In another case titled as Amitbhai Anilchandra Shah
versus Central Bureau of Investigation and Anr., reported in
2013 AIR SCW 2353, the Apex Could has laid down the same law.
It is apt to reproduce relevant portion of para 52 and para 53 of
the judgment herein:
"52. .....................
d) Further, on receipt of information about a
cognizable offence or an incident giving rise
to a cognizable offence or offences and on
entering FIR in the Station House Diary, the
officer-in-charge of the police station has to
investigate not merely the cognizable offence
reported in the FIR but also other connected
offences found to have been committed in
the course of the same transaction or the
same occurrence and file one or more reports
as provided in Section 173 of the Code. Subsection
(8) of Section 173 of the Code
empowers the police to make further
investigation, obtain further evidence (both
oral and documentary) and forward a further
report (s) to the Magistrate. A case of fresh
investigation based on the second or
successive FIRs not being a counter case, filed
in connection with the same or connected
cognizable offence alleged to have been
committed in the course of the same
transaction and in respect of which pursuant
to the first FIR either investigation is
underway or final report under Section
173(2) has been forwarded to the Magistrate,
is liable to be interfered with by the High
Court by exercise of power under Section 482
of the Code or under Articles 226/227 of the
Constitution.
e) First Information Report is a report which
gives first information with regard to any
offence. There cannot be second FIR in
respect of the same offence/event because
whenever any further information is received
by the investigating agency, it is always in
furtherance of the first FIR.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2526 of 2015-C
Decided on: 30.05.2015
Raj Pal Singh V Central Bureau of Investigation & others
Coram
Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Mr. Justice Tarlok Singh Chauhan, Judge.
Dated;May 30, 2015
Citation;2015 CRLJ 3032
Petitioner has invoked the jurisdiction of this Court
by the medium of the writ petition in hand seeking transfer of the
investigation of FIR No. 128 of 2014, registered at Police
Station Dharampur, District Solan, H.P. to the Central Bureau of
Investigation (for short "CBI"); for declaring the cancellation
report, if any filed by the police during the pendency of the writ
petition, to be illegal and in the alternative, has also sought
transfer of investigation of the said FIR to Delhi, on the grounds
taken in the memo of writ petition.
2. It is averred that deceased-Satish Bosaya, a
businessman, was having some dispute with respondent No. 5 and
were trying to arrive at a settlement. On 08.08.2014, the petitioner
received information that Shri Satish Bosaya sustained injuries in
a car accident on 07.08.2014 at 7.45 p.m. at Dharampur, District
Solan, H.P., constraining him, his friend and the driver to rush to
Dharampur. In the post-mortem report conducted at Indira
Gandhi Medical College and Hospital, Shimla (for short "IGMC")
(Annexure P-1), it is recorded that the deceased died due to
firearm injury. A complaint was lodged on 10.08.2014 at Amar
Colony Police Station, Delhi (Annexure P-2) and representation
was also made to the Director General of Police, Himachal Pradesh
on 11.08.2014 (Annexure P-3) for registration of a case.
Accordingly, FIR No. 128 of 2014 was registered under Section 302
of the Indian Penal Code (for short "IPC") at Police Station
Dharampur, District Solan, on 12.08.2014 (Annexure P-4) and FIR
No. 673 of 2014 was registered at Amar Colony Police Station,
South East District, New Delhi on 14.08.2014 (Annexure P-5). On
21.08.2014, the Deputy Commissioner of Police, South East District,
New Delhi, issued a letter to the SSP, District Solan, Himachal
Pradesh for transfer of the investigation of FIR No. 128 of 2014
from Dharampur to Delhi (Annexure P-6). The petitioner also
filed various representations to the authorities in Himachal
Pradesh for transferring the investigation of the said FIR to
Delhi (Annexure P-8). However, the Investigating Officer at
Dharampur, District Solan, H.P. conducted the investigation and
reported that it was a case of suicide. Accordingly, the
Superintendent of Police, Solan, vide its letter, dated 14.11.2014
(Annexure P-9) informed the Director General of Police, Shimla
that no case for transfer of the investigation to Delhi was made
out, constraining the petitioner to file a writ petition before the
Hon'ble High Court of Delhi being W.P. (CRL) No. 1847 of 2014,
which was withdrawn on 16.04.2015 (Annexure P-10).
3. We have heard learned counsel for the petitioner.
4. The following questions arise for consideration in
this writ petition:
(i) Whether after submission of the
final report in terms of Section 173 of
the Code of the Criminal Procedure
(for short "CrPC") before the Court of
competent jurisdiction, a writ can be
filed for transferring the
investigation?
(ii) Whether this Court has the
jurisdiction to transfer the
investigation of a case from Police
Station Dharampur, District Solan,
H.P. to Delhi?
(iii) Whether in the given
circumstances, investigation can be
entrusted to any other agency, i.e.
CBI?
(iv) Whether this Court is having
power to declare the closure report
submitted in terms of Section 173 (2)
CrPC as illegal?
5. The writ petition merits to be dismissed in limine for
the following reasons:
6. Chapter XII of the CrPC contains Sections 154 to 176,
which provide the mechanism how to conduct investigation. It
provides that in case a report is made about commission of any
offence, First Information Report (for short "FIR") is to be
registered in terms of Section 154 CrPC, which sets the
investigating agency into motion, investigation is to be conducted
in terms of the mandate of the said Chapter and on completion,
report is to be submitted in terms of Section 173 CrPC before the
Court of competent jurisdiction. The final report is to be
considered by the Court of competent jurisdiction in order to pass
appropriate orders after perusal of the record. In case, closure
report is made, it is for the Magistrate/Court of competent
jurisdiction either to accept the report or to direct further
investigation or to take cognizance and issue process. But, in case
the Magistrate decides not to take cognizance and accepts the
closure report, then it has to hear the informant.
7. Admittedly, in the case in hand, closure report has
been submitted to the Court of competent jurisdiction and it is for
that Court/Magistrate to decide whether the closure report is to
be accepted or otherwise. Thus, the alternate remedy is available
to the writ petitioner. In the given circumstances, the writ Court
cannot interfere.
8. A similar matter came up for consideration before
the Apex Court in a case titled as Bhagwant Singh versus
Commissioner of Police and another, reported in AIR 1985
Supreme Court 1285, wherein it has been held that in case the
Magistrate decides not to take cognizance of offence or to drop
the proceedings against some persons mentioned in the FIR, the
Magistrate must give notice and hear the informant. It is apt to
reproduce relevant portion of para 4 of the judgment herein:
"4. ....................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 by the
provisions contained in sub-sec. (2) of S. 154,
sub-sec. (2) of S. 157 and sub-sec. (2)(ii) of
Section 173, it must be presumed that 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
officer in charge of a police station under
sub-section (2)(i) of S. 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 subsection
(2)(i) of S. 173 decides not to take
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 sub-section (2)(i)
of S. 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 heard at the time
when the report is considered by the
Magistrate."
9. The same principle has been laid down by the Apex
Court in a case titled as Chittaranjan Mirdha versus Dulal Ghosh
& Anr., reported in 2009 AIR SCW 3873. It is apt to reproduce
paras 14 and 17 of the judgment herein:
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"14. 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 issue process, or (2) may disagree with
the report and drop the proceeding, or (3)
may direct further investigation under
Section 156(3) and require the police to
make a further report. The report may on
the other hand state that according to the
police, no offence appears to have been
committed. When such a report is placed
before the Magistrate, he has again the
option of adopting one of the three courses
open i.e., (1) he may accept the report and
drop the proceeding; or (2) he may disagree
with the report and take the view that there
is sufficient ground for further proceeding,
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 position is, therefore,
now well-settled that upon receipt of a police
report under Section 173(2) a Magistrate is
entitled to take cognizance of an offence
under Section 190(1)(b) of the Code even if
the police report is to the effect that no case
is made out against the accused. The
Magistrate can take into account the
statements of the witnesses examined by the
police during the investigation and take
cognizance of the offence complained of and
order the issue of process to the accused.
Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence
only if the Investigating Officer gives an
opinion that the investigation has made out
a case against the accused. The Magistrate
can ignore the conclusion arrived at by the
Investigating Officer and independently
apply his mind to the facts emerging from
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the investigation and take cognizance of the
case, if he thinks fit, exercise of his powers
under Section 190(1)(b) and direct the issue
of process to the accused. The Magistrate is
not bound in such a situation to follow the
procedure laid down in Sections 200 and
202 of the Code for taking cognizance of a
case under Section 190(1)(a) though it is
open to him to act under Section 200 or
Section 202 also. [See M/s. India Sarat Pvt.
Ltd. v. State of Karnataka and another (AIR
1989 SC 885)]. The informant is not
prejudicially affected when the Magistrate
decides to take cognizance and to proceed
with the case. But where the Magistrate
decides that sufficient ground does not
subsist for proceeding further and drops the
proceeding or takes the view that there is
material for proceeding against some and
there are insufficient grounds in respect of
others, the informant would certainly be
prejudiced as the First Information Report
lodged becomes wholly or partially
ineffective. Therefore, this Court indicated in
Bhagwant Singh's case (supra) that where
the Magistrate decides not to take cognizance
and to drop the proceeding or takes a view
that there is no sufficient ground for
proceeding against some of the persons
mentioned in the First Information Report,
notice to the informant and grant of
opportunity of being heard in the matter
becomes mandatory. As indicated above,
there is no provision in the Code for issue of
a notice in that regard.
15. ....................
16. ..................
17. Therefore, the stress is on the issue of
notice by the Magistrate at the time of
consideration of the report. If the informant
is not aware as to when the matter is to be
considered, obviously, he cannot be faulted,
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even if protest petition in reply to the notice
issued by the police has been filed belatedly.
But as indicated in Bhagwant Singh's case
(supra) the right is conferred on the
informant and none else."
10. It would also be profitable to reproduce paras 17 and
20 of the judgment rendered by the Apex Court in a case titled
as Samaj Parivartan Samudaya & Ors. versus State of
Karnataka & Ors., reported in 2012 AIR SCW 3323, herein:
"17. The machinery of criminal investigation
is set into motion by the registration of a
First Information Report (FIR), by the
specified police officer of a jurisdictional
police station or otherwise. The CBI, in terms
of its manual has adopted a procedure of
conducting limited pre- investigation inquiry
as well. In both the cases, the registration of
the FIR is essential. A police investigation
may start with the registration of the FIR
while in other cases (CBI, etc.), an inquiry
may lead to the registration of an FIR and
thereafter regular investigation may begin
in accordance with the provisions of the
CrPC. Section 154 of the CrPC places an
obligation upon the authorities to register
the FIR of the information received, relating
to commission of a cognizable offence,
whether such information is received orally
or in writing by the officer in- charge of a
police station. A police officer is authorised
to investigate such cases without order of a
Magistrate, though, in terms of Section 156(3)
Cr.P.C. the Magistrate empowered under
Section 190 may direct the registration of a
case and order the police authorities to
conduct investigation, in accordance with
the provisions of the CrPC. Such an order of
the Magistrate under Section 156(3) CrPC is
in the nature of a pre-emptory reminder
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or intimation to police, to exercise their
plenary power of investigation under that
Section. This would result in a police report
under Section 173, whereafter the Magistrate
may or may not take cognizance of the
offence and proceed under Chapter XVI CrPC.
The Magistrate has judicial discretion, upon
receipt of a complaint to take cognizance
directly under Section 200 CrPC, or to adopt
the above procedure. [Ref. Gopal Das Sindhi
& Ors. v. State of Assam & Anr., [AIR 1961 SC
986]; Mohd. Yusuf v. Smt. Afaq Jahan & Anr.,
[AIR 2006 SC 705]; and Mona Panwar v. High
Court of Judicature of Allahabad Through its
Registrar & Ors., [(2011) 3 SCC 496 : (AIR 2011
SC 529)].
18. ................
19. ...............
20. Thus, the CrPC leaves clear scope for
conducting of further inquiry and filing of a
supplementary charge sheet, if necessary,
with such additional facts and evidence as
may be collected by the investigating officer
in terms of sub-Sections (2) to (6) of Section
173 CrPC to the Court."
11. The Apex Court also discussed this issue in the
judgment rendered in a case titled as Vinay Tyagi versus Irshad
Ali alias Deepak and Ors., reported in 2013 AIR SCW 220. It is
apt to reproduce para 21 of the judgment herein:
"21. Referring to the provisions of Section
173 of the Code, the Court observed that the
police has the power to conduct further
investigation in terms of Section 173(8) of the
Code but also opined that even the Trial
Court can direct further investigation in
contradistinction to fresh investigation, even
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where the report has been filed. It will be
useful to refer to the following paragraphs of
the judgment wherein the Court while
referring to the case of Mithabhai Pashabhai
Patel v. State of Gujarat (AIR 2009 SC (Supp)
1658 : 2009 AIR SCW 3780) (supra) held as
under:
"13. It is, however, beyond any cavil that
'further investigation' and 'reinvestigation'
stand on different footing. It may be that in
a given situation a superior court in exercise
of its constitutional power, namely, under
Articles 226 and 32 of the Constitution of
India could direct a 'State' to get an offence
investigated and/or further investigated by
a different agency. Direction of a
reinvestigation, however, being forbidden in
law, no superior court would ordinarily issue
such a direction. Pasayat, J. in
Ramachandran v. R. Udhayakumar, (2008) 5
SCC 413 : (AIR 2008 SC 3102 : 2008 AIR SCW
5469) opined as under: (SCC p. 415, para 7) :
(Para 6 of AIR, AIR SCW)
'7. At this juncture it would be necessary to
take note of Section 173 of the Code. From a
plain reading of the above section it is
evident that even after completion of
investigation under sub-section (2) of Section
173 of the Code, the police has right to further
investigate under sub- section (8), but not
fresh investigation or reinvestigation.' A
distinction, therefore, exists between a
reinvestigation and further investigation.
xxx xxx xxx
15. The investigating agency and/or a court
exercise their jurisdiction conferred on them
only in terms of the provisions of the Code.
The courts subordinate to the High Court
even do not have any inherent power under
Section 482 of the Code of Criminal Procedure
or otherwise. The precognizance jurisdiction
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to remand vested in the subordinate courts,
therefore, must be exercised within the four
corners of the Code."
12. Admittedly, in this case, closure report has been
submitted, the matter is sub judice and if this Court interferes,
that will amount to take over the jurisdiction and powers of the
Magistrate, who is having the power and jurisdiction in terms of
the mechanism contained in the CrPC, as discussed hereinabove.
The first question is answered accordingly.
13. It is worthwhile to record herein that the writ
petitioner had also filed a Writ Petition (Criminal) on
09.09.2014 before the Hon'ble High Court of Delhi, which was
withdrawn on 16.04.2015, i.e. after a lapse of more than seven
months.
14. Learned counsel for the writ petitioner has filed copy
of the said writ petition, made part of the file. The writ petitioner
had sought almost the same relief in the said writ petition, which
he has sought in the present writ petition. It is apt to reproduce
the prayer clause of the said writ petition herein:
"It is therefore most respectfully prayed that
this Hon'ble Court may be pleased to:
a) issue a Writ, Order or Direction in the
nature of mandamus or any other Writ,
Order or Direction that the FIR No. 128/2014
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dated 12.08.2014 under Section 302 of the
Indian Penal Code 1860 registered in the
State of Himachal Pradesh at Police Station
Dharampur, Solan, Himachal Pradesh be
transferred to New Delhi and investigated
along with FIR No. 673/2014 registered under
Section 364 IPC at Delhi, Amar Colony Police
Station or
b) Alternatively issue a Writ, Order or
Direction in the nature of mandamus or any
other Writ, Order or Direction that the FIR
No. 128/2014 dated 12.08.2014 under Section
302 of the Indian Penal Code 1860 registered
in the State of Himachal Pradesh at Police
Station Dharampur, Solan, Himachal
Pradesh and FIR No. 673/2014 registered
under Section 364 IPC at Delhi, Amar Colony
Police Station, both be investigated by an
Independent Agency
c) Pass such other further Order(s) as
deemed fit and proper in the facts and
circumstances of the case and in the interest
of justice."
15. In that writ petition, learned counsel for the State
had brought to the notice of the Hon'ble High Court that
investigations were complete and cancellation report had been
prepared. Thereafter, the writ petitioner withdrew the writ
petition with liberty to take other legal remedies.
16. It is apt to reproduce the relevant portion of the
order made by the Hon'ble High Court of Delhi in the said writ
petition (Annexure P-10) herein:
"Learned counsel for respondent No.
2 submits that investigations are complete
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and cancellation report has been prepared
which is likely to be filed in the Court. In
view of this statement, learned counsel for
the petitioner seeks leave to withdraw
present writ petition with liberty to take
other legal remedies as may be available to
the petitioner under the law.
Writ petition is disposed of as withdrawn."
17. A perusal of the order (supra) reveals that the writ
petitioner has withdrawn the said writ petition with liberty to
seek other legal remedies. The words 'other legal remedies' mean
'the remedies other than the writ petition'. Thus, the writ petition is
not maintainable.
18. The next question is - when the investigation is
already complete, can the High Court direct further investigation
and transfer the investigation to other agency? The answer is in
the negative for the following reasons:
19. Investigation has been completed and it is yet to be
determined by the Court of competent jurisdiction as to whether
the closure report is to be accepted or otherwise? So, it is the
domain of the Magistrate to pass appropriate orders and the Writ
Court cannot interfere at this stage.
20. The writ petition is not maintainable for the reason
that the writ petitioner had sought the same relief before the
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Hon'ble High Court of Delhi by the medium of writ petition
(supra), at the cost of repetition, which was withdrawn.
21. Whether further investigation is permissible, is also
to be thrashed out by the Magistrate/Court of competent
jurisdiction in terms of Section 173(8) CrPC. Re-investigation is
unknown to law.
22. This issue has been discussed in a series of judgments
by the Apex Court.
23. The Apex Court in a case titled as State of Bihar and
another versus J.A.C. Saldanna and others, reported in AIR
1980 Supreme Court 326, held that power of the police to
investigate into a cognizable offence is ordinarily not to be
interfered with. It is apt to reproduce paras 19, 25 and 26 of the
judgment herein:
"19. The power of the Magistrate under
Section 156 (3) to direct further investigation
is clearly an independent power and does
not stand in conflict with the power of the
State Government as spelt out hereinbefore.
The power conferred upon the Magistrate
under Section 156 (3) can be exercised by the
Magistrate even after submission of a report
by the investigating officer which would
mean that it would be open to the Magistrate
not to accept the conclusion of the
investigating officer and direct further
investigation. This provision does not in any
way affect the power of the investigating
officer to further investigate the c ase even
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after submission of the report as provided in
Section 173 (8). Therefore, the High Court
was in error in holding that the State
Government in exercise of the power of
superintendence under S. 3 of the Act lacked
the power to direct further investigation
into the case. In reaching this conclusion we
have kept out of consideration the provision
contained in Section 156 (2) that an
investigation by an officer-in-charge of a
police station, which expression includes
police officer superior in rank to such officer,
cannot be questioned on the ground that
such investigating officer had no
jurisdiction to carry on the investigation;
otherwise that provision would have been a
short answer to the contention raised on
behalf of respondent 1.
20 to 24. ...................
25. There is a clear-cut and well demarcated
sphere of activity in the field of crime
detection and crime punishment.
Investigation of an offence is the field
exclusively reserved for the executive
through the police department, the
superintendence over which vests in the
State Government. The executive which is
charged with a duty to keep vigilance over
law and order situation is obliged to prevent
crime and if an offence is alleged to have
been committed it is its bounden duty to
investigate into the offence and bring the
offender to book. Once it investigates and
finds an offence having been committed it is
its duty to collect evidence for the purpose of
proving the offence. Once that is completed
and the investigating officer submits report
to the Court requesting the Court to take
cognisance of the offence under Section 190
of the Code its duty comes to an end. On a
cognizance of the offence being taken by the
Court the police function of investigation
comes to an end subject to the provision
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contained in Section 173 (8), there
commences the adjudicatory function of the
judiciary to determine whether an offence
has been committed and if so, whether by
the person or persons charged with the crime
by the police in its report to the Court, and
to award adequate punishment according to
law for the offence proved to the satisfaction
of the Court. There is thus a well defined and
well demarcated function in the field of
crime detection and its subsequent
adjudication between the police and the
Magistrate. This has been recognised way
back the King Emperor v. Khwaja Nazir
Ahmad, (1944) 71 Ind App 203 at p. 213,
where the Privy Council observed as under :
"In India, as has been shown, there is a
statutory right on the part of the police
to investigate the circumstances of an
alleged cognizable crime without
requiring any authority from the
judicial authorities and it would, as
their Lordships think, be an
unfortunate result if it should be
held possible to interfere with those
statutory rights by an exercise of the
inherent jurisdiction of the Court. The
functions of the judiciary and the
police are complementary, not
overlapping, and the combination of
individual liberty with a due
observance of law and order is only to
be obtained by leaving each to exercise
its own function, always, of course,
subject to the right of the Court to
intervene in an appropriate case when
moved under Section 491 of the
Criminal Procedure Code to give
directions in the nature of habeas
corpus. In such a case as the present,
however, the court's functions begin
when a charge is preferred before it,
and not until then".
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26. This view of the Judicial Committee
clearly demarcates the functions of the
executive and the judiciary in the field of
detection of crime and its subsequent trial
and it would appear that the power of the
police to investigate into a cognizable offence
is ordinarily not to be interfered with by the
judiciary."
24. The Apex Court in a cases titled as Ramachandran
versus R. Udayakumar & Ors., reported in 2008 AIR SCW 5469,
and Reeta Nag versus State of West Bengal & Ors., reported in
2010 AIR SCW 476, held that there can be further investigation
if required, but not fresh investigation or re-investigation. It is
apt to reproduce para 19 of the judgment in Reeta Nag's case
(supra) herein:
"19. What emerges from the above-mentioned
decisions of this Court is that once a chargesheet
is filed under Section 173(2) Cr.P.C. and
either charge is framed or the accused are
discharged, the Magistrate may, on the basis of
a protest petition, take cognizance of the offence
complained of or on the application made by the
investigating authorities permit further
investigation under Section 173(8) . The
Magistrate cannot suo motu direct a further
investigation under Section 173(8) Cr.P.C. or
direct a re-investigation into a case on account
of the bar of Section 167(2) of the Code."
25. The Apex Court in Samaj Parivartan Samudaya's
case (supra) held that further investigation is permissible,
however, re-investigation is prohibited. It is apt to reproduce
para 18 of the judgment herein:
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"18. Once the investigation is conducted in
accordance with the provisions of the CrPC,
a police officer is bound to file a report before
the Court of competent jurisdiction, as
contemplated under Section 173 CrPC, upon
which the Magistrate can proceed to try the
offence, if the same were triable by such
Court or commit the case to the Court of
Sessions. It is significant to note that the
provisions of Section 173(8) CrPC open with
non-obstante language that nothing in the
provisions of Section 173(1) to 173(7) 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. Thus, under Section 173(8),
where charge-sheet has been filed, that Court
also enjoys the jurisdiction to direct further
investigation into the offence. {Ref., Hemant
Dhasmana v. Central Bureau of Investigation
& Anr., [(2001) 7 SCC 536v: (Air 2001 SC
2721)]}. This power cannot have any
inhibition including such requirement as
being obliged to hear the accused before any
such direction is made. It has been held in
Shri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwandha Maharaj v. State of
Andhra Pradesh and Ors., (JT 1999 (4) SC
537 : (AIR 1999 SC 2332) that the casting of
any such obligation on the Court would only
result in encumbering the Court with the
burden of searching for all potential accused
to be afforded with the opportunity of being
heard."
26. It is also apt to reproduce paras 16, 18, 22, 23, 30, 31,
33 and 40 of the judgment rendered by the Apex Court in Vinay
Tyagi's case (supra) herein:
"16. However, in the case of a 'fresh
investigation', 'reinvestigation' or 'de novo
investigation' there has to be a definite
order of the court. The order of the Court
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unambiguously should state as to whether
the previous investigation, for reasons to be
recorded, is incapable of being acted upon.
Neither the Investigating agency nor the
Magistrate has any power to order or
conduct 'fresh investigation'. This is
primarily for the reason that it would be
opposed to the scheme of the Code. It is
essential that even an order of 'fresh'/'de
novo' investigation passed by the higher
judiciary should always be coupled with a
specific direction as to the fate of the
investigation already conducted. The cases
where such direction can be issued are few
and far between. This is based upon a
fundamental principle of our criminal
jurisprudence which is that it is the right of
a suspect or an accused to have a just and
fair investigation and trial. This principle
flows from the constitutional mandate
contained in Articles 21 and 22 of the
Constitution of India. Where the
investigation ex facie is unfair, tainted, mala
fide and smacks of foul play, the courts
would set aside such an investigation and
direct fresh or de novo investigation and, if
necessary, even by another independent
investigating agency. As already noticed,
this is a power of wide plenitude and,
therefore, has to be exercised sparingly. The
principle of rarest of rare cases would
squarely apply to such cases. Unless the
unfairness of the investigation is such that it
pricks the judicial conscience of the Court,
the Court should be reluctant to interfere in
such matters to the extent of quashing an
investigation and directing a 'fresh
investigation'. In the case of Sidhartha
Vashisht v. State (NCT of Delhi), [(2010) 6
SCC 1 : (AIR 2010 SC 2352 : 2010 AIR SCW
4302)], the Court stated that it is not only the
responsibility of the investigating agency,
but also that of the courts to ensure that
investigation is fair and does not in any way
hamper the freedom of an individual except
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in accordance with law. An equally
enforceable canon of the criminal law is that
high responsibility lies upon the
investigating agency not to conduct an
investigation in a tainted or unfair manner.
The investigation should not prima facie be
indicative of a biased mind and every effort
should be made to bring the guilty to law as
nobody stands above law de hors his position
and influence in the society. The maxim
contra veritatem lex nunquam aliquid
permittit applies to exercise of powers by the
courts while granting approval or declining
to accept the report. In the case of Gudalure
M.J. Cherian & Ors. v. Union of India & Ors.,
[(1992) 1 SCC 397], this Court stated the
principle that in cases where charge-sheets
have been filed after completion of
investigation and request is made belatedly
to reopen the investigation, such
investigation being entrusted to a specialized
agency would normally be declined by the
court of competent jurisdiction but
nevertheless in a given situation to do justice
between the parties and to instil confidence
in public mind, it may become necessary to
pass such orders. Further, in the case of R.S.
Sodhi, Advocate v. State of U.P., [1994 SCC
Supp. (1) 143 : (AIR 1994 SC 38 : 1994 AIR SCW
4039), where allegations were made against
a police officer, the Court ordered the
investigation to be transferred to CBI with
an intent to maintain credibility of
investigation, public confidence and in the
interest of justice. Ordinarily, the courts
would not exercise such jurisdiction but the
expression 'ordinarily' means normally and
it is used where there can be an exception. It
means in the large majority of cases but not
invariably. 'Ordinarily' excludes extraordinary
or special circumstances. In other
words, if special circumstances exist, the
court may exercise its jurisdiction to direct
'fresh investigation' and even transfer cases
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to courts of higher jurisdiction which may
pass such directions.
17. ...................
18. Next question that comes up for
consideration of this Court is whether the
empowered Magistrate has the jurisdiction
to direct 'further investigation' or 'fresh
investigation'. As far as the latter is
concerned, the law declared by this Court
consistently is that the learned Magistrate
has no jurisdiction to direct 'fresh' or 'de
novo' investigation. However, once the report
is filed, the Magistrate has jurisdiction to
accept the report or reject the same right at
the threshold. Even after accepting the
report, it has the jurisdiction to discharge
the accused or frame the charge and put
him to trial. But there are no provisions in
the Code which empower the Magistrate to
disturb the status of an accused pending
investigation or when report is, filed to wipe
out the report and its effects in law.
Reference in this regard can be made to K.
Chandrasekhar v. State of Kerala, [(1998) 5
SCC 223 : (AIR 1998 SC 2001 : 1998 AIR SCW
1852)]; Ramachandran v. R. Udhayakumar,
[(2008) 5 SCC 413 : (AIR 2008 SC 3102 : 2008
AIR SCW 5469)], Nirmal Singh Kahlon v State
of Punjab & Ors., [(2009) 1 SCC 441 : (AIR 2009
SC 984 : 2009 AIR SCW 60)]; Mithabhai
Pashabhai Patel & Ors. v. State of Gujarat,
[(2009) 6 SCC 332 : (AIR 2009 SC (Supp) 1658 :
2009 AIR SCW 3780)]; and Babubhai v. State
of Gujarat, [(2010) 12 SCC 254 : (2010) AIR
SCW 5126)].
19 to 21. ................
22. In the case of Minu Kumari & Anr. v.
State of Bihar & Ors., [(2006) 4 SCC 359 : (AIR
2006 SC 1937 : 2006 AIR SCW 2330)], this
Court explained the powers that are vested
in a Magistrate upon filing of a report in
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terms of Section 173(2)(i) and the kind of
order that the Court can pass. The Court held
that when a report is filed before a
Magistrate, he may either (i) accept the
report and take cognizance of the offences
and issue process; or (ii) may disagree with
the report and drop the proceedings; or (iii)
may direct further investigation under
Section 156(3) and require the police to make
a further report.
23. This judgment, thus, clearly shows that
the Court of Magistrate has a clear power to
direct further investigation when a report is
filed under Section 173(2) and may also
exercise such powers with the aid of Section
156(3) of the Code. The lurking doubt, if any,
that remained in giving wider interpretation
to Section 173(8) was removed and
controversy put to an end by the judgment
of this Court in the case of Hemant
Dhasmana v. CBI, [(2001) 7 SCC 536 : (AIR
2001 SC 2721 : 2001 AIR SCW 3064)] where
the Court held that although the said order
does not, in specific terms, mention the
power of the court to order further
investigation, the power of the police to
conduct further investigation envisaged
therein can be triggered into motion at the
instance of the court. When any such order
is passed by the court, which has the
jurisdiction to do so, then such order should
not even be interfered with in exercise of a
higher court's revisional jurisdiction. Such
orders would normally be of an advantage to
achieve the ends of justice. It was clarified,
without ambiguity, that the magistrate, in
exercise of powers under Section 173(8) of
the Code can direct the CBI to further
investigate the case and collect further
evidence keeping in view the objections
raised by the appellant to the investigation
and the new report to be submitted by the
Investigating Officer, would be governed by
sub-Section (2) to sub-Section (6) of Section
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173 of the Code. There is no occasion for the
court to interpret Section 173(8) of the Code
restrictively. After filing of the final report,
the learned Magistrate can also take
cognizance on the basis of the material
placed on record by the investigating agency
and it is permissible for him to direct further
investigation. Conduct of proper and fair
investigation is the hallmark of any criminal
investigation.
24 to 29. .........................
30. 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 :
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.
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.
3. The view expressed in (2) above is in
conformity with the principle of law stated
in Bhagwant Singh's case by a three Judge
Bench and thus in conformity with the
doctrine of precedence.
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,
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such power would have to be read into the
language of Section 173(8).
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.
6. It has been a procedure of proprietary that
the police has to seek permission of the Court
to continue 'further investigation' and file
supplementary chargesheet. 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.
31. Having discussed the scope of power of
the Magistrate under Section 173 of the Code,
now we have to examine the kind of reports
that are contemplated under the provisions
of the Code and/or as per the judgments of
this Court. The first and the foremost
document that reaches the jurisdiction of
the Magistrate is the First Information
Report. Then, upon completion of the
investigation, the police are required to file a
report in terms of Section 173(2) of the Code.
It will be appropriate to term this report as a
primary report, as it is the very foundation
of the case of the prosecution before the
Court. It is the record of the case and the
documents annexed thereto, which are
considered by the Court and then the Court
of the Magistrate is expected to exercise any
of the three options afore-noticed. Out of the
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stated options with the Court, the
jurisdiction it would exercise has to be in
strict consonance with the settled principles
of law. The power of the magistrate to direct
'further investigation' is a significant power
which has to be exercised sparingly, in
exceptional cases and to achieve the ends of
justice. To provide fair, proper and
unquestionable investigation is the
obligation of the investigating agency and
the Court in its supervisory capacity is
required to ensure the same. Further
investigation conducted under the orders of
the Court, including that of the Magistrate
or by the police of its own accord and, for
valid reasons, would lead to the filing of a
supplementary report. Such supplementary
report shall be dealt with as part of
the primary report. This is clear from the
fact that the provisions of Sections 173(3) to
173(6) would be applicable to such reports in
terms of Section 173(8) of the Code.
32. ........................
33. At this stage, we may also state another
well-settled canon of criminal jurisprudence
that the superior courts have the jurisdiction
under Section 482 of the Code or even Article
226 of the Constitution of India to direct
'further investigation', 'fresh' or 'de novo'
and even 'reinvestigation'. 'Fresh', 'de novo',
and 'reinvestigation' are synonymous
expressions and their result in law would be
the same. The superior courts are even
vested with the power of transferring
investigation from one agency to another,
provided the ends of justice so demand such
action. Of course, it is also a settled principle
that this power has to be exercised by the
superior courts very sparingly and with
great circumspection.
34 to 39. .....................
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40. We have already noticed that there is no
specific embargo upon the power of the
learned Magistrate to direct 'further
investigation' on presentation of a report in
terms of Section 173(2) of the Code. Any other
approach or interpretation would be in
contradiction to the very language of Section
173(8) and the scheme of the Code for giving
precedence to proper administration of
criminal justice. The settled principles of
criminal jurisprudence would support such
approach, particularly when in terms of
Section 190 of the Code, the Magistrate is the
competent authority to take cognizance of
an offence. It is the Magistrate who has to
decide whether on the basis of the record
and documents produced, an offence is made
out or not, and if made out, what course of
law should be adopted in relation to
committal of the case to the court of
competent jurisdiction or to proceed with
the trial himself. In other words, it is the
judicial conscience of the Magistrate which
has to be satisfied with reference to the
record and the documents placed before him
by the investigating agency, in coming to
the appropriate conclusion in consonance
with the principles of law. It will be a
travesty of justice, if the court cannot be
permitted to direct 'further investigation' to
clear its doubt and to order the investigating
agency to further substantiate its charge
sheet. The satisfaction of the learned
Magistrate is a condition precedent to
commencement of further proceedings before
the court of competent jurisdiction. Whether
the Magistrate should direct 'further
investigation' or not is again a matter which
will depend upon the facts of a given case.
The learned Magistrate or the higher court
of competent jurisdiction would direct
'further investigation' or 'reinvestigation' as
the case may be, on the facts of a given case.
Where the Magistrate can only direct
further investigation, the courts of higher
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jurisdiction can direct further, reinvestigation
or even investigation de novo
depending on the facts of a given case. It will
be the specific order of the court that would
determine the nature of investigation. In
this regard, we may refer to the observations
made by this court in the case of
Sivanmoorthy and Others v. State
represented by Inspector of Police, [(2010) 12
SCC 29 : (AIR 2011 SC (Cri) 2082)]. In light of
the above discussion, we answer the
questions formulated at the opening of this
judgment as follows:
Answer to Question No. 1
The court of competent jurisdiction is duty
bound to consider all reports, entire records
and documents submitted therewith by the
Investigating Agency as its report in terms
of Section 173(2) of the Code. This Rule is
subject to only the following exceptions;
a) Where a specific order has been passed by
the learned Magistrate at the request of the
prosecution limited to exclude any document
or statement or any part thereof;
b) Where an order is passed by the higher
courts in exercise of its extra- ordinary or
inherent jurisdiction directing that any of
the reports i.e. primary report,
supplementary report or the report
submitted on 'fresh investigation' or 'reinvestigation'
or any part of it be excluded,
struck off the court record and be treated as
non est.
Answer to Question No. 2
No investigating agency is empowered to
conduct a 'fresh', 'de novo' or 'reinvestigation'
in relation to the offence for
which it has already filed a report in terms
of Section 173(2) of the Code. It is only upon
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the orders of the higher courts empowered
to pass such orders that aforesaid
investigation can be conducted, in which
event the higher courts will have to pass a
specific order with regard to the fate of the
investigation already conducted and the
report so filed before the court of the learned
magistrate."
27. Applying the test to the instant case, it can be safely
said that it is the domain of the Magistrate/Court of competent
jurisdiction to pass appropriate orders, while examining the
report filed by the Investigating Agency.
28. Now, the next question is - whether second FIR is
permissible on the same allegations for the same cause, one at P.S.
Dharampur, District Solan and second at Delhi?
29. The Apex Court in the case titled as Anju Chaudhary
versus State of U.P. and Anr., reported in 2013 AIR SCW 245,
held that second FIR for the same incident is not permissible. It is
apt to reproduce para 23 of the judgment herein:
"23. The First Information Report is a very
important document, besides that it sets the
machinery of criminal law in motion. It is a
very material document on which the entire
case of the prosecution is built. Upon
registration of FIR, beginning of investigation
in a case, collection of evidence during
investigation and formation of the final
opinion is the sequence which results in filing
of a report under Section 173 of the Code.
The possibility that more than one piece of
information is given to the police officer in
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charge of a police station, in respect of the
same incident involving one or more than
one cognizable offences, cannot be ruled out.
Other materials and information given to or
received otherwise by the investigating
officer would be statements covered under
Section 162 of the Code. The Court in order to
examine the impact of one or more FIRs has
to rationalise the facts and circumstances of
each case and then apply the test of
'sameness' to find out whether both FIRs
relate to the same incident and to the same
occurrence, are in regard to incidents which
are two or more parts of the same
transaction or relate completely to two
distinct occurrences. If the answer falls in
the first category, the second FIR may be
liable to be quashed. However, in case the
contrary is proved, whether the version of
the second FIR is different and they are in
respect of two different incidents/crimes, the
second FIR is permissible, This is the view
expressed by this Court in the case of Babu
Babubhai v. State of Gujarat and Ors., [(2010)
12 SCC 254 : (2010 AIR SCW 5126)]. This
judgment clearly spells out the distinction
between two FIRs relating to the same
incident and two FIRs relating to different
incident or occurrences of the same incident
etc."
30. In another case titled as Amitbhai Anilchandra Shah
versus Central Bureau of Investigation and Anr., reported in
2013 AIR SCW 2353, the Apex Could has laid down the same law.
It is apt to reproduce relevant portion of para 52 and para 53 of
the judgment herein:
"52. .....................
d) Further, on receipt of information about a
cognizable offence or an incident giving rise
to a cognizable offence or offences and on
entering FIR in the Station House Diary, the
officer-in-charge of the police station has to
investigate not merely the cognizable offence
reported in the FIR but also other connected
offences found to have been committed in
the course of the same transaction or the
same occurrence and file one or more reports
as provided in Section 173 of the Code. Subsection
(8) of Section 173 of the Code
empowers the police to make further
investigation, obtain further evidence (both
oral and documentary) and forward a further
report (s) to the Magistrate. A case of fresh
investigation based on the second or
successive FIRs not being a counter case, filed
in connection with the same or connected
cognizable offence alleged to have been
committed in the course of the same
transaction and in respect of which pursuant
to the first FIR either investigation is
underway or final report under Section
173(2) has been forwarded to the Magistrate,
is liable to be interfered with by the High
Court by exercise of power under Section 482
of the Code or under Articles 226/227 of the
Constitution.
e) First Information Report is a report which
gives first information with regard to any
offence. There cannot be second FIR in
respect of the same offence/event because
whenever any further information is received
by the investigating agency, it is always in
furtherance of the first FIR.
............................
53. In the light of the specific stand taken by
the CBI before this Court in the earlier
proceedings by way of assertion in the form
of counter affidavit, status reports, etc. we
are of the view that filing of the second FIR
and fresh charge sheet is violative of
fundamental rights under Article 14, 20 and
21 of the Constitution since the same relate
to alleged offence in respect of which an FIR
had already been filed and the court has
taken cognizance. This Court categorically
accepted the CBI's plea that killing of
Tulsiram Prajapati is a part of the same
series of cognizable offence forming part of
the first FIR and in spite of the fact that this
Court directed the CBI to "take over" the
investigation and did not grant the relief as
prayed, namely, registration of fresh FIR, the
present action of CBI filing fresh FIR is
contrary to various judicial pronouncements
which is demonstrated in the earlier part of
our judgment."
31. Admittedly, now, the investigation is complete and
the Hon'ble High Court of Delhi has dismissed the writ petition as
withdrawn while directing the writ petitioner to take recourse to
the other legal remedies available. Thus, we deem it proper not
to decide the issue.
32. Having said so, the writ petition is misconceived and
is dismissed in limine.
(Mansoor Ahmad Mir)
Chief Justice
(Tarlok Singh Chauhan)
Judge
May 30, 2015
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