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The power of the police to conduct further investigation

CODE OF CRIMINAL PROCEDURE

While considering the above aspect , it needs to be noted that before coming into force of the Code of Criminal Procedure, 1973, there was no specific provision in the Code of Criminal Procedure, 1898, authorizing or empowering the police to conduct ‘further investigation’. There was, therefore, difference of opinion on this aspect of law in the pronouncements of various High Courts. On the suggestion of the Law Commission, provisions have been made in the Code of Criminal Procedure, 1973, empowering statutorily the police to conduct ‘further investigation’ by incorporating section 173(8), which reads:

“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).”
98. Though there was no express provision like sub-section (8) of section 173 of the new code statutorily empowering the police to conduct ‘further investigation’ into an offence in respect whereof, a charge sheet had already been filed and ‘cognizance’ had already been taken under section 190(1)(b), existence of such a power was recognized, in respect of cases covered by the old Code, in Ram Lal Narang v. State (Delhi Administration)., AIR 1979 SC 1791, wherein the Supreme Court, observed, at para 22, as follows:

“22. As observed by us earlier, there was no provision in the Cr.PC, 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 ‘investigation’s on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under section 173 of the 1898 code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further ‘investigation’, the police could express their regard and respect for the court by seeking its formal permission to make further ‘investigation’.”
(emphasis supplied)
99. Illustrating the situations, which may warrant ‘further investigation’ by police, and the procedure, which the court may have to follow on receipt of supplemental report of such ‘further investigation’, the Supreme Court, in Ram Lal Narang (supra), observed, at para 21, as follows:

“21. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make ‘further investigation’ and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Cr.P.C. in such situations is a matter best left to the discretion of the Magistrate.”
(emphasis added)
100. In the light of what have been observed and held in Ram Lal Narang (supra), it becomes crystal clear that a ‘further investigation’ is not necessarily aimed at finding out materials against the accused. A ‘further investigation’ may subserve the interest of the prosecution and, at times, even of the defence. There may be fresh materials, which may, on coming to light, necessitate ‘further investigation’ either for strengthening the case against the accused or for exonerating him.

Coupled with the above, what also needs to be noted is that in Ram Lal Narang (supra), the court had observed that

“…………it would, ordinarily, be desirable that the police should inform the court and seek formal permission to make ‘further investigation’ when fresh facts come into light.”
102. The word ‘ordinarily’, appearing in the observations, made in Ram Lal Narang (supra), clearly indicates that in all cases and in all circumstances, it is not necessary for the police to obtain formal permission from the Magistrate to conduct ‘further investigation’, for, sub- section (8) of section 173 gives statutory power to the police to conduct ‘further in investigation’.

Exceedingly important, therefore, it is to recognize and bear it in mind, while considering the scope of ‘further investigation’ in the realm of section 173(8), is that long before section 173(8) came to be introduced by way of amendment of the Code, the right and duty of the police to register every information relating to the commission of a cognizable offence and also their statutory right and duty to investigate into such information were recognized to be not circumscribed by any power of superintendence or interference by the Magistrate so far as the cognizable offences are concerned. A reference, in this regard, may be made to the case of King Emperor v. Khwaja Nazir Ahmed, AIR 1945 PC 18, wherein the Privy Council observed as follows:

“Just as it is essential that every one accused of a crime should have free access to a court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the courts, to intervene in an appropriate case when moved under section 491 of the criminal procedure code to give directions in the nature of Habeas Corpus. In such a case as the present, however, the court’s function begin when a charge is preferred before it and not until then……. In the present case, the police have under sections 154 and 156 of the criminal procedure code, a statutory right to investigate a cognizable offence without requiring the sanction of the court……….”
104. Correctly, therefore, points out Mr. Kabir, that as far back as in Abhinandan Jha (supra), the Supreme Court had held that the Magistrate could not direct the course of ‘investigation’ and had no power to direct the police to submit a charge sheet, when the police had submitted a ‘final report’ stating that no case was made out for sending the accused to trial. In such circumstances, the Magistrate’s role remained, if so required, to take ‘cognizance’ of the offence. The relevant observations, made in Abhinandan Jha (supra), read as under;

“19…….The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under section 169 of the code, that there is no case made out for sending up an accused for trial.”

105. No wonder, therefore, that the Supreme Court held, in Ramlal Narang (supra), that the right and duty of the police is, ordinarily, to submit a report under section 173 (1) of the 1989 code and it was, then, up to the Magistrate to take or not to take ‘cognizance’ of the offence, because there was no provision, in the 1989 Code, allowing the police to conduct ‘further investigation’ on fresh facts coming into light. There was, thus, as observed in Ramlal Narang (supra), no express provision prohibiting the police from launching investigation into the fresh facts coming into light after submission of police report or after the Magistrate had taken ‘cognizance’ of the offence. The Supreme Court also observed, in Ramlal Narang (supra), that there were differences in the judicial opinion, as regards power of the police to conduct ‘further investigation’, and the Law Commission, accordingly, in its 41st report, recommended that the police shall be given the right to make ‘further investigation’ and it is this recommendation, which has come to be embodied in the form of sub-section (8) of section 173, which empowers, now, the police to conduct ‘further investigation’, but 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.

It may, however, be noted that, in the light of the decision, in Ramlal Narang (supra), although the police is free to conduct ‘further investigation’ on fresh facts coming to light, the police is, ordinarily, required to obtain formal permission from the court for the purpose of conducting such ‘further investigation’.

 The word, ‘ordinarily’, appearing in the observations, made in Ramlal Narang (supra), clearly indicate, if we may repeat, that in all cases and in all circumstances, it is not necessary for the police to obtain formal permission from the Magistrate to conduct ‘further investigation’, for, sub-section (8) of section 173 gives statutory power to the police to conduct ‘further investigation’.

Whether further investigation can be conducted by police without permission of court

While dealing with the question as to whether prior permission from the Magistrate for ‘further investigation’ is always, and in every case or circumstances, necessary, it may be pointed out that in A.S. Peter (supra), the Supreme Court has made it clear, at para 9, that the law does not mandate taking of prior permission from the Magistrate for ‘further investigation’ inasmuch as conducting a ‘further investigation’, even after filing of charge sheet, is a statutory right of the police. The Supreme Court has also pointed out, in A.S. Peter (supra), that in a case, where ‘re-investigation’ and not ‘further investigation’ is required to be conducted by police or any other investigating agency, it would require prior permission of the court. Meaning thereby a further investigation, may be conducted by the police without formally obtaining permission from the court, no re-investigation is permissible by any investing agency without being formally permitted by the court. The observations, made, in this regard, in A.S. Peter (supra), read as under:

“9. Indisputably, the law does not mandate taking of prior permission from Magistrate for further investigation. Carrying out of a ‘further investigation’ even after filing of the charge sheet is a statutory right of the police. A distinction also exists between ‘further investigation’ and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, ‘further investigation’ is not.”
109. Further explaining the circumstances in which it had been observed, in Ram Lal Narang’s case (supra), that it would be, ordinarily, desirable that the police should inform the court and seek formal permission to make ‘further investigation’, when fresh facts come to light, the Supreme Court has pointed out and explained, in A.S. Peter (supra), that Ram Lal Narang (supra) was a case, where two conspiracies were alleged and two investigations were carried out and it is in such circumstances that the Supreme Court, while taking the view that ‘further investigation’ was permissible in law, held that the Magistrate had the discretion in the matter to direct ‘further investigation’ even when he had taken ‘cognizance’ of the offence. The relevant observations, appearing in this regard, in A.S Peter (supra), read as under:

“14. In Ramlal Narang, this court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This court, while opining that ‘further investigation’ is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken ‘cognizance’ of the offence, stating:

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21………….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.”

110. What surfaces from the above discussion is that the Supreme Court, in Ramlal Narang (supra), recognized the police’s power to conduct ‘further investigation’ and though such power is, ordinarily, not to be exercised under the superintendence and control of the Magistrate, it was held desirable that the police should inform the court and seek its formal permission before conducting ‘further investigation’. It is also correct, as indicated by Mr. Kabir, that in Bhagwan Samardha Sreepada Vallabha v. Venkata Vishwanandha Maharaj, (1999) Crl. LJ3661, the Supreme Court has, once again, made it clear that section 173(8) recognizes the power of the police to conduct ‘further investigation’ and in exercise of this powers, the police can conduct ‘further investigation’ even after the court has taken ‘cognizance’ on the basis of the report already submitted to the police, but it would be desirable that the police should inform the court and seek inform permission to conduct further investigation. Even before the decision, in Bhagwan Samardha Sreepada Vallabha (supra), was rendered, the Supreme Court, in its decision, in State of Rajasthan v. Aruna Devi, (1995) 1 SCC 1 had recognized that ‘further investigation’ has legal sanction and it is open to the Magistrate to take ‘cognizance’ if a fresh report is submitted. In fact, in Hasanbhai Valibhai Qureshi (supra), the Supreme Court goes a step further and clarifies that police has the power to conduct ‘further investigation’ de hors any direction from the court even after the court has already taken ‘cognizance’. The relevant observations made by the Supreme Court, in Hasanbhai Valibhai Qureshi (supra), read as under:

“12. sub-section (8) of section 173 of the code permits further investigation and even de hors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted.”
111. Though there is no difficulty in concluding, in the light of the discussions held above, that police can conduct ‘further investigation’ on the basis of information received by them and, in this regard, no formal permission from the Magistrate is always and in every case imperative, the question, however, which we, now, need to decide, is: Whether a court, having taken ‘cognizance’ of an offence and upon appearance of the accused, can suo motu direct ‘further investigation’?

The question, posed above, was pointedly raised and specifically answered in Randhir Singh Rana (supra).

In Randhir Singh Rana (supra), the court took note of the fact that the Code has compartmentalized the powers to be exercised at different stages of a case, namely, (i) at the time of taking ‘cognizance’, (ii) after ‘cognizance’ is taken, (iii) after appearance of the accused and (iv) after commencement of trial on the charges being framed. It was urged, in Randhir Singh Rana (supra), that the power of the court to direct ‘further investigation’, undoubtedly, exists at the first stage (i.e., at the time of taking ‘cognizance’), it may exists at the second stage (i.e., after the ‘cognizance’ is token), but no such power exist in the intermediate (i.e., third stage). After taking of ‘cognizance’, when an accused has appeared, pursuant to the process issued against him, what the court is required to do, at that stage, is to look into the materials, already on record, and either frame charge or discharge the accused depending upon the nature and adequacy of the materials on record and also the relevant provisions of the Code and that at the third stage, it is the power given to the court, under section 311, which permits it, on commencement of the trial, to examine any witness, at any stage, before the judgment is pronounced. This contention was upheld by the court in Randhir Singh Rana (supra) and it was held that a Magistrate, of his own, cannot order ‘further investigation’, after an accused, pursuant to the process issued against him, has already appeared in the case. This aspect of the law becomes abundantly clear if one takes note of the observations of the Supreme Court in Randhir Singh Rana (supra). The relevant observations, made by the Supreme Court, in this regard, in Randhir Singh Rana (supra), read as under:

“11. The aforesaid being the legal position as discernible from the various decisions of this court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, ‘further investigation’ by the police on its own would be permissible, which could even end in submission of either fresh charge sheet.”
(emphasis added)
114. Turning to Reeta Nag (supra), which, we find, is a decision of paramount importance in the present case and which, according to the learned amicus curiae, has not taken the subsequent developments, which have taken place as a result of later decisions of the Supreme Court as regards a Magistrate’s power to direct ‘further investigation’ on its own motion or at the instance of an informant, de facto complainant or the aggrieved person.

 Let us, therefore, ascertain as to what Reeta Nag (supra) lays down and whether the law laid down in Reeta Nag (supra) shall be treated as a binding precedent on the question of the court’s power to direct ‘further investigation’ on its own motion.

While considering Reeta Nag’s case (supra), it needs to be noted that in Reeta Nag (supra), on the basis of a ‘charge sheet’ filed, the Sub-Divisional Judicial Magistrate took ‘cognizance’ and framed charges against six of the accused persons and discharged fen of them, the ‘charge sheet’ having been filed altogether against sixteen persons. Subsequent thereto, an application was made by de facto complainant, under section 173(8), cr.p.c., praying for ‘re-investigation’ of the case. Based on this application, the learned Magistrate directed the police to ‘re-investigate’ the case and submit a report. This was put to challenge by filing an application under 482, Cr.P.C. and the High Court set aside and quashed the learned Magistrate’s order, whereby ‘re-investigation’ had been directed to be conducted by the police. The order. Passed by the High Court, was put to challenge by way of a Special Leave Petition.

In the fact situation, as mentioned above, it was contended, on behalf of the de facto complainant, that his application, made under section 173(8), was an application for ‘further investigation’, though it was styled as an application for ‘re-investigation’. The Supreme Court disagreed with the submission, so made, and held that the application was really an application for ‘re-investigation’ and the Magistrate had no power to direct ‘re-investigation’. While taking this view, the Supreme Court took notice of a number of decisions including the decision, in Randhir Singh Rana (supra), and pointed out that Randhir Singh Rana’s case (supra) makes it clear that upon taking of ‘cognizance’ of offence on the basis of ‘police report’ when accused appears, a Magistrate cannot, on his own, order ‘further investigation’ in the case, though an order for ‘further investigation’ can be made on the application of the investigating authorities. The relevant observations, appearing at paragraph 21, reads as under:

“21. In addition to the above, the decision of this court in Randhir Singh Rana case also makes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities.”

 What is, however, crucial to note is that in Reeta Nag’s case (supra), the court has concluded that once charge sheet is filed under section 173(2), Cr.PC, either a charge has to be framed or the accused has to be discharged. The Supreme Court has also pointed out, in Reeta Nag’s case (supra), that on the basis of a protest petition, made by a complainant, the court can take cognizance of offence on complained of or, on the application made by the Investigating Authorities, the Magistrate may direct ‘further investigation’, but the Magistrate cannot, suo motu, direct a ‘further investigation’ or direct a ‘re-investigation’ into a case.

In Reeta Nag’s case (supra), since the Investigating Authorities had not applied for ‘further investigation’, and it was only upon the application, made by the de facto complainant under section 173(8), that the direction for ‘re-investigation’ had been ordered by the Magistrate, the Supreme Court held that the course of action, which the Magistrate had adopted, was beyond his jurisdictional competence. The court has further pointed out, in Reeta Nag’s case (supra), that since the Investigating Authorities had not made any application seeking permission for ‘further investigation’ under section 173(8), the other course of action, open to the Magistrate, was to take recourse to the provisions of section 319 of the code, at the stage of trial, if any material surfaced during examination of the witnesses at the trial warranting exercise of power under section 319. The Supreme Court observed, in Reeta Nag’s case (supra), that not only was the Magistrate wrong in directing a ‘re-investigation’ on the application made by the de facto complainant, the Magistrate had also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. The relevant observations, appearing at paragraph 25, 26 and 27 of Reeta Nag (supra), read as under:

“25. What emerges from the abovementioned decisions of this court is that once a charge sheet is filed under section 173(2), Cr.PC and either charge is framed or the accused are 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 Authorities permit further investigation under section 173(8). The Magistrate cannot suo motu direct a further investigation under section 173(8), Cr.PC or direct a reinvestigation into a case on account of the bar of section 167 (2) of the Code.

26. In the instant case, the Investigating Authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.

27. Since no application had been made by the Investigating Authorities for conducting further investigation as permitted under section 173(8), cr.p.c., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of section 319 of the code at the stage of trial. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of section 319 if any material is disclosed during the examination of the witnesses during the trial.” (emphasis added)

Having reiterated, in tune, with Randhir Singh Rana’s case (supra), that Magistrate cannot, suo motu, or on his own motion, direct ‘further investigation’ under section 173(8), the Supreme Court, in clear terms, has held, at para 20, that since it was the de facto complainant and not the Investigating Authority, who had applied for ‘further investigation’ under section 173(8), the Magistrate could not have directed re-investigation, because such a course of action is beyond jurisdictional competence of the Magistrate. The conclusions, appearing in para 26 of Reeta Nag (supra), read as under:

“26. In the instant case, the Investigating Authorities did not apply for ‘further investigation’ and it was only upon the application filed by the de facto complainant under section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.”

We may pause here to point out that though in Reeta Nag (supra), it was, in effect, in the guise of ‘further investigation’, an re-investigation, which had been sought for by the de facto complainant, the fact of the matter remains that the Supreme Court laid down, in no uncertain words, in Reeta Nag (supra), that a Magistrate cannot, on its own, direct further investigation nor can he direct ‘re-investigation’ on the basis of any application made, in this regard, by a de facto complainant.

The son of a deceased, as in the present case, stands on no better footing than a de facto complainant.

Taking cue from the decision in Reeta NagVersus State of West Benga[SC 2009 August] , we should not have any difficulty in taking the view that irrespective of the fact as to there was any genuine reason, for the present appellant, for expressing his dissatisfaction with the investigation, which had become the basis for trial of the present accused-respondent, the present appellant had no right to seek ‘further investigation’ and/ or ‘re-investigation’ in terms of section 173(8); but, considering the fact that it has been, in the light of the submissions made by the learned counsel for the parties and in the light of what has been contended, specifically, by the learned amicus curiae, we are required to decide if Reeta Nag (supra) lays down a binding precedent in the matter of a court’s power to direct ‘further investigation’, at the instance of an informant, a de facto complainant, an injured or a person aggrieved?