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REPORTABLE  IN THE SUPREME COURT OF INDIA  

 CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NOS.478-479 OF 2017  

Vinubhai Haribhai Malaviya and Ors.          … Appellants    

Versus    The State of Gujarat and Anr.                  …Respondents  

J U D G M E N T  

 R.F. Nariman, J.      1. This case arises out of a First Information Report  

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

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

holder of Ramanbhai Bhagubhai Patel and Shankarbhai  

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

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

Haribhai Malaviya is blackmailing these two gentlemen with  

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

Gujarat and which admeasures about 8296 square meters. The  

FIR alleges that Ramanbhai Patel and Shankarbhai Patel are

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absolute and independent owners of this land, having obtained it  

from one Bhikhabhai Khushalbhai and his wife Bhikiben  

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

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

Bhikhabhai and Bhikiben together with Vinubhai Haribhai  

Malaviya and Manubhai Kurjibhai Malaviya have hatched a  

conspiracy in collusion with each other, and published a public  

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

newspaper on 07.06.2008. Sometime thereafter, Vinubhai  

Haribhai Malaviya then contacted an intermediary, who in turn  

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

according to Nitinbhai Patel, Vinubhai Malaviya demanded an  

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

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

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

Bhikhabhai and Bhikiben together with Vinubhai Haribhai  

Malaviya and Manubhai Kurjibhai Malaviya have used a fake and  

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

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

Ramanbhai and Shankarbhai Patel.

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

Khushalbhai was the original tenant of agricultural land, bearing  

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

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

Khushalbhai died, after which his son Bhikhabhai became tenant  

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

Bhikiben died on 18.12.1999. A public notice dated 07.06.2008  

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

heirs of Bhikhabhai, stating that Ramanbhai and Shankarbhai  

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

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

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

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

entries that were made way back in 1976.  

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

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

22.04.2010 being submitted to the Judicial Magistrate (First  

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

cognizance and issued summons to the accused regarding  

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

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

Pursuant to the summons, the accused appeared before the said  

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

by Accused No.1 Vinubhai Haribhai Malaviya for further  

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

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

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

applications for further investigation (Exhibit 31) and for  

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

dated 24.08.2011, the Magistrate dismissed the applications that  

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

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

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

the trial. Likewise, on 21.10.2011 the learned Magistrate also  

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

29 and 32).  

4. Meanwhile, on 26.07.2011, Criminal Miscellaneous  

Application No.816 of 2011 was moved by Vinubhai Haribhai  

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

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

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

by the learned Magistrate by an order dated 09.09.2011.  

5. Separate criminal revision applications were filed before  

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

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

Magistrate of further investigation and the order rejecting  

registration of the FIR were concerned. Both these revision  

applications were decided by the learned Second Additional  

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

this order, the learned Second Additional Sessions Judge went  

into details of facts that were alleged in the application under  

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

further investigation. Accordingly, he held:  

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

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such investigation that any offence was committed, then  appropriate criminal proceedings can be initiated  against such person.”      

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

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

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

investigation reports – one within three days, dated 09.03.2012  

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

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

filed. On 13.06.2012, the original accused withdrew Special  

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

which was filed challenging the order by which the learned  

Revisional Court had confirmed the order rejecting the discharge  

applications, with liberty to move an appropriate application for  

discharge before the Magistrate. The High Court heard Criminal  

Revision Application No.44 of 2012 together with Criminal  

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

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

possess any power to order further investigation after a charge-

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

castigated IO Munshi, holding that the furnishing of interim

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investigation reports, not through a special public prosecutor and  

not to the Magistrate, but to the Additional Sessions Judge  

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

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

that the two interim investigation reports virtually acquitted the  

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

judgment of the learned Second Additional Sessions Judge  

dated 10.01.2012, and consequently, the two further interim  

investigation reports. So far as Criminal Revision Application  

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

Additional Sessions Judge without considering merits, in light of  

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

concerned, the High court remanded the same for fresh  

consideration to the learned Second Additional Sessions Judge,  

who would then decide as to whether an FIR should be  

registered, insofar as the allegations contained in the  

applications for further investigation are concerned. Pursuant to  

the aforesaid remand, by judgment dated 23.04.2016, the  

learned Additional Sessions Judge has rejected the application  

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

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

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is awaiting disposal. Several other proceedings that are pending  

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

have no immediate concern in this case.  

7. Shri Dushyant Dave, learned Senior Advocate, appearing  

on behalf of the Appellants, has forcefully argued, placing  

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

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

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

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

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

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

communication made by the Commissioner of Revenue, Gujarat  

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

contents of this communication would show that there is no  

doubt that further investigation ought to have been carried out on  

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

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

of justice if the learned Second Additional Sessions Judge’s  

judgment dated 10.01.2012 was not upheld. According to him,  

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

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(1) IO Munshi submitted further interim investigation reports very  

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

Sessions Judge instead of the Magistrate; resulting in the  

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

us to uphold the order of the Second Additional Sessions Judge  

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

of the matter in this case.  

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

Senior Advocates appearing on behalf of the respondents,  

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

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

was sought to be adduced is evidence which may perhaps  

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

impermissible. They emphasised that at no stage had an  

application been moved to quash the proceedings, and  

obviously, a belated application made more than a year after  

cognizance had been taken, to obtain by way of further  

investigation facts which were wholly divorced from the FIR  

would be wholly outside the Magistrate’s power under Section  

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

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

post-cognizance and particularly after summons is issued to the  

accused, and the accused appears pursuant to such summons,  

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

the accused, for further investigation at this stage of the  

proceedings.  

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

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

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

up to what stage of a criminal proceeding.  

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

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

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

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

Inquiries and Trials”. Chapter XIV speaks of “Conditions  

Requisite for Initiation of Proceedings”. Chapter XV then speaks  

of “Complaints to Magistrates”. Chapter XVI is headed  

“Commencement of Proceedings before Magistrates” and  

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

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

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

Summary Trials”, respectively.    

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

concerned are as follows:  

“156. Police officer’s power to investigate  cognizable case.-  

(1)  Any officer in charge of a police station may, without  the order of a Magistrate, investigate any cognizable  case which a Court having jurisdiction over the local  area within the limits of such station would have  power to inquire into or try under the provisions of  Chapter XIII.  

xxx xxx xxx  

(3) Any Magistrate empowered under Section 190 may  order such an investigation as above-mentioned.  

xxx xxx xxx  

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

xxx xxx xxx  

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

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xxx xxx xxx  

190. Cognizance of offences by Magistrates.- (1)  Subject to the provisions of this Chapter, any Magistrate  of the first class, and any Magistrate of the second class  specially empowered in this behalf under sub-section  (2), may take cognizance of any offence –  

(a) upon receiving a complaint of facts which constitute  such offence;  

(b) upon a police report of such facts;  (c) upon information received from any person other  

than a police officer, or upon his own knowledge,  that such offence has been committed.  

(2) The Chief Judicial Magistrate may empower any  Magistrate of the second class to take cognizance  under sub-section (1) of such offences as are within  his competence to inquire into or try.  

xxx xxx xxx  

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

Provided that, when the complaint is made in writing,  the Magistrate need not examine the complainant and  the witnesses –  

(a) if a public servant acting or purporting to act in the  discharge of his official duties or a Court has made  the complaint; or  

(b)  if the Magistrate makes over the case for inquiry or  trial to another Magistrate under Section 192.  

Provided further that if the Magistrate makes over the  case to another Magistrate under Section 192 after

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examining the complainant and the witnesses, the latter  Magistrate need not re-examine them.  

xxx xxx xxx  

202. Postponement of issue of process.– (1) Any  Magistrate, on receipt of a complaint of an offence of  which he is authorised to take cognizance or which has  been made over to him under Section 192, may, if he  thinks fit, [and shall, in a case where the accused is  residing at a place beyond the area in which he  exercises his jurisdiction] postpone the issue of   process against the accused, and either inquire into the  case himself or direct an investigation to be made by a  police officer or by such other person as he thinks fit, for  the purpose of deciding whether or not there is  sufficient ground for proceeding:  

Provided that no such direction for investigation shall be  made -  

(a) Where it appears to the Magistrate that the offence  complained of is triable exclusively by the Court of  Sessions; or  

(b) Where the complaint has not been made by a  Court, unless the complainant and the witnesses  present (if any) have been examined on oath under  Section 200.  

(2) In an inquiry under sub-section (1), the Magistrate  may, if he thinks fit, take evidence of witness on oath:  

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

(3) If an investigation under sub-section (1) is made by  a person not being a police officer, he shall have for  that investigation all the powers conferred by this Code

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on an officer in charge of a police station except the  power to arrest without warrant.  

xxx xxx xxx  

204. Issue of process.– (1) If in the opinion of a  Magistrate taking cognizance of an offence there is  sufficient ground for proceeding, and the case appears  to be –  

(a) a summons-case, he shall issue his summons for  the attendance of the accused, or   

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

(2) No summons or warrant shall be issued against the  accused under sub-section (1) until a list of the  prosecution witnesses has been filed.   

(3) In a proceeding instituted upon a complaint made in  writing, every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such  complaint.  

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

(5) Nothing in this section shall be deemed to affect the  provisions of section 87.”      

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

neat distinction between the powers of the police to investigate

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

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

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

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

follows:  

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

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

“complaint” means any allegation made orally or in  writing to a Magistrate, with a view to his taking action  under this Code, that some person, whether known or  unknown, has committed an offence, but does not  include a police report.  

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

“inquiry” means every inquiry, other than a trial,  conducted under this Code by a Magistrate or Court;  

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

“investigation” includes all the proceedings under this  Code for the collection of evidence conducted by a  police officer or by any person (other than a Magistrate)  who is authorised by a Magistrate in this behalf.    

13. The statutory scheme contained in the CrPC therefore  

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

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

purpose of collecting evidence by a police officer, and otherwise  

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

pertains to a stage before the trial commences. Investigation  

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

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

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

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

contain a provision by which the police were empowered to  

conduct a further investigation in respect of an offence after a  

police report under Section 173 has been forwarded to the  

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

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

September 1969 (hereinafter referred to as the “Law  

Commission Report”), therefore, recommended the addition of  

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

Criminal Procedure, 1898 for the following reasons:  

“14.23. A report under Section 173 is normally the end  of the investigation. Sometimes, however, the police  officer after submitting the report under Section 173  comes upon evidence bearing on the guilt or innocence  of the accused.  We should have thought that the police  officer can collect that evidence and send it to the

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magistrate concerned. It appears, however, that courts  have sometimes taken the narrow view that once a final  report under Section 173 has been sent, the police  cannot touch the case again and cannot re-open the  investigation. This view places a hindrance in the way  of the investigating agency, which can be very unfair to  the prosecution and, for that matter, even to the  accused.  It should be made clear in Section 173 that  the competent police officer can examine such  evidence and send a report to the magistrate.  Copies  concerning the fresh material must of course be  furnished to the accused.”  

(emphasis supplied)    

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

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

investigating agency, which can be very unfair to the prosecution  

as well as the accused.  

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

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

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

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

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

Commissioner of Police, Delhi v. Registrar, Delhi High  

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

enshrines and guarantees the precious right of life and personal  

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

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procedure established by law in a fair trial which assures the  

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

the first imperative of the dispensation of justice (see paragraph  

16 therein).    

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

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

investigation and inquiry, whether by the police or by the  

Magistrate, is to ensure that those who have actually committed  

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

arraigned to stand trial. That this is the minimal procedural  

requirement that is the fundamental requirement of Article 21 of  

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

omnipresence of Article 21 over the CrPC that must needs  

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

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

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

judgment which speaks of the fundamental right under Article 21  

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

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

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

xxx xxx xxx

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

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

police department has been armed with the power to further  

investigate an offence even after a police report has been  

forwarded to the Magistrate. Quite obviously, this power  

continues until the trial can be said to commence in a criminal  

case. The vexed question before us is as to whether the  

Magistrate can order further investigation after a police report  

has been forwarded to him under Section 173.

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

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

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

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

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

(2) not agree with the police report and  

(a) order further investigation, or  

(b) hold that the evidence is sufficient to justify the  forwarding of the accused to the Magistrate and take  cognizance of the offence complained of.  

51. The appropriate course has to be decided upon  after a consideration of the report and the application of  the mind of the Magistrate to the contents thereof. But

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

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

circumstance that the Magistrate does not agree with the police  

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

capacity as a supervisory authority in relation to investigation  

carried out by the police.  

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

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

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

“19. The power of the Magistrate under Section 156(3)  to direct further investigation is clearly an independent  power and does not stand in conflict with the power of  the State Government as spelt out hereinbefore. The  power conferred upon the Magistrate under Section  156(3) can be exercised by the Magistrate even after

23  

submission of a report by the investigating officer which  would mean that it would be open to the Magistrate not  to accept the conclusion of the investigating officer and  direct further investigation. This provision does not in  any way affect the power of the investigating officer to  further investigate the case even after submission of the  report as provided in Section 173(8).”  

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

409, this Court held:  

“12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC  627: (2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this  Court observed: (SCC p. 631, para 11)  

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

13. The same view was taken by this Court in Dilawar  Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007)  10 SC 585] (JT vide para 17). We would further clarify

24  

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

14. Section 156(3) states:  

“156. (3) Any Magistrate empowered under Section 190  may order such an investigation as abovementioned.”  

The words “as abovementioned” obviously refer to  Section 156(1), which contemplates investigation by the  officer in charge of the police station.  

15. Section 156(3) provides for a check by the  Magistrate on the police performing its duties under  Chapter XII CrPC. In cases where the Magistrate finds  that the police has not done its duty of investigating the  case at all, or has not done it satisfactorily, he can issue  a direction to the police to do the investigation properly,  and can monitor the same.  

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

17. In our opinion Section 156(3) CrPC is wide enough  to include all such powers in a Magistrate which are  necessary for ensuring a proper investigation, and it  includes the power to order registration of an FIR and of

25  

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

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

23. It is thus clear that the Magistrate’s power under Section  

156(3) of the CrPC is very wide, for it is this judicial authority that  

must be satisfied that a proper investigation by the police takes  

place. To ensure that a “proper investigation” takes place in the  

sense of a fair and just investigation by the police - which such  

Magistrate is to supervise - Article 21 of the Constitution of India  

mandates that all powers necessary, which may also be  

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

proper investigation which, without doubt, would include the  

ordering of further investigation after a report is received by him  

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

26  

in such Magistrate at all stages of the criminal proceedings until  

the trial itself commences. Indeed, even textually, the  

“investigation” referred to in Section 156(1) of the CrPC would,  

as per the definition of “investigation” under Section 2(h), include  

all proceedings for collection of evidence conducted by a police  

officer; which would undoubtedly include proceedings by way of  

further investigation under Section 173(8) of the CrPC.  

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

Bench judgment in Devarapalli Lakshminarayana Reddy &  

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

judgment, while deciding whether the first proviso to Section 202  

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

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

27  

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

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

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

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

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

1973 Code has one very important addition, namely, Section  

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

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

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

28  

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

Procedure Code with this difference  –  that “investigation” after  

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

proceedings under the CrPC for collection of evidence conducted  

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

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

Magistrate empowered under Section 190 may order “such an  

investigation”, such Magistrate may also order further  

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

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

 26. Section 2(h) is not noticed by the aforesaid judgment at  

all, resulting in the erroneous finding in law that the power under  

Section 156(3) can only be exercised at the pre-cognizance  

stage. The “investigation” spoken of in Section 156(3) would  

embrace the entire process, which begins with the collection of  

evidence and continues until charges are framed by the Court, at  

which stage the trial can be said to have begun. For these  

reasons, the statement of the law contained in paragraph 17 in  

Devarapalli Lakshminarayana Reddy (supra) cannot be relied  

upon.

29  

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

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

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

Court adverted to the Law Commission Report and to a number  

of judgments which recognised the right of the police to make  

repeated investigations under the Code of Criminal Procedure,  

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

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

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

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

30  

cured and the defect rectified, by ordering such re- investigation as the circumstances of an individual case  may call for.”  

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

 The Court then went on to hold:  

“20. Anyone acquainted with the day-to-day working of  the criminal courts will be alive to the practical necessity  of the police possessing the power to make further  investigation and submit a supplemental report. It is in  the interests of both the prosecution and the defence  that the police should have such power. It is easy to  visualise a case where fresh material may come to light  which would implicate persons not previously accused  or absolve persons already accused. When it comes to  the notice of the investigating agency that a person  already accused of an offence has a good alibi, is it not  the duty of that agency to investigate the genuineness  of the plea of alibi and submit a report to the  Magistrate? After all the investigating agency has  greater resources at its command than a private  individual. Similarly, where the involvement of persons  who are not already accused comes to the notice of the  investigating agency, the investigating agency cannot  keep quiet and refuse to investigate the fresh  information. It is their duty to investigate and submit a  report to the Magistrate upon the involvement of the  other persons. In either case, it is for the Magistrate to  decide upon his future course of action depending upon  the stage at which the case is before him. If he has  already taken cognizance of the offence, but has not  proceeded with the enquiry or trial, he may direct the  issue of process to persons freshly discovered to be  involved and deal with all the accused in a single

31  

enquiry or trial. If the case of which he has previously  taken cognizance has already proceeded to some  extent, he may take fresh cognizance of the offence  disclosed against the newly involved accused and  proceed with the case as a separate case. What action  a Magistrate is to take in accordance with the provisions  of the CrPC in such situations is a matter best left to the  discretion of the Magistrate. The criticism that a further  investigation by the police would trench upon the  proceeding before the court is really not of very great  substance, since whatever the police may do, the final  discretion in regard to further action is with the  Magistrate. That the final word is with the Magistrate is  sufficient safeguard against any excessive use or abuse  of the power of the police to make further investigation.  We should not, however, be understood to say that the  police should ignore the pendency of a proceeding  before a court and investigate every fresh fact that  comes to light as if no cognizance had been taken by  the Court of any offence. We think that in the interests  of the independence of the magistracy and the judiciary,  in the interests of the purity of the administration of  criminal justice and in the interests of the comity of the  various agencies and institutions entrusted with  different stages of such administration, it would  ordinarily be desirable that the police should inform the  court and seek formal permission to make further  investigation when fresh facts come to light.  

21. As observed by us earlier, there was no provision in  the CrPC, 1898 which, expressly or by necessary  implication, barred the right of the police to further  investigate after cognizance of the case had been taken  by the Magistrate. Neither Section 173 nor Section 190  lead us to hold that the power of the police to further  investigate was exhausted by the Magistrate taking  cognizance of the offence. Practice, convenience and  preponderance of authority, permitted repeated  investigations on discovery of fresh facts. In our view,  notwithstanding that a Magistrate had taken cognizance  of the offence upon a police report submitted under

32  

Section 173 of the 1898 Code, the right of the police to  further investigate was not exhausted and the police  could exercise such right as often as necessary when  fresh information came to light. Where the police  desired to make a further investigation, the police could  express their regard and respect for the court by  seeking its formal permission to make further  investigation.”  

(emphasis supplied)    

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

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

Central Bureau of Investigation (hereinafter referred to as the  

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

Three Judge Bench judgment in Bhagwant Singh v.  

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

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

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

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

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

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

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

on to hold that where objections have been furnished by the  

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

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

33  

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

further investigate the case and collect further evidence keeping  

in view the objections raised by the complainant (see paragraph  

13 therein).  

29. Hasanbhai Valibhai Qureshi v. State of Gujarat and  

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

with the necessity for further investigation being balanced with  

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

further investigation when fresh facts come to light, then the  

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

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

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

12. Sub-section (8) of Section 173 of the Code permits  further investigation, and even dehors any direction  from the court as such, it is open to the police to  conduct proper investigation, even after the court took  cognisance of any offence on the strength of a police  report earlier submitted. All the more so, if as in this  case, the Head of the Police Department also was not  satisfied of the propriety or the manner and nature of  investigation already conducted.  

13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2  SCC 322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it

34  

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

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

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

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

 1 This statement of the law was approved in Rama Chaudhary v. State of Bihar (2009)  

6 SCC 346 (at paragraphs 14 to 19) and in Samaj Parivartan Samudaya and Ors. v.  

State of Karnataka and Ors. (2012) 7 SCC 407 (at paragraph 58).

35  

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

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

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

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

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

36  

18. Another three-Judge Bench in India Carat (P)  Ltd. v. State of Karnataka [(1989) 2 SCC 132 : 1989  SCC (Cri) 306] has stated thus: (SCC pp. 139-40, para  16)  

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

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

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

37  

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

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

Pradesh and Karnataka, issued directions to the CBI to  

investigate the entire matter (despite private complaints already  

pending and being investigated by one or other competent Court  

or investigation agency), as a Central Empowered Committee  

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

In a review of the machinery of criminal investigations under the  

CrPC, this Court held:  

“27. Once the investigation is conducted in accordance  with the provisions of CrPC, a police officer is bound to  file a report before the court of competent jurisdiction,  as contemplated under Section 173 CrPC, upon which  the Magistrate can proceed to try the offence, if the  same were triable by such court or commit the case to  the Court of Session. It is significant to note that the  provisions of Section 173(8) CrPC open with non  obstante language that nothing in the provisions of  Sections 173(1) to 173(7) shall be deemed to preclude  further investigation in respect of an offence after a  report under sub-section (2) has been forwarded to the  Magistrate. Thus, under Section 173(8), where charge- sheet has been filed, that court also enjoys the  jurisdiction to direct further investigation into the  offence. (Ref. Hemant Dhasmana v. CBI [(2001) 7 SCC  536 : 2001 SCC (Cri) 1280] .) This power cannot have  any inhibition including such requirement as being  obliged to hear the accused before any such direction is  made.  

xxx xxx xxx

38  

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

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

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

xxx xxx xxx

39  

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

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

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

further investigation by the police should be entrusted with a  

supernumerary body created under the head of a retired  

Supreme Court Judge along with other officers and experts, held  

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

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

the final report.   

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

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

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

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

discussed in detail how the criminal investigative machinery is

40  

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

Court then held:  

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

(i) Initial investigation,  

(ii) Further investigation,  

(iii) Fresh or de novo or reinvestigation.”  

Thereafter, the question with which we are faced was directly  

tackled as follows:  

“29. Now, we come to the former question i.e. whether  the Magistrate has jurisdiction under Section 173(8) to  direct further investigation.  

xxx xxx xxx  

32. In Minu Kumari v. State of Bihar [(2006) 4 SCC 359:  (2006) 2 SCC (Cri) 310] (SCC pp. 363-64, para 11), this  Court explained the powers that are vested in a  Magistrate upon filing of a report in terms of Section  173(2)(i) and the kind of order that the court can pass.  The Court held that when a report is filed before a  Magistrate, he may either (i) accept the report and take  cognizance of the offences and issue process; or (ii)  may disagree with the report and drop the proceedings;  or (iii) may direct further investigation under Section  156(3) and require the police to make a further report.

41  

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

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

42  

Lal v. Dharmendra Bafna [(2009) 7 SCC 685: (2009) 3  SCC (Cri) 611], State of Maharashtra v. Sharadchandra  Vinayak Dongre [(1995) 1 SCC 42: 1995 SCC (Cri) 16].  

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

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

“37. In some judgments of this Court, a view has been  advanced, [amongst others in Reeta Nag v. State of  W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 :  (2009) 3 SCC (Cri) 1051] , Ram Naresh Prasad v. State  of Jharkhand [Ram Naresh Prasad v. State of

43  

Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri)  1336. Ed.: Ram Naresh case does not seem to indicate  that the Magistrate cannot suo motu direct further  investigation: rather it seems to indicate that the  Magistrate in fact can do so.] and Randhir Singh  Rana v. State (Delhi Admn.) [Randhir Singh  Rana v. State (Delhi Admn.), (1997) 1 SCC 361] ] that a  Magistrate cannot suo motu direct further investigation  under Section 173(8) of the Code or direct  reinvestigation into a case on account of the bar  contained in Section 167(2) of the Code, and that a  Magistrate could direct filing of a charge-sheet where  the police submits a report that no case had been made  out for sending up an accused for trial. The gist of the  view taken in these cases is that a Magistrate cannot  direct reinvestigation and cannot suo motu direct further  investigation.  

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

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

44  

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

40. Having analysed the provisions of the Code and the  various judgments as aforeindicated, we would state  the following conclusions in regard to the powers of a  Magistrate in terms of Section 173(2) read with Section  173(8) and Section 156(3) of the Code:  

40.1. The Magistrate has no power to direct  “reinvestigation” or “fresh investigation” (de novo) in the  case initiated on the basis of a police report.  

40.2. A Magistrate has the power to direct “further  investigation” after filing of a police report in terms of  Section 173(6) of the Code.  

40.3. The view expressed in Sub-para 40.2 above is in  conformity with the principle of law stated in Bhagwant  Singh case [Bhagwant Singh v. Commr. of Police,  (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and thus in conformity with the doctrine of  precedent.

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40.4. Neither the scheme of the Code nor any specific  provision therein bars exercise of such jurisdiction by  the Magistrate. The language of Section 173(2) cannot  be construed so restrictively as to deprive the  Magistrate of such powers particularly in face of the  provisions of Section 156(3) and the language of  Section 173(8) itself. In fact, such power would have to  be read into the language of Section 173(8).  

40.5. The Code is a procedural document, thus, it must  receive a construction which would advance the cause  of justice and legislative object sought to be achieved. It  does not stand to reason that the legislature provided  power of further investigation to the police even after  filing a report, but intended to curtail the power of the  court to the extent that even where the facts of the case  and the ends of justice demand, the court can still not  direct the investigating agency to conduct further  investigation which it could do on its own.  

40.6. It has been a procedure of propriety that the  police has to seek permission of the court to continue  “further investigation” and file supplementary charge- sheet. This approach has been approved by this Court  in a number of judgments. This as such would support  the view that we are taking in the present case.”  

xxx xxx xxx  

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

46  

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

49. Now, we may examine another significant aspect  which is how the provisions of Section 173(8) have  been understood and applied by the courts and  investigating agencies. It is true that though there is no  specific requirement in the provisions of Section 173(8)  of the Code to conduct “further investigation” or file  supplementary report with the leave of the court, the  investigating agencies have not only understood but  also adopted it as a legal practice to seek permission of  the courts to conduct “further investigation” and file  “supplementary report” with the leave of the court. The  courts, in some of the decisions, have also taken a  similar view. The requirement of seeking prior leave of  the court to conduct “further investigation” and/or to file  a “supplementary report” will have to be read into, and  is a necessary implication of the provisions of Section  173(8) of the Code. The doctrine of contemporanea  expositio will fully come to the aid of such interpretation  as the matters which are understood and implemented  for a long time, and such practice that is supported by  law should be accepted as part of the interpretative  process.  

50. Such a view can be supported from two different  points of view: firstly, through the doctrine of precedent,  as aforenoticed, since quite often the courts have taken  such a view, and, secondly, the investigating agencies  which have also so understood and applied the  principle. The matters which are understood and  implemented as a legal practice and are not opposed to  the basic rule of law would be good practice and such  interpretation would be permissible with the aid of  doctrine of contemporanea expositio. Even otherwise,  to seek such leave of the court would meet the ends of

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justice and also provide adequate safeguard against a  suspect/accused.  

51. We have already noticed that there is no specific  embargo upon the power of the learned Magistrate to  direct “further investigation” on presentation of a report  in terms of Section 173(2) of the Code. Any other  approach or interpretation would be in contradiction to  the very language of Section 173(8) and the scheme of  the Code for giving precedence to proper administration  of criminal justice. The settled principles of criminal  jurisprudence would support such approach, particularly  when in terms of Section 190 of the Code, the  Magistrate is the competent authority to take  cognizance of an offence. It is the Magistrate who has  to decide whether on the basis of the record and  documents produced, an offence is made out or not,  and if made out, what course of law should be adopted  in relation to committal of the case to the court of  competent jurisdiction or to proceed with the trial  himself. In other words, it is the judicial conscience of  the Magistrate which has to be satisfied with reference  to the record and the documents placed before him by  the investigating agency, in coming to the appropriate  conclusion in consonance with the principles of law. It  will be a travesty of justice, if the court cannot be  permitted to direct “further investigation” to clear its  doubt and to order the investigating agency to further  substantiate its charge-sheet. The satisfaction of the  learned Magistrate is a condition precedent to  commencement of further proceedings before the court  of competent jurisdiction. Whether the Magistrate  should direct “further investigation” or not is again a  matter which will depend upon the facts of a given case.  The learned Magistrate or the higher court of competent  jurisdiction would direct “further investigation” or  “reinvestigation” as the case may be, on the facts of a  given case. Where the Magistrate can only direct further  investigation, the courts of higher jurisdiction can direct  further, reinvestigation or even investigation de novo  depending on the facts of a given case. It will be the

48  

specific order of the court that would determine the  nature of investigation. In this regard, we may refer to  the observations made by this Court  in Sivanmoorthy v. State [(2010) 12 SCC 29: (2011) 1  SCC (Cri) 295].”    

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

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

with a question regarding the circumstances under which the  

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

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

a learned judgment answering the aforesaid question, this Court  

first adverted to the constitutional mandate under Article 21 of  

the Constitution as follows:  

“8. The constitutional mandate under Articles 20 and 21  of the Constitution of India provides a protective  umbrella for the smooth administration of justice making  adequate provisions to ensure a fair and efficacious trial  so that the accused does not get prejudiced after the  law has been put into motion to try him for the offence  but at the same time also gives equal protection to  victims and to society at large to ensure that the guilty  does not get away from the clutches of law. For the  empowerment of the courts to ensure that the criminal  administration of justice works properly, the law was  appropriately codified and modified by the legislature  under CrPC indicating as to how the courts should  proceed in order to ultimately find out the truth so that  an innocent does not get punished but at the same  time, the guilty are brought to book under the law. It is  these ideals as enshrined under the Constitution and  our laws that have led to several decisions, whereby  innovating methods and progressive tools have been

49  

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

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

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

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

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

follows:  

“34. In Common Cause v. Union of India [(1996) 6 SCC  775 : 1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this  Court while dealing with the issue held: (SCC p. 776,  para 1)  

“1. II (i) In cases of trials before the Sessions Court the  trials shall be treated to have commenced when  charges are framed under Section 228 of the Code of  Criminal Procedure, 1973 in the cases concerned.  

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

(iii) In cases of trials of summons cases by Magistrates  the trials would be considered to have commenced  when the accused who appear or are brought before  the Magistrate are asked under Section 251 whether  they plead guilty or have any defence to make.”  

(emphasis supplied)

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The Court then concluded:  

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

35. Paragraph 39 of the judgment then referred to the  

“inquiry” stage of a criminal case as follows:  

“39. Section 2(g) CrPC and the case laws referred to  above, therefore, clearly envisage inquiry before the  actual commencement of the trial, and is an act  conducted under CrPC by the Magistrate or the court.  The word “inquiry” is, therefore, not any inquiry relating  to the investigation of the case by the investigating  agency but is an inquiry after the case is brought to the  notice of the court on the filing of the charge-sheet. The  court can thereafter proceed to make inquiries and it is  for this reason that an inquiry has been given to mean  something other than the actual trial.”  

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

out in paragraph 54 as follows:  

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

51  

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

36. Despite the aforesaid judgments, some discordant notes  

were sounded in three recent judgments. In Amrutbhai  

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

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

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

further investigation by the police long after charges were framed  

against the Respondents at the culminating stages of the trial.  

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

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

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

investigation into the offence should be ordered. But instead of  

resting its judgment on this simple fact, this Court from  

paragraphs 29 to 34 resuscitated some of the earlier judgments

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

investigation could be ordered by the Magistrate in cases where,  

after cognizance is taken, the accused had appeared in  

pursuance of process being issued. In particular, Devarapalli  

Lakshminarayana Reddy (supra) was strongly relied upon by  

the Court. We have already seen how this judgment was  

rendered without adverting to the definition of “investigation” in  

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

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

concluded:  

“49. On an overall survey of the pronouncements of this  Court on the scope and purport of Section 173(8) of the  Code and the consistent trend of explication thereof, we  are thus disposed to hold that though the investigating  agency concerned has been invested with the power to  undertake further investigation desirably after informing  the court thereof, before which it had submitted its  report and obtaining its approval, no such power is  available therefor to the learned Magistrate after  cognizance has been taken on the basis of the earlier  report, process has been issued and the accused has  entered appearance in response thereto. At that stage,  neither the learned Magistrate suo motu nor on an  application filed by the complainant/informant can direct  further investigation. Such a course would be open only  on the request of the investigating agency and that too,  in circumstances warranting further investigation on the  detection of material evidence only to secure fair  investigation and trial, the life purpose of the  adjudication in hand.

53  

50. The unamended and the amended sub-section (8)  of Section 173 of the Code if read in juxtaposition,  would overwhelmingly attest that by the latter, the  investigating agency/officer alone has been authorised  to conduct further investigation without limiting the  stage of the proceedings relatable thereto. This power  qua the investigating agency/officer is thus legislatively  intended to be available at any stage of the  proceedings. The recommendation of the Law  Commission in its 41st Report which manifestly  heralded the amendment, significantly had limited its  proposal to the empowerment of the investigating  agency alone.  

51. In contradistinction, Sections 156, 190, 200, 202  and 204 CrPC clearly outline the powers of the  Magistrate and the courses open for him to chart in the  matter of directing investigation, taking of cognizance,  framing of charge, etc. Though the Magistrate has the  power to direct investigation under Section 156(3) at the  pre-cognizance stage even after a charge-sheet or a  closure report is submitted, once cognizance is taken  and the accused person appears pursuant thereto, he  would be bereft of any competence to direct further  investigation either suo motu or acting on the request or  prayer of the complainant/informant. The direction for  investigation by the Magistrate under Section 202, while  dealing with a complaint, though is at a post-cognizance  stage, it is in the nature of an inquiry to derive  satisfaction as to whether the proceedings initiated  ought to be furthered or not. Such a direction for  investigation is not in the nature of further investigation,  as contemplated under Section 173(8) of the Code. If  the power of the Magistrate, in such a scheme  envisaged by CrPC to order further investigation even  after the cognizance is taken, the accused persons  appear and charge is framed, is acknowledged or  approved, the same would be discordant with the state  of law, as enunciated by this Court and also the  relevant layout of CrPC adumbrated hereinabove.  Additionally had it been the intention of the legislature to

54  

invest such a power, in our estimate, Section 173(8)  CrPC would have been worded accordingly to  accommodate and ordain the same having regard to  the backdrop of the incorporation thereof. In a way, in  view of the three options open to the Magistrate, after a  report is submitted by the police on completion of the  investigation, as has been amongst authoritatively  enumerated in Bhagwant Singh [Bhagwant  Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985  SCC (Cri) 267] , the Magistrate, in both the  contingencies, namely; when he takes cognizance of  the offence or discharges the accused, would be  committed to a course, whereafter though the  investigating agency may for good reasons inform him  and seek his permission to conduct further  investigation, he suo motu cannot embark upon such a  step or take that initiative on the request or prayer made  by the complainant/informant. Not only such power to  the Magistrate to direct further investigation suo motu or  on the request or prayer of the complainant/informant  after cognizance is taken and the accused person  appears, pursuant to the process, issued or is  discharged is incompatible with the statutory design and  dispensation, it would even otherwise render the  provisions of Sections 311 and 319 CrPC, whereunder  any witness can be summoned by a court and a person  can be issued notice to stand trial at any stage, in a way  redundant. Axiomatically, thus the impugned decision  annulling the direction of the learned Magistrate for  further investigation is unexceptional and does not merit  any interference. Even otherwise on facts, having  regard to the progression of the developments in the  trial, and more particularly, the delay on the part of the  informant in making the request for further investigation,  it was otherwise not entertainable as has been rightly  held by the High Court.”  

37. This judgment was followed in a recent Division Bench  

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

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

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

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

decisions this Court concluded as follows:  

“7. Considering the law laid down by this Court in the  aforesaid decisions and even considering the relevant  provisions of CrPC, namely, Sections 167(2), 173, 227  and 228 CrPC, what is emerging is that after the  investigation is concluded and the report is forwarded  by the police to the Magistrate under Section 173(2)(i)  CrPC, the learned Magistrate may either (1) accept the  report and take cognizance of the offence and issue  process, or (2) may disagree with the report and drop  the proceedings, or (3) may direct further investigation  under Section 156(3) and require the police to make a  further report. If the Magistrate disagrees with the report  and drops the proceedings, the informant is required to  be given an opportunity to submit the protest application  and thereafter, after giving an opportunity to the  informant, the Magistrate may take a further decision  whether to drop the proceedings against the accused or  not. If the learned Magistrate accepts the objections, in  that case, he may issue process and/or even frame the  charges against the accused. As observed  hereinabove, having not been satisfied with the  investigation on considering the report forwarded by the  police under Section 173(2)(i) CrPC, the Magistrate  may, at that stage, direct further investigation and  require the police to make a further report. However, it  is required to be noted that all the aforesaid is required  to be done at the pre-cognizance stage. Once the  learned Magistrate takes the cognizance and,  considering the materials on record submitted along  with the report forwarded by the police under Section  173(2)(i) CrPC, the learned Magistrate in exercise of the  powers under Section 227 CrPC discharges the  accused, thereafter, it will not be open for the

56  

Magistrate to suo motu order for further investigation  and direct the investigating officer to submit the report.  Such an order after discharging the accused can be  said to be made at the post-cognizance stage. There is  a distinction and/or difference between the pre- cognizance stage and post-cognizance stage and the  powers to be exercised by the Magistrate for further  investigation at the pre-cognizance stage and post- cognizance stage. The power to order further  investigation which may be available to the Magistrate  at the pre-cognizance stage may not be available to the  Magistrate at the post-cognizance stage, more  particularly, when the accused is discharged by him. As  observed hereinabove, if the Magistrate was not  satisfied with the investigation carried out by the  investigating officer and the report submitted by the  investigating officer under Section 173(2)(i) CrPC, as  observed by this Court in a catena of decisions and as  observed hereinabove, it was always open/permissible  for the Magistrate to direct the investigating agency for  further investigation and may postpone even the  framing of the charge and/or taking any final decision  on the report at that stage. However, once the learned  Magistrate, on the basis of the report and the materials  placed along with the report, discharges the accused,  we are afraid that thereafter the Magistrate can suo  motu order further investigation by the investigating  agency. Once the order of discharge is passed,  thereafter the Magistrate has no jurisdiction to suo  motu direct the investigating officer for further  investigation and submit the report. In such a situation,  only two remedies are available: (i) a revision  application can be filed against the discharge or (ii) the  Court has to wait till the stage of Section 319 CrPC.  However, at the same time, considering the provisions  of Section 173(8) CrPC, it is always open for the  investigating agency to file an application for further  investigation and thereafter to submit the fresh report  and the Court may, on the application submitted by the  investigating agency, permit further investigation and  permit the investigating officer to file a fresh report and

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

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

hold:  

“10. However, considering the observations made by  the learned Magistrate and the deficiency in the  investigation pointed out by the learned Magistrate and  the ultimate goal is to book and/or punish the real  culprit, it will be open for the investigating officer to  submit a proper application before the learned  Magistrate for further investigation and conduct fresh  investigation and submit the further report in exercise of  powers under Section 173(8) CrPC and thereafter the  learned Magistrate to consider the same in accordance  with law and on its own merits.”  

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

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

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investigation would suddenly cease upon process being issued,  

and an accused appearing before the Magistrate, while  

concomitantly, the power of the police to further investigate the  

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

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

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

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

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

begin after cognizance is taken, but only after charges are  

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

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

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

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

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

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

investigate an offence till charges are framed, but that the  

supervisory jurisdiction of the Magistrate suddenly ceases mid-

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

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

investigation so that an innocent person is not wrongly arraigned  

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

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

the powers of the Magistrate, particularly when such powers are  

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

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

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

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

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

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

case. Whether further investigation should or should not be  

ordered is within the discretion of the learned Magistrate who will  

exercise such discretion on the facts of each case and in  

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

which would lead to inculpating or exculpating certain persons,  

arriving at the truth and doing substantial justice in a criminal  

case are more important than avoiding further delay being  

caused in concluding the criminal proceeding, as was held in  

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

that the judgments in Amrutbhai Shambubhai Patel (supra),  

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

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

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

60  

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

SCC 129 also stand overruled.  

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

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

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

that unlike superior Courts, Magistrates did not possess any  

inherent power under the CrPC. Since we have grounded the  

power of the Magistrate to order further investigation until  

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

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

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

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

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

right to participate in the investigation till process is issued to  

him, provided there is strict compliance of the requirements of  

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

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

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

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

SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat

61  

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

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

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

therefore, distinguishable. Further, Babubhai v. State of  

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

distinguishes between further investigation and re-investigation,  

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

miscarriage of criminal justice if it considers necessary, direct  

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

ordering further investigation. Since the present case is not  

concerned with re-investigation, this judgment also cannot take  

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

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

an investigating agency, or to require that an investigation be  

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

monitored investigation. This judgment also is far removed from  

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

case.  

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

FIR dated 22.12.2009 is concerned with two criminal acts,

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

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

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

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

in the application for further investigation are facts which pertain  

to revenue entries having been made in favour of Ramanbhai  

Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how  

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

therefore, right in submitting that the facts alleged in the  

applications for further investigation are really in the nature of a  

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

communication of the Commissioner of Revenue, Gujarat dated  

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

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

learned Commissioner doubts that a particular order dated  

14.04.1976 passed by a revenue authority ever existed, and that  

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

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

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

learned Commissioner goes on to state that Bhikiben  

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

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

which shows that her signature is also prima facie forged.  

Further, the said Ramanbhai and Shankarbhai Patel are at  

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

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

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

Further, since these two gentlemen were abroad from the very  

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

cultivating agricultural land. For these, and various other  

reasons, the Commissioner concluded:  

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

42. Given the allegations in the communication of 15.03.2011,  

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

64  

further investigation into the facts alleged in the FIR lodged on  

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

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

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

investigated by a senior police officer nominated by the  

concerned Commissioner of Police.  

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

judgment insofar as it states that post-cognizance the Magistrate  

is denuded of power to order further investigation. However,  

given that the facts stated in the application for further  

investigation have no direct bearing on the investigation  

conducted pursuant to the FIR dated 22.12.2009, we uphold the  

impugned High Court judgment insofar as it has set aside the  

judgment of the Second Additional Sessions Judge dated  

10.01.2012 which had ordered further investigation, and also the  

consequential order setting aside the two additional interim  

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

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

Court judgment which remanded the matter to the revisional  

court. Consequently, the judgment of the learned Additional

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Sessions Judge dated 23.04.2016 upon remand is also set  

aside, rendering Special Criminal Application No.3085 of 2016  

infructuous.   

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

the communication of the Commissioner of Revenue dated  

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

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

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

officer designated by the concerned Commissioner of Police,  

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

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

appointed to undertake such investigation. If such police report  

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

Magistrate takes cognizance of such charge-sheet, charges will  

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

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

order dated 24.04.2019, will not be commenced until the police  

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

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

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

66  

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

separate trials be conducted one after the other pursuant to both  

the FIRs.  

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

      …………………………J.                                              (R.F. Nariman)                   …………………………J.          (Surya Kant)               …………………………J.  New Delhi                                         (V. Ramasubramanian)  October 16, 2019.