-Navjot Punia
Section 173 (8) of the Criminal Procedure Code, 1973 (“1973 Code”) deals with the discretion of the police with respect to conducting further investigation even after a report has been forwarded to the magistrate under sub-section (2). Though no such specific requirement of taking prior permission of court while conducting further investigation is required as per the statutory provision, it has overtime become a ‘practice’ to seek prior permission of the court. Up till 2019, there had been judgments which ruled conflictingly over the issue of whether seeking such permission stood as an obligation, but in 2019 an attempt was made to clarify the position in the judgment of Vinubhai Haribhai Malaviya vs The State Of Gujarat . The Apex court held that upheld the magistrate’s right for ordering further investigation, and provided that a narrow interpretation of section 173(8) is not warranted in light of the legislative intent of CrPC. Therefore, the ruling explicitly makes it clear that the power of the police is subjected to the approval of magistrate. The Judgment states 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”. The judgment, thus clarified that the act of seeking permission from the magistrate before conducting a further investigation stood as an obligation. This can be inferred from the phrase- “subject, of course, to the Magistrate’s nod”. The judgment though clarified the stance but the rationale behind adopting such position remains unclear, especially on account of the fact that a bare reading of the provision S. 173(8) warrants no such inference. It is argued in this piece that the stance taken by the Apex Court is not backed by a rationale in the judgment to further such a standpoint and the court failed to look at the precedents highlighting separation and independence of police as an institution to conduct investigation.
Terminology of S. 173 (8) and its jurisprudential development
S. 173 of the 1973 Code deals with the reporting on completion of investigation by the police officer. S. 173 (8) states-
“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…”
The need for existence of this sub-section emerged when the dispute emerged in 1898 Act over whether the police was precluded from conducting further investigation when fresh facts came into the light after the report had been filed under S. 173 (1) to the magistrate. The 1898 Act, unlike the 1973 code had no such provision which conferred a right to the police to conduct further investigation. However, the right for conducting the same developed through precedents even in the 1898 Act. The Madras High Court in Divakar Singh v. A. Ramamurthi Naidu in 1918 had ruled that- “number of investigations into a crime is not limited by law and that when one has been completed, another may be begun on further information received”.
The importance of further investigation was also signified by the 41st law commission report, wherein it was stated that the courts have overtime adopted a narrow approach in terms of permitting the police to further investigate on the basis of new evidence. It was reported that such a narrow construction can hamper the entire investigation process and detrimentally affect either of the sides- prosecution or defence. It was clarified that police could conduct further investigation on the basis of fresh evidence under S. 173.
S. 173 (8) comes into operation after there has been completion of the first investigation and the chargesheet has been filed. For the purpose of conducting further investigation, the following head has to be satisfied- the furtherance of investigation has to be on the basis of some new set of facts or evidence uncovered as was opined by the Delhi High Court in Surender v. NCT of Delhi case. Further investigation can only be for the same offence for which the first investigation was conducted.
Conflicting stand over seeking prior permission for further investigation
While interpreting the provision of further investigation, the courts have conflictingly opinionated over whether the investigating officer need to seek prior permission from the magistrate for the purpose of carrying out further investigation. While, no such precise implication can be derived from the wording of S. 173 (8), it has been at times obligated for the sake of holding sanctity of justice delivering process. The courts have held at times that seeking prior permission for conducting further investigation comes as a norm as it has been in practice for long now, while other times it has been held that it is expected from the investigating agency to inform the court so as to express their ‘regard and respect’ for it. There also exists a dispute over whether the investigating agency is supposed to merely inform the magistrate while conducting further investigation or it has to formally seek permission from the court while conducting it.
In Vinay Tyagi v. Irshad Ali, it has been accepted by the apex court that though there exists no specific requirement of filing for seeking prior permission under S. 173 (8) of the code, the investigating agencies have understood the significance of, and have adopted the practice of seeking prior permission from the court. Applying the doctrine of contemporanea expositio, it was held that the rule of interpretation would make the way for upholding it as a necessity as it has been understood and practiced for a long time and such a practice is supported by the provisions of law. Therefore, it was held that it is an obligation to seek prior permission from the court for the purpose of S. 173 (8).
While considering the same issue, a somewhat different ruling was given in Ram Lal Narang v. State (Delhi Admn.) The significance assumed by supplemental report in practicality was highlighted as such a report stands to be beneficial for both the prosecution and defence. It was held that despite supplemental report being beneficial, it shouldn’t be used ordinarily, unless the new findings warrant so. Further it was held that, in the interests of the independence of the magistracy and the purity of the administration of criminal justice, it would be ordinarily desirable the police should ‘inform’ and seek ‘formal permission’ for making such investigation. The judgment stands in coherence to the general outlook taken under S. 173 (8)- of despite no legal obligation, it being considered desirable that court should be informed and formal permission sought. Ram Lal Narang was upheld in another case of Mool Chand v. Station House Officer, where it was held that the investigating agency, is ‘expected’ in order to show its regard to generally seek prior permission from the court. A similar expression of words was used in T.T. Antony v. State of Kerala, it was stated that the police was empowered to conduct further investigation, ‘normally with the leave of court’.
A conflicting stand was taken in Rama Chaudhary v. State of Bihar. It was held that the right to conduct further investigation under S. 173 (8) was a statutory right of the police and for conducting such investigation, no prior permission of the court was required. If the police wanted to conduct ‘re-investigation’ then the prior permission was necessary, but for further investigation it was not. A similar ruling was laid down in State of A.P. v. A.S. Peter. Another case in similar light is a Bombay High Court judgment– Sunil Tondon v. State of Maharashtra. In this case, the court held that the statutory right and power of the police to conduct investigation could not be circumscribed by asking it to seek permission from any authority, including courts. However, the aspect of keeping the court cognizant of the fact that further investigation is going on could be of helpful in another manner as through this, the court could refrain from initiating the process of hearing. The practical utility of this informing could be observed through Smita Pansare v. State of Maharashtra. In this case the High Court of Bombay observed that further investigation being carried out in a murder case, the session court was expected to defer the proceedings and pass the order in the same light.
In Kanhaiya Prasad Singh v. State of Jharkhand, it was held that from bare perusal of the sub-section, no such obligation to seek prior permission could be inferred and therefore the same was not necessary. Kerala High court in, Radhakrishnan v. State of Kerala highlighted that conducting investigation is the prerogative of police, and seeking permission for further investigation is only a formality or courtesy. No further investigation committed can be held illegal merely because prior permission was not taken from the court.
All these conflicting precedents point out to the fact that no clear and precise procedural guideline pertaining to S. 173 (8) is in existence. There have been rulings where the courts have interpreted this sub-section to infer that there is an obligation to seek prior permission for conducting further investigation, at other times the courts have ruled that seeking prior permission is merely for the sake of showing curtesy and is not an obligation.
Unveiling the trajectory and key takeaways
The interpretation of the sub-section should be made considering the purpose for which exists. In Manohar Lal Sharma v. Principal Secy., it was held that power of police to conduct investigation is not impinged by any fetters, till the time it is exercised within the statutory provisions and for legitimate purpose. Considering this exclusive right to conduct investigation, a prerogative to seek prior permission for conducting investigation, anyhow, stands ultra vires. The Vinubhai judgment failed to take in account this precedent’s position implying that the Police as an institution has an autonomous right to conduct investigation. The ruling laid down in Sunil Tondon v. State of Maharashtra, stating that seeking prior permission from the court should not be the norm precisely carries the essence of constructive interpretation. Rather, it was held that the court should be merely informed if the police want to investigate further so that it could consider proceeding with hearing accordingly. This way, neither does the right of the police to conduct investigation become contingent on the approval of the court, nor is the procedural mechanism of the case’s trial hampered as the court is cognizant of the undergoing further investigation, and can schedule the dates accordingly. The Vinubhai judgment, while ruling that the police retains the power to conduct further investigation subject to the nod of the magistrate, did not keep in account the position taken over the statutorily designated autonomous role of police as an institution in Manohar Lal judgment. The Vinubhai judgment also failed to provide a rationale over why the court was digressing away from the Sunil Tondon judgment’s position of constructive interpretation through which both the institutions of Police and Judiciary could function in a harmonious manner. Vinubhai judgment as far as the issue of seeking permission from the magistrate is concerned, merely relied on citing the ratio of Vinay Tyagi and Ram Lal Narang, wherein the former had laid down that since it has been accepted as a practice and seeking prior permission of magistrate has been ruled in numerous precedents, the same should be upheld. The latter (Ram Lal Narang) had stated that in the interests of the independence of the magistracy and the purity of the administration of criminal justice, it would be ordinarily desirable the police should ‘inform’ and seek ‘formal permission’ for making such investigation.
Therefore, while the Vinubhai judgment did clarify the stance holding that the police may conduct further investigation subject to the nod of the magistrate, it did not deliver a clear rationale over the position adopted. The need for a rationale becomes even more important considering the fact that a bare reading of the provision suggests no such implied measure or obligation.
In light of the discussed trajectory, though the position of law now stands clarified, but the precise rationale behind the position adopted is still not anywhere in sight. In light of this persisting grey area, there emerges a need for the Apex court to clarify why it went on to digress from the discussed precedents and adopted the present position.
[ Author is a second year B.A.LL.B. (Hons.) student at National Law University Delhi]