Investigation and Prosecution of Economic Offence in India

Nimmagadda Prasad Vs. Central Bureau of Investigation, wherein with respect to the economic offences Supreme Court has observed as follows:

Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

Directorate of Enforcement is the Investigator of economic offences in India

Fugitive Economic Offenders Act, 2018

Foreign Exchange Management Act, 1999 ( FEMA)
Prevention of Money Laundering Act, 2002 (PMLA)
Foreign Exchange Management Act ( FEMA) Rules

Prevention of Money Laundering Act (PMLA) Rules
Scheduled Offences under PMLA

Foreign Exchange Regulation Act, 1947 (FERA)
Foreign Exchange Regulation Act, 1947 (Ammended FERA)
Foreign Exchange Regulation Act, 1973 (FERA)

Lawline

Connected Laws

  1. Customs Act, 1969
  2. Gold (Control) Act, 1968Gold (Control) Act, 1968
  3. Prevention of Corruption Act, 1988

Lawline

Consideration of Bail

In Fida Hussain Bohra Vs. The State of Maharashtra, where in the case of a charge involving criminal misappropriation of public funds some accused were granted bail, but the High Court had cancelled the bail granted to the Appellant. Supreme Court held that the appeal from an order granting bail had to be considered differently. It is, however, material to note that SC also observed in paragraph 8 that correctness or otherwise of the order passed by the Appellate Court setting aside an order granting bail or an order of cancellation of bail had to be considered on particular facts of each case.

In Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, was heavily relied upon, wherein this Court has held that where the accused has joined the investigation, is cooperating with the investigating agency, and is not likely to abscond, custodial interrogation should be avoided.

In Gurcharan Singh and Others Vs. State (Delhi Administration), and thereafter observed that the remedy u/s 439(2) to approach the High Court is also available where the State is aggrieved by the Sessions Judge granting bail on the basis of unjustified, illegal or perverse order. This paragraph 11 reads as follows:

11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh and Others Vs. State (Delhi Administration), In that case the Court observed as under: (SCC p.124, para 16)

If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court u/s 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

High Court’s inherent jurisdiction u/s 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction u/s 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified Madhu Limaye Vs. The State of Maharashtra, and Krishnan and another Vs. Krishnaveni and another,

Whether the Sessions Judge could order for further investigation- No

An application for further investigation in terms of Section 173(8) of Cr.PC was allowed by the Session judge.

The question that arises for consideration is as to whether the Sessions Judge or even the Magistrate, without any petition either by the complainant or by the investigating agency, could order for further investigation.

It further observed that when defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted.

Continue reading

Power to order fresh, de-novo or reinvestigation being vested with the Constitutional Courts

The power to order fresh, de-novo or re- investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination.

We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the ‘faith’ in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? Continue reading

Investigation of unnatural death case by police

“When there  is denial of existing of the possibility of a natural or accidental death, then  bring it within the purview of the ‘death occurring otherwise than in normal circumstances”

Provisions in the Criminal Procedure Code

174. Police to inquire and report on suicide, etc.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted. Continue reading

Whether anonymous letter sent in the name of a Judge can be entertained as Public Interest Litigation?

It is well settled that a public interest litigation can be entertained by the Constitutional Courts only at the instance of a bona fide litigant. The author of the letter in this case is anonymous, there is no way to verify his bona fides and in fact no effort was made by the Court to verify about the authenticity, truth or otherwise of the contents of the petition. Continue reading

Power of the police to investigate has been made independent of any control by the Magistrate

In S.N. Sharma vs. Bipen Kumar Tiwari and Ors. [(1970) 1 SCC 653].,this Court took the view that there is no mention of any power to stop an investigation by the police. The power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case, the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. Continue reading

Arrest, Custody, Bail and Remand in India

Power of arrest

Police Officers derive their powers of arrest without warrant from sections 41, 42, 43(2), 60, 129 and 151 of CrPC. Sections 46, 47, 49, 50, 51, 56, 57, 167 and 169 CrPC inter alia deal with procedures, during and after arrest.

Arrests can be made by Police Officers with Warrants issued by the Courts. There is no discretion allowed to the police in executing Warrants of arrests.

The Warrant must, be in writing, signed and sealed by the presiding officer. It should specify the offence as well as clearly the identity of the person to be arrested.

The Warrant sometimes may specify the date on which the Warrantee is to be produced in the Court. If such a Warrant cannot be executed within the time specified, a fresh Warrant might be obtained after returning the earlier one.

The validity of a Warrant is an important matter particularly in respect of those meant for arrest of persons in other countries.

The Warrants are either bailable or non-bailable.

In respect of bailable Warrants the arrestee should be released on bail when he offers the required security and in respect of non-bailable Warrants the Police Officer has no discretion, and the person must be produced before the concerned Court.

Prompt execution of Warrant is one of the foremost duties of the Police and should receive high priority.

The Warrant must be executed by the officer to whom it is endorsed. If that officer wants warrant to be executed by his subordinate officer he must make endorsement by name accordingly.

 Arrest takes away the liberty of a person and should therefore be affected in strictest compliance of the law.

Wherever it is warranted it should be promptly carried out but arrest is not to be effected just because a police officer has the power.

No accurate account of all circumstances under which arrest without Warrant can be made or should not be made can be detailed. He must exercise it with discretion.

Conditions necessitating arrest

To infuse confidence among the terror stricken victims, particularly in grave offences like murder, dacoity, robbery, burglary, rape, organized crime, terrorist offences etc.

In cases where the accused is likely to abscond and evade the  process of law;

  1. The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint;
  2.  The accused is a habitual offender and unless kept in custody, he is likely to continue to commit similar offences;
  3. Where it is necessary that his presence is required for the purpose of investigation.
  4. Where accused is likely to tamper or intimidate or cause physical hurt to witnesses or destroy other evidence.

Police Officer making an arrest should record in all the relevant records, the reasons for making the arrest, thereby bring out his conformity to the instructions given in this order and must be able to justify the arrest if required.

The Police Constables and Head Constables who make the arrest should submit a report detailing the circumstances of the arrest to the SHO or IO concerned who should incorporate the contents of such reports in the General Diary, Case Diary etc.

All Police Constables, Head Constables and Sub-Inspectors working in the field and empowered under law to exercise the powers of arrest without Warrant, should exercise their powers with prudence and be accountable for the arrest made in the discharge of their assigned tasks and duties.

No arrest should be made in a routine manner simply because the law empowers the police officer to do so. The existence of the power to arrest is one thing while justification for the exercise of power of arrest is quite another. The police officer must draw a margin between vindictivity and necessity.

The police officer may without arresting, keep a watch on a person and then arrest him, if subsequent events justify such action.No restraint can lawfully be exercised over a person so long as he is not arrested.

The arrest should be avoided if the intention is only to verify the suspicion of involvement against a person. A police officer may under section 160 CrPC issue a notice to the suspected person to attend the police station and interrogate him. He should not be detained for long and more than necessary.

[Joginder Kumar vs State of U.P. and others A.I.R. 1994 SC 1349]

Arrest of Children and Women

The Juvenile Act 2015  prohibits lodging of children in police lock-ups or being brought to police stations after arrest. Alternatives are provided for lodging the delinquent juveniles. The procedure prescribed therein should be observed in respect of juveniles.
The following instructions shall be followed whenever arrest of women is contemplated.While making arrest of a woman submission to custody should be presumed unless circumstances to the contrary exist.

There should be no occasion for a male Police Officer to touch her person. It is therefore advisable whenever it is proposed to arrest a female, women police should be employed.Arrest of women should as far as possible during night times be avoided unless it is inevitable.When it is not possible to secure the services of women Police Officers, an officer of the rank of ASI or above should effect the arrests.

Bail may be granted where the offence for which the arrest is made is not of a serious nature.

The SHO may exercise his discretion in non-bailable offences to release a woman arrestee on bail.Whenever a woman is arrested, the services of women Police Officers should be utilized for guarding and escorting her. If women Police Officers are not available in the Police Station, one of the relations of the arrested woman, of her choice can be permitted to remain with her.

When interrogation of the arrested woman is done by a male Police Officer the relation or woman Police Officer should be present. If a Woman Police Officer herself is conducting the interrogation, the presence of a woman relative may not be necessary.

Rights of Arrested Persons

The arrested persons have certain rights with which the Police Officers should be familiar. These are important from the human rights angle also besides being statutory provisions and should be respected.

The important rights are –

  1. Right to be informed of the grounds of arrest.
  2. Right to be produced before a Magistrate without unnecessary delay and within 24 hours
  3. Right to consult a legal practitioner or any one of his choice
  4. Right to be informed of right to bail
  5. Right of a person without means to free legal aid and to be informed about it
  6. Right to be examined by a Medical Officer

Devider

Direction to subordinates to arrest

When a Police Officer in-charge of a police station, or any Police Officer making an investigation, is himself not able to effect the arrest of a person, he may, under Section 55 of the CrPC depute any officer subordinate to him to arrest the person.

When such an officer is deputed, he should be given an order in writing specifying the person to be arrested and the offence or cause for which the arrest is to be made.

The officer so authorised shall notify to the person to be arrested, the substance of the order and, if so required by such person, shall show him the order. This section, however, does not take away the statutory power vested in all Police Officers by Section 41 of the CrPC.

A Head Constable in-charge of an outpost or a beat area or check post, without the intervention of the SHO, may take action in offences under special and local enactments, which empower the Head Constable to take action.

When a private person arrests any person who commits a non-bailable and cognizable offence in his view, he shall be taken to the nearest police station immediately and such person shall be re-arrested by the police.

The following requirements laid down by Supreme Court should be observed in all cases of arrest or detention:

The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

In D.K. Basu vs State of West Bengal. AIR 1997 Supreme Court Page 610 and Government Orders issued in this regardMemo No. 564, 23/HRC/93-12 dt. 20-10-97 of GAD. RC No. 43383/C3/87 dt. 22-10-97 of DGP.

That the Police Officer carrying out the arrest of a person shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either member of the family of the arrestee or respectable person of the locality where the arrest is made. It shall also be countersigned by the arrestee and contain the time and date of arrest.

A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the Police Officials in whose custody the arrestee is.

The arrestee should, where he so requests, be also examined at the time of his arrest about major or minor injuries, if any, present on his/her body. The Inspection Memo must be signed both by the arrestee and the Police Officer affecting the arrest and its copy provided to the arrestee.

The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a doctor from the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Mandals and Districts as well.

Copies of all the documents including the memo of arrest, referred to above, should be sent to the jurisdictional Magistrate for his record.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and it should be displayed on a conspicuous police board at the police control room.

Guidelines for a Police Officer in making an arrest

When a police officer proceeds to arrest a person and cannot identify him personally, he should secure the services of a person who knows the person to be arrested and should also provide himself, if available, with a photograph, a descriptive role and the marks of identification of that person. He should be sure of the identity of the person to be arrested.

The police officer should be in uniform with his name and number if any, on the pocket, besides carrying his identity card or, if in plain clothes, carry his identity card and should disclose his identity. He should arm himself with such firearms and accessories required for his defence, if the circumstances demand such a precaution.

Police parties engaged on anti-dacoity, terrorist operations or similar duties which are likely to lead to arrests of dangerous persons, should carry handcuffs and leading chains to secure the arrestees, to prevent their escape or violence.

The person to be arrested with or without warrant should be informed of the grounds for making the arrest.

The arrest should be affected without unnecessary violence or publicity.

Section 46 of the Cr.P.C lays down that the police officer making the arrest of a person shall do so by actually touching or confining the body of the person to be arrested, unless there is submission to the custody by word or action.

When a person is to be apprehended and if he resists by force or tries to evade, the arresting police officer may use necessary force to arrest him except causing death.

But if the accused to be arrested is involved in an offence punishable with death or imprisonment for life, the force can be even to the extent of causing death depending upon the circumstances.

When a person to be arrested is concealing himself in a closed place, the police officer has every right to enter such place even by force to affect the arrest. He can even arrest every one who obstructs him from discharging his duty. However, he must behave decently with women inmates.

Police officer can exercise the right of private defence of his body and others while facing resistance in making arrest.

Search of the arrested person by the Police

Whenever a person is arrested and not released on bail by a police officer a thorough search of his clothes and belongings should be made before putting him in lockup.

Articles found upon him other than necessary wearing apparel should be placed in safe custody and if any articles are seized from his person, a receipt showing the articles taken possession by the Police Officer shall be given to such person.

The personal articles of the person should be kept in safe custody in the Property Room (Malkhana) and entries made in concerned registers.

If there are any incriminating articles or objects or materials, which might be necessary for investigation, they should be separated and the procedure for recording and despatch of case property to courts should be followed.

The other property should be returned to him or his nearest kith or kin when he is remanded to custody.

Whenever it is necessary to cause a female to be searched, the search shall be made by a Woman Police Officer or another female with strict regard to decency.

The officer or other person making any arrest, shall seize from the arrested person any offensive weapons, which he has on his person and shall deliver all weapons so taken to the court or officer before which or whom he is produced.

Treatment of the arrested persons Whenever any person is arrested by a Police Officer or by a private person and is brought to the police station, the SHO shall examine the body of the arrested person and note whether he has any injuries over his body.

If any, injuries are observed irrespective of their nature, he should forward the said person to the nearest Medical Officer of the Government Civil Hospital or other Hospitals of local bodies authorized for medico-legal work, for treatment and injury certificate. The Medical Officer should be requested to specify the age of each injury.

When any person with injuries in a serious condition or a drunken person in uncontrollable condition, who is unable to take care of himself, is brought to the police station, the SHO shall immediately forward such person(s) to the Government Hospital.

Any delay may cause death, in which case the Police Officer in-charge of the police station will be held responsible. The statement of the injured person should be recorded in the hospital and further action taken.

When an arrestee demands examination of his body, which will afford evidence to disprove the charge leveled against him and establish his innocence or evidence of an offence against his own body, the Police Officer should forward him to the Medical Officer of the Government Civil Hospital for the examination and injury certificate. Such a certificate shall be forwarded to the Magistrate concerned.

Police Custody

A person who is arrested and not released on bail shall be detained in a secure area of the Police Station earmarked for such purposes, under constant watch.

A prisoner whom the SHO considers to be dangerous and is likely to escape should be kept in the lock-up under continuous and effective watch. This should be done only after making a thorough search and necessary entries should be made in the prisoners search register and guard or watch sentry relief book.

A person called to a police station for questioning in order to verify his complicity in any offence shall not be kept in lock-up, without effecting arrest.

Arrested persons who are known to be goondas, rowdies, dangerous criminals, members of organized gangs, terrorist groups, those likely to escape and charged in serious offences of murder, rape, kidnapping for ransom etc. should be kept in the lock up rooms.

A person in police custody shall not be permitted to leave the lock-up after sun set, except in special and emergent circumstances (and that too with adequate escort) which shall be recorded in the general diary and the Sentry Relief Book.

A person in police custody prior to remand is entitled to see his relatives and an Advocate. He should not, however, be allowed to talk to members of the public.

 If the arrested person desires that one of his relatives may be permitted to remain with him, his request should be considered unless there are compelling security reasons.

If the arrested person for health reasons prefers to get his food from his residence, he can be permitted, but the person bringing food to the police station should be made to eat samples of all the food items before serving to the person in custody.

However, in normal course, the arrested persons should be fed at Governments cost as per the rates approved from time to time.

Whenever any punitive action is taken or contemplated against a foreigner, he should be provided with facilities, if he so desires, to communicate over the telephone or by a telegram or letter, with the Counsel, High Commissioner or other representative of his country, as the case may be.

Arrest Reports or Memo

Every person arrested by a police officer without a warrant shall be forwarded for judicial remand to the nearest Judicial Magistrate within 24 hours excluding the journey time.
An arrest report or memo in Form No. 61 containing time, date and place of arrest shall be prepared at the time of arrest and will be sent by the SHO or Inspector, as required by section 57 Cr.P.C. to the Magistrate.

The arrest report shall be attested by at least one witness who may be either a member of the family of the arrestee or a respectable person of the locality. The arrestee shall also countersign it. The other columns of the arrest card containing time and date etc. should all be filled up.

When any person is arrested for his involvement in number of cases under different transactions, separate arrest reports should be forwarded to the Magistrate(s) concerned. In the arrest report, the fact of remanding the arrested person or enlarging him on bail should be mentioned.

Procedure when arrests relate to Government employees, armed forces etc.

Railway Officials

The exercise by the Railway Police of the power of arrest without warrant given to them by Section 131 of the Indian Railways Act for offences under Section 101 of the same Act is discretionary. It should be exercised only in cases, when

There has been loss of life or serious injury to a person; or A person is caught in the commission of a grave offence; or The accused is likely to abscond or continue to endanger the safety of the public or tamper evidence and intimidate witnesses.

When an arrest is made without warrant, immediate intimation of such arrest must be given to the local head of the railway department.

Under ordinary circumstances, immediate arrest may not be necessary. A warrant should be applied for while maintaining a watch over the movements of the accused, where necessary.

Whenever the arrest of a Railway employee on duty is required, the department shall make arrangements for his relief. If, the relief cannot be arranged immediately or his immediate arrest would cause risk or inconvenience, the police should make all arrangements to prevent his escape and contact the authorities for immediate relief.

Arrest of Ordnance Factory Employees G.O.Ms. 2013, Home, (Pol.C), dt. 24.8.1956.

Arrest of an employee of an ordnance factory owned or sponsored by the Government should be notified immediately to the General Manager or the officer in-charge of the factory.

G.O. Ms. 2013, Home (Pol.C), dt. 24.8.1956. Arrest of Central or State Government or quasi-Government employees

When a Central government employee of any department or a State Government employee or an employee of a quasi-Government Organization is to be arrested by the police, wherever it is practicable and desirable, prior intimation of the arrest of such an employee should be sent to his immediate superior officer or the officer in-charge of the institution or department.

The prior intimation must be treated as secret. Whenever prior intimation is given by telephone, it should be followed by a written intimation mentioning the time and date of such conversation.

The fact of telephoning should be recorded in the General Diary if intimation is by SHO.

If the intimation is by a superior officer he should make a record of it in the Telephone Register. After the arrest by the police,

G.O.Ms. 2013, Home, (Pol.C), dated 24.8.1956.

Intimation of the arrest along with a copy of arrest memo should be sent immediately to the highest officer of the department available in the district to which the person belongs with a copy to the immediate superior officer (of the person) if, for any reason, prior intimation could not be given;

This should be followed by a detailed report of the offence committed together with an indication as to whether the arrested person is being released on bail or personal bond, by the police.

Arrest of public servants on operational duty G.O.Ms.No. 772, Home (Police-D) Department, dated 18.5.1965

When a public servant on operational duty of a department of the Central or State Government, e.g., railway staff like station masters, assistant station masters, guards, drivers and train control staff; or electricity department staff like sub-station attendants, is to be arrested, prior intimation should be given to his immediate superior, as a rule, to facilitate them to make alternate arrangements.

Departure from the procedure should be made only in very exceptional cases and even in such cases; intimation should be given to the superior officer immediately after the arrest of the public servant. However, in respect of the operational staff of the trains, prior intimation should invariably be given to the Railway Divisional Authorities or where this is not possible, to the superior available at the Station where the arrest is made.

Arrest of employees of Foreign Diplomatic/Consular missions in the event of the arrest of an Indian employee of a Foreign Diplomatic/ Consular Mission, intimation should immediately be given to the Foreign Diplomatic/Consular Mission through the Government.

Arrest of foreigners

When a foreigner is arrested, reports, as required in Order 349 of Chapter 16 on Foreigners, should be sent.

Arrest of Military employees

The arrest of personnel of Armed Forces including Navy and Air Force charged with the commission of an offence should be intimated to the Commanding Officer to enable him to take appropriate measures for the defence of the personnel.

Subject to sub-order (A) above, the person so arrested shall be dealt with in all respects like any other person in the matter of the investigation of the offence in respect of which he is arrested.

The question as to whether he is to be tried by a Court Martial or a Court functioning under the Cr.P.C. is a matter for decision between the Commanding Officer and the Magistrate before whom he is brought by the police, in accordance with the rules made by the Government of India under Section 475 CrPC.

When any investigation, search or arrest is contemplated within military lines (quarters), the Police Officers concerned should be in uniform and if in plain clothes should carry identity cards and, so far as circumstances permit, prior notice should be given confidentially to the Officer Commanding, Adjutant or Orderly Officer concerned.

Arrest of Indian Army Reservists

When a reservist of the Indian Army is arrested and remanded on a criminal charge, the facts of arrest and remand will at once be reported to the DGP with information to the Army unit to which the person arrested belongs. When the case is completed, its result and, in the event of conviction, the period spent in jail by the accused while under trial, prior to conviction and the sentence awarded shall be reported.

The information so reported will be communicated by the DGP to the appropriate Army authority.

Arrest of Members of State and Union Legislatures 

All the rights, that any arrested person has, are available to Members of Legislature and Parliament whenever they are arrested. All guidelines and instructions contained in this Chapter apply to them.

The procedure contained in this should be scrupulously observed whenever any Member of Legislative Assembly/Council or Parliament is arrested by the police. Govt. Memo. 6646/54-5, Home (Elec.II) dt. 8.3.1955; Govt. Memo. 2233/56-1, Home, (Elec.II) dt. 24.4.1956; Rc.3563/C1/63, dated 25th Sept., 1963;G.O.Ms.No. 1392, Home, (Police-D) Dept., dt. 22.6.1966.

Whenever a member of a State or the Union Legislature is arrested, he should immediately be produced before the Magistrate concerned and there should be absolutely no delay. The police will send information of the arrest through a telegram or Radio Message, to the Speaker of the Lok Sabha or the Legislative Assembly, as the case may be.

Failure to send immediate intimation to the presiding officer of the Legislature concerned will constitute a breach of the privilege of the House.

If a member of the Union or a State Legislature is concerned in an unimportant case, he need not be arrested, except when it is really necessary. When arrest is made in a bailable offence, the member should be immediately released on his own recognizance. If the offence is a non-bailable one, the member should be immediately produced before the Magistrate. In any case the fact of arrest and release on bail or remand should be intimated to the Speaker.

Though the instructions are that the Magistrate should send intimation to the Presiding Officer of the Legislature concerned, prompt reporting by police is necessary.

A report of the arrest (whether released on bail either by the Police or by the Magistrate) should be sent by the SP/CP in whose jurisdiction the arrest is effected to the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha, the Speaker of the State Legislative Assembly or the Chairman of the Legislative Council, as the case may be, by telegram or Radiogram or automex or fax with a copy of confirmation dispatched simultaneously by speed post along with a copy of Arrest Memo in Form-61.

The message should contain the information as furnished in the arrest memo sent to Magistrate and relatives (Form 61). Thereafter a detailed report should be sent to the Presiding Officers concerned containing the following information:

 The place of custody or detention of the Member;

When a Member, who is under detention or is undergoing, a sentence of imprisonment is transferred from one jail to another, the change in the place of detention or imprisonment; and

When a member is released from jail on any ground e.g., on bail pending appeal or on the sentence being set aside on appeal or on the remission of sentence by Government on completing the sentence or on the termination of preventive detention, such release.

The SP/CP also should simultaneously report the arrest by telegram or radiogram to the DGP, to enable him to report it forthwith to the Government and the Secretary to the Legislature. The copies of such reports should also be sent to the superior police officers.

Police lock-ups and treatment of persons in custody and under trial prisoners Rc.No. 449/ J3/62, dated 10.10.62

Once a person is in custody of the police, the responsibility for his life and safety will be totally on the police. The physical and psychological condition of every person in custody is a major factor that should determine the precautions, facilities and arrangements required to be made. The other factors such as the nature of the offence in which he is involved, the investigation required to be done, the antecedents, age, sex, ignorance and vulnerability are all vital and crucial. While every case has its peculiar features and circumstances, certain important stipulations should be observed.

The first requirement is physical safety of the person in custody. This includes safety from injury and death, whether self inflicted or otherwise. As the psychological state of each individual cannot be accurately gauged, it is necessary to realize that the general mental state of a person arrested and brought to police station would be fear, shock, trauma, sense of guilt and shame etc. Suicidal tendencies therefore develop.

Hence the place where he is lodged should not contain anything including his apparel or belongings that afford him any opportunity to attempt or commit suicide.

There should be a watch on the person all the time, at least by one policeman. The room or place where he is kept should be such as to afford a full view to the Police Officer posted to watch him and also to the Station Writer, HC or Duty officer. The place of work of these two should be so adjusted as to afford a complete view of the lock up rooms.
Wherever any attempt or suspicion about the movements or action comes to notice, the lock up room should be opened and searched.

There should be effective intervention to prevent attempt at suicide and injuries. The whole episode should be recorded in the station General Diary, Sentry Relief Book and the person should be sent for Medical examination with a report. The Magistrate and all other authorities to which Form 61 report is made should also be informed in writing.
The statements of other persons in custody and those present should also be recorded and enclosed to the report.

Since the person is in custody, sometimes even self-inflicted injuries or suicides can be interpreted as those caused by police. Hence effective and timely intervention, contemporaneous recording of events, reporting to all concerned of such attempts by persons in custody are important.

No Police Officer or IO shall use any force or cause any physical injury during interrogation of the person in custody. If such injuries are caused and result in death of the person, the Police Officers concerned will be liable for prosecution for homicide and the burden of proof of their innocence lies on them.

Custody rules

No one shall be subjected to torture, or to cruel inhuman or degrading treatment in custody.
Two blankets and two dhurries for rural stations and four blankets and four dhurries for town police stations having lock-ups should be supplied for the use of persons in police custody for each lock-up. These should be always kept clean, washed and dried. These articles will be treated as station property and the officer-in-charge of the station or Outpost will be responsible for their issue to such of the prisoners who do not provide themselves with their own bedding.
The police lock-up, if it contains a prisoner or prisoners shall be unlocked at daybreak. The bedding of the prisoners, shall be at once brought outside, well shaken and left for some hours in the sun.G.O 3017, Home, dt. 2.8.1937.
In lock-ups where toilet facilities are not provided, the night vessels, if any used, shall be removed and toilets shall be thoroughly cleaned. Wherever toilets are provided they should also be thoroughly cleaned.
The persons in custody shall be taken to the latrine and shall be allowed to wash. They shall be given food daily at 10.00 am or earlier if necessary before he is taken to Court and again at 5 pm. If prisoners are not brought to the station before the hours prescribed for meals they should be given food as soon as possible after they are confined in the lock up rooms. They should be fed at government cost if food is not brought by their relatives.

Officers in-charge of Police stations and officers in-charge of guards will be held personally responsible for strict compliance of these orders.

Prisoners are not to be subjected to needless indignity or harsh treatment. At district Headquarters or at places where police vehicles are available, prisoners should be conveyed from jail to court and back in the police vehicles. Prisoners whose confessions are to be recorded should be taken to the Court from the jail in a police van, when available, escorted by warders as a special case. In places where there is no police van, but where public transport is available, under-trial prisoners should be conveyed by normal bus service, irrespective of the distance to be travelled, provided that the number of prisoners to be taken at a time is small and can be controlled easily and provided that their presence in the bus does not cause inconvenience or annoyance to members of the public using it.

In places where none of the above modes of conveyance are available, under-trial prisoners who are persons of good social position, accustomed to use a conveyance, may be allowed a conveyance, provided their safe custody is not jeopardized. The same rule should be followed in the case of prisoners who are certified by a Medical Officer to be physically unfit to walk.

In other cases, prisoners should go on foot except in the cases noted below, but no prisoner should be compelled to march on foot for long distances.

G.Os. 464, Pub. (Pol.), dated 19.10.1930; 1917, Law, (Genl.) dated 11.3.1932 & 5394, Home, dated 13.10.1939.

When convicted prisoners are escorted along with under-trial prisoners, the former may be conveyed by the transport Bus in which the latter are conveyed, irrespective of the distance travelled, in order to avoid the inconvenience and expense of providing a separate escort for them.

Whenever women prisoners have to be escorted by road, they should be provided with a conveyance, where the distance to be travelled by them exceeds 2 km. Conveyance may also be provided for shorter distances for reasons of health or custom or for other valid reason. Failure to make such provision would cause undue hardship to them.
G.O.Ms 2768, Home, dt. 27.6.1940

Use of handcuffs

The use of handcuffs or leg chains should be avoided and if at all, it should be resorted to strictly in accordance with the law mandated in judgment of the Supreme Court in Prem Shanker Shukla vs. Delhi Administration (1980, 3 SCC 526) and Citizen for Democracy vs State of Assam (1995, 3 SCC 743).

The points to be observed in this regard are as follows:

When an accused is in Court during the trial, he must be held to be in the custody of the Court. If an accused is so dangerous that it is necessary to handcuff him, representation should be made to the Court, and the Court will issue appropriate instructions in the matter.

Accused persons while in Court during trial should not be handcuffed except with the permission of the Court.G.O. Ms. 1832, Home, dated 10.5.1951.

 Under-trial prisoners and other accused persons shall not be handcuffed and chained without specific permission of the court and only if there is a reasonable apprehension, either due to heinous nature of the crimes with which they are charged or from their character or behaviour that such persons will use violence or will attempt to escape or that an attempt will be made to rescue them. The same principle shall be applied to convicts proceeding in public places while in police custody. Vindictivity is to be differentiated from necessity.

G.O.Ms. 108, Home (Pol.D) dated 17.1.61. Whenever non-convicted accused persons are handcuffed with courts permission, the fact and the reasons for it shall be stated in the Station House general diary, the sentry relief book, and in the remand diary forwarded to the Magistrate.

G.O. 615, Judl., dated 24.4.1908.

The prisoners either convicted or under trial and confined in a sub-jail shall not be handcuffed, whenever they are taken out in the precincts of the sub-jail for food or other necessities, rather the entire guard including the guard commander shall be present. If there are more number of prisoners, the guard in-charge should inform the officer in-charge of the police station to send two or three constables to assist the sub-jail guard during the period when the prisoners are taken out. The officer in-charge of police station shall provide extra manpower as required by the guard-in-charge.

Whenever, it is considered necessary to handcuff certain prisoners confined in sub-jail, while they are taken out, the written orders of the Magistrate should be obtained and the permission granted by him should be maintained in a book to be kept by the guard officer.

With regard to a refractory, violent or dangerous prisoner, the officer in-charge of the sub-jail guard or the senior Police officer present may control him only by utilising more personnel and by such force as may be necessary, while rushing a messenger to the concerned court or Magistrate for permission to handcuff him.

Under-trial prisoners or accused persons in Hospital should not be handcuffed without permission of the court. In no case should prisoners or accused persons who are aged and bed ridden in hospital or women prisoners, juvenile prisoners or civil prisoners be handcuffed or fettered. If necessary, extra guard should be provided.

G.O.Ms. 108, Home (Pol.D) dated 17.1.1961.
The restriction on use of handcuffs is not to place any embargo on use of minimum force to control a violent prisoner.

Sick prisoners

When a prisoner, who arrives at a Police station, is seriously ill, medical aid should be provided. When not available, the prisoner should be sent by the quickest conveyance available, if his condition admits of it, to the nearest station where medical assistance can be procured.

Prisoners attacked by cholera or other infectious or communicable disease in a police station should be removed from the lock-up and placed in an airy part of the station and all possible treatment provided.

Whenever sick prisoners are brought from rural police stations to district head-quarters hospitals and admitted as in-patients, the fact should be reported to the Superintendent of Police of the district or Dy. Superintendent of Police or the Inspector of the District Reserve Police in whose area the hospital is located, and an armed guard will be provided from the Reserve.

In larger hospitals in cities, where prisoners wards are provided, the guard provided for the prisoners ward should take charge of such prisoners brought from the districts. The guard in-charge of the district headquarters hospital or city hospital, should find out from the resident Medical Officer or in-charge Medical Officer of the ward about the probable date of discharge of the prisoner. The information about date of discharge should be furnished to the police station or district from which the prisoner was admitted to the hospital, so that; the concerned police shall take back the prisoner.

Most of the District Headquarters Hospitals/General Hospitals are provided with prisoners ward. If such provision is not available the SP or the CP should take up the matter with the concerned authority and ensure that the prisoners ward as per the norms is provided. The prisoner irrespective of his status should be lodged in the prisoners ward as to ensure their safety and enable the police to guard them effectively.

This would also prevent inconvenience to other patients. Arrangements are to be made for their treatment in the prisoners ward itself except where it is necessary to shift them in emergencies either to an operation theatre or to an Intensive Care Unit. The government has issued instructions in this regard to the concerned authorities.

In case of death of a prisoner admitted to the hospital, the officer in-charge of the police station in whose jurisdiction the hospital is situated shall register a case under section 174 CrPC and, inform the Executive Magistrate to hold inquest and make such other enquiries. Finally the dead body will be handed over to the relations through concerned police.

The scale of accommodation for prisoners

The maximum number of prisoners that can be confined in a lock-up should, in each case be fixed by the Superintendent of Police in consultation with the Executive Engineer, Police Housing Corporation or Roads and Buildings Department, having regard to the accommodation available therein. A notice in English, Telugu, Urdu and Hindi should be displayed outside the lock-up, showing the maximum number of male or female prisoners who may be confined in it. The number so fixed shall never be exceeded; and any excess over the authorized number shall be accommodated in any convenient building with adequate guard.G.O.s. 1672, Judl., dated 11.7.196 and 325, Home (Judl.) dated 9.2.1918.
For purpose of the above Order, 16 cubic meters of breathing space and 4 square meters of ground space should be taken as the minimum requirements for each prisoner to be accommodated in a police lock-up.
PWD Circular, Memo. 3266, G, dated 19.7.1917.
The design of the lock-up rooms should be prepared in such a manner as to ensure adequate ventilation and light and other safety measures. The electrical wiring should be concealed and the lights embedded in the roof with the switch being kept outside at the entrance to the lock-up. There should be no rods or hooks either on the ceiling or on the walls and both ceiling and walls should be smoothly polished and whitewashed frequently.
Accommodation of persons outside the lock-up rooms in the station premisesThose prisoners who are not likely to escape or create any problem or those who are not involved in any serious crimes and the women may be allowed to be in any area of the police station under watch. They should not, however, be allowed any contact with outsiders except with their advocate or in case of women with a female relative.

In case where large numbers of persons are arrested under 151 CrPC to prevent breach of peace, they may be made to sit in a place either within the premises of police station or in another building which has access control and with facilities for drinking water and toilets. Where it is not necessary to detain them for any length of time they should be released after making a complete record of each person and the reasons for arrest in the concerned records.

Where it is felt necessary to detain them for a few hours and they are not required to be produced before a Magistrate for any specific offence they may be released by the SHO at any time that he considers appropriate.

The detention should, in any case, not exceed 24 hours as laid down in section 57 of CrPC. They should all be given food at government cost if not arranged by their relatives or friends.

Confinement of other department prisoners in lockup

When any prisoner arrested and escorted by officers of other units such as police stations & CID, Excise, Customs etc., are brought for confinement in the police station lock-up, a written requisition shall be given to the officer in-charge of the police station and the latter shall keep such prisoners in the lock-ups. The Officers of the other units will keep their subordinates besides police station guard.

If there are no prisoners in the concerned police station lock-up, the key of the lock-up shall be given to the officers of other branches or units or departments and they will be responsible for the prisoners safe custody.

In the lock-up if there are already prisoners of the concerned police station, the key shall remain with the in-charge of the guard.

In all circumstances, the duty of supplying the prisoners with food and guarding them, when taken outside the lock-up, shall lie with the outside officers.

Escape from Custody

In all cases of escape of prisoners from police custody including those from jails where police guards are posted, a report by Automax, Fax, Radio or Telephone shall immediately be sent by the Superintendent of Police or the Commissioner of Police as the case may be to the Director General of Police, Addl. DGsP, L&O, Intelligence, CID, Zonal IG/DIGP who will communicate the information immediately to the government.

G.O.Ms.No. 1599, Home (Prisons-B) Department, dated 4.9.1966.

The radio or telephonic report shall immediately be followed by a detailed report in triplicate furnishing the circumstances under which the person escaped, whether the escape of the prisoner was accidental or as a result of collusion or negligence, the action taken to apprehend him, the person or persons responsible for the escape, the exact quantum of responsibility to be attached to the Police personnel involved and the action taken against them, and other relevant particulars. These reports should be properly drafted and neatly typed with proper care.

G.O.Ms.No. 1599, Home (Prisons-B), dated 1-2-57;Govt. Memo No.14957/57-1, Home (Prisons-B), dated 26-1-57;Govt.Memo No. 53948/57-2, Home (Prisons-B), dated 18-7-57 andGovt.Memo No.11974/60-46 dated 17-10-1962

Copies of the reports shall be sent by the Superintendent of Police to the Zonal Inspector-General/DIGP. Copies of the reports in respect of cases of escapes from jails where Police Guards are posted shall also be sent to the Director-General of Prisons, Andhra Pradesh.
Rc.No.1940/ C2/64, dated 22nd October, 1964. The above orders apply also to juvenile convicts.
Rc.No. 3406/ C2/63, dated 17.10.1963 andRc.No. 1940/ C2/64, dated 22.10.1964.

Devider

Bail

Bail broadly means security for release of a person who is arrested. A person is released on bail with or without sureties. Offences are of two types as far as bail is concerned, bailable and non-bailable. When a person is arrested for a bailable offence, he is entitled to be released on bail either by the SHO or by court. In cases of arrests for non-bailable offences, bail is discretion.

Bail in bailable offences:

The SHO is competent to release a person on bail when arrested for bailable offences. If the arresting police officer is not the SHO, the arrestee shall be produced before the SHO with a written report for release on bail. If the accused jumps bail in a bailable offence and when he is arrested again, it should be treated as a non-bailable offence. In case bail is given by SHO in bailable offence the bond should be taken in Form 63. The detailed addresses of the sureties have to be noted there in.

Bail in non-bailable offences:

When a person is arrested for a non-bailable offence ordinarily he shall be produced before the court but the SHO may release on bail in exceptional cases covered by section 437(1) and (2) Cr.P.C after obtaining express permission by SP / DCP / CP concerned.   Points for opposing bail in non-bailable offences:

Likelihood of absconding.

Possibility of tampering with evidence, intimidation and threats to witnesses.

Likelihood of repeating the offence.Nature of the offender and the seriousness of the offence.

Likelihood of breach of peace and tranquility in the locality.

Likelihood of retaliations by the victims party.

Bailable warrants: – When a person is arrested under a bailable warrant, he should not be compelled to come to the police station to give bail. He should be given bail at the place of arrest if he offers security.

Anticipatory bail

When a person apprehends arrest for a non-bailable offence on a reasonable suspicion, he may apply to the High Court or Sessions court to give a direction to release him on bail in case he is arrested.
In such cases the court gives notice to the P.P. for his objections, if any. The SHO must furnish the P.P. with sufficient information to enable him to argue the case.

In case the order is given in favour of the petitioner, the direction will be that he should be released on bail in case he is arrested on taking security as specified in that order. This clearly shows that the police officers are competent to arrest even if one gets such order. The only facility is that he should be released on bail in case of arrest without producing him in court.

The court may be requested to impose conditions in case an order is given in his favour. Such conditions can be;

That the person shall make himself available for interrogation as and when required. That, he shall not directly or indirectly tamper with evidence or witnesses. That, he shall not leave the place or the country. That, he shall co-operate with the investigation.

Remand of arrested accused

When a person is arrested during the course of investigation and if the investigation is not completed within 24 hours, the officer in charge of the police station shall forward the accused to the nearest judicial magistrate along with a remand report enclosed by the case diary written till that date.

The accused will be remanded only when the investigation discloses some offence against him so far and further investigation is needed for completion.

A remand at a time will be for a maximum period of 15 days.

However, in cases under Control of Organised Crimes Acts and Prevention of Terrorism Act 2002, the police remand may be for 30 days.

Further remand, if necessary, is only by the jurisdictional magistrate.

The police can seek remand for 60 days in ordinary cases where offences are punishable with imprisonment for less than 10 years and 90 days in cases punishable with death or life imprisonment or with imprisonment for not less than 10 years. If the charge sheet is not filed within that period, the accused shall be entitled for a bail even in a serious case like murder.

No accused shall be remanded to judicial custody unless he is produced before Magistrate. But in Andhra Pradesh an accused can be remanded even from jail by means of video conferencing.

An accused can be remanded separately for each and every case committed under different transactions.

Remands always shall be given by the Judicial Magistrate, but in the absence of any Judicial Magistrate, an executive magistrate on whom the powers of Judicial Magistrate are conferred can give remand, if the arrested person is produced before him.

In such cases the remand can be only for a maximum period of 7 days by executive magistrate. Beyond this, remand can be given only by the competent Judicial Magistrate.

Police custody

When it is necessary for the police to interrogate an accused who is remanded to Judicial custody to take under  police custody, the following points shall be borne in mind:

  1. Taking a person to police custody is only granted when the magistrate finds sufficient reasons. Therefore the police officer in his requisition shall state satisfactory reasons.
  2. Police custody can be given only within the first fifteen days of remand and that too for a maximum period of 15 days. Police custody can be taken for different remands made in different cases.
  3. After the period of custody is over, the accused person shall duly be produced before the magistrate within time.

Devider

 


 

Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors.[SC 2017 FEB]

Keywords: FURTHER INVESTIGATION

  • 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.
  • 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.

ACT : Section 173(8) of the Code of Criminal Procedure, 1973-sub-Section (3) of Section 156 Cr.P.C

DATE : FEBRUARY 02, 2017

BENCH :  (DIPAK MISRA)  (AMITAVA ROY)

HISTORY : 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 police.

SUPREME COURT OF INDIA

Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel & Ors.

[Criminal Appeal No.1171 of 2016 arising out of S.L.P (Criminal) No.3338 of 2015]

AMITAVA ROY, J.

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 police.

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 arguments.

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 conclusion.

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 hereunder:

“173. Report of police officer on completion of investigation.-

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

(1A) The investigation in relation to 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 investigation;

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

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

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

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under 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 provision.

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 (2).”

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 1973.

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 committed.

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 Court.

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 investigation.

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 appellant.

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 dismissed.