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Power of Further Investigation Under Code-Limits

The Code of Criminal Procedure defines the term "investigation" in Section 2(h) as "collection of evidence conducted by the police officer or by any officer or by any person other than a Magistrate who is authorized by a Magistrate in this behalf". As per the Oxford dictionary "An official examination of facts about a situation, crime etc. A scientific or academic examination of the facts of the subject or problem".

So now it is clear that investigation is done either by the police officer or by any other person apart from magistrate, who is authorised by him in this behalf. Magistrate can order further investigation as per the evidences that are available before them. Section 173(8) of the Code of Criminal Procedure gives power to magistrate to order further investigation. Although it is not compulsory to take the prior permission for further investigation after filing the charge sheet.

It is a statutory right of the police. Even after filing the final report, further investigation could be done. Further investigation could be done after cognizance. Once the police report is submitted under section 178(2) of the code of criminal procedure, further investigation by police is allowed but fresh investigation or re-investigation is not allowed.

Understanding the Concept of Further Investigation

Within the four corners of the CrPC, the investigating agency or a court subordinate to the High Court must exercise powers. As a result, if a charge-sheet has been filed, the investigating agency may conduct additional investigations, and the Court may order more investigations. However, any further investigation will not imply a new investigation or a reinvestigation. These constraints under section 173(8) do not apply to the High Court's ability to secure the goals of justice under section 482 of the CrPC.

The Supreme Court concluded that the High Court was legitimate in requesting the CBI to investigate where senior state police officials and political leaders were engaged. The Supreme Court has ruled that after a report under section 173(2) has been delivered to the Magistrate, the police may conduct further investigation. It was also decided that the police officer could produce further evidence acquired throughout the inquiry even after the charge-sheet was filed.

The phrase "shall" in sub-section (5), which requires a police officer to send "all documents" to the Magistrate, is recommendatory rather than mandatory. When a report is filed under section 173 (2), the Magistrate (in this case, the Special Judge) is required to deal with it by giving it judicial attention. If the report reveals that the accusations in the initial complaint were found to be accurate during the investigation, or if some additional accused and/or other offences were also identified, the Court will determine whether or not to take cognizance of the offences based on the report.

But when the report contradicted the accusations in the complaint and demonstrated that no one had committed an offence, the Court had the option of accepting the report after hearing the complainant at whose request the investigation had been undertaken.

When the report verifies the charges, the Court has the authority to apply its mind independently to the facts that emerge from it, and it can even take cognizance of the offences that appear to have been committed, as provided for in section 190(1)(b) of the Code. The third option is the one outlined in the CrPC in Section 173(8).

It is not within the Magistrate's competence to name any particular officer to undertake such an investigation, or even to indicate the rank of the officer who should conduct such an investigation, when exercising the power under section 173(8). As a result, the Special Judge's order that a further inquiry be performed by a CBI official of the rank of DIG was revoked.

 When the CBI investigates a case and delivers a report to the court, it is the court where the chargesheet is filed that is responsible for all aspects connected to the accused's trial, including those covered by section 173(8) of the Code. Even after the chargesheet is filed, the power to direct further investigation is still available. The necessity to hear the accused before giving such a direction has no bearing on the power to direct further investigation.

Addition of Sections of the Penal Code in the charge-sheet

On the request of prosecution/informant, the Magistrate cannot introduce or eliminate sections at the time of taking cognizance in a case based on a FIR filed with the police and a charge-sheet provided. While it comes to adding and removing portions of IPC from a charge sheet, the time to do so is when the charge is being framed.

Motive behind re-investigation

An inference of indirect purpose could not be made from the fact that it was not stated in the application for authorization to reinvestigate that the earlier investigation was not honest. At that point, no accusation of dishonesty could have been levelled against the police officers involved in the earlier inquiry without further investigation. The Court noted that the subsequent investigation did not appear to be conducted with any ulterior motivation in mind.

Order of Further Investigation

It was held in Dharam Pal v State of Haryana, that the police officer's power under section 173(8) is unfettered, and that while the Magistrate has no ability to intervene, it would be desirable for the Investigating Officer to inform the Court. During the course of the investigation, some of the witnesses were summoned and interrogated. The Magistrate's summons order was based on the supplementary chargesheet. That was ruled not to be illegal.

Once the Court has taken cognizance of the offence, no further investigation can be ordered in the matter. In terms of the capacity to order further investigations after the initial investigation, the Supreme Court has ruled that when the Magistrate can only order "further investigation," the higher courts can mandate "further investigation," "re-investigation," or even "investigation de novo" based on the facts of the case.

In Vinay Tyagi v Irshad Ali, Court held that:
  • We would state the following conclusions in regard to the competence of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code, having examined the provisions of the Code and the relevant judgements as aforementioned:
    • In a case started on the basis of a police report, the Magistrate has no authority to order "reinvestigation" or "new investigation" (de novo
    • Following the submission of a police report, a Magistrate has the authority to order "further investigation" under Section 173(6) of the Code.
    • The foregoing viewpoint is consistent with the concept of law established by a three-judge bench in the Bhagwant Singh case, and hence with the doctrine of precedent.
    • The Magistrate's exercise of such jurisdiction is not prohibited by the Code's framework or any specific provision. The language of Section 173(2) cannot be interpreted so narrowly as to deprive the Magistrate of such powers, especially in light of Section 156(3) and the language of Section 173(8). In fact, such power would have to be interpreted in harmony with Section 173 (8). Because the Code is a procedural text, it must be construed in a way that advances the cause of justice and the legislative goal at hand. It doesn't make sense that the legislature gave the police the power to conduct further investigation after filing a report in order to limit the court's power to the point where, even when the facts of the case and the ends of justice demand it, the court can't order the investigating agency to conduct additional investigation that it could do on its own.
    • The Supreme Court held in Chandra Babu v State that the learned Chief Judicial Magistrate correctly ordered further investigation, but that he could not have directed another investigating agency to investigate because that would not be within the scope of further investigation and, in any case, he does not have the authority to direct re-investigation by another agency.

Interference in order of further investigation

The Supreme Court has ruled that the High Court should not intervene with the Magistrate's order of further investigation in the exercise of its revisional power. On the basis of a police report, the Magistrate took cognizance of an offence. The accused showed up in response to the summons issued against him. It was decided that the Magistrate could not order further investigation of his own in such circumstances.

A warrant for further investigation was issued without specifying what aspects of the investigation had not been completed. It was not stated what were the buried realities that needed to be revealed. The fact that the inquiry was conducted by two distinct agencies and involved two different police officers was not taken into account. There was no evidence that the investigating officer was prejudiced against the complainant in any way. The order for a further investigation was overturned.

Hearing accused not necessary for making order of further investigation

The Court's authority to order the police to conduct further investigation cannot be restricted. There's nothing in section 173(8) that says the Court has to hear the accused before issuing such a directive. Any such duty imposed on the Court would merely burden the Court with the burden of locating all possible accused persons and ensuring that they are given the opportunity to be heard. The Magistrate cannot be obligated to do so because the law does not compel it.

Right to Statutory Bail

Only while the investigation is ongoing is the right to be freed on bail accessible. Once the charge-sheet is filed, the right is lost. It is not altered due to the fact that further investigation is underway.

Proclaimed Offenders

Because the inquiry is still ongoing, the investigating officer cannot acquit an absconding accused.

Use of word "Evidence" in Section 173(8) of the Code
As stated in 'Suresh Vs. State of U.P. 2006 Crl LJ 4814 at P.4815,' the word "evidence" in Section 173(8) of the Code was used in the generic meaning of further material into the offence about which a charge-sheet had previously been submitted in the Court and not as evidence recorded before the Court.

Difference between "further investigation" and "reinvestigation"
However, it goes without saying that "further investigation" and "reinvestigation" are on distinct levels. However, because ordering a re-investigation is prohibited, no higher court, such as the Hon'ble Supreme Court or the High Court, could or would typically give such a directive.

In 'Ramachandran Vs. R. Udhayakumar (2008) 5 SCC 413,' Pasayat, J. opined as follows: At this point, it's important to remember that Section 173 of the Code applies. On a simple reading of the foregoing section, it is clear that the police have the power to investigate further under sub-section (8), but not a new investigation or reinvestigation, even after the investigation under sub-section (2) of Section 173 of the Code has been completed.

As a result, there is a distinction to be made between a reinvestigation and further investigation. As a result, it was decided that further investigation was a continuation of the previous investigation rather than a "fresh investigation," "reinvestigation," or "de-novo investigation" that should be resumed from the beginning, wiping out the previous investigation entirely.

Whether the Public Prosecutor has the power or authority to file a petition under Section 173(8) CrPC, without the request of the investigating officer, seeking further inquiry based on available evidence?

The Public Prosecutor's filing of a petition before the Court under Section 173(8) of the CrPC, seeking an order directing the investigating officer to conduct further investigation under Section 173(8) of the CrPC, is not prohibited. The Court has the right to order further investigation under Section 173(8) of the CrPC, and the Public Prosecutor's petition can only be viewed as an application requesting to draw the Court's attention to the need of invoking the Court's power under Section 173(8) of the CrPC.

If the Public Prosecutor files a petition under Section 173(8) of the CrPC, the Court must consider it and determine whether or not it is necessary to utilise the Court's power under Section 173(8) of the CrPC. The Court must exercise such power if it is satisfied that it is necessary, and if it does not believe that it is necessary, the Court can dismiss the petition submitted by the Public Prosecutor.  

With its recent decision in 'Vinubhai Haribhai Malaviya & Others Vs. State of Gujarat and Others 2019 SCC Online SC 1346,' a three-judge bench of the Hon'ble Supreme Court has attempted to put to rest the dispute surrounding the evasive issue of the Magistrate's order for further investigation.

At paragraph 38, the Hon'ble Supreme Court, speaking through the Hon'ble Justice Sri R.F. Nariman, stated that "To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out.

There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case.

Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law." In conclusion, the Hon'ble Supreme Court stated that "when Section 156(3) of the CrPC states that a Magistrate empowered under Section 190 of the CrPC may order such an investigation, such Magistrate may also order further investigation under Section 173(8), having regard to the definition of investigation contained in Section 2(h)." The Hon'ble Supreme Court proceeded on the assumption that a criminal trial does not begin after cognizance, but rather after charges are framed.

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