Code of Criminal Procedure, 1973 – ss. 169, 173(2), 173(8) – Further Investigation – Whether the High Court was justified in quashing the entire prosecution instituted by the CBI against the accused persons for the alleged offences on the ground that the CBI could not have undertaken further investigation under subsection (8) of s.173 of the Code of Criminal Procedure, 1973 and filed a charge-sheet having once already submitted a final report under sub-section (2) of the s.173 of the CrPC (closure report) – Held: There is no bar against conducting further investigation u/s. 173(8) of the CrPC after the final report submitted u/s. 173(2) of the CrPC has been accepted – Prior to carrying out a further investigation u/s. 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report – Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over – Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution – The principle of double jeopardy would, therefore, not be applicable to further investigation – There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation u/s. 173(8) of the CrPC – Impugned orders passed by the High Court set aside. Code of Criminal Procedure, 1973 – s.173 – Delay in trial on account of further investigation – Held: It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual – Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay – Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case – Though it may be a relevant circumstance in reaching a final verdict.
Code of Criminal Procedure, 1973 – ss. 169, 173 – Distinction between – Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an obligation to submit its report to the Magistrate under Section 173 of the CrPC – Though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear if and when so required before the Magistrate empowered to take cognizance of the offence on a police report and such report is contemplated under Section 173 of the CrPC.
Prevention of Corruption Act, 1988 – Non-compliance to second proviso to s. 17 – A superior police officer of the rank of Superintendent of Police or any officer higher in rank is required to pass an order before an investigation, if any, for offence u/s. 13(1)(e) is commenced – The argument canvassed on behalf of the accused persons is that there is no such order of the police officer not below the rank of Superintendent of Police in the charge-sheet – Held: In the instant case, this issue was not raised before the High Court – Even otherwise, this is a question of fact and a matter of record – If it is the case of the accused that there is no such order on record, the same may be pointed out to the trial court in the course of the trial – It is for the trial court to verify the record, look into it and take an appropriate call on this issue in accordance with law.
Maxim – Nullum tempus aut locus occurrit regi – discussed.
Allowing the appeal, the Court
HELD: Section 169 of CrPC
1. Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an obligation to submit its report to the Magistrate under Section
173 of the CrPC. Thus, though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear if and when so required before the Magistrate empowered to take cognizance of the offence on a police report and such report is contemplated under Section 173 of the CrPC. [Para 39][153-A-B] What is the meaning of the term “Further Investigation”?
2. In Rama Chaudhary Vs. State of Bihar reported in (2009)
6 SCC 346, this Court held that, “further investigation within the meaning of provision of Section 173(8) CrPC is additional; more; or supplemental. “Further investigation”, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.” [Para 48][156-B-C]
What are the alternatives before a Magistrate when a “Final Report” is filed?
3. Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magistrate may either:(1) accept the report and take cognizance of offence and issue process, (2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer, (3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC. (4) may treat the protest complaint as a complaint, and proceed under Sections 200 and
202 of the CrPC. [Para 49][156-C-F]
What is the prime consideration for “Further
Investigation”?
4. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice. [Para 50][156-G-H; 157-A]
5. A conspectus of the various decisions of the Supreme Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report. [Para 76][171-B-C]
6. The final conclusion can be summarized as: (i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted; (ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed; (iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article
20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation; (v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC. [Para 77][171D-G]
Delay in Trial on account of Further Investigation
7. The general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. [Para 84][181-G-H]
Non-compliance of the Second Proviso to Section 17 of the 1988 Act
8. The Second proviso to Section 17 of the 1988 Act directs that the offence referred to under clause (e) of sub section (1) of Section 13 of the 1988 Act shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Thus, from the Second proviso, it is clear that an investigation into the offence referred to in clause (e) of sub section (1) of Section 13 of the 1988 Act even by any police officer enumerated in clauses (a) to (c) or any Police Officer authorized in that behalf by the State Government as per the first proviso, can be undertaken only by an order of the police officer not below the rank of Superintendent of Police. Thus, the Second proviso is in the nature of additional safe guard for the public servant who are accused of the offence punishable under Section 13(1)(e) of the 1988 Act against an investigation by a police officer without the knowledge and consent of superior police officer not below the rank of Superintendent of Police. A superior police officer of the rank of Superintendent of Police or any officer higher in rank is required to pass an order before an investigation, if any, for such offence is commenced. It is needless to point-out that, before directing such investigation, the Superintendent of Police or an officer superior to him is required to apply his mind to the information and come to an opinion that the investigation on such allegations is necessary. The argument canvassed on behalf of the accused persons is that there is no such order of the police officer not below the rank of Superintendent of Police in the chargesheet. This issue was not even raised before the High Court. Even otherwise, this is a question of fact and a matter of record. If it is the case of the accused that there is no such order on record, the same may be pointed out to the trial court in the course of the trial. It is for the trial court to verify the record, look into it and take an appropriate call on this issue in accordance with law. [Para 88][183-F-H; 184-A-D]
Rama Chaudhary Vs. State of Bihar (2009) 6 SCC 346 : [2009] 5 SCR 482; Hasanbhai Valibhai Qureshi v. State of Gujarat and Others (2004) 5 SCC 347 : [2004]
3 SCR 762; Ramchandran v. R. Udhayakumar and
Others (2008) 5 SCC 413 : [2008] 8 SCR 439; K. Chandrasekhar v. State of Kerala and Others (1998) 5 SCC 223 : [1998] 3 SCR 72; Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and Others (1999) 5 SCC 740 : [1999] 3 SCR 870; Hemant Dhasmana v. Central Bureau of
Investigation and Another (2001) 7 SCC 536 : [2001]
1 Suppl. SCR 646; Union Public Service Commission v. S. Papaiah and Others (1997) 7 SCC 614 : [1997] 4 Suppl. SCR 56; Ram Lal Narang v. State (Delhi
Administration) (1979) 2 SCC 322 : [1979] 2 SCR 923; State of Andhra Pradesh v. A.S. Peter (2008) 2 SCC
383 : [2007] 13 SCR 517; Nirmal Singh Kahlon v. State of Punjab and Others (2009) 1 SCC 441 : [2008] 14 SCR 1049; Kari Choudhary v. Mst. Sita Devi and Others (2002) 1 SCC 714 : [2001] 5 Suppl. SCR 588; Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 : [2008] 15 SCR 331; Pooja Pal v. Union of India and Others (2016) 3 SCC 135 : [2016] 11 SCR
560 – relied on.
Vinay Tyagi v. Irshad Ali alias Deepak and Others (2013) 5 SCC 762 : [2012] 13 SCR 1005; Vinubhai Haribhai Malaviya v. State of Gujarat (2019) 17 SCC
1 : [2019] 15 SCR 936; Luckose Zachariah alias Zak Nedumchira Luke and Others v. Joseph Joseph and Others (2022) SCC Online SC 241; H.N. Rishbud v. State of Delhi AIR 1955 SC 196 : [1955] SCR 1150; Kamlapati Trivedi v. State of West Bengal 1980 (2) SCC
91 : [1979] 2 SCR 717; State of Rajasthan v. Aruna Devi and Others (1995) 1 SCC 1 : [1994] 5 Suppl. SCR 274; N.P. Jharia v. State of M.P. (2007) 7 SCC 358 : [2007] 8 SCR 618; Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 : [2007] 8 SCR 582;
Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323 : [1996]
7 Suppl. SCR 432 – referred to.
Divakar Singh v. A. Ramamurthi Naidu AIR 1919 Mad 751; State v. Mehar Singh and Ors. 1974 Crl LJ 970 – referred to.
King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXI
Indian Appeals, 203 – 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.
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