Full Judgment Text
2026 INSC 120
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………………………OF 2026
(ARISING OUT OF SLP (CRIMINAL) NO. 350 OF 2024)
PRAMOD KUMAR & ORS. ….APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. …RESPONDENT(S)
J U D G M E N T
VIJAY BISHNOI, J.
Leave Granted.
2. This appeal has been preferred by the Appellants challenging the
Judgment dated 20.11.2023 (hereinafter referred to as “ impugned
judgment ”) passed in Criminal Misc. Writ Petition No. 4000 of
2022 by the High Court of Judicature at Allahabad, Lucknow
1
Bench (hereinafter referred to as “ the High Court ”). The writ
petition filed by the Appellants was dismissed by the High Court,
wherein it refused to quash the Orders dated 06.06.2019 and
26.04.2021 passed by the Respondent No. 1 and Respondent No.
4, respectively.
3. The sole question that arises for our consideration in the present
appeal is whether after submitting a final report under Section
173(2) of the Criminal Procedure Code (for short “CrPC” ) (also
refer to Section 193(3) of the Bharatiya Nagarik Suraksha Sanhita,
2023 (for short “BNSS”) ), the police/investigating agency can
conduct further investigation under Section 173(8) of CrPC (also
refer to Section 193(9) of BNSS) without obtaining the leave of the
Magistrate/ Court concerned?
FACTUAL MATRIX
4. A fascicule of facts pertinent for the disposal of this appeal are
that, on 19.11.2013, an FIR bearing Case Crime No. 70/2013
(hereinafter referred to as “ the FIR ”) was registered against seven
accused persons including the Appellants herein by the
Respondent No. 6 (hereinafter referred to as “ the original
2
complainant ”) for the offence punishable under Sections 376D,
352, 504, 506 respectively of the Indian Penal Code, 1860 (for
short, “ IPC ”) at Mahila Police Station, Sub-district Sadar, District
Firozabad.
5. During the investigation, owing to multiple applications being
moved by the original complainant alleging danger to his life and
his family members’ lives, the investigation was initially
transferred from the Mahila Police Station to the Crime Branch,
Firozabad, and subsequently to the Crime Branch, Mathura.
6. After completion of the investigation, the Investigating Officer
submitted the Final Report No.17/14 dated 30.05.2014
(hereinafter referred to as “ the Closure Report ”), stating that no
offence was made out against the accused persons (including the
Appellants herein) in light of the contradictions between the
statements of the original complainant under Section 161 and 164
CrPC. The relevant extract of the closure report is reproduced
herein under:
“...On the basis of information of the informant, the aforesaid
case was registered and investigation was undertaken. There
is contradiction between the statements U/s. 161 and 164
3
Cr.P.C. of the informant. There is enmity/litigation pending
between the informant and the accused persons. The
statements of the informant are not supported by other
evidences. Hence, the offence is not confirmed. In absence of
evidences, it is impossible to file challan against the accused
persons before the Court. Hence, the case is closed by FR.
Kindly approve it….”
7. After receiving the Closure Report, the Court of First Additional
Civil Judge, (J.D.)/Judicial Magistrate, Firozabad, issued several
notices to the original complainant. However, despite service of
notices, he did not appear before the court, nor did he file any
protest petition. The Court of First Additional Civil Judge,
(J.D.)/Judicial Magistrate, Firozabad, after considering the
Closure Report, has accepted the same vide order dated
14.09.2015, noting that the material on record did not support the
prosecution's case. The relevant extract of the Order is reproduced
herein under:
“....The case file was presented today. Notice has been sent to
the informant several times. Despite the notice has been duly
served to the informant several times, he had not filed any
objection/protest petition against the final report. It is clear
from the case diary and police documents and evidences
available in the file that the statements u/s 161 CrPC and
statements u/s 164 CrPC of the informant and the person with
whom the victim had gone to the bridge on a motorcycle to
search for her brothers, it has been confirmed from her
statements/affidavit, that neither the victim met that day nor
she was taken to the bridge on a motorcycle and none of the
statements of witnesses recorded by the IO have confirmed
4
the incident. Even perusal of the medical report does not
confirm any kind of external or internal injury and the
statements made by the victim are also not confirmed by the
medical report. Thus, according to the medical report, no clear
inference can be made that the victim was raped.
It is also clear from the perusal of the file that the informant
had requested for the investigation of the said case, apart by
the local police, shall be conducted by the Crime Branch, on
which the case was investigated by the Crime Branch,
Mathura. The investigation was carried out by several
Investigating Officers of Crime Branch, Mathura and after the
investigation, the mobile phones of the accused were matched
through cell track by Mr. Narendra Singh, and the location of
any of the accused persons was not found at the spot at the
time of the incident, which has been recorded in the case diary
by the IO and any of the witness had not confirmed the
statement of the victim, on the basis of which the final report
in the case No. 17/14 dated 30-5-14 has been submitted by
the IO on 30.05.2014 which prima facie appears to be legal.
Therefore, in compliance of Hon'ble High Court's circular no.
31/2012 Admin, G. II, Allahabad dated 11-12-2012 and
Hon'ble High Court Allahabad's criminal miscellaneous
petition no. 2520/2012 Pradeep Kumar Srivastava vs. State
of UP and others u/s 482/378/507 Order passed in S.P. No.
dated 27-7-2012 and circular letter no. of Honorable High
Court Allahabad no. 10435 date 03.09.2014 and letter no.
420/2015 dated 17.01.2015, the final report no. 17/14 is
accepted. It should be attached in the file…..”
8. Subsequently, after a span of about 3 years, the original
complainant filed a Criminal Revision Petition (later registered as
Criminal Miscellaneous Case No. 440 of 2017) before the Court of
District and Sessions Judge, Firozabad, for setting aside the
aforesaid order dated 14.09.2015, wherein the Closure Report was
accepted. The said case is presently pending before the Court of
District and Sessions Judge, Firozabad.
5
9. Thereafter, one Dr Ashu Kumar filed a complaint before the
National Human Rights Commission (hereinafter referred to as
“ NHRC ”) alleging several deficiencies in the investigation
conducted by police officials. The Assistant Registrar (Law) of the
NHRC after considering the said complaint, passed an Order dated
06.03.2019, citing several discrepancies in the investigation done
by investigating authority and, consequently, directed the Director
General of Police, Uttar Pradesh (hereinafter referred to as “ the
DGP ”) to conduct a fact finding enquiry into the conduct of officials
of Police Station Ekka, Police Station Narkhi, by an officer not
below the rank of the Superintendent of Police and submit a report
regarding the same within a period of 6 weeks. The NHRC further
directed the Chief Secretary to pay an amount of Rs. 2 lakhs to the
prosecutrix and Rs. 1 lakh each to the original complainant as well
as the father of the prosecutrix, and submit a compliance report
within 6 weeks.
10. In compliance thereof, the Under Secretary, Government of Uttar
Pradesh, forwarded a letter dated 06.06.2019 to the Director,
CBCID, informing that in pursuance of the directions of the NHRC,
6
it has been decided that the matter should be investigated by
CBCID and further directing him to complete the investigation
within a period of 6 weeks and submit a final progress report.
11. In view of the aforesaid, the Under Secretary vide letter dated
12.02.2021, informed the NHRC that an investigation pursuant to
the conduct of the officers involved in the present case is
underway. Further, it was also informed that in order to reveal the
truth of the accusations involved in the case, it is recommended
that further investigation under Section 173(8) should be
conducted in FIR No. 70/2013.
12. With the approval of the Director General of Police, CBCID, an
Inspector of CBCID (hereinafter referred to as “ IO ”) was nominated
for carrying out further investigation of the present case under
Section 173(8) of the CrPC and pursuantly, the newly appointed
IO filed an application dated 22.04.2021 before the Court of First
Additional Civil Judge (J.D.)/Judicial Magistrate, Firozabad,
seeking permission to conduct further investigation in the instant
case under Section 173(8) of the CrPC.
7
13. Thereafter, vide communication dated 26.04.2021, the
Superintendent of Police, Agra informed the Additional
Superintendent of Police/Divisional Officer, Crime Branch, A.A.D.,
Agra, of the nomination of the IO in the present case and also
directed him to make available the special report relating to the
further investigation (in 10 days), the draft of the plan (in 20 days)
and the monthly progress report in the prescribed formats to the
headquarters on time and complete the investigation as soon as
possible and send the final progress to the headquarters.
14. In furtherance of the said investigation, the IO sent a notice to the
accused persons (including the Appellants) for the collection of
their samples to conduct a DNA test. Their blood samples were
collected on 05.05.2022.
15. Consequently, the Appellants filed Criminal Misc. Writ Petition No.
4000 of 2022 before the High Court challenging the Order dated
06.06.2019 and 26.04.2021.
16. The High Court, vide Order dated 23.06.2022, initially granted
interim protection from arrest to the Appellants. However, in the
8
same Order, it directed that the investigation shall continue and
that the Appellants shall cooperate with the investigation.
17. During the pendency of the Writ Petition, the Director, Forensic
Science Laboratory, State of Uttar Pradesh, submitted the DNA
Test Report dated 21.09.2022 stating that the accused persons,
including the Appellants, were not the biological father of the fetus
of the prosecutrix.
18. Later, the High Court vide the impugned judgment observed that
the allegations of rape were made against several accused, and the
prosecutrix also filed a protest petition against the final report
submitted by the investigating officer. The DNA sample of the
aborted fetus (resulting from the pregnancy from the alleged rape)
was also preserved, and the Investigating Officer had written to the
Court praying that a DNA test may be carried out to find out who
was actually the accused amongst the several accused, who was
involved in the commission of rape. The High Court, thus, held
that it found no good grounds to entertain the petition and
dismissed the same.
9
19. Aggrieved, the Appellants preferred the instant appeal before this
Court. During the pendency of the appeal, this Court vide Order
dated 16.01.2024, issued notice and stayed the operation and
effect of the communications dated 06.06.2019 and 26.04.2021,
and also the investigation in the present case. The relevant portion
is reproduced herein under:
“...Applications seeking exemption from filing C/C of the
impugned judgment and exemption from filing O.T. are
allowed. Issue notice. In the meantime, operation and effect of
the communications dated 06.6.2019 and 26.4.2021 directing
investigation in Case Crime no.70/13 U/s. 376D, 352, 504,
506 IPC registered at PS Mahila Police Station, District
Firozabad shall remain stayed…”
20. Pursuant to the Order dated 16.01.2024, notices were issued to
the Respondents and were served on all except Respondent No. 7.
Respondent No. 6 did not appear before this Court even after
notice was served to him on 30.01.2024. Further, notice could not
be served upon Respondent No. 7 and therefore, a report from the
Trial Court was called upon wherein it was mentioned that as the
notice was unserved with remarks "no such person found".
Consequently, this Court vide Order dated 28.08.2025 deleted the
name of Respondent No. 7 at risk of the Appellants. The relevant
portion of the Order dated 30.09.2024 is reproduced herein under:
10
“…Service is complete on respondent nos. 1 to 6 but none has
entered appearance. As per report of concerned Trial Court,
notice could not be served on respondent no.7 due to remarks
"no such person found". However, ld. Counsel for the petitioner
submits that an application for deletion of the name of
respondent no.7 from the array of parties will be filed. Be filed
within one week. If filed, process as per rules. However, if
application is not filed, list again on 06.01.2025…”
Accordingly, vide Order dated 28.08.2025, the name of
Respondent No. 7 was deleted from the appeal. The extract of the
said order is reproduced herein under:
“...Application for deleting the name of respondent no. 7 is
allowed at the risk of the petitioners…”
CONTENTION OF THE PARTIES
21. Mr. Divyesh Pratap Singh, the learned counsel for the Appellants
submitted that the Superintendent of Police, Agra on
recommendation of the State of Uttar Pradesh directed further
investigation under Section 173(8) Cr.P.C. without obtaining prior
permission from the competent Court, even though a closure
report had already been accepted. The Learned counsel for the
Appellant contended that once the final report is accepted, only
the criminal Court has the power to order further investigation and
such power cannot be exercised by the police or any executive
11
authority. Further, the so-called “further investigation” is in fact
an impermissible de-novo or fresh investigation, as it was ordered
after about seven years without any new or additional material and
was initiated from the very first stage, including demands for DNA
samples after several years, which amounts to filling up lacunae
in the prosecution case.
22. The Learned Counsel for the Appellants further contended that the
final report dated 30.05.2014 was filed after a thorough
investigation and was accepted by the Court on 14.09.2015 after
due notice to the original informant, who did not file any objection
or a protest petition. It was also contended that the DNA report
dated 21.09.2022 clearly concluded that the accused persons,
including the Appellants, are not the biological fathers of the
prosecutrix’s aborted foetus, which debunks the very genesis of
the case and directly contradicts the allegations of the alleged
incident. The learned counsel placed reliance on the judgment
passed by this Court in Vinay Tyagi v. Irshad Ali, reported in
(2013) 5 SCC 762, wherein it was held that it is a part of procedure
12
of the investigating authority to seek leave of the Court before
conducting “further investigation”.
23. The learned Additional Advocate General for the State of U.P., Mr
Apoorva Agarwal, argued that there is no bar under Section 173(8)
against conducting further investigation. It was argued that
“further investigation” is merely a continuation of the earlier
investigation, and 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 CrPC.
The learned AAG also placed reliance upon the case of Dharam
Pal v. State of Haryana reported in (2016) 4 SCC 160, wherein
this Court held that the Police Officer has unrestricted power
under Section 173(8) CrPC to conduct further investigation.
24. We have heard the parties and perused the material available on
record.
ANALYSIS
25. The power of the investigation agency to order further investigation
in any criminal case is derived from the aegis of Section 173(8)
13
CrPC (also refer to Section 193(9) BNSS), which is reproduced as
follows:
“.. (8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under Sub-Section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary,
he shall forward to the Magistrate a further report or reports
regarding, such evidence in the form prescribed; and the
provisions of Sub-Sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under Sub-Section (2).
Thus, the powers of the investigation agency for further
investigation are not in dispute herein. However, what catches
attention here and which is also the crux of the controversy in the
present case, is which authority can pass an order directing the
investigation agency to undertake further investigation under
Section 173(8).
26. The issue regarding the procedure to be followed for directing
further investigation in a case has been dealt by this Court in the
case of Vinay Tyagi (supra) , wherein this Court while dealing with
the contours of Section 173(8) relating to further investigation,
propounded that the police ought to follow the procedure of
seeking permission from the Court to conduct “further
14
investigation” and file a supplementary chargesheet. The relevant
paragraphs from the judgment are reproduced as under:
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO………………………………OF 2026
(ARISING OUT OF SLP (CRIMINAL) NO. 350 OF 2024)
PRAMOD KUMAR & ORS. ….APPELLANT(S)
VERSUS
STATE OF U.P. & ORS. …RESPONDENT(S)
J U D G M E N T
VIJAY BISHNOI, J.
Leave Granted.
2. This appeal has been preferred by the Appellants challenging the
Judgment dated 20.11.2023 (hereinafter referred to as “ impugned
judgment ”) passed in Criminal Misc. Writ Petition No. 4000 of
2022 by the High Court of Judicature at Allahabad, Lucknow
1
Bench (hereinafter referred to as “ the High Court ”). The writ
petition filed by the Appellants was dismissed by the High Court,
wherein it refused to quash the Orders dated 06.06.2019 and
26.04.2021 passed by the Respondent No. 1 and Respondent No.
4, respectively.
3. The sole question that arises for our consideration in the present
appeal is whether after submitting a final report under Section
173(2) of the Criminal Procedure Code (for short “CrPC” ) (also
refer to Section 193(3) of the Bharatiya Nagarik Suraksha Sanhita,
2023 (for short “BNSS”) ), the police/investigating agency can
conduct further investigation under Section 173(8) of CrPC (also
refer to Section 193(9) of BNSS) without obtaining the leave of the
Magistrate/ Court concerned?
FACTUAL MATRIX
4. A fascicule of facts pertinent for the disposal of this appeal are
that, on 19.11.2013, an FIR bearing Case Crime No. 70/2013
(hereinafter referred to as “ the FIR ”) was registered against seven
accused persons including the Appellants herein by the
Respondent No. 6 (hereinafter referred to as “ the original
2
complainant ”) for the offence punishable under Sections 376D,
352, 504, 506 respectively of the Indian Penal Code, 1860 (for
short, “ IPC ”) at Mahila Police Station, Sub-district Sadar, District
Firozabad.
5. During the investigation, owing to multiple applications being
moved by the original complainant alleging danger to his life and
his family members’ lives, the investigation was initially
transferred from the Mahila Police Station to the Crime Branch,
Firozabad, and subsequently to the Crime Branch, Mathura.
6. After completion of the investigation, the Investigating Officer
submitted the Final Report No.17/14 dated 30.05.2014
(hereinafter referred to as “ the Closure Report ”), stating that no
offence was made out against the accused persons (including the
Appellants herein) in light of the contradictions between the
statements of the original complainant under Section 161 and 164
CrPC. The relevant extract of the closure report is reproduced
herein under:
“...On the basis of information of the informant, the aforesaid
case was registered and investigation was undertaken. There
is contradiction between the statements U/s. 161 and 164
3
Cr.P.C. of the informant. There is enmity/litigation pending
between the informant and the accused persons. The
statements of the informant are not supported by other
evidences. Hence, the offence is not confirmed. In absence of
evidences, it is impossible to file challan against the accused
persons before the Court. Hence, the case is closed by FR.
Kindly approve it….”
7. After receiving the Closure Report, the Court of First Additional
Civil Judge, (J.D.)/Judicial Magistrate, Firozabad, issued several
notices to the original complainant. However, despite service of
notices, he did not appear before the court, nor did he file any
protest petition. The Court of First Additional Civil Judge,
(J.D.)/Judicial Magistrate, Firozabad, after considering the
Closure Report, has accepted the same vide order dated
14.09.2015, noting that the material on record did not support the
prosecution's case. The relevant extract of the Order is reproduced
herein under:
“....The case file was presented today. Notice has been sent to
the informant several times. Despite the notice has been duly
served to the informant several times, he had not filed any
objection/protest petition against the final report. It is clear
from the case diary and police documents and evidences
available in the file that the statements u/s 161 CrPC and
statements u/s 164 CrPC of the informant and the person with
whom the victim had gone to the bridge on a motorcycle to
search for her brothers, it has been confirmed from her
statements/affidavit, that neither the victim met that day nor
she was taken to the bridge on a motorcycle and none of the
statements of witnesses recorded by the IO have confirmed
4
the incident. Even perusal of the medical report does not
confirm any kind of external or internal injury and the
statements made by the victim are also not confirmed by the
medical report. Thus, according to the medical report, no clear
inference can be made that the victim was raped.
It is also clear from the perusal of the file that the informant
had requested for the investigation of the said case, apart by
the local police, shall be conducted by the Crime Branch, on
which the case was investigated by the Crime Branch,
Mathura. The investigation was carried out by several
Investigating Officers of Crime Branch, Mathura and after the
investigation, the mobile phones of the accused were matched
through cell track by Mr. Narendra Singh, and the location of
any of the accused persons was not found at the spot at the
time of the incident, which has been recorded in the case diary
by the IO and any of the witness had not confirmed the
statement of the victim, on the basis of which the final report
in the case No. 17/14 dated 30-5-14 has been submitted by
the IO on 30.05.2014 which prima facie appears to be legal.
Therefore, in compliance of Hon'ble High Court's circular no.
31/2012 Admin, G. II, Allahabad dated 11-12-2012 and
Hon'ble High Court Allahabad's criminal miscellaneous
petition no. 2520/2012 Pradeep Kumar Srivastava vs. State
of UP and others u/s 482/378/507 Order passed in S.P. No.
dated 27-7-2012 and circular letter no. of Honorable High
Court Allahabad no. 10435 date 03.09.2014 and letter no.
420/2015 dated 17.01.2015, the final report no. 17/14 is
accepted. It should be attached in the file…..”
8. Subsequently, after a span of about 3 years, the original
complainant filed a Criminal Revision Petition (later registered as
Criminal Miscellaneous Case No. 440 of 2017) before the Court of
District and Sessions Judge, Firozabad, for setting aside the
aforesaid order dated 14.09.2015, wherein the Closure Report was
accepted. The said case is presently pending before the Court of
District and Sessions Judge, Firozabad.
5
9. Thereafter, one Dr Ashu Kumar filed a complaint before the
National Human Rights Commission (hereinafter referred to as
“ NHRC ”) alleging several deficiencies in the investigation
conducted by police officials. The Assistant Registrar (Law) of the
NHRC after considering the said complaint, passed an Order dated
06.03.2019, citing several discrepancies in the investigation done
by investigating authority and, consequently, directed the Director
General of Police, Uttar Pradesh (hereinafter referred to as “ the
DGP ”) to conduct a fact finding enquiry into the conduct of officials
of Police Station Ekka, Police Station Narkhi, by an officer not
below the rank of the Superintendent of Police and submit a report
regarding the same within a period of 6 weeks. The NHRC further
directed the Chief Secretary to pay an amount of Rs. 2 lakhs to the
prosecutrix and Rs. 1 lakh each to the original complainant as well
as the father of the prosecutrix, and submit a compliance report
within 6 weeks.
10. In compliance thereof, the Under Secretary, Government of Uttar
Pradesh, forwarded a letter dated 06.06.2019 to the Director,
CBCID, informing that in pursuance of the directions of the NHRC,
6
it has been decided that the matter should be investigated by
CBCID and further directing him to complete the investigation
within a period of 6 weeks and submit a final progress report.
11. In view of the aforesaid, the Under Secretary vide letter dated
12.02.2021, informed the NHRC that an investigation pursuant to
the conduct of the officers involved in the present case is
underway. Further, it was also informed that in order to reveal the
truth of the accusations involved in the case, it is recommended
that further investigation under Section 173(8) should be
conducted in FIR No. 70/2013.
12. With the approval of the Director General of Police, CBCID, an
Inspector of CBCID (hereinafter referred to as “ IO ”) was nominated
for carrying out further investigation of the present case under
Section 173(8) of the CrPC and pursuantly, the newly appointed
IO filed an application dated 22.04.2021 before the Court of First
Additional Civil Judge (J.D.)/Judicial Magistrate, Firozabad,
seeking permission to conduct further investigation in the instant
case under Section 173(8) of the CrPC.
7
13. Thereafter, vide communication dated 26.04.2021, the
Superintendent of Police, Agra informed the Additional
Superintendent of Police/Divisional Officer, Crime Branch, A.A.D.,
Agra, of the nomination of the IO in the present case and also
directed him to make available the special report relating to the
further investigation (in 10 days), the draft of the plan (in 20 days)
and the monthly progress report in the prescribed formats to the
headquarters on time and complete the investigation as soon as
possible and send the final progress to the headquarters.
14. In furtherance of the said investigation, the IO sent a notice to the
accused persons (including the Appellants) for the collection of
their samples to conduct a DNA test. Their blood samples were
collected on 05.05.2022.
15. Consequently, the Appellants filed Criminal Misc. Writ Petition No.
4000 of 2022 before the High Court challenging the Order dated
06.06.2019 and 26.04.2021.
16. The High Court, vide Order dated 23.06.2022, initially granted
interim protection from arrest to the Appellants. However, in the
8
same Order, it directed that the investigation shall continue and
that the Appellants shall cooperate with the investigation.
17. During the pendency of the Writ Petition, the Director, Forensic
Science Laboratory, State of Uttar Pradesh, submitted the DNA
Test Report dated 21.09.2022 stating that the accused persons,
including the Appellants, were not the biological father of the fetus
of the prosecutrix.
18. Later, the High Court vide the impugned judgment observed that
the allegations of rape were made against several accused, and the
prosecutrix also filed a protest petition against the final report
submitted by the investigating officer. The DNA sample of the
aborted fetus (resulting from the pregnancy from the alleged rape)
was also preserved, and the Investigating Officer had written to the
Court praying that a DNA test may be carried out to find out who
was actually the accused amongst the several accused, who was
involved in the commission of rape. The High Court, thus, held
that it found no good grounds to entertain the petition and
dismissed the same.
9
19. Aggrieved, the Appellants preferred the instant appeal before this
Court. During the pendency of the appeal, this Court vide Order
dated 16.01.2024, issued notice and stayed the operation and
effect of the communications dated 06.06.2019 and 26.04.2021,
and also the investigation in the present case. The relevant portion
is reproduced herein under:
“...Applications seeking exemption from filing C/C of the
impugned judgment and exemption from filing O.T. are
allowed. Issue notice. In the meantime, operation and effect of
the communications dated 06.6.2019 and 26.4.2021 directing
investigation in Case Crime no.70/13 U/s. 376D, 352, 504,
506 IPC registered at PS Mahila Police Station, District
Firozabad shall remain stayed…”
20. Pursuant to the Order dated 16.01.2024, notices were issued to
the Respondents and were served on all except Respondent No. 7.
Respondent No. 6 did not appear before this Court even after
notice was served to him on 30.01.2024. Further, notice could not
be served upon Respondent No. 7 and therefore, a report from the
Trial Court was called upon wherein it was mentioned that as the
notice was unserved with remarks "no such person found".
Consequently, this Court vide Order dated 28.08.2025 deleted the
name of Respondent No. 7 at risk of the Appellants. The relevant
portion of the Order dated 30.09.2024 is reproduced herein under:
10
“…Service is complete on respondent nos. 1 to 6 but none has
entered appearance. As per report of concerned Trial Court,
notice could not be served on respondent no.7 due to remarks
"no such person found". However, ld. Counsel for the petitioner
submits that an application for deletion of the name of
respondent no.7 from the array of parties will be filed. Be filed
within one week. If filed, process as per rules. However, if
application is not filed, list again on 06.01.2025…”
Accordingly, vide Order dated 28.08.2025, the name of
Respondent No. 7 was deleted from the appeal. The extract of the
said order is reproduced herein under:
“...Application for deleting the name of respondent no. 7 is
allowed at the risk of the petitioners…”
CONTENTION OF THE PARTIES
21. Mr. Divyesh Pratap Singh, the learned counsel for the Appellants
submitted that the Superintendent of Police, Agra on
recommendation of the State of Uttar Pradesh directed further
investigation under Section 173(8) Cr.P.C. without obtaining prior
permission from the competent Court, even though a closure
report had already been accepted. The Learned counsel for the
Appellant contended that once the final report is accepted, only
the criminal Court has the power to order further investigation and
such power cannot be exercised by the police or any executive
11
authority. Further, the so-called “further investigation” is in fact
an impermissible de-novo or fresh investigation, as it was ordered
after about seven years without any new or additional material and
was initiated from the very first stage, including demands for DNA
samples after several years, which amounts to filling up lacunae
in the prosecution case.
22. The Learned Counsel for the Appellants further contended that the
final report dated 30.05.2014 was filed after a thorough
investigation and was accepted by the Court on 14.09.2015 after
due notice to the original informant, who did not file any objection
or a protest petition. It was also contended that the DNA report
dated 21.09.2022 clearly concluded that the accused persons,
including the Appellants, are not the biological fathers of the
prosecutrix’s aborted foetus, which debunks the very genesis of
the case and directly contradicts the allegations of the alleged
incident. The learned counsel placed reliance on the judgment
passed by this Court in Vinay Tyagi v. Irshad Ali, reported in
(2013) 5 SCC 762, wherein it was held that it is a part of procedure
12
of the investigating authority to seek leave of the Court before
conducting “further investigation”.
23. The learned Additional Advocate General for the State of U.P., Mr
Apoorva Agarwal, argued that there is no bar under Section 173(8)
against conducting further investigation. It was argued that
“further investigation” is merely a continuation of the earlier
investigation, and 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 CrPC.
The learned AAG also placed reliance upon the case of Dharam
Pal v. State of Haryana reported in (2016) 4 SCC 160, wherein
this Court held that the Police Officer has unrestricted power
under Section 173(8) CrPC to conduct further investigation.
24. We have heard the parties and perused the material available on
record.
ANALYSIS
25. The power of the investigation agency to order further investigation
in any criminal case is derived from the aegis of Section 173(8)
13
CrPC (also refer to Section 193(9) BNSS), which is reproduced as
follows:
“.. (8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under Sub-Section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of the
police station obtains further evidence, oral or documentary,
he shall forward to the Magistrate a further report or reports
regarding, such evidence in the form prescribed; and the
provisions of Sub-Sections (2) to (6) shall, as far as may be,
apply in relation to such report or reports as they apply in
relation to a report forwarded under Sub-Section (2).
Thus, the powers of the investigation agency for further
investigation are not in dispute herein. However, what catches
attention here and which is also the crux of the controversy in the
present case, is which authority can pass an order directing the
investigation agency to undertake further investigation under
Section 173(8).
26. The issue regarding the procedure to be followed for directing
further investigation in a case has been dealt by this Court in the
case of Vinay Tyagi (supra) , wherein this Court while dealing with
the contours of Section 173(8) relating to further investigation,
propounded that the police ought to follow the procedure of
seeking permission from the Court to conduct “further
14
investigation” and file a supplementary chargesheet. The relevant
paragraphs from the judgment are reproduced 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 Sub-para 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 three-Judge 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 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. | ||||||||
| 40.6. It has been a procedure of propriety that the 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……” add 49 and 50 | ||||||||
| (Emphasis Supplied) |
15
In this very judgment, this Court, while noting that although there
is no explicit mandate under Section 173(8) CrPC to seek the leave
of the Court before conducting further investigation, nevertheless,
over time, a practice has been developed to seek permission of the
Court. Therefore, the practice of seeking the leave of the Court will
have to be read into the provisions of Section 173(8), and it is
essentially a prerequisite for directing further investigation. This
Court therein held as follows:
| “…49. | 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. | ||
| 50. Such a view can be supported from two different points of | ||
| view: firstly, through the doctrine of precedent, as aforenoticed, | ||
| 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 |
16
| 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….” | ||
| (Emphasis Supplied) |
Vinay Tyagi
The proposition of the law laid down in the case of
(supra) has been further affirmed by the Three Judge Bench of this
Court in the case of Vinubhai Haribhai Malviya and Others
versus State of Gujarat and Another, reported in (2019) 17 SCC
1.
27. This Court has dealt with a similar situation in the case of
Peethambaran Versus State Of Kerala & Anr. , reported in the
(2024) 16 SCC 65, wherein the District Police Chief, i.e.,
Superintendent of Police, ordered further investigation. This Court
therein, while quashing the order passed by the District Police
Chief, held that the power to order further investigation rests
either with the Magistrate concerned or a higher court, but not
with an investigation agency. The relevant paragraphs from the
judgment are reproduced as follows:
| “…..19. | The Chief Police Officer of a district is the |
|---|---|
| Superintendent of Police who is an officer of the Indian Police | |
| Service. Needless to state, an order from the District Police | |
| Chief is not the same as an order issued by the Magistrate |
17
| concerned. Referring to | Vinay Tyagi | [ | Vinay Tyagi | v. | Irshad Ali | , | ||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] , this Court in | ||||||||||||
| Devendra Nath Singh v. State of Bihar [Devendra Nath Singh<br>v. State of Bihar, (2023) 1 SCC 48 : (2023) 1 SCC (Cri) 270] | v. | State of Bihar | [ | Devendra Nath Singh | ||||||||
| v. | , (2023) 1 SCC 48 : (2023) 1 SCC (Cri) 270] | |||||||||||
| noted that there is no specific requirement to seek leave of the | ||||||||||||
| court for further investigation or to file a supplementary report | ||||||||||||
| but the investigating agencies, have not only understood it to | ||||||||||||
| be so but have also adopted the same as a legal requirement. | ||||||||||||
| The doctrine of contemporanea exposito aids such an | ||||||||||||
| interpretation of matters which have been long understood and | ||||||||||||
| implemented in a particular manner to be accepted into the | ||||||||||||
| interpretive process. In other words, the requirement of | ||||||||||||
| permission for further investigation or to file a supplementary | ||||||||||||
| report is accepted within law and is therefore required to be | ||||||||||||
| complied with. | ||||||||||||
| 20. In the facts at hand, it is clear that such a permission was | ||||||||||||
| never taken, granted or ordered. Consequently, FR-II is without | ||||||||||||
| basis. In FR-I it has been stated that in the absence of any | ||||||||||||
| documents in respect of the financial transactions, the instant | ||||||||||||
| case may be treated as a false case. This, then would | ||||||||||||
| necessarily imply that after due investigation conducted by a | ||||||||||||
| duly authorised person, the conclusion is that the ingredients | ||||||||||||
| of the section mentioned in the FIR have not been met and no | ||||||||||||
| case is made out. |
(Emphasis Supplied)
28. In light of the legal position as settled by this Court through the
above judgments, it is safe to say that the power to direct further
investigation in a case rests solely at the discretion of the
Magistrate/Court concerned. In the event, the police/
investigation agency is of the opinion that further investigation is
18
necessary in any particular case to cull out complete facts and
truth in the case, it is binding upon them to file an appropriate
application before the Magistrate/Court, without directing an
order for further investigation by themselves. Once such an
application is filed by the investigation agency, the
Magistrate/Court would apply its judicial mind, in light of the facts
and circumstances of the particular case and the reasons
demonstrated by the investigating agency, in order to exercise its
discretion for exercise of its power to decide whether or not further
investigation is to be ordered under the purview of Section 173(8)
CrPC.
29. In the present case, the Under Secretary of the State of Uttar
Pradesh, vide its letter dated 06.06.2019, directed that the
investigation in the matter would be conducted by the CBCID. The
Under Secretary also recommended that further investigation
under Section 173(8) CrPC be conducted through its letter
addressed to the NHRC dated 12.02.2021. Consequently, the
Investigating Officer of the CBCID wrote a letter dated 22.04.2021
to the Judicial Magistrate, Firozabad, requesting to grant
19
permission to conduct further investigation u/S. 173(8) CrPC and
provide a copy of the case diary. However, the Court did not pass
any order to the extent of requisitioning the Investigating Officer
to conduct further investigation.
30. Further, vide letter dated 26.04.2021, the Superintendent of Police
informed the Additional Superintendent of Police/Divisional
Officer, Crime Branch, A.A.D., Agra, about the nomination of the
IO in the present case and directed him to complete the
investigation expeditiously, submit monthly progress reports, and
forward the final report upon completion of the investigation.
31. Thus, it is amply clear that the Superintendent of Police acted in
complete defiance of the procedure laid down under the law while
passing orders directing further investigation without seeking
leave of the Court. It is an unbecoming conduct from the officer of
such a rank to exercise unfettered powers, in excess of its
jurisdiction, thereby undermining the authority vested in the
Court of law.
20
32. The learned AAG relied upon the judgment of this Court in
Dharam Pal ( supra ) to suggest that the investigating authority
has unrestricted powers to conduct further investigation and is
only required to inform the Court about the same. However, we
find the reliance placed by learned AAG to be misplaced as the
facts of the said case are completely in contrast with the present
one. In Dharam Pal ( supra ), this Court was dealing with a
situation wherein the complainant sought transfer of the
investigation to the CBI, alleging several lapses in the
investigation. The High Court declined such a transfer, noting that
the trial had already commenced and several witnesses had been
examined. This Court, therein, while setting aside the judgment of
the High Court, transferred the investigation ( de novo ) to the CBI
and held that while the constitutional courts can direct fresh/de
novo/reinvestigation. Additionally, in Dharam Pal ( supra ), this
Court, while referring to Vinay Tyagi ( supra ), has held that the
Magistrate is empowered to direct “further investigation” as per its
discretion and based upon the facts and circumstances of the
case.
21
33. In view of the above discussion, the impugned judgment dated
20.11.2023 passed by the High Court is set aside. In addition to
that, the Orders dated 06.06.2019 and 26.04.2021 passed by the
Respondent No. 1 and Respondent No. 4, respectively, directing
further investigation, are also quashed and set aside.
34. We further make it clear that the opinions expressed herein should
cause no prejudice to the criminal revision preferred by the
original complainant or any other proceeding related to FIR No.
70/2013. The Trial Court shall decide the Criminal Miscellaneous
Case No. 440 of 2017 and any other proceeding, if any, on its own
merits.
35. Accordingly, the appeal is allowed. Pending applications, if any,
shall stand disposed of.
……………………………J.
(RAJESH BINDAL)
…………………………. J.
(VIJAY BISHNOI)
NEW DELHI,
Dated: ---- JANUARY, 2026
22