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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 687 OF 2019 [Arising out of SLP (Crl.) No. 297 of 2015]

Bikash Ranjan Rout .. Appellant

Versus

State through the Secretary (Home), Government of NCT of Delhi, New Delhi .. Respondent

J U D G M E N T

M. R. Shah, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 20.08.2014 passed by the High Court

of Delhi in Criminal M. C. No. 3386 of 2013 by which the High

Court  has  dismissed the said  petition  and  has confirmed the

order passed by the learned Additional Chief Metropolitan

Magistrate (West) Delhi dated 05.02.2013, by which the learned

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Magistrate ordered further investigation, the original accused has

preferred the present appeal.

3. That the FIR was lodged against the appellant herein­

original accused on 28.09.2007 being FIR No. 426/2007 at Police

Station Janakpuri,  Delhi for the  offences  under  Sections 420,

468 and 471 of the IPC. That on completion of the investigation,

the investigating officer filed the charge­sheet against the

accused­appellant for the offences under Sections 420, 468 and

471 of the IPC.   That at the time of framing of the charge and

considering the charge­sheet papers, the learned Magistrate

discharged the appellant­original accused vide order dated

05.02.2013.  However, while discharging the accused and/or

after the accused was discharged, in the same order, the learned

Magistrate directed the Additional Commissioner of Police (West)

Delhi to make appreciation of quality of the investigation done in

the case and to analyse the process of efficacy of sending any

charge sheet before the prosecution branch for the purpose of

scrutiny.  Learned Magistrate also observed and directed that the

case requires further investigation to reach a logical conclusion

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and  the  same be  done responsibly  and  the  report  be filed  on

11.04.2012 (sic).      

3.1 Feeling aggrieved and dissatisfied with that part of the order

passed by the learned Magistrate dated 05.02.2013 by which the

learned Magistrate directed further investigation and to submit

the report, the appellant­original accused approached the High

Court by way of Criminal Miscellaneous Case No. 3386 of 2013.

In the meantime, following the directions issued by the learned

Magistrate vide order dated 05.02.2013, the District Investigating

Unit, West District, Police Post MIG Flats, J­Block, Rajouri

Garden,  New  Delhi issued summons  dated  22.04.2013  under

Section 160 of the CrPC.  The appellant also challenged the said

notice/summon issued under Section 160 of the CrPC.

Basically, the appellant herein challenged that part of the order

dated 05.02.2013 passed by the learned Magistrate, by which the

learned  Magistrate  observed  and  directed further investigation

and also directed the investigating officer to submit the report.

That by the impugned judgment and order, the High Court has

dismissed the said petition and has refused to interfere with the

order dated 05.02.2013 passed by the learned Magistrate

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directing further investigation by observing that the investigation

was  a faulty investigation and/or  no  proper investigation  was

carried out on certain aspects and, therefore, the learned

Magistrate was justified in inquiring further investigation to

reach to a logical conclusion.  Consequently, the High Court has

dismissed the said petition.   Hence, the appellant­original

accused is before this Court.

4. Mr.  Mrinal  Kanti  Mandal, learned Advocate  appearing  on

behalf of the appellant­original accused, has vehemently

submitted that, in the facts and circumstances of the case, the

High Court has committed a grave error in confirming the order

dated 05.02.2013 passed by the learned Magistrate for  further

investigation.

4.1 Learned counsel appearing on behalf of the appellant­

original accused has vehemently submitted that the High Court

has not properly appreciated the fact that after the accused was

discharged by the learned Magistrate, thereafter he has no

jurisdiction to pass any order for further investigation  under

Section 173(8) of the CrPC.

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4.2 It is further submitted by the learned counsel appearing on

behalf of the appellant­original accused that once the accused is

discharged by the learned Magistrate after considering the

charge­sheet and the material on record, thereafter the learned

Magistrate becomes  functus officio  and  has no jurisdiction to

order further investigation even under Section 173(8) of the

CrPC.     

4.3 It is further submitted by the learned counsel appearing on

behalf of the appellant­original accused that the order passed by

the learned Magistrate for further investigation after the accused

is discharged is even hit by Section 167(2) of the CrPC.    

4.4 Learned counsel appearing on behalf of the appellant­

original  accused has vehemently  submitted  that  while  passing

the impugned judgment and order confirming the order passed

by the learned Magistrate for further investigation after the

accused was discharged, the High Court has not properly

appreciated and/or considered the distinction between the

powers to be exercised by the learned Magistrate at pre­

cognizance stage and post­cognizance stage.  It is submitted that

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the  powers  which  may  be  available to the  Magistrate at pre­

cognizance stage cannot be exercised at post­cognizance stage.    

4.5 In support of  his above submissions, the  learned counsel

appearing on behalf of the appellant­original accused has heavily

relied upon the decisions of this Court in the case of Bhagwant

Singh v. Commissioner of Police (1985) 2 SCC 537 as well as in

the case of  Reeta Nag v. State of West Bengal  (2009) 9 SCC

129.    Learned counsel  appearing  on behalf  of the  appellant­

original accused  has further relied  upon  the  decisions  of this

Court in the cases  of  Vinay  Tyagi v. Irshad Ali  @  Deepak

(2013) 5 SCC 762; Vasanti Dubey v. State of Madhya Pradesh

(2012) 2 SCC 731;  Amit Kapoor v. Ramesh Chander  (2012) 9

SCC 460 and  Randhir Singh Rana v. State (Delhi

Administration) (1997) 1 SCC 361.   

4.6 Relying upon the afore­stated decisions of this Court,

learned counsel appearing on behalf of the appellant­original

accused has vehemently submitted that the order passed by the

learned Magistrate  and confirmed by  the High Court,  ordering

further investigation after the accused was discharged was wholly

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impermissible.   Therefore, it is prayed to allow the present

appeal  and quash and  set  aside the impugned  judgment  and

order passed by the High Court as well as the order passed by

the learned Magistrate ordering further investigation.   

5. Ms. Vibha Datta Makhija, learned Senior Advocate

appearing on behalf of the respondent­State, has vehemently

opposed the present appeal.   It is submitted by the learned

counsel appearing on behalf of the respondent­State that as

rightly  observed by the learned  Magistrate  and even  the  High

Court that on certain aspects there was no investigation carried

out at all and no evidence was collected, which will go to the root

of the matter and therefore having not satisfied with the manner

in which the investigation was carried out and the charge­sheet

was submitted and thereafter when the learned Magistrate

ordered further investigation, the same is rightly not interfered

with by the High Court.    

5.1 It is further submitted by the learned counsel appearing on

behalf of the respondent­State that, as such, the learned

Magistrate is vested with the power to order further investigation

if  he comes to the conclusion that the investigation  was  not

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proper and/or the investigation was made in perfunctory manner

and the benefit would go to the accused.   It is further submitted

that the powers of the Magistrate to order further investigation

has been recognized by law under Section 173(8) of the CrPC as

well as  by this  Court in  a catena  of  decisions, including the

decisions of this Court in Bhagwant Singh  (supra) and even in

Reeta Nag  (supra).   It is submitted that therefore, in the facts

and circumstances of the case, the learned Magistrate was

justified in ordering further investigation.    

5.2  Relying upon the decision of this Court in  Kishan Lal v.

Dharmendra Bafna  (2009) 7 SCC 685, it is submitted by the

learned counsel appearing on behalf of the respondent­State that,

as observed and held by this Court, learned Magistrate can take

cognizance on the basis of the materials placed on record by the

investigating agency.   It is also observed that it is also

permissible for the Magistrate to direct further investigation.   It

is submitted that, as observed by this Court, the Magistrate has

a duty to see that the investigation is carried out in a fair

manner. It is submitted that it is observed that an order of

further investigation can be made at various stages including the

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stage of the trial, that is even  after taking cognizance of the

offence.    

5.3 Relying upon the decision of this Court in  Hemant

Dhasmana v. Central Bureau of Investigation  (2001) 7 SCC

536, it is further  submitted  that  when  the learned Magistrate

passed an order of further investigation for the ends of justice,

the same is not required to be interfered with by the High Court

in exercise of its revisional jurisdiction.    

5.4 Learned counsel appearing on behalf of the respondent­

State has also heavily relied upon the decision of this Court in

Sajjan Kumar v.  Central  Bureau of Investigation  (2010)  9

SCC 368.  It is submitted that even after the charge­sheet is filed,

still the Magistrate is free to direct the accused to appear and try

the offence,  even at the stage of  Sections 227 and 228 of the

CrPC.

5.5 Making the above submissions and relying upon the above

decisions of this Court, it is prayed to dismiss the present appeal.

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6. Heard learned counsel appearing on behalf of the respective

parties at length.  At the outset, it is required to be noted that the

challenge in the present appeal is to the order passed by the High

Court, confirming the order passed by the learned Magistrate of

further  investigation passed at the time/after the accused was

discharged by the learned Magistrate.   It is required to be noted

that, in the present case, the investigating officer after concluding

the  investigation,  submitted the report/charge­sheet before the

learned  Magistrate.  Thereafter, the  matter  before the learned

Magistrate was at the stage of framing of the charge, as provided

under Sections 227 and 228 of the CrPC.    After considering the

material  on record submitted along with the charge­sheet, the

learned Magistrate at the first instance discharged the accused.

However, simultaneously, while discharging the accused, learned

Magistrate also passed an order for further investigation and

directed the investigating officer to further investigate in the

matter and submit the report.   That part of the order, by which

the learned Magistrate ordered further investigation is the subject

matter of dispute.   Therefore, the short question which is posed

for consideration by this Court is whether once the learned

Magistrate passes an order of discharge of the accused, whether

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thereafter is it  permissible for the  Magistrate to  order further

investigation and direct the investigating  officer to  submit the

report?   

6.1 While considering the aforesaid issue/question, few

decisions of this Court on the procedure to be followed by the

learned  Magistrate  when the investigating officer submits the

report under Section 173(2) of the CrPC and what are the powers

of the learned Magistrate and/or what are the options available

to the learned Magistrate at a time when the investigating officer

after concluding the investigation submits the

report/challan/charge­sheet  before the learned  Magistrate,  are

required to be referred to and considered.

6.2 In the celebrated judgment of this  Court in the case of

Bhagwant Singh (supra) which has been subsequently followed

consistently, this Court had the occasion to consider the

procedure to be followed by the learned Magistrate and/or the

options which are available to the learned Magistrate at the time

when the report/challan/charge­sheet is filed by the

investigating officer before him.   In that judgment, this Court in

para 4 has observed and held as under:

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“4. Now, when the report forwarded by the officer­in­ charge of a police station to the Magistrate under sub­ section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or  (3)  he may direct  further investigation under sub­ section (3) of  Section  156  and require the police to make a further  report.  The report  may on  the  other hand state that, in the opinion of the police, no offence appears to  have  been committed  and  where such  a report  has  been  made, the  Magistrate again  has  an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he  may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be  made by the police under sub­section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding  against others  mentioned in the first information report, the informant  would certainly  be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt  and  effective  action  being taken  on the first information report lodged by him is clearly recognised

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by the provisions contained in sub­section (2) of Section 154, sub­section (2) of Section 157 and sub­ section (2)(ii) of Section 173, it must be presumed that the informant  would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can. therefore, be no doubt that when, on a consideration of the report  made by the officer­in­charge of a police station under sub­section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance  of the  offence  and  issue  process.  We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub­ section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes  the view that there  is  no sufficient  ground  for proceeding against some of the persons mentioned in the first  information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant.  But  we  do  not think this can  be regarded as a valid objection against the view we are taking,  because  in any case  the action taken by  the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub­section (2) (i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being

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heard at the time when the report is considered by the Magistrate.”

6.3 In the case of Vinay Tyagi (supra), after considering catena

of decisions of this Court, including the decisions of this Court in

Bhagwant Singh  (supra) and  Reeta Nag  (supra), ultimately in

para 40, this Court concluded as under:

“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 Sub­para 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 three­Judge Bench and thus in conformity with the doctrine of precedent. 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

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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.”

6.4 In the case of Minu Kumari v. State of Bihar (2000) 4 SCC

359, it is observed by this Court that when a report forwarded by

the police to the  Magistrate  under  Section  173(2)(i) is placed

before him, several  situations arise.  The report may conclude

that an offence appears to have been committed by a particular

person or persons and in such a case, the Magistrate may either

(1) accept the report and take cognizance of the offence and

issued 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.   

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

decisions and even considering the relevant provisions of the

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CrPC, namely Sections 167(2), 173, 227 and 228 of the 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) of the 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 satisfied with the

investigation on considering the report forwarded by the police

under Section 173(2)(i) of the 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 pre­cognizance stage.

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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) of the

CrPC, learned Magistrate in exercise of the powers under Section

227 of the CrPC discharges the accused, thereafter, it will not be

open for the Magistrate to suo moto 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

post­cognizance stage.   There is a distinction and/or difference

between the pre­cognizance stage and post­cognizance stage and

the powers to be exercised by the Magistrate for further

investigation at the pre­cognizance stage and post­cognizance

stage.   The power to order further  investigation which may be

available to the Magistrate at the pre­cognizance stage may not

be available to the Magistrate at the post­cognizance 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) of the CrPC, as observed by this Court in catena of decisions

and as observed hereinabove, it was always open/permissible for

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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

moto order the further investigation by the investigating agency.

Once the order of discharge is passed, thereafter the Magistrate

has no jurisdiction to suo moto 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 of the CrPC.   However, at the same time,

considering  the  provisions of  Section 173(8)  of the 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 the same may be

considered  by the learned  Magistrate thereafter in  accordance

with law.   The  Magistrate cannot  suo  moto  direct for further

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investigation under Section 173(8) of the CrPC or direct the re­

investigation into a case at the post­cognizance stage, more

particularly when, in exercise of powers under Section 227 of the

CrPC, the Magistrate discharges the accused.   However, Section

173(8) of  the CrPC confers power upon the officer­in­charge of

the police station to further investigate and submit evidence, oral

or documentary, after forwarding the report under sub­section (2)

of Section 173 of the CrPC.   Therefore, it is always open for the

investigating officer to apply for further investigation, even after

forwarding the report under sub­section (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

in­charge and the Magistrate has no jurisdiction to suo moto pass

an order for further investigation/reinvestigation after he

discharges the accused.    

7.1 In the instant case, the investigating authority did not apply

for further investigation and  that the learned Magistrate  suo

moto  passed an order for further investigation and directed the

investigating officer to further investigate and submit the report,

which is impermissible under the law.  Such a course of action is

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beyond the jurisdictional competence of the Magistrate.

Therefore, that part of the order passed by the learned Magistrate

ordering  further investigation after  he  discharges the  accused,

cannot be sustained and the same deserves to be quashed and

set aside.   Consequently, the impugned judgment and order

passed by the High Court confirming such an order passed by

the learned Magistrate also deserves to be quashed and set aside.

At the  same  time, it  will  always  be  open  for the investigating

officer to file an appropriate application for further investigation

and undertake further investigation and submit a further report

in exercise of powers under Section 173(8) of the CrPC.   

8. In view of the above and for the reasons stated above, the

present  appeal succeeds.  The impugned judgment  and  order

dated 20.08.2014 as well as that part of the order dated

05.02.2013 passed by the learned Magistrate directing the

investigating officer for further investigation and submit the

report, is hereby quashed and set aside.   

8.1 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

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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) of

the CrPC and thereafter the learned Magistrate to consider the

same in accordance with law and on its own merits.

9. The present appeal is allowed with the above observations

and the liberty reserved in favour of the investigating officer, as

above.

............................................J. [L. NAGESWARA RAO]

NEW DELHI; ............................................J. APRIL 16, 2019. [M.R. SHAH]