Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 687 OF 2019
[Arising out of SLP (Crl.) No. 297 of 2015]
Bikash Ranjan Rout .. Appellant
Versus
State through the Secretary (Home),
Government of NCT of Delhi, New Delhi .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 20.08.2014 passed by the High Court
of Delhi in Criminal M. C. No. 3386 of 2013 by which the High
Court has dismissed the said petition and has confirmed the
order passed by the learned Additional Chief Metropolitan
Magistrate (West) Delhi dated 05.02.2013, by which the learned
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.04.16
14:59:28 IST
Reason:
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Magistrate ordered further investigation, the original accused has
preferred the present appeal.
3. That the FIR was lodged against the appellant herein
original accused on 28.09.2007 being FIR No. 426/2007 at Police
Station Janakpuri, Delhi for the offences under Sections 420,
468 and 471 of the IPC. That on completion of the investigation,
the investigating officer filed the chargesheet against the
accusedappellant for the offences under Sections 420, 468 and
471 of the IPC. That at the time of framing of the charge and
considering the chargesheet papers, the learned Magistrate
discharged the appellantoriginal accused vide order dated
05.02.2013. However, while discharging the accused and/or
after the accused was discharged, in the same order, the learned
Magistrate directed the Additional Commissioner of Police (West)
Delhi to make appreciation of quality of the investigation done in
the case and to analyse the process of efficacy of sending any
charge sheet before the prosecution branch for the purpose of
scrutiny. Learned Magistrate also observed and directed that the
case requires further investigation to reach a logical conclusion
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and the same be done responsibly and the report be filed on
11.04.2012 (sic).
3.1 Feeling aggrieved and dissatisfied with that part of the order
passed by the learned Magistrate dated 05.02.2013 by which the
learned Magistrate directed further investigation and to submit
the report, the appellantoriginal accused approached the High
Court by way of Criminal Miscellaneous Case No. 3386 of 2013.
In the meantime, following the directions issued by the learned
Magistrate vide order dated 05.02.2013, the District Investigating
Unit, West District, Police Post MIG Flats, JBlock, Rajouri
Garden, New Delhi issued summons dated 22.04.2013 under
Section 160 of the CrPC. The appellant also challenged the said
notice/summon issued under Section 160 of the CrPC.
Basically, the appellant herein challenged that part of the order
dated 05.02.2013 passed by the learned Magistrate, by which the
learned Magistrate observed and directed further investigation
and also directed the investigating officer to submit the report.
That by the impugned judgment and order, the High Court has
dismissed the said petition and has refused to interfere with the
order dated 05.02.2013 passed by the learned Magistrate
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directing further investigation by observing that the investigation
was a faulty investigation and/or no proper investigation was
carried out on certain aspects and, therefore, the learned
Magistrate was justified in inquiring further investigation to
reach to a logical conclusion. Consequently, the High Court has
dismissed the said petition. Hence, the appellantoriginal
accused is before this Court.
4. Mr. Mrinal Kanti Mandal, learned Advocate appearing on
behalf of the appellantoriginal accused, has vehemently
submitted that, in the facts and circumstances of the case, the
High Court has committed a grave error in confirming the order
dated 05.02.2013 passed by the learned Magistrate for further
investigation.
4.1 Learned counsel appearing on behalf of the appellant
original accused has vehemently submitted that the High Court
has not properly appreciated the fact that after the accused was
discharged by the learned Magistrate, thereafter he has no
jurisdiction to pass any order for further investigation under
Section 173(8) of the CrPC.
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4.2 It is further submitted by the learned counsel appearing on
behalf of the appellantoriginal accused that once the accused is
discharged by the learned Magistrate after considering the
chargesheet and the material on record, thereafter the learned
Magistrate becomes functus officio and has no jurisdiction to
order further investigation even under Section 173(8) of the
CrPC.
4.3 It is further submitted by the learned counsel appearing on
behalf of the appellantoriginal accused that the order passed by
the learned Magistrate for further investigation after the accused
is discharged is even hit by Section 167(2) of the CrPC.
4.4 Learned counsel appearing on behalf of the appellant
original accused has vehemently submitted that while passing
the impugned judgment and order confirming the order passed
by the learned Magistrate for further investigation after the
accused was discharged, the High Court has not properly
appreciated and/or considered the distinction between the
powers to be exercised by the learned Magistrate at pre
cognizance stage and postcognizance stage. It is submitted that
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the powers which may be available to the Magistrate at pre
cognizance stage cannot be exercised at postcognizance stage.
4.5 In support of his above submissions, the learned counsel
appearing on behalf of the appellantoriginal accused has heavily
relied upon the decisions of this Court in the case of Bhagwant
(1985) 2 SCC 537 as well as in
Singh v. Commissioner of Police
the case of Reeta Nag v. State of West Bengal (2009) 9 SCC
129. Learned counsel appearing on behalf of the appellant
original accused has further relied upon the decisions of this
Court in the cases of Vinay Tyagi v. Irshad Ali @ Deepak
(2013) 5 SCC 762;
Vasanti Dubey v. State of Madhya Pradesh
(2012) 2 SCC 731; Amit Kapoor v. Ramesh Chander (2012) 9
SCC 460 and Randhir Singh Rana v. State (Delhi
(1997) 1 SCC 361.
Administration)
4.6 Relying upon the aforestated decisions of this Court,
learned counsel appearing on behalf of the appellantoriginal
accused has vehemently submitted that the order passed by the
learned Magistrate and confirmed by the High Court, ordering
further investigation after the accused was discharged was wholly
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impermissible. Therefore, it is prayed to allow the present
appeal and quash and set aside the impugned judgment and
order passed by the High Court as well as the order passed by
the learned Magistrate ordering further investigation.
5. Ms. Vibha Datta Makhija, learned Senior Advocate
appearing on behalf of the respondentState, has vehemently
opposed the present appeal. It is submitted by the learned
counsel appearing on behalf of the respondentState that as
rightly observed by the learned Magistrate and even the High
Court that on certain aspects there was no investigation carried
out at all and no evidence was collected, which will go to the root
of the matter and therefore having not satisfied with the manner
in which the investigation was carried out and the chargesheet
was submitted and thereafter when the learned Magistrate
ordered further investigation, the same is rightly not interfered
with by the High Court.
5.1 It is further submitted by the learned counsel appearing on
behalf of the respondentState that, as such, the learned
Magistrate is vested with the power to order further investigation
if he comes to the conclusion that the investigation was not
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proper and/or the investigation was made in perfunctory manner
and the benefit would go to the accused. It is further submitted
that the powers of the Magistrate to order further investigation
has been recognized by law under Section 173(8) of the CrPC as
well as by this Court in a catena of decisions, including the
decisions of this Court in Bhagwant Singh (supra) and even in
(supra). It is submitted that therefore, in the facts
Reeta Nag
and circumstances of the case, the learned Magistrate was
justified in ordering further investigation.
5.2 Relying upon the decision of this Court in
Kishan Lal v.
Dharmendra Bafna (2009) 7 SCC 685, it is submitted by the
learned counsel appearing on behalf of the respondentState that,
as observed and held by this Court, learned Magistrate can take
cognizance on the basis of the materials placed on record by the
investigating agency. It is also observed that it is also
permissible for the Magistrate to direct further investigation. It
is submitted that, as observed by this Court, the Magistrate has
a duty to see that the investigation is carried out in a fair
manner. It is submitted that it is observed that an order of
further investigation can be made at various stages including the
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stage of the trial, that is even after taking cognizance of the
offence.
5.3 Relying upon the decision of this Court in Hemant
Dhasmana v. Central Bureau of Investigation (2001) 7 SCC
536, it is further submitted that when the learned Magistrate
passed an order of further investigation for the ends of justice,
the same is not required to be interfered with by the High Court
in exercise of its revisional jurisdiction.
5.4 Learned counsel appearing on behalf of the respondent
State has also heavily relied upon the decision of this Court in
Sajjan Kumar v. Central Bureau of Investigation (2010) 9
SCC 368. It is submitted that even after the chargesheet is filed,
still the Magistrate is free to direct the accused to appear and try
the offence, even at the stage of Sections 227 and 228 of the
CrPC.
5.5 Making the above submissions and relying upon the above
decisions of this Court, it is prayed to dismiss the present appeal.
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6. Heard learned counsel appearing on behalf of the respective
parties at length. At the outset, it is required to be noted that the
challenge in the present appeal is to the order passed by the High
Court, confirming the order passed by the learned Magistrate of
further investigation passed at the time/after the accused was
discharged by the learned Magistrate. It is required to be noted
that, in the present case, the investigating officer after concluding
the investigation, submitted the report/chargesheet before the
learned Magistrate. Thereafter, the matter before the learned
Magistrate was at the stage of framing of the charge, as provided
under Sections 227 and 228 of the CrPC. After considering the
material on record submitted along with the chargesheet, the
learned Magistrate at the first instance discharged the accused.
However, simultaneously, while discharging the accused, learned
Magistrate also passed an order for further investigation and
directed the investigating officer to further investigate in the
matter and submit the report. That part of the order, by which
the learned Magistrate ordered further investigation is the subject
matter of dispute. Therefore, the short question which is posed
for consideration by this Court is whether once the learned
Magistrate passes an order of discharge of the accused, whether
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thereafter is it permissible for the Magistrate to order further
investigation and direct the investigating officer to submit the
report?
6.1 While considering the aforesaid issue/question, few
decisions of this Court on the procedure to be followed by the
learned Magistrate when the investigating officer submits the
report under Section 173(2) of the CrPC and what are the powers
of the learned Magistrate and/or what are the options available
to the learned Magistrate at a time when the investigating officer
after concluding the investigation submits the
report/challan/chargesheet before the learned Magistrate, are
required to be referred to and considered.
6.2 In the celebrated judgment of this Court in the case of
Bhagwant Singh (supra) which has been subsequently followed
consistently, this Court had the occasion to consider the
procedure to be followed by the learned Magistrate and/or the
options which are available to the learned Magistrate at the time
when the report/challan/chargesheet is filed by the
investigating officer before him. In that judgment, this Court in
para 4 has observed and held as under:
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“4. Now, when the report forwarded by the officerin
charge of a police station to the Magistrate under sub
section (2)( i ) of Section 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 ( ) he may direct further investigation under sub
3
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 subsection (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 informant in
prompt and effective action being taken on the first
information report lodged by him is clearly recognised
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by the provisions contained in subsection (2) of
Section 154, subsection (2) of Section 157 and sub
section (2)( ) of Section 173, it must be presumed that
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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 officerincharge of a police
station under subsection (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)( ) of Section 173 decides not to take
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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 subsection (2)
( i ) of 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
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heard at the time when the report is considered by the
Magistrate.”
6.3 In the case of (supra), after considering catena
Vinay Tyagi
of decisions of this Court, including the decisions of this Court in
Bhagwant Singh (supra) and Reeta Nag (supra), ultimately in
para 40, this Court concluded as under:
“40. Having analysed the provisions of the Code and
the various judgments as aforeindicated, 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:
40.1. The Magistrate has no power to direct
“reinvestigation” or “fresh investigation” (de novo) in the
case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct “further
investigation” after filing of a police report in terms of
Section 173(6) of the Code.
40.3. The view expressed in Subpara 40.2 above is in
conformity with the principle of law stated in Bhagwant
Singh case [ Bhagwant Singh v. Commr. of Police , (1985)
2 SCC 537 : 1985 SCC (Cri) 267] by a threeJudge
Bench and thus in conformity with the doctrine of
precedent.
40.4. 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
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).
40.5. 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
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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.
It has been a procedure of propriety that the
40.6.
police has to seek permission of the court to continue
“further investigation” and file supplementary charge
sheet. 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.”
6.4 In the case of (2000) 4 SCC
Minu Kumari v. State of Bihar
359, it is observed by this Court that when a report forwarded by
the police to the Magistrate under Section 173(2)(i) is placed
before him, several situations 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 either
(1) accept the report and take cognizance of the offence and
issued 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.
7. Considering the law laid down by this Court in the aforesaid
decisions and even considering the relevant provisions of the
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CrPC, namely Sections 167(2), 173, 227 and 228 of the CrPC,
what is emerging is that after the investigation is concluded and
the report is forwarded by the police to the Magistrate under
Section 173(2)(i) of the CrPC, the learned 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 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 learned Magistrate accepts the objections, in that case, he
may issue process and/or even frame the charges against the
accused. As observed hereinabove, having not satisfied with the
investigation on considering the report forwarded by the police
under Section 173(2)(i) of the 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 precognizance stage.
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Once the learned Magistrate takes the cognizance and,
considering the materials on record submitted along with the
report forwarded by the police under Section 173(2)(i) of the
CrPC, learned Magistrate in exercise of the powers under Section
227 of the 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
postcognizance stage. There is a distinction and/or difference
between the precognizance stage and postcognizance stage and
the powers to be exercised by the Magistrate for further
investigation at the precognizance stage and postcognizance
stage. The power to order further investigation which may be
available to the Magistrate at the precognizance stage may not
be available to the Magistrate at the postcognizance stage, more
particularly, when the accused is discharged by him. As
observed hereinabove, 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) of the CrPC, as observed by this Court in catena of decisions
and as observed hereinabove, it was always open/permissible for
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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 learned Magistrate, on the basis of the report
and the materials placed along with the report, discharges the
accused, we are 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 of the CrPC. However, at the same time,
considering the provisions of Section 173(8) of the 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 learned Magistrate thereafter in accordance
with law. The Magistrate cannot suo moto direct for further
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investigation under Section 173(8) of the CrPC or direct the re
investigation into a case at the postcognizance stage, more
particularly when, in exercise of powers under Section 227 of the
CrPC, the Magistrate discharges the accused. However, Section
173(8) of the CrPC confers power upon the officerincharge of
the police station to further investigate and submit evidence, oral
or documentary, after forwarding the report under subsection (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 subsection (2) of Section 173 and
even after the discharge of the accused. However, the aforesaid
shall be at the instance of the investigating officer/police officer
incharge and the Magistrate has no jurisdiction to suo moto pass
an order for further investigation/reinvestigation after he
discharges the accused.
7.1 In the instant case, the investigating authority did not apply
for further investigation and that the learned 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
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beyond the jurisdictional competence of the Magistrate.
Therefore, that part of the order passed by the learned Magistrate
ordering further investigation after he discharges the accused,
cannot be sustained and the same deserves to be quashed and
set aside. Consequently, the impugned judgment and order
passed by the High Court confirming such an order passed by
the learned Magistrate also deserves to be quashed and set aside.
At the same time, it will 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) of the CrPC.
8. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order
dated 20.08.2014 as well as that part of the order dated
05.02.2013 passed by the learned Magistrate directing the
investigating officer for further investigation and submit the
report, is hereby quashed and set aside.
8.1 However, considering the observations made by the learned
Magistrate and the deficiency in the investigation pointed out by
the learned Magistrate and the ultimate goal is to book and/or
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punish the real culprit, it will be open for the investigating officer
to submit a proper application before the learned Magistrate for
further investigation and conduct fresh investigation and submit
the further report in exercise of powers under Section 173(8) of
the CrPC and thereafter the learned Magistrate to consider the
same in accordance with law and on its own merits.
9. The present appeal is allowed with the above observations
and the liberty reserved in favour of the investigating officer, as
above.
............................................J.
[L. NAGESWARA RAO]
NEW DELHI; ............................................J.
APRIL 16, 2019. [M.R. SHAH]