WWW.LIVELAW.

IN

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.478-479 OF 2017

Vinubhai Haribhai Malaviya and Ors. … Appellants

Versus

The State of Gujarat and Anr. …Respondents

JUDGMENT

R.F. Nariman, J.

1. This case arises out of a First Information Report

(hereinafter referred to as “FIR”) that was lodged on 22.12.2009.

The FIR is by one Nitinbhai Mangubhai Patel, Power-of-Attorney

holder of Ramanbhai Bhagubhai Patel and Shankarbhai

Bhagubhai Patel, who are allegedly residing at “UK or USA”. The

gravamen of the complaint made in the FIR is that one Vinubhai

Haribhai Malaviya is blackmailing these two gentlemen with

respect to agricultural land which is just outside the city of Surat,

Gujarat and which admeasures about 8296 square meters. The

Signature Not Verified

Digitally signed by R
NATARAJAN
Date: 2019.10.16
16:27:33 IST
Reason: FIR alleges that Ramanbhai Patel and Shankarbhai Patel are

1
 WWW.LIVELAW.IN

absolute and independent owners of this land, having obtained it

from one Bhikhabhai Khushalbhai and his wife Bhikiben

Bhikhabhai in the year 1975. The FIR then narrates that because

of a recent price-hike of lands in the city of Surat, the heirs of

Bhikhabhai and Bhikiben together with Vinubhai Haribhai

Malaviya and Manubhai Kurjibhai Malaviya have hatched a

conspiracy in collusion with each other, and published a public

notice under the caption “Beware of Land-grabbers” in a local

newspaper on 07.06.2008. Sometime thereafter, Vinubhai

Haribhai Malaviya then contacted an intermediary, who in turn

contacted Nitinbhai Patel (who lodged the FIR), whereby,

according to Nitinbhai Patel, Vinubhai Malaviya demanded an

amount of Rs. 2.5 crores in order to “settle” disputes in respect of

this land. It is alleged in the said FIR that apart from attempting

to extort money from the said Nitinbhai Patel, the heirs of

Bhikhabhai and Bhikiben together with Vinubhai Haribhai

Malaviya and Manubhai Kurjibhai Malaviya have used a fake and

bogus ‘Satakhat’ and Power-of-Attorney in respect of the said

land, and had tried to grab this land from its lawful owners

Ramanbhai and Shankarbhai Patel.

2
 WWW.LIVELAW.IN

2. The background to the FIR is the fact that one

Khushalbhai was the original tenant of agricultural land, bearing

Revenue Survey No.342, admeasuring 2 Acres, 2 Gunthas,

situated at Puna (Mauje), Choriyasi (Tal), District Surat.

Khushalbhai died, after which his son Bhikhabhai became tenant

in his place. Bhikhabhai in turn died on 23.12.1984 and his wife

Bhikiben died on 18.12.1999. A public notice dated 07.06.2008

was issued in ‘Gujarat Mitra’ and ‘Gujarat Darpan Dainik’ by the

heirs of Bhikhabhai, stating that Ramanbhai and Shankarbhai

Patel are land-grabbers, and are attempting to create third-party

rights in the said property. This led to the legal heirs of

Bhikhabhai, through their Power-of-Attorney holder, applying on

12.06.2008 to the Collector, Nanpura (Surat), to cancel revenue

entries that were made way back in 1976.

3. Pursuant to the filing of the FIR, investigation was

conducted by the police, which resulted in a charge-sheet dated

22.04.2010 being submitted to the Judicial Magistrate (First

Class), Surat. On 23.04.2010, the said Magistrate took

cognizance and issued summons to the accused regarding

offences under Sections 420, 465, 467, 468, 471, 384 and 511 of

3
 WWW.LIVELAW.IN

the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

Pursuant to the summons, the accused appeared before the said

Magistrate. On 10.06.2011, an application (Exhibit 28) was filed

by Accused No.1 Vinubhai Haribhai Malaviya for further

investigation under Section 173(8) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as “CrPC”) and another

application (Exhibit 29) for discharge. Likewise, on 14.06.2011,

applications for further investigation (Exhibit 31) and for

discharge (Exhibit 32) were filed by accused 2 to 6. By an order

dated 24.08.2011, the Magistrate dismissed the applications that

were filed for further investigation (i.e. Exhibits 28 and 31),

stating that the facts sought to be placed by the applicants were

in the nature of evidence of the defence that would be taken in

the trial. Likewise, on 21.10.2011 the learned Magistrate also

rejected the discharge applications that were made (i.e. Exhibits

29 and 32).

4. Meanwhile, on 26.07.2011, Criminal Miscellaneous

Application No.816 of 2011 was moved by Vinubhai Haribhai

Malaviya and the other accused to register an FIR, or for the

Magistrate to order investigation under Section 156(3) of the

4
 WWW.LIVELAW.IN

CrPC into the facts stated in their applications. This was rejected

by the learned Magistrate by an order dated 09.09.2011.

5. Separate criminal revision applications were filed before

the Sessions Court, Surat, being Revision Application Nos. 376

and 346 of 2011, insofar as the dismissal by the learned

Magistrate of further investigation and the order rejecting

registration of the FIR were concerned. Both these revision

applications were decided by the learned Second Additional

Sessions Judge, Surat by a common order dated 10.01.2012. By

this order, the learned Second Additional Sessions Judge went

into details of facts that were alleged in the application under

Section 173(8) and found that a case had been made out for

further investigation. Accordingly, he held:

“As per the above referred discussion, it can be seen

that no effective investigation or discussions have been
carried out in all these respect during in the course of
the investigation of said offence and further, it is very
noteworthy here that matters for which the prayers are
made in these Revision Applications, all these matters
are pertaining to the complaint of this case. Hence, it is
very much necessary that for the purpose of carrying
out a detailed and full investigation of this complaint, all
these matters should also be investigated. But for the
said purpose, it is not necessary that a separate
complaint be registered and thereafter its investigation
be carried out. But by covering this investigation also in
the complaint of the present matter, if it is found out in

5
 WWW.LIVELAW.IN

such investigation that any offence was committed, then

appropriate criminal proceedings can be initiated
against such person.”

6. Pursuant to this order, the investigation was handed over

to Investigating Officer R.A. Munshi (hereinafter referred to as

“IO Munshi”) on 06.03.2012, who then submitted two further

investigation reports – one within three days, dated 09.03.2012

and a second one dated 10.04.2012, in which the IO Munshi

went into the facts mentioned in the 173(8) applications that were

filed. On 13.06.2012, the original accused withdrew Special

Criminal Application No.727 of 2012 filed in the High Court,

which was filed challenging the order by which the learned

Revisional Court had confirmed the order rejecting the discharge

applications, with liberty to move an appropriate application for

discharge before the Magistrate. The High Court heard Criminal

Revision Application No.44 of 2012 together with Criminal

Miscellaneous Application No.1746 of 2012, and arrived at the

conclusion that, as a matter of law, the Magistrate does not

possess any power to order further investigation after a charge-

sheet is filed and cognizance is taken. The High Court further

castigated IO Munshi, holding that the furnishing of interim

6
 WWW.LIVELAW.IN

investigation reports, not through a special public prosecutor and

not to the Magistrate, but to the Additional Sessions Judge

himself smacks of mala fides, as if IO Munshi wanted to oblige

and/or favour the accused persons. The High Court further found

that the two interim investigation reports virtually acquitted the

accused persons, and therefore, the High Court set aside the

judgment of the learned Second Additional Sessions Judge

dated 10.01.2012, and consequently, the two further interim

investigation reports. So far as Criminal Revision Application

No.346 of 2011 (which was disposed of by the learned Second

Additional Sessions Judge without considering merits, in light of

its order in Criminal Revision Application No.376 of 2011) was

concerned, the High court remanded the same for fresh

consideration to the learned Second Additional Sessions Judge,

who would then decide as to whether an FIR should be

registered, insofar as the allegations contained in the

applications for further investigation are concerned. Pursuant to

the aforesaid remand, by judgment dated 23.04.2016, the

learned Additional Sessions Judge has rejected the application

under Section 156(3) of the CrPC on merits, against which

Special Criminal Application No.3085 of 2016 has been filed and

7
 WWW.LIVELAW.IN

is awaiting disposal. Several other proceedings that are pending

between the parties have been pointed out to us, with which we

have no immediate concern in this case.

7. Shri Dushyant Dave, learned Senior Advocate, appearing

on behalf of the Appellants, has forcefully argued, placing

reliance on a number of provisions of the CrPC, and a number of

our judgments, that the High Court was wholly incorrect as a

matter of law, in holding that post-cognizance a Magistrate would

have no power to order further investigation into an offence. He

read out in great detail the FIR dated 22.12.2009, the contents of

the charge-sheet dated 22.04.2010, and relied heavily on a

communication made by the Commissioner of Revenue, Gujarat

to the Collector, Surat dated 15.03.2011. According to him, the

contents of this communication would show that there is no

doubt that further investigation ought to have been carried out on

the facts of this case, in that, a huge fraud had been perpetrated

on his clients by land-grabbing mafia, and it would be a travesty

of justice if the learned Second Additional Sessions Judge’s

judgment dated 10.01.2012 was not upheld. According to him,

the High Court judgment was greatly influenced by the fact that:

8
 WWW.LIVELAW.IN

(1) IO Munshi submitted further interim investigation reports very

quickly, and (2) had submitted these reports to the Additional

Sessions Judge instead of the Magistrate; resulting in the

throwing out of the baby with the bathwater. He therefore urged

us to uphold the order of the Second Additional Sessions Judge

who ordered further investigation, as that would lead to the truth

of the matter in this case.

8. On the other hand, Shri Basant and Shri Navare, learned

Senior Advocates appearing on behalf of the respondents,

supported the judgment of the trial court and the High Court,

stating that there is no doubt that without filing a cross-FIR, what

was sought to be adduced is evidence which may perhaps

amount to a defence in the trial to be conducted, which would be

impermissible. They emphasised that at no stage had an

application been moved to quash the proceedings, and

obviously, a belated application made more than a year after

cognizance had been taken, to obtain by way of further

investigation facts which were wholly divorced from the FIR

would be wholly outside the Magistrate’s power under Section

173(8) of the CrPC. They relied upon several judgments, and

9
 WWW.LIVELAW.IN

particularly recent judgments of this Court, in order to show that

post-cognizance and particularly after summons is issued to the

accused, and the accused appears pursuant to such summons,

the Magistrate has no suo motu power, nor can he be moved by

the accused, for further investigation at this stage of the

proceedings.

9. The question of law that therefore arises in this case is

whether, after a charge-sheet is filed by the police, the

Magistrate has the power to order further investigation, and if so,

up to what stage of a criminal proceeding.

10. The CrPC is neatly divided into 37 Chapters. In this case

we are concerned with Chapters XII to XVII. Chapter XII is titled

“Information to the Police and their Powers to Investigate”.

Chapter XIII has as its title “Jurisdiction of the Criminal Courts in

Inquiries and Trials”. Chapter XIV speaks of “Conditions

Requisite for Initiation of Proceedings”. Chapter XV then speaks

of “Complaints to Magistrates”. Chapter XVI is headed

“Commencement of Proceedings before Magistrates” and

Chapter XVII is headed “The Charge”. Chapters XVIII to XXI are

“Trials before a Court of Session”; “Trial of Warrant-Cases by

10
 WWW.LIVELAW.IN

Magistrates”; “Trials of Summons-Cases by Magistrates”; and

Summary Trials”, respectively.

11. The relevant sections of the CrPC with which we are

concerned are as follows:

“156. Police officer’s power to investigate

cognizable case.-

(1) Any officer in charge of a police station may, without

the order of a Magistrate, investigate any cognizable
case which a Court having jurisdiction over the local
area within the limits of such station would have
power to inquire into or try under the provisions of
Chapter XIII.

xxx xxx xxx

(3) Any Magistrate empowered under Section 190 may

order such an investigation as above-mentioned.

xxx xxx xxx

173. Report of police officer on completion of

investigation.-

xxx xxx xxx

(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).

11
 WWW.LIVELAW.IN

xxx xxx xxx

190. Cognizance of offences by Magistrates.- (1)

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.

xxx xxx xxx

200. Examination of complainant.- A Magistrate

taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:

Provided that, when the complaint is made in writing,

the Magistrate need not examine the complainant and
the witnesses –

(a) if a public servant acting or purporting to act in the

discharge of his official duties or a Court has made
the complaint; or
(b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under Section 192.

Provided further that if the Magistrate makes over the

case to another Magistrate under Section 192 after

12
 WWW.LIVELAW.IN

examining the complainant and the witnesses, the latter

Magistrate need not re-examine them.

xxx xxx xxx

202. Postponement of issue of process.– (1) Any

Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has
been made over to him under Section 192, may, if he
thinks fit, [and shall, in a case where the accused is
residing at a place beyond the area in which he
exercises his jurisdiction] postpone the issue of
process against the accused, and either inquire into the
case himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is
sufficient ground for proceeding:

Provided that no such direction for investigation shall be

made -

(a) Where it appears to the Magistrate that the offence

complained of is triable exclusively by the Court of
Sessions; or
(b) Where the complaint has not been made by a
Court, unless the complainant and the witnesses
present (if any) have been examined on oath under
Section 200.

(2) In an inquiry under sub-section (1), the Magistrate

may, if he thinks fit, take evidence of witness on oath:

Provided that if it appears to the Magistrate that the

offence complained of is triable exclusively by the Court
of Session, he shall call upon the complainant to
produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by

a person not being a police officer, he shall have for
that investigation all the powers conferred by this Code

13
 WWW.LIVELAW.IN

on an officer in charge of a police station except the

power to arrest without warrant.

xxx xxx xxx

204. Issue of process.– (1) If in the opinion of a

Magistrate taking cognizance of an offence there is
sufficient ground for proceeding, and the case appears
to be –

(a) a summons-case, he shall issue his summons for

the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he
thinks fit, a summon, for causing the accused to be
brought or to appear at a certain time before such
other Magistrate or (if he has no jurisdiction himself)
some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the

accused under sub-section (1) until a list of the
prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in

writing, every summons or warrant issued under sub-
section (1) shall be accompanied by a copy of such
complaint.

(4) When by any law for the time being in force any
process-fees or other fees are payable, no process
shall be issued until the fees are paid and, if such fees
are not paid within a reasonable time, the Magistrate
may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the

provisions of section 87.”

12. As the Chapter headings themselves show, there is a

neat distinction between the powers of the police to investigate

14
 WWW.LIVELAW.IN

and jurisdiction of the criminal courts in inquiries - followed by the

procedure once the trial itself begins. Section 156 deals with a

police officer’s power to investigate “cognizable cases”. A

“cognizable case” is defined under Section 2(c) of the CrPC as

follows:

“cognizable offence” means an offence for which, and

“cognizable case” means a case in which, a police
officer may, in accordance with the First Schedule or
under any other law for the time being in force, arrest
without warrant.

The expression “complaint” is defined in Section 2(d) as follows:

“complaint” means any allegation made orally or in

writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not
include a police report.

“Inquiry” is defined in Section 2(g) as follows:

“inquiry” means every inquiry, other than a trial,

conducted under this Code by a Magistrate or Court;

“Investigation” is defined in Section 2(h) as follows:

“investigation” includes all the proceedings under this

Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate)
who is authorised by a Magistrate in this behalf.

13. The statutory scheme contained in the CrPC therefore

puts “inquiry” and “trial” in water-tight compartments, as the very

15
 WWW.LIVELAW.IN

definition of “inquiry” demonstrates. “Investigation” is for the

purpose of collecting evidence by a police officer, and otherwise

by any person authorised by a Magistrate in this behalf, and also

pertains to a stage before the trial commences. Investigation

which ultimately leads to a police report under the CrPC is an

investigation conducted by the police, and may be ordered in an

inquiry made by the Magistrate himself in “complaint” cases.

14. The erstwhile Code of Criminal Procedure, 1898 did not

contain a provision by which the police were empowered to

conduct a further investigation in respect of an offence after a

police report under Section 173 has been forwarded to the

Magistrate. The Forty-First Law Commission Report (The Code

of Criminal Procedure, 1898) forwarded to the Ministry of Law in

September 1969 (hereinafter referred to as the “Law

Commission Report”), therefore, recommended the addition of

sub-section (7) to Section 173 as it stood under the Code of

Criminal Procedure, 1898 for the following reasons:

“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

16
 WWW.LIVELAW.IN

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)

15. What is interesting to note is that the narrow view of some

of the High Courts had placed a hindrance in the way of the

investigating agency, which can be very unfair to the prosecution

as well as the accused.

16. Article 21 of the Constitution of India makes it clear that

the procedure in criminal trials must, after the seminal decision in

Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC

248, be “right, just and fair and not arbitrary, fanciful or

oppressive” (see paragraph 7 therein). Equally, in

Commissioner of Police, Delhi v. Registrar, Delhi High

Court, New Delhi (1996) 6 SCC 323, it was stated that Article 21

enshrines and guarantees the precious right of life and personal

liberty to a person which can only be deprived on following the

17
 WWW.LIVELAW.IN

procedure established by law in a fair trial which assures the

safety of the accused. The assurance of a fair trial is stated to be

the first imperative of the dispensation of justice (see paragraph

16 therein).

17. It is clear that a fair trial must kick off only after an

investigation is itself fair and just. The ultimate aim of all

investigation and inquiry, whether by the police or by the

Magistrate, is to ensure that those who have actually committed

a crime are correctly booked, and those who have not are not

arraigned to stand trial. That this is the minimal procedural

requirement that is the fundamental requirement of Article 21 of

the Constitution of India cannot be doubted. It is the hovering

omnipresence of Article 21 over the CrPC that must needs

inform the interpretation of all the provisions of the CrPC, so as

to ensure that Article 21 is followed both in letter and in spirit.

18. Pooja Pal v. UOI (2016) 3 SCC 135 is an important

judgment which speaks of the fundamental right under Article 21

of the Constitution in the context of the goal of “speedy trial”

being tempered by “fair trial”. The Court put it thus:

18
 WWW.LIVELAW.IN

“83. A “speedy trial”, albeit the essence of the

fundamental right to life entrenched in Article 21 of the
Constitution of India has a companion in concept in “fair
trial”, both being inalienable constituents of an
adjudicative process, to culminate in a judicial decision
by a court of law as the final arbiter. There is indeed a
qualitative difference between right to speedy trial and
fair trial so much so that denial of the former by itself
would not be prejudicial to the accused, when pitted
against the imperative of fair trial. As fundamentally,
justice not only has to be done but also must appear to
have been done, the residuary jurisdiction of a court to
direct further investigation or reinvestigation by any
impartial agency, probe by the State Police
notwithstanding, has to be essentially invoked if the
statutory agency already in charge of the investigation
appears to have been ineffective or is presumed or
inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. As the cause of
justice has to reign supreme, a court of law cannot
reduce itself to be a resigned and a helpless spectator
and with the foreseen consequences apparently unjust,
in the face of a faulty investigation, meekly complete the
formalities to record a foregone conclusion. Justice then
would become a casualty. Though a court's satisfaction
of want of proper, fair, impartial and effective
investigation eroding its credence and reliability is the
precondition for a direction for further investigation or
reinvestigation, submission of the charge-sheet ipso
facto or the pendency of the trial can by no means be a
prohibitive impediment. The contextual facts and the
attendant circumstances have to be singularly
evaluated and analysed to decide the needfulness of
further investigation or reinvestigation to unravel the
truth and mete out justice to the parties. The prime
concern and the endeavour of the court of law is to
secure justice on the basis of true facts which ought to
be unearthed through a committed, resolved and a
competent investigating agency.

xxx xxx xxx

19
 WWW.LIVELAW.IN

86. A trial encompasses investigation, inquiry, trial,

appeal and retrial i.e. the entire range of scrutiny
including crime detection and adjudication on the basis
thereof. Jurisprudentially, the guarantee under Article
21 embraces both the life and liberty of the accused as
well as interest of the victim, his near and dear ones as
well as of the community at large and therefore, cannot
be alienated from each other with levity. It is judicially
acknowledged that fair trial includes fair investigation as
envisaged by Articles 20 and 21 of the Constitution of
India. Though well-demarcated contours of crime
detection and adjudication do exist, if the investigation
is neither effective nor purposeful nor objective nor fair,
it would be the solemn obligation of the courts, if
considered necessary, to order further investigation or
reinvestigation as the case may be, to discover the truth
so as to prevent miscarriage of the justice. No inflexible
guidelines or hard-and-fast rules as such can be
prescribed by way of uniform and universal invocation
and the decision is to be conditioned to the attendant
facts and circumstances, motivated dominantly by the
predication of advancement of the cause of justice.”

19. With the introduction of Section 173(8) in the CrPC, 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.

20
 WWW.LIVELAW.IN

20. It is interesting to note that even under the Code of

Criminal Procedure, 1898, in Kamlapati Trivedi v. State of

West Bengal (1980) 2 SCC 91, this Court held as follows:

“50. Sections 169 and 170 do not talk of the submission

of any report by the police to the Magistrate, although
they do state what the police has to do short of such
submission when it finds at the conclusion of the
investigation (1) that there is not sufficient evidence or
reasonable ground of suspicion to justify the forwarding
of the accused to a Magistrate (Section 169) or (2) that
there is sufficient evidence or reasonable ground as
aforesaid (Section 170). In either case the final report of
the police is to be submitted to the Magistrate under
sub-section (1) of Section 173. Sub-section (3) of that
section further provides that in the case of a report by
the police that the accused has been released on his
bond (which is the situation envisaged by Section 169),
the Magistrate shall make “such order for the discharge
of such bond or otherwise as he thinks fit”. Now what
are the courses open to the Magistrate in such a
situation? He may, as held by this Court in Abhinandan
Jha v. Dinesh Mishra [(1967) 3 SCR 668: AIR 1968 SC
117: 1968 Cri LJ 97]:

(1) agree with the report of the police and file the
proceedings; or

(2) not agree with the police report and

(a) order further investigation, or

(b) hold that the evidence is sufficient to justify the

forwarding of the accused to the Magistrate and take
cognizance of the offence complained of.

51. The appropriate course has to be decided upon

after a consideration of the report and the application of
the mind of the Magistrate to the contents thereof. But

21
 WWW.LIVELAW.IN

then the problem to be solved is whether the order

passed by the Magistrate pertains to his executive or
judicial capacity. In my opinion, the only order which
can be regarded as having been passed by the
Magistrate in his capacity as the supervisory authority in
relation to the investigation carried out by the police is
the one covered by the course 2(a). The order passed
by the Magistrate in each of the other two courses, that
is, (1) and (2)(b), follows a conclusion of the
investigation and is a judicial order determining the
rights of the parties (the State on the one hand and the
accused on the other) after the application of his mind.
And if that be so, the order passed by the Magistrate in
the proceeding before us must be characterised as a
judicial act and therefore as one performed in his
capacity as a Court.”

21. What is recognised by this decision is that in the

circumstance that the Magistrate does not agree with the police

report, he may order further investigation - which is done in his

capacity as a supervisory authority in relation to investigation

carried out by the police.

22. Indeed, Section 156(3) has remained unchanged even

after the advent of the CrPC of 1973. Thus, in State of Bihar v.

J.A.C. Saldhana and Ors. (1980) 1 SCC 554, this Court held:

“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

22
 WWW.LIVELAW.IN

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).”

Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC

409, this Court held:

“12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC

627: (2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this
Court observed: (SCC p. 631, para 11)

“11. The clear position therefore is that any Judicial

Magistrate, before taking cognizance of the offence,
can order investigation under Section 156(3) of the
Code. If he does so, he is not to examine the
complainant on oath because he was not taking
cognizance of any offence therein. For the purpose of
enabling the police to start investigation it is open to the
Magistrate to direct the police to register an FIR. There
is nothing illegal in doing so. After all registration of an
FIR involves only the process of entering the substance
of the information relating to the commission of the
cognizable offence in a book kept by the officer in
charge of the police station as indicated in Section 154
of the Code. Even if a Magistrate does not say in so
many words while directing investigation under Section
156(3) of the Code that an FIR should be registered, it
is the duty of the officer in charge of the police station to
register the FIR regarding the cognizable offence
disclosed by the complainant because that police officer
could take further steps contemplated in Chapter XII of
the Code only thereafter.”

13. The same view was taken by this Court in Dilawar

Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007)
10 SC 585] (JT vide para 17). We would further clarify

23
 WWW.LIVELAW.IN

that even if an FIR has been registered and even if the

police has made the investigation, or is actually making
the investigation, which the aggrieved person feels is
not proper, such a person can approach the Magistrate
under Section 156(3) CrPC, and if the Magistrate is
satisfied he can order a proper investigation and take
other suitable steps and pass such order(s) as he thinks
necessary for ensuring a proper investigation. All these
powers a Magistrate enjoys under Section 156(3) CrPC.

14. Section 156(3) states:

“156. (3) Any Magistrate empowered under Section 190

may order such an investigation as abovementioned.”

The words “as abovementioned” obviously refer to

Section 156(1), which contemplates investigation by the
officer in charge of the police station.

15. Section 156(3) provides for a check by the

Magistrate on the police performing its duties under
Chapter XII CrPC. In cases where the Magistrate finds
that the police has not done its duty of investigating the
case at all, or has not done it satisfactorily, he can issue
a direction to the police to do the investigation properly,
and can monitor the same.

16. The power in the Magistrate to order further

investigation under Section 156(3) is an independent
power and does not affect the power of the investigating
officer to further investigate the case even after
submission of his report vide Section 173(8). Hence the
Magistrate can order reopening of the investigation
even after the police submits the final report, vide State
of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980
SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).

17. In our opinion Section 156(3) CrPC is wide enough

to include all such powers in a Magistrate which are
necessary for ensuring a proper investigation, and it
includes the power to order registration of an FIR and of

24
 WWW.LIVELAW.IN

ordering a proper investigation if the Magistrate is

satisfied that a proper investigation has not been done,
or is not being done by the police. Section 156(3) CrPC,
though briefly worded, in our opinion, is very wide and it
will include all such incidental powers as are necessary
for ensuring a proper investigation.

18. It is well settled that when a power is given to an

authority to do something it includes such incidental or
implied powers which would ensure the proper doing of
that thing. In other words, when any power is expressly
granted by the statute, there is impliedly included in the
grant, even without special mention, every power and
every control the denial of which would render the grant
itself ineffective. Thus where an Act confers jurisdiction
it impliedly also grants the power of doing all such acts
or employ such means as are essentially necessary for
its execution.”

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 of the Constitution of India

mandates that all powers necessary, which may also be

incidental or implied, are available to the Magistrate to ensure a

proper investigation which, without doubt, would include the

ordering of further investigation after a report is received by him

under Section 173(2); and which power would continue to enure

25
 WWW.LIVELAW.IN

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.

24. However, Shri Basant relied strongly on a Three Judge

Bench judgment in Devarapalli Lakshminarayana Reddy &

Ors. v. V. Narayana Reddy & Ors. (1976) 3 SCC 252. This

judgment, while deciding whether the first proviso to Section 202

(1) of the CrPC was attracted on the facts of that case, held:

“17. Section 156(3) occurs in Chapter XII, under the

caption : “Information to the Police and their powers to
investigate”; while Section 202 is in Chapter XV which
bears the heading: “Of complaints to Magistrates”. The
power to order police investigation under Section 156(3)
is different from the power to direct investigation
conferred by Section 202(1). The two operate in distinct
spheres at different stages. The first is exercisable at
the pre-cognizance stage, the second at the post-
cognizance stage when the Magistrate is in seisin of the
case. That is to say in the case of a complaint regarding
the commission of a cognizable offence, the power
under Section 156(3) can be invoked by the
Magistrate before he takes cognizance of the offence
under Section 190(1)(a). But if he once takes such
cognizance and embarks upon the procedure embodied

26
 WWW.LIVELAW.IN

in Chapter XV, he is not competent to switch back to

the pre-cognizance stage and avail of Section 156(3). It
may be noted further that an order made under sub-
section (3) of Section 156, is in the nature of a
peremptory reminder or intimation to the police to
exercise their plenary powers of investigation under
Section 156(1). Such an investigation embraces the
entire continuous process which begins with the
collection of evidence under Section 156 and ends with
a report or charge-sheet under Section 173. On the
other hand, Section 202 comes in at a stage when
some evidence has been collected by the Magistrate in
proceedings under Chapter XV, but the same is
deemed insufficient to take a decision as to the next
step in the prescribed procedure. In such a situation,
the Magistrate is empowered under Section 202 to
direct, within the limits circumscribed by that section an
investigation “for the purpose of deciding whether or not
there is sufficient ground for proceeding”. Thus the
object of an investigation under Section 202 is not to
initiate a fresh case on police report but to assist the
Magistrate in completing proceedings already instituted
upon a complaint before him.”

This judgment was then followed in Tula Ram & Ors. v. Kishore

Singh (1977) 4 SCC 459 at paragraphs 11 and 15.

25. Whereas it is true that Section 156(3) remains unchanged

even after the 1973 Code has been brought into force, yet the

1973 Code has one very important addition, namely, Section

173(8), which did not exist under the 1898 Code. As we have

noticed earlier in this judgment, Section 2(h) of the 1973 Criminal

Procedure Code defines “investigation” in the same terms as the

27
 WWW.LIVELAW.IN

earlier definition contained in Section 2(l) of the 1898 Criminal

Procedure Code with this difference – that “investigation” after

the 1973 Code has come into force will now include all the

proceedings under the CrPC for collection of evidence conducted

by a police officer. “All” would clearly include proceedings under

Section 173(8) as well. Thus, when Section 156(3) states that a

Magistrate empowered under Section 190 may order “such an

investigation”, such Magistrate may also order further

investigation under Section 173(8), regard being had to the

definition of “investigation” contained in Section 2(h).

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.

28
 WWW.LIVELAW.IN

27. Ram Lal Narang v. State (Delhi Administration) (1979)

2 SCC 322, is an early judgment which deals with the power

contained in Section 173(8) after a charge-sheet is filed. This

Court adverted to the Law Commission Report and to a number

of judgments which recognised the right of the police to make

repeated investigations under the Code of Criminal Procedure,

1898. It then quoted the early Supreme Court judgment in H.N.

Rishbud v. State of Delhi AIR 1955 SC 196 case as follows:

“17. In H.N. Rishbud v. State of Delhi [AIR 1955 SC

196: (1955) 1 SCR 1150: 1955 Cri LJ 526] this Court
contemplated the possibility of further investigation
even after a Court had taken cognizance of the case.
While noticing that a police report resulting from an
investigation was provided in Section 190 CrPC as the
material on which cognizance was taken, it was pointed
out that it could not be maintained that a valid and legal
police report was the foundation of the jurisdiction of the
court to take cognizance. It was held that where
cognizance of the case had, in fact, been taken and the
case had proceeded to termination, the invalidity of the
precedent investigation did not vitiate the result unless
miscarriage of justice had been caused thereby. It was
said that a defect or illegality in investigation, however
serious, had no direct bearing on the competence of the
procedure relating to cognizance or trial. However, it
was observed:

“It does not follow that the invalidity of the investigation

is to be completely ignored by a Court during trial.
When the breach of such mandatory provision is
brought to the knowledge of the Court at a sufficiently
early stage, the Court, while not declining cognizance,
will have to take the necessary steps to get the illegality

29
 WWW.LIVELAW.IN

cured and the defect rectified, by ordering such re-

investigation as the circumstances of an individual case
may call for.”

This decision is a clear authority for the view that further

investigation is not altogether ruled out merely because
cognizance of the case has been taken by the court;
defective investigation coming to light during the course
of a trial may be cured by a further investigation, if
circumstances permit it.”

The Court then went on to hold:

“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

30
 WWW.LIVELAW.IN

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

31
 WWW.LIVELAW.IN

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)

28. In Union Public Service Commission v. S. Papaiah

(1997) 7 SCC 614, this Court dealt with a case in which the

Central Bureau of Investigation (hereinafter referred to as the

“CBI”) had submitted a closure report. It then quoted from a

Three Judge Bench judgment in Bhagwant Singh v.

Commissioner of Police and Anr. (1985) 2 SCC 357, in which

this Court stated that a Magistrate, in dealing with a report from

the police under Section 173, can adopt one of three courses -

(1) he may accept the report and drop the proceedings; or (2) he

may disagree with the report, take cognizance of the offence and

issue process; or (3) he may direct further investigation to be

made by the police under Section 156(3). The Court then went

on to hold that where objections have been furnished by the

complainant, i.e. the Union Public Service Commission, against

the closure report of the police, the Magistrate could, in exercise

32
 WWW.LIVELAW.IN

of powers under Section 173(8) of the CrPC, direct the CBI to

further investigate the case and collect further evidence keeping

in view the objections raised by the complainant (see paragraph

13 therein).

29. Hasanbhai Valibhai Qureshi v. State of Gujarat and

Ors. (2004) 5 SCC 347 is an important judgment which deals

with the necessity for further investigation being balanced with

the delaying of a criminal proceeding. If there is a necessity for

further investigation when fresh facts come to light, then the

interest of justice is paramount and trumps the need to avoid any

delay being caused to the proceeding. The Court therefore held:

“11. Coming to the question whether a further

investigation is warranted, the hands of the
investigating agency or the court should not be tied
down on the ground that further investigation may delay
the trial, as the ultimate object is to arrive at the truth.

12. Sub-section (8) of Section 173 of the Code permits

further investigation, and even dehors any direction
from the court as such, it is open to the police to
conduct proper investigation, even after the court took
cognisance of any offence on the strength of a police
report earlier submitted. All the more so, if as in this
case, the Head of the Police Department also was not
satisfied of the propriety or the manner and nature of
investigation already conducted.

13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2

SCC 322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it

33
 WWW.LIVELAW.IN

was observed by this Court that further investigation is

not altogether ruled out merely because cognisance
has been taken by the court. When defective
investigation comes to light during course of trial, it may
be cured by further investigation, if circumstances so
permitted. It would ordinarily be desirable and all the
more so in this case, that the police should inform the
court and seek formal permission to make further
investigation when fresh facts come to light instead of
being silent over the matter keeping in view only the
need for an early trial since an effective trial for real or
actual offences found during course of proper
investigation is as much relevant, desirable and
necessary as an expeditious disposal of the matter by
the courts. In view of the aforesaid position in law, if
there is necessity for further investigation, the same can
certainly be done as prescribed by law. The mere fact
that there may be further delay in concluding the trial
should not stand in the way of further investigation if
that would help the court in arriving at the truth and do
real and substantial as well as effective justice. We
make it clear that we have not expressed any final
opinion on the merits of the case.”1

30. In Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC

536, this Court followed Papaiah (supra) and held:

“16. Although the said sub-section does not, in specific

terms, mention about the powers of the court to order
further investigation, the power of the police to conduct
further investigation envisaged therein can be triggered
into motion at the instance of the court. When any such
order is passed by a court which has the jurisdiction to
do so, it would not be a proper exercise of revisional

1This statement of the law was approved in Rama Chaudhary v. State of Bihar (2009)
6 SCC 346 (at paragraphs 14 to 19) and in Samaj Parivartan Samudaya and Ors. v.
State of Karnataka and Ors. (2012) 7 SCC 407 (at paragraph 58).

34
 WWW.LIVELAW.IN

powers to interfere therewith because the further

investigation would only be for the ends of justice. After
the further investigation, the authority conducting such
investigation can either reach the same conclusion and
reiterate it or it can reach a different conclusion. During
such extended investigation, the officers can either act
on the same materials or on other materials which may
come to their notice. It is for the investigating agency to
exercise its power when it is put back on that track. If
they come to the same conclusion, it is of added
advantage to the persons against whom the allegations
were made, and if the allegations are found false again
the complainant would be in trouble. So from any point
of view the Special Judge's direction would be of
advantage for the ends of justice. It is too premature for
the High Court to predict that the investigating officer
would not be able to collect any further material at all.
That is an area which should have been left to the
investigating officer to survey and recheck.

17. In Bhagwant Singh v. Commr. of Police [(1985) 2

SCC 537 : 1985 SCC (Cri) 267] a three-Judge Bench of
this Court has said, though in a slightly different context,
that three options are open to the court on receipt of a
report under Section 173(2) of the Code, when such
report states that no offence has been committed by the
persons accused in the complaint. They are: (SCC p.
542, para 4)

(1) The court may accept the report and drop the
proceedings; or

(2) the court may disagree with the report and take
cognizance of the offence and issue process if it takes
the view that there is sufficient ground for proceeding
further; or

(3) the court may direct further investigation to be made

by the police.

35
 WWW.LIVELAW.IN

18. Another three-Judge Bench in India Carat (P)

Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989
SCC (Cri) 306] has stated thus: (SCC pp. 139-40, para
16)

“16. The position is, therefore, now well settled that

upon receipt of a police report under Section 173(2) a
Magistrate is entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if the police
report is to the effect that no case is made out against
the accused. The Magistrate can take into account the
statements of the witnesses examined by the police
during the investigation and take cognizance of the
offence complained of and order the issue of process to
the accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the
investigation has made out a case against the accused.
The Magistrate can ignore the conclusion arrived at by
the investigating officer and independently apply his
mind to the facts emerging from the investigation and
take cognizance of the case, if he thinks fit, in exercise
of his powers under Section 190(1)(b) and direct the
issue of process to the accused.”

19. In Union Public Service Commission v. S.

Papaiah [(1997) 7 SCC 614 : 1997 SCC (Cri) 1112] a
two-Judge Bench considered the scope of Section
173(8) of the Code in extenso. Dr. A.S. Anand, J. (as
the learned Chief Justice then was) after extracting
Section 173(8) of the Code has observed thus: (SCC
pp. 620-21, para 13)

“The Magistrate could, thus in exercise of the powers

under Section 173(8) CrPC direct the CBI to ‘further
investigate’ the case and collect further evidence
keeping in view the objections raised by the appellant to
the investigation and the ‘new’ report to be submitted by
the investigating officer would be governed by sub-
sections (2) to (6) of Section 173 CrPC.””

36
 WWW.LIVELAW.IN

31. In Samaj Parivartan Samudaya (supra), a Three Judge

Bench of this Court, while dealing with illegal mining in Andhra

Pradesh and Karnataka, issued directions to the CBI to

investigate the entire matter (despite private complaints already

pending and being investigated by one or other competent Court

or investigation agency), as a Central Empowered Committee

Report disclosed fresh facts as to illegal mining in these States.

In a review of the machinery of criminal investigations under the

CrPC, this Court held:

“27. Once the investigation is conducted in accordance

with the provisions of CrPC, a police officer is bound to
file a report before the court of competent jurisdiction,
as contemplated under Section 173 CrPC, upon which
the Magistrate can proceed to try the offence, if the
same were triable by such court or commit the case to
the Court of Session. It is significant to note that the
provisions of Section 173(8) CrPC open with non
obstante language that nothing in the provisions of
Sections 173(1) to 173(7) 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. Thus, under Section 173(8), where charge-
sheet has been filed, that court also enjoys the
jurisdiction to direct further investigation into the
offence. (Ref. Hemant Dhasmana v. CBI [(2001) 7 SCC
536 : 2001 SCC (Cri) 1280] .) This power cannot have
any inhibition including such requirement as being
obliged to hear the accused before any such direction is
made.

xxx xxx xxx

37
 WWW.LIVELAW.IN

29. While the trial court does not have inherent powers
like those of the High Court under Section 482 CrPC or
the Supreme Court under Article 136 of the Constitution
of India, such that it may order for complete
reinvestigation or fresh investigation of a case before it,
however, it has substantial powers in exercise of
discretionary jurisdiction under Sections 311 and 391
CrPC. In cases where cognizance has been taken and
where a substantial portion of investigation/trial has
already been completed and where a direction for
further examination would have the effect of delaying
the trial, if the trial court is of the opinion that the case
has been made out for alteration of charge, etc. it may
exercise such powers without directing further
investigation. (Ref. Sasi Thomas v. State [(2006) 12
SCC 421 : (2007) 2 SCC (Cri) 72] .)

30. Still in another case, taking the aid of the doctrine of

implied power, this Court has also stated that an
express grant of statutory power carries with it, by
necessary implication, the authority to use all
reasonable means to make such statutory power
effective. Therefore, absence of statutory provision
empowering the Magistrate to direct registration of an
FIR would not be of any consequence and the
Magistrate would nevertheless be competent to direct
registration of an FIR. (Ref. Sakiri Vasu v. State of
U.P. [(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] )

31. Thus, CrPC leaves clear scope for conducting of

further inquiry and filing of a supplementary charge-
sheet, if necessary, with such additional facts and
evidence as may be collected by the investigating
officer in terms of sub-sections (2) to (6) of Section 173
CrPC to the court. To put it aptly, further investigation
by the investigating agency, after presentation of a
challan (charge-sheet in terms of Section 173 CrPC) is
permissible in any case impliedly but in no event is
impermissible.

xxx xxx xxx

38
 WWW.LIVELAW.IN

37. We may notice that the investigation of a case or

filing of charge-sheet in a case does not by itself bring
the absolute end to exercise of power by the
investigating agency or by the court. Sometimes and
particularly in the matters of the present kind, the
investigating agency has to keep its options open to
continue with the investigation, as certain other relevant
facts, incriminating materials and even persons, other
than the persons stated in the FIR as accused, might be
involved in the commission of the crime. The basic
purpose of an investigation is to bring out the truth by
conducting fair and proper investigation, in accordance
with law and ensure that the guilty are punished.”

32. In Gulzar Ahmed Azmi v. Union of India and Ors.

(2012) 10 SCC 731, this Court, while rejecting an argument that

further investigation by the police should be entrusted with a

supernumerary body created under the head of a retired

Supreme Court Judge along with other officers and experts, held

that if further investigation is sought under Section 173(8) of

CrPC, the same can always be effected even after the filing of

the final report.

33. We now come to the decision in Vinay Tyagi v. Irshad

Ali and Ors. (2013) 5 SCC 762. This is another case that arose

out of a CBI report to the Magistrate, which requested for closure

of the case against the accused. The judgment of the Court first

discussed in detail how the criminal investigative machinery is

39
 WWW.LIVELAW.IN

set into motion right until the stage at which the trial begins. The

Court then held:

“20. Having noticed the provisions and relevant part of

the scheme of the Code, now we must examine the
powers of the court to direct investigation. Investigation
can be ordered in varied forms and at different stages.
Right at the initial stage of receiving the FIR or a
complaint, the court can direct investigation in
accordance with the provisions of Section 156(1) in
exercise of its powers under Section 156(3) of the
Code. Investigation can be of the following kinds:

(i) Initial investigation,

(ii) Further investigation,

(iii) Fresh or de novo or reinvestigation.”

Thereafter, the question with which we are faced was directly

tackled as follows:

“29. Now, we come to the former question i.e. whether

the Magistrate has jurisdiction under Section 173(8) to
direct further investigation.

xxx xxx xxx

32. In Minu Kumari v. State of Bihar [(2006) 4 SCC 359:

(2006) 2 SCC (Cri) 310] (SCC pp. 363-64, para 11), this
Court explained the powers that are vested in a
Magistrate upon filing of a report in terms of Section
173(2)(i) and the kind of order that the court can pass.
The Court held that when a report is filed before a
Magistrate, he may either (i) accept the report and take
cognizance of the offences and issue process; or (ii)
may disagree with the report and drop the proceedings;
or (iii) may direct further investigation under Section
156(3) and require the police to make a further report.

40
 WWW.LIVELAW.IN

33. This judgment, thus, clearly shows that the Court of

Magistrate has a clear power to direct further
investigation when a report is filed under Section 173(2)
and may also exercise such powers with the aid of
Section 156(3) of the Code. The lurking doubt, if any,
that remained in giving wider interpretation to Section
173(8) was removed and controversy put to an end by
the judgment of this Court in Hemant
Dhasmana v. CBI [(2001) 7 SCC 536: 2001 SCC (Cri)
1280] where the Court held that although the said
section does not, in specific terms, mention the power
of the court to order further investigation, the power of
the police to conduct further investigation envisaged
therein can be triggered into motion at the instance of
the court. When any such order is passed by the court,
which has the jurisdiction to do so, then such order
should not even be interfered with in exercise of a
higher court's revisional jurisdiction. Such orders would
normally be of an advantage to achieve the ends of
justice. It was clarified, without ambiguity, that the
Magistrate, in exercise of powers under Section 173(8)
of the Code can direct CBI to further investigate the
case and collect further evidence keeping in view the
objections raised by the appellant to the investigation
and the new report to be submitted by the investigating
officer, would be governed by sub-section (2) to sub-
section (6) of Section 173 of the Code. There is no
occasion for the Court to interpret Section 173(8) of the
Code restrictively. After filing of the final report, the
learned Magistrate can also take cognizance on the
basis of the material placed on record by the
investigating agency and it is permissible for him to
direct further investigation. Conduct of proper and fair
investigation is the hallmark of any criminal
investigation.

34. In support of these principles reference can be

made to the judgments of this Court in UPSC v. S.
Papaiah [(1997) 7 SCC 614: 1997 SCC (Cri)
1112], State of Orissa v. Mahima [(2007) 15 SCC 580:
(2010) 3 SCC (Cri) 611: (2003) 5 Scale 566] , Kishan

41
 WWW.LIVELAW.IN

Lal v. Dharmendra Bafna [(2009) 7 SCC 685: (2009) 3

SCC (Cri) 611], State of Maharashtra v. Sharadchandra
Vinayak Dongre [(1995) 1 SCC 42: 1995 SCC (Cri) 16].

35. We may also notice here that in S. Papaiah [(1997)

7 SCC 614: 1997 SCC (Cri) 1112] , the Magistrate had
rejected an application for reinvestigation filed by the
applicant primarily on the ground that it had no power to
review the order passed earlier. This Court held that it
was not a case of review of an order, but was a case of
further investigation as contemplated under Section 173
of the Code. It permitted further investigation and
directed the report to be filed.

36. Interestingly and more particularly for answering the

question of legal academia that we are dealing with, it
may be noticed that this Court, while pronouncing its
judgment in Hemant Dhasmana v. CBI [(2001) 7 SCC
536 : 2001 SCC (Cri) 1280] has specifically referred to
the judgments S. Papaiah [(1997) 7 SCC 614: 1997
SCC (Cri) 1112] and Bhagwant Singh v. Commr. of
Police [Bhagwant Singh v. Commr. of Police, (1985) 2
SCC 537: 1985 SCC (Cri) 267] . While relying upon the
three-Judge Bench judgment of Bhagwant
Singh [Bhagwant Singh v. Commr. of Police, (1985) 2
SCC 537: 1985 SCC (Cri) 267] , which appears to be a
foundational view for development of law in relation to
Section 173 of the Code, the Court held that the
Magistrate could pass an order for further investigation.
The principal question in that case was whether the
Magistrate could drop the proceedings after filing of a
report under Section 173(2), without notice to the
complainant, but in para 4 of the judgment, the three-
Judge Bench dealt with the powers of the Magistrate as
enshrined in Section 173 of the Code…”

“37. In some judgments of this Court, a view has been

advanced, [amongst others in Reeta Nag v. State of
W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 :
(2009) 3 SCC (Cri) 1051] , Ram Naresh Prasad v. State
of Jharkhand [Ram Naresh Prasad v. State of

42
 WWW.LIVELAW.IN

Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri)

1336. Ed.: Ram Naresh case does not seem to indicate
that the Magistrate cannot suo motu direct further
investigation: rather it seems to indicate that the
Magistrate in fact can do so.] and Randhir Singh
Rana v. State (Delhi Admn.) [Randhir Singh
Rana v. State (Delhi Admn.), (1997) 1 SCC 361] ] that a
Magistrate cannot suo motu direct further investigation
under Section 173(8) of the Code or direct
reinvestigation into a case on account of the bar
contained in Section 167(2) of the Code, and that a
Magistrate could direct filing of a charge-sheet where
the police submits a report that no case had been made
out for sending up an accused for trial. The gist of the
view taken in these cases is that a Magistrate cannot
direct reinvestigation and cannot suo motu direct further
investigation.

38. However, having given our considered thought to

the principles stated in these judgments, we are of the
view that the Magistrate before whom a report under
Section 173(2) of the Code is filed, is empowered in law
to direct “further investigation” and require the police to
submit a further or a supplementary report. A three-
Judge Bench of this Court in Bhagwant
Singh [Bhagwant Singh v. Commr. of Police, (1985) 2
SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain
terms, stated that principle, as aforenoticed.

39. The contrary view taken by the Court in Reeta

Nag [Reeta Nag v. State of W.B., (2009) 9 SCC 129 :
(2009) 3 SCC (Cri) 1051] and Randhir Singh [Randhir
Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361]
do not consider the view of this Court expressed
in Bhagwant Singh [Bhagwant Singh v. Commr. of
Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] . The
decision of the Court in Bhagwant Singh [Bhagwant
Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985
SCC (Cri) 267] in regard to the issue in hand cannot be
termed as an obiter. The ambit and scope of the power
of a Magistrate in terms of Section 173 of the Code was

43
 WWW.LIVELAW.IN

squarely debated before that Court and the three-Judge

Bench concluded as aforenoticed. Similar views having
been taken by different Benches of this Court while
following Bhagwant Singh [Bhagwant Singh v. Commr.
of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] , are
thus squarely in line with the doctrine of precedent. To
some extent, the view expressed in Reeta Nag [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC
(Cri) 1051] , Ram Naresh [Ram Naresh Prasad v. State
of Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri)
1336. Ed.: Ram Naresh case does not seem to indicate
that the Magistrate cannot suo motu direct further
investigation: rather it seems to indicate that the
Magistrate in fact can do so.] and Randhir
Singh [Randhir Singh Rana v. State (Delhi Admn.),
(1997) 1 SCC 361] , besides being different on facts,
would have to be examined in light of the principle of
stare decisis.

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.

44
 WWW.LIVELAW.IN

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.”

xxx xxx xxx

48. What ultimately is the aim or significance of the

expression “fair and proper investigation” in criminal
jurisprudence? It has a twin purpose: Firstly, the
investigation must be unbiased, honest, just and in
accordance with law; secondly, the entire emphasis on
a fair investigation has to be to bring out the truth of the
case before the court of competent jurisdiction. Once
these twin paradigms of fair investigation are satisfied,
there will be the least requirement for the court of law to
interfere with the investigation, much less quash the
same, or transfer it to another agency. Bringing out the
truth by fair and investigative means in accordance with

45
 WWW.LIVELAW.IN

law would essentially repel the very basis of an unfair,

tainted investigation or cases of false implication. Thus,
it is inevitable for a court of law to pass a specific order
as to the fate of the investigation, which in its opinion is
unfair, tainted and in violation of the settled principles of
investigative canons.

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

46
 WWW.LIVELAW.IN

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

47
 WWW.LIVELAW.IN

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].”

34. A Bench of 5 learned Judges of this Court in Hardeep

Singh v. State of Punjab and Ors. (2014) 3 SCC 92 was faced

with a question regarding the circumstances under which the

power under Section 319 of the Code could be exercised to add

a person as being accused of a criminal offence. In the course of

a learned judgment answering the aforesaid question, this Court

first adverted to the constitutional mandate under Article 21 of

the Constitution as follows:

“8. The constitutional mandate under Articles 20 and 21

of the Constitution of India provides a protective
umbrella for the smooth administration of justice making
adequate provisions to ensure a fair and efficacious trial
so that the accused does not get prejudiced after the
law has been put into motion to try him for the offence
but at the same time also gives equal protection to
victims and to society at large to ensure that the guilty
does not get away from the clutches of law. For the
empowerment of the courts to ensure that the criminal
administration of justice works properly, the law was
appropriately codified and modified by the legislature
under CrPC indicating as to how the courts should
proceed in order to ultimately find out the truth so that
an innocent does not get punished but at the same
time, the guilty are brought to book under the law. It is
these ideals as enshrined under the Constitution and
our laws that have led to several decisions, whereby
innovating methods and progressive tools have been

48
 WWW.LIVELAW.IN

forged to find out the real truth and to ensure that the
guilty does not go unpunished.”

In paragraph 34, this Court adverted to Common Cause v.

Union of India (1996) 6 SCC 775, and dealt with when trials

before the Sessions Court; trials of warrant-cases; and trials of

summons-cases by Magistrates can be said to commence, as

follows:

“34. In Common Cause v. Union of India [(1996) 6 SCC

775 : 1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this
Court while dealing with the issue held: (SCC p. 776,
para 1)

“1. II (i) In cases of trials before the Sessions Court the

trials shall be treated to have commenced when
charges are framed under Section 228 of the Code of
Criminal Procedure, 1973 in the cases concerned.

(ii) In cases of trials of warrant cases by Magistrates if

the cases are instituted upon police reports the trials
shall be treated to have commenced when charges are
framed under Section 240 of the Code of Criminal
Procedure, 1973 while in trials of warrant cases by
Magistrates when cases are instituted otherwise than
on police report such trials shall be treated to have
commenced when charges are framed against the
accused concerned under Section 246 of the Code of
Criminal Procedure, 1973.

(iii) In cases of trials of summons cases by Magistrates

the trials would be considered to have commenced
when the accused who appear or are brought before
the Magistrate are asked under Section 251 whether
they plead guilty or have any defence to make.”

(emphasis supplied)

49
 WWW.LIVELAW.IN

The Court then concluded:

“38. In view of the above, the law can be summarised to

the effect that as “trial” means determination of issues
adjudging the guilt or the innocence of a person, the
person has to be aware of what is the case against him
and it is only at the stage of framing of the charges that
the court informs him of the same, the “trial”
commences only on charges being framed. Thus, we do
not approve the view taken by the courts that in a
criminal case, trial commences on cognizance being
taken.”

35. Paragraph 39 of the judgment then referred to the

“inquiry” stage of a criminal case as follows:

“39. Section 2(g) CrPC and the case laws referred to

above, therefore, clearly envisage inquiry before the
actual commencement of the trial, and is an act
conducted under CrPC by the Magistrate or the court.
The word “inquiry” is, therefore, not any inquiry relating
to the investigation of the case by the investigating
agency but is an inquiry after the case is brought to the
notice of the court on the filing of the charge-sheet. The
court can thereafter proceed to make inquiries and it is
for this reason that an inquiry has been given to mean
something other than the actual trial.”

A clear distinction between “inquiry” and “trial” was thereafter set

out in paragraph 54 as follows:

“54. In our opinion, the stage of inquiry does not

contemplate any evidence in its strict legal sense, nor
could the legislature have contemplated this inasmuch
as the stage for evidence has not yet arrived. The only
material that the court has before it is the material
collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether

50
 WWW.LIVELAW.IN

a person, who can be an accused, has been

erroneously omitted from being arraigned or has been
deliberately excluded by the prosecuting agencies. This
is all the more necessary in order to ensure that the
investigating and the prosecuting agencies have acted
fairly in bringing before the court those persons who
deserve to be tried and to prevent any person from
being deliberately shielded when they ought to have
been tried. This is necessary to usher faith in the judicial
system whereby the court should be empowered to
exercise such powers even at the stage of inquiry and it
is for this reason that the legislature has consciously
used separate terms, namely, inquiry or trial in Section
319 CrPC.”

36. Despite the aforesaid judgments, some discordant notes

were sounded in three recent judgments. In Amrutbhai

Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC

177, on the facts in that case, the Appellant/Informant therein

sought a direction under Section 173(8) from the Trial Court for

further investigation by the police long after charges were framed

against the Respondents at the culminating stages of the trial.

The Court in its ultimate conclusion was correct, in that, once the

trial begins with the framing of charges, the stage of investigation

or inquiry into the offence is over, as a result of which no further

investigation into the offence should be ordered. But instead of

resting its judgment on this simple fact, this Court from

paragraphs 29 to 34 resuscitated some of the earlier judgments

51
 WWW.LIVELAW.IN

of this Court, in which a view was taken that no further

investigation could be ordered by the Magistrate in cases where,

after cognizance is taken, the accused had appeared in

pursuance of process being issued. In particular, Devarapalli

Lakshminarayana Reddy (supra) was strongly relied upon by

the Court. We have already seen how this judgment was

rendered without adverting to the definition of “investigation” in

Section 2(h) of the CrPC, and cannot therefore be relied upon as

laying down the law on this aspect correctly. The Court therefore

concluded:

“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 therefor to the learned Magistrate after
cognizance has been taken on the basis of the earlier
report, process has been issued and the 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 can 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.

52
 WWW.LIVELAW.IN

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 authorised
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 manifestly
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 CrPC 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 CrPC to order further investigation even
after the cognizance is taken, the 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 CrPC adumbrated hereinabove.
Additionally had it been the intention of the legislature to

53
 WWW.LIVELAW.IN

invest such a power, in our estimate, Section 173(8)

CrPC 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 [Bhagwant
Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985
SCC (Cri) 267] , 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 CrPC, 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.”

37. This judgment was followed in a recent Division Bench

judgment of this Court in Athul Rao v. State of Karnataka and

54
 WWW.LIVELAW.IN

Anr. (2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout

v. State through the Secretary (Home), Government of NCT

of Delhi (2019) 5 SCC 542, after referring to a number of

decisions this Court concluded as follows:

“7. Considering the law laid down by this Court in the

aforesaid decisions and even considering the relevant
provisions of CrPC, namely, Sections 167(2), 173, 227
and 228 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)
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 been satisfied with the
investigation on considering the report forwarded by the
police under Section 173(2)(i) 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 pre-cognizance 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) CrPC, the learned Magistrate in exercise of the
powers under Section 227 CrPC discharges the
accused, thereafter, it will not be open for the

55
 WWW.LIVELAW.IN

Magistrate to suo motu 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 post-cognizance stage. There is
a distinction and/or difference between the pre-
cognizance stage and post-cognizance stage and the
powers to be exercised by the Magistrate for further
investigation at the pre-cognizance stage and post-
cognizance stage. The power to order further
investigation which may be available to the Magistrate
at the pre-cognizance stage may not be available to the
Magistrate at the post-cognizance 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) CrPC, as
observed by this Court in a 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
motu order further investigation by the investigating
agency. Once the order of discharge is passed,
thereafter the Magistrate has no jurisdiction to suo
motu 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 CrPC.
However, at the same time, considering the provisions
of Section 173(8) 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

56
 WWW.LIVELAW.IN

the same may be considered by the learned Magistrate

thereafter in accordance with law. The Magistrate
cannot suo motu direct for further investigation under
Section 173(8) CrPC or direct reinvestigation into a
case at the post-cognizance stage, more particularly
when, in exercise of powers under Section 227 CrPC,
the Magistrate discharges the accused. However,
Section 173(8) CrPC confers power upon the officer in
charge of the police station to further investigate and
submit evidence, oral or documentary, after forwarding
the report under sub-section (2) of Section 173 CrPC.
Therefore, it is always open for the investigating officer
to apply for further investigation, even after forwarding
the report under sub-section (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 in charge and the Magistrate has
no jurisdiction to suo motu pass an order for further
investigation/reinvestigation after he discharges the
accused.”

Realising the difficulty in concluding thus, the Court went on to

hold:

“10. 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) CrPC and thereafter the
learned Magistrate to consider the same in accordance
with law and on its own merits.”

38. There is no good reason given by the Court in these

decisions as to why a Magistrate’s powers to order further

57
 WWW.LIVELAW.IN

investigation would suddenly cease upon process being issued,

and an accused appearing before the Magistrate, while

concomitantly, the power of the police to further investigate the

offence continues right till the stage the trial commences. Such a

view would not accord with the earlier judgments of this Court, in

particular, Sakiri (supra), Samaj Parivartan Samudaya (supra),

Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep

Singh (supra) having clearly held that a criminal trial does not

begin after cognizance is taken, but only after charges are

framed. What is not given any importance at all in the recent

judgments of this Court is Article 21 of the Constitution and the

fact that the Article demands no less than a fair and just

investigation. To say that a fair and just investigation would lead

to the conclusion that the police retain the power, subject, of

course, to the Magistrate’s nod under Section 173(8) to further

investigate an offence till charges are framed, but that the

supervisory jurisdiction of the Magistrate suddenly ceases mid-

way through the pre-trial proceedings, would amount to a

travesty of justice, as certain cases may cry out for further

investigation so that an innocent person is not wrongly arraigned

as an accused or that a prima facie guilty person is not so left

58
 WWW.LIVELAW.IN

out. There is no warrant for such a narrow and restrictive view of

the powers of the Magistrate, particularly when such powers are

traceable to Section 156(3) read with Section 156(1), Section

2(h), and Section 173(8) of the CrPC, as has been noticed

hereinabove, and would be available at all stages of the progress

of a criminal case before the trial actually commences. It would

also be in the interest of justice that this power be exercised suo

motu by the Magistrate himself, depending on the facts of each

case. Whether further investigation should or should not be

ordered is within the discretion of the learned Magistrate who will

exercise such discretion on the facts of each case and in

accordance with law. If, for example, fresh facts come to light

which would lead to inculpating or exculpating certain persons,

arriving at the truth and doing substantial justice in a criminal

case are more important than avoiding further delay being

caused in concluding the criminal proceeding, as was held in

Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent

that the judgments in Amrutbhai Shambubhai Patel (supra),

Athul Rao (supra) and Bikash Ranjan Rout (supra) have held

to the contrary, they stand overruled. Needless to add, Randhir

Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361

59
 WWW.LIVELAW.IN

and Reeta Nag v. State of West Bengal and Ors. (2009) 9

SCC 129 also stand overruled.

39. We now come to certain other judgments that were cited

before us. King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC

18, was strongly relied upon by Shri Basant for the proposition

that unlike superior Courts, Magistrates did not possess any

inherent power under the CrPC. Since we have grounded the

power of the Magistrate to order further investigation until

charges are framed under Section 156(3) read with Section

173(8) of the CrPC, no question as to a Magistrate exercising

any inherent power under the CrPC would arise in this case.

40. Union of India and Anr. v. W.N Chadha (1993) Supp. 4

SCC 260, is a judgment which states that the accused has no

right to participate in the investigation till process is issued to

him, provided there is strict compliance of the requirements of

fair investigation Likewise, the judgments in Smt. Nagawwa v.

Veeranna Shivalongappa Konjalgi & Ors. (1976) 3 SCC 736,

Prabha Mathur and Anr. v. Pramod Aggarwal & Ors., (2008) 9

SCC 469, Narender G. Goel v. State of Maharashtra (2009) 6

SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat

60
 WWW.LIVELAW.IN

& Ors. (2014) 4 SCC 626, which state that the accused has no

right to be heard at the stage of investigation, has very little to do

with the precise question before us. All these judgments are,

therefore, distinguishable. Further, Babubhai v. State of

Gujarat & Ors. (2010) 12 SCC 254, is a judgment which

distinguishes between further investigation and re-investigation,

and holds that a superior court may, in order to prevent

miscarriage of criminal justice if it considers necessary, direct

investigation de novo, whereas a Magistrate’s power is limited to

ordering further investigation. Since the present case is not

concerned with re-investigation, this judgment also cannot take

us much further. Likewise, Romila Thapar v. Union of India,

(2018) 10 SCC 753, held that an accused cannot ask to change

an investigating agency, or to require that an investigation be

done in a particular manner, including asking for a court-

monitored investigation. This judgment also is far removed from

the question that has been decided by us in the facts of this

case.

41. When we come to the facts of this case, it is clear that the

FIR dated 22.12.2009 is concerned with two criminal acts,

61
 WWW.LIVELAW.IN

namely, the preparing of fake and bogus ‘Satakhat’ and Power-

of-Attorney in respect of the agricultural land in question, and the

demanding of an amount of Rs. 2.5 crores as an attempt to

extort money by the accused persons. The facts that are alleged

in the application for further investigation are facts which pertain

to revenue entries having been made in favour of Ramanbhai

Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how

their claim over the same land is false and bogus. Shri Basant is,

therefore, right in submitting that the facts alleged in the

applications for further investigation are really in the nature of a

cross-FIR which has never been registered. In fact, the

communication of the Commissioner of Revenue, Gujarat dated

15.03.2011 to the Collector, Surat - so strongly relied upon by

Shri Dushyant Dave - bears this out. In this communication, the

learned Commissioner doubts that a particular order dated

14.04.1976 passed by a revenue authority ever existed, and that

by making an application in the name of the long since deceased

Bhikhabhai Khushalbhai in 2010, for getting a copy of Form No.3

would, prima facie, amount to a criminal offence. Further, the

learned Commissioner goes on to state that Bhikiben

(Bhikhabhai’s widow), who had passed away in December 1999,

62
 WWW.LIVELAW.IN

could not possibly have made an application in the year 2000;

which shows that her signature is also prima facie forged.

Further, the said Ramanbhai and Shankarbhai Patel are at

present 48 and 53 years old, and if they could be said to be in

possession of the said agricultural land since 1934, they could be

said to be in possession at a time when they were not yet born.

Further, since these two gentlemen were abroad from the very

beginning, it is stated that they could not possibly be farmers

cultivating agricultural land. For these, and various other

reasons, the Commissioner concluded:

“Thus, looking to all the aforesaid particulars, as per the

submission made by the lady applicant, scam has been
made in respect of her land by creating false bogus
cases/resolutions/orders passed or by forging fake
documents. Submission is made for initiating criminal
proceedings against all those who are involved in such
scam and whether there is substance in this matter or
not? Thorough inquiry be made in that connection at
your level. Till the real particulars in this matter are not
becoming clear, it is appearing necessary to stop the
NA Permission/Construction activities. Therefore, after
making necessary proceedings in that regard, detailed
report having basis of the proceedings done is to be
immediately submitted to the undersigned and
periodical information of the proceedings done in this
matter also be given to the undersigned.”

42. Given the allegations in the communication of 15.03.2011,

we are of the view that this is not a case which calls for any

63
 WWW.LIVELAW.IN

further investigation into the facts alleged in the FIR lodged on

22.12.2009. Yet, having regard to what is stated by the learned

Commissioner in the said letter, we are of the view that the police

be directed to register an FIR qua these facts, which needs to be

investigated by a senior police officer nominated by the

concerned Commissioner of Police.

43. We, therefore, set aside the impugned High Court

judgment insofar as it states that post-cognizance the Magistrate

is denuded of power to order further investigation. However,

given that the facts stated in the application for further

investigation have no direct bearing on the investigation

conducted pursuant to the FIR dated 22.12.2009, we uphold the

impugned High Court judgment insofar as it has set aside the

judgment of the Second Additional Sessions Judge dated

10.01.2012 which had ordered further investigation, and also the

consequential order setting aside the two additional interim

reports of the IO Munshi. So far as Criminal Revision Application

No.346 of 2011 is concerned, we set aside the impugned High

Court judgment which remanded the matter to the revisional

court. Consequently, the judgment of the learned Additional

64
 WWW.LIVELAW.IN

Sessions Judge dated 23.04.2016 upon remand is also set

aside, rendering Special Criminal Application No.3085 of 2016

infructuous.

44. However, given the serious nature of the facts alleged in

the communication of the Commissioner of Revenue dated

15.03.2011, we direct that the police register an FIR based on

this letter within a period of one week from the date of this

judgment. This FIR is to be enquired into by a senior police

officer designated by the concerned Commissioner of Police,

who is to furnish a police report pursuant to investigation within a

period of three months from the date on which such officer is

appointed to undertake such investigation. If such police report

results in a prima facie case being made out, and if the Judicial

Magistrate takes cognizance of such charge-sheet, charges will

then be framed and trial held. In the meanwhile, the trial in FIR

dated 22.12.2009, which has been stayed by this Court by an

order dated 24.04.2019, will not be commenced until the police

report is submitted in the FIR to be lodged by the police pursuant

to this judgment. The learned Magistrate may then decide, in the

event that cognizance is taken of the police report in the FIR to

65
 WWW.LIVELAW.IN

be filed, as to whether a joint-trial should take place, or whether

separate trials be conducted one after the other pursuant to both

the FIRs.

45. With these observations, these appeals are disposed of.

…………………………J.
(R.F. Nariman)

…………………………J.
(Surya Kant)

…………………………J.
New Delhi (V. Ramasubramanian)
October 16, 2019.

66