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PETITIONER:

RANDHIR SINGH RANA

Vs.

RESPONDENT:

THE STATE BEING THE DELHI ADMINISTRATION.

DATE OF JUDGMENT: 20/12/1996

BENCH:

G.N. RAY, B.L. HANSARIA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

HANSARIA, J.

A peep into a little grey area of the criminal law has

become necessary in this appeal, as we have been called upon

to decided as to whether a Judicial Magistrate, after taking

congnizance of an offence on the basis of a police report

and after appearance of the accused in pursuance of the

process issued, can order of his own further investigation

in the case. That such as power is available to police after

submission of charge-sheet is no longer a debatable question

in view of sub-section (8) of section 173 (in Chapter XII:

Information to Police and their Powers to Investigate) of

the Code of Criminal Procedure, 1973 (hereinafter referred

to as `the Code'). It is also not in dispute that before

taking of cognizance under section 190 (Part of Chapter XIV:

Conditions Requisite for Initiation of Proceedings), the

Magistrate may himself order investigation, as contemplated

by sub-section (3) of section 156 of the Code. Further, in

exercise of power under section 311 finding place in Chapter

XXIV (General Provisions as to Enquiries and Trials), the

court may at any stage of an inquiry, trial or other

proceedings under the Code summon any person as a witness if

his evidence appears to be essential to the just decision of

the case. But in the present appeal the learned Magistrate

ordered for further investigation after the appellant had

made his appearance and the case was otherwise ready for

considering the question whether charge should be framed or

appellant should be discharged.

2. There having been no direct authority of this Court on

the question, it was required to be examined as a matter of

first principle, with the assistance of some related

decisions of this Court and that of the High Court on the

issue at hand. In view of the importance of the point, we

had requested Shri Sudhir Walia, a penal Advocate of the

State of Punjab, to assist us as amicus curiae and he did so

admirably. After the conclusion of the hearing, written

submissions had also been filed on behalf of the respondent-

Delhi Administration, which too we have perused.

3. Coming to the decision of this Court, reference may

first be made to Abhinandan Jha v. Dinesh Mishra, 1967 (3)

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SCR 668 (479) in which it was held that even where on

perusal of the police report to the effect that no case has

been made out for sending up an accused for trial, it is not

open to the Magistrate, despite his having certain

supervisory powers in this regard, to direct the police to

file a charge-sheet because that would amount to encroaching

on the sphere of police. As in the present case the

direction is not to file charge-sheet, what was stated by

the two-Judge Bench has no direct application and cannot

assist the appellant.

4. Shri Vasdev has, however, strongly pressed into service

the summing up of law as to the powers of the Magistrate

relating to ordering of investigation before and after

taking congnizance as finding place in para 15 of Tula Ram

v. Kishore Singh, 1977 (4) SCC 459, in which Fazal Ali, J.

speaking for a two-Judge Bench culled out the following

legal proposition in this regard:

"1. That a Magistrate can order

investigation under Section 156(3)

only at the pre-cognizance stage,

that is to say, before taking

cognizance under Sections 190, 200

and 204 and where a Magistrate

decides to take cognizance under

the provisions of Chapter 14 he is

not entitled in law to order any

investigation under Section 156(3)

though in cases not falling within

the proviso to Section 202 he can

order an investigation by the

police which would be in the nature

of an enquiry as contemplated by

Section 202 of the Code.

2. Where a Magistrate chooses to

take cognizance he can adopt any of

the following alternatives:

(a) He can peruse the complaint and

if satisfied that there are

sufficient grounds for proceeding

he can straightway issue process to

the accused but before he does so

he must comply with the

requirements of Section 200 and

record the evidence of the

complainant or his witnesses.

(b) The Magistrate can postpone the

issue of process and direct an

enquiry by himself.

(c) The Magistrate can postpone the

issue of process and direct an

enquiry by any other person or an

investigation by the police.

3. In case the Magistrate after

considering the statement of the

complainant and the witnesses or as

a result of the investigation and

the enquiry ordered is not

satisfied that there are sufficient

grounds for proceeding he can

dismiss the complaint.

4. Where a Magistrate orders

investigation by the police before

taking congnizance under Section

156(3) of the Code and receives the

report thereupon he can act on the

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report and discharge the accused or

straightway issue process against

the accused or apply his mind to

the complaint filed before him and

take action under Section 190 as

described above."

The aforesaid does show that after cognizance has been

taken and accused has made appearance pursuant to the

process issued against him, the Magistrate was not conceded

the power to order investigation. It may, however, be added

that the point under consideration had not come up for

direct examination in Tula Ram.

5. The decision in Ram Lal Narang v. State (Delhi

Administration), 1979 (2) SCC 322, has laid down that

despite a Magistrate taking cognizance of an offence upon a

police report, the right of police to further investigate

even under the old 1898 Code was not exhaustive and the

police could exercise such right often as necessary when

fresh information came to light. (This position is now

beyond pale of controversy because of sub-section (8) of

section 173 of the new Code.) But then a rider was added

stating that after cognizance has been taken, then with a

view to maintain independence of the magistracy and the

judiciary, interests of the purity of administration of

criminal justice and interests of the comity of the various

agencies and institutions entrusted with different stages of

such administration, it would "ordinarily be desirable that

the police should inform the court and seek formal

permission to make further investigation when fresh facts

come to light". (Pages 337 and 378 of the Report).

6. Question posed by us was if for further investigation,

the police should ordinarily take formal permission of the

court, can the court on its own not ask for further

investigation, if the same be thought necessary to arrive at

a just decision of the case? That the courts are meant to

advance the cause of justice cannot be doubted. It is really

this need of a court of law which had led a Full Bench of

the Punjab and Haryana High Court in State v. Mehar Singh,

1974 Criminal Law Journal 970, to take the view that even

after congnizance has been taken, court can order further

investigation in exercise of inherent power, which was read

in section 561A of the old Code, whose parallel provision in

the new Code is section 422. As to this decision, it has to

be pointed out that in terms both these sections have saved

the inherent power of the High Court only; it is doubtful

whether the said power can be said to inhere in subordinate

criminal courts also.

7. Shri Vasdev took pains, and great pains at that, to

contend that the Code has compartmentalised the powers to be

exercised at different stages of a case, namely, at the time

of cognizance, after cognizance is taken, after appearance

of the accused, and after commencement of trial on charge

being framed. Learned counsel urged, on the basis of decided

cases of this Court, that the power of further investigation

undoubtedly exists in the first stage, may exist at the

second and section 311 permits to examine any witness during

the course of trial. But at the third (intermediate) stage,

this power has not been conferred on a court. All that has

to be done at that stage is to look into the materials

already on record and either frame charge, if a prima facie

case is made out, or discharge the accused bearing in mind

relevant provisions relating to the same incorporated in

Chapter XVII of the Code, titled "The Charge". Of course,

the discharge would not prevent further investigation by

police and submission of charge-sheet also thereafter, if a

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case for the same is made out.

8. The decision pressed into service by Shri Vasdev in

support of the aforesaid submission is the one rendered in

D. Lakshminarayana v. V. Narayana Reddy, AIR 1976 SC 1672.

Our attention has been, invited in particular to what has

been stated in para 17 of the judgment, which reads as

below:

"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 "Of complaints

to Magistrate". The power to order

police investigation under Section

156(3) is different from the power

to direct investigation conferred

by Section 202 (1). The two operate

in distinct spheres at different

stages. The first is exercisable at

the pre-cognizance stage, the

second at the post-congnizance

stage when the Magistrate is in

seisin of the case. That is to say

in the case of a complaint

regarding the commission of a

cognizable offence, the power under

Section 156(3) can be invoked by

the Magistrate before he takes

cognizance of the offence under

Section 190(1)(a). But if he once

takes such cognizance and embarks

upon the procedure embodied in

Chapter XV, he is not competent to

switch back to the pre-cognizance

stage and avail of Section 156(3).

It may be noted further that an

order made under sub-section (3) of

Section 156, is in the nature of a

peremptory reminder or intimation

to the police to exercise their

plenary powers of investigation

under Section 156(1). Such an

investigation embraces the entire

continuous process which begins

with the collection of evidence

under Section 156 and ends with a

report or charge-sheet under

Section 173. On the other hand,

Section 202 comes in at a stage

when some evidence has been

collected by the Magistrate in

proceedings under Chapter XV, but

the same is deemed insufficient to

take a decision as to the next step

in the prescribed procedure. In

such a situation, the Magistrate is

empowered under Section 202 to

direct, within the limits

circumscribed by that section, a

investigation "for the purpose of

deciding whether or not there is

sufficient ground for proceeding."

Thus the object of an investigation

under Section 202 is not to

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initiate a fresh case on police

report but to assist the Magistrate

in completing proceedings already

instituted upon a complaint before

him."

9. Shri Walia, who worked hard to assist the Court,

referred us to the relevant part of the 41st Report of the

Law Commission of India pursuant to whose recommendation

sub-section (8) of section 173 was inserted in the new Code.

But that also does not throw light on the question with

which we are seized. Further, the learned counsel brought to

our notice the Statement of Objects and Reasons, so also the

Notes on the Clauses of the new Code; but there also we find

no light. Of the decisions cited by Shri Walia, the one

nearest to the point is of a learned Judge of Calcutta High

Court in State v. Sankar Halder, 89 CWN 1063, in which it

was held that a court is not debarred from making any order

for further investigation under the provisions of section

173(8) of the Code. But then, that was not a case where

cognizance had been taken and accused had appeared in

pursuant to the process issued. Thus, the decision does not

assist us to answer the question under examination.

10. The decision of this Court in State of Rajasthan v.

Aruna Devi, 1995 (1) SCC 1, to which our attention was

invited by Shri Datta, learned senior counsel appearing for

the State, also is not helpful, because in that case the

power of the police to make further investigation after

cognizance was taken by the Magistrate had come up for

examination. The point involved in present appeal, however,

is relatable not to the power of the police to make further

investigation but of the Magistrate to order for such

investigation.

11. The aforesaid being the legal position as discernible

from the various decisions of this Court and some of the

High Courts, we would agree, as presently advised, with Shri

Vasdev that within the grey area to which we have referred

the Magistrate of his own cannot order for further

investigation. As in the present case the learned Magistrate

had done so, we set aside his order and direct him to

dispose of the case either by framing the charge or

discharge the accused on the basis of materials already on

record. This will be subject to the caveat that even if the

order be of discharge, further investigation by the police

on its own would be permissible, which could even end in

submission of either fresh charge-sheet.

12. The appeal stands allowed accordingly.