HARIBHAI MALAVIYA AND ORS. versus THE STATE OF GUJARAT AND ANR.

[2019] 15 S.C.R.

VINUBHAI HARIBHAI MALAVIYA AND ORS.

THE STATE OF GUJARAT AND ANR.

(Criminal Appeal Nos.478-479 of 2017)

BOCTOBER 16, 2019

[R. F. NARIMAN, SURYA KANT ANDV. RAMASUBRAMANIAN, JJ.]

Code of Criminal Procedure, 1973– ss. 156(1)(3) and 173(8)– The High Court held that the Magistrate does not possess anyCpower to order further investigation after charge-sheet is filedand cognizance is taken – Propriety of – Held: Not proper – TheMagistrate’s power u/s. 156(3) of the CrP.C. is very wide, for it isthis judicial authority that must be satisfied that properinvestigation by the Police takes place – To ensure that “properDinvestigation” takes place in the sense of fair and justinvestigation by the police which such Magistrate is to supervise -Art.21 of the Constitution mandates that all powers necessary, whichmay also be incidental or implied, are available to the Magistrateto ensure proper investigation which, without doubt, wouldinclude the ordering of further investigation after report isEreceived by him u/s.173(2); and which power would continue toensure in such Magistrate at all stages of the Criminal Proceedingsuntil trial itself commences – Further, the “investigation” referredto in s.156(1) of the CrPCwould, as per definition of“investigation” u/s.2(h), include all proceedings for collection ofFevidence conducted by police officer; which would undoubtedlyinclude proceedings by way of further investigation u/s.173(8) ofthe Cr.P.C – Constitution of India – Art. 21.

Code of Criminal Procedure, 1973 – ss.156(1)(3),173(8) –Penal Code, 1860 – ss. 420, 465, 467, 468, 471, 384 & 571 – AfterGa Police Report – Power of Magistrate to further investigate – AFIR was lodged by power-of-attorney holder of ‘R’ and ‘S’ whowere allegedly residing at ‘UK or USA’ – The FIR narrated that ‘R’and ‘S’ were independent owners of agricultural land – It wasalleged that heirs of one ‘B’, from whom ‘R’ and ‘S’ had obtainedthe said agricultural land, along with ‘V’ had hatched conspiracyHand were attempting to extort money from the power-of-attorneyholder of ‘R’ and ‘S’ and had tried to grab the said land –Investigation was conducted and charge-sheet was filed –Magistrate took cognizance and issued summons to the accusedregarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 ofIPC – Accused persons filed applications for further investigationu/s.173(8) of the Cr.P.C and discharge – Magistrate dismissed theapplications – Application by accused to register an FIR or for theMagistrate to order investigation u/s. 156(3) was also rejected –Separate Criminal Revisions for dismissal by Magistrate of furtherinvestigation and order rejecting FIR were filed – SecondAdditional Session Judge went through the application u/s.173(8)and held that case was made out for further investigation – TheHigh Court held that the Magistrate does not possess any power toorder further investigation after charge-sheet is filed andcognizance is taken – On appeal, held: There is no warrant forsuch narrow and restrictive view of the powers of the Magistrate,particularly when such powers are traceable to s.156(3) r/w.s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be availableat all stages of the progress of criminal cases before the trialactually commences – Whether further investigation should or shouldnot be ordered is within the discretion of the Magistrate who willexercise such discretion on the facts of each case and inaccordance with law – In the instant case, the facts alleged in theapplication for further investigation were facts which pertained torevenue entries made in favour of ‘R’ and ‘S’ and how their claimwas false and bogus – Therefore, the facts alleged in theapplications for further investigation were in the nature ofcross-FIR which was not registered – Further, the Commissioner ofthe Revenue doubted the order passed by the Revenue Authorityand he also stated that one application was filed by widow of ‘B’ inthe 2000, who had passed away in the year 1999 which showedthat her signature were prima facie forged – Therefore, it does notcall for further investigation into the facts alleged in the FIRalready filed – However, considering the letter of the Commissionerand other facts, police directed to register an FIR qua facts – Thus,the judgment of the High Court insofar it stated thatpost-cognizance the Magistrate is denuded of power to orderfurther investigation set aside.

EFG

ACode of Criminal Procedure, 1973 – Constitution of India –Art. 21 – Fair trial and fair investigation – Held: fair trial mustkick-off only after an investigation is itself fair and just – Theultimate aim of all investigation and inquiry whether by the policeor by the Magistrate, is to ensure that those who have not are notarraigned to stand trial – That this is the minimal proceduralBrequirement that is the fundamental requirement of Art. 21 ofConstitution cannot be doubted – It is the hovering omnipresenceof Art. 21 over the Cr.P.C that must needs inform the interpretationof all the provisions of the Cr.P.C, so as to ensure that Art. 21 isfollowed both in letter and in spirit.

Disposing of the appeals, the Court

HELD: 1. With the introduction of Section 173(8) in theCode of Criminal Procedure, 1973 the police department has beenarmed with the power to further investigate an offence even aftera police report has been forwarded to the Magistrate. QuiteDobviously, this power continues until the trial can be said tocommence in criminal case. The vexed question was as towhether the Magistrate can order further investigation after apolice report has been forwarded to him under Section 173.[Para 19] [956-E]

2. The Magistrate’s power under Section 156(3) of the CrPCis very wide, for it is this judicial authority that must be satisfiedthat proper investigation by the police takes place. To ensurethat “proper investigation” takes place in the sense of fairand just investigation by the police - which such Magistrate is toFsupervise - Article 21 of the Constitution of India mandates thatall powers necessary, which may also be incidental or implied,are available to the Magistrate to ensure proper investigationwhich, without doubt, would include the ordering of furtherinvestigation after report is received by him under Section173(2); and which power would continue to enure in suchGMagistrate at all stages of the criminal proceedings until the trialitself commences. Indeed, even textually, the “investigation”referred to in Section 156(1) of the CrPC would, as per thedefinition of “investigation” under Section 2(h), include allproceedings for collection of evidence conducted by police

officer; which would undoubtedly include proceedings by way offurther investigation under Section 173(8) of the CrPC.[Para 23] [960-D-F]

3. In Union Public Service Commission v. S. PapaiahthisCourt dealt with case in which the Central Bureau ofInvestigation had submitted closure report. It then quoted froma Three Judge Bench judgment in Bhagwant Singh v.Commissioner of Police and Anr. in which this Court stated thata Magistrate, in dealing with report from the police under Section173, can adopt one of three courses - (1) he may accept the reportand drop the proceedings; or (2) he may disagree with the report,take cognizance of the offence and issue process; or (3) he maydirect further investigation to be made by the police under Section156(3). The Court then went on to hold that where objectionshave been furnished by the complainant, i.e. the Union PublicService Commission, against the closure report of the police,the Magistrate could, in exercise of powers under Section 173(8)of the CrPC, direct the CBI to further investigate the case andcollect further evidence keeping in view the objections raised bythe complainant. [Para 28] [965-C-E]

4. There is no good reason given by the Court in thedecisions in Amrutbhai Shambubhai Patel v. Sumanbhai KantibaiPatel, Athul Rao v. State of Karnataka and Anr. and Bikash RanjanRout v. State through the Secretary (Home), Government of NCTof Delhi as to why Magistrate’s powers to order furtherinvestigation would suddenly cease upon process being issued,and an accused appearing before the Magistrate, whileconcomitantly, the power of the police to further investigate theoffence continues right till the stage the trial commences. Such aview would not accord with the earlier judgments of this Court,in particular, Sakiri, Samaj Parivartan Samudaya, Vinay Tyagi andHardeep Singh; Hardeep Singh having clearly held that criminaltrial does not begin after cognizance is taken, but only aftercharges are framed. What is not given any importance at all inthe recent judgments of this Court is Article 21 of the Constitutionand the fact that the Article demands no less than fair and justinvestigation. To say that fair and just investigation would lead

Ato the conclusion that the police retain the power, subject, ofcourse, to the Magistrate’s nod under Section 173(8) to furtherinvestigate an offence till charges are framed, but that thesupervisory jurisdiction of the Magistrate suddenly ceasesmid-way through the pre-trial proceedings, would amount to atravesty of justice, as certain cases may cry out for furtherBinvestigation so that an innocent person is not wrongly arraignedas an accused or that prima facie guilty person is not so left out.There is no warrant for such narrow and restrictive view of thepowers of the Magistrate, particularly when such powers aretraceable to Section 156(3) read with Section 156(1), Section 2(h),Cand Section 173(8) of the CrPC, as has been noticed hereinabove,and would be available at all stages of the progress of criminalcase before the trial actually commences. It would also be in theinterest of justice that this power be exercised suo motu by theMagistrate himself, depending on the facts of each case. Whetherfurther investigation should or should not be ordered is withinDthe discretion of the learned Magistrate who will exercise suchdiscretion on the facts of each case and in accordance with law. If,for example, fresh facts come to light which would lead toinculpating or exculpating certain persons, arriving at the truthand doing substantial justice in criminal case are more importantEthan avoiding further delay being caused in concluding the criminalproceeding, as was held in Hasanbhai Valibhai Qureshi. Therefore,to the extent that the judgments in Amrutbhai Shambubhai Patel,Athul Rao and Bikash Ranjan Rout have held to the contrary,they stand overruled. Needless to add, Randhir Singh Rana v.State (Delhi Administration) and Reeta Nag v. State of WestFBengal and Ors. also stand overruled. [Para 38] [985-G-H; 986-A-G]

5. When this Court comes to the facts of this case, it isclear that the FIR dated 22.12.2009 is concerned with two criminalacts, namely, the preparing of fake and bogus ‘Satakhat’ andGPower-of-Attorney in respect of the agricultural land in question,and the demanding of an amount of Rs. 2.5 crores as an attemptto extort money by the accused persons. The facts that are allegedin the application for further investigation are facts which pertainto revenue entries having been made in favour of ‘R’ and ‘S’ andHhow their claim over the same land is false and bogus.

Respondents are therefore, right in submitting that the factsalleged in the applications for further investigation are really inthe nature of cross-FIR which has never been registered. Infact, the communication of the Commissioner of Revenue, dated15.03.2011 to the Collector, - so strongly relied upon by appellants- bears this out. In this communication, the Commissioner doubtsthat particular order dated 14.04.1976 passed by revenueauthority ever existed, and that by making an application in thename of the long since deceased ‘B’ in 2010, for getting copy ofForm No.3 would, prima facie, amount to criminal offence.Further, the Commissioner goes on to state that B’s widow, whohad passed away in December 1999, could not possibly have madean application in the year 2000; which shows that her signature isalso prima facie forged. Further, the said ‘R’ and ‘S’ Patel are atpresent 48 and 53 years old, and if they could be said to be inpossession of the said agricultural land since 1934, they could besaid to be in possession at time when they were not yet born.Further, since these two gentlemen were abroad from the verybeginning, it is stated that they could not possibly be farmerscultivating agricultural land. [Para 41] [987-F-H; 988-A-D]6. Given the allegations in the communication of 15.03.2011,this Court is of the view that this is not case which calls for anyfurther investigation into the facts alleged in the FIR lodged on22.12.2009. Yet, having regard to what is stated by theCommissioner in the said letter, this Court is of the view that thepolice be directed to register an FIR qua these facts, which needsto be investigated by senior police officer nominated by theconcerned Commissioner of Police. [Para 42] [988-G-H; 989-A]

Pooja Pal v. UOI(2016) 3 SCC 135 : [2016] 11 SCR560;State of Bihar v. J.A.C. Saldhana and Ors.(1980)1 SCC 554 : [1980] 2 SCR 16 ;Sakiri Vasu v. State ofU.P. and Ors. (2008) 2 SCC 409 : [2007] 12 SCR1100 ;Ram Lal Narang v. State (Delhi Administration)(1979) 2 SCC 322 ; H.N. Rishbud v. State of DelhiAIR 1955 SC 196 : [1955] SCR 1150 ;Union PublicService Commission v. S. Papaiah(1997) 7 SCC 614 :[1997] 4 Suppl. SCR 56;Bhagwant Singh v.Commissioner of Police and Anr. (1985) 2 SCC 357:

[1985] 3 SCR 942; Hasanbhai Valibhai Qureshi v. Stateof Gujarat and Ors.(2004) 5 SCC 347 : [2004] 3 SCR762 ; Hemant Dhasmana v. CBI and Anr.(2007) 1 SCC536 : [2001] 1 Suppl. SCR 646 ; Gulzar Ahmed Azmi v.Union of India and Ors.(2012) 10 SCC 731 : [2012]9 SCR 287 ; Vinay Tyagi v. Irshad Ali and Ors.(2013)5 SCC 762 : [2012] 13 SCR 1005 – relied on.

Amrutbhai Shambubhai Patel v. Sumanbhai KantibaiPatel (2017) 4 SCC 177 : [2017] 4 SCR 105 ;AthulRao v. State of Karnataka and Anr. (2018) 14 SCC298 ;Bikash Ranjan Rout v. State through the Secretary(Home), Government of NCT of Delhi(2019) 5 SCC542 ;Randhir Singh Rana v. State (Delhi Administration)(1997) 1 SCC 361 : [1996] 10 Suppl. SCR 880 ;Reeta Nag v. State of West Bengal and Ors.(2009) 9SCC 129 : [2009] 13 SCR 276 – overruled.

Devarapalli Lakshminarayana Reddy & Ors. v.V. Narayana Reddy & Ors. (1976) 3 SCC 252 :[1976] Suppl. SCR 524 – held not correct law.

Union of India and Anr. v. W.N Chadha(1993) Suppl.4 SCC 260 : [1992] 3 Suppl. SCR 594;Smt. NagawwaEv. Veeranna Shivalongappa Konjalgi & Ors.(1976) 3SCC 736 : [1976] Suppl. SCR 123;Prabha Mathurand Anr. v. Pramod Aggarwal & Ors.,(2008) 9 SCC469 : [2008] 13 SCR 1086 ; Narender G. Goel v. Stateof Maharashtra (2009) 6 SCC 65 : [2009] 8 SCRF1004 ;Dinubhai Bhogabhai Solanki v. State of Gujarat& Ors.(2014) 4 SCC 626 : [2014] 3 SCR 932– distinguished.

Babubhai v. State of Gujarat & Ors.(2010) 12 SCC254 : [2010] 10 SCR 651 ;Romila Thapar v. Union of–India,(2018) 10 SCC 753 : [2018] 11 SCR 951 held inapplicable.

Mrs. Maneka Gandhi v. Union of India & Anr.(1978)1 SCC 248 : [1978] 2 SCR 621;Commissioner ofPolice, Delhi v. Registrar, Delhi High Court, New Delhi

VINUBHAI HARIBHAI MALAVIYA AND ORS. v.STATE OF GUJARAT AND ANR.

(1996) 6 SCC 323 : [1996] 7 Suppl. SCR 432;Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC91 : [1979] 2 SCR 717;Tula Ram & Ors. v. KishoreSingh(1977) 4 SCC 459 : [1978] 1 SCR 615 ; HardeepSingh v. State of Punjab and Ors. (2014) 3 SCC 92 :[2014]2 SCR 1 ; Common Cause v. Union of India(1996) 6 SCC 775 : [1996]9 Suppl. SCR 296 ;KingEmperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 –referred to.

Case Law Reference

[1978] 2 SCR 621[1996] 7 Suppl. SCR 432[2016] 11 SCR 560[1979] 2 SCR 717[1980] 2 SCR 16[2007] 12 SCR 1100[1976] Suppl. SCR 524[1978] 1 SCR 615(1979) 2 SCC 322[1955] SCR 1150[1997] 4 Suppl. SCR 56[1985] 3 SCR 942[2004] 3 SCR 762[2001] 1 Suppl. SCR 646[2012] 9 SCR 287[2012] 13 SCR 1005[2014] 2 SCR 1[1996] 9 Suppl. SCR 296[2017] 4 SCR 105

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 478-479 of 2017

From the Judgment and Order dated 05.08.2013 of the High Courtof Gujarat at Ahmedabad in Criminal Revision Application No. 44 of2012 with Criminal Misc. Application No. 1746 of 2012E

Dushyant Dave, Sr. Adv., Nachiketa Joshi, Aniket Seth, NirajMalaviya, Mohd. Asad Khan, Ms. Sucheta Joshi, Ms. Himadri Maksar,Advs. for the Appellants.

Basant R., Vinay Navare, Sr. Advs., Ms. Hemantika Wahi,FAniruddha P. Mayee, Sunil Kumar Verma, Manu Krishnan G., ShariqAhmed, Ms. Gwen Karthika, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

G1. This case arises out of First Information Report (hereinafterreferred to as “FIR”) that was lodged on 22.12.2009. The FIR is by oneNitinbhai Mangubhai Patel, Power-of-Attorney holder of RamanbhaiBhagubhai Patel and Shankarbhai Bhagubhai Patel, who are allegedlyresiding at “UK or USA”. The gravamen of the complaint made in theFIR is that one Vinubhai Haribhai Malaviya is blackmailing these two

gentlemen with respect to agricultural land which is just outside the cityof Surat, Gujarat and which admeasures about 8296 square meters. TheFIR alleges that Ramanbhai Patel and Shankarbhai Patel are absoluteand independent owners of this land, having obtained it from oneBhikhabhai Khushalbhai and his wife Bhikiben Bhikhabhai in the year1975. The FIR then narrates that because of recent price-hike oflands in the city of Surat, the heirs of Bhikhabhai and Bhikiben togetherwith Vinubhai Haribhai Malaviya and Manubhai Kurjibhai Malaviya havehatched conspiracy in collusion with each other, and published publicnotice under the caption “Beware of Land-grabbers” in local newspaperon 07.06.2008. Sometime thereafter, Vinubhai Haribhai Malaviya thencontacted an intermediary, who in turn contacted Nitinbhai Patel (wholodged the FIR), whereby, according to Nitinbhai Patel, Vinubhai Malaviyademanded an amount of Rs. 2.5 crores in order to “settle” disputes inrespect of this land. It is alleged in the said FIR that apart from attemptingto extort money from the said Nitinbhai Patel, the heirs of Bhikhabhaiand Bhikiben together with Vinubhai Haribhai Malaviya and ManubhaiKurjibhai Malaviya have used fake and bogus ‘Satakhat’ and Power-of-Attorney in respect of the said land, and had tried to grab this landfrom its lawful owners Ramanbhai and Shankarbhai Patel.

2. The background to the FIR is the fact that one Khushalbhaiwas the original tenant of agricultural land, bearing Revenue SurveyNo.342, admeasuring 2 Acres, 2 Gunthas, situated at Puna (Mauje),Choriyasi (Tal), District Surat. Khushalbhai died, after which his sonBhikhabhai became tenant in his place. Bhikhabhai in turn died on23.12.1984 and his wife Bhikiben died on 18.12.1999. public noticedated 07.06.2008 was issued in ‘Gujarat Mitra’ and ‘Gujarat DarpanDainik’ by the heirs of Bhikhabhai, stating that Ramanbhai andShankarbhai Patel are land-grabbers, and are attempting to create third-party rights in the said property. This led to the legal heirs of Bhikhabhai,through their Power-of-Attorney holder, applying on 12.06.2008 to theCollector, Nanpura (Surat), to cancel revenue entries that were madeway back in 1976.

3. Pursuant to the filing of the FIR, investigation was conductedby the police, which resulted in charge-sheet dated 22.04.2010 beingsubmitted to the Judicial Magistrate (First Class), Surat. On 23.04.2010,the said Magistrate took cognizance and issued summons to the accusedregarding offences under Sections 420, 465, 467, 468, 471, 384 and 511

Aof the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).Pursuant to the summons, the accused appeared before the saidMagistrate. On 10.06.2011, an application (Exhibit 28) was filed byAccused No.1 Vinubhai Haribhai Malaviya for further investigation underSection 173(8) of the Code of Criminal Procedure, 1973 (hereinafterreferred to as “CrPC”) and another application (Exhibit 29) for discharge.BLikewise, on 14.06.2011, applications for further investigation (Exhibit31) and for discharge (Exhibit 32) were filed by accused 2 to 6. By anorder dated 24.08.2011, the Magistrate dismissed the applications thatwere filed for further investigation (i.e. Exhibits 28 and 31), stating thatthe facts sought to be placed by the applicants were in the nature ofCevidence of the defence that would be taken in the trial. Likewise, on21.10.2011 the learned Magistrate also rejected the discharge applicationsthat were made (i.e. Exhibits 29 and 32).

4. Meanwhile, on 26.07.2011, Criminal Miscellaneous ApplicationNo.816 of 2011 was moved by Vinubhai Haribhai Malaviya and theDother accused to register an FIR, or for the Magistrate to orderinvestigation under Section 156(3) of the CrPC into the facts stated intheir applications. This was rejected by the learned Magistrate by anorder dated 09.09.2011.

5. Separate criminal revision applications were filed before theESessions Court, Surat, being Revision Application Nos. 376 and 346 of2011, insofar as the dismissal by the learned Magistrate of furtherinvestigation and the order rejecting registration of the FIR wereconcerned. Both these revision applications were decided by the learnedSecond Additional Sessions Judge, Surat by common order dated10.01.2012. By this order, the learned Second Additional Sessions JudgeFwent into details of facts that were alleged in the application under Section173(8) and found that case had been made out for further investigation.Accordingly, he held:

“As per the above referred discussion, it can be seen that noeffective investigation or discussions have been carried out in allGthese respect during in the course of the investigation of saidoffence and further, it is very noteworthy here that matters forwhich the prayers are made in these Revision Applications, allthese matters are pertaining to the complaint of this case. Hence,it is very much necessary that for the purpose of carrying out

detailed and full investigation of this complaint, all these mattersshould also be investigated. But for the said purpose, it is notnecessary that separate complaint be registered and thereafterits investigation be carried out. But by covering this investigationalso in the complaint of the present matter, if it is found out in suchinvestigation that any offence was committed, then appropriatecriminal proceedings can be initiated against such person.”

6. Pursuant to this order, the investigation was handed over toInvestigating Officer R.A. Munshi (hereinafter referred to as “IOMunshi”) on 06.03.2012, who then submitted two further investigationreports – one within three days, dated 09.03.2012 and second onedated 10.04.2012, in which the IO Munshi went into the facts mentionedin the 173(8) applications that were filed. On 13.06.2012, the originalaccused withdrew Special Criminal Application No.727 of 2012 filed inthe High Court, which was filed challenging the order by which thelearned Revisional Court had confirmed the order rejecting the dischargeapplications, with liberty to move an appropriate application for dischargebefore the Magistrate. The High Court heard Criminal RevisionApplication No.44 of 2012 together with Criminal MiscellaneousApplication No.1746 of 2012, and arrived at the conclusion that, as amatter of law, the Magistrate does not possess any power to order furtherinvestigation after charge-sheet is filed and cognizance is taken. TheHigh Court further castigated IO Munshi, holding that the furnishing ofinterim investigation reports, not through special public prosecutor andnot to the Magistrate, but to the Additional Sessions Judge himself smacksof mala fides, as if IO Munshi wanted to oblige and/or favour the accusedpersons. The High Court further found that the two interim investigationreports virtually acquitted the accused persons, and therefore, the HighCourt set aside the judgment of the learned Second Additional SessionsJudge dated 10.01.2012, and consequently, the two further interiminvestigation reports. So far as Criminal Revision Application No.346 of2011 (which was disposed of by the learned Second Additional SessionsJudge without considering merits, in light of its order in Criminal RevisionApplication No.376 of 2011) was concerned, the High court remandedthe same for fresh consideration to the learned Second Additional SessionsJudge, who would then decide as to whether an FIR should be registered,insofar as the allegations contained in the applications for furtherinvestigation are concerned. Pursuant to the aforesaid remand, by

Ajudgment dated 23.04.2016, the learned Additional Sessions Judge hasrejected the application under Section 156(3) of the CrPC on merits,against which Special Criminal Application No.3085 of 2016 has beenfiled and is awaiting disposal. Several other proceedings that are pendingbetween the parties have been pointed out to us, with which we have noimmediate concern in this case.B

7. Shri Dushyant Dave, learned Senior Advocate, appearing onbehalf of the Appellants, has forcefully argued, placing reliance on anumber of provisions of the CrPC, and number of our judgments, thatthe High Court was wholly incorrect as matter of law, in holding thatpost-cognizance Magistrate would have no power to order furtherCinvestigation into an offence. He read out in great detail the FIR dated22.12.2009, the contents of the charge-sheet dated 22.04.2010, and reliedheavily on communication made by the Commissioner of Revenue,Gujarat to the Collector, Surat dated 15.03.2011. According to him, thecontents of this communication would show that there is no doubt thatDfurther investigation ought to have been carried out on the facts of thiscase, in that, huge fraud had been perpetrated on his clients by land-grabbing mafia, and it would be travesty of justice if the learned SecondAdditional Sessions Judge’s judgment dated 10.01.2012 was not upheld.According to him, the High Court judgment was greatly influenced bythe fact that: (1) IO Munshi submitted further interim investigation reportsEvery quickly, and (2) had submitted these reports to the AdditionalSessions Judge instead of the Magistrate; resulting in the throwing outof the baby with the bathwater. He therefore urged us to uphold theorder of the Second Additional Sessions Judge who ordered furtherinvestigation, as that would lead to the truth of the matter in this case.F

8. On the other hand, Shri Basant and Shri Navare, learned SeniorAdvocates appearing on behalf of the respondents, supported thejudgment of the trial court and the High Court, stating that there is nodoubt that without filing cross-FIR, what was sought to be adduced isevidence which may perhaps amount to defence in the trial to beGconducted, which would be impermissible. They emphasised that at nostage had an application been moved to quash the proceedings, andobviously, belated application made more than year after cognizancehad been taken, to obtain by way of further investigation facts whichwere wholly divorced from the FIR would be wholly outside the

Magistrate’s power under Section 173(8) of the CrPC. They relied uponseveral judgments, and particularly recent judgments of this Court, inorder to show that post-cognizance and particularly after summons isissued to the accused, and the accused appears pursuant to such summons,the Magistrate has no suo motu power, nor can he be moved by theaccused, for further investigation at this stage of the proceedings.

9. The question of law that therefore arises in this case is whether,after charge-sheet is filed by the police, the Magistrate has the powerto order further investigation, and if so, up to what stage of criminalproceeding.

10. The CrPC is neatly divided into 37 Chapters. In this case weare concerned with Chapters XII to XVII. Chapter XII is titled“Information to the Police and their Powers to Investigate”. ChapterXIII has as its title “Jurisdiction of the Criminal Courts in Inquiries andTrials”. Chapter XIV speaks of “Conditions Requisite for Initiation ofProceedings”. Chapter XV then speaks of “Complaints to Magistrates”.Chapter XVI is headed “Commencement of Proceedings beforeMagistrates” and Chapter XVII is headed “The Charge”. ChaptersXVIII to XXI are “Trials before Court of Session”; “Trial of Warrant-Cases by Magistrates”; “Trials of Summons-Cases by Magistrates”;and Summary Trials”, respectively.

11. The relevant sections of the CrPC with which we areconcerned are as follows:

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

(1) Any officer in charge of police station may, without theorder of Magistrate, investigate any cognizable case whicha Court having jurisdiction over the local area within thelimits of such station would have power to inquire into or tryunder the provisions of Chapter XIII.

xxx xxx xxx

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

xxx xxx xxx

173. Report of police officer on completion ofinvestigation.-

Axxx xxx xxx

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

xxx xxx xxx

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

(a) upon receiving complaint of facts which constitute suchoffence;

(b) upon police report of such facts;

(c) upon information received from any person other than apolice officer, or upon his own knowledge, that such offencehas been committed.

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

xxx xxx xxx

200. Examination of complainant.- Magistrate takingcognizance of an offence on complaint shall examine upon oaththe complainant and the witnesses present, if any, and thesubstance of such examination shall be reduced to writing andshall be signed by the complainant and the witnesses, and also bythe Magistrate:

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

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

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

Provided further that if the Magistrate makes over the case toanother Magistrate under Section 192 after examining thecomplainant and the witnesses, the latter Magistrate need notre-examine them.

xxx xxx xxx

202. Postponement of issue of process.– (1) Any Magistrate,on receipt of complaint of an offence of which he is authorisedto take cognizance or which has been made over to him underSection 192, may, if he thinks fit, [and shall, in case where theaccused is residing at place beyond the area in which heexercises his jurisdiction] postpone the issue of process againstthe accused, and either inquire into the case himself or direct aninvestigation to be made by police officer or by such otherperson as he thinks fit, for the purpose of deciding whether or notthere is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made -

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

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

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

Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, heshall call upon the complainant to produce all his witnesses andexamine them on oath.

(3) If an investigation under sub-section (1) is made by personnot being police officer, he shall have for that investigation allthe powers conferred by this Code on an officer in charge of apolice station except the power to arrest without warrant.

xxx xxx xxxB

204. Issue of process.– (1) If in the opinion of Magistratetaking cognizance of an offence there is sufficient ground forproceeding, and the case appears to be –

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

(b) warrant-case, he may issue warrant, or, if he thinks fit, asummon, for causing the accused to be brought or to appearat certain time before such other Magistrate or (if he has nojurisdiction himself) some other Magistrate havingjurisdiction.

(2) No summons or warrant shall be issued against the accusedunder sub-section (1) until list of the prosecution witnesses hasbeen filed.

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

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

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

12. As the Chapter headings themselves show, there is neatdistinction between the powers of the police to investigate and jurisdictionGof the criminal courts in inquiries - followed by the procedure once thetrial itself begins. Section 156 deals with police officer’s power toinvestigate “cognizable cases”. “cognizable case” is defined underSection 2(c) of the CrPC as follows:

“cognizable offence” means an offence for which, and“cognizable case” means case in which, police officer may, in

accordance with the First Schedule or under any other law forthe time being in force, arrest without warrant.

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

“complaint” means any allegation made orally or in writing to aMagistrate, with view to his taking action under this Code, thatsome person, whether known or unknown, has committed anoffence, but does not include police report.

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

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

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

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

13. The statutory scheme contained in the CrPC therefore puts“inquiry” and “trial” in water-tight compartments, as the very definitionof “inquiry” demonstrates. “Investigation” is for the purpose of collectingevidence by police officer, and otherwise by any person authorised bya Magistrate in this behalf, and also pertains to stage before the trialcommences. Investigation which ultimately leads to police report underthe CrPC is an investigation conducted by the police, and may be orderedin an inquiry made by the Magistrate himself in “complaint” cases.14. The erstwhile Code of Criminal Procedure, 1898 did not containa provision by which the police were empowered to conduct furtherinvestigation in respect of an offence after police report under Section173 has been forwarded to the Magistrate. The Forty-First LawCommission Report (The Code of Criminal Procedure, 1898) forwardedto the Ministry of Law in September 1969 (hereinafter referred to as the“Law Commission Report”), therefore, recommended the addition ofsub-section (7) to Section 173 as it stood under the Code of CriminalProcedure, 1898 for the following reasons:

“14.23. report under Section 173 is normally the end of theinvestigation. Sometimes, however, the police officer aftersubmitting the report under Section 173 comes upon evidence

Abearing on the guilt or innocence of the accused. We should havethought that the police officer can collect that evidence and sendit to the magistrate concerned. It appears, however, that courtshave sometimes taken the narrow view that once final reportunder Section 173 has been sent, the police cannot touch the caseagain and cannot re-open the investigation. This view places aBhindrance in the way of the investigating agency, which can bevery unfair to the prosecution and, for that matter, even to theaccused. It should be made clear in Section 173 that thecompetent police officer can examine such evidence and send areport to the magistrate. Copies concerning the fresh materialCmust of course be furnished to the accused.”

(emphasis supplied)

15. What is interesting to note is that the narrow view of some ofthe High Courts had placed hindrance in the way of the investigatingagency, which can be very unfair to the prosecution as well as theDaccused.

16. Article 21 of the Constitution of India makes it clear that theprocedure in criminal trials must, after the seminal decision inMrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248,be “right, just and fair and not arbitrary, fanciful or oppressive” (seeEparagraph 7 therein). Equally, in Commissioner of Police, Delhi v.Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323, it wasstated that Article 21 enshrines and guarantees the precious right of lifeand personal liberty to person which can only be deprived on followingthe procedure established by law in fair trial which assures the safetyof the accused. The assurance of fair trial is stated to be the firstFimperative of the dispensation of justice (see paragraph 16 therein).

17. It is clear that fair trial must kick off only after an investigationis itself fair and just. The ultimate aim of all investigation and inquiry,whether by the police or by the Magistrate, is to ensure that those whoGhave actually committed crime are correctly booked, and those whohave not are not arraigned to stand trial. That this is the minimalprocedural requirement that is the fundamental requirement of Article21 of the Constitution of India cannot be doubted. It is the hoveringomnipresence of Article 21 over the CrPC that must needs inform theinterpretation of all the provisions of the CrPC, so as to ensure thatHArticle 21 is followed both in letter and in spirit.

18. Pooja Pal v. UOI (2016) 3 SCC 135 is an important judgmentwhich speaks of the fundamental right under Article 21 of the Constitutionin the context of the goal of “speedy trial” being tempered by “fair trial”.The Court put it thus:

“83. “speedy trial”, albeit the essence of the fundamental rightto life entrenched in Article 21 of the Constitution of India has acompanion in concept in “fair trial”, both being inalienableconstituents of an adjudicative process, to culminate in judicialdecision by court of law as the final arbiter. There is indeed aqualitative difference between right to speedy trial and fair trialso much so that denial of the former by itself would not beprejudicial to the accused, when pitted against the imperative offair trial. As fundamentally, justice not only has to be done butalso must appear to have been done, the residuary jurisdiction ofa court to direct further investigation or reinvestigation by anyimpartial agency, probe by the State Police notwithstanding, hasto be essentially invoked if the statutory agency already in chargeof the investigation appears to have been ineffective or ispresumed or inferred to be not being able to discharge itsfunctions fairly, meaningfully and fructuously. As the cause ofjustice has to reign supreme, court of law cannot reduce itself tobe resigned and helpless spectator and with the foreseenconsequences apparently unjust, in the face of faultyinvestigation, meekly complete the formalities to record aforegone conclusion. Justice then would become casualty. Thougha court’s satisfaction of want of proper, fair, impartial andeffective investigation eroding its credence and reliability is theprecondition for direction for further investigation orreinvestigation, submission of the charge-sheet ipso facto or thependency of the trial can by no means be prohibitiveimpediment. The contextual facts and the attendant circumstanceshave to be singularly evaluated and analysed to decide the need-fulness of further investigation or reinvestigation to unravel thetruth and mete out justice to the parties. The prime concern andthe endeavour of the court of law is to secure justice on the basisof true facts which ought to be unearthed through committed,resolved and competent investigating agency.

xxx xxx xxx

DEF

A86. trial encompasses investigation, inquiry, trial, appeal andretrial i.e. the entire range of scrutiny including crime detectionand adjudication on the basis thereof. Jurisprudentially, theguarantee under Article 21 embraces both the life and liberty ofthe accused as well as interest of the victim, his near and dearones as well as of the community at large and therefore, cannotBbe alienated from each other with levity. It is judicially acknowl-edged that fair trial includes fair investigation as envisaged byArticles 20 and 21 of the Constitution of India. Thoughwell-demarcated contours of crime detection and adjudication doexist, if the investigation is neither effective nor purposeful norCobjective nor fair, it would be the solemn obligation of the courts,if considered necessary, to order further investigation orreinvestigation as the case may be, to discover the truth so as toprevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform anduniversal invocation and the decision is to be conditioned to theDattendant facts and circumstances, motivated dominantly by thepredication of advancement of the cause of justice.”

19. With the introduction of Section 173(8) in the CrPC, the policedepartment has been armed with the power to further investigate anoffence even after police report has been forwarded to the Magistrate.EQuite obviously, this power continues until the trial can be said tocommence in criminal case. The vexed question before us is as towhether the Magistrate can order further investigation after policereport has been forwarded to him under Section 173.

20. It is interesting to note that even under the Code of CriminalFProcedure, 1898, in Kamlapati Trivedi v. State of West Bengal (1980)2 SCC 91, this Court held as follows:

“50. Sections 169 and 170 do not talk of the submission of anyreport by the police to the Magistrate, although they do state whatthe police has to do short of such submission when it finds at theconclusion of the investigation (1) that there is not sufficientevidence or reasonable ground of suspicion to justify the forward-ing of the accused to Magistrate (Section 169) or (2) that thereis sufficient evidence or reasonable ground as aforesaid (Section170). In either case the final report of the police is to be submitted

to the Magistrate under sub-section (1) of Section 173.Sub-section (3) of that section further provides that in the case ofa report by the police that the accused has been released on hisbond (which is the situation envisaged by Section 169), theMagistrate shall make “such order for the discharge of such bondor otherwise as he thinks fit”. Now what are the courses open tothe Magistrate in such situation? He may, as held by this Courtin Abhinandan Jha v. Dinesh Mishra [(1967) 3 SCR 668: AIR1968 SC 117: 1968 Cri LJ 97]:

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

(2) not agree with the police report and

(a) order further investigation, or

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

51. The appropriate course has to be decided upon after aconsideration of the report and the application of the mind of theMagistrate to the contents thereof. But then the problem to besolved is whether the order passed by the Magistrate pertains tohis executive or judicial capacity. In my opinion, the only orderwhich can be regarded as having been passed by the Magistratein his capacity as the supervisory authority in relation to theinvestigation carried out by the police is the one covered by thecourse 2(a). The order passed by the Magistrate in each of theother two courses, that is, (1) and (2)(b), follows conclusionof the investigation and is judicial order determining the rightsof the parties (the State on the one hand and the accused on theother) after the application of his mind. And if that be so, theorder passed by the Magistrate in the proceeding before us mustbe characterised as judicial act and therefore as one performedin his capacity as Court.”

21. What is recognised by this decision is that in the circumstancethat the Magistrate does not agree with the police report, he may orderfurther investigation - which is done in his capacity as supervisoryauthority in relation to investigation carried out by the police.

22. Indeed, Section 156(3) has remained unchanged even afterthe advent of the CrPC of 1973. Thus, in State of Bihar v. J.A.C.Saldhana and Ors. (1980) 1 SCC 554, this Court held:

“19. The power of the Magistrate under Section 156(3) to directfurther investigation is clearly an independent power and does notstand in conflict with the power of the State Government as speltout hereinbefore. The power conferred upon the Magistrateunder Section 156(3) can be exercised by the Magistrate evenafter submission of report by the investigating officer whichwould mean that it would be open to the Magistrate not to acceptthe conclusion of the investigating officer and direct furtherinvestigation. This provision does not in any way affect the powerof the investigating officer to further investigate the case evenafter submission of the report as provided in Section 173(8).”

Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2SCC 409, this Court held:

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

“11. The clear position therefore is that any Judicial Magistrate,before taking cognizance of the offence, can order investigationunder Section 156(3) of the Code. If he does so, he is not toexamine the complainant on oath because he was not takingcognizance of any offence therein. For the purpose of enablingthe police to start investigation it is open to the Magistrate todirect the police to register an FIR. There is nothing illegal indoing so. After all registration of an FIR involves only the processof entering the substance of the information relating to thecommission of the cognizable offence in book kept by the of-ficer in charge of the police station as indicated in Section 154 ofthe Code. Even if Magistrate does not say in so many wordswhile directing investigation under Section 156(3) of the Codethat an FIR should be registered, it is the duty of the officer incharge of the police station to register the FIR regarding thecognizable offence disclosed by the complainant because thatpolice officer could take further steps contemplated in ChapterXII of the Code only thereafter.”

13. The same view was taken by this Court in Dilawar Singh v.State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (JTvide para 17). We would further clarify that even if an FIR hasbeen registered and even if the police has made the investigation,or is actually making the investigation, which the aggrievedperson feels is not proper, such person can approach theMagistrate under Section 156(3) CrPC, and if the Magistrate issatisfied he can order proper investigation and take othersuitable steps and pass such order(s) as he thinks necessary forensuring proper investigation. All these powers Magistrateenjoys under Section 156(3) CrPC.

14. Section 156(3) states:

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

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

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

16. The power in the Magistrate to order further investigationunder Section 156(3) is an independent power and does notaffect the power of the investigating officer to further investigatethe case even after submission of his report vide Section 173(8).Hence the Magistrate can order reopening of the investigationeven after the police submits the final report, vide State of Biharv. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 :AIR 1980 SC 326] (SCC : AIR para 19).

17. In our opinion Section 156(3) CrPC is wide enough to includeall such powers in Magistrate which are necessary for ensuringa proper investigation, and it includes the power to orderregistration of an FIR and of ordering proper investigation if theMagistrate is satisfied that proper investigation has not been

done, or is not being done by the police. Section 156(3) CrPC,though briefly worded, in our opinion, is very wide and it willinclude all such incidental powers as are necessary for ensuring aproper investigation.

18. It is well settled that when power is given to an authority toBdo something it includes such incidental or implied powers whichwould ensure the proper doing of that thing. In other words, whenany power is expressly granted by the statute, there is impliedlyincluded in the grant, even without special mention, every powerand every control the denial of which would render the grant it-self ineffective. Thus where an Act confers jurisdiction it impliedlyCalso grants the power of doing all such acts or employ such meansas are essentially necessary for its execution.”

23. It is thus clear that the Magistrate’s power under Section156(3) of the CrPC is very wide, for it is this judicial authority that mustbe satisfied that proper investigation by the police takes place. ToDensure that “proper investigation” takes place in the sense of fairand just investigation by the police - which such Magistrate is to supervise- Article 21 of the Constitution of India mandates that all powersnecessary, which may also be incidental or implied, are available to theMagistrate to ensure proper investigation which, without doubt, wouldEinclude the ordering of further investigation after report is received byhim under Section 173(2); and which power would continue to enure insuch Magistrate at all stages of the criminal proceedings until the trialitself commences. Indeed, even textually, the “investigation” referred toin Section 156(1) of the CrPC would, as per the definition of“investigation” under Section 2(h), include all proceedings for collectionFof evidence conducted by police officer; which would undoubtedlyinclude proceedings by way of further investigation under Section 173(8)of the CrPC.

24. However, Shri Basant relied strongly on Three Judge Benchjudgment in Devarapalli Lakshminarayana Reddy & Ors. v.V.GNarayana Reddy & Ors. (1976) 3 SCC 252. This judgment, whiledeciding whether the first proviso to Section 202 (1) of the CrPC wasattracted on the facts of that case, held:

“17. Section 156(3) occurs in Chapter XII, under the caption :“Information to the Police and their powers to investigate”; while

Section 202 is in Chapter XV which bears the heading: “Ofcomplaints to Magistrates”. The power to order policeinvestigation under Section 156(3) is different from the power todirect investigation conferred by Section 202(1). The two operatein distinct spheres at different stages. The first is exercisable atthe pre-cognizance stage, the second at the post-cognizance stagewhen the Magistrate is in seisin of the case. That is to say in thecase of complaint regarding the commission of cognizableoffence, the power under Section 156(3) can be invoked by theMagistrate before he takes cognizance of the offence underSection 190(1)(a). But if he once takes such cognizance andembarks upon the procedure embodied in Chapter XV, he is notcompetent to switch back to the pre-cognizance stage and availof Section 156(3). It may be noted further that an order madeunder sub-section (3) of Section 156, is in the nature of aperemptory reminder or intimation to the police to exercise theirplenary powers of investigation under Section 156(1). Such aninvestigation embraces the entire continuous process whichbegins with the collection of evidence under Section 156 and endswith report or charge-sheet under Section 173. On the otherhand, Section 202 comes in at stage when some evidence hasbeen collected by the Magistrate in proceedings under ChapterXV, but the same is deemed insufficient to take decision as tothe next step in the prescribed procedure. In such situation, theMagistrate is empowered under Section 202 to direct, within thelimits circumscribed by that section an investigation “for thepurpose of deciding whether or not there is sufficient ground forproceeding”. Thus the object of an investigation under Section202 is not to initiate fresh case on police report but to assist theMagistrate in completing proceedings already instituted upon acomplaint before him.”

This judgment was then followed in Tula Ram & Ors.v.KishoreSingh (1977) 4 SCC 459 at paragraphs 11 and 15.

25. Whereas it is true that Section 156(3) remains unchangedeven after the 1973 Code has been brought into force, yet the 1973Code has one very important addition, namely, Section 173(8), which didnot exist under the 1898 Code. As we have noticed earlier in thisjudgment, Section 2(h) of the 1973 Criminal Procedure Code defines

A“investigation” in the same terms as the earlier definition contained inSection 2(l) of the 1898 Criminal Procedure Code with this difference –that “investigation” after the 1973 Code has come into force will nowinclude all the proceedings under the CrPC for collection of evidenceconducted by police officer. “All” would clearly include proceedingsunder Section 173(8) as well. Thus, when Section 156(3) states that aBMagistrate empowered under Section 190 may order “such aninvestigation”, such Magistrate may also order further investigationunder Section 173(8), regard being had to the definition of“investigation” contained in Section 2(h).

26. Section 2(h) is not noticed by the aforesaid judgment at all,Cresulting in the erroneous finding in law that the power under Section156(3) can only be exercised at the pre-cognizance stage. The“investigation” spoken of in Section 156(3) would embrace the entireprocess, which begins with the collection of evidence and continues untilcharges are framed by the Court, at which stage the trial can be said toDhave begun. For these reasons, the statement of the law contained inparagraph 17 in Devarapalli Lakshminarayana Reddy (supra) cannotbe relied upon.27. Ram Lal Narang v. State (Delhi Administration) (1979) 2SCC 322, is an early judgment which deals with the power contained inESection 173(8) after charge-sheet is filed. This Court adverted to theLaw Commission Report and to number of judgments which recognisedthe right of the police to make repeated investigations under the Code ofCriminal Procedure, 1898. It then quoted the early Supreme Courtjudgment in H.N. Rishbudv. State of Delhi AIR 1955 SC 196 case asfollows:F

“17. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196: (1955)1 SCR 1150: 1955 Cri LJ 526] this Court contemplated thepossibility of further investigation even after Court had takencognizance of the case. While noticing that police reportresulting from an investigation was provided in Section 190 CrPCGas the material on which cognizance was taken, it was pointedout that it could not be maintained that valid and legal policereport was the foundation of the jurisdiction of the court to takecognizance. It was held that where cognizance of the case had, infact, been taken and the case had proceeded to termination, the

invalidity of the precedent investigation did not vitiate the resultunless miscarriage of justice had been caused thereby. It wassaid that defect or illegality in investigation, however serious,had no direct bearing on the competence of the procedurerelating to cognizance or trial. However, it was observed:

“It does not follow that the invalidity of the investigation is to becompletely ignored by Court during trial. When the breach ofsuch mandatory provision is brought to the knowledge of the Courtat sufficiently early stage, the Court, while not decliningcognizance, will have to take the necessary steps to get theillegality cured and the defect rectified, by ordering suchre-investigation as the circumstances of an individual case maycall for.”

This decision is clear authority for the view that furtherinvestigation is not altogether ruled out merely becausecognizance of the case has been taken by the court; defectiveinvestigation coming to light during the course of trial may becured by further investigation, if circumstances permit it.”

The Court then went on to hold:

“20. Anyone acquainted with the day-to-day working of the criminalcourts will be alive to the practical necessity of the policepossessing the power to make further investigation and submit asupplemental report. It is in the interests of both the prosecutionand the defence that the police should have such power. It is easyto visualise case where fresh material may come to light whichwould implicate persons not previously accused or absolvepersons already accused. When it comes to the notice of theinvestigating agency that person already accused of an offencehas good alibi, is it not the duty of that agency to investigate thegenuineness of the plea of alibi and submit report to theMagistrate? After all the investigating agency has greaterresources at its command than private individual. Similarly, wherethe involvement of persons who are not already accused comesto the notice of the investigating agency, the investigating agencycannot keep quiet and refuse to investigate the fresh information.It is their duty to investigate and submit report to the Magistrate

upon the involvement of the other persons. In either case, it is forthe Magistrate to decide upon his future course of actiondepending upon the stage at which the case is before him. If hehas already taken cognizance of the offence, but has notproceeded with the enquiry or trial, he may direct the issue ofprocess to persons freshly discovered to be involved and dealwith all the accused in single enquiry or trial. If the case ofwhich he has previously taken cognizance has already proceededto some extent, he may take fresh cognizance of the offencedisclosed against the newly involved accused and proceed withthe case as separate case. What action Magistrate is to takein accordance with the provisions of the CrPC in such situationsis matter best left to the discretion of the Magistrate. Thecriticism that further investigation by the police would trenchupon the proceeding before the court is really not of very greatsubstance, since whatever the police may do, the final discretionin regard to further action is with the Magistrate. That the finalword is with the Magistrate is sufficient safeguard against anyexcessive use or abuse of the power of the police to make furtherinvestigation. We should not, however, be understood to say thatthe police should ignore the pendency of proceeding before acourt and investigate every fresh fact that comes to light as if nocognizance had been taken by the Court of any offence. We thinkthat in the interests of the independence of the magistracy andthe judiciary, in the interests of the purity of the administration ofcriminal justice and in the interests of the comity of the variousagencies and institutions entrusted with different stages of suchadministration, it would ordinarily be desirable that the police shouldinform the court and seek formal permission to make furtherinvestigation when fresh facts come to light.

21. As observed by us earlier, there was no provision in the CrPC,1898 which, expressly or by necessary implication, barred theright of the police to further investigate after cognizance of thecase had been taken by the Magistrate. Neither Section 173 norSection 190 lead us to hold that the power of the police to furtherinvestigate was exhausted by the Magistrate taking cognizanceof the offence. Practice, convenience and preponderance ofauthority, permitted repeated investigations on discovery of fresh

facts. In our view, notwithstanding that Magistrate had takencognizance of the offence upon police report submitted underSection 173 of the 1898 Code, the right of the police to furtherinvestigate was not exhausted and the police could exercise suchright as often as necessary when fresh information came to light.Where the police desired to make further investigation, thepolice could express their regard and respect for the court byseeking its formal permission to make further investigation.”

(emphasis supplied)

28. In Union Public Service Commission v. S. Papaiah (1997)7 SCC 614, this Court dealt with case in which the Central Bureau ofInvestigation (hereinafter referred to as the “CBI”) had submitted aclosure report. It then quoted from Three Judge Bench judgment inBhagwant Singh v. Commissioner of Police and Anr. (1985) 2 SCC357, in which this Court stated that Magistrate, in dealing with reportfrom the police under Section 173, can adopt one of three courses - (1)he may accept the report and drop the proceedings; or (2) he may disagreewith the report, take cognizance of the offence and issue process; or (3)he may direct further investigation to be made by the police under Section156(3). The Court then went on to hold that where objections have beenfurnished by the complainant, i.e. the Union Public Service Commission,against the closure report of the police, the Magistrate could, in exerciseof powers under Section 173(8) of the CrPC, direct the CBI to furtherinvestigate the case and collect further evidence keeping in view theobjections raised by the complainant (see paragraph 13 therein).29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.(2004) 5 SCC 347 is an important judgment which deals with the necessityfor further investigation being balanced with the delaying of criminalproceeding. If there is necessity for further investigation when freshfacts come to light, then the interest of justice is paramount and trumpsthe need to avoid any delay being caused to the proceeding. The Courttherefore held:

“11. Coming to the question whether further investigation iswarranted, the hands of the investigating agency or the court shouldnot be tied down on the ground that further investigation maydelay the trial, as the ultimate object is to arrive at the truth.

A12. Sub-section (8) of Section 173 of the Code permits furtherinvestigation, and even dehors any direction from the court assuch, it is open to the police to conduct proper investigation, evenafter the court took cognisance of any offence on the strength ofa police report earlier submitted. All the more so, if as in this case,the Head of the Police Department also was not satisfied of theBpropriety or the manner and nature of investigation alreadyconducted.

13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed bythis Court that further investigation is not altogether ruled outCmerely because cognisance has been taken by the court. Whendefective investigation comes to light during course of trial, it maybe cured by further investigation, if circumstances so permitted.It would ordinarily be desirable and all the more so in this case,that the police should inform the court and seek formalDpermission to make further investigation when fresh facts cometo light instead of being silent over the matter keeping in view onlythe need for an early trial since an effective trial for real or actualoffences found during course of proper investigation is as muchrelevant, desirable and necessary as an expeditious disposal ofthe matter by the courts. In view of the aforesaid position in law,Eif there is necessity for further investigation, the same cancertainly be done as prescribed by law. The mere fact that theremay be further delay in concluding the trial should not stand in theway of further investigation if that would help the court in arrivingat the truth and do real and substantial as well as effective justice.FWe make it clear that we have not expressed any final opinion onthe merits of the case.”[1]

30. In Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC 536,this Court followed Papaiah (supra) and held:

“16. Although the said sub-section does not, in specific terms,Gmention about the powers of the court to order further

1This statement of the law was approved in Rama Chaudhary v. State of Bihar(2009) 6 SCC 346 (at paragraphs 14 to 19) and in Samaj Parivartan Samudaya andHOrs. v. State of Karnataka and Ors. (2012) 7 SCC 407 (at paragraph 58).

investigation, the power of the police to conduct furtherinvestigation envisaged therein can be triggered into motion at theinstance of the court. When any such order is passed by courtwhich has the jurisdiction to do so, it would not be properexercise of revisional powers to interfere therewith because thefurther investigation would only be for the ends of justice. Afterthe further investigation, the authority conducting suchinvestigation can either reach the same conclusion and reiterate itor it can reach different conclusion. During such extendedinvestigation, the officers can either act on the same materials oron other materials which may come to their notice. It is for theinvestigating agency to exercise its power when it is put back onthat track. If they come to the same conclusion, it is of addedadvantage to the persons against whom the allegations were made,and if the allegations are found false again the complainant wouldbe in trouble. So from any point of view the Special Judge’sdirection would be of advantage for the ends of justice. It is toopremature for the High Court to predict that the investigatingofficer would not be able to collect any further material at all.That is an area which should have been left to the investigatingofficer to survey and recheck.

17. In Bhagwant Singh v. Commr. of Police [(1985) 2 SCC537 : 1985 SCC (Cri) 267] three-Judge Bench of this Court hassaid, though in slightly different context, that three options areopen to the court on receipt of report under Section 173(2) ofthe Code, when such report states that no offence has beencommitted by the persons accused in the complaint. They are:(SCC p. 542, para 4)

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

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

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

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

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

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

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

31. In Samaj Parivartan Samudaya (supra),a Three Judge Benchof this Court, while dealing with illegal mining in Andhra Pradesh andKarnataka, issued directions to the CBI to investigate the entire matter(despite private complaints already pending and being investigated byone or other competent Court or investigation agency), as Central

Empowered Committee Report disclosed fresh facts as to illegal miningin these States. In review of the machinery of criminal investigationsunder the CrPC, this Court held:

“27. Once the investigation is conducted in accordance with theprovisions of CrPC, police officer is bound to file reportbefore the court of competent jurisdiction, as contemplated underSection 173 CrPC, upon which the Magistrate can proceed to trythe offence, if the same were triable by such court or commit thecase to the Court of Session. It is significant to note that theprovisions of Section 173(8) CrPC open with non obstantelanguage that nothing in the provisions of Sections 173(1) to 173(7)shall be deemed to preclude further investigation in respect of anoffence after report under sub-section (2) has been forwardedto the Magistrate. Thus, under Section 173(8), wherecharge-sheet has been filed, that court also enjoys the jurisdictionto direct further investigation into the offence. (Ref. HemantDhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280] .)This power cannot have any inhibition including such requirementas being obliged to hear the accused before any such direction ismade.

xxx xxx xxx

29. While the trial court does not have inherent powers like thoseof the High Court under Section 482 CrPC or the Supreme Courtunder Article 136 of the Constitution of India, such that it mayorder for complete reinvestigation or fresh investigation of casebefore it, however, it has substantial powers in exercise ofdiscretionary jurisdiction under Sections 311 and 391 CrPC. Incases where cognizance has been taken and where substantialportion of investigation/trial has already been completed and wherea direction for further examination would have the effect ofdelaying the trial, if the trial court is of the opinion that the casehas been made out for alteration of charge, etc. it may exercisesuch powers without directing further investigation. (Ref. SasiThomas v. State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72] .)

30. Still in another case, taking the aid of the doctrine of impliedpower, this Court has also stated that an express grant of

EFG

statutory power carries with it, by necessary implication, theauthority to use all reasonable means to make such statutory powereffective. Therefore, absence of statutory provision empoweringthe Magistrate to direct registration of an FIR would not be ofany consequence and the Magistrate would nevertheless becompetent to direct registration of an FIR. (Ref. Sakiri Vasu v.State of U.P. [(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440] )

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

xxx xxx xxx

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

32. In Gulzar Ahmed Azmi v. Union of India and Ors. (2012)10 SCC 731, this Court, while rejecting an argument that furtherinvestigation by the police should be entrusted with supernumerarybody created under the head of retired Supreme Court Judge alongGwith other officers and experts, held that if further investigation is soughtunder Section 173(8) of CrPC, the same can always be effected evenafter the filing of the final report.

33. We now come to the decision in Vinay Tyagi v. Irshad Aliand Ors. (2013) 5 SCC 762. This is another case that arose out of aCBI report to the Magistrate, which requested for closure of the case

against the accused. The judgment of the Court first discussed in detailhow the criminal investigative machinery is set into motion right until thestage at which the trial begins. The Court then held:

“20. Having noticed the provisions and relevant part of the schemeof the Code, now we must examine the powers of the court todirect investigation. Investigation can be ordered in varied formsand at different stages. Right at the initial stage of receiving theFIR or complaint, the court can direct investigation inaccordance with the provisions of Section 156(1) in exercise ofits powers under Section 156(3) of the Code. Investigation can beof the following kinds:

(i) Initial investigation,

(ii) Further investigation,

(iii) Fresh or de novo or reinvestigation.”

Thereafter, the question with which we are faced was directlytackled as follows:

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

xxx xxx xxx

32. In Minu Kumari v. State of Bihar [(2006) 4 SCC 359: (2006)2 SCC (Cri) 310] (SCC pp. 363-64, para 11), this Court explainedthe powers that are vested in Magistrate upon filing of reportin terms of Section 173(2)(i) and the kind of order that the courtcan pass. The Court held that when report is filed before aMagistrate, he may either (i) accept the report and takecognizance of the offences and issue process; or (ii) maydisagree with the report and drop the proceedings; or (iii) maydirect further investigation under Section 156(3) and require thepolice to make further report.33. This judgment, thus, clearly shows that the Court ofMagistrate has clear power to direct further investigation whena report is filed under Section 173(2) and may also exercise suchpowers with the aid of Section 156(3) of the Code. The lurkingdoubt, if any, that remained in giving wider interpretation to

Section 173(8) was removed and controversy put to an end bythe judgment of this Court in Hemant Dhasmana v. CBI [(2001)7 SCC 536: 2001 SCC (Cri) 1280] where the Court held thatalthough the said section does not, in specific terms, mention thepower of the court to order further investigation, the power of thepolice to conduct further investigation envisaged therein can betriggered into motion at the instance of the court. When any suchorder is passed by the court, which has the jurisdiction to do so,then such order should not even be interfered with in exercise ofa higher court’s revisional jurisdiction. Such orders wouldnormally be of an advantage to achieve the ends of justice. It wasclarified, without ambiguity, that the Magistrate, in exercise ofpowers under Section 173(8) of the Code can direct CBI tofurther investigate the case and collect further evidence keepingin view the objections raised by the appellant to the investigationand the new report to be submitted by the investigating officer,would be governed by sub-section (2) to sub-section (6) ofSection 173 of the Code. There is no occasion for the Court tointerpret Section 173(8) of the Code restrictively. After filing ofthe final report, the learned Magistrate can also take cognizanceon the basis of the material placed on record by the investigatingagency and it is permissible for him to direct further investigation.Conduct of proper and fair investigation is the hallmark of anycriminal investigation.

34. In support of these principles reference can be made to thejudgments of this Court in UPSC v. S. Papaiah [(1997) 7 SCC614: 1997 SCC (Cri) 1112], State of Orissa v. Mahima [(2007)15 SCC 580: (2010) 3 SCC (Cri) 611: (2003) 5 Scale 566] , KishanLal v. Dharmendra Bafna [(2009) 7 SCC 685: (2009) 3 SCC(Cri) 611], State of Maharashtra v. Sharadchandra VinayakDongre [(1995) 1 SCC 42: 1995 SCC (Cri) 16].

35. We may also notice here that in S. Papaiah [(1997) 7 SCC614: 1997 SCC (Cri) 1112] , the Magistrate had rejected anapplication for reinvestigation filed by the applicant primarily onthe ground that it had no power to review the order passedearlier. This Court held that it was not case of review of anorder, but was case of further investigation as contemplated

under Section 173 of the Code. It permitted further investigationand directed the report to be filed.

36. Interestingly and more particularly for answering thequestion of legal academia that we are dealing with, it may benoticed that this Court, while pronouncing its judgment in HemantDhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280]has specifically referred to the judgments S. Papaiah [(1997) 7SCC 614: 1997 SCC (Cri) 1112] and Bhagwant Singh v. Commr.of Police [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC537: 1985 SCC (Cri) 267] . While relying upon the three-JudgeBench judgment of Bhagwant Singh [Bhagwant Singh v. Commr.of Police, (1985) 2 SCC 537: 1985 SCC (Cri) 267] , whichappears to be foundational view for development of law in rela-tion to Section 173 of the Code, the Court held that the Magistratecould pass an order for further investigation. The principalquestion in that case was whether the Magistrate could drop theproceedings after filing of report under Section 173(2), withoutnotice to the complainant, but in para 4 of the judgment, the three-Judge Bench dealt with the powers of the Magistrate as enshrinedin Section 173 of the Code…”“37. In some judgments of this Court, view has been advanced,[amongst others in Reeta Nag v. State of W.B. [Reeta Nag v.State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] ,Ram Naresh Prasad v. State of Jharkhand [Ram Naresh Prasadv. State of Jharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri)1336. Ed.: Ram Naresh case does not seem to indicate that theMagistrate cannot suo motu direct further investigation: rather itseems to indicate that the Magistrate in fact can do so.] andRandhir Singh Rana v. State (Delhi Admn.) [Randhir SinghRana v. State (Delhi Admn.), (1997) 1 SCC 361] ] that aMagistrate cannot suo motu direct further investigation underSection 173(8) of the Code or direct reinvestigation into case onaccount of the bar contained in Section 167(2) of the Code, andthat Magistrate could direct filing of charge-sheet where thepolice submits report that no case had been made out forsending up an accused for trial. The gist of the view taken inthese cases is that Magistrate cannot direct reinvestigation andcannot suo motu direct further investigation.

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

39. The contrary view taken by the Court in Reeta Nag [ReetaNag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri)1051] and Randhir Singh [Randhir Singh Rana v. State (DelhiAdmn.), (1997) 1 SCC 361] do not consider the view of this Courtexpressed in Bhagwant Singh [Bhagwant Singh v. Commr. ofPolice, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] . The decision ofthe Court in Bhagwant Singh [Bhagwant Singh v. Commr. ofPolice, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] in regard to theissue in hand cannot be termed as an obiter. The ambit and scopeof the power of Magistrate in terms of Section 173 of the Codewas squarely debated before that Court and the three-Judge Benchconcluded as aforenoticed. Similar views having been taken bydifferent Benches of this Court while following Bhagwant Singh[Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985SCC (Cri) 267] , are thus squarely in line with the doctrine ofprecedent. To some extent, the view expressed in Reeta Nag[Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC(Cri) 1051] , Ram Naresh [Ram Naresh Prasad v. State ofJharkhand, (2009) 11 SCC 299 : (2009) 3 SCC (Cri) 1336. Ed.:Ram Naresh case does not seem to indicate that the Magistratecannot suo motu direct further investigation: rather it seems toindicate that the Magistrate in fact can do so.] and Randhir Singh[Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC361] , besides being different on facts, would have to beexamined in light of the principle of stare decisis.

40. Having analysed the provisions of the Code and the variousjudgments as aforeindicated, we would state the followingconclusions in regard to the powers of Magistrate in terms of

Section 173(2) read with Section 173(8) and Section 156(3) ofthe Code:

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

40.2. Magistrate has the power to direct “furtherinvestigation” after filing of police report in terms of Section173(6) of the Code.

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

40.4. Neither the scheme of the Code nor any specific provisiontherein bars exercise of such jurisdiction by the Magistrate. Thelanguage of Section 173(2) cannot be construed so restrictivelyas to deprive the Magistrate of such powers particularly in faceof the provisions of Section 156(3) and the language of Section173(8) itself. In fact, such power would have to be read into thelanguage of Section 173(8).

40.5. The Code is procedural document, thus, it must receive aconstruction which would advance the cause of justice andlegislative object sought to be achieved. It does not stand toreason that the legislature provided power of further investigationto the police even after filing report, but intended to curtail thepower of the court to the extent that even where the facts of thecase and the ends of justice demand, the court can still not directthe investigating agency to conduct further investigation which itcould do on its own.

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

48. What ultimately is the aim or significance of the expression“fair and proper investigation” in criminal jurisprudence? It has atwin purpose: Firstly, the investigation must be unbiased, honest,just and in accordance with law; secondly, the entire emphasis ona fair investigation has to be to bring out the truth of the casebefore the court of competent jurisdiction. Once these twinparadigms of fair investigation are satisfied, there will be the leastrequirement for the court of law to interfere with theinvestigation, much less quash the same, or transfer it to anotheragency. Bringing out the truth by fair and investigative means inaccordance with law would essentially repel the very basis of anunfair, tainted investigation or cases of false implication. Thus, itis inevitable for court of law to pass specific order as to thefate of the investigation, which in its opinion is unfair, tainted andin violation of the settled principles of investigative canons.

49. Now, we may examine another significant aspect which ishow the provisions of Section 173(8) have been understood andapplied by the courts and investigating agencies. It is true thatthough there is no specific requirement in the provisions ofSection 173(8) of the Code to conduct “further investigation” orfile supplementary report with the leave of the court, theinvestigating agencies have not only understood but also adoptedit as legal practice to seek permission of the courts to conduct“further investigation” and file “supplementary report” with theleave of the court. The courts, in some of the decisions, have alsotaken similar view. The requirement of seeking prior leave ofthe court to conduct “further investigation” and/or to file a“supplementary report” will have to be read into, and is anecessary implication of the provisions of Section 173(8) of theCode. The doctrine of contemporanea expositio will fully come tothe aid of such interpretation as the matters which are understoodand implemented for long time, and such practice that issupported by law should be accepted as part of the interpretativeprocess.

50. Such view can be supported from two different points ofview: firstly, through the doctrine of precedent, as aforenoticed,since quite often the courts have taken such view, and,

secondly, the investigating agencies which have also sounderstood and applied the principle. The matters which areunderstood and implemented as legal practice and are notopposed to the basic rule of law would be good practice and suchinterpretation would be permissible with the aid of doctrine ofcontemporanea expositio. Even otherwise, to seek such leave ofthe court would meet the ends of justice and also provideadequate safeguard against suspect/accused.

51. We have already noticed that there is no specific embargoupon the power of the learned Magistrate to direct “furtherinvestigation” on presentation of report in terms of Section 173(2)of the Code. Any other approach or interpretation would be incontradiction to the very language of Section 173(8) and thescheme of the Code for giving precedence to properadministration of criminal justice. The settled principles ofcriminal jurisprudence would support such approach, particularlywhen in terms of Section 190 of the Code, the Magistrate is thecompetent authority to take cognizance of an offence. It is theMagistrate who has to decide whether on the basis of the recordand documents produced, an offence is made out or not, and ifmade out, what course of law should be adopted in relation tocommittal of the case to the court of competent jurisdiction or toproceed with the trial himself. In other words, it is the judicialconscience of the Magistrate which has to be satisfied withreference to the record and the documents placed before him bythe investigating agency, in coming to the appropriate conclusionin consonance with the principles of law. It will be travesty ofjustice, if the court cannot be permitted to direct “furtherinvestigation” to clear its doubt and to order the investigatingagency to further substantiate its charge-sheet. The satisfactionof the learned Magistrate is condition precedent tocommencement of further proceedings before the court ofcompetent jurisdiction. Whether the Magistrate should direct“further investigation” or not is again matter which will dependupon the facts of given case. The learned Magistrate or thehigher court of competent jurisdiction would direct “furtherinvestigation” or “reinvestigation” as the case may be, on the factsof given case. Where the Magistrate can only direct further

978SUPREME COURT REPORTS

Ainvestigation, the courts of higher jurisdiction can direct further,reinvestigation or even investigation de novo depending on thefacts of given case. It will be the specific order of the court thatwould determine the nature of investigation. In this regard, wemay refer to the observations made by this Court in Sivanmoorthyv. State [(2010) 12 SCC 29: (2011) 1 SCC (Cri) 295].”

34. Bench of 5 learned Judges of this Court in Hardeep Singhv. State of Punjab and Ors. (2014) 3 SCC 92 was faced with questionregarding the circumstances under which the power under Section 319of the Code could be exercised to add person as being accused of acriminal offence. In the course of learned judgment answering theCaforesaid question, this Court first adverted to the constitutional mandateunder Article 21 of the Constitution as follows:

“8. The constitutional mandate under Articles 20 and 21 of theConstitution of India provides protective umbrella for the smoothadministration of justice making adequate provisions to ensure aDfair and efficacious trial so that the accused does not getprejudiced after the law has been put into motion to try him forthe offence but at the same time also gives equal protection tovictims and to society at large to ensure that the guilty does notget away from the clutches of law. For the empowerment of theEcourts to ensure that the criminal administration of justice worksproperly, the law was appropriately codified and modified by thelegislature under CrPC indicating as to how the courts shouldproceed in order to ultimately find out the truth so that an innocentdoes not get punished but at the same time, the guilty are broughtto book under the law. It is these ideals as enshrined under theFConstitution and our laws that have led to several decisions,whereby innovating methods and progressive tools have beenforged to find out the real truth and to ensure that the guilty doesnot go unpunished.”

In paragraph 34, this Court adverted to Common Cause v.GUnion of India (1996) 6 SCC 775, and dealt with when trials before theSessions Court; trials of warrant-cases; and trials of summons-cases byMagistrates can be said to commence, as follows:

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

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

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

(iii) In cases of trials of summons cases by Magistrates the trialswould be considered to have commenced when the accused whoappear or are brought before the Magistrate are asked underSection 251 whether they plead guilty or have any defence tomake.”

(emphasis supplied)

The Court then concluded:

“38. In view of the above, the law can be summarised to theeffect that as “trial” means determination of issues adjudging theguilt or the innocence of person, the person has to be aware ofwhat is the case against him and it is only at the stage of framingof the charges that the court informs him of the same, the “trial”commences only on charges being framed. Thus, we do notapprove the view taken by the courts that in criminal case, trialcommences on cognizance being taken.”

35. Paragraph 39 of the judgment then referred to the “inquiry”stage of criminal case as follows:

“39. Section 2(g) CrPC and the case laws referred to above,therefore, clearly envisage inquiry before the actualcommencement of the trial, and is an act conducted under CrPCby the Magistrate or the court. The word “inquiry” is, therefore,not any inquiry relating to the investigation of the case by theinvestigating agency but is an inquiry after the case is brought to

the notice of the court on the filing of the charge-sheet. The courtcan thereafter proceed to make inquiries and it is for this reasonthat an inquiry has been given to mean something other than theactual trial.”

clear distinction between “inquiry” and “trial” was thereafterBset out in paragraph 54 as follows:

“54. In our opinion, the stage of inquiry does not contemplate anyevidence in its strict legal sense, nor could the legislature havecontemplated this inasmuch as the stage for evidence has not yetarrived. The only material that the court has before it is theCmaterial collected by the prosecution and the court at this stageprima facie can apply its mind to find out as to whether person,who can be an accused, has been erroneously omitted from beingarraigned or has been deliberately excluded by the prosecutingagencies. This is all the more necessary in order to ensure thatthe investigating and the prosecuting agencies have acted fairly inDbringing before the court those persons who deserve to be triedand to prevent any person from being deliberately shielded whenthey ought to have been tried. This is necessary to usher faith inthe judicial system whereby the court should be empowered toexercise such powers even at the stage of inquiry and it is for thisEreason that the legislature has consciously used separate terms,namely, inquiry or trial in Section 319 CrPC.”

36. Despite the aforesaid judgments, some discordant notes weresounded in three recent judgments. In Amrutbhai Shambubhai Patelv. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in thatFcase, the Appellant/Informant therein sought direction under Section173(8) from the Trial Court for further investigation by the police longafter charges were framed against the Respondents at the culminatingstages of the trial. The Court in its ultimate conclusion was correct, inthat, once the trial begins with the framing of charges, the stage ofinvestigation or inquiry into the offence is over, as result of which noGfurther investigation into the offence should be ordered. But instead ofresting its judgment on this simple fact, this Court from paragraphs 29 to34 resuscitated some of the earlier judgments of this Court, in which aview was taken that no further investigation could be ordered by theMagistrate in cases where, after cognizance is taken, the accused had

appeared in pursuance of process being issued. In particular, DevarapalliLakshminarayana Reddy (supra)was strongly relied upon by the Court.We have already seen how this judgment was rendered without advertingto the definition of “investigation” in Section 2(h) of the CrPC, and cannottherefore be relied upon as laying down the law on this aspect correctly.The Court therefore concluded:

“49. On an overall survey of the pronouncements of this Court onthe scope and purport of Section 173(8) of the Code and theconsistent trend of explication thereof, we are thus disposed tohold that though the investigating agency concerned has beeninvested with the power to undertake further investigationdesirably after informing the court thereof, before which it hadsubmitted its report and obtaining its approval, no such power isavailable therefor to the learned Magistrate after cognizance hasbeen taken on the basis of the earlier report, process has beenissued and the accused has entered appearance in responsethereto. At that stage, neither the learned Magistrate suo motunor on an application filed by the complainant/informant candirect further investigation. Such course would be open only onthe request of the investigating agency and that too, incircumstances warranting further investigation on the detectionof material evidence only to secure fair investigation and trial, thelife purpose of the adjudication in hand.

50. The unamended and the amended sub-section (8) of Section173 of the Code if read in juxtaposition, would overwhelminglyattest that by the latter, the investigating agency/officer alone hasbeen authorised to conduct further investigation without limitingthe stage of the proceedings relatable thereto. This power quathe investigating agency/officer is thus legislatively intended to beavailable at any stage of the proceedings. The recommendationof the Law Commission in its 41st Report which manifestlyheralded the amendment, significantly had limited its proposal tothe empowerment of the investigating agency alone.

51. In contradistinction, Sections 156, 190, 200, 202 and 204 CrPCclearly outline the powers of the Magistrate and the courses openfor him to chart in the matter of directing investigation, taking ofcognizance, framing of charge, etc. Though the Magistrate has

the power to direct investigation under Section 156(3) at thepre-cognizance stage even after charge-sheet or closurereport is submitted, once cognizance is taken and the accusedperson appears pursuant thereto, he would be bereft of anycompetence to direct further investigation either suo motu oracting on the request or prayer of the complainant/informant. Thedirection for investigation by the Magistrate under Section 202,while dealing with complaint, though is at post-cognizancestage, it is in the nature of an inquiry to derive satisfaction as towhether the proceedings initiated ought to be furthered or not.Such direction for investigation is not in the nature of furtherinvestigation, as contemplated under Section 173(8) of the Code.If the power of the Magistrate, in such scheme envisaged byCrPC to order further investigation even after the cognizance istaken, the accused persons appear and charge is framed, isacknowledged or approved, the same would be discordant withthe state of law, as enunciated by this Court and also the relevantlayout of CrPC adumbrated hereinabove. Additionally had it beenthe intention of the legislature to invest such power, in ourestimate, Section 173(8) CrPC would have been wordedaccordingly to accommodate and ordain the same having regardto the backdrop of the incorporation thereof. In way, in view ofthe three options open to the Magistrate, after report issubmitted by the police on completion of the investigation, as hasbeen amongst authoritatively enumerated in Bhagwant Singh[Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985SCC (Cri) 267] , the Magistrate, in both the contingencies, namely;when he takes cognizance of the offence or discharges theaccused, would be committed to course, whereafter though theinvestigating agency may for good reasons inform him and seekhis permission to conduct further investigation, he suo motucannot embark upon such step or take that initiative on therequest or prayer made by the complainant/informant. Not onlysuch power to the Magistrate to direct further investigation suomotu or on the request or prayer of the complainant/informantafter cognizance is taken and the accused person appears,pursuant to the process, issued or is discharged is incompatiblewith the statutory design and dispensation, it would evenotherwise render the provisions of Sections 311 and 319 CrPC,

whereunder any witness can be summoned by court and aperson can be issued notice to stand trial at any stage, in wayredundant. Axiomatically, thus the impugned decision annullingthe direction of the learned Magistrate for further investigation isunexceptional and does not merit any interference. Evenotherwise on facts, having regard to the progression of thedevelopments in the trial, and more particularly, the delay on thepart of the informant in making the request for furtherinvestigation, it was otherwise not entertainable as has been rightlyheld by the High Court.”

37. This judgment was followed in recent Division Benchjudgment of this Court in Athul Rao v. State of Karnataka and Anr.(2018) 14 SCC 298 at paragraph 8. In Bikash Ranjan Rout v. Statethrough the Secretary (Home), Government of NCT of Delhi(2019) 5 SCC 542, after referring to number of decisions this Courtconcluded as follows:

“7. Considering the law laid down by this Court in the aforesaiddecisions and even considering the relevant provisions of CrPC,namely, Sections 167(2), 173, 227 and 228 CrPC, what isemerging is that after the investigation is concluded and thereport is forwarded by the police to the Magistrate under Section173(2)(i) CrPC, the learned Magistrate may either (1) accept thereport 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 requirethe police to make further report. If the Magistrate disagreeswith the report and drops the proceedings, the informant isrequired to be given an opportunity to submit the protestapplication and thereafter, after giving an opportunity to theinformant, the Magistrate may take further decision whether todrop the proceedings against the accused or not. If the learnedMagistrate accepts the objections, in that case, he may issueprocess and/or even frame the charges against the accused. Asobserved hereinabove, having not been satisfied with theinvestigation on considering the report forwarded by the policeunder Section 173(2)(i) CrPC, the Magistrate may, at that stage,direct further investigation and require the police to make afurther report. However, it is required to be noted that all the

aforesaid is required to be done at the pre-cognizance stage. Oncethe learned Magistrate takes the cognizance and, considering thematerials on record submitted along with the report forwarded bythe police under Section 173(2)(i) CrPC, the learned Magistratein exercise of the powers under Section 227 CrPC discharges theaccused, thereafter, it will not be open for the Magistrate to suomotu order for further investigation and direct the investigatingofficer to submit the report. Such an order after discharging theaccused can be said to be made at the post-cognizance stage.There is distinction and/or difference between thepre-cognizance stage and post-cognizance stage and the powersto be exercised by the Magistrate for further investigation at thepre-cognizance stage and post-cognizance stage. The power toorder further investigation which may be available to theMagistrate at the pre-cognizance stage may not be available tothe Magistrate at the post-cognizance stage, more particularly,when the accused is discharged by him. As observed hereinabove,if the Magistrate was not satisfied with the investigation carriedout by the investigating officer and the report submitted by theinvestigating officer under Section 173(2)(i) CrPC, as observedby this Court in catena of decisions and as observedhereinabove, it was always open/permissible for the Magistrateto direct the investigating agency for further investigation and maypostpone even the framing of the charge and/or taking any finaldecision on the report at that stage. However, once the learnedMagistrate, on the basis of the report and the materials placedalong with the report, discharges the accused, we are afraid thatthereafter the Magistrate can suo motu order furtherinvestigation by the investigating agency. Once the order ofdischarge is passed, thereafter the Magistrate has no jurisdictionto suo motu direct the investigating officer for furtherinvestigation and submit the report. In such situation, only tworemedies are available: (i) revision application can be filed againstthe discharge or (ii) the Court has to wait till the stage of Section319 CrPC. However, at the same time, considering the provisionsof Section 173(8) CrPC, it is always open for the investigatingagency to file an application for further investigation andthereafter to submit the fresh report and the Court may, on the

application submitted by the investigating agency, permit furtherinvestigation and permit the investigating officer to file freshreport and the same may be considered by the learnedMagistrate thereafter in accordance with law. The Magistratecannot suo motu direct for further investigation under Section173(8) CrPC or direct reinvestigation into case at thepost-cognizance stage, more particularly when, in exercise ofpowers under Section 227 CrPC, the Magistrate discharges theaccused. However, Section 173(8) CrPC confers power upon theofficer in charge of the police station to further investigate andsubmit evidence, oral or documentary, after forwarding the reportunder sub-section (2) of Section 173 CrPC. Therefore, it isalways open for the investigating officer to apply for furtherinvestigation, even after forwarding the report under sub-section(2) of Section 173 and even after the discharge of the accused.However, the aforesaid shall be at the instance of theinvestigating officer/police officer in charge and the Magistratehas no jurisdiction to suo motu pass an order for furtherinvestigation/reinvestigation after he discharges the accused.”

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

hold:

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

38. There is no good reason given by the Court in these decisionsas to why Magistrate’s powers to order further investigation wouldsuddenly cease upon process being issued, and an accused appearingbefore the Magistrate, while concomitantly, the power of the police tofurther investigate the offence continues right till the stage the trialcommences. Such view would not accord with the earlier judgments

ABCD

Aof this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya(supra), Vinay Tyagi (supra), and Hardeep Singh (supra); HardeepSingh (supra) having clearly held that criminal trial does not beginafter cognizance is taken, but only after charges are framed. What isnot given any importance at all in the recent judgments of this Court isArticle 21 of the Constitution and the fact that the Article demands noBless than fair and just investigation. To say that fair and justinvestigation would lead to the conclusion that the police retain the power,subject, of course, to the Magistrate’s nod under Section 173(8) to furtherinvestigate an offence till charges are framed, but that the supervisoryjurisdiction of the Magistrate suddenly ceases mid-way through the pre-Ctrial proceedings, would amount to travesty of justice, as certain casesmay cry out for further investigation so that an innocent person is notwrongly arraigned as an accused or that prima facie guilty person isnot so left out. There is no warrant for such narrow and restrictiveview of the powers of the Magistrate, particularly when such powers

are traceable to Section 156(3) read with Section 156(1), Section 2(h),Dand Section 173(8) of the CrPC, as has been noticed hereinabove, andwould be available at all stages of the progress of criminal case beforethe trial actually commences. It would also be in the interest of justicethat this power be exercised suo motu by the Magistrate himself,depending on the facts of each case. Whether further investigation shouldEor should not be ordered is within the discretion of the learned Magistratewho will exercise such discretion on the facts of each case and inaccordance with law. If, for example, fresh facts come to light whichwould lead to inculpating or exculpating certain persons, arriving at thetruth and doing substantial justice in criminal case are more importantthan avoiding further delay being caused in concluding the criminalFproceeding, as was held in Hasanbhai Valibhai Qureshi (supra).Therefore, to the extent that the judgments in Amrutbhai ShambubhaiPatel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra)have held to the contrary, they stand overruled. Needless to add, RandhirSingh Rana v. State (Delhi Administration) (1997) 1 SCC 361 andGReeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 alsostand overruled.

39. We now come to certain other judgments that were citedbefore us. King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18,was strongly relied upon by Shri Basant for the proposition that unlikeHsuperior Courts, Magistrates did not possess any inherent power under

the CrPC. Since we have grounded the power of the Magistrate toorder further investigation until charges are framed under Section 156(3)read with Section 173(8) of the CrPC, no question as to Magistrateexercising any inherent power under the CrPC would arise in this case.

40. Union of India and Anr. v. W.N Chadha (1993) Supp. 4SCC 260, is judgment which states that the accused has no right toparticipate in the investigation till process is issued to him, provided thereis strict compliance of the requirements of fair investigation Likewise,the judgments in Smt.Nagawwa v. Veeranna Shivalongappa Konjalgi& Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. PramodAggarwal & Ors., (2008) 9 SCC 469, Narender G. Goel v. State ofMaharashtra (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v.State of Gujarat & Ors. (2014) 4 SCC 626, which state that the accusedhas no right to be heard at the stage of investigation, has very little to dowith the precise question before us. All these judgments are, therefore,distinguishable. Further, Babubhai v. State of Gujarat & Ors. (2010)12 SCC 254, is judgment which distinguishes between furtherinvestigation and re-investigation, and holds that superior court may, inorder to prevent miscarriage of criminal justice if it considers necessary,direct investigation de novo, whereas Magistrate’s power is limited toordering further investigation. Since the present case is not concernedwith re-investigation, this judgment also cannot take us much further.Likewise, Romila Thapar v. Union of India, (2018) 10 SCC 753, heldthat an accused cannot ask to change an investigating agency, or torequire that an investigation be done in particular manner, includingasking for court-monitored investigation. This judgment also is farremoved from the question that has been decided by us in the facts ofthis case.

41. When we come to the facts of this case, it is clear that theFIR dated 22.12.2009 is concerned with two criminal acts, namely, thepreparing of fake and bogus ‘Satakhat’ and Power-of-Attorney in respectof the agricultural land in question, and the demanding of an amount ofRs. 2.5 crores as an attempt to extort money by the accused persons.The facts that are alleged in the application for further investigation arefacts which pertain to revenue entries having been made in favour ofRamanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and howtheir claim over the same land is false and bogus. Shri Basant is, therefore,right in submitting that the facts alleged in the applications for further

Ainvestigation are really in the nature of cross-FIR which has neverbeen registered. In fact, the communication of the Commissioner ofRevenue, Gujarat dated 15.03.2011 to the Collector, Surat - so stronglyrelied upon by Shri Dushyant Dave - bears this out. In this communication,the learned Commissioner doubts that particular order dated 14.04.1976passed by revenue authority ever existed, and that by making anBapplication in the name of the long since deceased Bhikhabhai Khushalbhaiin 2010, for getting copy of Form No.3 would, prima facie, amount toa criminal offence. Further, the learned Commissioner goes on to statethat Bhikiben (Bhikhabhai’s widow), who had passed away in December1999, could not possibly have made an application in the year 2000;Cwhich shows that her signature is also prima facie forged. Further, thesaid Ramanbhai and Shankarbhai Patel are at present 48 and 53 yearsold, and if they could be said to be in possession of the said agriculturalland since 1934, they could be said to be in possession at time whenthey were not yet born. Further, since these two gentlemen were abroadfrom the very beginning, it is stated that they could not possibly be farmersDcultivating agricultural land. For these, and various other reasons, theCommissioner concluded:“Thus, looking to all the aforesaid particulars, as per thesubmission made by the lady applicant, scam has been made inrespect of her land by creating false bogus cases/resolutions/Eorders passed or by forging fake documents. Submission is madefor initiating criminal proceedings against all those who areinvolved in such scam and whether there is substance in thismatter or not? Thorough inquiry be made in that connection atyour level. Till the real particulars in this matter are not becomingFclear, it is appearing necessary to stop the NA Permission/Construction activities. Therefore, after making necessaryproceedings in that regard, detailed report having basis of theproceedings done is to be immediately submitted to theundersigned and periodical information of the proceedings donein this matter also be given to the undersigned.”G

42. Given the allegations in the communication of 15.03.2011, weare of the view that this is not case which calls for any furtherinvestigation into the facts alleged in the FIR lodged on 22.12.2009. Yet,having regard to what is stated by the learned Commissioner in the said

letter, we are of the view that the police be directed to register an FIRqua these facts, which needs to be investigated by senior police officernominated by the concerned Commissioner of Police.

43. We, therefore, set aside the impugned High Court judgmentinsofar as it states that post-cognizance the Magistrate is denuded ofpower to order further investigation. However, given that the facts statedin the application for further investigation have no direct bearing on theinvestigation conducted pursuant to the FIR dated 22.12.2009, we upholdthe impugned High Court judgment insofar as it has set aside the judgmentof the Second Additional Sessions Judge dated 10.01.2012 which hadordered further investigation, and also the consequential order settingaside the two additional interim reports of the IO Munshi. So far asCriminal Revision Application No.346 of 2011 is concerned, we set asidethe impugned High Court judgment which remanded the matter to therevisional court. Consequently, the judgment of the learned AdditionalSessions Judge dated 23.04.2016 upon remand is also set aside, renderingSpecial Criminal Application No.3085 of 2016 infructuous.

44. However, given the serious nature of the facts alleged in thecommunication of the Commissioner of Revenue dated 15.03.2011, wedirect that the police register an FIR based on this letter within periodof one week from the date of this judgment. This FIR is to be enquiredinto by senior police officer designated by the concerned Commissionerof Police, who is to furnish police report pursuant to investigation withina period of three months from the date on which such officer is appointedto undertake such investigation. If such police report results in primafacie case being made out, and if the Judicial Magistrate takes cognizanceof such charge-sheet, charges will then be framed and trial held. In themeanwhile, the trial in FIR dated 22.12.2009, which has been stayed bythis Court by an order dated 24.04.2019, will not be commenced until thepolice report is submitted in the FIR to be lodged by the police pursuantto this judgment. The learned Magistrate may then decide, in the eventthat cognizance is taken of the police report in the FIR to be filed, as towhether joint-trial should take place, or whether separate trials beconducted one after the other pursuant to both the FIRs.

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

Appeals disposed of.