Code of Criminal Procedure, 1973: ss. 173(8), 167(2), 227 and 228 – Powers of the Magistrate – Options available to the magistrate at the time when report/challan/charge-sheet is filed by investigating officer before him – On facts, the magistrate while discharging the accused, also passed an order for further investigation and directed the investigating officer to further investigate in the matter and submit the report – Permissibility of – Held: Magistrate cannot suo moto direct for further investigation u/s. 173(8) or direct the re-investigation into a case at the postcognizance stage, when, in exercise of powers u/s. 227, the Magistrate has discharged the accused – On facts, the investigating authority did not apply for further investigation and that the Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is not permissible – Such course of action is beyond the jurisdictional competence of the Magistrate – Thus, the order by the Magistrate ordering further investigation after he discharged the accused, cannot be sustained and is set aside – Investigating officer at liberty to file an appropriate application for further investigation and submit a further report in exercise of powers u/s. 173(8).
Allowing the appeal, the Court
HELD: 1.1 After the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) CrPC, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with GOVT. OF NCT OF DELHI
the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. Having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the pre-cognizance stage. Once the Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) CrPC, Magistrate in exercise of the powers under Section 227 CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the accused can be said to be made at the post-cognizance stage. There is a distinction and/or difference between the precognizance stage and post-cognizance stage and the powers to be exercised by the Magistrate for further investigation at the pre-cognizance stage and post-cognizance stage. The power to order further investigation which may be available to the Magistrate at the pre-cognizance stage may not be available to the Magistrate at the post-cognizance stage, more particularly, when the accused is discharged by him. If the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2)(i) CrPC, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, the Court is afraid that thereafter the Magistrate can suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report. In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 CrPC. However, at the same time, considering the provisions of Section 173(8) CrPC, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the Magistrate thereafter in accordance with law. The Magistrate cannot suo moto direct for further investigation under Section 173(8) CrPC or direct the re-investigation into a case at the postcognizance stage, more particularly when, in exercise of powers u/s. 227 CrPC, the Magistrate discharges the accused. However, Section 173(8) CrPC confers power upon the officer-in-charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under sub-section
(2) of Section 173 of the CrPC. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report under sub-section (2) of Section 173 and even after the discharge of the accused. [Para 7][94-A-H; 95-A-F]
1.2 In the instant case, the investigating authority did not apply for further investigation and that the Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the Magistrate ordering further investigation after he discharges the accused, cannot be sustained. Thus, the judgment and order passed by the High Court confirming an order passed by the Magistrate is quashed and set aside. At the same time, it would always be open for the investigating officer to file an appropriate application for further investigation and undertake further investigation and submit a further report in exercise of powers under Section 173(8) CrPC. [Para 7.1][95-G-H; 96-A-B]
GOVT. OF NCT OF DELHI
Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537 : [1985] 3 SCR 942 ; Reeta Nag v. State of West Bengal (2009) 9 SCC 129 : [2009] 13 SCR 276 ; Vinay Tyagi v. Irshad Ali @ Deepak (2013) 5 SCC
762 : [2012] 13 SCR 1005 ; Vasanti Dubey v. State of Madhya Pradesh (2012) 2 SCC 731 : [2012] 1 SCR
330 ; Amit Kapoor v. Ramesh Chander (2012) 9 SCC
460 : [2012] 7 SCR 988 ; Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 : [1996] 10 Suppl. SCR 880 ; Kishan Lal v. Dharmendra Bafna (2009) 7 SCC 685 : [2009] 11 SCR 234 ; Hemant
Dhasmana v. Central Bureau of Investigation (2001) 7 SCC 536 : [2001] 1 Suppl. SCR 646 ; Sajjan Kumar v. CBI (2010) 9 SCC 368 : [2010] 11 SCR 669 ; Minu Kumari v. State of Bihar (2000) 4 SCC 359 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.