Code of Criminal Procedure, 1973 – ss. 156(1)(3) and 173(8) – The High Court held that the Magistrate does not possess any power to order a further investigation after a charge-sheet is filed and cognizance is taken – Propriety of – Held: Not proper – The Magistrate’s power u/s. 156(3) of the CrP.C. is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the Police takes place – To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police which such Magistrate is to supervise Art.21 of the Constitution mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him u/s.173(2); and which power would continue to ensure in such Magistrate at all stages of the Criminal Proceedings until trial itself commences – Further, the “investigation” referred to in s.156(1) of the CrPC would, as per definition of “investigation” u/s.2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation u/s.173(8) of the Cr.P.C – Constitution of India – Art. 21. Code of Criminal Procedure, 1973 – ss.156(1)(3),173(8) – Penal Code, 1860 – ss. 420, 465, 467, 468, 471, 384 & 571 – After a Police Report – Power of Magistrate to further investigate – A FIR was lodged by a power-of-attorney holder of ‘R’ and ‘S’ who were allegedly residing at ‘UK or USA’ – The FIR narrated that ‘R’ and ‘S’ were independent owners of a agricultural land – It was alleged that heirs of one ‘B’, from whom ‘R’ and ‘S’ had obtained the said agricultural land, along with ‘V’ had hatched a conspiracy and were attempting to extort money from the power-of-attorney holder of ‘R’ and ‘S’ and had tried to grab the said land – Investigation was conducted and charge-sheet was filed – Magistrate took cognizance and issued summons to the accused regarding offences u/ss. 420, 465, 467, 468, 471, 384 & 571 of IPC – Accused persons filed applications for further investigation u/s.173(8) of the Cr.P.C and discharge – Magistrate dismissed the applications – Application by accused to register an FIR or for the Magistrate to order investigation u/s. 156(3) was also rejected – Separate Criminal Revisions for dismissal by Magistrate of further investigation and order rejecting FIR were filed – Second Additional Session Judge went through the application u/s.173(8) and held that a case was made out for further investigation – The High Court held that the Magistrate does not possess any power to order further investigation after a charge-sheet is filed and cognizance is taken – On appeal, held: There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to s.156(3) r/w. s.156(1), s.2(h) and s.173(8) of the Cr.P.C and would be available at all stages of the progress of a criminal cases before the trial actually commences – Whether further investigation should or should not be ordered is within the discretion of the Magistrate who will exercise such discretion on the facts of each case and in accordance with law – In the instant case, the facts alleged in the application for further investigation were facts which pertained to revenue entries made in favour of ‘R’ and ‘S’ and how their claim was false and bogus – Therefore, the facts alleged in the applications for further investigation were in the nature of cross-FIR which was not registered – Further, the Commissioner of the Revenue doubted the order passed by the Revenue Authority and he also stated that one application was filed by widow of ‘B’ in the 2000, who had passed away in the year 1999 which showed that her signature were prima facie forged – Therefore, it does not call for further investigation into the facts alleged in the FIR already filed – However, considering the letter of the Commissioner and other facts, police directed to register an FIR qua facts – Thus, the judgment of the High Court insofar it stated that post-cognizance the Magistrate is denuded of power to order further investigation set aside.
Code of Criminal Procedure, 1973 – Constitution of India – Art. 21 – Fair trial and fair investigation – Held: A fair trial must kick-off only after an investigation is itself fair and just – The ultimate aim of all investigation and inquiry whether by the police or by the Magistrate, is to ensure that those who have not are not arraigned to stand trial – That this is the minimal procedural requirement that is the fundamental requirement of Art. 21 of Constitution cannot be doubted – It is the hovering omnipresence of Art. 21 over the Cr.P.C that must needs inform the interpretation of all the provisions of the Cr.P.C, so as to ensure that Art. 21 is followed both in letter and in spirit.
Disposing of the appeals, the Court
HELD: 1. With the introduction of Section 173(8) in the Code of Criminal Procedure, 1973 the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question was as to whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173. [Para 19] [956-E]
2. The Magistrate’s power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) of the CrPC would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC. [Para 23] [960-D-F]
3. In Union Public Service Commission v. S. Papaiah this Court dealt with a case in which the Central Bureau of Investigation had submitted a closure report. It then quoted from a Three Judge Bench judgment in Bhagwant Singh v. Commissioner of Police and Anr. in which this Court stated that a Magistrate, in dealing with a report from the police under Section 173, can adopt one of three courses - (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The Court then went on to hold that where objections have been furnished by the complainant, i.e. the Union Public Service Commission, against the closure report of the police, the Magistrate could, in exercise of powers under Section 173(8) of the CrPC, direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the complainant. [Para 28] [965-C-E]
4. There is no good reason given by the Court in the decisions in Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel, Athul Rao v. State of Karnataka and Anr. and Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri, Samaj Parivartan Samudaya, Vinay Tyagi and Hardeep Singh; Hardeep Singh having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi. Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel, Athul Rao and Bikash Ranjan Rout have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) and Reeta Nag v. State of West Bengal and Ors. also stand overruled. [Para 38] [985-G-H; 986A-G]
5. When this Court comes to the facts of this case, it is clear that the FIR dated 22.12.2009 is concerned with two criminal acts, namely, the preparing of fake and bogus ‘Satakhat’ and Power-of-Attorney in respect of the agricultural land in question, and the demanding of an amount of Rs. 2.5 crores as an attempt to extort money by the accused persons. The facts that are alleged in the application for further investigation are facts which pertain to revenue entries having been made in favour of ‘R’ and ‘S’ and how their claim over the same land is false and bogus. Respondents are therefore, right in submitting that the facts alleged in the applications for further investigation are really in the nature of a cross-FIR which has never been registered. In fact, the communication of the Commissioner of Revenue, dated 15.03.2011 to the Collector, - so strongly relied upon by appellants - bears this out. In this communication, the Commissioner doubts that a particular order dated 14.04.1976 passed by a revenue authority ever existed, and that by making an application in the name of the long since deceased ‘B’ in 2010, for getting a copy of Form No.3 would, prima facie, amount to a criminal offence. Further, the Commissioner goes on to state that B’s widow, who had passed away in December 1999, could not possibly have made an application in the year 2000; which shows that her signature is also prima facie forged. Further, the said ‘R’ and ‘S’ Patel are at present 48 and 53 years old, and if they could be said to be in possession of the said agricultural land since 1934, they could be said to be in possession at a time when they were not yet born. Further, since these two gentlemen were abroad from the very beginning, it is stated that they could not possibly be farmers cultivating agricultural land. [Para 41] [987-F-H; 988-A-D]
6. Given the allegations in the communication of 15.03.2011, this Court is of the view that this is not a case which calls for any further investigation into the facts alleged in the FIR lodged on 22.12.2009. Yet, having regard to what is stated by the Commissioner in the said letter, this Court is of the view that the police be directed to register an FIR qua these facts, which needs to be investigated by a senior police officer nominated by the concerned Commissioner of Police. [Para 42] [988-G-H; 989-A] Pooja Pal v. UOI (2016) 3 SCC 135 : [2016] 11 SCR 560; State of Bihar v. J.A.C. Saldhana and Ors. (1980)
1 SCC 554 : [1980] 2 SCR 16 ; Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409 : [2007] 12 SCR 1100 ; Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322 ; H.N. Rishbud v. State of Delhi AIR 1955 SC 196 : [1955] SCR 1150 ; Union Public Service Commission v. S. Papaiah (1997) 7 SCC 614 : [1997] 4 Suppl. SCR 56; Bhagwant Singh v.
Commissioner of Police and Anr. (1985) 2 SCC 357: [1985] 3 SCR 942; Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 : [2004] 3 SCR
762 ; Hemant Dhasmana v. CBI and Anr. (2007) 1 SCC
536 : [2001] 1 Suppl. SCR 646 ; Gulzar Ahmed Azmi v. Union of India and Ors. (2012) 10 SCC 731 : [2012]
9 SCR 287 ; Vinay Tyagi v. Irshad Ali and Ors. (2013)
5 SCC 762 : [2012] 13 SCR 1005 – relied on.
Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177 : [2017] 4 SCR 105 ; Athul Rao v. State of Karnataka and Anr. (2018) 14 SCC
298 ; Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT of Delhi (2019) 5 SCC
542 ; Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 : [1996] 10 Suppl. SCR 880 ; Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 : [2009] 13 SCR 276 – overruled.
Devarapalli Lakshminarayana Reddy & Ors. v.
V. Narayana Reddy & Ors. (1976) 3 SCC 252 :
[1976] Suppl. SCR 524 – held not correct law. Union of India and Anr. v. W.N Chadha (1993) Suppl.
4 SCC 260 : [1992] 3 Suppl. SCR 594; Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3 SCC 736 : [1976] Suppl. SCR 123; Prabha Mathur and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC
469 : [2008] 13 SCR 1086 ; Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 : [2009] 8 SCR 1004 ; Dinubhai Bhogabhai Solanki v. State of Gujarat & Ors. (2014) 4 SCC 626 : [2014] 3 SCR 932
– distinguished.
Babubhai v. State of Gujarat & Ors. (2010) 12 SCC
254 : [2010] 10 SCR 651 ; Romila Thapar v. Union of India, (2018) 10 SCC 753 : [2018] 11 SCR 951 – held inapplicable.
Mrs. Maneka Gandhi v. Union of India & Anr. (1978)
1 SCC 248 : [1978] 2 SCR 621; Commissioner of Police, Delhi v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323 : [1996] 7 Suppl. SCR 432;
Kamlapati Trivedi v. State of West Bengal (1980) 2 SCC
91 : [1979] 2 SCR 717; Tula Ram & Ors. v. Kishore Singh (1977) 4 SCC 459 : [1978] 1 SCR 615 ; Hardeep Singh v. State of Punjab and Ors. (2014) 3 SCC 92 : [2014] 2 SCR 1 ; Common Cause v. Union of India (1996) 6 SCC 775 : [1996] 9 Suppl. SCR 296 ; King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 – 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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