2026 INSC 120 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO……………………………… OF 2026

(ARISING OUT OF SLP (CRIMINAL) NO. 350 OF 2024)

PRAMOD KUMAR & ORS. ….APPELLANT(S)

VERSUS

STATE OF U.P. & ORS. …RESPONDENT(S)

J U D G M E N T

VIJAY BISHNOI, J.

Leave Granted.

2. This appeal has been preferred by the Appellants challenging the

Judgment dated 20.11.2023 (hereinafter referred to as “impugned

judgment”) passed in Criminal Misc. Writ Petition No. 4000 of

2022 by the High Court of Judicature at Allahabad, Lucknow

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Bench (hereinafter referred to as “the High Court”). The writ

petition filed by the Appellants was dismissed by the High Court,

wherein it refused to quash the Orders dated 06.06.2019 and

26.04.2021 passed by the Respondent No. 1 and Respondent No.

4, respectively.

3. The sole question that arises for our consideration in the present

appeal is whether after submitting a final report under Section

173(2) of the Criminal Procedure Code (for short “CrPC”) (also

refer to Section 193(3) of the Bharatiya Nagarik Suraksha Sanhita,

2023 (for short “BNSS”)), the police/investigating agency can

conduct further investigation under Section 173(8) of CrPC (also

refer to Section 193(9) of BNSS) without obtaining the leave of the

Magistrate/ Court concerned?

FACTUAL MATRIX

4. A fascicule of facts pertinent for the disposal of this appeal are

that, on 19.11.2013, an FIR bearing Case Crime No. 70/2013

(hereinafter referred to as “the FIR”) was registered against seven

accused persons including the Appellants herein by the

Respondent No. 6 (hereinafter referred to as “ the original

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complainant”) for the offence punishable under Sections 376D,

352, 504, 506 respectively of the Indian Penal Code, 1860 (for

short, “IPC”) at Mahila Police Station, Sub-district Sadar, District

Firozabad.

5. During the investigation, owing to multiple applications being

moved by the original complainant alleging danger to his life and

his family members’ lives, the investigation was initially

transferred from the Mahila Police Station to the Crime Branch,

Firozabad, and subsequently to the Crime Branch, Mathura.

6. After completion of the investigation, the Investigating Officer

submitted the Final Report No.17/14 dated 30.05.2014

(hereinafter referred to as “the Closure Report”), stating that no

offence was made out against the accused persons (including the

Appellants herein) in light of the contradictions between the

statements of the original complainant under Section 161 and 164

CrPC. The relevant extract of the closure report is reproduced

herein under:

“...On the basis of information of the informant, the aforesaid

case was registered and investigation was undertaken. There

is contradiction between the statements U/s. 161 and 164

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Cr.P.C. of the informant. There is enmity/litigation pending

between the informant and the accused persons. The

statements of the informant are not supported by other

evidences. Hence, the offence is not confirmed. In absence of

evidences, it is impossible to file challan against the accused

persons before the Court. Hence, the case is closed by FR.

Kindly approve it….”

7. After receiving the Closure Report, the Court of First Additional

Civil Judge, (J.D.)/Judicial Magistrate, Firozabad, issued several

notices to the original complainant. However, despite service of

notices, he did not appear before the court, nor did he file any

protest petition. The Court of First Additional Civil Judge,

(J.D.)/Judicial Magistrate, Firozabad, after considering the

Closure Report, has accepted the same vide order dated

14.09.2015, noting that the material on record did not support the

prosecution's case. The relevant extract of the Order is reproduced

herein under:

“....The case file was presented today. Notice has been sent to

the informant several times. Despite the notice has been duly

served to the informant several times, he had not filed any

objection/protest petition against the final report. It is clear

from the case diary and police documents and evidences

available in the file that the statements u/s 161 CrPC and

statements u/s 164 CrPC of the informant and the person with

whom the victim had gone to the bridge on a motorcycle to

search for her brothers, it has been confirmed from her

statements/affidavit, that neither the victim met that day nor

she was taken to the bridge on a motorcycle and none of the

statements of witnesses recorded by the IO have confirmed

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the incident. Even perusal of the medical report does not

confirm any kind of external or internal injury and the

statements made by the victim are also not confirmed by the

medical report. Thus, according to the medical report, no clear

inference can be made that the victim was raped.

It is also clear from the perusal of the file that the informant

had requested for the investigation of the said case, apart by

the local police, shall be conducted by the Crime Branch, on

which the case was investigated by the Crime Branch,

Mathura. The investigation was carried out by several

Investigating Officers of Crime Branch, Mathura and after the

investigation, the mobile phones of the accused were matched

through cell track by Mr. Narendra Singh, and the location of

any of the accused persons was not found at the spot at the

time of the incident, which has been recorded in the case diary

by the IO and any of the witness had not confirmed the

statement of the victim, on the basis of which the final report

in the case No. 17/14 dated 30-5-14 has been submitted by

the IO on 30.05.2014 which prima facie appears to be legal.

Therefore, in compliance of Hon'ble High Court's circular no.

31/2012 Admin, G. II, Allahabad dated 11 -12-2012 and

Hon'ble High Court Allahabad's criminal miscellaneous

petition no. 2520/2012 Pradeep Kumar Srivastava vs. State

of UP and others u/s 482/378/507 Order passed in S.P. No.

dated 27-7-2012 and circular letter no. of Honorable High

Court Allahabad no. 10435 date 03.09.2014 and letter no.

420/2015 dated 17.01.2015, the final report no. 17/14 is

accepted. It should be attached in the file…..”

8. Subsequently, after a span of about 3 years, the original

complainant filed a Criminal Revision Petition (later registered as

Criminal Miscellaneous Case No. 440 of 2017) before the Court of

District and Sessions Judge, Firozabad, for setting aside the

aforesaid order dated 14.09.2015, wherein the Closure Report was

accepted. The said case is presently pending before the Court of

District and Sessions Judge, Firozabad.

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9. Thereafter, one Dr Ashu Kumar filed a complaint before the

National Human Rights Commission (hereinafter referred to as

“NHRC”) alleging several deficiencies in the investigation

conducted by police officials. The Assistant Registrar (Law) of the

NHRC after considering the said complaint, passed an Order dated

06.03.2019, citing several discrepancies in the investigation done

by investigating authority and, consequently, directed the Director

General of Police, Uttar Pradesh (hereinafter referred to as “the

DGP”) to conduct a fact finding enquiry into the conduct of officials

of Police Station Ekka, Police Station Narkhi, by an officer not

below the rank of the Superintendent of Police and submit a report

regarding the same within a period of 6 weeks. The NHRC further

directed the Chief Secretary to pay an amount of Rs. 2 lakhs to the

prosecutrix and Rs. 1 lakh each to the original complainant as well

as the father of the prosecutrix, and submit a compliance report

within 6 weeks.

10. In compliance thereof, the Under Secretary, Government of Uttar

Pradesh, forwarded a letter dated 06.06.2019 to the Director,

CBCID, informing that in pursuance of the directions of the NHRC,

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it has been decided that the matter should be investigated by

CBCID and further directing him to complete the investigation

within a period of 6 weeks and submit a final progress report.

11. In view of the aforesaid, the Under Secretary vide letter dated

12.02.2021, informed the NHRC that an investigation pursuant to

the conduct of the officers involved in the present case is

underway. Further, it was also informed that in order to reveal the

truth of the accusations involved in the case, it is recommended

that further investigation under Section 173(8) should be

conducted in FIR No. 70/2013.

12. With the approval of the Director General of Police, CBCID, an

Inspector of CBCID (hereinafter referred to as “IO”) was nominated

for carrying out further investigation of the present case under

Section 173(8) of the CrPC and pursuantly, the newly appointed

IO filed an application dated 22.04.2021 before the Court of First

Additional Civil Judge (J.D.)/Judicial Magistrate, Firozabad,

seeking permission to conduct further investigation in the instant

case under Section 173(8) of the CrPC.

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13. Thereafter, vide communication dated 26.04.2021, the

Superintendent of Police, Agra informed the Additional

Superintendent of Police/Divisional Officer, Crime Branch, A.A.D.,

Agra, of the nomination of the IO in the present case and also

directed him to make available the special report relating to the

further investigation (in 10 days), the draft of the plan (in 20 days)

and the monthly progress report in the prescribed formats to the

headquarters on time and complete the investigation as soon as

possible and send the final progress to the headquarters.

14. In furtherance of the said investigation, the IO sent a notice to the

accused persons (including the Appellants) for the collection of

their samples to conduct a DNA test. Their blood samples were

collected on 05.05.2022.

15. Consequently, the Appellants filed Criminal Misc. Writ Petition No.

4000 of 2022 before the High Court challenging the Order dated

06.06.2019 and 26.04.2021.

16. The High Court, vide Order dated 23.06.2022, initially granted

interim protection from arrest to the Appellants. However, in the

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same Order, it directed that the investigation shall continue and

that the Appellants shall cooperate with the investigation.

17. During the pendency of the Writ Petition, the Director, Forensic

Science Laboratory, State of Uttar Pradesh, submitted the DNA

Test Report dated 21.09.2022 stating that the accused persons,

including the Appellants, were not the biological father of the fetus

of the prosecutrix.

18. Later, the High Court vide the impugned judgment observed that

the allegations of rape were made against several accused, and the

prosecutrix also filed a protest petition against the final report

submitted by the investigating officer. The DNA sample of the

aborted fetus (resulting from the pregnancy from the alleged rape)

was also preserved, and the Investigating Officer had written to the

Court praying that a DNA test may be carried out to find out who

was actually the accused amongst the several accused, who was

involved in the commission of rape. The High Court, thus, held

that it found no good grounds to entertain the petition and

dismissed the same.

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19. Aggrieved, the Appellants preferred the instant appeal before this

Court. During the pendency of the appeal, this Court vide Order

dated 16.01.2024, issued notice and stayed the operation and

effect of the communications dated 06.06.2019 and 26.04.2021,

and also the investigation in the present case. The relevant portion

is reproduced herein under:

“...Applications seeking exemption from filing C/C of the

impugned judgment and exemption from filing O.T. are

allowed. Issue notice. In the meantime, operation and effect of

the communications dated 06.6.2019 and 26.4.2021 directing

investigation in Case Crime no.70/13 U/s. 376D, 352, 504,

506 IPC registered at PS Mahila Police Station, District

Firozabad shall remain stayed…”

20. Pursuant to the Order dated 16.01.2024, notices were issued to

the Respondents and were served on all except Respondent No. 7.

Respondent No. 6 did not appear before this Court even after

notice was served to him on 30.01.2024. Further, notice could not

be served upon Respondent No. 7 and therefore, a report from the

Trial Court was called upon wherein it was mentioned that as the

notice was unserved with remarks "no such person found".

Consequently, this Court vide Order dated 28.08.2025 deleted the

name of Respondent No. 7 at risk of the Appellants. The relevant

portion of the Order dated 30.09.2024 is reproduced herein under:

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“…Service is complete on respondent nos. 1 to 6 but none has

entered appearance. As per report of concerned Trial Court,

notice could not be served on respondent no.7 due to remarks

"no such person found". However, ld. Counsel for the petitioner

submits that an application for deletion of the name of

respondent no.7 from the array of parties will be filed. Be filed

within one week. If filed, process as per rules. However, if

application is not filed, list again on 06.01.2025…”

Accordingly, vide Order dated 28.08.2025, the name of

Respondent No. 7 was deleted from the appeal. The extract of the

said order is reproduced herein under:

“...Application for deleting the name of respondent no. 7 is

allowed at the risk of the petitioners…”

CONTENTION OF THE PARTIES

21. Mr. Divyesh Pratap Singh, the learned counsel for the Appellants

submitted that the Superintendent of Police, Agra on

recommendation of the State of Uttar Pradesh directed further

investigation under Section 173(8) Cr.P.C. without obtaining prior

permission from the competent Court, even though a closure

report had already been accepted. The Learned counsel for the

Appellant contended that once the final report is accepted, only

the criminal Court has the power to order further investigation and

such power cannot be exercised by the police or any executive

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authority. Further, the so-called “further investigation” is in fact

an impermissible de-novo or fresh investigation, as it was ordered

after about seven years without any new or additional material and

was initiated from the very first stage, including demands for DNA

samples after several years, which amounts to filling up lacunae

in the prosecution case.

22. The Learned Counsel for the Appellants further contended that the

final report dated 30.05.2014 was filed after a thorough

investigation and was accepted by the Court on 14.09.2015 after

due notice to the original informant, who did not file any objection

or a protest petition. It was also contended that the DNA report

dated 21.09.2022 clearly concluded that the accused persons,

including the Appellants, are not the biological fathers of the

prosecutrix’s aborted foetus, which debunks the very genesis of

the case and directly contradicts the allegations of the alleged

incident. The learned counsel placed reliance on the judgment

passed by this Court in Vinay Tyagi v. Irshad Ali, reported in

(2013) 5 SCC 762, wherein it was held that it is a part of procedure

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of the investigating authority to seek leave of the Court before

conducting “further investigation”.

23. The learned Additional Advocate General for the State of U.P., Mr

Apoorva Agarwal, argued that there is no bar under Section 173(8)

against conducting further investigation. It was argued that

“further investigation” is merely a continuation of the earlier

investigation, and there is nothing in the CrPC to suggest that the

Court is obliged to hear the accused while considering an

application for further investigation under Section 173(8) of CrPC.

The learned AAG also placed reliance upon the case of Dharam

Pal v. State of Haryana reported in (2016) 4 SCC 160, wherein

this Court held that the Police Officer has unrestricted power

under Section 173(8) CrPC to conduct further investigation.

24. We have heard the parties and perused the material available on

record.

ANALYSIS

25. The power of the investigation agency to order further investigation

in any criminal case is derived from the aegis of Section 173(8)

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CrPC (also refer to Section 193(9) BNSS), which is reproduced as

follows:

“..(8) Nothing in this section shall be deemed to preclude

further investigation in respect of an offence after a report

under Sub-Section (2) has been forwarded to the Magistrate

and, where upon such investigation, the officer in charge of the

police station obtains further evidence, oral or documentary,

he shall forward to the Magistrate a further report or reports

regarding, such evidence in the form prescribed; and the

provisions of Sub-Sections (2) to (6) shall, as far as may be,

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

relation to a report forwarded under Sub-Section (2).

Thus, the powers of the investigation agency for further

investigation are not in dispute herein. However, what catches

attention here and which is also the crux of the controversy in the

present case, is which authority can pass an order directing the

investigation agency to undertake further investigation under

Section 173(8).

26. The issue regarding the procedure to be followed for directing

further investigation in a case has been dealt by this Court in the

case of Vinay Tyagi (supra), wherein this Court while dealing with

the contours of Section 173(8) relating to further investigation,

propounded that the police ought to follow the procedure of

seeking permission from the Court to conduct “further

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investigation” and file a supplementary chargesheet. The relevant

paragraphs from the judgment are reproduced as under:

“.....40. Having analysed the provisions of the Code and the

various judgments as aforeindicated, we would state the

following conclusions in regard to the powers of a Magistrate

in terms of Section 173(2) read with Section 173(8) and Section

156(3) of the Code:

40.1. The Magistrate has no power to direct “reinvestigation”

or “fresh investigation” (de novo) in the case initiated on the

basis of a police report.

40.2. A Magistrate has the power to direct “further

investigation” after filing of a police report in terms of Section

173(6) of the Code.

40.3. The view expressed in Sub-para 40.2 above is in

conformity with the principle of law stated in Bhagwant Singh

case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 :

1985 SCC (Cri) 267] by a three-Judge Bench and thus in

conformity with the doctrine of precedent.

40.4. Neither the scheme of the Code nor any specific provision

therein bars exercise of such jurisdiction by the Magistrate. The

language of Section 173(2) cannot be construed so restrictively

as to deprive the Magistrate of such powers particularly in face

of the provisions of Section 156(3) and the language of Section

173(8) itself. In fact, such power would have to be read into the

language of Section 173(8).

40.5. The Code is a procedural document, thus, it must receive

a construction which would advance the cause of justice and

legislative object sought to be achieved. It does not stand to

reason that the legislature provided power of further

investigation to the police even after filing a report, but

intended to curtail the power of the court to the extent that even

where the facts of the case and the ends of justice demand, the

court can still not direct the investigating agency to conduct

further investigation which it could do on its own.

40.6. It has been a procedure of propriety that the police has

to seek permission of the court to continue “further

investigation” and file supplementary charge-sheet. This

approach has been approved by this Court in a number of

judgments. This as such would support the view that we are

taking in the present case……” add 49 and 50

(Emphasis Supplied)

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In this very judgment, this Court, while noting that although there

is no explicit mandate under Section 173(8) CrPC to seek the leave

of the Court before conducting further investigation, nevertheless,

over time, a practice has been developed to seek permission of the

Court. Therefore, the practice of seeking the leave of the Court will

have to be read into the provisions of Section 173(8), and it is

essentially a prerequisite for directing further investigation. This

Court therein held as follows:

“…49. Now, we may examine another significant aspect which

is how the provisions of Section 173(8) have been understood

and applied by the courts and investigating agencies. It is true

that though there is no specific requirement in the provisions of

Section 173(8) of the Code to conduct “further investigation” or

file supplementary report with the leave of the court, the

investigating agencies have not only understood but also

adopted it as a legal practice to seek permission of the courts

to conduct “further investigation” and file “supplementary

report” with the leave of the court. The courts, in some of the

decisions, have also taken a similar view. The requirement of

seeking prior leave of the court to conduct “further

investigation” and/or to file a “supplementary report” will have

to be read into, and is a necessary implication of the provisions

of Section 173(8) of the Code. The doctrine of contemporanea

expositio will fully come to the aid of such interpretation as the

matters which are understood and implemented for a long

time, and such practice that is supported by law should be

accepted as part of the interpretative process.

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

view: firstly, through the doctrine of precedent, as aforenoticed,

since quite often the courts have taken such a view, and,

secondly, the investigating agencies which have also so

understood and applied the principle. The matters which are

understood and implemented as a legal practice and are not

opposed to the basic rule of law would be good practice and

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such interpretation would be permissible with the aid of

doctrine of contemporanea expositio. Even otherwise, to seek

such leave of the court would meet the ends of justice and also

provide adequate safeguard against a suspect/accused….”

(Emphasis Supplied)

The proposition of the law laid down in the case of Vinay Tyagi

(supra) has been further affirmed by the Three Judge Bench of this

Court in the case of Vinubhai Haribhai Malviya and Others

versus State of Gujarat and Another, reported in (2019) 17 SCC

1.

27. This Court has dealt with a similar situation in the case of

Peethambaran Versus State Of Kerala & Anr. , reported in the

(2024) 16 SCC 65, wherein the District Police Chief, i.e.,

Superintendent of Police, ordered further investigation. This Court

therein, while quashing the order passed by the District Police

Chief, held that the power to order further investigation rests

either with the Magistrate concerned or a higher court, but not

with an investigation agency. The relevant paragraphs from the

judgment are reproduced as follows:

“…..19. The Chief Police Officer of a district is the

Superintendent of Police who is an officer of the Indian Police

Service. Needless to state, an order from the District Police

Chief is not the same as an order issued by the Magistrate

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concerned. Referring to Vinay Tyagi [Vinay Tyagi v. Irshad Ali,

(2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] , this Court in

Devendra Nath Singh v. State of Bihar [Devendra Nath Singh

v. State of Bihar, (2023) 1 SCC 48 : (2023) 1 SCC (Cri) 270]

noted that there is no specific requirement to seek leave of the

court for further investigation or to file a supplementary report

but the investigating agencies, have not only understood it to

be so but have also adopted the same as a legal requirement.

The doctrine of contemporanea exposito aids such an

interpretation of matters which have been long understood and

implemented in a particular manner to be accepted into the

interpretive process. In other words, the requirement of

permission for further investigation or to file a supplementary

report is accepted within law and is therefore required to be

complied with.

20. In the facts at hand, it is clear that such a permission was

never taken, granted or ordered. Consequently, FR-II is without

basis. In FR-I it has been stated that in the absence of any

documents in respect of the financial transactions, the instant

case may be treated as a false case. This, then would

necessarily imply that after due investigation conducted by a

duly authorised person, the conclusion is that the ingredients

of the section mentioned in the FIR have not been met and no

case is made out.

XXXX

28. In terms of second question, the above discussion makes

clear that the District Police Chief, Kottayam could not have

ordered further investigation, as that power rests either with

the Magistrate concerned or with a higher court and not with

an investigating agency…..”

(Emphasis Supplied)

28. In light of the legal position as settled by this Court through the

above judgments, it is safe to say that the power to direct further

investigation in a case rests solely at the discretion of the

Magistrate/Court concerned. In the event, the police/

investigation agency is of the opinion that further investigation is

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necessary in any particular case to cull out complete facts and

truth in the case, it is binding upon them to file an appropriate

application before the Magistrate/Court, without directing an

order for further investigation by themselves. Once such an

application is filed by the investigation agency, the

Magistrate/Court would apply its judicial mind, in light of the facts

and circumstances of the particular case and the reasons

demonstrated by the investigating agency, in order to exercise its

discretion for exercise of its power to decide whether or not further

investigation is to be ordered under the purview of Section 173(8)

CrPC.

29. In the present case, the Under Secretary of the State of Uttar

Pradesh, vide its letter dated 06.06.2019, directed that the

investigation in the matter would be conducted by the CBCID. The

Under Secretary also recommended that further investigation

under Section 173(8) CrPC be conducted through its letter

addressed to the NHRC dat ed 12.02.2021. Consequently, the

Investigating Officer of the CBCID wrote a letter dated 22.04.2021

to the Judicial Magistrate, Firozabad, requesting to grant

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permission to conduct further investigation u/S. 173(8) CrPC and

provide a copy of the case diary. However, the Court did not pass

any order to the extent of requisitioning the Investigating Officer

to conduct further investigation.

30. Further, vide letter dated 26.04.2021, the Superintendent of Police

informed the Additional Superintendent of Police/Divisional

Officer, Crime Branch, A.A.D., Agra, about the nomination of the

IO in the present case and directed him to complete the

investigation expeditiously, submit monthly progress reports, and

forward the final report upon completion of the investigation.

31. Thus, it is amply clear that the Superintendent of Police acted in

complete defiance of the procedure laid down under the law while

passing orders directing further investigation without seeking

leave of the Court. It is an unbecoming conduct from the officer of

such a rank to exercise unfettered powers, in excess of its

jurisdiction, thereby undermining the authority vested in the

Court of law.

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32. The learned AAG relied upon the judgment of this Court in

Dharam Pal (supra) to suggest that the investigating authority

has unrestricted powers to conduct further investigation and is

only required to inform the Court about the same. However, we

find the reliance placed by learned AAG to be misplaced as the

facts of the said case are completely in contrast with the present

one. In Dharam Pal (supra), this Court was dealing with a

situation wherein the complainant sought transfer of the

investigation to the CBI, alleging several lapses in the

investigation. The High Court declined such a transfer, noting that

the trial had already commenced and several witnesses had been

examined. This Court, therein, while setting aside the judgment of

the High Court, transferred the investigation (de novo) to the CBI

and held that while the constitutional courts can direct fresh/de

novo/reinvestigation. Additionally, in Dharam Pal (supra), this

Court, while referring to Vinay Tyagi (supra), has held that the

Magistrate is empowered to direct “further investigation” as per its

discretion and based upon the facts and circumstances of the

case.

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33. In view of the above discussion, the impugned judgment dated

20.11.2023 passed by the High Court is set aside. In addition to

that, the Orders dated 06.06.2019 and 26.04.2021 passed by the

Respondent No. 1 and Respondent No. 4, respectively, directing

further investigation, are also quashed and set aside.

34. We further make it clear that the opinions expressed herein should

cause no prejudice to the criminal revision preferred by the

original complainant or any other proceeding related to FIR No.

70/2013. The Trial Court shall decide the Criminal Miscellaneous

Case No. 440 of 2017 and any other proceeding, if any, on its own

merits.

35. Accordingly, the appeal is allowed. Pending applications, if any,

shall stand disposed of.

……………………………J.

(RAJESH BINDAL)

…………………………. J.

(VIJAY BISHNOI)

NEW DELHI,

Dated: ---- JANUARY, 2026