Monday, February 20, 2017

State of Gujarat V.S Maliben Nathubhai (D) Through LRs February 1, 2017


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4164 OF 2007

State of Gujarat


Maliben Nathubhai (D) Through  LRs & Ors.                …Respondents

                               J U D G M E N T

Madan B. Lokur, J.

1.    Bhulabhai Bhikhabhai was the owner of landed property  including  open
land being  Survey  No.74  admeasuring  4350  sq.  meters  in  Jehangirabad,
District Surat (Gujarat).  He died  intestate on 17th January, 1947  leaving
behind his widow Harkhiben (who died on 13th February, 1957)  and  two  sons
Narsinbhai  (who died on 22nd  April,  1969  without  any  issue),  Balubhai
(died on 16th November, 1991) and two daughters – Gangaben  (represented  by
her legal representatives) and Maliben Nathubhai  (now  represented  by  her
legal representatives).

2.    On the death of  Bhulabhai  Bhikhabhai  his  two  sons  inherited  his
estate and when the Urban Land  (Ceiling  and  Regulation)  Act,  1976  (for
short the  Act)  came  into  force,  Balubhai  the  only  surviving  son  of
Bhulabhai  Bhikhabhai  and  brother  of  Gangaben  and   Maliben   filed   a
declaration form on 10th August, 1976 under Section 6(1)  of  the  Act.   He
filed the declaration as owner of the entire land and on behalf of  his  own
family.  His sisters Gangaben and Maliben did not make any claim in  respect
of the land in question and the  revenue  records  at  that  point  of  time
reflected only the names of the sons of Bhulabhai Bhikhabhai  and  not  that
of his two daughters.

3.    The declaration made by Balubhai was taken  up  for  consideration  by
the Competent Authority and Deputy  Collector  who  passed  an  order  under
section 8(4) of the Act  on  16th  December,  1983  in  ULC  Case  No.1/1900
declaring about 3426 sq. mtrs. of land as surplus  land.  This was  followed
by Notifications under Sections 10(1) and 10(3) of the Act in  the  Official
Gazette on 6th January, 1984 and 13th July, 1984.  The sisters  of  Balubhai
(that is Gangaben and Maliben) did not make any claim before  the  Competent
Authority and Deputy Collector in respect of the surplus land.

4.    Thereafter, the State of Gujarat issued a  notice  to  Balubhai  under
Section 10(5) of the Act on 17th August, 1984 to  hand  over  possession  of
the surplus land.
5.    Feeling aggrieved by the decision rendered by the Competent  Authority
and Deputy Collector as well as the notice issued by the State  for  handing
over possession of the surplus land, Balubhai filed Appeal No. 1478 of  1984
under Section 33 of the Act before the Urban Land Tribunal  challenging  the
order dated 16th December, 1983 read with notice dated 17th August, 1984.
 6.   It appears that despite adequate opportunities given  to  Balubhai  to
represent his case before the Tribunal, he did not remain  present  and  the
appeal was taken up ex parte by the Tribunal  and  dismissed  on  merits  on
19th January, 1988.   Subsequently,  on  27th  June,  1990  the  State  took
possession of the surplus land and this action of the  State  has  not  been
challenged or disputed by Balubhai (who  later  expired  on  16th  November,
1991)  or  his  legal  representatives.  Effectively,  therefore,   Balubhai
accepted that about 3426 sq. mts. of land in his hands was surplus  and  was
rightly taken possession of by the  State.   According  to  the  State,  the
surplus land was allotted to the weaker  sections  of  society  sometime  in

7.    After the demise of both brothers Narsinbhai and  Balubhai  and  their
sister Gangaben, Special Civil Suit No.525 of 1991 was filed by Maliben  and
the children of Gangaben on  2nd  December,  1991  before  the  Civil  Judge
(Senior Division), Surat.  It appears that the suit  was  for  partition  of
the property bearing Survey No.74 in Jehangirabad and a challenge  was  also
made to the legality and validity  of  the  proceedings  undertaken  by  the
Competent Authority and Deputy Collector in respect of the surplus land  and
thereby an injunction was sought restraining  the  Competent  Authority  and
Addl. Collector from taking possession of the suit property.   According  to
Maliben and the children of Gangaben (the plaintiffs) they had  an  interest
through Harkhiben in suit property of  Bhulabhai  Bhikhabhai  who  had  died
intestate sometime in 1947.   Along with the plaint,  the  plaintiffs  filed
an application for interim injunction but that was dismissed by the  learned
Civil Judge (Senior Division)  on  9th  December,  1991.  It  is  not  clear
whether the civil suit was thereafter pursued by the plaintiffs.
8.    However, soon after the  rejection  of  the  application  for  interim
injunction, the plaintiffs preferred ULC Appeal No.102 of  1991  before  the
Urban Land Tribunal challenging the order dated 16th December,  1983  passed
by the Competent Authority and Deputy  Collector  whereby  it  was  declared
that 3426 sq. mtrs. of land was surplus land in the hands of  Balubhai.   It
may be noticed that this appeal was filed  after  a  lapse  of  about  eight
years and after proceedings in respect of the  order  dated  16th  December,
1983 had already come to an end on 19th January, 1988 when the appeal  filed
by Balubhai before the Urban Land Tribunal was dismissed.
 9.   Despite the delay of about eight years in filing the  appeal,  it  was
entertained by the Urban Land Tribunal  and  allowed  (after  condoning  the
delay) on 31st March, 1992.  The conclusion arrived at by the  Tribunal  was
that Gangaben and Maliben were each entitled to one unit of land out of  the
land owned by their father  Bhulabhai.   Effectively  therefore,  the  Urban
Land Tribunal set aside its earlier order of 19th January, 1988.
10.   Feeling aggrieved by the order passed by the Urban Land Tribunal,  the
State approached the Gujarat High  Court  by  filing  SCA  No.2144  of  1993
challenging the correctness of the order dated 31st March,  1992  passed  by
the Tribunal.  It was submitted in the appeal, inter alia,  that  the  order
dated 16th December, 1983 passed  by  the  Competent  Authority  and  Deputy
Collector had attained finality  when  the  Tribunal  dismissed  the  appeal
directed against that order on 19th January, 1988.  It  was  also  submitted
that the surplus land had already been allotted to persons belonging to  the
weaker sections of society.

11.   The learned Single Judge considered the grievances of  the  State  and
took the view, in the judgment and order dated 4th July, 2000 that the  plea
taken by the State for allotment of land to weaker sections of  society  was
a new plea and need not be entertained. Other pleas advanced  by  the  State
were not dealt with.

12.   The State preferred a Letters Patent Appeal against the  judgment  and
order dated 4th July, 2000 passed  by  the  learned  Single  Judge  but  the
appeal  was  held  to  be  not  maintainable.   Effectively  therefore,  the
challenge before us is to the  judgment  and  order  dated  4th  July,  2000
passed by the learned Single Judge.

13.   It is submitted before us by learned counsel for  the  appellant  that
three issues arise for our consideration.  The first issue  relates  to  the
question whether the plaintiffs are entitled to  a  share  in  the  property
(through Harkhiben) of Bhulabhai Bhikhabhai who died intestate  sometime  in
1947.  The second issue is whether the plaintiffs could have  maintained  an
appeal before the Tribunal against the order of the Competent Authority  and
Deputy Collector after a lapse of about eight years.   Thirdly,  when  under
the provisions of the Act  since  every  claimant  is  required  to  file  a
declaration under Section 6(1) thereof and  Gangaben  and  Maliben  did  not
file any such declaration,  whether  they  could  claim  any  right  in  the
property of their father.
14.   Having heard learned counsel for the parties, we are of  opinion  that
Bhulabhai Bhikhabhai having died sometime in 1947  when  two  of  his  sons,
that is, Narsinbhai and Balubhai were  still  alive  neither  Harkhiben  nor
Gangaben and Maliben had  any  claim  in  the  suit  property  of  Bhulabhai
Bhikhabhai under Hindu Law. Indeed, we must point out that neither  Gangaben
nor Maliben claimed any direct share in the suit property – they  claimed  a
share through their mother Harkhiben but there is nothing  to  even  suggest
how Harkhiben acquired any share in the suit property. Such an  averment  is
completely missing from the pleadings of the plaintiffs.

15.   Learned counsel for the plaintiffs has been  unable  to  show  us  any
decision or any other material to substantiate his claim that on  the  death
of Bhulabhai, his widow Harkhiben acquired the  suit  property  and  on  her
death in 1957, after the Hindu Succession Act,  1956  came  into  operation,
Gangaben  and  Maliben  acquired  a  share  in  the  suit  property  through
Harkhiben.  The submission of learned counsel  proceeds  on  the  assumption
that on the death of Bhulabhai Bhikhabhai the suit property devolved  solely
upon his widow Harkhiben. There is no such averment made  anywhere,  nor  is
it substantiated in any manner. Learned counsel has not been  able  to  show
us any decision or any other material to show that this was the position  in
Hindu Law in 1947 when Bhulabhai Bhikhabhai died intestate.   On  the  other
hand, upon the death of the Karta of a joint family, his share will  devolve
only upon the remaining coparceners which in the present case were  the  two
sons of Bhulabhai Bhikhabhai. It  is  therefore  quite  clear  that  neither
Harkhiben nor Gangaben and Maliben had any share in Survey  No.74  which  is
the land in question.
16.   We are also of opinion that the Tribunal was in error in  entertaining
the appeal filed by the plaintiffs after a gap of  about  eight  years  from
the passage of  the  order  dated  16th  December,  1983  by  the  Competent
Authority and Deputy Collector. The delay was  totally  inexplicable.   That
apart, the order dated 16th December, 1983 had merged with the order  passed
by the Tribunal  on  19th  January,  1988.  That  being  the  position,  the
Tribunal  could  not  have  reopened  the  proceedings  which  had   already
terminated before it.  It has been held in Kunhayammed and Ors. v. State  of
Kerala & Ors.[1] that the principle of merger of an order with the order  of
a superior  court  would  apply  equally  to  orders  passed  by  tribunals.
Therefore there can be no doubt that the  order  passed  on  16th  December,
1983 by the Competent Authority and Deputy Collector merged with  the  order
of the Tribunal passed on  19th  January,  1988  and  which  order  attained
17.   In paragraphs 12 and 44(i) of the Report, it was held as under:
“The logic underlying the doctrine of merger is that there  cannot  be  more
than one decree or operative orders governing the same subject-matter  at  a
given point of time. When a decree or order passed  by  an  inferior  court,
tribunal or authority was subjected to a  remedy  available  under  the  law
before a superior forum then, though the decree  or  order  under  challenge
continues to be effective and binding, nevertheless its finality is  put  in
jeopardy. Once the superior court has disposed of the lis before  it  either
way — whether the decree or order under appeal is set aside or  modified  or
simply confirmed, it is the decree or order of the superior court,  tribunal
or authority which is the final,  binding  and  operative  decree  or  order
wherein merges the decree or order passed by  the  court,  tribunal  or  the
authority below. However, the doctrine is  not  of  universal  or  unlimited
application. The nature of jurisdiction exercised by the superior forum  and
the content or subject-matter of challenge laid or  which  could  have  been
laid shall have to be kept in view.”

 “(i) Where an appeal or revision is provided against an order passed  by  a
court, tribunal or any  other  authority  before  superior  forum  and  such
superior forum modifies, reverses or  affirms  the  decision  put  in  issue
before it, the decision by the subordinate forum merges in the  decision  by
the superior forum and it is the latter which  subsists,  remains  operative
and is capable of enforcement in the eye of law.”

18.   Finally, in our view if the plaintiffs did in fact  claim  to  have  a
right in the property of Bhulabhai Bhikhabhai, they ought to  have  filed  a
declaration under Section 6(1) of the Act. That they  did  not  do  so  when
they attained the age of majority is  a  clear  indication  that  they  were
fully aware that they had no right in the property of  Bhulabhai  Bhikhabhai
who died intestate sometime  in  1947.   By  filing  an  appeal  before  the
Tribunal in 1991, the plaintiffs sought to make a claim, by a side-wind,  on
the suit property without even by filing a declaration  under  Section  6(1)
of the Act.  Surely, they cannot be permitted to  indirectly  make  a  claim
which they failed to make directly.
19.   Whichever way the issues are looked at, we  have  no  doubt  that  the
Urban Land Tribunal was in error in entertaining the  proceedings  initiated
by the plaintiffs in 1991  against  the  order  dated  16th  December,  1983
passed by the Competent Authority and  Deputy  Collector.   That  being  the
position, the orders passed by the Tribunal on 31st March, 1992 and  by  the
High Court by the impugned order upholding the order passed by the  Tribunal
deserve to be and are set aside.
20.   The appeal is allowed.  There will be no order as to costs.

                                                ( Madan B. Lokur )

New Delhi;                                         ( Prafulla C. Pant )
February  1, 2017

                       [2] (2000) 6 SCC 359



                             IN THE SUPREME COURT OF INDIA
                            CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1171 OF 2016
              (ARISING OUT OF S.L.P (CRIMINAL) NO.3338 OF 2015)


                               J U D G M E N T

      The assail is of the verdict dated 10.04.2015  rendered  by  the  High
Court, setting at naught the order  dated  27.5.2014  passed  by  the  Chief
Judicial Magistrate, Gandhinagar, whereby the Trial Court  had  allowed  the
application filed by the appellant, the original  informant,  under  Section
173(8) of the Code of  Criminal  Procedure,  1973  (for  short,  hereinafter
referred to as “the  Code/1973  Code”)  for  further  investigation  by  the

2.    We have heard  Mr.  Sanjay  Hegde,  learned  senior  counsel  for  the
appellant  and  M/s.   Zakir  Hussain,  Nitya  Ramakrishan,    and    Shamik
Sanjanwala, learned counsel for the respondent Nos. 1,2 and 3 respectively.
3.    The facts indispensable for the present  adjudication,  portray   that
the appellant had lodged a First Information  Report  (for  short  hereafter
referred to as “FIR”) against the respondents under Sections 406, 420,  426,
467, 468, 471, 477B and 120B of  the  Indian  Penal  Code  (for  short  also
referred  to  as  “IPC”).   The  materials  offered  in  the  FIR  and   the
investigation by the  police  that  followed,  divulged  that  there  was  a
dispute between the parties relating  to  agricultural  land  and  that  the
appellant/informant  had  alleged  forgery  of  the  signatures  and   thumb
impression of his  as  well  as  of  his  family  members  in  the  register
maintained by the Notary (Public).  After the  charge-sheet  was  submitted,
charge  was  framed  against  the  respondents  and  they  stood  the  trial
accordingly, as they denied the imputations.  As  would  be  gleanable  from
the  records,  the  oral  evidence  of  the  appellant/first  informant  was
concluded on 03.07.2012 followed  by that of the  investigating  officer  of
the  case  on  10.09.2013.   Subsequent  thereto,  the  statements  of   the
respondents were recorded under Section 313 Cr.PC on 03.12.2013,  whereafter
an application was filed at the culminating  stages  of  the  trial  by  the
appellant/informant seeking a direction under Section 173(8) from the  Trial
Court for further investigation by the police and in particular to call  for
a report from the Forensic Science  Laboratory  as  regards  one  particular
page of the  register  of  the  Notary  (Public),  which  according  to  the
appellant/informant was of debatable authenticity, as it  appeared  to  have
been  affixed/pasted  with  another  page  thereof.   To  be  precise,  this
application was filed  at  a  stage  when  the  case  was  fixed  for  final
4.    The Trial Court, however, by  the  order  impeached  before  the  High
Court granted the prayer made and issued  a  direction  to  the  police  for
further  investigation.  Significantly,  prior  thereto  in  Special   Leave
Petition  being  SLP  (Crl.)  No.9106  of  2010,  this  Court  had  directed
expeditious disposal of the trial. It is also worthwhile to record that  the
application filed by the appellant/informant under Section 173(8)  of  Cr.PC
had been opposed by the respondents herein, who being dissatisfied with  the
order of the Trial Court, thus impugned the same before the High Court.
5.    The High Court, as the impugned decision would  disclose  exhaustively
examined the purport of Section 173(8) in  the  particular  context  of  the
scope of further investigation by  the  police  after  it  had  submitted  a
charge sheet and the Trial Court had taken cognizance on the  basis  thereof
and had proceeded with the trial, following the appearance  of  the  accused
persons. It, amongst others  took  note  of  the  41st  Report  of  the  Law
Commission of India which after reflecting on the oftly adopted view of  the
Courts that once a final report under Section 173 had been submitted by  the
police,  the  latter  could  not  touch  the  case  again  and  reopen   the
investigation, recommended that it ought to be made  clear  that  under  the
said provision of the Code, it was  still  permissible  for  the  police  to
examine any evidence even after the submission of the  charge-sheet  and  to
submit a report to the Magistrate.  Thus, the Law Commission's emphasis  was
to obviate any hindrance in the way of the investigating  agency,  which  in
certain fact situations could be unfair to the prosecution  as  well  as  to
the accused.
6.     The  High  Court  having  regard  to  this  recommendation  and   the
incorporation of Section 173(8) as a  sequitur  thereof  held  that  it  was
permissible for the investigating officer or the  officer-in-charge  of  the
police station to undertake a further investigation even  after  the  filing
of the charge sheet, but neither the informant nor the accused  could  claim
as a matter of right, any direction from the Court  directing  such  further
investigation under the said provision after a charge-sheet was filed.   The
High Court traced the law as expounded by this Court from its renderings  in
Ram Lal Narang v. State (Delhi Administration), (1979) 2 SCC  322  vis-à-vis
the scope and purport of Section 173 of  Cr.P.C. in particular, qua  further
investigation by the police after it had submitted charge-sheet in  a  case.
The exposition by  this  Court  in  Ram  Lal  Narang  (supra)  that  neither
Sections 173 nor 190 of the Code of Criminal  Procedure,  1898  did  suggest
exhaustion of the power of the police to further investigate even after  the
Magistrate had taken cognizance of the offence already on  record  and  that
the police could exercise such  right  as  often  as  necessary  when  fresh
information  would  come  to  light  and  it   desired   to   make   further
investigation was noted. However, while doing so, it was  observed  that  in
deference to the Court, the police  ought  to  ordinarily  seek  its  formal
permission  to  make  further  investigation.  The  High   Court   in   this
perspective, observed that a further investigation could in a given  factual
setting, sub-serve the interest of the prosecution and even of the  defence.

7.    The High Court in its verdict also adverted to  the  decision  of  the
Privy Council in King Emperor v. Khwaja Nazir Ahmad,  AIR  1945  PC18  which
stressed upon the restraint of the judiciary against interference  with  the
police in matters which were within its province, holding that the roles  of
these two institutions  were  complementary  and  not  overlapping,  subject
however to the right of the Courts to intervene in an appropriate  case  for
directions in the nature of habeas corpus.
8.    The decision of this Court in Abhinandan Jha & Ors. v. Dinesh  Mishra,
AIR 1968 SC 117 to the effect that  the  Magistrate  could  not  direct  the
police  the course of investigation or to submit a charge-sheet when it  had
already submitted a final report, was referred to  as  well.   Reference  to
the explication of law laid down by this Court  in  Randhir  Singh  Rana  v.
State (Delhi Administration), (1997)1 SCC 361 on the powers available  to  a
Magistrate at different stages of a case before him in the singular  context
of its competence to direct further investigation  with  reference  thereto,
was relied upon. It was noted as well that a Magistrate, of his  own,  could
not order further investigation after an accused, pursuant  to  the  process
issued against him on the basis of the charge-sheet already  submitted,  had
appeared in the case.
9.    The pronouncement of this Court  in  Hasanbhai  Valibhai  Qureshi   v.
State of Gujarat and others, (2004) 5 SCC 347 ruling  that  the  police  had
the power to conduct further investigation de hors any  direction  from  the
Court even after it had taken cognizance was relied upon  to  reinforce  its
10.   The enumeration of this Court in Reeta Nag v. State of West  Bengal  &
Ors., (2009) 9 SCC 129 also to the same effect was  adverted  to.  The  High
Court thus deduced on the basis of an in-depth survey of the state  of  law,
as above, on the import and ambit of Section 173(8) Cr.P.C. that in  absence
of any application  or  prayer  made  by  the  investigating  authority  for
further investigation in the case, the Trial Court  had  erred  in  allowing
the application filed by the appellant/informant for the same.
11.   Without prejudice to this finding, the High Court was further  of  the
view that having regard to the sequence of events and the delay on the  part
of the informant to make such a prayer at the closing stages of  the  trial,
it was not entertainable.  In  arriving  at  this  determination,  the  High
Court, amongst others marked that the evidence  of  the  appellant/informant
had been recorded in the year 2012 when he did have  sufficient  opportunity
to scrutinise the document in question  but  for  inexplicable  reasons  did
wait  for  more  than  two  years  to  register  the  prayer   for   further
investigation. It was of the view that the  attendant  factual  setting  did
not demonstrate any defective investigation which demanded curation  through
a further drill and that in any view of the matter, additional  report  from
the Forensic Science Laboratory had not been called for. This  is  more  so,
as in the view of  the  High  Court,  the  entire  register  of  the  Notary
(Public) had been seized by the investigating officer and that  any  unusual
or suspicious feature therein would have been certainly examined by the  FSL
and  findings  in  connection  therewith  recorded.  The  High  Court   thus
interfered  with  the   order   of   the   Magistrate   permitting   further
investigation by  the  police  in  the  case  and  ordered  for  expeditious
disposal of the trial.
12.   Whereas the learned senior counsel for the appellant  has  strenuously
urged that the impugned order is  patently  indefensible,  inasmuch  as,  if
maintained, it would result in travesty of justice and  that  not  only  the
Trial Court was within its competence to order further investigation in  the
attendant facts and  circumstances  but  also  the  same  was  essential  to
unravel the truth bearing on the charge levelled  against  the  respondents-
accused, the impugned order has been endorsed on behalf of  the  respondents
pleading that the same has been in abidance  of  the  consistent  judicially
pronounced postulations qua the scope and purport of Section 173(8)  Cr.P.C.
and that no interference therewith is warranted.
13.   Having regard to the contentious assertions, expedient it would be  to
retrace the law propounded by  this  Court  on  the  import  and  impact  of
Section 173  Cr.PC, with particular reference to  sub-Section  (8)  thereof.
For immediate reference, the afore-stated provision is extracted in full  as
“173. Report of police officer on completion  of  investigation.-  (1) Every
investigation under this Chapter  shall  be  completed  without  unnecessary

(1A)  The investigation in relation to rape of  a  child  may  be  completed
within three months from the date on which the information was  recorded  by
the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer  in  charge  of  the  police
station shall forward to a Magistrate empowered to take  cognizance  of  the
offence on a police report, a report in the form  prescribed  by  the  State
Government, stating-

(a) the names of the parties;
(b) the nature of the information;
(c) the  names  of  the  persons  who  appear  to  be  acquainted  with  the
circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if  so,  weather  with  or
without sureties;
(g) whether he has been forwarded in custody under section 170;
(h) whether the  report  of  medical  examination  of  the  woman  has  been
attached where investigation relates to an offence under section 376,  376A,
376B, 376C or 376D of the Indian Penal Code (45 of 1860).

(ii) The  officer  shall  also  communicate,  in  such  manner  as  may   be
prescribed by the State Government, the action taken by him, to the  person,
if any, by whom the information relating to the commission  of  the  offence
was first given.

(3) Where a superior officer of police  has  been  appointed  under  section
158, the report, shall, in  any  case  in  which  the  State  Government  by
general or special order so directs, be submitted through that officer,  and
he may, pending the orders of the Magistrate, direct the officer  in  charge
of the police station to make further investigation,

(4) Whenever it appears from a report forwarded under this section that  the
accused has been released on his bond, the Magistrate shall make such order-
 for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section  170  applies,
the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts  thereof  on  which  the  prosecution
proposes to rely other than those already  sent  to  the  Magistrate  during

(b) the statements- recorded under section 161 of all the persons  whom  the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such  statement
is not relevant to the subject-  matter  of  the  proceedings  or  that  its
disclosure to the accused is not essential in the interests of  justice  and
is inexpedient in the public interest, he shall indicate that  part  of  the
statement and append a note requesting the Magistrate to exclude  that  part
from the copies to be granted to the accused and  stating  his  reasons  for
making such request.

(7) Where the police officer investigating the case finds it  convenient  so
to do, he may furnish to the accused copies of all or any of  the  documents
referred to in sub- section (5).

(8) Nothing  in  this  section  shall  be   deemed   to   preclude   further
investigation in respect of an offence after a  report  under  sub-  section
(2)  has  been  forwarded  to  the   Magistrate   and,   where   upon   such
investigation, the officer in charge of the police station  obtains  further
evidence, oral or documentary, he shall forward to the Magistrate a  further
report or reports regarding such evidence in the form  prescribed;  and  the
provisions of sub- sections (2) to (6) shall, as far as  may  be,  apply  in
relation to such report or reports as they apply in  relation  to  a  report
forwarded under sub- section (2).”

14.   It would be appropriate at this juncture  to  set  out  as  well   the
Section 173 of the Code of Criminal Procedure 1898.

“Section 173. Report of police-officer.-

(1) Every investigation under  this  Chapter  shall   be  completed  without
unnecessary delay, and, as soon as it is completed, the officer   in  charge
of the police-station shall-

(a) forward to a Magistrate empowered to take cognizance of  the offence  on
a police-report a report, in the form prescribed by  the  State  Government,
setting forth the names of the parties, the nature of  the  information  and
the names of the persons who appear to be acquainted with the  circumstances
of the case, and  stating  whether  the  accused   (if  arrested)  has  been
forwarded in custody, or has  been   released  on  his  bond,  and,  if  so,
whether with or without  sureties, and

(b)  communicate,  in  such  manner  as  may  be  prescribed  by  the  State
Government, the action taken by him to the person,  if  any,   by  whom  the
information relating to the commission of the  offence was first given.

(2) Where a superior officer of police  has  been  appointed  under  section
158, the report shall, in  any  cases  in  which  the  State  Government  by
general or special  order so directs, be  submitted  through  that  officer,
and he may, pending the orders  of the Magistrate,  direct  the  officer  in
charge of the police-station to make further  investigation.

(3) Whenever it appears from a report  forwarded  under  this  section  that
the accused has been released on his bond, the Magistrate  shall  make  such
order for  the discharge of such bond or otherwise as he thinks fit.

(4)  After forwarding  a report under this section, the  officer  in  charge
of the police-station shall, before  the  commencement  of  the  inquiry  or
trial, furnish or cause to be furnished to the  accused,  free  of  cost,  a
copy of the  report  forwarded  under  sub-section  (1)  and  of  the  first
information report recorded under section 154 and of all other documents  or
relevant extracts thereof,  on  which  the  prosecution  proposes  to  rely,
including the statements  and confessions, if  any  recorded  under  section
164 and the statements recorded under sub-section (3) of section 161 of  all
the persons  whom the prosecution proposes to examine as its witnesses.

(5)  Notwithstanding anything contained in sub-section (4), if  the  police-
officer is of opinion that any part of any  statement  recorded  under  sub-
section (3)  of section 161 is not relevant to  the  subject-matter  of  the
inquiry or trial of that its disclosure to the accused is not  essential  in
the interests of justice and is inexpedient  in  the  public  interests,  he
shall  exclude such part from the copy of the  statement  furnished  to  the
accused and in such a cause, he  shall  make  a  report  to  the  Magistrate
stating his reasons  for excluding such part.

Provided that at the commencement of the inquiry or trial,  the  Magistrate,
shall after perusing the part so excluded and considering the report of  the
police-officer, pass such orders as he thinks fit and if he  so  directs,  a
copy of the part so excluded or such portion thereof, as he  thinks  proper,
shall be furnished to the accused.

15.   A plain comparison of these two  provisions  would  amply  demonstrate
that though these relate to the report of a police officer on completion  of
investigation and the steps to ensue pursuant  thereto,  outlining  as  well
the duties of  the  officer  in-charge  of  the  concerned  police  station,
amongst others to communicate, the action taken by him  to  the  person,  if
any, by whom the information relating  to  the  commission  of  offence  was
first given, it is explicit that the recast provision of the 1973  Code  did
incorporate  sub-clause  8  as  a  significant  addition  to   the   earlier
16.   The Forty-first Report of the Law  Commission  of  India  (for  short,
hereinafter to be referred to as “the Commission”) on the Code  of  Criminal
Procedure, 1898 dealt with the aspect of reopening of investigation  in  the
context of the existing Section 173 of the Code 1898 and recommended in  the
following terms:
“14.23:  A  report  under  section  173  is  normally   the   end   of   the
investigation. Sometimes, however, the police officer after  submitting  the
report under section 173  comes  upon  evidence  bearing  on  the  guilt  or
innocence of the accused. We should have thought  that  the  police  officer
can collect that evidence and  send  it  to  the  magistrate  concerned.  It
appears, however, that courts have sometimes  taken  the  narrow  view  that
once a final report under section 173  has  been  sent,  the  police  cannot
touch the case again  and  cannot  re-open  the  investigation.   This  view
places a hindrance in the way of the  investigating  agency,  which  can  be
very unfair to the prosecution and, for that matter, even  to  the  accused.
It should be made clear in section 173 that  the  competent  police  officer
can examine such evidence and send  a  report  to  the  magistrate.   Copies
concerning the fresh material must of course be furnished to  the  accused.”

17.   The Commission  in  the  above  perspective  proposed  a  revision  of
Section 173 of Code 1898 in the following terms:

“14.24: We propose that section 173 should be revised as follows:-

I73. (1) Every investigation under this Chapter shall be  completed  without
unnecessary delay.

(2) As soon as it is completed, the officer in charge of the police  station
shall forward to a Magistrate empowered to take cognizance  of  the  offence
on  a  po1ice-report  a  report,  in  the  form  prescribed  by  the   State
Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the  names  of  the  persons  who  appear  to  be  acquainted  with  the
circumstances of the case;

(d) whether any offence appears to have been committed, and if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond under section 169, and, if  so,
whether with or without sureties,-

(g) whether he has been forwarded in custody under section 170.

      The  officer  shall  also  communicate,  in  such  manner  as  may  be
prescribed by the State Government, the action taken by him to  the  person,
if any, by whom the information relating to the commission  of  the  offence
was ?rst given.

(3) Where a superior officer of police  has  been  appointed  under  section
158, the report shall, in  any  cases  in  which  the  State  Government  by
general or special order so directs, be submitted through that officer,  and
he may, pending the orders of the Magistrate, direct that officer in  charge
of the police-station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that  the
accused has been released on his bond, the Magistrate shall make such  order
for the discharge of such bond or otherwise as he thinks ?t.

(5) When such report is in respect of a case to which section  170  applies,
the police-officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts  thereof  on  which  the  prosecution
proposes to rely other than those already  sent  to  the  Magistrate  during
investigation; and

(b) the statements recorded under.....section 161 of all  persons  whom  the
prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such  statement
is not relevant to  the  subject-matter  of  the  proceedings  or  that  its
disclosure to the accused is not essential in the interests of  justice  and
is inexpedient in the public interest, he shall indicate that  part  of  the
statement and append a note requesting the Magistrate to exclude  that  part
from the copies to be granted to the accused and  stating  his  reasons  for
making such request.

(7)  Nothing  in  this  section  shall  be  deemed   to   preclude   further
investigation in respect of an offence after a report under sub-section  (2)
has been forwarded to the Magistrate. Where  upon  such  investigation,  the
officer in charge of the police station obtains further  evidence,  oral  or
documentary he shall forward to the Magistrate a further report  or  reports
regarding such evidence in the form prescribed; and the provisions  of  sub-
sections (2) to (5) shall, as far as may  be,  apply  in  relation  to  such
report or reports as they apply in relation to a  report  under  sub-section

18.   The Bill to  consolidate  and  amend  the  law  relating  to  criminal
procedure  followed  and  was  circulated   in   the   Gazette   of   India,
Extraordinary, Part II, published on December 10, 1970 proposing,  the  Code
of Criminal Procedure, 1970. The Statement of Objects  and  Reasons  clearly
disclosed that the recommendations of the Commission to  overhaul  the  Code
1898 as made were accepted and vis-a-vis Section 173, which corresponded  to
Section 176 in the aforementioned report,  the  amendment  proposed  was  to
facilitate collection of evidence by the police  after  filing  the  charge-
sheet and production thereof before the Court, subject to the accused  being
given usual facilities for copies. The remodelled Section 173 was  identical
in form and substance to the one, as proposed by  the  Commission  in  chime
with its recommendation as contained in the Report.   Sub-clause (7) of  the
new Section 173, as proposed by the Commission and integrated in  the  Bill,
however eventually appeared as sub-clause (8)  to  the  Section  under  Code
19.   The newly added sub-section (8), as its text evinces, permits  further
investigation by the concerned officer in-charge of the  police  station  in
respect of an offence after a report under sub-section 2 had been  forwarded
to the Magistrate and also to lay before the Magistrate  a  further  report,
in the form prescribed, whereafter such investigation,  he  obtains  further
evidence, oral or documentary. It is further ordained that on submission  of
such further report, the essentialities engrafted in  sub-sections  2  to  6
would apply also in relation to all such report or reports.
20.   The integration of sub-section 8 is axiomatically  subsequent  to  the
41st  Report  of  the  Law  Commission  Report  of   India   conveying   its
recommendation that after the submission of a  final  report  under  Section
173, a competent police officer, in the event of  availability  of  evidence
bearing on the guilt or innocence of the accused ought to  be  permitted  to
examine the same and submit a further report to  the  Magistrate  concerned.
This  assumes  significance,  having  regard  to  the  language  consciously
applied to design Section 173(8) in the 1973 Code.  Noticeably,  though  the
officer in-charge of a  police  station,  in  categorical  terms,  has  been
empowered  thereby  to  conduct  further  investigation   and   to   lay   a
supplementary  report  assimilating  the  evidence,  oral  or   documentary,
obtained in course of the said  pursuit,  no  such  authorization  has  been
extended to the Magistrate as the Court is seisin  of  the  proceedings.  It
is, however no longer res integra that a Magistrate, if exigent  to  do  so,
to espouse the cause of justice,  can  trigger  further  investigation  even
after a final report is submitted  under  Section  173(8).  Whether  such  a
power is available suo motu or on the  prayer  made  by  the  informant,  in
absence of request by the investigating agency  after  cognizance  has  been
taken and the trial is  in  progress  after  the  accused  has  appeared  in
response to the process issued is the issue seeking scrutiny herein.
21.   Though noticeably the High Court, in the decision impugned, has  aptly
referred to and relied upon the relevant pronouncements  of  this  Court  on
the issue involved, the authorities cited  at  the  Bar  in  course  of  the
arguments demand recapitulation.
22.   In Bhagwant Singh v. Commissioner of Police & Anr., (1985) 2 SCC  537,
a three Judge Bench of this Court was seized with the poser  as  to  whether
in a case where the First Information Report is lodged and after  completion
of the investigation initiated on the basis thereof, the  police  submits  a
report that no offence has been committed, the Magistrate if is inclined  to
accept the same, can drop the proceeding   without  issuing  notice  to  the
first informant or to  the  injured  or  in  case  where  the  incident  has
resulted in death, to the relatives of the  deceased.   This  Court  in  its
adjudicative pursuit, embarked upon a scrutiny of the provisions of  Chapter
XII of the Cr.P.C.,  dealt  with  Sections  154,  156,  157  thereof  before
eluding to Section 173 of the Code. It noticed that  under  sub-Section  (1)
of  Section  154,  every  information  relating  to  the  commission  of   a
cognizable offence, if given orally to an  officer  in-charge  of  a  police
station has to be reduced into writing by him or under his direction and  is
to be read over to the informant and every such  information  whether  given
in writing or reduced to writing, shall be signed by the  person  giving  it
and that a copy thereof shall be given forthwith to the informant,  free  of
cost.  It noticed that under Section 156(1),  the  officer  in-charge  of  a
police station is vested with the power to investigate any  cognizable  case
without the order of the Magistrate and that sub-Section (3) authorized  the
Magistrate empowered under Section 190 Cr.P.C. to  order  an  investigation,
as mentioned in sub-Section (1).   The  prescription  under  Section  157(1)
requiring the officer in-charge of a police  station  to  forthwith  send  a
report of the information to a Magistrate empowered to  take  cognizance  of
such offence upon a police report, in case he  has  reason  to  suspect  the
commission of an  offence  which  he  is  empowered  under  Section  156  to
investigate, was taken note of.  The  mandate  of  Section  157(2)  for  the
police officer to notify the informant, in case he was of the view  that  no
sufficient ground for entering on an investigation had been  made  out,  was
also referred to.
23.   It noted as well that under Section 173(2)(i), the officer  in-charge,
as soon as the investigation is completed, is required  to  forward  to  the
Magistrate empowered, a report in the prescribed form so as  to  enable  the
Court to take cognizance of the offence  based  thereon.   This  Court  also
adverted to Section 190 enumerating the modes of  taking  cognizance  of  an
offence by a Magistrate, as  specified  therein,  either  upon  receiving  a
complaint of facts which constituted such offence or upon  a  police  report
of such facts or upon information received from  any  person  other  than  a
police officer or  upon  his  own  knowledge  that  such  offence  had  been

24.   In the conspectus of the provisions of Cr.P.C. traversed,  this  Court
held the view that an informant who  lodges  the  first  information  report
does not fade away therewith and is very  much  concerned  with  the  action
initiated by the officer in-charge of the police station  pursuant  thereto,
so much so, that not only a copy of the said report is  to  be  supplied  to
him free of cost and in case, no investigation is intended,  he  has  to  be
notified of such decision. The reason, in the contemplation of  this  Court,
for the officer in-charge of a police  station  to  communicate  the  action
taken by him to the informant and a report to the Magistrate  under  Section
173(2)  Cr.P.C.  was  that  the  informant,  who  sets  the   machinery   of
investigation into motion, was required to know what was the result  of  the
exercise initiated on the basis thereof, as he would be  vitally  interested
therein and hence, the obligations cast by law on the officer in-charge.
25.   This Court assayed the courses open to the Magistrate on receipt of  a
report by the police  on  the  completion  of  the  investigation.   It  was
enunciated that  if  the report submitted by the  police  divulged  that  no
offence had been committed, there again, the Magistrate  would  be  left  at
liberty to adopt one of the three  courses,  namely;  he  could  accept  the
report and drop the proceeding, or he could disagree  with  the  report  and
taking the view that there was sufficient  ground  for  proceeding  further,
take cognizance of the offence and issue process or he could direct  further
investigation to be made by the police  under  sub-Section  (3)  of  Section
156.  Noticeably, these three courses referred to  hereinabove  are  at  the
pre-cognizance stage and can be opted for by  the  Magistrate  depending  on
his satisfaction on an assessment of the materials then on record.
26.   Be that as it may, this Court held that whereas neither the  informant
nor the injured nor the relative of the deceased in case of death, would  be
prejudicially affected in case the Magistrate decides to take cognizance  of
the offence and to issue a process, they would certainly  be  prejudiced  in
case, the Court holds the view  that  there  is  no  sufficient  ground  for
proceeding further and is inclined to drop the proceeding. Having regard  to
the scheme of Sections 154, 157 and 173 in particular of the Cr.P.C and  the
pattern of consequences to follow  in  the  two  contingencies  referred  to
herein above, this Court propounded that  in  case  the  Magistrate  is  not
inclined to take cognizance of the offence and issue process, the  informant
must be given an opportunity  of  being  heard  so  that  he  can  make  his
submissions to persuade the Magistrate to take  cognizance  of  the  offence
and issue process. Qua the requirement of issuance of  such  notice  to  the
injured person or to a relative of the  deceased,  in  case  of  death,  who
is/are not the informant(s) who had lodged the first information report,  it
was elucidated that it would be open for the Magistrate in the  exercise  of
his discretion, if he thinks fit, to give such notice.  However,  the  locus
standi of the injured person or any relative of  the  deceased,  though  not
entitled to notice on the Magistrate to apply for the Court at the  time  of
consideration of the report, if he/they  otherwise  come  to  know  of  such
stage of the proceeding, was recognized, so much so  that  in  case  he/they
would want to  advance  any  submission  with  regard  to  the  report,  the
Magistrate would be bound to hear him/them as the case may be.
27.   This verdict in re the issue presently  involved  is  significant,  so
far as it outlines the different modes of taking cognizance  of  an  offence
by a Magistrate and also the procedures and powers available to him  on  the
submission of a police report following  the  completion  of  investigation.
This decision is pellucid in its statement that the Magistrate,  on  receipt
of the report, at  that  stage  before  taking  cognizance  of  the  offence
alleged, may direct further investigation under sub-Section (3)  of  Section
156  Cr.P.C. and require the police to make further  report  and  that  such
power can be exercised suo motu,  contingent  on  its  satisfaction  of  the
necessity thereof to espouse the cause of justice.
      28.   The question that fell  for  appraisal  in  Randhir  Singh  Rana
(supra) was as to whether a judicial Magistrate, after taking cognizance  of
an offence, on the basis of a police report  and  after  appearance  of  the
accused in pursuance of the process issued, can order of  its  own,  further
investigation in the case. The  significantly  additional  feature  of  this
query is the stage of the proceedings for  directing  further  investigation
in the case i.e. after the appearance of the accused  in  pursuance  of  the
process  already  issued.   This  Court  reiterated  that  such  power   was
available to the  police,  after  submission  of  the  charge-sheet  as  was
evident from Section 173(8) in Chapter XII of the Code, 1973.  That  it  was
not in dispute as well that before taking cognizance of  the  offence  under
Section  190  of  Chapter  XIV,   the   Magistrate   could   himself   order
investigation as contemplated by Section 156(3) of the  Code  was  noted  as
well. This Court also noticed the power  under  Section  311  under  Chapter
XXIV to summon any person as a witness at any stage of an  inquiry/trial  or
other proceedings, if  the  same  appeared  to  be  essential  to  the  just
decision of the case.
29.   It recalled its earlier rendering in Tula Ram and  others  v.  Kishore
Singh, (1977) 4 SCC 459 to  the  effect  that  the  Magistrate  could  order
investigation under Section 156(3) only at the  pre-cognizance  stage  under
Sections 190, 200 and 204    Cr.P.C  and  that  after  he  decides  to  take
cognizance under the provisions of Chapter XIV, he would not be entitled  in
law to order any investigation under Section 156(3), and further  though  in
cases not falling within the proviso to Section 202,  he  could  order  such
investigation by the police, the same would be in the nature of  an  inquiry
only as contemplated by Section 202.
30.   This Court also recounted its observations in Ram Lal  Narang  (supra)
to the effect that on  the  Magistrate  taking  cognizance  upon   a  police
report, the right of the police to further investigate even under  the  1898
Code was not exhausted and it could exercise such right often as  necessary,
when fresh information would  come  to  light.  That  this  proposition  was
integrated in explicit terms in sub-Section (8) of Section 173  of  the  new
Code, was noticed. The desirability of the police to ordinarily  inform  the
Court and seek its formal permission to  make  further  investigation,  when
fresh facts come to light, was stressed upon to  maintain  the  independence
of the judiciary, the interest of the purity of administration  of  criminal
justice and  the  interest  of  the  comity  of  the  various  agencies  and
institutions entrusted with different stages of such dispensation.
31.   The pronouncement of this Court in Devarapalli  Lakshminarayana  Reddy
and others v. V. Narayana Reddy and others, (1976) 3 SCC 252 emphasizing  on
the distinction in the power to order  police  investigation  under  Section
156(3) and under Section 202(1) of the  Cr.P.C,  was  referred  to.  It  was
ruled that the two powers operate in separate distinct spheres at  different
stages, the former being exercisable at the  pre-cognizance  stage  and  the
latter at the post-cognizance stage when the Magistrate is in seisin of  the
case. It was underlined that in  the  case  of  a  complaint  regarding  the
commission of a cognizable offence, the power under Section 156(3) could  be
invoked by the Magistrate before he takes cognizance of  the  offence  under
Section 190(1)(a), but once such cognizance is taken  and  he  embarks  upon
the procedure embodied in Chapter XV, he would not be  competent  to  revert
to the pre-cognizance stage and avail Section 156(3).   On the  other  hand,
it was observed that Section 202 would be invocable at  a  stage  when  some
evidence has been collected by  the  Magistrate  in  the  proceedings  under
Chapter XV, but is deemed to be insufficient to take a decision  as  to  the
next step and in such an event, the  Magistrate  would  be  empowered  under
Section 202 to direct, within the limits circumscribed  by  that  provision,
an investigation for the purpose  of  deciding  whether  or  not,  there  is
sufficient ground for proceeding.  It was thus exposited that the object  of
an investigation under Section 202 is  not  to  initiate  a  fresh  case  on
police report but to assist the Magistrate  in  completing  the  proceedings
already instituted upon a complaint before him. It was thus concluded on  an
appraisal of the curial postulations above referred to, that the  Magistrate
of his own,  cannot  order  further  investigation  after  the  accused  had
entered appearance pursuant to a process issued to  him  subsequent  to  the
taking of the cognizance by him.
32.   The scope of the judicial audit in Reeta Nag  (supra),  to  reiterate,
was whether, after the charge-sheet had  been  filed  by  the  investigating
agency under Section 173(2) Cr.P.C, and charge had been framed against  some
of the accused persons on the basis thereof, and other co-accused  had  been
discharged, the Magistrate could direct the investigating agency to  conduct
a  re-investigation  or  further  investigation  under  sub-Section  (8)  of
Section 173. The recorded facts revealed that  the  Magistrate  had  in  the
contextual facts directed for  re-investigation  and  to  submit  a  report,
though prior thereto, he had  taken  cognizance  of  the  offences  involved
against six of the original sixteen accused persons, discharging  the  rest.
The informant had thereafter filed an application  for  re-investigation  of
the case and the prayer was acceded to. This Court referred to  its  earlier
decisions in Sankatha Singh and others v. State of Uttar Pradesh,  AIR  1962
SC 1208 and Master Construction Company (P) Ltd.  v.  State  of  Orissa  and
another, AIR 1966 SC 1047 to  the  effect  that  after  the  Magistrate  had
passed a final order framing charge against some of the accused persons,  it
was no longer  within  his  competence  or  jurisdiction  to  direct  a  re-
investigation into the case.  The decision in Randhir  Singh  Rana  (supra),
which propounded as well that after taking cognizance of an offence  on  the
basis of a police  report  and  after  the  appearance  of  the  accused,  a
Magistrate cannot of its own order further  investigation,  though  such  an
order could be passed on the application  of  the  investigating  authority,
was  recorded.   It  was  reiterated   with   reference   to   the   earlier
determination of this Court in Dinesh Dalmia v. CBI, (2007) 8 SCC  770  that
the power of the investigating officer  to  make  a  prayer  for  conducting
further investigation in terms of Section 173(8) of the Code was  not  taken
away only because a charge-sheet had been filed under Section 173(2)  and  a
further investigation was permissible even if cognizance had been  taken  by
the Magistrate. This Court, therefore summed up by  enouncing  that  once  a
charge-sheet was filed under Section 173(2) Cr.P.C and either  charges  have
been framed or the accused have been discharged, the Magistrate may  on  the
basis of a protest petition, take cognizance of the  offence  complained  of
or on the application made by the investigating  authority,  permit  further
investigation under Section 173(8), but he cannot suo motu direct a  further
investigation or order a re-investigation into a case on account of the  bar
of Section 167(2) of the Code.  It was thus held that as  the  investigating
authority did not apply for further  investigation  and  an  application  to
that effect had been filed by the defacto complainant under Section  173(8),
the order  acceding  to  the  said  prayer  was  beyond  the  jurisdictional
competence of the Magistrate. It was, however observed,  that  a  Magistrate
could, if deemed necessary, take recourse to the provisions of  Section  319
Cr.P.C at the stage of trial.
33.   This decision reinforces the view that after cognizance  is  taken  by
the Magistrate on the basis of a report  submitted  by  the  police  on  the
completion of the investigation, no direction for further investigation  can
be made by the Magistrate suo motu and it would be permissible only if  such
a request is made by the investigating authority on the detection  of  fresh
facts having bearing on  the  case  and  necessitating  further  exploration
thereof in the interest of complete and fair trial.
34.   The query in Vinay Tyagi v. Irshad Ali @ Deepak & Ors., (2013)  5  SCC
762 was whether in exercise of powers under Section 173  Cr.P.C,  the  Trial
Court has the jurisdiction to ignore any of the police reports, where  there
was more than one, whether by the same or different  investigating  agencies
submitted in furtherance of the orders of a Court.  The respondents  therein
were sought to be prosecuted by filing  a  First  Information  Report  under
Sections 120B, 121 and 122 of the IPC read with Section 25 of the  Arms  Act
and Sections 4 and 5 of Explosives Substance Act, 1908. The  FIR  was  filed
by the Special Cell of Delhi Police, which the respondents alleged had  been
lodged  to  falsely  implicate  them.  Being  aggrieved,   the   respondents
challenged this action before the High Court and inter alia prayed that  the
investigation in the case be transferred to the CBI.  As the High Court  did
not,  though  it  had  issued  notice  in  the  writ  petition,   stay   the
investigation, eventually the Special  Cell  of  Delhi  Police  did  file  a
charge-sheet  before  the  Trial  Court.  The  High  Court  finally,   while
disposing of the writ petition and being  satisfied,  directed  the  CBI  to
undertake an inquiry  into  the  matter  and  submit  a  report.  Subsequent
thereto  the  CBI  filed  its  report  indicating  in  substance  that   the
recoveries, amongst others made  from  the  respondents  in  course  of  the
inquisition made by the  Special  Cell  of  Delhi  Police  did  not  inspire
confidence and that further investigation was needed.
35.   The CBI, after detailed investigation,  submitted  a  closure  report,
whereafter one of the respondents filed  an  application  before  the  Trial
Court seeking discharge. This prayer was declined by the Trial Court as pre-
matured, observing that no definite conclusion could be drawn at that  stage
to ascertain the truthfulness of the version of the two different  agencies.
 The High Court, being approached under Section 482 of the Cr.P.C by one  of
the respondents, seeking to quash the First Information Report, it  disposed
of the same by holding that once the report had been filed by  the  CBI,  it
ought to be construed as  a  investigating  agency,  and  thus  its  closure
report should be considered by the Trial Court and thus  remanded  the  case
by observing that in undertaking the exercise, as directed, the Trial  Court
should not be influenced by the report of the Special Cell of Delhi  Police.
This order formed the subject matter of challenge before this Court.
36.   After referring to  Section  156(3)  in  particular  and  Section  190
Cr.P.C, this Court reverted to Section 173 and ruled that a very wide  power
was vested in the investigating  agency  to  conduct  further  investigation
after it had filed its report in terms of sub-Section (2) thereof.  It  held
on an elucidation of the contents of Section 173(8) that  the  investigating
agency was thus competent to file a  report  supplementary  to  its  primary
report and that the former was to be treated by the  Court  in  continuation
of the latter,  and  that  on  an  examination  thereof  and  following  the
application of mind, it ought to proceed to hear  the  case  in  the  manner
prescribed. It was elaborated that after taking cognizance of  the  offence,
the next step was to frame charge in  terms  of  Section  228  of  the  Code
unless the Court found, upon consideration of the record  of  the  case  and
the documents submitted  therewith,  that  there  did  exist  no  sufficient
ground to proceed against  the accused, in which  case  it  would  discharge
him on reasons to  be  recorded  in  terms  of  Section  227  of  the  Code.
Alluding to the text of Section 228 of the Code which is to the effect  that
if a Judge is of the opinion that there is ground  for  presuming  that  the
accused had committed an offence, he could  frame  a  charge  and  try  him,
this Court propounded that the word “presuming” did imply that  the  opinion
was to be formed on the basis of the records of the case and  the  documents
submitted therewith along with the plea of the defence to a limited  extent,
if offered at that stage. The view of this Court in Amit  Kapoor  v.  Ramesh
Chander and another, (2012) 9 SCC 460  underlining  the  obligation  of  the
Court to consider the  record  of  the  case  and  the  documents  submitted
therewith to form an opinion as to  whether  there  did  exist  or  not  any
sufficient ground to proceed against an accused was underlined. This  aspect
was dilated upon logically to respond to the query in the  contextual  facts
as to whether both the reports submitted     by the  Special  Cell   of  the
Delhi Police and the CBI were required to be taken  note  of  by  the  Trial
37.    Additionally,  this  Court  also  dwelt  upon  the  three  facets  of
investigation in succession i.e.  (i)  initial  investigation  (ii)  further
investigation and  (iii)  fresh  or  de  novo  or  reinvestigation.  Whereas
initial investigation was alluded to be  one  conducted  in  furtherance  of
registration of an FIR leading to a final report  under  Section  173(2)  of
the Code, further investigation was a  phenomenon  where  the  investigating
officer would obtain further oral or documentary evidence  after  the  final
report had already been submitted, so much so that the report on  the  basis
of the subsequent disclosures/discoveries by way of such evidence  would  be
in consolidation and in continuation of the previous investigation  and  the
report yielded thereby. “Fresh  investigation”  “reinvestigation”  “de  novo
investigation”, however is an exercise, which it was held, could neither  be
undertaken by the investigating agency suo motu nor could be ordered by  the
Magistrate and that it was essentially  within  the  domain  of  the  higher
judiciary  to  direct  the  same  and  that  too  under  limited  compelling
circumstances warranting such probe to ensure a just and fair  investigation
and trial. Adverting to Section 173 of the Code again, this  Court  recalled
its observations in State of Punjab v. CBI and  others,  (2011)  9  SCC  182
that not only the police had the power to conduct further  investigation  in
terms of Section 173(8) of the Code,  even  the  Trial  Court  could  direct
further investigation  in  contradistinction  to  fresh  investigation  even
where the report had been filed.
38.   The decisions in Minu  Kumari  and  another  v.  State  of  Bihar  and
others, (2006) 4 SCC 359 and Hemant Dhasmana v. CBI and  another,  (2001)  7
SCC 536 to the effect that a Court could order further  investigation  under
Section 173(8) of the Code even after a  report  had  been  submitted  under
Section 173 (2) thereof, was adverted to.
39.   Noticeably, none of these decisions, however pertain  to  a  situation
where after the final report had been submitted, cognizance had been  taken,
accused had appeared and trial is underway, the Court either suo motu or  on
the prayer  of  the  informant  had  directed  further  investigation  under
Section 173(8) in absence of a request to that effect made by the  concerned
investigating officer.
40.   The rendition in Bhagwant Singh (supra) was also relied upon.  It  was
eventually held, by drawing sustenance from the  pronouncement  in  Bhagwant
Singh (supra) that a Magistrate before whom a report  under  Section  173(2)
of the Code  had  been  filed,  was  empowered  in  law  to  direct  further
investigation and require the police to submit a further or a  supplementary
report. To  reiterate,  in  Bhagwant  Singh  (supra),   this  Court  had  in
particular dealt with the courses open to a Magistrate, once a  charge-sheet
or a closure report is submitted on the completion  of  investigation  under
Section 173(2) of the Code and thus did essentially concentrate at the  pre-
cognizance stage of the proceedings.
41.   From the issues sought to be answered  in  this  decision  and  having
regard to the overall text thereof, it is not possible to discern  that  the
power of the Magistrate, even at the post  cognizance  stage  or  after  the
accused had appeared in response to the process issued, the suo  motu  power
of the Magistrate  to  direct  further  investigation  was  intended  to  be
expounded thereby. Significantly, the adjudication was  essentially  related
to the pre-cognizance stage.
42.   In Chandra Babu alias Moses v. State through Inspector of  Police  and
others,  (2015)  8  SCC  774,  the  appellant  had  filed  a  FIR  with  the
Kulasckaram  Police  Station  against   the   respondents-accused   alleging
unlawful assembly and assault resulting  in  multiple  injuries.  After  the
initial investigation, the  same  was  transferred  to  the  District  Crime
Branch Police, Kanyakumari which eventually filed a final report  in  favour
of the respondents-accused, which was accepted by  the  learned  Magistrate.
Meanwhile, however the appellant/informant filed a protest  petition  before
the Magistrate praying for a direction to the CBCID to reopen the  case  and
file a fresh report. As before any decision on this  protest  petition,  the
final report filed by the police had already been  accepted,  the  appellant
approached the High Court, which called for  the  report  from  the  learned
Magistrate and finally interfered with the order accepting the final  report
and directed the Magistrate to consider the  same  along  with  the  protest
petition. The Magistrate next held  that  there  was  no  justification  for
ordering reinvestigation of the case and directed that the protest  petition
be treated as a separate private complaint.
43.   This order being challenged again before the High  Court,  the  matter
was remanded to the learned Magistrate with  a  direction  to  consider  the
final report and the other materials on record and pass  appropriate  orders
after hearing both the public prosecutor and the de facto complainant.  This
time, the learned Magistrate returned a finding that  the  investigation  by
the District Crime Branch was a biased one and that  the  final  report  was
not  acceptable  and  consequently  forwarded  the  complaint  for   further
investigation by the CBCID, which was a different investigating agency.  The
matter was taken to the  High  Court  by  one  of  the  respondents/accused,
whereupon  it  annulled  the  direction  of  the  learned   Magistrate   for
reinvestigation, holding that not only there were material discrepancies  in
the  evidence  brought  on  record,  but  also  there  was  no   exceptional
circumstance for such a course to be adopted by the Magistrate. It was  also
of the view, having regard to the scheme of the Section 173(8) of  the  Code
that  the   investigating   officer   only   could   request   for   further
44.   While disapproving the approach of the High  Court  in  reappreciating
the facts in  the  exercise  of  its  revisional  jurisdiction,  this  Court
adverting, amongst others to the three Judge Bench  exposition  in  Bhagwant
Singh (supra) reiterated that a Magistrate could disagree  with  the  police
report and take cognizance and issue process  and  summon  the  accused,  if
satisfied as deemed fit  in  the  attendant  facts  and  circumstances.  The
rendition in Vinay Tyagi (supra) was also alluded  to.   It  was  ultimately
expounded that the learned Magistrate had really intended to direct  further
investigation, but as a different investigating agency had been chosen,  the
word  re-investigation  had  been  used.  This  Court  thus  construed   the
direction for investigation by the CBI to be one for  further  investigation
and upheld the same, but nullified the  selection  of  a  new  investigating
agency  therefor.  As  a  corollary,  the  investigating  agency  that   had
investigated the case earlier  and  had  submitted  the  final  report,  was
directed by this Court to undertake further investigation to  be  supervised
by the Superintendent of Police and to submit a report  before  the  learned
Chief Judicial Magistrate to be dealt with in accordance with law.
45.   This decision too was concerned with a fact situation,  pertaining  to
the pre-cognizance stage of the proceedings before  the  learned  Magistrate
and therefore, does not, in our  comprehension,  further  the  case  of  the
46.   As adumbrated hereinabove, Chapter XIV  of  the  Code  delineates  the
conditions requisite for initiation  of  proceedings  before  a  Magistrate.
Section 190, which deals with cognizance of  offences  by  Magistrate,  sets
out that any Magistrate of the first Class and any Magistrate of the  second
class specially empowered, as  contemplated,  may  take  cognizance  of  any
offence either upon receiving a complaint of  facts  which  constitute  such
offence or upon a police report of such facts or upon  information  received
from any person other than the police officer, or  upon  his  own  knowledge
that such offence had been committed. Section 156,  which  equips  a  police
officer with the power to investigate a cognizable case mandates  vide  sub-
section 3 thereof that any Magistrate empowered under Section 190 may  order
such  an  investigation.  The  procedure  for  dealing  with  complaints  to
Magistrate is lodged under Chapter XV of the  Code.  Section  202  appearing
therein predicates that any Magistrate on  receipt  of  a  complaint  of  an
offence of which he is authorized to take cognizance or which had been  made
over to him under Section 192, may, if he thinks fit and  shall  in  a  case
where the accused is residing at  a  place  beyond  the  area  in  which  he
exercises his jurisdiction,  postpone  the  issue  of  process  against  the
accused and either enquire into the case himself or direct an  investigation
to be made by a police officer or by  such other person  as  he  thinks  fit
for the purpose of deciding whether or not there is  sufficient  ground  for
proceeding.  The contents of  this  text  of  Section  202(1)  of  the  Code
unmistakeably attest that the investigation that  can  be  directed  by  the
Magistrate, to be undertaken by a police officer  would  essentially  be  in
the form of an enquiry for the singular purpose of enabling  him  to  decide
whether or another there  is  sufficient  ground  for  proceeding  with  the
complaint of an offence, of which  he  is  authorised  to  take  cognizance.
This irrefutably is at the pre-cognizance stage and  thus  logically  before
the issuance of process to  the  accused  and  his  attendance  in  response
thereto.  As adverted to hereinabove,  whereas   Section  311  of  the  Code
empowers a Court at any stage of any inquiry, trial or other proceeding,  to
summon any person as  a  witness,  or  examine  any  person  in  attendance,
though not  summoned as a witness, or  recall   and  re-examine  any  person
already examined, if construed to be essential to be just  decision  of  the
case, Section 319 authorizes a Court to  proceed  against  any  person,  who
though not made an accused appears, in course of the inquiry  or  trial,  to
have committed the same and can be tried together. These two  provisions  of
the Code explicitly accoutre  a  Court  to  summon  a  material  witness  or
examine a person present at  any  stage  of  any  inquiry,  trial  or  other
proceeding, if it considers it to be essential to the just decision  of  the
case and even proceed against any person, though  not  an  accused  in  such
enquiry or trial, if it appears from the  evidence  available  that  he  had
committed an offence and that he  can  be  tried  together  with  the  other
accused persons.
47.   On an overall survey of the pronouncements of this Court on the  scope
and purport of Section 173(8) of  the  Code  and  the  consistent  trend  of
explication  thereof,  we  are  thus  disposed  to  hold  that  though   the
investigating  agency  concerned  has  been  invested  with  the  power   to
undertake  further  investigation  desirably   after  informing  the   Court
thereof, before  which  it  had  submitted  its  report  and  obtaining  its
approval, no such power is available  therefor  to  the  learned  Magistrate
after cognizance has been taken on the basis of the earlier report,  process
has been issued and accused has entered appearance in response thereto.   At
that stage, neither the learned Magistrate suo motu nor  on  an  application
filed by the complainant/informant  direct  further  investigation.  Such  a
course would be open only on the request of  the  investigating  agency  and
that  too,  in  circumstances  warranting  further  investigation   on   the
detection of material evidence only to secure fair investigation and  trial,
the life purpose of the adjudication in hand.
48.   The un-amended and the amended sub-Section (8) of Section 173  of  the
Code if read in juxtaposition,  would  overwhelmingly  attest  that  by  the
latter, the  investigating  agency/officer  alone  has  been  authorized  to
conduct further investigation without limiting the stage of the  proceedings
relatable thereto. This power qua the investigating agency/officer  is  thus
legislatively intended to be available at any stage of the proceedings.  The
recommendation of the Law Commission in its 41st  Report  which  manifesting
heralded the amendment,  significantly  had  limited  its  proposal  to  the
empowerment of the investigating agency alone.
49.   In contradistinction, Sections 156, 190,  200,  202  and  204  of  the
Cr.P.C clearly outline the powers of the Magistrate  and  the  courses  open
for him to chart  in  the  matter  of  directing  investigation,  taking  of
cognizance, framing of charge, etc.  Though the Magistrate has the power  to
direct investigation under Section 156(3) at the pre-cognizance  stage  even
after a charge-sheet or a closure report is submitted,  once  cognizance  is
taken and the accused person appears pursuant thereto, he  would  be  bereft
of any competence to direct further investigation either suo motu or  acting
on the request or prayer of the  complainant/informant.  The  direction  for
investigation by the Magistrate under Section  202,  while  dealing  with  a
complaint, though is at a post-cognizance stage, it is in the nature  of  an
inquiry to derive satisfaction  as  to  whether  the  proceedings  initiated
ought to be furthered or not. Such a direction for investigation is  not  in
the nature of further investigation, as contemplated  under  Section  173(8)
of the Code. If the power of the Magistrate, in such a scheme  envisaged  by
the Cr.P.C to order further  investigation  even  after  the  cognizance  is
taken, accused persons appear and  charge  is  framed,  is  acknowledged  or
approved, the same would be discordant with the state of law, as  enunciated
by this Court and  also  the  relevant  layout  of  the  Cr.P.C.  adumbrated
hereinabove. Additionally had it been the intention of  the  legislature  to
invest such a power, in our estimate, Section 173(8)  of  the  Cr.P.C  would
have been worded accordingly to  accommodate  and  ordain  the  same  having
regard to the backdrop of the incorporation thereof. In a way,  in  view  of
the three options open to the Magistrate, after a  report  is  submitted  by
the  police  on  completion  of  the  investigation,  as  has  been  amongst
authoritatively enumerated in Bhagwant Singh  (supra),  the  Magistrate,  in
both the contingencies, namely; when he takes cognizance of the  offence  or
discharges the accused, would be committed to a  course,  whereafter  though
the investigating agency may for  good  reasons  inform  him  and  seek  his
permission to conduct further investigation, he suo motu cannot embark  upon
such a step or take that initiative on the request or  prayer  made  by  the
complainant/informant. Not only such  power  to  the  Magistrate  to  direct
further  investigation  suo  motu  or  on  the  request  or  prayer  of  the
complainant/informant after cognizance  is  taken  and  the  accused  person
appears, pursuant to the process, issued or is  discharged  is  incompatible
with the statutory design and dispensation,  it would even otherwise  render
the provisions of Sections 311 and 319 Cr.P.C., whereunder any  witness  can
be summoned by a Court and a person can be issued notice to stand  trial  at
any stage, in  a way redundant. Axiomatically, thus  the  impugned  decision
annulling the direction of the learned Magistrate for further  investigation
is unexceptional and does not merit any  interference.   Even  otherwise  on
facts, having regard to the progression of the developments  in  the  trial,
and more particularly, the delay on the part of the informant in making  the
request for further investigation, it was  otherwise  not  entertainable  as
has been rightly held by the High Court.
50.   In the result, the appeal, being devoid of any  merit,  fails  and  is

                             (DIPAK MISRA)

                            (AMITAVA ROY)
FEBRUARY 02, 2017.