Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2040-2041 OF 2012

(Arising out of SLP (Crl.) Nos.9185-9186 of 2009)

Vinay Tyagi … Appellant

Versus

Irshad Ali @ Deepak & Ors. … Respondents

WITH

CRIMINAL APPEAL NOS. 2042-2043 OF 2012

(Arising out of SLP(Crl.) Nos. 9040-9041 of 2009)

CRIMINAL APPEAL NO. 2044 OF 2012

(Arising out of SLP(Crl.) No. 6210 of 2010)

CRIMINAL APPEAL NO. 2045 OF 2012

(Arising out of SLP(Crl.) No. 6212 of 2010)

J U D G M E N T

Swatanter Kumar, J.

1.Leave Granted

2.The following two important questions of law which are

likely to arise more often than not before the courts of

1

Page 2 competent jurisdiction fall for consideration of this Court in the

present appeal :

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

Section 173 of the Code of Criminal Procedure,

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

has the jurisdiction to ignore any one of the

reports, where there are two reports by the

same or different investigating agencies in

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

what effect?

Question No.2 :Whether the Central Bureau of Investigation

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

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

has already been taken by the Court of

competent jurisdiction on the basis of a police

report under Section 173 of the Code?

Facts :-

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

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

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

2

Page 3 capacity for Intelligence Bureau. Primarily, his profession and

means of earning his livelihood was working as a rickshaw

puller. On 11

th

December, 2005, it is stated that he had a

heated conversation with the Intelligence Bureau officials for

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

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

information with respect their activities to the Intelligence

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

and consequently claims that he has been falsely implicated in

the present case. In fact, on 12

th

December, 2005, a report

was lodged regarding disappearance of respondent no.2 by his

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

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

the Prime Minister, Home Minister and Police Commissioner on

7

th

and 10

th

January, 2006, but to no avail. On 9

th

February,

2006, a report was published in the Hindustan Times

newspaper, Delhi Edition, through SHO, Police Station,

Bhajanpura, Delhi with the photograph of respondent no.2

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

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

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

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

3

Page 4 Act and under Section 120B, 121 and 122 of the Indian Penal

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

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

entire record, it was not stated that the respondents were

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

pertinent to refer to the FIR that was registered against the

accused persons, relevant part of which can usefully be

extracted herein: -

“To, the Duty Officer, PS Special Cell, Lodhi

Colony, New Delhi. During the 3

rd

week of

January, 2006 information was received

through Central Intelligence Agency that

militant of Kashmir based Organisation has set

up a base in Delhi. One Irshad Ali @ Deepak is

frequently visiting Kashmir to get arms,

ammuniation and explosives or the instructions

from their Kashmir based Commanders. He is

also visiting different parts of the country to

spread the network of the militant

organizations. As per the directions of senior

officers, a team under the supervision of Sh.

Sanjeev Kumar, ACP Special Cell led by

Inspector Mohan Chand Sharma was formed to

develop this information and identify Irshad and

‘his whereabouts in Sultanpuri area, Secret

sources were deployed. During the course of

developments of information, it came to

knowledge that above noted Irshad Ali @

Deepak is resident of Inder Enclave, Phase-II,

Sultanpuri, Delhi. It also came to notice that

one Mohd. Muarif Qamar @ Nawab r/o

Bhajanpura, Delhi is also associated with the

militant organization. During the development

of this information, it was revealed that both

4

Page 5 Irshad Ali and nawab had gone to J&K on the

directions of their handlers to receive a

consignment of arms and explosives. Today on

February 09, 2006 at about 4 PM, one of these

sources telephonically informed SI Vinay Tyagi

in the office of Special Cell, Lodhi Colony that

Irshad A.li(sic) @ Deepak along with his

associate Mohd. Muarif Qamar @ Nawab R/o

Bajanpura, Delhi is coming from Jammu in JK

SRTC Bus No. JK-02 Y-0299 with a consignment

of explosives, arms & ammunition and will

alight at Mukarba Chowk, near Karnal Bypass in

the evening. This information was recorded in

Daily Dairy (sic) and discussed with senior

officers. A team consisting of Insp. Sanjay Dutt,

myself, SI Subhash Vats, SI Rahul, SI Ravinder

Kumar Tyagi, S.I Dalip Kumar, SI Pawan Kumar,

ASI Anil Tyagi, ASI Shahjahan, HC Krishna Ram,

HC Nagender, HC Rustam, Ct. Rajiv and Ct.

Rajender was constituted to act upon this

information. Thereafter the team members in 3

private vehicles and 2 two wheelers armed with

official weapons as per Malkhana register,

departed from the office of Special Cell, Lodhi

Colony at about 4.30 PM and reached G.T.

Karnal Depot at 5.30 PM where Insp. Sanjay

Dutt met the informer. Insp. Sanjay Dutt asked

6/7 persons to join the police party after

disclosing them about the information. All of

them went away citing genuine excuses. The

police party was briefed by Insp. Sanjay Dutt

and was deployed around Mukarba Chowk,

Interstate Bus Stand. At about 7.35 PM, above

mentioned Irshad and Nawab were identified

by the informer when they had alighted from

the bus No.JK-02 Y-0299 coming from Jammu.

Both were scene (sic) carrying blue and green-

red check coloured airbags each on their right

shoulders. In the meantime, team posted near

by was alerted and when they were about to

cross the outer Ring Road to go towards Rohini

side, were overpowered. Cursory search of the

above-mentioned persons was conducted and

5

Page 6 from the right dhub of the pant worn by Mohd

Muarif Qamar @ Nawab mentioned above,

apprehended by me with the help of Dalip

Kumar, one Chinese pistol star Mark.30 calibre

along with 8 live cartridges in its magazine was

recovered. On measuring the length of the

barrel and body 19.4 cms, magazine 10.8 cms,

butt 8.9 cms and diagonal length of pistol is

21.5 cms Number 19396 is engraved on the

butt of the pistol. On checking the blue

coloured bag recovered from the possession of

Nawab, one white envelope containing non-

electronic detonators, one ABCD green

coloured Timer, one AB cream coloured Timer

was also recovered which was concealed

beneath the layers of clothes including one

light blue coloured shirt and dark gray coloured

pant in the bag, and from the red green

coloured bag recovered from the possession of

Irshad Ali mentioned above, apprehended by SI

Ravinder Tyagi with the help of Ct. Rajender

Kumar, one Chinese pistol star Mark .30 calibre

along with 8 live cartridges in its magazine was

recovered. On measuring the length of the

barrel and body 19.4 cms, magazine 10.8 cms,

butt 8.9 cms and diagonal length of pistol is

21.5 cms, Number 33030545 is engraved on

the barrel and body of the pistol. One white

polythene containing a mixture of black and

white oil based explosive material kept in a

black polythene and was also concealed

beneath the layers of clothes. On weighing the

explosive was found to be 2 kg. Out of this two

samples of 10 gms each were taken out in

white plastic small jars. The remaining

recovered explosive kept back in black

polythene, pulinda prepared and sealed with

the seal of ‘VKT’. Sample explosive were

marked as S1 and S2 and sealed with the seal

of ‘VKT’. The ABCD timer and AB Timer were

kept in a plastic jar and sealed with the seal of

‘VKT’ marked as ‘T’ and 3 non electric

detonators along with envelope were kept in a

6

Page 7 transparent plastic jar with the help of cotton

and sealed with the seal of “VKT’ marked as

‘D’. The recovered Star Mark pistol from the

possession of accused Mohd. Muarif @ Nawab

and Irshad ali were kept in separate pulindas

and marked as M&I respectively and sealed

with the seal of “VKT’. The blue coloured

airbag and clothes recovered from the

possession of accused Mohd. Muarif @ Nawab

and kept in a cloth pulinda and sealed with the

seal of ‘T’ and the green-red colour check bag

recovered from the possession of accused

Irshad Ali containing clothes was kept in a

pulinda sealed with the seal of ‘VKT’ and CFSL

forms were filled-up and sealed with the seal of

“VKT”. Seal after use was handed over to SI

Ravinder Kumar Tyagi. During their

interrogation, both the accused Irshad Ali @

Deepak S/o Mohd. Yunus Ali R/o F-247-A, Inder

Enclave, Phase-II, Sultnpuri, Delhi aged 30

years and Mohd. Muarif Qamar @ Nawab R/o

Vill. Deora Bandhoh, P.O.-Jogiara, PS-Jale, Distt.-

Darbhanga, Bihar, stated that they brought the

recovered consignment of arms, ammunitions

and explosives from J&K from their

Commanders in J&K and was to be kept in safe

custody and was to be used for terrorist activity

in Delhi on the directions of their handlers in

J&K. Militant Irshad Ali and Nawab above

mentioned have kept in their possession

explosives, ABCD Timer, AB Timer, Non

Electronic detonators and arms and

ammunition which were to be used for the

purpose of terrorist activities in order to

overawe the sovereignty, integrity and unity of

India in order to commit terrorist and disruptive

activities and there by committing offences

punishable u/s 121/121A/122/123/120B IPC r/w

4/5 Explosive Substance Act and 25 Arms Act.

Rukka is being sent to you for registration of

the case through SI Ravinder Kumar Tyagi.

Case be registered and further investigation be

handed over to SI Rajpal Dabas, D-882, PIS No.

7

Page 8 28860555 who has already reached at the spot

as per the direction of senior Officers who had

already been informed about the apprehension

and recovery of explosives, arms and

ammunition from their possession. Date and

time of offence. February 09, 2006 at 7.35 PM,

place of occurrence; Outer ring road, Mukarba

Chowk, near Inter State bus stand, Delhi. Date

and time of sending the rukka: 09.02.2006 at

10.15 PM. Sd English SI Vinay Tyagi No. D-

1334, PIS No. 28862091, Special Cell/NDR/OC,

Lodhi Colony, New Delhi dated 09.02.2006.”

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

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

harrowing facts, the factum that both the accused were working

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

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

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

was filed on 25

th

February, 2006 upon which the Delhi High

Court had issued notice to the respondents therein. Upon

receiving the notice, Delhi Police filed its status report before

the High Court reiterating the contents stated in the above FIR

but conceding to the fact that the accused persons were

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

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

the proceedings before the court of competent jurisdiction,

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

8

Page 9 The Special Cell of the Delhi Police, filed a chargesheet before

the trial court on 6

th

May, 2006 when the matter was pending

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

mala fide exercise of power. The High Court on 9

th

May, 2006

passed the following order :

“The Petitioner has filed this petition under

Article 226 of the Constitution of India read with

the Section 482 Cr.P.C. for issuance of Writ,

Order or Direction in the nature of Mandamus

to the Respondents to transfer the investigation

of case FIR No.10/2006 dated 09.02.2006 of the

Police Station Special Cell, under Section

121/121-A/122/123/120-B IPC read with the

Section 4/5 of Explosive Substance Act and

Section 25 of Arms Act to an independent

agency like CBI on the allegation that his

brother Moarif Qamar @ Nawab was falsely

implicated in a serious case like the present

one on the basis of a totally cooked up story.

The above named brother of the Petitioner was

reported to be missing ever since 22.12.2005

and a complaint to that effect was lodged at PS

Bhajanpura, Delhi. It appears that usual

notices, as provided, were issued on order to

search the brother of the Petitioner. Lastly, a

notice was got published by SHO, Bhajanpura,

Delhi in Delhi Hindustan Times in its edition

dated 09.05.2006 which is precisely the date on

which it is alleged that the brother of the

Petitioner and another person were

apprehended by the police when they were

returning from Jammu & Kashmir by Jammu &

Kashmir State Transport Roadways bus near

Kingsway Camp, Mukraba Chowk and a Chinese

made pistol, certain detonators and 2 Kg of

RDX were recovered from the Petitioner’s

brother and 2 Kg of RDX were recovered from

9

Page 10 co-accused Mohd. Irshad Ali. The investigation

leads the police to pinpoint the Petitioner being

a member of terrorist organization, namely Al-

Badar and consequently, after usual

investigation, a charge sheet has been filed

against both the accused persons.

On notice being issued to the

Respondent/State. A status report stands filed

by the Assistant Commissioner of Police,

NDR/OC, Special Cell, Lodhi Colony, Delhi which

has reiterated the allegations about the arrest

of the Petitioner’s brother and Mohd. Irshad Ali

in the above circumstances, the report has,

however sustained the allegation about a report

in regard to the missing of the brother of the

Petitioners having being lodged with the police

as far as on 28.12.2005. The allegations about

the false implication of the Petitioner’s brother

are, however, controverted and denied.

I have heard learned counsel for the

parties. Learned counsel for the Petitioner has

invited the attention of the Court to various

attendant circumstances around the time of the

alleged arrest of the accused persons on

09.02.2006. The circumstances disclosed do

cast a suspicion on the case of the prosecution

in regard to the manner in which Mohd. Moarif

Qamar @ Nawab and the other accused Mohd.

Irshad Ali were apprehended by the officials of

Special Cell and about the recovery of the

contraband articles like explosive and

detonators. The offences under Sections

121/121-A/122/123/120-B IPC read with the

Section 4/5 of Explosive Substance Act and

Section of 25 Arms Act are very grave offences

and may lead to a very severe punishment, if

the charges are established. Therefore, without

commenting any further on the merits of the

matter, this Court is of the considered opinion

that it is a fit case where an inquiry by some

independent agency is called for the allegations

10

Page 11 made in the present petition. Accordingly, the

CBI, in the first instance, is called upon to

undertake an inquiry into the matter and

submit a report to this Court within four weeks.

List on 17

th

July, 2006.

Copy of the Order be forwarded to the Director,

CBI for taking necessary action in the matter.”

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

indicating therein that the alleged recoveries effected from the

accused persons did not inspire confidence and further

investigation was needed. After perusing the records, the High

Court again on 4

th

August, 2008 passed the following order: -

“However, this relief cannot be claimed at this

stage as if there was any error or misconduct or

false implication of the accused on the part of

any police official or the investigating officer

while registering the case and while the

investigation of the case is yet to be

ascertained by the trial court during the trial of

the case. Therefore, this relief being premature

cannot be granted.”

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

on 11

th

November, 2008 stating that the accused persons were

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

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

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

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

11

Page 12 Trial Court in terms of Section 227 of the Code with a prayer

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

should be discharged. This application was opposed by the

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

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

objection if the said accused was discharged. The learned Trial

Court, in its order dated 13

th

February, 2009, opined that the

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

arrest of the accused persons from Mukarba Chowk did not

inspire any confidence but the CBI had not discovered any fact

pertaining to the recovery of the arms and ammunition,

explosive substances and bus tickets etc. from the two accused

persons.

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

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

4

th

August, 2008, the High Court noted that transfer of

investigation from Special Cell to CBI had been directed, and

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

which was pending before the Court of competent jurisdiction

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

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

12

Page 13 closure report and discharge of the accused is premature. The

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

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

stand disposed of.’

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

conclusion can be drawn at this stage to ascertain the

truthfulness of the version of two different agencies’ and fixed

the case for arguments on charge for 28

th

February, 2009.

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

under Section 482 of the Code praying that the proceedings

pending before the Court of Additional Sessions Judge, Delhi,

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

registered as Criminal Miscellaneous Petition No.781 of 2009

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

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

not granted any stay but had finally disposed of the petition

vide its order dated 28

th

August, 2009. The High Court

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

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

the closure report ought to have been considered by the trial

13

Page 14 court. It remanded the case to the trial court while passing the

following order:

“12. In these circumstances, the impugned

order dated 13.02.2009 dismissing the

applications moved by the petitioners for

discharging them is set aside. The case is

remanded back to the Additional Sessions

Judge to proceed further in the matter after

hearing the parties on the basis of the closure

report filed by the CBI dated 11.11.2008 and in

accordance with the provisions contained under

Section 173 and Section 190 of the Code of

Criminal Procedure. In case he accepts the

report, then the matter may come to an end,

subject to his orders, if any, against the erring

officers. However, if he feels that despite the

closure report filed by the CBI, it is a case fit for

proceeding further against the petitioners, he

may pass appropriate orders uninfluenced dby

(sic) what this Court has stated while disposing

of this case. The only rider would be that while

passing the orders the Additional Sessions

Judge would not be influenced by the report of

the Sepcial (sic) Cell in this matter. Parties to

appear before the Trial Judge on 14

th

September, 2009.”

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

matter of the present appeals by special leave.

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

relevant provisions and scheme of the Code in relation to filing

of a report before the court of competent jurisdiction and the

extent of its power to examine that report and pass appropriate

14

Page 15 orders. The criminal investigative machinery is set into motion

by lodging of a First Information Report in relation to

commission of a cognizable offence. Such report may be made

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

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

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

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

person or the person receiving such information in accordance

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

can conduct investigation in any congnizable case without the

orders of the Magistrate. He shall conduct such investigation in

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

accordance with Sections 177 to 189 of the Code. Where

information as contemplated in law is received by an

investigating officer and he has reasons to believe that an

offence has been committed, which he is empowered to

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

the Magistrate and proceed to the spot to investigate the facts

and circumstances of the case and take appropriate measures

for discovery and arrest of the offender. Every report under

Section 157 shall be submitted to the Magistrate in terms of

Section 158 of the Code upon which the Magistrate may direct

15

Page 16 an investigation or may straight away proceed himself or

depute some other magistrate subordinate to him to hold an

inquiry and to dispose of the case in accordance with the

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

proceedings recorded by a police officer cannot be called into

question at any stage on the ground that he was not

empowered to conduct such investigation. The provisions of

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

take cognizance in terms of Section 190, to order investigation

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

provides that subject to the provisions of Chapter XIV of the

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

the second class specifically empowered in this behalf may

take cognizance of any offence upon receipt of a complaint,

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

such facts or upon information received from any person other

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

offence has been committed. The Chief Judicial Magistrate is

competent to empower any Magistrate of the second class to

take cognizance in terms of Section 190. The competence to

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

the empowered Magistrate can take cognizance. After the

16

Page 17 investigation has been completed by the Investigating Officer

and he has prepared a report without unnecessary delay in

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

a Magistrate who is empowered to take cognizance on a police

report. The report so completed should satisfy the

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

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

empowered Magistrate shall proceed further in accordance with

law. The Investigating Officer has been vested with some

definite powers in relation to the manner in which the report

should be completed and it is required that all the documents

on which the prosecution proposes to rely and the statements

of witnesses recorded under Section 161 of the code

accompany the report submitted before the Magistrate, unless

some part thereof is excluded by the Investigating Officer in

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

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

agency to conduct further investigation after it has filed the

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

specifically used the expression ‘nothing in this section shall be

deemed to preclude further investigation in respect of an

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

17

Page 18 to the Magistrate’, which unambiguously indicates the

legislative intent that even after filing of a report before the

court of competent jurisdiction, the Investigating Officer can

still conduct further investigation and where, upon such

investigation, the officer in charge of a police station gets

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

Magistrate a further report or reports regarding such evidence

in the prescribed form. In other words, the investigating

agency is competent to file a supplementary report to its

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

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

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

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

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

applies its mind, duly complies with the requisite formalities of

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

that the copies of the requisite documents, as contemplated

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

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

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

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

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

18

Page 19 the documents submitted therewith, that there exists no

sufficient ground to proceed against the accused, in which case

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

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

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

consideration and hearing as aforesaid, the Judge is of the

opinion that there is ground for presuming that the accused has

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

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

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

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

word ‘presuming’ is a matter which requires serious

deliberation. It is a settled rule of interpretation that the

legislature does not use any expression purposelessly and

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

interpretation, every word should be given its ordinary meaning

unless context to the contrary is specifically stipulated in the

relevant provision. Framing of charge is certainly a matter of

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

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

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

the accused is acquitted giving right to challenge to the

19

Page 20 complainant party, or the State itself, and if the charge is

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

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

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

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

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

opinion that the accused had committed an offence. Such

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

and the documents submitted therewith. To a limited extent,

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

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

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

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

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

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

emphasize that the Court may believe that the accused had

committed an offence, if its ingredients are satisfied with

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

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

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

Court held as under :

20

Page 21 “The above-stated principles clearly show that

inherent as well as revisional jurisdiction should

be exercised cautiously. If the jurisdiction

under Section 482 of the Code in relation to

quashing of an FIR is circumscribed by the

factum and caution afore-noticed, in that event,

the revisional jurisdiction, particularly while

dealing with framing of a charge, has to be

even more limited. Framing of a charge is an

exercise of jurisdiction by the trial court in

terms of Section 228 of the Code, unless the

accused is discharged under Section 227 of the

Code. Under both these provisions, the court is

required to consider the ‘record of the case’

and documents submitted therewith and, after

hearing the parties, may either discharge the

accused or where it appears to the court and in

its opinion there is ground for presuming that

the accused has committed an offence , it shall

frame the charge. Once the facts and

ingredients of the Section exists, then the Court

would be right in presuming that there is

ground to proceed against the accused and

frame the charge accordingly. This

presumption is not a presumption of law as

such. The satisfaction of the court in relation to

the existence of constituents of an offence and

the facts leading to that offence is a sine qua

non for exercise of such jurisdiction. It may

even be weaker than a prima facie case. There

is a fine distinction between the language of

Sections 227 and 228 of the Code. Section 227

is expression of a definite opinion and judgment

of the Court while Section 228 is tentative.

Thus, to say that at the stage of framing of

charge, the Court should form an opinion that

the accused is certainly guilty of committing an

offence, is an approach which is impermissible

in terms of Section 228 of the Code. It may

also be noticed that the revisional jurisdiction

exercised by the High Court is in a way final

and no inter court remedy is available in such

cases. Of course, it may be subject to

21

Page 22 jurisdiction of this court under Article 136 of the

Constitution of India. Normally, a revisional

jurisdiction should be exercised on a question

of law. However, when factual appreciation is

involved, then it must find place in the class of

cases resulting in a perverse finding. Basically,

the power is required to be exercised so that

justice is done and there is no abuse of power

by the court. Merely an apprehension or

suspicion of the same would not be a sufficient

ground for interference in such cases.”

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

concluded that ‘presuming’ is an expression of relevancy and

places some weightage on the consideration of the record

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

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

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

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

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

necessary that at that stage each ingredient of an offence

should be linguistically reproduced in the report and backed

with meticulous facts. Suffice would be substantial compliance

to the requirements of the provisions.

13.Having noticed the provisions and relevant part of the

scheme of the Code, now we must examine the powers of the

Court to direct investigation. Investigation can be ordered in

22

Page 23 varied forms and at different stages. Right at the initial stage

of receiving the FIR or a complaint, the Court can direct

investigation in accordance with the provisions of Section

156(1) in exercise of its powers under Section 156(3) of the

Code. Investigation can be of the following kinds :

(i)Initial Investigation.

(ii)Further Investigation.

(iii)Fresh or de novo or re-investigation.

14.The initial investigation is the one which the empowered

police officer shall conduct in furtherance to registration of an

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

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

the investigation which the empowered officer shall conduct in

furtherance of an order for investigation passed by the court of

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

15.‘Further investigation’ is where the Investigating Officer

obtains further oral or documentary evidence after the final

report has been filed before the Court in terms of Section

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

continuation of a previous investigation and, therefore, is

23

Page 24 understood and described as a ‘further investigation’. Scope of

such investigation is restricted to the discovery of further oral

and documentary evidence. Its purpose is to bring the true

facts before the Court even if they are discovered at a

subsequent stage to the primary investigation. It is commonly

described as ‘supplementary report’. ‘Supplementary report’

would be the correct expression as the subsequent

investigation is meant and intended to supplement the primary

investigation conducted by the empowered police officer.

Another significant feature of further investigation is that it

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

initial investigation conducted by the investigating agency.

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

basis is discovery of fresh evidence and in continuation of the

same offence and chain of events relating to the same

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

understood in complete contradistinction to a ‘reinvestigation’,

‘fresh’ or ‘de novo’ investigation.

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

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

definite order of the court. The order of the Court

24

Page 25 unambiguously should state as to whether the previous

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

acted upon. Neither the Investigating agency nor the

Magistrate has any power to order or conduct ‘fresh

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

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

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

judiciary should always be coupled with a specific direction as

to the fate of the investigation already conducted. The cases

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

This is based upon a fundamental principle of our criminal

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

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

principle flows from the constitutional mandate contained in

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

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

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

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

another independent investigating agency. As already noticed,

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

exercised sparingly. The principle of rarest of rare cases would

squarely apply to such cases. Unless the unfairness of the

25

Page 26 investigation is such that it pricks the judicial conscience of the

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

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

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

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

the responsibility of the investigating agency, but also that of

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

any way hamper the freedom of an individual except in

accordance with law. An equally enforceable canon of the

criminal law is that high responsibility lies upon the

investigating agency not to conduct an investigation in a

tainted or unfair manner. The investigation should not prima

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

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

hors his position and influence in the society. The maxim

contra veritatem lex nunquam aliquid permittit applies to

exercise of powers by the courts while granting approval or

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

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

Court stated the principle that in cases where charge-sheets

have been filed after completion of investigation and request is

made belatedly to reopen the investigation, such investigation

26

Page 27 being entrusted to a specialized agency would normally be

declined by the court of competent jurisdiction but

nevertheless in a given situation to do justice between the

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

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

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

where allegations were made against a police officer, the Court

ordered the investigation to be transferred to CBI with an intent

to maintain credibility of investigation, public confidence and in

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

such jurisdiction but the expression ‘ordinarily’ means normally

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

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

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

special circumstances exist, the court may exercise its

jurisdiction to direct ‘fresh investigation’ and even transfer

cases to courts of higher jurisdiction which may pass such

directions.

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

can be filed by an investigating agency under the scheme of

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

27

Page 28 required to file before the Magistrate right at the threshold and

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

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

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

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

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

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

accused to trial or discharge him as envisaged by Section 227

of the Code.

18.Next question that comes up for consideration of this

Court is whether the empowered Magistrate has the jurisdiction

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

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

consistently is that the learned Magistrate has no jurisdiction to

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

report is filed, the Magistrate has jurisdiction to accept the

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

accepting the report, it has the jurisdiction to discharge the

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

no provisions in the Code which empower the Magistrate to

disturb the status of an accused pending investigation or when

28

Page 29 report is, filed to wipe out the report and its effects in law.

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

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

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

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

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

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

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

Magistrate has jurisdiction under Section 173(8) to direct

further investigation.

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

investigation has been a matter of judicial concern for some

time now. The courts have taken somewhat divergent but not

diametrically opposite views in this regard. Such views can be

reconciled and harmoniously applied without violation of the

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

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

the distinction that exists between ‘reinvestigation’ and ‘further

investigation’. The Court also noticed the settled principle that

the courts subordinate to the High Court do not have the

statutory inherent powers as the High Court does under Section

29

Page 30 482 of the Code and therefore, must exercise their jurisdiction

within the four corners of the Code.

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

Court observed that the police has the power to conduct further

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

opined that even the Trial Court can direct further investigation

in contradistinction to fresh investigation, even where the

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

paragraphs of the judgment wherein the Court while referring

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

(supra) held as under:

“13. It is, however, beyond any cavil that

‘further investigation’ and ‘reinvestigation’

stand on different footing. It may be that in a

given situation a superior court in exercise of

its constitutional power, namely, under Articles

226 and 32 of the Constitution of India could

direct a ‘State’ to get an offence investigated

and/or further investigated by a different

agency. Direction of a reinvestigation, however,

being forbidden in law, no superior court would

ordinarily issue such a direction. Pasayat, J. in

Ramachandran v. R. Udhayakumar (2008) 5

SCC 513 opined as under: (SCC p. 415, para 7)

‘7. At this juncture it would be

necessary to take note of Section 173 of

the Code. From a plain reading of the

above section it is evident that even after

completion of investigation under sub-

30

Page 31 section (2) of Section 173 of the Code, the

police has right to further investigate

under sub-section (8), but not fresh

investigation or reinvestigation.’

A distinction, therefore, exists between a

reinvestigation and further investigation.

XXX XXX XXX

15. The investigating agency and/or a court

exercise their jurisdiction conferred on them

only in terms of the provisions of the Code. The

courts subordinate to the High Court even do

not have any inherent power under Section 482

of the Code of Criminal Procedure or otherwise.

The precognizance jurisdiction to remand

vested in the subordinate courts, therefore,

must be exercised within the four corners of the

Code.”

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

[(2006) 4 SCC 359], this Court explained the powers that are

vested in a Magistrate upon filing of a report in terms of Section

173(2)(i) and the kind of order that the Court can pass. The

Court held that when a report is filed before a Magistrate, he

may either (i) accept the report and take cognizance of the

offences and issue process; or (ii) may disagree with the report

and drop the proceedings; or (iii) may direct further

investigation under Section 156(3) and require the police to

make a further report.

31

Page 32 23.This judgment, thus, clearly shows that the Court of

Magistrate has a clear power to direct further investigation

when a report is filed under Section 173(2) and may also

exercise such powers with the aid of Section 156(3) of the

Code. The lurking doubt, if any, that remained in giving wider

interpretation to Section 173(8) was removed and controversy

put to an end by the judgment of this Court in the case of

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

Court held that although the said order does not, in specific

terms, mention the power of the court to order further

investigation, the power of the police to conduct further

investigation envisaged therein can be triggered into motion at

the instance of the court. When any such order is passed by

the court, which has the jurisdiction to do so, then such order

should not even be interfered with in exercise of a higher

court’s revisional jurisdiction. Such orders would normally be of

an advantage to achieve the ends of justice. It was clarified,

without ambiguity, that the magistrate, in exercise of powers

under Section 173(8) of the Code can direct the CBI to further

investigate the case and collect further evidence keeping in

view the objections raised by the appellant to the investigation

and the new report to be submitted by the Investigating Officer,

32

Page 33 would be governed by sub-Section (2) to sub-Section (6) of

Section 173 of the Code. There is no occasion for the court to

interpret Section 173(8) of the Code restrictively. After filing of

the final report, the learned Magistrate can also take

cognizance on the basis of the material placed on record by the

investigating agency and it is permissible for him to direct

further investigation. Conduct of proper and fair investigation is

the hallmark of any criminal investigation.

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

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

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

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

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

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

42].

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

(supra), the Magistrate had rejected an application for

reinvestigation filed by the applicant primarily on the ground

that it had no power to review the order passed earlier. This

Court held that it was not a case of review of an order, but was

a case of further investigation as contemplated under Section

33

Page 34 173 of the Code. It permitted further investigation and directed

the report to be filed.

26.Interestingly and more particularly for answering the

question of legal academia that we are dealing with, it may be

noticed that this Court, while pronouncing its judgment in the

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

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

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

While relying upon the three Judge Bench judgment of

Bhagwant Singh (supra), which appears to be a foundational

view for development of law in relation to Section 173 of the

Code, the Court held that the Magistrate could pass an order

for further investigation. The principal question in that case

was whether the Magistrate could drop the proceedings after

filing of a report under Section 173(2), without notice to the

complainant, but in paragraph 4 of the judgment, the three

Judge Bench dealt with the powers of the Magistrate as

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

reproduced for ready reference:-

“4. Now, when the report forwarded by the

officer-in-charge of a police station to the

Magistrate under sub-section (2)(i) of Section

34

Page 35 173 comes up for consideration by the

Magistrate, one of two different situations may

arise. The report may conclude that an offence

appears to have been committed by a

particular person or persons and in such a case,

the Magistrate may do one of three things: (1)

he may accept the report and take cognizance

of the offence and issue process or (2) he may

disagree with the report and drop the

proceeding or (3) he may direct further

investigation under sub-section (3) of Section

156 and require the police to make a further

report. The report may on the other hand state

that, in the opinion of the police, no offence

appears to have been committed and where

such a report has been made, the Magistrate

again has an option to adopt one of three

courses: (1) he may accept the report and drop

the proceeding or (2) he may disagree with the

report and taking the view that there is

sufficient ground for proceeding further, take

cognizance of the offence and issue process or

(3) he may direct further investigation to be

made by the police under sub-section (3) of

Section 156. Where, in either of these two

situations, the Magistrate decides to take

cognizance of the offence and to issue process,

the informant is not prejudicially affected nor is

the injured or in case of death, any relative of

the deceased aggrieved, because cognizance of

the offence is taken by the Magistrate and it is

decided by the Magistrate that the case shall

proceed. But if the Magistrate decides that

there is no sufficient ground for proceeding

further and drops the proceeding or takes the

view that though there is sufficient ground for

proceeding against some, there is no sufficient

ground for proceeding against others

mentioned in the first information report, the

informant would certainly be prejudiced

because the first information report lodged by

him would have failed of its purpose, wholly or

in part. Moreover, when the interest of the

35

Page 36 informant in prompt and effective action being

taken on the first information report lodged by

him is clearly recognised by the provisions

contained in sub-section (2) of Section 154,

sub-section (2) of Section 157 and sub-section

(2)(ii) of Section 173, it must be presumed that

the informant would equally be interested in

seeing that the Magistrate takes cognizance of

the offence and issues process, because that

would be culmination of the first information

report lodged by him. There can. therefore, be

no doubt that when, on a consideration of the

report made by the officer-in-charge of a police

station under sub-section (2)(i) of Section 173,

the Magistrate is not inclined to take

cognizance of the offence and issue process,

the informant must be given an opportunity of

being heard so that he can make his

submissions to persuade the Magistrate to take

cognizance of the offence and issue process.

We are accordingly of the view that in a case

where the Magistrate to whom a report is

forwarded under sub-section (2)(i) of Section

173 decides not to take cognizance of the

offence and to drop the proceeding or takes the

view that there is no sufficient ground for

proceeding against some of the persons

mentioned in the first information report, the

Magistrate must give notice to the informant

and provide him an opportunity to be heard at

the time of consideration of the report. It was

urged before us on behalf of the respondents

that if in such a case notice is required to be

given to the informant, it might result in

unnecessary delay on account of the difficulty

of effecting service of the notice on the

informant. But we do not think this can be

regarded as a valid objection against the view

we are taking, because in any case the action

taken by the police on the first information

report has to be communicated to the

informant and a copy of the report has to be

supplied to him under sub-section (2)(i) of

36

Page 37 Section 173 and if that be so, we do not see any

reason why it should be difficult to serve notice

of the consideration of the report on the

informant. Moreover, in any event, the difficulty

of service of notice on the informant cannot

possibly provide any justification for depriving

the informant of the opportunity of being heard

at the time when the report is considered by

the Magistrate.”

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

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

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

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

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

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

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

investigation into a case on account of the bar contained in

Section 167(2) of the Code, and that a Magistrate could direct

filing of a charge sheet where the police submits a report that

no case had been made out for sending up an accused for trial.

The gist of the view taken in these cases is that a Magistrate

cannot direct reinvestigation and cannot suo moto direct

further investigation.

28.However, having given our considered thought to the

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

37

Page 38 the Magistrate before whom a report under Section 173(2) of

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

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

supplementary report. A three Judge Bench of this Court in the

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

stated that principle, as afore-noticed.

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

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

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

The decision of the Court in Bhagwant Singh (supra) in regard

to the issue in hand cannot be termed as an obiter. The ambit

and scope of the power of a magistrate in terms of Section 173

of the Code was squarely debated before that Court and the

three Judge Bench concluded as afore-noticed. Similar views

having been taken by different Benches of this Court while

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

the doctrine of precedence. To some extent, the view

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

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

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

38

Page 39 30.Having analysed the provisions of the Code and the

various judgments as afore-indicated, we would state the

following conclusions in regard to the powers of a magistrate in

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

156(3) of the Code :

1.The Magistrate has no power to direct ‘reinvestigation’

or ‘fresh investigation’ (de novo) in the case initiated on

the basis of a police report.

2.A Magistrate has the power to direct ‘further

investigation’ after filing of a police report in terms of

Section 173(6) of the Code.

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

the principle of law stated in Bhagwant Singh’s case

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

with the doctrine of precedence.

4.Neither the scheme of the Code nor any specific

provision therein bars exercise of such jurisdiction by

the Magistrate. The language of Section 173(2) cannot

be construed so restrictively as to deprive the

Magistrate of such powers particularly in face of the

39

Page 40 provisions of Section 156(3) and the language of

Section 173(8) itself. In fact, such power would have to

be read into the language of Section 173(8).

5.The Code is a procedural document, thus, it must

receive a construction which would advance the cause

of justice and legislative object sought to be achieved.

It does not stand to reason that the legislature provided

power of further investigation to the police even after

filing a report, but intended to curtail the power of the

Court to the extent that even where the facts of the

case and the ends of justice demand, the Court can still

not direct the investigating agency to conduct further

investigation which it could do on its own.

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

has to seek permission of the Court to continue ‘further

investigation’ and file supplementary chargesheet.

This approach has been approved by this Court in a

number of judgments. This as such would support the

view that we are taking in the present case.

40

Page 41 31.Having discussed the scope of power of the Magistrate

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

kind of reports that are contemplated under the provisions of

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

and the foremost document that reaches the jurisdiction of the

Magistrate is the First Information Report. Then, upon

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

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

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

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

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

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

Magistrate is expected to exercise any of the three options

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

jurisdiction it would exercise has to be in strict consonance with

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

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

be exercised sparingly, in exceptional cases and to achieve the

ends of justice. To provide fair, proper and unquestionable

investigation is the obligation of the investigating agency and

the Court in its supervisory capacity is required to ensure the

same. Further investigation conducted under the orders of the

41

Page 42 Court, including that of the Magistrate or by the police of its

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

supplementary report. Such supplementary report shall be

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

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

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

Code.

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

cumulative effect of the reports and the documents annexed

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

to determine whether there exist grounds to presume that the

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

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

discharge an accused in compliance with the provisions of

Section 227 of the Code.

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

canon of criminal jurisprudence that the superior courts have

the jurisdiction under Section 482 of the Code or even Article

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

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

novo’, and ‘reinvestigation’ are synonymous expressions and

42

Page 43 their result in law would be the same. The superior courts are

even vested with the power of transferring investigation from

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

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

power has to be exercised by the superior courts very sparingly

and with great circumspection.

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

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

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

Magistrate under Section 228 of the Code. Wherever a charge

sheet has been submitted to the Court, even this Court

ordinarily would not reopen the investigation, especially by

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

stated and concluded that in an appropriate case, when the

court feels that the investigation by the police authorities is not

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

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

the Court to hand over the investigation to a specialised

agency. These principles have been reiterated with approval

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

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

43

Page 44 Union of India & Anr.[(1998) 1 SCC 226], Union of India & Ors.

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

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

200].

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

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

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

there is no specific provision for cancellation of the reports,

except that the investigating agency can file a closure report

(where according to the investigating agency, no offence is

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

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

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

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

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

annexed thereto, summon the accused.

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

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

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

finally the manner in which the report so obtained shall be

dealt with. The superior courts can direct conduct of a

44

Page 45 ‘fresh’/‘de novo’ investigation, but unless it specifically directs

that the report already prepared or the investigation so far

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

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

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

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

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

whether a primary report or a report upon ‘further

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

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

order made by the court for reasons like the investigation being

entirely unfair, tainted, undesirable or being based upon no

truth, the court would have to specifically direct that the

investigation or proceedings so conducted shall stand cancelled

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

Court of competent jurisdiction.

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

the scheme of exclusion of documents or statements submitted

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

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

investigating agency to make a request to the Court to exclude

45

Page 46 that part of the statement or record and from providing the

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

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

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

their wisdom, have specifically provided a limited mode of

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

accused and greater public interest being served. This itself is

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

concerned agency. What ultimately is the aim or significance

of the expression ‘fair and proper investigation’ in criminal

jurisprudence? It has a twin purpose. Firstly, the investigation

must be unbiased, honest, just and in accordance with law.

Secondly, the entire emphasis on a fair investigation has to be

to bring out the truth of the case before the court of competent

jurisdiction. Once these twin paradigms of fair investigation

are satisfied, there will be the least requirement for the court of

law to interfere with the investigation, much less quash the

same, or transfer it to another agency. Bringing out the truth

by fair and investigative means in accordance with law would

essentially repel the very basis of an unfair, tainted

investigation or cases of false implication. Thus, it is inevitable

for a court of law to pass a specific order as to the fate of the

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Page 47 investigation, which in its opinion is unfair, tainted and in

violation of the settled principles of investigative canons.

38.Now, we may examine another significant aspect which is

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

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

though there is no specific requirement in the provisions of

Section 173(8) of the Code to conduct ‘further investigation’ or

file supplementary report with the leave of the Court, the

investigating agencies have not only understood but also

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

to conduct ‘further investigation’ and file ‘supplementary

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

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

seeking prior leave of the Court to conduct ‘further

investigation’ and/or to file a ‘supplementary report’ will have

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

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

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

matters which are understood and implemented for a long

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

accepted as part of the interpretative process.

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Page 48 39.Such a view can be supported from two different points of

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

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

and, secondly, the investigating agencies which have also so

understood and applied the principle. The matters which are

understood and implemented as a legal practice and are not

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

such interpretation would be permissible with the aid of

doctrine of contemporanea expositio. Even otherwise, to seek

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

provide adequate safeguard against a suspect/accused.

40.We have already noticed that there is no specific embargo

upon the power of the learned Magistrate to direct ‘further

investigation’ on presentation of a report in terms of Section

173(2) of the Code. Any other approach or interpretation

would be in contradiction to the very language of Section

173(8) and the scheme of the Code for giving precedence to

proper administration of criminal justice. The settled principles

of criminal jurisprudence would support such approach,

particularly when in terms of Section 190 of the Code, the

Magistrate is the competent authority to take cognizance of an

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Page 49 offence. It is the Magistrate who has to decide whether on the

basis of the record and documents produced, an offence is

made out or not, and if made out, what course of law should be

adopted in relation to committal of the case to the court of

competent jurisdiction or to proceed with the trial himself. In

other words, it is the judicial conscience of the Magistrate which

has to be satisfied with reference to the record and the

documents placed before him by the investigating agency, in

coming to the appropriate conclusion in consonance with the

principles of law. It will be a travesty of justice, if the court

cannot be permitted to direct ‘further investigation’ to clear its

doubt and to order the investigating agency to further

substantiate its charge sheet. The satisfaction of the learned

Magistrate is a condition precedent to commencement of

further proceedings before the court of competent jurisdiction.

Whether the Magistrate should direct ‘further investigation’ or

not is again a matter which will depend upon the facts of a

given case. The learned Magistrate or the higher court of

competent jurisdiction would direct ‘further investigation’ or

‘reinvestigation’ as the case may be, on the facts of a given

case. Where the Magistrate can only direct further

investigation, the courts of higher jurisdiction can direct further,

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Page 50 re-investigation or even investigation de novo depending on

the facts of a given case. It will be the specific order of the

court that would determine the nature of investigation. In this

regard, we may refer to the observations made by this court in

the case of Sivanmoorthy and Others v. State represented by

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

discussion, we answer the questions formulated at the opening

of this judgment as follows:

Answer to Question No. 1

The court of competent jurisdiction is duty bound to

consider all reports, entire records and documents submitted

therewith by the Investigating Agency as its report in terms of

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

following exceptions;

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

Magistrate at the request of the prosecution limited to

exclude any document or statement or any part thereof;

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

exercise of its extra-ordinary or inherent jurisdiction directing

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

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Page 51 report or the report submitted on ‘fresh investigation’ or ‘re-

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

court record and be treated as non est.

Answer to Question No. 2

No investigating agency is empowered to conduct a

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

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

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

empowered to pass such orders that aforesaid investigation

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

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

already conducted and the report so filed before the court of

the learned magistrate.

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

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

petitioner had filed the writ petition before the High Court that

the investigation of FIR No. 10/2006 dated 9

th

February, 2006

be transferred to CBI or any other independent investigating

agency providing protection to the petitioners, directing

initiation of appropriate action against the erring police officers

who have registered the case against the petitioner and such

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Page 52 other orders that the court may deem fit and proper in the facts

and circumstances of the case. This petition was filed under

Article 226 of the Constitution read with Section 482 of the

Code on 25

th

February, 2006. The High Court granted no order

either staying the further investigation by the agency, or the

proceedings before the court of competent jurisdiction. The

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

4

th

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

charge sheet before the trial court on 6

th

May, 2006. After

perusing the status report submitted to the High Court, the

High Court vide its Order dated 9

th

May, 2006 had noticed that

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

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

accused were apprehended and recoveries alleged to have

been made from them of articles like explosives and

detonators. After noticing this, the Court directed that without

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

that this was a case where inquiry by some independent

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

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

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

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

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Page 53 court. The status report had also been placed before the High

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

consider it appropriate to pass any directions staying

proceedings before the court of competent jurisdiction.

Despite pendency before the High Court for a substantial period

of time, the CBI took considerable time to conduct its

preliminary inquiry and it is only on 4

th

July, 2007 that the CBI

submitted its preliminary inquiry report before the court. After

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

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

42.In the order dated 24

th

October, 2007, the High Court

noticed that despite the fact that the CBI had taken

considerable time for completing its investigation, it had still

not done so. Noticing that the investigation was handed over

to the CBI on 9

th

May, 2006 and despite extensions it had not

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

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

of the allegations made by the accused in the complaint and

directed the matter to come up on 28

th

November, 2007. The

significant aspect which needs to be noticed is that the Court

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

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Page 54 proceeding, further hoping that CBI shall file supplementary

report or supplementary material before the trial court and the

accused gets an opportunity of case being formally

investigated. However, the pace at which the investigation is

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

getting the records….’

43.This order clearly shows that the High Court contemplated

submission of a supplementary report, which means report in

continuation to the report already submitted under Section

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

44.On 28

th

November, 2007, the case came up for hearing

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

a request that both the accused be discharged. The case

came up for hearing before the High Court on 4

th

August, 2008,

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

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

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

writ petition and while noticing the earlier order dated 4

th

July,

2007 wherein the accused persons had assured the court that

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

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Page 55 CBI investigation was completed, permitted the applicants to

move bail applications as well.

45.The application for discharge filed by the accused persons

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

rejected by the trial court vide its order dated 13

th

February,

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

including the report filed by the Delhi Police under Section

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

contrary view and stated that it was only the closure report

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

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

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

parties to appear before the trial court on 14

th

September,

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

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

Others (supra) to say that once investigation stands transferred

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

investigation and not the Special Cell of the Delhi Police.

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

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

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

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Page 56 judgment on peculiar facts of that case. Secondly, it has no

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

by the police was pending when the investigation was ordered

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

further investigation had to be continued by the CBI and not

the Special Cell of the Delhi Police.

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

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

before the investigation was handed over to CBI to conduct

preliminary inquiry. Furthermore, the final investigation on the

basis of the preliminary report submitted by the CBI had also

not been handed over to CBI at that stage.

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

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

by the court of competent jurisdiction and that too in

accordance with law. Neither the Police nor a specialised

investigating agency has any right to cancel the said Report.

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

order or direction staying further investigation by the Delhi

Police or proceedings before the court of competent

jurisdiction.

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Page 57 49.On the contrary, the court had noticed explicitly in its

order that it was a case of supplementary or further

investigation and filing of a ‘supplementary report’.

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

treating the first report as being withdrawn, cancelled or

capable of being excluded from the records by the implication.

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

to make said orders, the previous as well as supplementary

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

expected to consider for arriving at any appropriate conclusion,

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

CBI itself understood the order of the court and conducted only

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

by the CBI before the High Court on 28

th

November, 2007.

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

entire record, including both the Delhi Police Report filed under

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

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

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

may accept the application of accused for discharge.

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

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Page 58 accordance with law and thirdly, if it is dissatisfied on any

important aspect of investigation already conducted and in its

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

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

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

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

extent and direct the trial court to proceed with the case

further in accordance with law.

…….…………......................J.

(A.K. Patnaik)

...….…………......................J.

(Swatanter Kumar)

New Delhi;

December 13, 2012.

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