for Opposite Party :- G.A.,Mohd.Aslam Azhar Khan,Rajeev Ratan Shukla Hon'ble Anish Kumar Gupta,J.
1. Heard Sri R.P. Chauhan, learned Senior Advocate and Sri Rajeev Ratan Shukla, learned Senior Advocate assisted by Sri Mohd. Aslam Azhar Khan, learned counsels for the applicant, Sri Gaurav Tiwari, learned counsel for the opposite party nos.2 and Sri Sandeep Choudhary, learned A.G.A. for the State.
2. The petition under Article 227 has been filed by petitioner seeking quashing of the impugned order dated 03.08.2022 in Criminal Revision No. 145 of 2021 (Smt. Rashmi Sundrani vs. State of U.P. and Others) arising out of order dated 27.11.2019 and subsequent order dated 20.02.2020 passed by the Special Chief Judicial Magistrate.
3. The aforesaid application under Section 482 Cr.P.C. has been filed by the complainant seeking quashing of the order dated 09.04.2019, passed by Special Chief Judicial Magistrate, Allahabad in Criminal Case No. 139 of 2016 (State vs. Mukesh Kumar Singh & Others) arising out of Case Crime No. 369 of 2015 under Sections 419, 420, 467, 468, 504, 506 I.P.C., P.S.- Colonel Ganj, Allahabad, whereby the learned Magistrate has directed the matter to be treated as a complaint case on protest petition filed by the applicant against the final order dated 21.03.2018 submitted by the Investigation Agency.
4. Since the facts of both the matters are common as both the cases are arising out of the same F.I.R., therefore, the entire facts and circumstances are being taken from the petition under Article 227 filed by the petitioner- Smt. Rashmi Sundrani.
5. The brief facts of the case are that an F.I.R. being F.I.R. No. 0369 of 2015 was lodged by the respondent no. 2 on 21.05.2015 against Mukesh Kumar Singh, Rashmi Sundrani, S.K. Sundrani and Sanjeev Trivedi, alleging therein that he was a businessman situated at Allahabad. The accused no.1, Mukesh Kumar Singh, approached him and said that he is having some connection with the Jan Jagran Samiti, which helps in the distribution and preparation of the Mid Day Meal in different schools and on persuasion of said Mukesh Kumar Singh, the informant had gone to Raipur, where an agreement dated 29.12.2012 was executed between the Jan Jagran Samiti represented through the petitioner herein and said Mukesh Kumar Singh as well as the informant, Hari Kishan. Thereupon, they further executed some Memorandum of Understanding and also opened various bank accounts and they started jointly supplying the materials after an agreement with the District Basic Education Officer, Allahabad. Thereupon some dispute arose between the parties with regard to siphoning of the amounts, received from the District Basic Education Officer, Allahabad.
6. The allegations with regard to siphoning of amount is against the petitioner as well as one S.K. Sundarani and Sanjeev Trivedi. Being aggrieved, the informant Hari Kishan has lodged the F.I.R. being Case Crime No. 369 of 2015. Aggrieved by the registration of the said F.I.R., the petitioner as well as one Sudesh Kumar Sundarani approached this Court by filing Criminal Miscellaneous Writ Petition No. 24754 of 2015 and interim protection was granted to the petitioner as well as the said Sudesh Kumar Sundrani during the investigation of the case. Similarly, Mukesh Kumar Singh has also approached by filing Criminal Miscellaneous Writ Petition No. 25927 of 2015 and he was also granted interim protection vide order dated 28.10.2015, till the submission of the report under Section 173(2) Cr.PC. Subsequent thereto, after concluding the investigation the charge-sheet was filed against the petitioner as well as the said Mukesh Kumar Singh and so far as other two persons are concerned further investigation was kept pending.
7. The first charge-sheet was filed on 01.01.2016 and after filing of the charge-sheet, the cognizance was taken against the petitioner and Mukesh Kumar Singh, by the Magistrate vide order dated 28.01.2016 and after concluding the further investigation against the remaining two accused, namely S.K. Sundrani and Sanjeev Dwivedi, a Closure Report dated 02.02.2017 was filed, which was protested by the respondent no.2/informant vide his protest application dated 20.04.2017, which was disposed of by the trial court and the said closure report against the two of the accused person, namely Sudesh Kumar Sundarani, was rejected and matter was directed to be further investigated vide order dated 19.07.2017.
8. With regard to the further investigation, as directed by learned Magistrate vide order dated 19.07.2017. The informant has approached this Court by filing Criminal Miscellaneous Writ Petition No. 1974 of 2018, wherein the respondent no.9/Sudesh Kumar Sundrani, appeared before this Court and this Court directed the further investigation to be carried out and the respondent no.9 therein, Sri Sudesh Kumar Sundrani, was directed to cooperate with the investigation vide order dated 08.02.2018. Subsequently, on 21.03.2018 the Investigation Officer has submitted a final report negating the entire allegations in the F.I.R. against all the accused persons. Against this Final Report/ Closure Report dated 21.03.2018, the respondent/informant herein has again filed a protest petition on 18.06.2018 and therefore vide dated 09.04.2019 the trial court has rejected the said Closure Report dated 21.03.2018 and directed the matter to be treated as a complaint case against which an Application under section 482 no. 29958 of 2019, which is a connected matter to the instant writ petition was filed by the informant/Harikishan, wherein vide order dated 05.08.2019, the following order was passed:
“Upon a First Information Report being lodged as Criminal Case no. 369 of 2015 investigation followed and while chargesheets were submitted against Rashmi Sundrani and Mukesh Kumar Singh, a final report was submitted vis-a-vis S.K. Sundari and Sanjay Dwivedi.
Thereafter, the Magistrate took congnizance of the case and framed charges against the Rashmi Sundrani and Mukesh Kumar Singh. However, when a protest petition was filed with regard to the final report, the Magistrate has now treated the whole case as a complaint case.
It has been reported that Mukesh Kumar Singh has died.
Learned counsel for the applicant submitted that when once the cognizance was taken against Rashmi Sundarani and Mukesh Kumar Singh this step of treating the whole case as a complaint case could not have been taken by the Magistrate.
There appears to be substance in the submission made by the learned counsel for the Applicant.
Issue notice to the respondents no. 2 to 4.
The respondents may file their counter affidavits within four weeks. Rejoinder affidavit, if any, may be filed within two weeks, thereafter.
List on the date indicated in the notice.
It is directed that so far as it has been ordered that the case against the Rashmi Sundrani shall also be treated as a complaint case, the impugned order dated 9.4.2019 shall remain stayed.
This case shall not be treated as tied up or part heard to this case.”
9. Therefore, from the aforesaid order it is clear that this Court has directed that so far as the order dated 09.04.2019 with regard to a direction treating it as a complaint case against the petitioner herein shall remain stayed, meaning thereby, this Court has directed that the charge-sheet and the cognizance taken against the petitioner herein shall remain effective and the trial court shall proceed against the petitioner herein. In the mean time, it has been reported that the said Mukesh Kumar Singh has died. In terms of the aforesaid order 05.08.2019, passed by this Court, the trial court has passed an order on 27.11.2019, whereby it was directed that the proceedings against the accused petitioner, Rashmi Sundrani, shall continue. Subsequent thereto, against the order dated 27.11.2019, the petitioner has filed a recall application, which was rejected vide order dated 20.02.2020 by the Special Chief Judicial Magistrate, with the following observation:
“IN THE COURT OF SPECIAL CHIEF JUDICIAL MAGISTRATE, ALLAHABAD,
Harikishan Vs. Mukesh Kumar Singh Other 20.02.2020-
File is fixed for order. Heard parties on application dated both the 2/12/19 and objection on previous date
applicant/ accused No. 2 has filed recall application for recall of order Hated 27/11/19 on the ground that the complainant/informant has filed the protest petition to include the extraneous matters is such that the protest application has seen treated as complaint case no 1916 of 2016by order dated 9/4/19 which has been challenged before hon’ble High Court under sec 482 CrPC to allege that the charge has been framed against accused no 2 in which the Hon’ble High Court has stayed the order dated 9/4/19on alleging the framing of charge from complainant the magistrate has to power to treat the complaint against that accused against whom charge is framed but no iny order has been passed to proceed the criminal case no 139/16 and still pending before Hon’ble High Court while no charge is framed and arrest having stayed in Cri RIT no. 24749 OF 2015 While the police report has been submitted, closure report 3/s 169 CrPC power to as such the court has only summon the alleged accused by executing power under sec 190(1)(b)of CrPC to reject the police closure report u/s 169, but this court did not reject the closure report dated 21/03/18 and has proceeded the prior order of the closure report by order dated 27/11/19, which is not sustainable in eye of law. The applicant has also stated what alleged accused no 2 has already appeared through her counsel after the court has taken cognizance and has locus to raise the objection.
The complainant has filed objection that the alleged accused no 2 has neither appeared nor has applied for bail, hence has no locus of being heard. application dated 2/12/19 has been filed only to delay the proceeding and application is liable to be rejected.
Heard and perused the record. since order, dated 27/11/19 of this court is passed in compliance of order of Hon’ble High Court dated 05/08/19 in application U/S 482 No. 29958 of 2019. In abovementioned order the Hon’ble High Court has merely stayed the order dated 9/4/19 and there is no specific order stay for proceedings against accused no. 2. of entire Moreover the accused no 2 has not appeared in person before court and the application through counsel is not maintainable.
Hence the recall application is liable to be rejected.Issue previos process. Put up on 20/03/2020 for appearance.
SPECIAL CHIEF JUDICIAL MAGISTRATE ALLAHABAD”
10. Against the aforesaid order dated 27.11.2019 as well as against the order dated 20.02.2022, the petitioner herein had filed a Criminal Revision Petition No. 145 of 2021 (Rashmi Sundarani vs. State of U.P.), which was also rejected vide order dated 03.08.2022, by the Additional Sessions Judge, Court No. 13, Allahabad. Against the orders dated 27.11.2019, 20.02.2022 & 03.08.2022 the instant writ petition has been filed by the petitioner.
11. While entertaining the petition, this Court vide order dated 12.10.2022, has passed the following order, whereby the interim protection was granted to the petitioner which was subsequently extended on 10.11.2022:
Shri Udai Chandani, learned counsel for the respondent no.2 filed short counter affidavit today itself, taken on record.
Connect this petition with Application u/s 482 No.29958 of 2019 (Hari Kishan vs State of U.P. and 3 others).
After hearing the rival submissions the Court has gathered an impression that the issue involved in the present controversy is with regard to Section 173(8) Cr.P.C., its applicability and modalities, which requires deeper judicial scrutiny.
Shri I.K. Chaturvedi, learned Senior Advocate assisted by Shri R.R. Shukla and Mohd. Aslam Azhar Khan are directed to file detailed counter affidavit in Application u/s 482 No.29958 of 2019.
Shri Uday Chandani, learned counsel for respondent no.2 may also file detailed counter affidavit in this case within a week (if any). Ten days thereafter is granted to file rejoinder affidavit.
Put up as fresh on 3rd November 2022 along with record of Application u/s 482 No.29958 of 2019 (Hari Kishan vs State of U.P. and 3 others) before appropriate Court.
In the larger interest of justice where there is serious judicial issue is involved, the interest of the applicant should also be protected for time being and accordingly till next of listing coercive action against the applicant shall not be given effect.
A mutual understanding has been arrived between the learned counsel for the parties that none of the advocates would seek unreasonable adjournment on the next date.
12. Against the order dated dated 12.10.2022, a Special Leave Petition No. 3050-3051 of 2023, was filed by the informant/ Hari Kishan, before the Apex Court, which was disposed of vide order 30.08.2024, in the following terms :
“The Special Leave Petitions have been preferred against the interim orders dated 12.10.2022 and 12.01.2023 passed by the High Court whereby the interim protection granted on 12.10.2022 has been extended till the next date of listing. The interim order provides for not taking any coercive action against respondent No.2-Rashmi Sundrani.
The submission of learned senior counsel appearing for the petitioner is that the respondent No.2–Rashmi Sundrani has been declared to be a proclaimed offender and as such is not entitled to any such protection.
Learned senior counsel Sri S.R.Singh appearing for the State of U.P. has pointed out that there are orders dated 16.08.2022 and 09.09.2022 wherein the Special Chief Judicial Magistrate, Allahabad had noted that the respondent No.2- Rashmi Sundrani has already been declared to be a proclaimed offender. The declaration of the respondent No.2-Rashmi Sundrani as proclaimed offender is disputed by her counsel.
Without going into the merits of the matter as the petition is directed against the interim orders extending the interim protection we consider it appropriate to dispose of the petition with the direction that the interim protection granted by the High Court shall continue for the limited period if any, stipulated by the High Court provided that the Respondent No.2- Rashmi Sundrani cooperates and appears before the Court.
It will be open for the respondent No.2- Rashmi Sundrani to move appropriate application if for some reason she is unable to attend the proceedings and the same may be considered in accordance with law by the concerned Court.
The High Court is free to proceed and decide the pending petitions under Article 227 of the Constitution of India and section 482 of Cr.P.C. most expeditiously in accordance with law.
With the above observations, the Special Leave Petitions are disposed of.
Pending application (s) shall stand disposed of.”
13. Learned Senior Counsel appearing for the petitioner submits that the agreement dated 29.12.2012, is a forged document, on the basis of which the said Mukesh Kumar Singh and the informant in the instant case has also executed some Memorandum of Understanding between themselves with other two persons namely Om Prakash Gupta and Shankar Lal. Shankar Lal was the brother of the informant, wherein they have settled how the supply of the Mid Day Meal is to be done and how they will get benefit out of the said supply. In the said Memorandum of Understanding, dated 08.04.2013 neither the petitioner nor the other accused persons were the party. The informant in collusion with the said Mukesh Kumar Singh and others have also got fabricated or forged a document with regard to the renewal of the registration of the said Jan Jagran Samiti at the address of Allahabad. Thereafter, they have conducted the business and in conduct of such business, the petitioner had no control or any share in the said business and had no connection with the said business. Subsequent thereto, a dispute arose between the said Mukesh Kumar Singh, the informant and the other two persons, who had executed the Memorandum of Understanding. Being aggrieved by the same, the, informant had lodged an F.I.R. being Case Crime No. 537 of 2013 against one Mukesh Kumar Singh, who was ultimately charge-sheeted. Subsequent to the registration of the F.I.R. against the said Mukesh Kumar Singh, the informant has also lodged a Complaint Case No. 7479 of 2014, which was rejected for want of prosecution as there being no sufficient evidence against the accused persons, vide order dated 26.11.2016. Subsequently, by concealing the aforesaid facts of registration of the initial F.I.R. against Mukesh Kumar Singh and lodging of the complaint Case No. 7479 of 2014 and its rejection dated 26.11.2016, the instant F.I.R. has been lodged.
14. Learned counsel for the petitioner submits the applicant herein has no connection with any of the dealing with said Mukesh Kumar Singh, his brother and one Om Prakash and the agreement dated 29.12.2012 is a forged document, for which an F.I.R. being Case Crime No. 1514 of 2018 has also been lodged by the petitioner herein against Hari Kishan, Om Prakash and Shankar Lal. Therefore, learned counsel for the applicant submits that since the Final Report has already been submitted, it is not open for the learned Magistrate to proceed in the case on the basis of the earlier report submitted by the police against the petitioner herein.
15. Per Contra, learned counsel for the opposite party no.2 supporting the allegations made in the F.I.R. submits that after agreement dated 29.12.2012, which was executed by the petitioner herein, the respondent no. 2 has invested huge amount in the business, of which a certain percentage was to be given to the petitioner but the said Mukesh Kumar Singh in collusion with the petitioner as well as the other accused persons have siphoned away the amount, which was to be shared by all the persons concerned, namely Om Prakash and his brother Shankar Lal. Thereby, they have defrauded the informant and in the initial charge-sheet sufficient evidence was found against the petitioner herein, and once the cognizance has been taken against the petitioner, the clock cannot be set back and the scope of further investigation was limited only with regard to the Closure Report filed against the two accused persons, namely S.K Sundarani and Sanjeev Trivedi. Therefore, subsequent further investigation was limited with regard to only those two persons because the charge-sheet was already filed against the petitioner and said Mukesh Kumar Singh, for which cognizance was already taken and in view of the order dated 05.08.2019 of this Court, the trial court was directed to proceed against the petitioner herein without being affected by the order 09.04.2019. In view thereof the trial is already proceeding against the petitioner herein and subsequently on an application under Section 319 Cr.P.C. filed by the respondent no.2, the other co-accused persons, namely S.K. Sundarani and Sanjeev Trivedi has also been summoned vide order dated 07.06.2024.
16. Learned counsel for the opposite party no.2 submits that since the scope of the further investigation was very limited with regard to the investigation against the other co-accused persons, namely S.K. Sundrani and Sanjeev Trivedi, it was not open for the Investigation Agency to file a Closure Report against all the accused persons, against whom the cognizance was already taken and trial in the matter has already been proceeded in accordance with law in pursuance of the order dated 05.08.2019 passed by this Court in Application u/S 482 Cr.P.C.
17. The sole question involved in the instant proceedings is whether the Magistrate, who has already taken cognizance against some of the accused persons on the basis of earlier report can direct the case to be proceeded as complaint case, against those accused persons as well on the basis of subsequent police report?
18. To appreciate the controversy involved in the case, it would be relevant to take note of the provisions of Sections 173 and 190 of Cr.P.C., which are being reproduced herein:
“173. Report of Police Officer on Completion of Investigation-(1)Every investigation under this Chapter shall be completed without unnecessary delay.[(1-A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code shall be completed within two months.] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 16 (a).] from the date on which the information was recorded by the officer-in-charge of the police station.]
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) he 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] [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 16 (b).]] [or section 376E of the Indian Penal Code of the Indian Penal Code, 1860.] [Substituted for the words “or 376D of the Indian Penal Code” by Criminal Law (Amendment) Act, 2013]
(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.
190. Cognizance of offences by Magistrates.- (I) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence –
(a) upon receiving a complaint of facts which constitute such offence.
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
19. Section 173(1) of the Code provides that every investigation under this chapter shall be completed by the investigation agency without unnecessary delay. Section 173(2) of the Code, provides that as soon as the investigation is completed, the officer in-charge of the concerned police station is obliged to submit the police report to the Magistrate in a prescribed format. It further mandates the officer in-charge of the police station to inform the action taken by him to the informant of the said case. Section 173(3) of the Code, provides that wherever the superior officer of the police station has been appointed, the report shall be submitted through that officer and the pending orders of Magistrate, the such officer is competent to direct the officer in-charge of the police station to make further investigation in the matter. Sub-section (5) of Section 173 of the Code provides that the documents which should be forwarded to the Magistrate alongwith the report under Section 173(2) of the Code. Section 173(7) of the Code mandates that the copies of the report and the documents be provided to the accused. Sub-section (8) of Section 173 of the Code provides that nothing in this section shall preclude further investigation in respect of an offence after a report under sub-section (2) of Section 173 is forwarded to the Magistrate, and if on such further investigation, if the officer in-charge of the police station obtains further evidence, oral or documents, he shall forward the same to the Magistrate along with a further report regarding such evidence in the prescribed format. There is nothing in Sub-section (8) of Section 173 of the Code, which mandates that before taking up the further investigation in the matter, the officer in-charge or the investigation officer is obliged to seek any permission from the Magistrate. Rather, it recognises the right of the investigation agency to conduct the further investigation in the matter and collect further evidence and forward it to the learned Magistrate. Section 190 of the Code provides how the Magistrate shall take cognizance of any offences. He can take the cognizance of the matter on receiving a complaint of facts which constitute such offences or upon a police report of such acts or upon information received from any person other than the police officer or upon his own knowledge that such offence shall be committed. Therefore, there is nothing in Section 190 or 173(8) of the Code, which limits the powers of the investigation agency with regard to further investigation in the matter.
20. In Ram Lal Narang vs. State (Delhi Administration) : (1979) 2 SCC 322, the Apex Court has noted all the previous judgements including those of different High Courts and has considered the diverse views taken by the different High Courts and has also noted the developments and inclusion of new provisions as Section 173(8) in the Criminal Procedure Code, 1973, on the basis of the 41st report of the Law Commission. The Law Commission, in its 41st report, has recognized the well settled position and recommended that the right of the police to make further investigation should be statutorily affirmed in following words:
“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.”
(emphasis supplied)
21. On the basis of the aforesaid report of the Law Commission, in the Code (Cr.P.C. 1973), the aforesaid report was implemented and Section 173(8), was introduced, which provides as under:
“173(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,under sub-section (2) 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).”
22. In Paragraph ’15’, ’20’ and ’21’ of the aforesaid judgement in Ram Lal Narang (supra), the Hon’ble Apex Court has observed as under:
“15. The police thus had the statutory right and duty to “register” every information relating to the commission of a cognizable offence. The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the Police to investigate into a cognizable offence. This position in law was well-established. In King Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18 : 71 IA 203 : 46 Cri LJ 413] the Privy Council observed as follows:
“Just as it is essential that everyone 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. In such a case as the present, however, the Court’s functions begin when a charge is preferred before it and not until then … In the present case, the police have under Sections 154 and 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court ….”
Ordinarily, the right and duty of the police would end with the submission of a report under Section 173(1) CrPC upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence. There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where, after the submission of a report under Section 173(1) CrPC and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation. There was, of course, no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. As we shall presently point out, it was generally thought by many High Courts, though doubted by a few, that the police were not barred from further investigation by the circumstance that a report under Section 173(1) had already been submitted and a Magistrate had already taken cognizance of the offence.
20. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.
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.”
(emphasis supplied)
23. From the aforesaid observations, the Apex Court has categorically recognized the right of the police to further investigate in the matter even after submission of the charge-sheet and held that the right of police to further investigate is not exhausted after submissions of the charge-sheet and the police could exercise such right as and when it is necessary when fresh information came to the knowledge of the police/investigation agency.
24. From the reading of the aforesaid judgments as well as the new provisions of Section 173(8) of the Code, the position of law as per the Old Code was that though there were no fetters on the right of further investigation by the police but it was the normal practice that the police used to seek formal permission to make further investigation. However, in the present Code, the right of police to further investigate and further submit the supplementary charge sheet has been statutorily recognized. For such further investigation, even in the Criminal Procedure Code, 1973 there is no specific requirement to seek any permission from the learned Magistrate.
25. In State of Bihar and Another vs. J.A.C. Saldanha and Others : (1980) 1 SCC 554, the Constitution Bench of the Apex Court, dealing with the powers of the senior police officers of superintendence under the Police Act of State of Bihar and the powers under Section 173(8) of the Code, has held that there is no conflict between the powers under the Police Act as well as Section 173(8) of the Code, to carry on the further investigation without any permission of the learned Magistrate. Paragraphs ’18’ & ’19’ of the aforesaid judgment are as under:
“18. There is no warrant for invoking this principle because Section 5 of the Code provides that nothing in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Section 3 of the Act does not prescribe any special procedure for investigation contrary to one prescribed in the Code. It merely provides for conferment of certain power which, when exercised, would project into the provisions of the Code which confers power on the officer in charge of a police station to carry on further investigation under Section 173(8) after submission of a report and that too without any permission of the Magistrate. There is no conflict between the two provisions. Power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person to investigate. Section 3 of the Act as interpreted by us deals with the powers of the State Government to direct further investigation into the case. Undoubtedly, such direction will be given to a person competent to investigate the offence and as has been pointed out, the police officer in rank superior to the police officer in charge of the police station, to wit, Inspector General, Vigilance, has been directed to carry on further investigation. An officer superior in rank to an officer in charge of a police station could as well exercise the power of further investigation under Section 173(8) in view of the provision embodied in Section 36 of the Code. If that be so, such superior officer could as well undertake further investigation on his own and it is immaterial and irrelevant that he does it at the instance or on the direction of the State Government. Such a direction in no way corrodes his power to further investigate on his own.
19. The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1.”
(emphasis supplied)
26. In K.Chandrashekhar vs. State of Kerala : (1998) 5 SCC 223, the Hon’ble Apex Court has recognized the right of further investigation by the Police under Section 173(8) of the Code. Relevant paragraph ’24’ is as under:
“24. From a plain reading of the above section 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”. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27-6-1996 (quoted earlier) that the consent was being withdrawn in public interest to order a “reinvestigation” of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a “further investigation of the case” instead of “reinvestigation of the case”. 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. Once it is accepted — and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji [1994 Supp (2) SCC 116 : 1994 SCC (Cri) 873] — 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 sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. 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. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala.”
(emphasis supplied)
27. In Rama Chaudhary (supra), the Apex Court has further confirmed the statutory right of the police to further investigate the matter even after filing of the charge-sheet in following words:
“15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which reads as under:
“173. (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).”
A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited.
16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” 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.
18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not a fresh report regarding the “further” evidence obtained during such investigation.
19. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat [(2004) 5 SCC 347: 2004 SCC (Cri) 1603] the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of the investigating agency for further investigation should not be tied down on the ground of mere delay. In other words
“[t]he 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.” (SCC p. 351, para 13)
22. The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the police (vide K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] ). The material collected in further investigation cannot be rejected only because it has been filed at the stage of the trial. The facts and circumstances show that the trial court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 CrPC that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet.”
(emphasis supplied)
28. In Vinay Tyagi vs Irshad Ali @ Deepak & Ors. : (2013) 5 SCC 762, the Apex Court has categorically noted that there is no specific requirement in the provisions of Section 173(8) of the Code, to conduct further investigation or file supplementary report with the leave of the Court. The Apex Court, while recognizing the aforesaid position of law applying the doctrine of “contemporanea expositio” has observed that though there is no requirement of seeking prior leave of the learned Magistrate to conduct further investigation and to file supplementary report, however, as a matter of practice, which was understood and implemented for long time that normally the permission of the learned Magistrate was formally sought for further investigation, it should be ideally observed. The Apex Court further held that so far as the further investigation is concerned, no permission is required. However, for the purposes of fresh, de novo or re-investigation, the permission of the learned Magistrate is mandatory. It will be relevant to note paragraphs ’40’, ’49’, ’50’, ’51’, ’52’, ’53’ & ’54’ of the aforesaid judgment, which are as under:-
“40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report.
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.
40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three-Judge Bench and thus in conformity with the doctrine of precedent.
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. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
50. Such a view can be supported from two different points of view: firstly, through the doctrine of precedent, as aforenoticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.
51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct “further investigation” on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct “further investigation” to clear its doubt and to order the investigating agency to further substantiate its charge-sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct “further investigation” or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct “further investigation” or “reinvestigation” as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this Court in Sivanmoorthy v. State [(2010) 12 SCC 29 : (2011) 1 SCC (Cri) 295] .
52. In light of the above discussion, we answer the questions formulated at the opening of this judgment as follows.
53. The court of competent jurisdiction is duty-bound to consider all reports, entire records and documents submitted therewith by the investigating agency as its report in terms of Section 173(2) of the Code. This rule is subject to only the following exceptions:
(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;
(b) Where an order is passed by the higher courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on “fresh investigation” or “reinvestigation” or any part of it be excluded, struck off the court record and be treated as non est.
54. No investigating agency is empowered to conduct a “fresh”, “de novo” or “reinvestigation” in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned Magistrate.”
(emphasis supplied)
29. In Anant Thanur Karmuse vs. State of Maharashtra : 2023 (5) SCC 802, the Apex Court has observed the Constitutional Courts has power to order further investigation, re-investigation, de-novo investigation, even after the charge-sheet is filed, charges are framed in the concerned case. Relevant paragraphs ’32’, ’41’ & ’42’ of the aforesaid judgment are quoted as under:-
“32. Therefore, the short question, which is posed for the consideration of this Court is:
“Whether in the facts and circumstances of the case, the High Court is justified in denying the relief of transfer of the investigation to CBI and refusing to order further investigation/reinvestigation/de novo investigation?”
41. Now, so far as the reliance placed upon the decision of this Court in Rama Chaudhary [Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346 : (2009) 2 SCC (Cri) 1059] relied upon on behalf of the respondent-accused is concerned, it is required to be noted that in the said decision, this Court was considering the scope of Sections 173(8) CrPC and the right of the police to “further investigation”. It is observed that the police has no right for “fresh investigation” or”reinvestigation”. However, this Court had no occasion to consider the powers of the constitutional courts, which are dealt with and considered in Bharati Tamang [Bharati Tamang v. Union of India, (2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] and Dharam Pal [Dharam Pal v. State of Haryana, (2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259] .
42. Applying the law laid down by this Court in Dharam Pal and to do the complete justice and in furtherance of fair investigation and fair trial, the constitutional courts may order further investigation/reinvestigation/de novo investigation even after the charge-sheet is filed and the charges are framed. If the submission on behalf of the accused and even as observed by the High Court that once the charge-sheet is filed and the charges are framed, there may not be any order for further investigation/reinvestigation/de novo investigation is accepted, in that case, the accused may see to it that the charges are framed to avoid any fair investigation/fair trial. It would lead to travesty of justice.”
30. Clearly in the aforesaid case, the Apex Court was more concerned with the powers of the Higher Courts and not with the permission of the Magistrate before proceeding for further investigation in exercise of powers under Section 173(8) Cr.P.C.
31. In Bohatie Devi (Dead) through LRs vs. State of U.P. : AIRONLINE 2023 SC 362, the Apex Court has recognized the right of the Investigating Officer to further investigate in respect of the offence, even after a report under sub-section (2) of Section 173 of the Code was forwarded to the learned Magistrate and it was held that no prior approval of Magistrate is required before taking up the further investigation. In paragraph ‘7.1’ of the aforesaid judgment the Apex Court has observed as under:
“7.1 There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report under sub-section (2) of Section 173 of Cr.PC forwarded to a Magistrate and as observed and held by this Court the prior approval of the Magistrate is not required. However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required.
(emphasis supplied)
32. In Peethambaran (supra) relied on by learned counsel in the petitioners, decided on 03.05.2023, relying upon judgments in Vinay Tyagi (supra), which was based on doctrine of “contemporanea expositio”, the Apex Court has observed the requirement of permission from learned Magistrate for further investigation and file supplementary report. Paragraph 20 of the aforesaid judgement is quoted as under:
“20. The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the concerned Magistrate. Referring to Vinay Tyagi (supra), this Court in Devendra Nath Singh v. State of Bihar noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but investigation agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with.”
(emphasis supplied)
33. In State through Central Bureau of Investigation vs. Hemendra Reddy and Another : 2023 SCC OnLine SC 515, the Apex Court has held as under:
“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.”
(emphasis supplied)
34. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj, 1999 (5) SCC 740, the Hon’ble Apex Court in paragraphs 10 and 11 has held as under:-
“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.) (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 law does not require it, we would not burden the magistrate with such an obligation.”
(emphasis supplied)
35. In the judgment of this Court dated 17.8.2023 passed in Criminal Misc. Writ Petition No. 11257 of 2023 (Smt. Preety Verma vs. State of U.P. and others), identical questions were raised and rejecting the same the petition was dismissed.
36. This Court in the judgment dated 11.12.2023 passed in Application under Section 482 Cr.P.C. No. 1784 of 2013 (Babu Lal Jaiswal and others vs. State of U.P. and another) held as under :
“34. Therefore, it is settled principles of law that the police has a right to further investigate the matter even after the submissions of the charge sheet/report before the learned Magistrate and even after the Magistrate had taken cognizance of the report/charge sheet. In exercise of power u/s 173 (8) of the Code, it has been statutorily recognized that there is no statutory requirement that before initiating further investigation, investigation agency must take permission of the concerned Magistrate. Further, investigation is very distinct from the re-investigation/de novo investigation or fresh investigation. Further investigation is the continuance of the investigation, which has already been done and on discovery of new facts or the facts which were left out during the investigation. Whereas in the case of the fresh, De-novo or reinvestigation, the investigation already done is required to be wiped out and investigation is required to begun from its inception. Further investigation can be carried out even without any permission from the concerned Magistrate. However, fresh, de-novo or reinvestigation cannot be done without the specific orders by the competent Court.”
(emphasis supplied)
37. The Apex Court in Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat and Anr. 2020 (3) JIC 192 (SC) has held that the Magistrate has power to direct further investigation even at the post cognizance stage and such power would continue at all stages of criminal proceedings until the trial commenced i.e., till framing of charges. The relevant observations of the Apex Court are as under :
“19. With the introduction of Section 173(8) in the Cr.P.C., the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question before us is as to whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173.
23. It is thus clear that the Magistrate’s power under Section 156(3) of the 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 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) of the 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) of the CrPC.
26. Section 2(h) is not noticed by the aforesaid judgment at all, resulting in the erroneous finding in law that the power under Section 156(3) can only be exercised at the pre-cognizance stage. 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. For these reasons, the statement of the law contained in paragraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannot be relied upon.”
(emphasis supplied)
38. In Bikash Ranjan Rout vs. State Goverment of N.C.T. of Delhi, (2019 (108) ACC 327, the Apex Court has held that the the Magistrate has power to direct the investigation in the matter before framing of the charges. However, once the Magistrate has discharged the accused on the basis of the previous investigation and the material placed before him, the Magistrate has no jurisdiction to direct the further investigation in the case. The relevant observation of the Apex Court are as under:
“7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of the CrPC, namely Sections 167(2), 173, 227 and 228 of the CrPC, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) of the CrPC, the learned Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. As observed hereinabove, having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the precognizance stage.
Once the learned Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) of the CrPC, learned Magistrate in exercise of the powers under Section 227 of the CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the accused can be said to be made at the postcognizance stage. There is a distinction and/or difference between the precognizance stage and postcognizance stage and the powers to be exercised by the Magistrate for further investigation at the precognizance stage and postcognizance stage. The power to order further investigation which may be available to the Magistrate at the precognizance stage may not be available to the Magistrate at the postcognizance stage, more particularly, when the accused is discharged by him. As observed hereinabove, if the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2)
(i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate can suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report. In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 of the CrPC. However, at the same time, considering the provisions of Section 173(8) of the CrPC, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the learned Magistrate thereafter in accordance with law. The Magistrate cannot suo moto direct for further investigation under Section 173(8) of the CrPC or direct the re investigation into a case at the postcognizance stage, more particularly when, in exercise of powers under Section 227 of the CrPC, the Magistrate discharges the accused. However, Section 173(8) of the CrPC confers power upon the officerincharge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under subsection (2) of Section 173 of the CrPC. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report under subsection (2) of Section 173 and even after the discharge of the accused. However, the aforesaid shall be at the instance of the investigating officer/police officer incharge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the accused.
7.1 In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the accused, cannot be sustained and the same deserves to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court confirming such an order passed by the learned Magistrate also deserves to be quashed and set aside. At the same time, it will always be open for the investigating officer to file an appropriate application for further investigation and undertake further investigation and submit a further report in exercise of powers under Section 173(8) of the CrPC.
8. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 20.08.2014 as well as that part of the order dated 05.02.2013 passed by the learned Magistrate directing the investigating officer for further investigation and submit the report, is hereby quashed and set aside.
8.1 However, considering the observations made by the learned Magistrate and the deficiency in the investigation pointed out by the learned Magistrate and the ultimate goal is to book and/or punish the real culprit, it will be open for the investigating officer to submit a proper application before the learned Magistrate for further investigation and conduct fresh investigation and submit the further report in exercise of powers under Section 173(8) of the CrPC and thereafter the learned Magistrate to consider the same in accordance with law and on its own merits.”
(emphasis supplied)
39. In Athul Rao vs. State of Karnataka and another, (2019)1 SCC (Cri) 594, the Apex Court has held that once the charges are framed and once the cognizance is taken, the Magistrate can further direct the investigation in the matter. The relevant part of the aforesaid judgment reads as under:
“8. The question as to whether, after framing of charges and taking cognizance, it is open to the Magistrate to direct further investigation either suo motu or on an application filed by the complainant/informant is no more res integra. In a recent decision of this Court (to which one of us, Justice Dipak Misra was party) in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel and others3, after analysing earlier decisions on the point, it has been held that neither the Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Further investigation in a given case may be ordered 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. It will be apposite to advert to the dictum in Paragraphs 48 to 51 of the said decision which (2017) 4 SCC 177 read thus:- (SCC pp.200-01)
“48. 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.
49. 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 therefore 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.
50. The unamended 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.
51. 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.”
(emphasis supplied)
40. In Sonu Gupta vs. Deepak Gupta and others, (2015) 3 SCC 424, the Apex Court has observed as under:
“8….At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.
9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.”
(emphasis supplied)
41. In Luckose Zacharia @ Zak Nedumchira Luke and others vs. Joseph Joseph and others, 2022 (120) ACC 299, the Apex Court has held as under:
“15 The Sessions Judge was justified in setting aside the order of the Magistrate for the simple reason that after the supplementary report submitted by the investigating officer, the Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra), as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya (supra) to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law. The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent. However, the Sessions Judge proceeded to rely upon the decision of a Single Judge of the Kerala High Court in Joseph (supra), where it was held that:
“7. […] When a positive report under Section 173(2) of Cr.P.C. is followed by a negative report under Section 173(8) of Cr.P.C. and cognizance has been taken upon the former report, the magistrate shall proceed with the case ignoring the latter report. But the supplementary report and the papers connected therewith shall form part of the record of the case and can be used at the trial. What I should do is to dispose of the Crl.M.C. making this position clear.”
16 In view of the clear position of law which has been enunciated in the judgments of this Court, both inVinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence.While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge of the Kerala High Court in Joseph (supra) which is contrary to the position set out in Vinay Tyagi. Hence, the JFCM – I Alappuzha shall reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat as noted above and in terms of the observations contained in the present judgment. The Magistrate shall take a considered decision expeditiously within a period of one month from the date of the present order.”
(emphasis supplied)
42. Thus from the aforesaid judgments, it is settled position of law that the investigating agency has ample power with regard to the further investigation into a criminal case, even after the cognizance was taken in the matter and till the framing of the charges in the matter.
43. Once, the Magistrate takes cognizance in the matter as held by the Apex Court in Bikash Ranjan Rout (supra), a Magistrate cannot direct suo motu for further investigation in the matter unless requested by the investigation agency. The power of Magistrate seeking further investigation can be exercised at the pre-cognizance stage as held by the Apex Court in Sonu Gupta (supra), once a Magistrate takes cognizance in the matter he takes cognizance of the offence and not of the offender. Thus, after taking cognizance in the matter if any further report submitted by the Investigation Agency, the same is the material available before the Magistrate for evaluation as to who are the accused persons required to be summoned in the case and against whom charges can be framed on the basis of the supplementary report filed by the Investigation Agency. The Magistrate did not have power to review its own order of taking cognizance in the matter. Any other view would render the provisions of Section 311 and 319 Cr.P.C. ineffective as has been held in Athul Rao (supra) by the Apex Court.
44. In the instant case, on the initial charge-sheet submitted by the Investigation Agency against the petitioners, Smt. Rashmi Sundrani and one Mukesh Kumar Singh (deceased), the cognizance was taken by the learned Magistrate vide order dated 28.01.2016. Since, the investigation with regard to the other two accused persons were pending subsequently a closure report was submitted against the remaining two accused persons. On protest being filed by the complaint, further investigation was directed by learned Magistrate which was beyond the scope of powers of learned Magistrate after the cognizance was taken in the matter as further investigation was not sought by the Investigation Agency. On subsequent further investigation, the Final Report has been submitted by the Investigation Agency against all the accused persons including the petitioners herein against which a protest was filed and the Magistrate has directed the the entire matter to be treated as a complaint case, vide order dated 09.04.2019, which is impugned in the application under Section 482 Cr.P.C. filed by the complainant.
45. Once, the Magistrate has taken cognizance in the matter it is not open for him to direct the matter to be treated as a complaint case. The material collected during the further investigation is the material available before the Magistrate for the offence of which the cognizance has already been taken by the Magistrate, which can be considered for summoning of the other accused persons as well if the Magistrate is satisfied that there is sufficient material against them and also at the time of framing of charges against the accused persons. It is settled position of law the Magistrate is not bound by the conclusions drawn by the Investigating Agency in its report under Section 173(2) or 173(8). Therefore, subsequent supplementary reports submitted under garb of further investigation by the Investigation Agency can be considered as a material available before the Magistrate and once the cognizance which was taken on the basis of the initial report submitted by the Investigation Agency, Magistrate cannot direct the matter to be treated as a complaint case. As since the Magistrate has already taken cognizance of the offence, it would not be open for the Magistrate to take cognizance of the same offence again on the basis of the complaint case. Thus, the order dated 09.04.2019 impugned in the Application under Section 482 No. 29958 of 2019, directing the matter to be treated as a complaint case is hereby set aside and quashed. The application u/S 482 is disposed of accordingly.
46. Since, the magistrate has already taken cognizance in the matter and has also proceeded in the matter on the basis of the interim order dated 05.08.2019 passed by Co-ordinate Bench of this Court while entertaining the application under Section 482 Cr.P.C. filed by the complainant and the Magistrate has already proceeded in the matter against the petitioner herein and has passed the orders dated 27.11.2019 and 20.02.2020 passed in the matter.
47. In view of the aforesaid settled position of law and specifically in view of the interim order dated 05.08.2019 passed by this Court whereby the order dated 09.04.2019 was directed to be stayed qua the petitioner herein, therefore, there is no illegality on the subsequent orders dated 27.11.2019 and 20.02.2020 passed by the learned Special Chief Judicial Magistrate and also the impugned order dated 03.08.2022 passed by the Revisional Court in Criminal Revision No. 145 of 2021.
48. Therefore, writ petition under Article 227 No. 7549 of 2022 is hereby dismissed and the trial court is directed to proceed in the matter on the basis of the cognizance already taken against the petitioner herein and all subsequent orders passed by learned Additional Chief Judicial Magistrate on 07.06.2024, the other accused persons have already been summoned.
49. Therefore, under Section 319 Cr.P.C., the trial court is directed to proceed in the accordance with law.
Order Date :- 13.12.2024
Shubham Arya/Ashish Pd.
(Anish Kumar Gupta, J.)