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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.          2040-2041        OF 2012 (Arising out of SLP (Crl.) Nos.9185-9186 of 2009)

Vinay Tyagi    … Appellant Versus

Irshad Ali @ Deepak & Ors.  … Respondents

WITH

CRIMINAL APPEAL NOS.      2042-2043            OF 2012 (Arising out of SLP(Crl.) Nos. 9040-9041 of 2009)

CRIMINAL APPEAL NO.      2044           OF 2012 (Arising out of SLP(Crl.) No. 6210 of 2010)

CRIMINAL APPEAL NO.      2045          OF 2012 (Arising out of SLP(Crl.) No. 6212 of 2010)

J U D G M E N T

Swatanter Kumar, J.

1. Leave Granted

2. The following two important  questions of law which are  

likely  to  arise  more  often  than  not  before  the  courts  of  

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competent jurisdiction fall for consideration of this Court in the  

present appeal :

Question No.1 :  Whether  in  exercise  of  its  powers  under  

Section 173 of the Code of Criminal Procedure,  

1973  (for  short,  ‘the  Code’),  the  Trial  Court  

has the jurisdiction to ignore any one of the  

reports,  where there are two reports  by the  

same  or  different  investigating  agencies  in  

furtherance of the orders of a Court?  If so, to  

what effect?   

Question No.2 : Whether  the  Central  Bureau of  Investigation  

(for short ‘the CBI’) is empowered to conduct  

‘fresh’/’re-investigation’  when the cognizance  

has  already  been  taken  by  the  Court  of  

competent jurisdiction on the basis of a police  

report under Section 173 of the Code?

Facts :-

3. Irshad  Ali  @  Deepak,  Respondent  No.1,  in  the  present  

appeal was working as an informer of the Special Cell of Delhi  

Police  in  the  year  2000.   He  was  also  working  in  a  similar  

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capacity for Intelligence Bureau.  Primarily, his profession and  

means  of  earning  his  livelihood  was  working  as  a  rickshaw  

puller.   On 11th December,  2005,  it  is  stated  that  he  had a  

heated conversation with the Intelligence Bureau officials  for  

whom he was working.  It was demanded of him that he should  

join  a  militant  camp  in  Jammu  &  Kashmir  in  order  to  give  

information  with  respect  their  activities  to  the  Intelligence  

Bureau.  However, the said respondent refused to do the job  

and consequently claims that he has been falsely implicated in  

the present case.   In fact, on 12th December, 2005, a report  

was lodged regarding disappearance of respondent no.2 by his  

family members at Police Station, Bhajanpura, Delhi.  Not only  

this, the brother of the respondent no.2 also sent a telegram to  

the Prime Minister, Home Minister and Police Commissioner on  

7th  and 10th January, 2006, but to no avail.   On 9th February,  

2006,  a  report  was  published  in  the  Hindustan  Times  

newspaper,  Delhi  Edition,  through  SHO,  Police  Station,  

Bhajanpura,  Delhi  with  the  photograph  of  respondent  no.2  

seeking help of the general public in tracing him.  On that very  

evening,  it  is  stated that the Special  Cell  of  the Delhi  Police  

falsely  implicated  both  the  respondents  in  a  case,  FIR  No.  

10/2006, under Sections 4 and 5 of the Explosive Substances  3

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Act and under Section 120B, 121 and 122 of the Indian Penal  

Code, 1860 (for short ‘IPC’) read with Section 25 of the Arms  

Act.  Both the respondents were described as terrorists.  In the  

entire  record,  it  was  not  stated  that  the  respondents  were  

working as informers of these agencies.  At this stage, it will be  

pertinent to refer to  the FIR that  was registered against the  

accused  persons,  relevant  part  of  which  can  usefully  be  

extracted herein: -

“To,  the  Duty  Officer,  PS  Special  Cell,  Lodhi  Colony,  New  Delhi.   During  the  3rd week  of  January,  2006  information  was  received  through  Central  Intelligence  Agency  that  militant of Kashmir based Organisation has set  up a base in Delhi.  One Irshad Ali @ Deepak is  frequently  visiting  Kashmir  to  get  arms,  ammuniation and explosives or the instructions  from their Kashmir based Commanders.  He is  also  visiting  different  parts  of  the  country  to  spread  the  network  of  the  militant  organizations.  As per the directions of senior  officers,  a  team under  the  supervision  of  Sh.  Sanjeev  Kumar,  ACP  Special  Cell  led  by  Inspector Mohan Chand Sharma was formed to  develop this information and identify Irshad and  ‘his  whereabouts  in  Sultanpuri  area,  Secret  sources were deployed.  During the course of  developments  of  information,  it  came  to  knowledge  that  above  noted  Irshad  Ali  @  Deepak is  resident  of  Inder  Enclave,  Phase-II,  Sultanpuri,  Delhi.   It  also came to notice that  one  Mohd.  Muarif  Qamar  @  Nawab  r/o  Bhajanpura,  Delhi  is  also  associated  with  the  militant organization.  During the development  of  this  information,  it  was revealed that  both  

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Irshad Ali  and nawab had gone to J&K on the  directions  of  their  handlers  to  receive  a  consignment of arms and explosives.  Today on  February 09, 2006 at about 4 PM, one of these  sources telephonically informed SI Vinay Tyagi  in the office of Special Cell, Lodhi Colony that  Irshad  A.li(sic)  @  Deepak  along  with  his  associate  Mohd.  Muarif  Qamar  @  Nawab  R/o  Bajanpura,  Delhi  is  coming from Jammu in  JK  SRTC Bus No. JK-02 Y-0299 with a consignment  of  explosives,  arms  &  ammunition  and  will  alight at Mukarba Chowk, near Karnal Bypass in  the evening.  This information was recorded in  Daily  Dairy  (sic)  and  discussed  with  senior  officers.  A team consisting of Insp. Sanjay Dutt,  myself, SI Subhash Vats, SI Rahul, SI Ravinder  Kumar Tyagi, S.I Dalip Kumar, SI Pawan Kumar,  ASI Anil Tyagi, ASI Shahjahan, HC Krishna Ram,  HC  Nagender,  HC  Rustam,  Ct.  Rajiv  and  Ct.  Rajender  was  constituted  to  act  upon  this  information.  Thereafter the team members in 3  private vehicles and 2 two wheelers armed with  official  weapons  as  per  Malkhana  register,  departed from the office of Special Cell, Lodhi  Colony  at  about  4.30  PM  and  reached  G.T.  Karnal  Depot  at  5.30  PM  where  Insp.  Sanjay  Dutt met the informer.  Insp. Sanjay Dutt asked  6/7  persons  to  join  the  police  party  after  disclosing them about the information.   All  of  them went away citing genuine excuses.  The  police party was briefed by Insp.  Sanjay Dutt  and  was  deployed  around  Mukarba  Chowk,  Interstate Bus Stand.  At about 7.35 PM, above  mentioned  Irshad  and  Nawab  were  identified  by the informer when they had alighted from  the bus No.JK-02 Y-0299 coming from Jammu.  Both were scene (sic) carrying blue and green- red check coloured airbags each on their right  shoulders.  In the meantime, team posted near  by was alerted and when they were about to  cross the outer Ring Road to go towards Rohini  side, were overpowered.  Cursory search of the  above-mentioned persons  was  conducted and  

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from the right  dhub of the pant worn by Mohd  Muarif  Qamar  @  Nawab  mentioned  above,  apprehended  by  me  with  the  help  of  Dalip  Kumar, one Chinese pistol star Mark.30 calibre  along with 8 live cartridges in its magazine was  recovered.   On  measuring  the  length  of  the  barrel and body 19.4 cms, magazine 10.8 cms,  butt  8.9  cms and diagonal  length  of  pistol  is  21.5  cms  Number  19396  is  engraved  on  the  butt  of  the  pistol.   On  checking  the  blue  coloured bag recovered from the possession of  Nawab,  one  white  envelope  containing  non- electronic  detonators,  one  ABCD  green  coloured Timer, one AB cream coloured Timer  was  also  recovered  which  was  concealed  beneath  the  layers  of  clothes  including  one  light blue coloured shirt and dark gray coloured  pant  in  the  bag,  and  from  the  red  green  coloured bag recovered from the possession of  Irshad Ali mentioned above, apprehended by SI  Ravinder  Tyagi  with  the  help  of  Ct.  Rajender  Kumar, one Chinese pistol star Mark .30 calibre  along with 8 live cartridges in its magazine was  recovered.   On  measuring  the  length  of  the  barrel and body 19.4 cms, magazine 10.8 cms,  butt  8.9  cms and diagonal  length  of  pistol  is  21.5  cms,  Number  33030545  is  engraved  on  the barrel  and body of the pistol.   One white  polythene  containing  a  mixture  of  black  and  white  oil  based  explosive  material  kept  in  a  black  polythene  and  was  also  concealed  beneath the layers of clothes.  On weighing the  explosive was found to be 2 kg.  Out of this two  samples  of  10  gms  each  were  taken  out  in  white  plastic  small  jars.   The  remaining  recovered  explosive  kept  back  in  black  polythene,  pulinda  prepared and sealed with  the  seal  of  ‘VKT’.   Sample  explosive  were  marked as S1 and S2 and sealed with the seal  of ‘VKT’.  The ABCD timer and AB Timer were  kept in a plastic jar and sealed with the seal of  ‘VKT’  marked  as  ‘T’  and  3  non  electric  detonators along with envelope were kept in a  

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transparent plastic jar with the help of cotton  and sealed with the seal  of  “VKT’  marked as  ‘D’.   The recovered Star Mark pistol  from the  possession of accused Mohd. Muarif @ Nawab  and Irshad ali  were kept in separate pulindas  and  marked  as  M&I  respectively  and  sealed  with  the  seal  of  “VKT’.   The  blue  coloured  airbag  and  clothes  recovered  from  the  possession of accused Mohd. Muarif @ Nawab  and kept in a cloth pulinda and sealed with the  seal of ‘T’ and the green-red colour check bag  recovered  from  the  possession  of  accused  Irshad  Ali  containing  clothes  was  kept  in  a  pulinda sealed with the seal of ‘VKT’ and CFSL  forms were filled-up and sealed with the seal of  “VKT”.  Seal after use was handed over to SI  Ravinder  Kumar  Tyagi.   During  their  interrogation,  both  the  accused  Irshad  Ali  @  Deepak S/o Mohd. Yunus Ali R/o F-247-A, Inder  Enclave,  Phase-II,  Sultnpuri,  Delhi  aged  30  years and Mohd. Muarif  Qamar @ Nawab R/o  Vill. Deora Bandhoh, P.O.-Jogiara, PS-Jale, Distt.- Darbhanga, Bihar, stated that they brought the  recovered consignment  of  arms,  ammunitions  and  explosives  from  J&K  from  their  Commanders in J&K and was to be kept in safe  custody and was to be used for terrorist activity  in Delhi  on the directions of their  handlers in  J&K.   Militant  Irshad  Ali  and  Nawab  above  mentioned  have  kept  in  their  possession  explosives,  ABCD  Timer,  AB  Timer,  Non  Electronic  detonators  and  arms  and  ammunition  which  were  to  be  used  for  the  purpose  of  terrorist  activities  in  order  to  overawe the sovereignty, integrity and unity of  India in order to commit terrorist and disruptive  activities  and  there  by  committing  offences  punishable u/s 121/121A/122/123/120B IPC r/w  4/5 Explosive Substance Act and 25 Arms Act.  Rukka is  being sent to you for  registration of  the  case  through  SI  Ravinder  Kumar  Tyagi.  Case be registered and further investigation be  handed over to SI Rajpal Dabas, D-882, PIS No.  

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28860555 who has already reached at the spot  as per the direction of senior Officers who had  already been informed about the apprehension  and  recovery  of  explosives,  arms  and  ammunition from their  possession.   Date and  time of offence.  February 09, 2006 at 7.35 PM,  place of occurrence; Outer ring road, Mukarba  Chowk, near Inter State bus stand, Delhi.  Date  and time of sending the rukka: 09.02.2006 at  10.15  PM.   Sd  English  SI  Vinay  Tyagi  No.  D- 1334, PIS No. 28862091, Special Cell/NDR/OC,  Lodhi Colony, New Delhi dated 09.02.2006.”  

4. Aggrieved by the action of the Delhi police, brother of the  

accused filed a petition in the High Court of Delhi stating the  

harrowing facts, the factum that both the accused were working  

as ‘informers’, and that they have been falsely implicated in the  

case and, inter alia, praying that the investigation in relation to  

FIR No.10 of 2006 be transferred to the CBI.  This writ petition  

was filed on  25th February,  2006 upon which  the Delhi  High  

Court  had  issued  notice  to  the  respondents  therein.   Upon  

receiving the notice, Delhi Police filed its status report before  

the High Court reiterating the contents stated in the above FIR  

but  conceding  to  the  fact  that  the  accused  persons  were  

working as ‘informers’ of the police.  While issuing the notice,  

the High Court did not grant any stay of the investigation and/or  

the  proceedings  before  the  court  of  competent  jurisdiction,  

despite the fact that a prayer to that effect had been made.  8

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The Special Cell of the Delhi Police, filed a chargesheet before  

the trial court on 6th May, 2006 when the matter was pending  

before the High Court.  In the writ petition, it was stated to be a  

mala fide exercise of power.   The High Court on 9th May, 2006  

passed the following order :

“The  Petitioner  has  filed  this  petition  under  Article 226 of the Constitution of India read with  the  Section  482  Cr.P.C.  for  issuance  of  Writ,  Order or Direction in the nature of Mandamus  to the Respondents to transfer the investigation  of case FIR No.10/2006 dated 09.02.2006 of the  Police  Station  Special  Cell,  under  Section  121/121-A/122/123/120-B  IPC  read  with  the  Section  4/5  of  Explosive  Substance  Act  and  Section  25  of  Arms  Act  to  an  independent  agency  like  CBI  on  the  allegation  that  his  brother  Moarif  Qamar  @  Nawab  was  falsely  implicated  in  a  serious  case  like  the  present  one on the basis of a totally cooked up story.  The above named brother of the Petitioner was  reported to be missing ever since 22.12.2005  and a complaint to that effect was lodged at PS  Bhajanpura,  Delhi.   It  appears  that  usual  notices,  as provided,  were issued on order to  search the brother of the Petitioner.  Lastly, a  notice was got published by SHO, Bhajanpura,  Delhi  in  Delhi  Hindustan  Times  in  its  edition  dated 09.05.2006 which is precisely the date on  which  it  is  alleged  that  the  brother  of  the  Petitioner  and  another  person  were  apprehended  by  the  police  when  they  were  returning from Jammu & Kashmir by Jammu &  Kashmir  State  Transport  Roadways  bus  near  Kingsway Camp, Mukraba Chowk and a Chinese  made  pistol,  certain  detonators  and  2  Kg  of  RDX  were  recovered  from  the  Petitioner’s  brother and 2 Kg of RDX were recovered from  

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co-accused Mohd. Irshad Ali.  The investigation  leads the police to pinpoint the Petitioner being  a member of terrorist organization, namely Al- Badar  and  consequently,  after  usual  investigation,  a  charge  sheet  has  been  filed  against both the accused persons.

On  notice  being  issued  to  the  Respondent/State.  A status report stands filed  by  the  Assistant  Commissioner  of  Police,  NDR/OC, Special Cell, Lodhi Colony, Delhi which  has reiterated the allegations about the arrest  of the Petitioner’s brother and Mohd. Irshad Ali  in  the  above  circumstances,  the  report  has,  however sustained the allegation about a report  in regard to the missing of the brother of the  Petitioners having being lodged with the police  as far as on 28.12.2005.  The allegations about  the false implication of the Petitioner’s brother  are, however, controverted and denied.

I  have  heard  learned  counsel  for  the  parties.  Learned counsel for the Petitioner has  invited  the  attention  of  the  Court  to  various  attendant circumstances around the time of the  alleged  arrest  of  the  accused  persons  on  09.02.2006.   The  circumstances  disclosed  do  cast a suspicion on the case of the prosecution  in regard to the manner in which Mohd. Moarif  Qamar @ Nawab and the other accused Mohd.  Irshad Ali were apprehended by the officials of  Special  Cell  and  about  the  recovery  of  the  contraband  articles  like  explosive  and  detonators.   The  offences  under  Sections  121/121-A/122/123/120-B  IPC  read  with  the  Section  4/5  of  Explosive  Substance  Act  and  Section of 25 Arms Act are very grave offences  and may lead to a very severe punishment, if  the charges are established.  Therefore, without  commenting any further  on the merits  of  the  matter, this Court is of the considered opinion  that it is a fit case where an inquiry by some  independent agency is called for the allegations  

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made in the present petition.  Accordingly, the  CBI,  in  the  first  instance,  is  called  upon  to  undertake  an  inquiry  into  the  matter  and  submit a report to this Court within four weeks.

List on 17th July, 2006.

Copy of the Order be forwarded to the Director,  CBI for taking necessary action in the matter.”

5. The  CBI  also  filed  its  report  before  the  High  Court  

indicating therein that the alleged recoveries effected from the  

accused  persons  did  not  inspire  confidence  and  further  

investigation was needed.  After perusing the records, the High  

Court again on 4th August, 2008 passed the following order: -

“However, this relief cannot be claimed at this  stage as if there was any error or misconduct or  false implication of the accused on the part of  any  police  official  or  the  investigating  officer  while  registering  the  case  and  while  the  investigation  of  the  case  is  yet  to  be  ascertained by the trial court during the trial of  the case.  Therefore, this relief being premature  cannot be granted.”

6. After detailed investigation, the CBI filed the closure report  

on 11th November, 2008 stating that the accused persons were  

working  as  ‘informers’  of  Special  Cell  of  Delhi  Police  and  

Intelligence Bureau Officials and that it was a false case.  After  

filing of  the report  by the CBI,  the accused-respondent no.2,  

namely, Mohd. Muarif Qamar Ali, filed an application before the  11

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Trial Court in terms of Section 227 of the Code with a prayer  

that in view of the ‘closure report’  submitted by the CBI,  he  

should  be  discharged.   This  application  was  opposed by  the  

Special Cell, Delhi Police, who filed a detailed reply.  The CBI, of  

course,  stood  by  its  report  and  submitted  that  it  had  no  

objection if the said accused was discharged.  The learned Trial  

Court, in its order dated 13th February, 2009, opined that the  

CBI had concluded in its report that the manner of recovery and  

arrest  of  the  accused  persons  from Mukarba  Chowk did  not  

inspire any confidence but the CBI had not discovered any fact  

pertaining  to  the  recovery  of  the  arms  and  ammunition,  

explosive substances and bus tickets etc. from the two accused  

persons.   

7. Observing that the CBI had not investigated all the aspects  

of the allegations, the Court also noticed that in the order dated  

4th August,  2008,  the  High  Court  noted  that  transfer  of  

investigation from Special Cell  to CBI had been directed, and  

further, filing of charge-sheet after completion of investigation,  

which was pending before the Court of competent jurisdiction  

had been directed.  Upon noticing all these facts and pleas, the  

Court concluded, ‘therefore, the prayer for acceptance of the  

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closure report and discharge of the accused is premature.  The  

same cannot be granted at this stage.  With these observations,  

the contentions of the CBI, Special Cell and the accused persons  

stand disposed of.’

8. Vide the same order, the Court also observed, ‘no definite  

conclusion  can  be  drawn  at  this  stage  to  ascertain  the  

truthfulness of the version of two different agencies’ and fixed  

the case for arguments on charge for 28th February, 2009.

9. The respondent no.2 herein, Maurif Qamar, filed a petition  

under Section 482 of  the Code praying that  the proceedings  

pending before the Court of Additional Sessions Judge,  Delhi,  

pertaining  to  FIR  No.10  of  2006,  be  quashed.   This  was  

registered as  Criminal  Miscellaneous Petition No.781 of  2009  

and  the  application  for  stay  was  registered  as  Crl.  Misc.  

Application No.286/2009.   As already noticed, the Court had  

not granted any stay but had finally disposed of the petition  

vide  its  order  dated  28th August,  2009.   The  High  Court  

observed that once the report was filed by the CBI, that agency  

has to be treated as the investigating agency in the case and  

the closure report ought to have been considered by the trial  

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court.  It remanded the case to the trial court while passing the  

following order:

“12.   In  these  circumstances,  the  impugned  order  dated  13.02.2009  dismissing  the  applications  moved  by  the  petitioners  for  discharging  them  is  set  aside.   The  case  is  remanded  back  to  the  Additional  Sessions  Judge  to  proceed  further  in  the  matter  after  hearing the parties on the basis of the closure  report filed by the CBI dated 11.11.2008 and in  accordance with the provisions contained under  Section  173  and  Section  190  of  the  Code  of  Criminal  Procedure.   In  case  he  accepts  the  report, then the matter may come to an end,  subject to his orders, if any, against the erring  officers.  However, if he feels that despite the  closure report filed by the CBI, it is a case fit for  proceeding further  against  the petitioners,  he  may pass appropriate orders uninfluenced dby  (sic) what this Court has stated while disposing  of this case.  The only rider would be that while  passing  the  orders  the  Additional  Sessions  Judge would not be influenced by the report of  the Sepcial (sic) Cell in this matter.  Parties to  appear  before  the  Trial  Judge  on  14th  September, 2009.”

10. It  is  this  order  of  the  High  Court  which  is  the  subject  

matter of the present appeals by special leave.  

11. It  would  be  appropriate  for  the  Court  to  examine  the  

relevant provisions and scheme of the Code in relation to filing  

of a report before the court of competent jurisdiction and the  

extent of its power to examine that report and pass appropriate  

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orders.  The criminal investigative machinery is set into motion  

by  lodging  of  a  First  Information  Report  in  relation  to  

commission of a cognizable offence.  Such report may be made  

orally, in writing or through any means by an officer in charge  

of a police station.  Such officer is required to reduce the same  

into writing, read the same to the informant and wherever the  

person reporting is present, the same shall be signed by such  

person or the person receiving such information in accordance  

with the provisions of Section 154 of the Code.  A police officer  

can conduct investigation in any congnizable case without the  

orders of the Magistrate.  He shall conduct such investigation in  

accordance  with  the  provisions  of  Chapter  XIII,  i.e.,  in  

accordance  with  Sections  177  to  189  of  the  Code.   Where  

information  as  contemplated  in  law  is  received  by  an  

investigating  officer  and  he  has  reasons  to  believe  that  an  

offence  has  been  committed,  which  he  is  empowered  to  

investigate, then he shall forthwith send a report of the same to  

the Magistrate and proceed to the spot to investigate the facts  

and circumstances of the case and take appropriate measures  

for discovery and arrest of the offender.   Every report under  

Section 157 shall  be submitted to the Magistrate in terms of  

Section 158 of the Code upon which the Magistrate may direct  15

Page 16

an  investigation  or  may  straight  away  proceed  himself  or  

depute some other magistrate subordinate to him to hold an  

inquiry  and  to  dispose  of  the  case  in  accordance  with  the  

provisions of the Code.  It needs to be recorded here that the  

proceedings recorded by a police officer cannot be called into  

question  at  any  stage  on  the  ground  that  he  was  not  

empowered to conduct such investigation.  The provisions of  

Section 156(3) empower the Magistrate, who is competent to  

take cognizance in terms of Section 190, to order investigation  

as prescribed under Section 156(1) of the Code.  Section 190  

provides that subject to the provisions of Chapter XIV of the  

Code, any Magistrate of the first class and any magistrate of  

the  second  class  specifically  empowered  in  this  behalf  may  

take cognizance of any offence upon receipt of  a complaint,  

facts of which constitute such offence, upon a police report of  

such facts or upon information received from any person other  

than a  police officer,  or  upon his  own knowledge,  that  such  

offence has been committed.  The Chief Judicial Magistrate is  

competent to empower any Magistrate of the second class to  

take cognizance in terms of Section 190.  The competence to  

take cognizance, in a way, discloses the sources upon which  

the  empowered  Magistrate  can  take  cognizance.   After  the  16

Page 17

investigation has been completed by the Investigating Officer  

and he has  prepared a  report  without  unnecessary  delay  in  

terms of Section 173 of the Code, he shall forward his report to  

a Magistrate who is empowered to take cognizance on a police  

report.    The  report  so  completed  should  satisfy  the  

requirements stated under clauses (a) to (h) of sub-section (2)  

of Section 173 of the Code.  Upon receipt of the report,  the  

empowered Magistrate shall proceed further in accordance with  

law.   The  Investigating  Officer  has  been  vested  with  some  

definite powers in relation to the manner in which the report  

should be completed and it is required that all the documents  

on which the prosecution proposes to rely and the statements  

of  witnesses  recorded  under  Section  161  of  the  code  

accompany the report submitted before the Magistrate, unless  

some part thereof is excluded by the Investigating Officer in  

exercise of the powers vested in him under Section 173(6) of  

the Code.   A very wide power is  vested in  the investigating  

agency to conduct  further  investigation after  it  has filed the  

report  in  terms  of  Section  173(2).   The  legislature  has  

specifically used the expression ‘nothing in this section shall be  

deemed  to  preclude  further  investigation  in  respect  of  an  

offence after a report under Section 173(2) has been forwarded  17

Page 18

to  the  Magistrate’,  which  unambiguously  indicates  the  

legislative intent that even after filing of a report before the  

court  of  competent  jurisdiction,  the  Investigating  Officer  can  

still  conduct  further  investigation  and  where,  upon  such  

investigation,  the  officer  in  charge  of  a  police  station  gets  

further evidence, oral or documentary, he shall forward to the  

Magistrate a further report or reports regarding such evidence  

in  the  prescribed  form.   In  other  words,  the  investigating  

agency  is  competent  to  file  a  supplementary  report  to  its  

primary report in terms of Section 173(8).  The supplementary  

report has to be treated by the Court in continuation of the  

primary report and the same provisions of law, i.e., sub-section  

(2) to sub-section (6) of Section 173 shall apply when the Court  

deals with such report.  Once the Court examines the records,  

applies its mind, duly complies with the requisite formalities of  

summoning the accused and, if present in court, upon ensuring  

that the copies of the requisite documents,  as contemplated  

under Section 173(7), have been furnished to the accused, it  

would proceed to hear the case.  After taking cognizance, the  

next step of definite significance is  the duty of the Court  to  

frame charge in terms of Section 228 of the Code unless the  

Court finds, upon consideration of the record of the case and  18

Page 19

the  documents  submitted  therewith,  that  there  exists  no  

sufficient ground to proceed against the accused, in which case  

it shall discharge him for reasons to be recorded in terms of  

Section 227 of the Code.  It may be noticed that the language  

of  Section  228  opens  with  the  words,  ‘if  after  such  

consideration  and  hearing  as  aforesaid,  the  Judge  is  of  the  

opinion that there is ground for presuming that the accused has  

committed an offence’, he may frame a charge and try him in  

terms  of  Section  228(1)(a)  and  if  exclusively  triable  by  the  

Court of Sessions, commit the same to the Court of Sessions in  

terms of Section 228(1)(b).  Why the legislature has used the  

word  ‘presuming’  is  a  matter  which  requires  serious  

deliberation.   It  is  a  settled  rule  of  interpretation  that  the  

legislature  does  not  use  any  expression  purposelessly  and  

without any object.  Furthermore, in terms of doctrine of plain  

interpretation, every word should be given its ordinary meaning  

unless context to the contrary is specifically stipulated in the  

relevant provision.  Framing of charge is certainly a matter of  

earnestness.  It is not merely a formal step in the process of  

criminal inquiry and trial.  On the contrary, it is a serious step  

as it is determinative to some extent, in the sense that either  

the  accused  is  acquitted  giving  right  to  challenge  to  the  19

Page 20

complainant  party,  or  the  State  itself,  and  if  the  charge  is  

framed, the accused is called upon to face the complete trial  

which may prove prejudicial to him, if finally acquitted.  These  

are the courses open to the Court at that stage.  Thus, the word  

‘presuming’ must be read ejusdem generis to the opinion that  

there  is  a  ground.   The  ground  must  exist  for  forming  the  

opinion  that  the  accused  had  committed  an  offence.   Such  

opinion has to be formed on the basis of the record of the case  

and the documents submitted therewith.  To a limited extent,  

the plea of defence also has to be considered by the Court at  

this stage.  For instance, if a plea of proceedings being barred  

under  any  other  law is  raised,  upon such  consideration,  the  

Court has to form its opinion which in a way is tentative.  The  

expression ‘presuming’ cannot be said to be superfluous in the  

language and ambit  of  Section 228 of  the Code.   This  is  to  

emphasize that the Court may believe that the accused had  

committed  an  offence,  if  its  ingredients  are  satisfied  with  

reference to the record before the Court.  At this stage, we may  

refer to the judgment of this Court in the case of Amit Kapur v.  

Ramesh  Chander  &  Anr. [JT  2012  (9)  SC  329] wherein,  the  

Court held as under :

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“The above-stated principles clearly show that  inherent as well as revisional jurisdiction should  be  exercised  cautiously.   If  the  jurisdiction  under  Section  482 of  the  Code in  relation  to  quashing  of  an  FIR  is  circumscribed  by  the  factum and caution afore-noticed, in that event,  the  revisional  jurisdiction,  particularly  while  dealing  with  framing  of  a  charge,  has  to  be  even more limited.  Framing of a charge is an  exercise  of  jurisdiction  by  the  trial  court  in  terms of Section 228 of the Code,  unless the  accused is discharged under Section 227 of the  Code.  Under both these provisions, the court is  required  to  consider  the  ‘record  of  the  case’  and documents submitted therewith and, after  hearing the parties,  may either  discharge the  accused or where it appears to the court and in  its opinion there is ground for  presuming that  the accused has committed an offence, it shall  frame  the  charge.   Once  the  facts  and  ingredients of the Section exists, then the Court  would  be  right  in  presuming  that  there  is  ground  to  proceed  against  the  accused  and  frame  the  charge  accordingly.   This  presumption  is  not  a  presumption  of  law  as  such.  The satisfaction of the court in relation to  the existence of constituents of an offence and  the facts leading to that offence is a  sine qua  non for  exercise  of  such  jurisdiction.   It  may  even be weaker than a prima facie case.  There  is  a  fine  distinction  between the  language of  Sections 227 and 228 of the Code.  Section 227  is expression of a definite opinion and judgment  of  the  Court  while  Section  228  is  tentative.  Thus,  to  say  that  at  the  stage  of  framing  of  charge, the Court should form an opinion that  the accused is certainly guilty of committing an  offence, is an approach which is impermissible  in terms of Section 228 of the Code.   It  may  also be noticed that the revisional jurisdiction  exercised by the High Court is  in a way final  and no inter court remedy is available in such  cases.   Of  course,  it  may  be  subject  to  

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jurisdiction of this court under Article 136 of the  Constitution  of  India.   Normally,  a  revisional  jurisdiction should be exercised on a question  of law.  However, when factual appreciation is  involved, then it must find place in the class of  cases resulting in a perverse finding.  Basically,  the power is required to be exercised so that  justice is done and there is no abuse of power  by  the  court.   Merely  an  apprehension  or  suspicion of the same would not be a sufficient  ground for interference in such cases.”

12. On  analysis  of  the  above  discussion,  it  can  safely  be  

concluded that ‘presuming’ is an expression of relevancy and  

places  some  weightage  on  the  consideration  of  the  record  

before the Court.  The prosecution’s record, at this stage, has  

to be examined on the plea of demur.  Presumption is of a very  

weak and mild nature.  It would cover the cases where some  

lacuna has been left out and is capable of being supplied and  

proved during the course of the trial.   For instance, it is not  

necessary  that  at  that  stage  each  ingredient  of  an  offence  

should  be linguistically  reproduced in  the report  and backed  

with meticulous facts.  Suffice would be substantial compliance  

to the requirements of the provisions.   

13. 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  22

Page 23

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 re-investigation.

14. The initial investigation is the one which the empowered  

police officer shall conduct in furtherance to registration of an  

FIR.  Such investigation itself can lead to filing of a final report  

under Section 173(2) of the Code and shall take within its ambit  

the investigation which the empowered officer shall conduct in  

furtherance of an order for investigation passed by the court of  

competent jurisdiction in terms of Section 156(3) of the Code.   

15. ‘Further  investigation’  is  where  the Investigating  Officer  

obtains  further  oral  or  documentary  evidence  after  the  final  

report  has  been  filed  before  the  Court  in  terms  of  Section  

173(8).   This  power  is  vested  with  the  Executive.   It  is  the  

continuation  of  a  previous  investigation  and,  therefore,  is  

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understood and described as a ‘further investigation’.  Scope of  

such investigation is restricted to the discovery of further oral  

and documentary evidence.   Its  purpose is  to bring the true  

facts  before  the  Court  even  if  they  are  discovered  at  a  

subsequent stage to the primary investigation.  It is commonly  

described as ‘supplementary report’.   ‘Supplementary report’  

would  be  the  correct  expression  as  the  subsequent  

investigation is meant and intended to supplement the primary  

investigation  conducted  by  the  empowered  police  officer.  

Another  significant  feature  of  further  investigation  is  that  it  

does not have the effect of wiping out directly or impliedly the  

initial  investigation  conducted  by  the  investigating  agency.  

This is a kind of continuation of the previous investigation.  The  

basis is discovery of fresh evidence and in continuation of the  

same  offence  and  chain  of  events  relating  to  the  same  

occurrence  incidental  thereto.   In  other  words,  it  has  to  be  

understood in complete contradistinction to a ‘reinvestigation’,  

‘fresh’ or ‘de novo’ investigation.   

16. However,  in  the  case  of  a  ‘fresh  investigation’,  

‘reinvestigation’  or  ‘de novo investigation’  there has to be a  

definite  order  of  the  court.   The  order  of  the  Court  

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unambiguously  should  state  as  to  whether  the  previous  

investigation, for reasons to be recorded, is incapable of being  

acted  upon.  Neither  the  Investigating  agency  nor  the  

Magistrate  has  any  power  to  order  or  conduct  ‘fresh  

investigation’. This is primarily for the reason that it would be  

opposed to the scheme of the Code.  It is essential that even an  

order  of  ‘fresh’/’de novo’  investigation  passed by  the  higher  

judiciary should always be coupled with a specific direction as  

to the fate of the investigation already conducted.  The cases  

where such direction can be issued are few and far between.  

This  is  based  upon  a  fundamental  principle  of  our  criminal  

jurisprudence which is that it  is the right of a suspect or an  

accused to have a just and fair  investigation and trial.   This  

principle  flows  from the constitutional  mandate  contained in  

Articles  21  and  22  of  the  Constitution  of  India.   Where  the  

investigation ex facie is unfair, tainted, mala fide and smacks of  

foul play, the courts would set aside such an investigation and  

direct fresh or de novo investigation and, if necessary, even by  

another independent investigating agency.  As already noticed,  

this  is  a  power  of  wide  plenitude  and,  therefore,  has  to  be  

exercised sparingly.  The principle of rarest of rare cases would  

squarely  apply  to  such  cases.   Unless  the  unfairness  of  the  25

Page 26

investigation is such that it pricks the judicial conscience of the  

Court, the Court should be reluctant to interfere in such matters  

to the extent of quashing an investigation and directing a ‘fresh  

investigation’.  In the case of Sidhartha Vashisht v. State (NCT  

of Delhi)  [(2010) 6 SCC 1], the Court stated that it is not only  

the responsibility of the investigating agency, but also that of  

the courts to ensure that investigation is fair and does not in  

any  way  hamper  the  freedom  of  an  individual  except  in  

accordance  with  law.   An  equally  enforceable  canon  of  the  

criminal  law  is  that  high  responsibility  lies  upon  the  

investigating  agency  not  to  conduct  an  investigation  in  a  

tainted or unfair manner.  The investigation should not  prima  

facie be indicative of a biased mind and every effort should be  

made to bring the guilty to law as nobody stands above law de  

hors  his  position  and  influence  in  the  society.   The  maxim  

contra  veritatem  lex  nunquam  aliquid  permittit applies  to  

exercise of  powers  by the courts  while  granting approval  or  

declining to accept the report.   In the case of  Gudalure M.J.   

Cherian & Ors. v. Union of India & Ors. [(1992) 1 SCC 397], this  

Court stated the principle that in cases where charge-sheets  

have been filed after completion of investigation and request is  

made belatedly to reopen the investigation, such investigation  26

Page 27

being  entrusted  to  a  specialized  agency  would  normally  be  

declined  by  the  court  of  competent  jurisdiction  but  

nevertheless  in  a  given  situation  to  do  justice  between  the  

parties and to instil confidence in public mind, it may become  

necessary to pass such orders.   Further,  in the case of  R.S.  

Sodhi,  Advocate v.  State  of  U.P. [1994  SCC Supp.  (1)  142],  

where allegations were made against a police officer, the Court  

ordered the investigation to be transferred to CBI with an intent  

to maintain credibility of investigation, public confidence and in  

the interest of justice.  Ordinarily, the courts would not exercise  

such jurisdiction but the expression ‘ordinarily’ means normally  

and it is used where there can be an exception.  It means in the  

large majority of cases but not invariably.  ‘Ordinarily’ excludes  

extra-ordinary  or  special  circumstances.   In  other  words,  if  

special  circumstances  exist,  the  court  may  exercise  its  

jurisdiction  to  direct  ‘fresh  investigation’  and  even  transfer  

cases  to  courts  of  higher  jurisdiction  which  may  pass  such  

directions.

17. Here, we will also have to examine the kind of reports that  

can be filed by an investigating agency under the scheme of  

the Code.   Firstly,  the FIR which the investigating agency is  

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required to file before the Magistrate right at the threshold and  

within  the  time specified.   Secondly,  it  may  file  a  report  in  

furtherance to a direction issued under Section 156(3) of the  

Code.   Thirdly,  it  can  also  file  a  ‘further  report’,  as  

contemplated under Section 173(8).  Finally, the investigating  

agency is required to file a ‘final report’ on the basis of which  

the Court shall proceed further to frame the charge and put the  

accused to trial or discharge him as envisaged by Section 227  

of the Code.

18. Next  question  that  comes  up  for  consideration  of  this  

Court is whether the empowered Magistrate has the jurisdiction  

to direct ‘further investigation’ or ‘fresh investigation’.  As far  

as  the  latter  is  concerned,  the  law  declared  by  this  Court  

consistently is that the learned Magistrate has no jurisdiction to  

direct  ‘fresh’  or  ‘de novo’ investigation.   However,  once the  

report  is  filed,  the  Magistrate  has  jurisdiction  to  accept  the  

report or reject the same right at the threshold.  Even after  

accepting the report,  it  has  the jurisdiction to  discharge the  

accused or frame the charge and put him to trial.  But there are  

no provisions  in  the Code which empower  the Magistrate to  

disturb the status of an accused pending investigation or when  

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report  is,  filed to wipe out  the report  and its  effects  in  law.  

Reference in this regard can be made to  K. Chandrasekhar v.  

State  of  Kerala  [(1998)  5  SCC  223];  Ramachandran  v.  R.  

Udhayakumar [(2008) 5 SCC 413], Nirmal Singh Kahlon  v State  

of Punjab & Ors. [(2009) 1 SCC 441]; Mithabhai Pashabhai Patel   

& Ors. v. State of Gujarat [(2009) 6 SCC 332]; and Babubhai v.  

State of Gujarat [(2010) 12 SCC 254].

19. Now, we come to the former question, i.e.,  whether the  

Magistrate  has  jurisdiction  under  Section  173(8)  to  direct  

further investigation.

20. The  power  of  the  Court  to  pass  an  order  for  further  

investigation has been a matter of judicial  concern for  some  

time now.  The courts have taken somewhat divergent but not  

diametrically opposite views in this regard.  Such views can be  

reconciled and harmoniously  applied without  violation of  the  

rule of precedence.  In the case of State of Punjab  v.  Central   

Bureau of Investigation [(2011) 9 SCC 182], the Court noticed  

the distinction that exists between ‘reinvestigation’ and ‘further  

investigation’.  The Court also noticed the settled principle that  

the  courts  subordinate  to  the  High  Court  do  not  have  the  

statutory inherent powers as the High Court does under Section  

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482 of the Code and therefore, must exercise their jurisdiction  

within the four corners of the Code.   

21. Referring to the provisions of Section 173 of the Code, the  

Court observed that the police has the power to conduct further  

investigation in terms of Section 173(8) of the Code but also  

opined that even the Trial Court can direct further investigation  

in  contradistinction  to  fresh  investigation,  even  where  the  

report has been filed.  It will be useful to refer to the following  

paragraphs of the judgment wherein the Court while referring  

to the case of  Mithabhai Pashabhai  Patel v.  State of Gujarat  

(supra) held as under:

“13.  It  is,  however,  beyond  any  cavil  that  ‘further  investigation’  and  ‘reinvestigation’  stand on different footing. It may be that in a  given situation a superior court in exercise of  its constitutional power, namely, under Articles  226 and 32 of the Constitution of India could  direct a ‘State’ to get an offence investigated  and/or  further  investigated  by  a  different  agency. Direction of a reinvestigation, however,  being forbidden in law, no superior court would  ordinarily issue such a direction. Pasayat, J. in  Ramachandran v.  R.  Udhayakumar  (2008)  5  SCC 513 opined as under: (SCC p. 415, para 7)

‘7.  At  this  juncture  it  would  be  necessary to take note of Section 173 of  the  Code.  From  a  plain  reading  of  the  above section it is evident that even after  completion  of  investigation  under  sub-

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section (2) of Section 173 of the Code, the  police  has  right  to  further  investigate  under  sub-section  (8),  but  not  fresh  investigation or reinvestigation.’

A  distinction,  therefore,  exists  between  a  reinvestigation and further investigation.

XXX XXX XXX

15.  The  investigating  agency  and/or  a  court  exercise  their  jurisdiction  conferred  on  them  only in terms of the provisions of the Code. The  courts subordinate to the High Court even do  not have any inherent power under Section 482  of the Code of Criminal Procedure or otherwise.  The  precognizance  jurisdiction  to  remand  vested  in  the  subordinate  courts,  therefore,  must be exercised within the four corners of the  Code.”

22. In the case of Minu Kumari & Anr. v.  State of Bihar  & Ors.  

[(2006) 4 SCC 359], 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.

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23. 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  the case of  

Hemant  Dhasmana   v.   CBI,  [(2001)  7  SCC 536]  where  the  

Court held that although the said order 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 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,  32

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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.

24. In support of these principles reference can be made to  

the judgments of this Court in the cases of Union Public Service  

Commission v. S. Papaiah & Ors  [(1997) 7 SCC 614],  State of  

Orissa  v.   Mahima  [(2003)  5  SCALE  566],  Kishan  Lal   v.   

Dharmendra  Bhanna  &  Anr.  [(2009)  7  SCC  685],  State  of  

Maharashtra  v.  Sharat Chandra Vinayak Dongre [(1995) 1 SCC  

42].

25. We may also notice here that in the case of  S. Papaiah  

(supra),  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  

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173 of the Code.  It permitted further investigation and directed  

the report to be filed.

26. 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 the  

case  of  Hemant  Dhasmana  v.  CBI,  (supra)  has  specifically  

referred to the judgment of  S. Papaiah (supra) and  Bhagwant  

Singh v.  Commissioner  of  Police & Anr.  [(1985) 2 SCC 537].  

While  relying  upon  the  three  Judge  Bench  judgment  of  

Bhagwant Singh (supra),  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  paragraph 4 of  the  judgment,  the  three  

Judge  Bench  dealt  with  the  powers  of  the  Magistrate  as  

enshrined in Section 173 of the Code.   Usefully, para 4 can be  

reproduced for ready reference:-

“4.  Now,  when  the  report  forwarded  by  the  officer-in-charge  of  a  police  station  to  the  Magistrate  under  sub-section  (2)(i)  of  Section  

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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  sub-section  (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  

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informant in prompt and effective action being  taken on the first information report lodged by  him  is  clearly  recognised  by  the  provisions  contained  in  sub-section  (2)  of  Section  154,  sub-section (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 officer-in-charge of a police  station under sub-section (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  sub-section  (2)(i)  of  

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

27. In  some  judgments  of  this  Court,  a  view  has  been  

advanced, (amongst others in the case of Reeta Nag v State of   

West Bengal & Ors. [(2009) 9 SCC 129] Ram Naresh Prasad v.   

State  of  Jharkhand  and  Others [(2009)  11  SCC  299]  and  

Randhir  Singh Rana v.  State (Delhi  Administration) [(1997) 1  

SCC 361]),  that  a Magistrate cannot  suo moto direct  further  

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

investigation 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  moto direct  

further investigation.

28. However,  having  given  our  considered  thought  to  the  

principles stated in these judgments, we are of the view that  37

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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 the  

case  of  Bhagwant  Singh (supra)  has,  in  no uncertain  terms,  

stated that principle, as afore-noticed.

29. The  contrary  view  taken  by  the  Court  in  the  cases  of  

Reeta Nag (supra) and  Randhir Singh (supra) do not consider  

the view of this Court expressed in  Bhagwant Singh (supra).  

The decision of the Court in Bhagwant Singh (supra) 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 squarely debated before that Court and the  

three Judge Bench concluded as afore-noticed.    Similar views  

having  been  taken  by  different  Benches  of  this  Court  while  

following Bhagwant Singh (supra), are thus squarely in line with  

the  doctrine  of  precedence.       To  some extent,  the  view  

expressed  in  Reeta  Nag (supra),  Ram  Naresh (supra)  and  

Randhir Singh (supra), besides being different on facts, would  

have to be examined in light of the principle of stare decisis.    

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30. Having  analysed  the  provisions  of  the  Code  and  the  

various  judgments  as  afore-indicated,  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 :

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.

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.

3. The view expressed in (2) above is in conformity with  

the  principle  of  law stated in  Bhagwant  Singh’s case  

(supra) by a three Judge Bench and thus in conformity  

with the doctrine of precedence.

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  

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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).

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.

6. It has been a procedure of proprietary that the police  

has to seek permission of the Court to continue ‘further  

investigation’  and  file  supplementary  chargesheet.  

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.

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31. Having discussed the scope of  power  of  the Magistrate  

under Section 173 of the Code, now we have to examine the  

kind of reports that are contemplated under the provisions of  

the Code and/or as per the judgments of this Court.   The first  

and the foremost document that reaches the jurisdiction of the  

Magistrate  is  the  First  Information  Report.    Then,  upon  

completion of the investigation, the police are required to file a  

report  in  terms  of  Section  173(2)  of  the  Code.    It  will  be  

appropriate to term this report as a primary report, as it is the  

very foundation of the case of the prosecution before the Court.  

It is the record of the case and the documents annexed thereto,  

which are considered by the Court and then the Court of the  

Magistrate  is  expected  to  exercise  any  of  the  three  options  

afore-noticed.   Out of the stated options with the Court, the  

jurisdiction it would exercise has to be in strict consonance with  

the settled principles of law.  The power of the magistrate to  

direct ‘further investigation’ is a significant power which has to  

be exercised sparingly, in exceptional cases and to achieve the  

ends of justice.   To provide fair,  proper and unquestionable  

investigation is the obligation of the investigating agency and  

the Court in its supervisory capacity is required to ensure the  

same.   Further investigation conducted under the orders of the  41

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Court, including that of the Magistrate or by the police of its  

own accord and, for valid reasons, would lead to the filing of a  

supplementary  report.   Such  supplementary  report  shall  be  

dealt with as part of the primary report.   This is clear from the  

fact that the provisions of Sections 173(3) to 173(6) would be  

applicable  to  such reports  in  terms of  Section 173(8)  of  the  

Code.

32. Both these reports have to be read conjointly and it is the  

cumulative effect of the reports and the documents annexed  

thereto to which the Court would be expected to apply its mind  

to determine whether there exist grounds to presume that the  

accused has committed the offence.   If the answer is in the  

negative,  on  the  basis  of  these  reports,  the  Court  shall  

discharge  an  accused  in  compliance  with  the  provisions  of  

Section 227 of the Code.   

33. At  this  stage,  we  may  also  state  another  well-settled  

canon of criminal jurisprudence that the superior courts have  

the jurisdiction under Section 482 of the Code or even Article  

226 of the Constitution of India to direct ‘further investigation’,  

‘fresh’  or  ‘de novo’ and even ‘reinvestigation’.    ‘Fresh’,  ‘de  

novo’,  and ‘reinvestigation’  are synonymous expressions and  

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their result in law would be the same.   The superior courts are  

even vested with the power of transferring investigation from  

one agency to another, provided the ends of justice so demand  

such action.    Of course, it is also a settled principle that this  

power has to be exercised by the superior courts very sparingly  

and with great circumspection.  

34. We have deliberated at some length on the issue that the  

powers of the High Court under Section 482 of the Code do not  

control or limit, directly or impliedly, the width of the power of  

Magistrate under Section 228 of the Code.   Wherever a charge  

sheet  has  been  submitted  to  the  Court,  even  this  Court  

ordinarily  would  not  reopen  the  investigation,  especially  by  

entrusting the same to a specialised agency.   It can safely be  

stated and concluded that  in  an appropriate case,  when the  

court feels that the investigation by the police authorities is not  

in the proper direction and that in order to do complete justice  

and where the facts of the case demand, it is always open to  

the  Court  to  hand  over  the  investigation  to  a  specialised  

agency.   These principles have been reiterated with approval  

in the judgments of this Court in the case of Disha v. State of  

Gujarat & Ors. [(2011) 13 SCC 337].  Vineet Narain & Ors. v.   

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Union of India & Anr.[(1998) 1 SCC 226], Union of India & Ors.   

v.  Sushil  Kumar  Modi  &  Ors. [1996  (6)  SCC  500]  and  

Rubabbuddin Sheikh v. State of Gujarat & Ors. [(2010) 2 SCC  

200].

35. The  power  to  order/direct  ‘reinvestigation’  or  ‘de novo’  

investigation falls in the domain of higher courts,  that too in  

exceptional cases.   If one examines the provisions of the Code,  

there is  no specific  provision for  cancellation of  the reports,  

except that the investigating agency can file a closure report  

(where  according  to  the  investigating  agency,  no  offence  is  

made out).   Even such a report is subject to acceptance by the  

learned Magistrate who, in his wisdom, may or may not accept  

such a report.   For valid reasons, the Court may, by declining  

to accept such a report, direct ‘further investigation’, or even  

on  the  basis  of  the  record  of  the  case  and  the  documents  

annexed thereto, summon the accused.

36. The Code does not contain any provision which deals with  

the court competent to direct ‘fresh investigation’, the situation  

in  which  such  investigation  can  be conducted,  if  at  all,  and  

finally  the  manner  in  which  the  report  so  obtained shall  be  

dealt  with.   The  superior  courts  can  direct  conduct  of  a  

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‘fresh’/‘de novo’  investigation, but unless it specifically directs  

that  the  report  already  prepared  or  the  investigation  so  far  

conducted will  not form part of the record of the case, such  

report would be deemed to be part of the record.   Once it is  

part of the record, the learned Magistrate has no jurisdiction to  

exclude the same from the record of the case.   In other words,  

but  for  a  specific  order  by  the  superior  court,  the  reports,  

whether  a  primary  report  or  a  report  upon  ‘further  

investigation’ or a report upon ‘fresh investigation’, shall have  

to be construed and read conjointly.  Where there is a specific  

order made by the court for reasons like the investigation being  

entirely  unfair,  tainted,  undesirable  or  being  based  upon  no  

truth,  the  court  would  have  to  specifically  direct  that  the  

investigation or proceedings so conducted shall stand cancelled  

and will  not form part of the record for consideration by the  

Court of competent jurisdiction.   

37. The scheme of Section 173 of the Code even deals with  

the scheme of exclusion of documents or statements submitted  

to the Court.   In this regard, one can make a reference to the  

provisions of Section 173(6) of the Code, which empowers the  

investigating agency to make a request to the Court to exclude  

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that part  of the statement or record and from providing the  

copies thereof to the accused, which are not essential in the  

interest of justice, and where it will be inexpedient in the public  

interest to furnish such statement.  The framers of the law, in  

their  wisdom,  have  specifically  provided  a  limited  mode  of  

exclusion, the criteria being no injustice to be caused to the  

accused and greater public interest being served.   This itself is  

indicative of the need for a fair and proper investigation by the  

concerned agency.  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 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  46

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investigation,  which  in  its  opinion  is  unfair,  tainted  and  in  

violation of the settled principles of investigative canons.

38. 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.   

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39. Such a view can be supported from two different points of  

view.  Firstly,  through  the  doctrine  of  precedence,  as  afore-

noticed, 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 justice and also  

provide adequate safeguard against a suspect/accused.

40. 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  

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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,  49

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re-investigation  or  even investigation  de novo  depending  on  

the facts of a given case. It  will  be the 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  

the case of  Sivanmoorthy and Others v. State represented by   

Inspector of Police  [(2010) 12 SCC 29].  In light of the above  

discussion, we answer the questions formulated at the opening  

of this judgment as follows:

Answer to Question No. 1

The  court  of  competent  jurisdiction  is  duty  bound  to  

consider all  reports, entire records and documents submitted  

therewith by the Investigating Agency as its report in terms of  

Section 173(2) of the Code.   This Rule is subject to only the  

following exceptions;

(a) Where a specific order has been passed by the learned  

Magistrate  at  the  request  of  the  prosecution  limited  to  

exclude any document or statement or any part thereof;

(b) Where  an  order  is  passed  by  the  higher  courts  in  

exercise of its extra-ordinary or inherent jurisdiction directing  

that  any of  the reports  i.e.  primary report,  supplementary  

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report or the report submitted on ‘fresh investigation’ or ‘re-

investigation’  or any part of it  be excluded, struck off  the  

court record and be treated as non est.

Answer to Question No. 2

No  investigating  agency  is  empowered  to  conduct  a  

‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the offence  

for which it has already filed a report in terms of Section 173(2)  

of the Code.   It is only upon the orders of the higher courts  

empowered  to  pass  such  orders  that  aforesaid  investigation  

can be conducted, in which event the higher courts will have to  

pass a specific order with regard to the fate of the investigation  

already conducted and the report so filed before the court of  

the learned magistrate.   

41. Having answered the questions of law as afore-stated, we  

revert to the facts of the case in hand.   As already noticed, the  

petitioner had filed the writ petition before the High Court that  

the investigation of FIR No. 10/2006 dated 9th February, 2006  

be transferred to CBI or any other independent investigating  

agency  providing  protection  to  the  petitioners,  directing  

initiation of appropriate action against the erring police officers  

who have registered the case against the petitioner and such  51

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other orders that the court may deem fit and proper in the facts  

and circumstances of the case.   This petition was filed under  

Article  226 of  the  Constitution read with  Section 482 of  the  

Code on 25th February, 2006.  The High Court granted no order  

either staying the further investigation by the agency, or the  

proceedings before the court of competent jurisdiction.   The  

Delhi Police itself filed a status report before the High Court on  

4th April,  2006  and  the  Special  Cell  of  Delhi  Police  filed  the  

charge sheet before the trial  court on 6th May, 2006.   After  

perusing  the  status  report  submitted  to  the  High  Court,  the  

High Court vide its Order dated 9th May, 2006 had noticed that  

the circumstances of the case had cast a suspicion on the case  

of  the  prosecution,  in  regard  to  the  manner  in  which  the  

accused  were  apprehended  and  recoveries  alleged  to  have  

been  made  from  them  of  articles  like  explosives  and  

detonators.   After noticing this, the Court directed that without  

commenting on the merits of the matter, it was of the opinion  

that  this  was  a  case  where  inquiry  by  some  independent  

agency  is  called  for,  and  directed  the  CBI  to  undertake  an  

inquiry into the matter and submit its report within four weeks.  

Obviously, it would have been brought to the notice of the High  

Court that the Delhi Police had filed a report before the trial  52

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court.  The status report had also been placed before the High  

Court  itself.     Still,  the  High  Court,  in  its  wisdom,  did  not  

consider  it  appropriate  to  pass  any  directions  staying  

proceedings  before  the  court  of  competent  jurisdiction.  

Despite pendency before the High Court for a substantial period  

of  time,  the  CBI  took  considerable  time  to  conduct  its  

preliminary inquiry and it is only on 4th July, 2007 that the CBI  

submitted its preliminary inquiry report before the court.   After  

perusing the report, the Court directed, as per the request of  

the CBI, to conduct in depth investigation of the case.

42. In  the  order  dated  24th October,  2007,  the  High  Court  

noticed  that  despite  the  fact  that  the  CBI  had  taken  

considerable time for completing its investigation,  it  had still  

not done so.   Noticing that the investigation was handed over  

to the CBI on 9th May, 2006 and despite extensions it had not  

submitted its report   the Court granted to the CBI four weeks’  

time from the date of the order to submit its findings in respect  

of the allegations made by the accused in the complaint and  

directed the matter to come up on 28th November, 2007.   The  

significant aspect which needs to be noticed is that the Court  

specifically noticed in this order that ‘the trial of the case is not  

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proceeding,  further  hoping  that  CBI  shall  file  supplementary  

report or supplementary material before the trial court and the  

accused  gets  an  opportunity  of  case  being  formally  

investigated.   However, the pace at which the investigation is  

done by the CBI shows that CBI may take years together for  

getting the records….’

43. This order clearly shows that the High Court contemplated  

submission of a supplementary report, which means report in  

continuation  to  the  report  already  submitted  under  Section  

173(2) of the Code by the Delhi Police.   

44. On 28th November, 2007, the case came up for hearing  

before the High Court.  Then CBI filed its closure report making  

a  request  that  both  the  accused be discharged.    The case  

came up for hearing before the High Court on 4th August, 2008,  

when the Court noticed that CBI had filed a report in the sealed  

cover and the Court had perused it.  Herein, the Court noticed  

the entire facts in great detail.   The High Court disposed of the  

writ petition and while noticing the earlier order dated 4th July,  

2007 wherein the accused persons had assured the court that  

they would not move bail application before the trial court, till  

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CBI investigation was completed, permitted the applicants to  

move bail applications as well.

45. The application for discharge filed by the accused persons  

on  the  strength  of  the  closure  report  filed  by  the  CBI  was  

rejected by the trial court vide its order dated 13th February,  

2009 on the ground that it had to examine the entire record  

including  the  report  filed  by  the  Delhi  Police  under  Section  

173(2)  of  the  Code.    The  High  Court,  however,  took  the  

contrary view and stated that  it  was only the closure report  

filed by the CBI which could be taken into consideration, and  

then the matter shall proceed in accordance with law.   In this  

manner, the writ petition was finally disposed of, directing the  

parties  to  appear  before  the  trial  court  on  14th September,  

2009.   The High Court had relied upon the judgment of this  

Court in the case of  K. Chandrasekhar v. State of Kerala and  

Others (supra) to say that once investigation stands transferred  

to CBI,  it  is that agency only which has to proceed with the  

investigation and not the Special Cell of the Delhi Police.

46. We are unable to accord approval to the view taken by the  

High  Court.  The  judgment  in  the  case  of  K.  Chandrasekhar  

(supra), firstly does not state any proposition of law.   It is a  

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judgment on peculiar facts of that case.  Secondly, it has no  

application to the present case.  In that case, the investigation  

by the police was pending when the investigation was ordered  

to be transferred to the CBI.   There the Court had directed that  

further investigation had to be continued by the CBI and not  

the Special Cell of the Delhi Police.

47. In the present case, report in terms of Section 173(2) had  

already been filed by the Special Cell of the Delhi Police even  

before the  investigation  was handed over  to  CBI  to  conduct  

preliminary inquiry.  Furthermore, the final investigation on the  

basis of the preliminary report submitted by the CBI had also  

not been handed over to CBI at that stage.  

48. Once a Report under Section 173(2) of the Code has been  

filed, it can only be cancelled, proceeded further or case closed  

by  the  court  of  competent  jurisdiction  and  that  too  in  

accordance  with  law.    Neither  the  Police  nor  a  specialised  

investigating agency has any right to cancel the said Report.  

Furthermore, in the present case, the High Court had passed no  

order  or  direction  staying  further  investigation  by  the  Delhi  

Police  or  proceedings  before  the  court  of  competent  

jurisdiction.

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49. On  the  contrary,  the  court  had  noticed  explicitly  in  its  

order  that  it  was  a  case  of  supplementary  or  further  

investigation and filing of a ‘supplementary report’.   

50. Once the Court has taken this view, there is no question of  

treating  the  first  report  as  being  withdrawn,  cancelled  or  

capable of being excluded from the records by the implication.  

In fact, except by a specific order of a higher court competent  

to  make said orders,  the previous as  well  as supplementary  

report  shall  form part  of  the  record  which  the  trial  court  is  

expected to consider for arriving at any appropriate conclusion,  

in accordance with law.   It is also interesting to note that the  

CBI itself understood the order of the court and conducted only  

‘further investigation’ as is evident from the status report filed  

by the CBI before the High Court on 28th November, 2007.

51. In our considered view, the trial court has to consider the  

entire record, including both the Delhi Police Report filed under  

Section 173(2) of the Code as well as the Closure Report filed  

by the CBI and the documents filed along with these reports.

52. It appears, the trial court may have three options, firstly, it  

may  accept  the  application  of  accused  for  discharge.  

Secondly,  it  may direct that the trial  may proceed further in  57

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accordance  with  law  and  thirdly,  if  it  is  dissatisfied  on  any  

important aspect of investigation already conducted and in its  

considered  opinion,  it  is  just,  proper  and  necessary  in  the  

interest of justice to direct ‘further investigation’, it may do so.

53. Ergo, for the reasons recorded above, we modify the order  

of the High Court impugned in the present appeal to the above  

extent  and  direct  the  trial  court  to  proceed  with  the  case  

further in accordance with law.  

…….…………......................J.                                                         (A.K. Patnaik)

...….…………......................J.                                                     (Swatanter Kumar)

New Delhi; December 13, 2012.

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