IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.713 of 2026

Reserved on: 01.09.2026

Date of Decision: 09.09.2026

Date of uploading: 09.09.2026

_______________________________________________________

Arshad Ali

…….Petitioner

Versus

State of H.P. & Ors.

…..Respondents

_______________________________________________________

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

1

Yes.

For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate with

Mr. Rakesh Chauhan, Advocate.

For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar,

Additional Advocates General with Mr. Ravi

Chauhan & Mr. Anish Banshtu, Deputy

Advocates General, for the respondent-State.

Mr. Ajay Kochhar, Senior Advocate with Mr.

Anubhav Chopra and Ms. Preetika Thakur,

Advocates.

_______________________________________________________

Sandeep Sharma, Judge(oral):

Instant petition filed under Section 528 of Bharatiya

Nagarik Suraksha Sanhita, 2023, (hereinafter referred to as "the

BNSS"), lays challenge to order dated 08.06.2026 passed by the

learned Additional Sessions Judge, Paonta Sahib, District Sirmaur, in

Criminal Miscellaneous Application No. 125 of 2026, thereby

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Whether the reporters of the local papers may be allowed to see the judgment?

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dismissing the application filed by the petitioner, (hereinafter referred

to as "the complainant"), under Section 193(9) of BNSS, seeking

directions for further investigation in respect to FIR No. 249 of 2025,

dated 05.11.2025, registered under Sections 103(1), 109, and 61(2)

of the BNS.

2. For having bird’s eye view, facts relevant for adjudication

of the case at hand are that on 05.11.2025, FIR No. 249 was

registered against respondents No. 2 and 3 (hereinafter referred to as

"the accused") on the allegation of committing murder of the

deceased Ashraf Ali, i.e., the brother of the complainant. Police, after

having conducted the investigation, filed a charge-sheet under

Section 105 of the BNSS against the accused in the court of the

learned ACJM, Court No. 1, Paonta Sahib, on 02.02.2026, from

where it was further committed to the court of the learned Additional

Sessions Judge, Paonta Sahib, District Sirmaur, on 19.03.2026. In the

month of May 2026, the brother of the deceased Ashraf Ali, i.e.,

complainant herein, filed an application under Section 193(9) of the

BNSS (Annexure P-2), seeking therein direction to Investigating

Officer for further investigation in the FIR detailed hereinabove.

3. In a nutshell, complainant alleged in the application that

investigating officer has not conducted the investigation in accordance

with law and has arrived at a wrong conclusion that offence, if any, is

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made out under Section 105 of BNS, not under Section 103 of BNS.

Complainant further alleged that Investigating Officer failed to send

the mobile phone of the accused to FSL Junga, in which whole

incident was recorded by the accused themselves, which is a material

piece of evidence, and they had also circulated the video to various

persons. Complainant also claimed in the application that allegations

in the FIR clearly disclose the commission of offence punishable

under Section 103 of the BNS, as the act of the accused clearly

discloses intention, manner of assault, motive and prior enmity. He

further alleged that Investigating Officer did not collect the CCTV

footage of the Behral barrier and other relevant points where the

incident took place, which may prove the fact that accused were

chasing the deceased from his house with an intention to commit

murder. Complainant further alleged that Investigating Officer

deliberately did not record the statement of a person, namely Sher

Khan, who was also present on the spot and had witnessed the whole

incident. Complainant alleged that Investigating Officer had

deliberately ignored material evidence, which prejudiced the case of

the victim, because a fair investigation was not conducted. He also

pleaded that the nature of the injuries clearly shows intention and

knowledge of the accused to commit murder. Lastly, complainant

alleged that it has come in laboratory examination results that parcel

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P-6 containing blood sample of the deceased was having 53.35

mg/dL quantity of ethyl alcohol, whereas deceased had never

consumed alcohol. He stated that blood sample is also required to be

examined again, as on the same day one more sample was sent to

laboratory and it is quite possible that samples may have been

interchanged.

4. Since application for further investigation was filed by the

complainant in his individual capacity, court concerned, besides

issuing notice to the accused, also issued notice to prosecution.

Though no reply to the application was filed, but learned counsel

representing the accused contested the application. Learned

Additional Sessions Judge, while placing reliance upon judgment

passed by the Hon'ble Apex Court in Amrutbhai Shambhubhai Patel

v. Sumanbhai Kantibhai Patel & Others, (2017) 4 SCC 177, vide

order impugned in the instant proceedings, proceeded to dismiss the

application on two grounds:

 First, application, praying therein for further investigation,

has been filed after presentation of charge sheet,

cognizance whereof was taken by the learned ACJM,

Paonta Sahib, and after presentation, accused were

produced and copies of challan along with relevant

documents were supplied to them.

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 Second, an application, seeking therein further

investigation is not maintainable if filed at the behest of

the complainant; rather, such prayer can only be made by

the Investigating Agency

5. In the aforesaid background, petitioner has approached

this court in the instant proceedings, praying therein to set aside the

aforesaid order and pass appropriate orders for further investigation in

the FIR detailed hereinabove.

6. In nutshell case of the complainant, as has been

highlighted in the grounds of the petition and further canvassed by Mr.

Sanjeev Bhushan, learned Senior Counsel duly assisted by Mr.

Rakesh Chauhan, learned counsel for the complainant, is that

Investigating agency has not conducted a fare investigation, as a

result thereof, great prejudice has been caused to the complainant as

well as other family members of the deceased, who was brutally

murdered by the accused. Mr. Bhushan submitted that the entire

incident was recorded by the accused themselves on their mobile

phones, while they were chasing the deceased. He submitted that

after the alleged incident, the accused themselves circulated the

video on social media, which clearly shows that the accused

intentionally hit the deceased. He further submitted that in the

aforesaid video, one of the accused can be seen clearly asking

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another accused to crush the deceased (Kuchal de). Mr. Bhushan

submitted that though complainant handed over afore video clip to the

investigating officer, but still he did not take any cognizance of the

same. He submitted that once it is evident from aforesaid video that

accused deliberately hit the deceased with intention to murder him,

there was no occasion, if any, for the Investigating Agency to present

challan under Section 105 of BNS against the accused, rather, they

ought to have been charge-sheeted under Section 103(1) of BNSS.

He submitted that since mobile phones of the accused were a

material piece of evidence, they were required to be sent to the FSL,

especially when a video clip recorded on the mobile phone of the

accused was shown to the police, wherein it is clearly evident that the

accused deliberately hit the deceased twice with the intention to

murder him. Mr. Bhushan further submitted that in the case at hand,

the Investigating Officer deliberately did not collect the CCTV footage

of Behral barrier and other relevant points where the incident took

place. He submitted that had investigating officer collected the CCTV

footage of the places detailed hereinabove, he could have easily

proved that accused persons were actually chasing the deceased

from his house and they had the intention to kill him. He submitted

that Investigating Officer purposefully failed to record the statement of

one of the witnesses, Sh. Sher Khan, who, being present on the spot,

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was an eyewitness and non-recording of his statement has actually

caused great prejudice to the complainant's family. He submitted that

deceased never consumed alcohol, but laboratory result adduced on

record along with charge sheet shows that he had consumed liquor.

He submitted that since different samples were sent on the same day,

there is a possibility that blood samples got intermingled, which

clearly vitiates the investigation. Lastly, Mr. Bhushan also submitted

that the reliance placed upon the judgment passed by the Hon'ble

Apex Court in Amrutbhai Shambhubhai Patel (supra) is wholly

misplaced for the reason that in that case, application for further

investigation was filed at the stage of final arguments, whereas in the

present case, it was filed before the framing of charges. Mr. Bhushan

further submitted that subsequent to judgment delivered in

Amrutbhai Shambhubhai Patel (supra), three-Judge Bench of

Hon'ble Apex Court passed judgment in case titled Vinubhai

Haribhai Malaviya and Others v. State of Gujarat and Others,

(2019) 17 SCC 1, wherein observations made in Amrutbhai were

overruled/disapproved. He also placed reliance upon the latest

judgment passed by the Hon'ble Apex Court in SLP (Criminal) No(s).

7968 of 2016, titled Rampal Gautam & Ors. v. The State by

Mahadevapura Police Station, Mahadevapura Bengaluru & Anr .,

to state that an application under Section 193(3) of the BNSS,

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seeking therein further investigation can also be filed by the

complainant, provided he is able to establish on record that the

investigation is faulty and the Investigating Officer has failed to collect

a valuable piece of evidence.

7. To the contrary, Sh. Ajay Kochhar, learned Senior

Counsel, duly assisted by Mr. Anubhav Chopra, learned counsel for

the accused, while supporting the impugned order passed by the

Additional Sessions Judge, Paonta Sahib, vehemently argued that by

now it is well settled that no order for further investigation can be

passed by competent court of law on the request of the complainant,

rather, such power can be exercised by competent court of law suo

motu or on the basis of application, if any, filed by the investigating

agency. He submitted that law laid down by the Hon'ble Apex Court in

Amrutbhai Shambhubhai Patel (surpa) still holds good and has not

been interfered/ diluted in the subsequent judgments, if any, passed

by the Hon'ble Apex Court. He submitted that since in the case at

hand, cognizance of the charge sheet submitted by the police stood

taken by the court of learned ACJM on 02.02.2026 and thereafter

process was issued against the accused and they were also supplied

copies of charge sheet along with relevant documents, application

filed before the learned Additional Sessions Judge was not

maintainable, and as such, no illegality can be said to have been

9

committed by the court below, while passing the impugned order. In

support of his aforesaid contentions, he placed reliance upon the

following judgments passed in Athul Rao v. State of Karnataka and

Anr., (2018) 14 SCC 298; Randhir Singh Rana v. State, (1997) 1

SCC 361; Mary v. State of Kerala, 2017 Supreme (Online) (Ker)

49601; M. Vishwanathan v. State Represented by Inspector of

Police, 2017 Supreme (Mad) 2450; and E. Jeevan Kumar v. State,

2011 CrLJ 418.

8. I have heard learned counsel for the parties and gone

through the record.

9. Precisely, the question, which needs to be determined in

the case at hand, is “whether Magistrate / Sessions Judge can order

further investigation on an application moved / filed by the

complainant, if yes, at what stage such application can be

entertained?” In the case at hand, an application under Section 193(9)

of the BNSS, praying therein for further investigation filed at the

behest of the complainant, has been rejected by the learned

Additional Sessions Judge primarily on two grounds: first, that the

application has been filed after the presentation of the charge-sheet,

cognizance whereof stood taken by the learned ACJM. Besides

above, court has also held that request for further investigation under

Section 193(9) of BNSS has been made by the complainant/informant

10

and not by the investigating agency. While drawing aforesaid

conclusion, heavy reliance has been placed by the learned Additional

Sessions Judge in Amrutbhai Shambhubhai Patel (supra). Relevant

paras whereof are reproduced hereinbelow: 37, 38, and 47.

“37. After referring to Section 156(3) in particular and Section

190 Cr.P.C, this Court reverted to Section 173 and ruled that a

very wide power was vested in the investigating agency to

conduct further investigation after it had filed its report in terms

of sub-Section (2) thereof. It held on an elucidation of the

contents of Section 173(8) that the investigating agency was

thus competent to file a report supplementary to its primary

report and that the former was to be treated by the Court in

continuation of the latter, and that on an examination thereof

and following the application of mind, it ought to proceed to

hear the case in the manner prescribed. It was elaborated that

after taking cognizance of the offence, the next step was to

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

Court found, upon consideration of the record of the case and

the documents submitted therewith, that there did exist no

sufficient ground to proceed against the accused, in which

case it would discharge him on reasons to be recorded in

terms of Section 227 of the Code. Alluding to the text of

Section 228 of the Code which is to the effect that if a Judge is

of the opinion that there is ground for presuming that the

accused had committed an offence, he could frame a charge

and try him, this Court propounded that the word “presuming”

did imply that the opinion was to be formed on the basis of the

records of the case and the documents submitted therewith

along with the plea of the defence to a limited extent, if offered

at that stage. The view of this Court in Amit Kapoor v. Ramesh

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Chander and another, (2012) 9 SCC 460 underlining the

obligation of the Court to consider the record of the case and

the documents submitted therewith to form an opinion as to

whether there did exist or not any sufficient ground to proceed

against an accused was underlined. This aspect was dilated

upon logically to respond to the query in the contextual facts

as to whether both the reports submitted by the Special Cell of

the Delhi Police and the CBI were required to be taken note of

by the Trial Court.

38. Additionally, this Court also dwelt upon the three facets of

investigation in succession i.e. (i) initial investigation (ii) further

investigation and (iii) fresh or de novo or reinvestigation.

Whereas initial investigation was alluded to be one conducted

in furtherance of registration of an FIR leading to a final report

under Section 173(2) of the Code, further investigation was a

phenomenon where the investigating officer would obtain

further oral or documentary evidence after the final report had

already been submitted, so much so that the report on the

basis of the subsequent disclosures/discoveries by way of

such evidence would be in consolidation and in continuation of

the previous investigation and the report yielded thereby.

“Fresh investigation” “reinvestigation” “de novo investigation”,

however is an exercise, which it was held, could neither be

undertaken by the investigating agency suo motu nor could be

ordered by the Magistrate and that it was essentially within the

domain of the higher judiciary to direct the same and that too

under limited compelling circumstances warranting such probe

to ensure a just and fair investigation and trial. Adverting to

Section 173 of the Code again, this Court recalled its

observations in State of Punjab v. CBI and others, (2011) 9

SCC 182 that not only the police had the power to conduct

further investigation in terms of Section 173(8) of the Code,

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even the Trial Court could direct further investigation in

contradistinction to fresh investigation even where the report

had been filed.

47. As adumbrated hereinabove, Chapter XIV of the Code

delineates the conditions requisite for initiation of proceedings

before a Magistrate. Section 190, which deals with cognizance

of offences by Magistrate, sets out that any Magistrate of the

first Class and any Magistrate of the second class specially

empowered, as contemplated, may take cognizance of any

offence either upon receiving a complaint of facts which

constitute such offence or upon a police report of such facts or

upon information received from any person other than the

police officer, or upon his own knowledge that such offence

had been committed. Section 156, which equips a police

officer with the power to investigate a cognizable case

mandates vide sub- section 3 thereof that any Magistrate

empowered under Section 190 may order such an

investigation. The procedure for dealing with complaints to

Magistrate is lodged under Chapter XV of the Code. Section

202 appearing therein predicates that any Magistrate on

receipt of a complaint of an offence of which he is authorized

to take cognizance or which had been made over to him under

Section 192, may, if he thinks fit and shall in a case where the

accused is residing at a place beyond the area in which he

exercises his jurisdiction, postpone the issue of process

against the accused and either enquire into the case himself

or direct an investigation to be made by a police officer or by

such other person as he thinks fit for the purpose of deciding

whether or not there is sufficient ground for proceeding. The

contents of this text of Section 202(1) of the Code

unmistakeably attest that the investigation that can be directed

by the Magistrate, to be undertaken by a police officer would

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essentially be in the form of an enquiry for the singular

purpose of enabling him to decide whether or another there is

sufficient ground for proceeding with the complaint of an

offence, of which he is authorised to take cognizance. This

irrefutably is at the pre-cognizance stage and thus logically

before the issuance of process to the accused and his

attendance in response thereto. As adverted to hereinabove,

whereas Section 311 of the Code empowers a Court at any

stage of any inquiry, trial or other proceeding, to summon any

person as a witness, or examine any person in attendance,

though not summoned as a witness, or recall and re-examine

any person already examined, if construed to be essential to

be just decision of the case, Section 319 authorizes a Court to

proceed against any person, who though not made an

accused appears, in course of the inquiry or trial, to have

committed the same and can be tried together. These two

provisions of the Code explicitly accoutre a Court to summon a

material witness or examine a person present at any stage of

any inquiry, trial or other proceeding, if it considers it to be

essential to the just decision of the case and even proceed

against any person, though not an accused in such enquiry or

trial, if it appears from the evidence available that he had

committed an offence and that he can be tried together with

the other accused persons.

10. The very crux of the aforesaid judgment passed by the

Hon’ble Apex Court is that application for further investigation, if any,

can only be filed by the Investigating Agency, which, after discovery of

material evidence, if any, may approach court concerned for further

investigation. Besides above, it has also been held in aforesaid

14

judgment that further investigation is not permissible at the fag end of

the trial at the instance of complainant.

11. Though having carefully perused the impugned order vis-

à-vis findings/observations made in the aforesaid judgment passed in

Amrutbhai Shambhubhai Patel (supra), no illegality can be said to

have been committed by the court below, while passing the order

impugned in the instant petition, however, having carefully perused

judgment passed by the three-Judge Bench of the Hon’ble Apex

Court in Vinubhai Haribhai Malaviya (supra), which appears to have

escaped the notice of the learned Judge below, this Court is

persuaded to agree with the learned Senior Counsel for the

complainant that further investigation can be ordered at the instance

of the complainant prior to the framing of charge. In Vinubhai

Haribhai Malaviya (supra), Hon’ble Apex Court affirmed some of

observations made in Amrutbhai Shambhubhai Patel (supra) and

reiterated that after framing of charge, there should not be an order

for further investigation. However, it also overruled some of the

observations made in Amrutbhai Shambhubhai Patel (supra),

especially with regard to finding that no further investigation could be

ordered by the Magistrate in cases where, after cognizance is taken,

accused had appeared in pursuance of process being issued. In

nutshell, Hon’ble Apex Court in aforesaid judgment observed that in

15

recent judgments of this Court, no importance has been given to

Article 21 of Constitution of India and the fact that afore article

demands no less than a fair and just investigation. After observing

that power of Magistrate to order further investigation cannot be

curtailed, the Hon’ble Apex Court, on facts of the case, though

refused to continue the order for further investigation sought at the

instance of the accused, but directed the registration of a fresh FIR.

Most importantly, in aforesaid case, Hon’ble Apex Court held that

such power can be exercised suo motu by the Magistrate himself

depending upon facts of each case. Whether further investigation

should or should not be ordered is within the discretion of learned

Magistrate, who will exercise such discretion on facts of each case

and in accordance with law. Relevant paras of the afore judgment are

extracted hereinbelow:-

“38. However, having given our considered thought to the

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

the Magistrate before whom a report under Section 173(2) of

the Code is filed, is empowered in law to direct “further

investigation” and require the police to submit a further or a

supplementary report. A three-Judge Bench of this Court

in Bhagwant Singh [Bhagwant Singh v. Commr. of Police,

(1985) 2 SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain

terms, stated that principle, as aforenoticed.”

16

12. It is also apt to take note of recent judgment passed by

Hon’ble Apex Court in Rampal Gautam (supra), wherein it came to

be ruled that further investigation after filing of the charge sheet and

commencement of trial is permissible in law. While making aforesaid

observation, Hon’ble Apex Court, in aforesaid case, specifically made

reference to its earlier judgment passed in Hasanbhai Valibhai

Qureshi v. State of Gujarat, (2004) 5 SCC 347. Relevant paras of

the afore judgment are extracted hereinbelow:-

“12. Sub-section (8) of Section 173 of the Code permits further

investigation, and even dehors any direction from the Court as

such, it is open to the police to conduct proper investigation,

even after the Court took cognizance of any offence on the

strength of a police report earlier submitted. All the more so, if

as in this case, the Head of the Police Department also was

not satisfied of the propriety or the manner and nature of

investigation already conducted.

13. In Ram Lal Narang v State (Delhi Admn.) (AIR 1979 SC

1791), it was observed by this Court that further investigation

is not altogether ruled out merely because cognizance has

been taken by the Court. When defective investigation comes

to light during course of trial, it may be cured by further

investigation if circumstances so permitted. It would ordinarily

be desirable and all the more so in this case, that police

should inform the Court and seek formal permission to make

further investigation when fresh facts come to light instead of

being silent over the matter keeping in view only the need for

an early trial since an effective trial for real or actual offences

found during course of proper investigation is as much

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relevant, desirable and necessary as an expeditious disposal

of the mater by the Courts. In view of the aforesaid position in

law if there is necessity for further investigation the same can

certainly be done as prescribed by law. The mere fact that

there may be further delay in concluding the trial should not

stand on the way of further investigation if that would help the

Court in arriving at the truth and do real and substantial as

well as effective justice. We make it clear that we have not

expressed any final opinion on the merits of the case.”

13. In afore case, Hon’ble Apex Court held that the mere fact

that there may be further delay in concluding the trial should not stand

in the way of further investigation if that would help the court in

arriving at the truth and doing real, substantial, and effective justice.

Hon’ble Apex Court further held that when a defective investigation

comes to light during the course of a trial, it may be cured by further

investigation if circumstances so permit. It is desirable that the police

should inform the court and seek formal permission to conduct further

investigation when fresh facts come to light, instead of remaining

silent over the matter by merely keeping in view the need for an early

trial.

14. At this stage, this Court also finds it necessary to take

note of the judgments pressed into service by the learned Senior

Counsel representing the accused i.e. Athul Rao v. State of

Karnataka and Anr., (2018) 14 SCC 298; Randhir Singh Rana v.

18

State, (1997) 1 SCC 361; Mary v. State of Kerala, 2017 Supreme

(Online) (Ker) 49601; M. Vishwanathan v. State Represented by

Inspector of Police, 2017 Supreme (Mad) 2450; and E. Jeevan

Kumar v. State, 2011 CrLJ 418. If the afore judgments are read in

entirety, same are based upon the analogy as has been drawn by

Hon’ble Apex Court in Amrutbhai Shambhubhai Patel (supra).

15. In case titled Athul Rao (supra), Hon’ble Apex Court,

taking note of its earlier judgment passed in Amrutbhai

Shambhubhai Patel (supra), held that neither the Magistrate suo

motu nor on an application filed by the complainant can order further

investigation, rather, further investigation in a given case may be

ordered only on the request of the investigating agency, and that too

in circumstances warranting further investigation on the discovery of

material evidence, only to secure fair investigation and trial.

16. Similarly, in Criminal Appeal No. 248 of 1989, titled as

Randhir Singh Rana Vs. The State Being the Delhi

Administration, Hon’ble Apex Court held that Magistrate on his own

cannot order for further investigation, rather same can only be

ordered on an application, if any, filed by the Investigating Agency.

High Court of Kerala in Mary (supra) again placed reliance upon

Amrutbhai Shambhubhai Patel (supra) to conclude that after taking

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cognizance, no court can direct further investigation on the application

of any person except the investigating officer.

17. Similarly, High Court of Madras in M. Vishwanathan

(supra) held that further investigation can only be sought by the

police/prosecution based on additional material or evidence and not

by the aggrieved party after the charge sheet has been filed.

18. At this stage, it is also apt to take note of the judgment

passed by the High Court of Bombay in Criminal Application No.

573/2019, titled Shri Dinesh Kumar Gokuldas Kalantri v. State of

Maharashtra, wherein the aforesaid Court, taking note of all the

judgments passed by the Hon’ble Apex Court as well as various High

Courts referenced hereinabove, held that a complainant's application

under Section 173(8) of the Cr.P.C. [now Section 193(9) of the BNSS]

is maintainable even after the framing of charges, however, the

question of whether to allow such an application depends on the facts

and circumstances of each case. If it is at the fag end of the trial, the

trial court should be reluctant to allow it. Careful perusal of various

judgments passed by the Hon’ble Apex Court, as have been taken

note hereinabove, reveals the following settled legal principles:

 In Amrutbhai Shambhubhai Patel (supra): Further

investigation is not permissible at the fag end of the trial

at the instance of the complainant.

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 In Vinubhai Haribhai Malaviya (supra): After cognizance

is taken, Magistrate can order further investigation at the

instance of the complainant; however, on the specific

facts of that case, the prayer for further investigation was

sought at the instance of the accused and was declined.

 In Rampal Gautam (supra): Though on the facts of the

case, further investigation was disallowed after the

complainant had concluded the evidence, but the Hon’ble

Apex Court held that the filing of an application by the

complainant for further investigation is permissible to

arrive at the truth and to do real and substantial justice.

19. True it is that in Amrutbhai Shambhubhai Patel (supra),

a view was taken by the Hon’ble Apex Court that application, if any,

for further investigation is not maintainable at the behest of the

complainant, rather same can only be filed by the investigating

agency, however, aforesaid finding rendered by the Hon’ble Apex

Court in Amrutbhai Shambhubhai Patel (supra) came to be

overruled by the Hon’ble Apex Court in the subsequent judgment

passed in Vinubhai Haribhai Malaviya (supra), wherein it was held

that even after cognizance is taken, the Magistrate can order further

investigation at the instance of the complainant.

21

20. Though subsequently in Rampal Gautam (supra), which

was also delivered by a three-Judge Bench of the Hon’ble Apex

Court, reference was not made to its earlier judgment in Vinubhai

Haribhai Malaviya (surpa), but Hon’ble Apex Court, taking note of its

observations made in Hasanbhai Valibhai Qureshi (surpa),

categorically held that direction to conduct further investigation, even

after the submission of the charge-sheet and commencement of trial,

is permissible in law, because the prime consideration for directing

further investigation is to arrive at the truth and achieve real and

substantial justice.

21. At this stage, it would be apt to take note of Section

193(9) of BNSS, which reads as under:

(9) Nothing in this section shall be deemed to preclude further

investigation in respect of an offence after a report under sub-

section (3) has been forwarded to the Magistrate and, where

upon such investigation, the officer in charge of the police

station obtains further evidence, oral or documentary, he shall

forward to the Magistrate a further report or reports regarding

such evidence in the form as the State Government may, by

rules, provide; and the provisions of sub-sections (3) to (8)

shall, as far as may be, apply in relation to such report or

reports as they apply in relation to a report forwarded under

sub-section (3):

Provided that further investigation during the trial may be

conducted with the permission of the Court trying the case

and the same shall be completed within a period of ninety

22

days which may be extended with the permission of the

Court.”

22. Careful perusal of aforesaid provision of law clearly

reveals that it is in two parts. Part I provides that "nothing in this

section shall be deemed to preclude further investigation in respect of

an offence after a report under sub-section (2) has been forwarded to

Magistrate". Aforesaid provision of law implies that when charge-

sheet is filed, it does not prevent further investigation. It nowhere

specifies by whom such an investigation can be initiated, that is to

say, whether by the police, by the complainant, or by the Magistrate

suo motu. The key questions that arise are “whether it can be initiated

suo motu by the Magistrate or at the instance of the complainant, and

if so, at what stage?” In the case at hand, court is concerned, with the

fact that whether "investigation can be initiated at the instance of

complainant and that too at the stage after framing of charge?"

23. Part II provides that "where upon such investigation, the

officer in charge of the police station obtains further evidence, oral or

documentary, he shall forward to the Magistrate a further report or

reports regarding such evidence in the form prescribed; and the

provisions of sub-sections (2) to (6) shall, as far as may be, apply in

relation to such report or reports as they apply in relation to a report

forwarded under sub-section (2)".

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24. The aforesaid part clearly provides that the investigation

is always to be conducted by the police, irrespective of whether such

prayer is made by the police or by someone else. Though sub-section

(8) of Section 173 Cr.P.C (corresponding to Section 193(9) of BNSS)

does not use the word "Magistrate", but yet such power can be

exercised by Magistrate. Part II of the aforesaid provision of law

provides that in case the officer in charge of a police station, upon

further investigation, obtains further evidence, oral or documentary,

he shall forward to the Magistrate a further report or reports regarding

such evidence in the form prescribed; whereupon the Magistrate,

taking note of the relevance of such further information or evidence

collected on record vis-à-vis the facts of the case, may order further

investigation. On many occasions, there may be a grievance against

the police, either due to oversight or faulty investigation on account of

some pressure and if complainant comes to know about defective

investigation and he raises a grievance before the Magistrate seized

of the case, such prayer cannot be rejected. Sub-section (8) of

Section 173 (corresponding to Section 193(9) of BNSS) is worded in a

negative way. Instead of saying what is permissible, legislature has

specified what is not prohibited. There is no prohibition contained

therein, and when a Magistrate is seized of the matter, the

complainant is fully justified in approaching the Court of the

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Magistrate at the first instance. Moreover, there are different stages in

a criminal trial. There is a stage for considering and deciding an

application for discharge and a stage for evaluating the material to

satisfy whether a case is made out for the framing of charges;

however, there is no formal mechanism or stage where the Magistrate

is required to independently evaluate whether there are lacunas in the

material collected during the investigation. It is not expected from the

accused to point out any lacuna in the investigation. Similarly, public

prosecutor also proceeds on the basis of papers. It is only police,

which, in the event of getting some additional material, can report to

Magistrate and seek further investigation. The key stakeholder who

remains is the complainant/first informant. In recent criminal

jurisprudence, the victim or complainant is well-recognized and

afforded a right of audience at various stages. Merely because charge

has been framed, it does not mean that the Magistrate must shut his

eyes to glaring lacunas, if any, pointed out by the complainant in the

investigation. It is the duty of the police to ensure a fair investigation

and to rectify any lacunae. Though under relevant provision of law, it

is police, which has every right, but in case police itself is at fault, it is

only complainant, who can approach Magistrate or court concerned.

25. Moreover, under Section 239 of BNSS, court has power

to alter the charge at any stage prior to the pronouncement of

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judgment. There are various provisions embedded in the Code that

are specifically incorporated to secure a fair trial for both the accused

and the complainant. Hence, it cannot be said that complainant's

application under Section 193 (9) of BNSS seeking further

investigation is not maintainable, rather, this court is of the view that it

is not only maintainable, but can also be filed after framing of charge.

However, it is the domain of court concerned to allow such application

or not, because that would depend upon the facts and circumstances

of each case. However, as per law laid down by the Hon’ble Apex

court, as has been discussed hereinabove, application for further

investigation, if any, filed at the fag end of the trial, should not be

entertained.

26. In the instant case, precise grouse of the complainant,

who happens to be the brother of the deceased, is that though there

is overwhelming material available on record, suggestive of the fact

that accused persons named in the FIR murdered the deceased by

crushing him under the tires of their vehicle, but yet police proceeded

to present challan under Section 105 of BNSS. Though record reveals

that during jama talashi of the accused persons, police took into

possession mobile phones of the accused persons, but yet failed to

send the same to FSL Junga. As per complainant, whole incident was

recorded by the accused themselves on their mobile phones, which

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was material piece of evidence, and they also circulated said video to

various persons, but yet no steps, if any, were taken by the police to

send the mobile phones of the accused persons to FSL, Junga, for

expert analysis.

27. At this stage, this court finds it necessary to take note of

the fact that during proceedings of the case at hand, video allegedly

recorded by the accused of the incident was played in the court.

Though authenticity of aforesaid video is yet to be established on

record, but certainly after having seen video played before this Court,

this Court is of the view that had Investigating Agency probed the

matter further by sending mobile phones of the accused persons for

forensic investigation, it would have resulted in fair investigation.

28. Though it has also been alleged that Investigating Officer

did not collect CCTV footage from the Behral barrier and other

relevant points, but having carefully perused charge sheet filed under

Section 193 of BNSS, this Court is not persuaded to agree with

aforesaid allegation of the complainant. Though footage of CCTV at

Behral barrier was taken, but since nothing was visible, same was not

found to be of any help for the case of the prosecution.

29. Similarly, this Court is of the view that no prejudice, if

any, would have been caused to the case of prosecution in case it

had recorded the statement of Sh. Sher Khan, who was alleged to be

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present at the spot of incident. “Whether such person was present on

the spot at relevant time or he had seen the alleged incident with his

eyes?” is a question to be decided by the learned trial Court in totality

of evidence led on record by parties to the dispute.

30. No doubt, in the case at hand, application for further

investigation came to be filed after committal of case to the Court of

learned Additional Sessions Judge, but at the relevant time, charges

were not framed, which came to be framed after passing order

impugned in the instant proceedings.

31. Having taken note of judgments passed by Hon’ble Apex

Court in Vinubhai Haribhai Malaviya (surpa), whereby certain

observations made in Amrutbhai Shambhubhai Patel (supra) came

to be overruled, and judgment passed by the Hon'ble Apex Court in

Rampal Gautam (surpa), this Court is persuaded to conclude that for

ascertaining the truth and doing complete justice, prayer, if any, made

by the complainant for further investigation can be considered even at

the post-trial stage. Fair criminal trial is possible only when it is

preceded by a fair investigation. Fair investigation implies granting

sufficient opportunity to the investigating agency to conduct a

thorough investigation. It also implies extending an opportunity to the

complainant to point out any grave flaw or lapse in the investigation.

However, pointing out faults does not mean that complainant can

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challenge the investigation unless there is a justifiable ground,

thereby doubting the investigation.

32. In the instant case, omission on the part of the police to

send the mobile phones of the accused persons to FSL, wherein

allegedly entire incident has been recorded, certainly creates a doubt

with regard to fair investigation, if any, conducted by the Investigating

Agency. Hence, prayer made on behalf of the complainant for further

investigation ought to have been allowed by the learned trial Court.

33. By now it is well established that High Court, in exercising

its extraordinary powers under Section 482 of Cr.P.C (corresponding

to Section 528 of BNSS), may pass orders to prevent the abuse of the

process of the Court or to secure the ends of justice. These inherent

powers are neither controlled nor limited by any other statutory

provision, but yet High Court is required to exercise such powers

sparingly. The conditions for invoking such powers are embedded

within Section 482 of Cr.P.C (corresponding to Section 528 of BNSS)

itself, allowing the High Court to act only in cases of clear abuse of

process of the Court or where intervention is essential to uphold the

ends of justice.

34. SEE: Ajay Malik v. State of Uttarakhand, 2025 SCC

OnLine SC 185; State of Karnataka v. L. Muniswamy and others,

1977 (2) SCC 699; State of Haryana and others v. Bhajan Lal and

29

others, 1992 Supp (1) SCC 335; Prashant Bharti v. State (NCT of

Delhi); Anand Kumar Mohatta and Anr. v. State (Government of

NCT of Delhi) Department of Home and Anr, AIR 2019 SC 210;

and B.N. John v. State of U.P., 2025 SCC OnLine SC 7.

35. Consequently, in view of detailed discussion made

hereinabove as well as law taken into consideration, this Court, in the

given facts and circumstances, is persuaded to exercise its inherent

power under Section 528 of BNSS to quash and set aside the

impugned order dated 08.06.2024 passed by the learned Additional

Sessions Judge. Ordered accordingly. As a consequence of quashing

of the impugned order detailed hereinabove, the application filed

under Section 193(9) of the BNSS by the complainant is also allowed.

Investigating Agency, i.e. (Officer of Police Station Paonta Sahib), is

directed to conduct further investigation, especially on points raised

by the complainant in the application. Needless to say, further

investigation shall be completed by the Investigating Agency within a

period of 90 days, which can be further extended with the permission

of the Court, if required.

The petition stands disposed of in the aforesaid terms,

along with all pending applications.

(Sandeep Sharma),

Judge

September 09, 2026

(sunil)