Gujarat High Court
Manoj Kumar S/O Basudeo Upadhyay vs State Of Gujarat on 29 July, 2025
NEUTRAL CITATION
R/SCR.A/834/2019 CAV JUDGMENT DATED: 29/07/2025
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Reserved On : 21/07/2025
Pronounced On : 29/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 834 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 1776 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
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MANOJ KUMAR S/O BASUDEO UPADHYAY
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
RAHUL SHARMA(8276) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The petitioner, by these captioned petitions, questions
two different stage of investigation undertaken in the criminal
offence being C.R. No.RC0292017A0003 registered by the
CBI, ACB Branch, Gandhinagar for the offences punishable u/s
120B, 409 and 420 of the IPC and u/s 13(2) r/w section 13(1)
(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 (in
short “the Act”).
2. Since the dispute involved pertains to selfsame FIR and
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questions two different stage of investigation raised by the
petitioner, both the petitions are being disposed of by this
common order.
3. In Special Criminal Application No.834 of 2019, the
petitioner prayed for the following reliefs:-
“(B) Issue a writ of certiorari or any other writ, order
or direction to quash and set aside the second part of
the respective statements of witnesses, at
ANNEXURE ‘A COLLY’, recorded on 08.05.2017 by
the Ld. Additional Chief Judicial Magistrate, CBI
Court No. 2, Ahmedabad u/s 164 of the Cr.P.C.,
wherein details regarding the alleged offence are
given and further declare the aforesaid second part of
the statement recorded U/s 164 of the Cr.P.C. by the
Ld. Additional Chief Judicial Magistrate, CBI Court
No. 2, Ahmedabad, as non est in the eyes of law.
(C) Direct that the first part of the respective
statements given by the witnesses, on 05.05.2017, to
the Ld. Additional Chief Judicial Magistrate, CBI
Court No. 2, Ahmedabad, stating that they knew
nothing about the matter, be considered as the legally
valid statements recorded u/s 164 of the Code of
Criminal Procedure, 1973.”
(D) By way of interim relief, stay further proceedings
in the trial of CBI Special Case No. 16 of 2017 and
Special Case No. 7/2018 before the Ld. Special Judge,
Court No. 4, CBI Cases, Ahmedabad, till the final
disposal of this petition.”
3.1 In Special Criminal Application No.1776 of 2019, the
petitioner prayed for the following reliefs:-
“(B) Issue a writ of certiorari or any other writ, order
or direction to quash and set aside the impugned
Supplementary Charge-sheet filed by the CBI, onPage 2 of 37
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27.02.2018, vide Special Case No. 07/2018 in the
Court of the Ld. Special Judge, CBI Court No. 4,
Ahmedabad, U/s 120B, r/w 409, 420 of the IPC and
U/s 13(2) r/w 13(1)(c) and 13(1)(d) of the Prevention
of Corruption Act 1988;
(C) By way of interim relief, stay further proceedings
in the trial of CBI Special Case No. 16 of 2017 and
Special Case No. 7/2018 before the Ld. Special Judge,
Court No. 4, CBI Cases, Ahmedabad, till the final
disposal of this petition.”
4. Brief facts of the case are as under:-
4.1 That, RC No.03(A)/2017-GNR was registered on
07.03.2017 on the basis of a written complaint dated
22.02.2017 of Smt. Manjula A. Patel, the Asstt. Director,
Vigilance, Postal Department, Gujarat Circle, Ahmedabad
against the accused persons namely Shri Vinodbhai Keshabhai
Darji (A-1), the than Senior Post Master, Navrangpura, Head
Office, Ahmadabad, Shri RajendraSinh Chatrasinh Vaghela(A-
2), the than Deputy Post Master, Navrangpura, Head Office,
Ahmadabad, Shri Mohmad Sadik A. Sabuwala(A-3), the than
Assistant Post Master, Navrangpura, Head Office, Ahmadabad
and unknown person under section 120-B r/w 409, 420 of IPC
and 13(2) r/w 13(1)(C) & (d) of the Act.
4.2 That, during demonetization, old currency was
exchanged by post office also. It is revealed during inspection
by Department of Post (Vigilance), Ahmadabad that
Navrangpura HO, post office has acted against the guidelines
issued in this behalf by the Government and in contravention
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to the circulars issued in this behalf by the Directorate of
postal services. Following irregularities were reported by the
Vigilance Team.
a. It is alleged that during an amount of Rs. 6,59,800/-
have been found exchanged between on 09.11.2016,
though 09.11.2016 was a non-financial day and HO had
received currency from Sub Post Offices.
b. There is contradiction in reporting of
exchanged/withdrawn old series (WOS), in the records of
Navrangpura HO, SPO’s City Division and record of entry
made in excel sheet as Rs. 2,52,37,500/-, Rs. 1,90,34,000/-
and Rs. 2,16,17,500 respectively.
4.3 The petitioner was controlling officer at Ahmadabad
Circle. He abused his official power and exchanged old
currency during demonetization to the tune of Rs.
1,04,03,500/- from the different Post Offices/persons under his
jurisdictions. (As per para No. 2 at page no. 159 and as per
flow chart page no. 156 of Charge Sheet.
4.4 After completion of investigation, charge sheet was filed
by the CBI in the Court of learned Special Judge, CBI Court
No. 4, Ahmedabad, vide Special Case No. 16/2017 on
14.06.2017. Subsequently, a supplementary charge- sheet was
filed by the CBI on 27.02.2018 vide Special Case No. 07/2018.
4.5 That altogether eight witnesses had given their
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statements to the Ld. Additional Chief Judicial Magistrate
(ACJM), CBI Court No. 2, Ahmedabad (in short “learned trial
Court”) . These eight witnesses had been forwarded to the Ld.
ACJM on 05.05.2017 by the CBI for recording their statements
U/s 164 of the Code of Criminal Procedure, 1973 (in short “the
Code”). During preliminary enquiries by the Ld. ACJM, all
these eight witnesses informed the Ld. ACJM that they knew
nothing about the matter. However, the Ld. ACJM did not
record their statements and directed them to appear before
him on 08.05.2017 at 3:00 pm and consider giving their
statements without any fear, inducement or promise.
4.6 Accordingly, as per directions of the Ld. ACJM, all the
eight witnesses appeared before the Ld. Magistrate at 3:00
pm on 08.05.2017 and their statements were recorded one
after another on the same day within a space of less than
three hours. Hence, Special Criminal Application No.834 of
2019.
4.7 So far as Special Criminal Application No.1776 of 2019
is concerned, first charge-sheet was filed in the case on
14.06.2017 while a supplementary charge-sheet was filed on
27.02.2018 in the same case. The impugned supplementary
charge-sheet only has statements and other documents
collected by the CBI prior to 14.06.2017, the date of filing the
first charge-sheet.
4.8 The basis for “further investigation” under S. 173(8) of
the Code is the discovery of fresh evidence and in continuance
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of the same offence and chain of events relating to the same
occurrence incidental thereto, however, with prior permission
of Judicial Magistrate. Therefore, a supplementary charge-
sheet can only be submitted in respect of additional evidence
collected during the course of further investigation, which
evidence was not available during the course of investigation
conducted earlier and further, if prior permission of the
Judicial Magistrate is obtained to continue investigation.
4.9 Hence, Special Criminal Application No.1776 of 2019 is
filed by the petitioner to quash and set aside the
Supplementary Charge-sheet filed in the aforesaid case.
5. As far as relief claimed in Special Criminal Application
No.834 2019 is concerned, learned advocate, Mr. Rahul
Sharma appearing for the petitioner would submit that the
Judicial Magistrate recorded the statement of witnesses under
section 164 of the Code without following proper procedure
and therefore, the evidentiary value of the statement recorded
under section 164 of the Code are non est. He would further
submit that all the statements are placed at Annexure A. He
would further submit that the witnesses first of all remained
present before the learned Judicial Magistrate on 5.5.2017,
the primary interaction was made on that day and they have
deposed that they know about the facts. However, the
learned Judicial Magistrate has not recorded the statement on
that day and given reflection time to the witnesses and then
recorded the statement under section 164 of the Code on
8.5.2017, thereby has permitted the investigating officer to
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win over the witnesses. He would further submit that grant of
three days time by the learned Judicial Magistrate in
recording statement u/s 164 of the Code is not permissible by
provisions of law. The statement, which was recorded in the
first part i.e. interaction on 5.5.2017 only could be treated as
statement under section 164 of the Code and rest part of the
statement recorded subsequently on 8.5.2017 could be
treated as win over statement. He would further submit that
since the investigating officer as well as learned Judicial
Magistrate has not followed due procedure laid down in
Section 164 of the Code, the statement of the witnesses
produced at Annexure A could not be considered as part of
charge sheet and they are non est in the eyes of law.
5.1 In support of his submission, learned advocate Mr.
Sharma referred to the following judgments:-
1. Jogendra Nahak and others Vs. State of Orissa and others,
(2000) 1 SCC 272, more particularly para 11 thereof, which
reads as under:-
“11. The proviso to the sub-sec. and sub-sections (2)
to (4) are not material for this purpose as they relate
only to recording of confessions. Sub-section (5) says
that a statement of the witness shall be recorded in
the manner in which evidence is recorded under
law.”
2. J. Jayalalithaa and others Vs. State of Karnataka and others,
(2014) 2 SCC 401, more particularly, para 34 and 35 thereof,
which reads as under:-
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“34. There is yet an uncontroverted legal principle
that when the statute provides for a particular
procedure, the authority has to follow the same and
cannot be permitted to act in contravention of the
same. In other words, where a statute requires to do
a certain thing in a certain way, the thing must be
done in that way and not contrary to it at all. Other
methods or mode of performance are impliedly and
necessarily forbidden. The aforesaid settled legal
proposition is based on a legal maxim “Expressio
unius est exclusio alterius”, meaning thereby that if a
statute provides for a thing to be done in a particular
way, then it has to be done in that manner and in no
other manner and following any other course is not
permissible.
35. In State of Uttar Pradesh V/s. Singhara Singh &
Ors., AIR 1964 SC 358, this court held as under:
“8. The rule adopted in Taylor V/s. Taylor (1876)
1 Ch D 426 is well recognised and is founded on
sound principle. Its result is that if a statute has
conferred a power to do an act and has laid
down the method in which that power has to be
exercised, it necessarily prohibits the doing of
the act in any other manner than that which has
been prescribed. The principle behind the rule
is that if this were not so, the statutory provision
might as well not have been enacted.”
(See also: Accountant General, State of Madhya
Pradesh V/s. S.K. Dubey & Anr., (2012) 4 SCC
578)
3. State of Odisha and another Vs. Satish Kumar Ishwardas
Gajbhiye and others, 2021 SCC Online 1238.
5.2 Referring to the above stated judgments, learned
advocate, Mr. Sharma would submit that if the statute permits
a particular way, one cannot do it other way.
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5.3 In view of above, as far as Special Criminal Application
No.834 of 2019 is concerned, learned advocate Mr. Sharma
prays to allow this petition.
5.4 Insofar as Special Criminal Application No.1776 of 2019
is concerned, learned advocate Mr. Sharma would submit that
report under section 173(2) of the Code was placed before the
concerned jurisdictional Court (Annexure C) on 14.6.2017. He
would further submit that thereafter the investigating officer
without seeking or taking any permission from the concerned
court continued investigation of the offence and filed further
final report under section 173(8) (Annexure A) on 27.2.2018.
He would further submit that filing of second and subsequent
report in form of supplementary final report, without
obtaining permission of the learned jurisdictional Court, would
prejudice the very provision of law and would be prejudicial to
the right of fair investigation and fair trial of the accused. He
would therefore, submit that filing of subsequent charge sheet
in form of supplementary charge sheet at Annexure A since is
not permissible, should be quashed.
5.5 In support of his contention, learned advocate Mr.
Sharma has referred to and relied upon judgment in case of
Peethambaran Vs. State of Kerala and others, 2023 SCC
Online 553.
5.6 By making above submissions, learned advocate Mr.
Sharma urges to allow both the petitions.
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6. Per contra, learned advocate Mr. RC Kodekar appearing
for the CBI firstly would submit that plain reading of section
164 of the Code does not contemplate that learned Judicial
Magistrate is required to record statement of witnesses under
section 164 of the Code as soon as he comes. He would
further submit that there is no statutory bar to give him time
and come to the court on a particular time. Therefore, in
absence of any statutory bar, recording of statement on
subsequent date by the learned Judicial Magistrate under
section 164 of the court is not bad in law. Secondly, it is
argued by learned advocate Mr. Kodekar that whether
statement under section 164 of the Code recorded by the
learned trial court holds evidentiary value or otherwise can be
appreciated during the trial only.. The evidentiary value of the
statement recorded under section 164 of the Code cannot be
assessed and evaluated in quashing proceedings. Therefore,
he would submit that submission of learned advocate Mr.
Sharma that the statement recorded under section 164 of the
Code, more particularly second part thereof, is non est,
explicitely cannot be accepted and this is reprehensive to the
settled provision of law. As far as filing of second and
subsequent charge sheet is concerned, he would submit that
the final report under Section 173(2) at Annexure C was filed
on 14.6.2017. He would further submit that in the charge
sheet, apart from the offence under sections 409 and 420 of
the IPC, it is alleged that the accused has committed offence
under section 13(2) r/w section 13(1)(c) and 13(1)(d) of the
Act. He would further submit that prior to taking of
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cognizance of the offence under the Act, it is necessary to
have the prosecution sanction under section 19 of the Act and
therefore, while filing the report under section 173(2) of the
Code on 14.6.2017, investigating officer has reserved his right
to file sanction under section 19 of the Act. In this regard, he
drew the attention of this Court towards para 10 of the final
report at Annexure C (page 38). He would further submit that
in case on hand, no fresh investigation has been carried out,
no re-investigation has been carried out, even no further
investigation is carried out except to file prosecution sanction
under Section 19 of the Act by way of supplementary charge
sheet.
6.1 Learned advocate Mr. Kodekar would further submit
that the allegations when levelled against the petitioner are
about misuse of powers when he was DPS and old currency
notes were exchanged after it being demonetized. The
subsequent charge sheet reveals the source of the currency
received by the petitioner in addition to procure prosecution
sanction. So no reinvestigation or de novo investigation has
been carried out, for which permission of the court essentially
is required.
6.2 Learned advocate Mr. Kodekar, in support of his
submission, relied upon recent judgment of the Hon’ble Apex
Court in case of State through CBI Vs. Hemendra Reddy and
another, (2023) 16 SCC 779.
6.3 Upon making above submissions, learned advocate Mr.
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Kodekar would submit that it is one more fallout attempt on
the part of the petitioner to stall the trial against him and
therefore it is submitted to dismiss the petitions with heavy
cost.
7. I have heard learned advocates for both the sides and
also paid anxious thoughts to the rival submissions, as well to
the records of the case.
8. In substance, the petitioner raised two questions. Firstly,
the statement recorded under section 164 of the Code and
produced at Annexure A are not in conformity with the
provisions of section 164 of the Code. The learned trial court
while recording statement of witness under section 164 of the
Code is not empowered to give time to the witnesses, and
therefore giving of time to the witnesses by the learned trial
court is bad in law, as it gives time to the CBI to win over the
witnesses. Secondly, without the permission of the learned
trial court, the investigating officer cannot continue further
investigation in the offence and cannot submit supplementary
charge sheet.
9. To appreciate submission canvased by learned advocate,
Mr. Sharma, at the outset let refer section 164 of the Code,
which reads as under:-
“(1) Any Metroplitan Magistrateor Judicial
Magistrate may, whether or not he has jurisdiction in
the case, record any confession or statement made to
him in the course of an investigation under thisPage 12 of 37
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Chapter or under any other law for the time being in
force, or at any time afterwards before the
commencement of the inquiry or trial:
[Provided that any confession or statement made
under this sub-section may also be recorded by
audio-video electronic means in the presence of the
advocate of the person accused of an offence:
Provided further that no confession shall be recorded
by a police officer on whom any power of a
Magistrate has been conferred under any law for the
time being in force.](2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is
not bound to make a confession and that, if he does
so, it may be used as evidence against him; and the
Magistrate shall not record any such confession
unless, upon questioning the person making it, he
has reason to believe that it is being made
voluntarily.
(3) If at any time before the confession is recorded,
the person appearing before the Magistrate states
that he is not willing to make the confession, the
Magistrate shall not authorise the detention of such
person in police custody.
(4) Any such confession shall be recorded in the
manner provided in section 281 for recording the
examination of an accused person and shall be
signed by the person making the confession; and the
Magistrate shall make a memorandum at the foot of
such record to the following effect:-
“I have explained to (name) that he is not bound to
make a confession and that, if he does so, any
confession he may make may be used as evidence
against him and I believe that this confession was
voluntarily made. It was taken in my presence and
hearing, and was read over to the person making it
and admitted by him to be correct, and it contains a
full and true account of the statement made by him.
(Signed)
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A.B. Magistrate”.
(5) Any statement (other than a confession) made
under sub-section (1) shall be recorded in such
manner hereinafter provided for the recording of
evidence as is, in the opinion of the Magistrate, best
fitted to the circumstances of the case; and the
Magistrate shall have power to administer oath to
the person whose statement is so recorded.
[(5A)
(a) In cases punishable under section 354, section
354A, section 354B, section 354C, section 354D, sub-
section (1) or sub-section (2) of section 376, section
376A, section 376AB, section 376B, section 376C,
section 376D, section 376DA, section 376DB, section
376E or section 509 of the Indian Penal Code, 1860
(45 of 1860), the Judicial Magistrate shall record the
statement of the person against whom such offence
has been committed in the manner prescribed in sub-
section (5), as soon as the commission of the offence
is brought to the notice of the police:
Provided that if the person making the statement is
temporarily or permanently mentally or physically
disabled, the Magistrate shall take the assistance of
an interpreter or a special educator in recording the
statement:
Provided further that if the person making the
statement is temporarily or permanently mentally or
physically disabled, the statement made by the
person, with the assistance of an interpreter or a
special educator, shall be videographed;
(b) A statement recorded under clause (a) of a
person, who is temporarily or permanently mentally
or physically disabled, shall be considered a
statement in lieu of examination-in-chief, as specified
in section 137 of the Indian Evidence Act, 1872 (1 of
1872) such that the maker of the statement can be
cross-examined on such statement, without the need
for recording the same at the time of trial.]Page 14 of 37
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(6) The Magistrate recording a confession or
statement under this section shall forward it to the
Magistrate by whom the case is to be inquired into or
tried. ”
10. Plain reading of the provisions of law indicates that
regardless of territorial jurisdiction, Metropolitan Magistrate
or Judicial Magistrate was empowered to record any
confession or statement made to him in the course of an
investigation under this Chapter or under any other law for
the time being in force, or at any time afterwards before the
commencement of the inquiry or trial. Thus the power of
JMFC or Metropolitan Magistrate is not confined to its
jurisdiction, not confined to inquiry or investigation, he can
record before commencement of trial. Sub sections (2), (3)
and (4) of Section 164 of the Code are related to confession of
accused. In the present case, the issues are not in-fray. In sub
section (5) of section 164 of the Code, the Legislature has
used words “in the opinion of the Magistrate, best fitted to the
circumstances of the case” indicates that it is a complete
discretion of Judicial Magistrate or Metropolitan Magistrate,
who is recording statement to find out best fitted
circumstances and to form opinion. Learned Judicial
Magistrate or Metropolitan Magistrate has to decide best
fitted circumstances to record statement of witnesses. By no
means, section 164(5) of the Code curtails power of the
Judicial Magistrate or Metropolitan Magistrate to postpone
recording of statement of witness when he comes and differs
to some other day. The contention of learned advocate Mr.
Sharma that statement of witness has to be recorded no
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sooner appears before Judicial Magistrate or Metropolitan
Magistrate and not on subsequent date, therefore, is
belligerent to the settled principles of law and cannot be
accepted. It is equally well settled that in a quashing
proceedings, the court is not expected to hold mini trial to
evaluate evidentiary value of the statements recorded during
the investigation / inquiry. The court has to take statements
of the witnesses as it is. The assistance can be taken from the
judgments of Hon’ble Apex Court in cases of Kaptan Singh
Versus State Of Uttar Pradesh, 2021 (9) SCC 35.
11. The Apex Court yet in another case holds that while
exercising inherent jurisdiction u/s 482 of the Code, the High
Court should not hold mini trial. In case of Dharambeer
Kumar Singh Versus State Of Jharkhand, (2025) 1 SCC 392, in
para 17 to 19 held as under:-
“17. This Court in a series of judgements has held that
while exercising inherent jurisdiction under Section
482 of Criminal Procedure Code, 1973, the High
Court is not supposed to hold a mini trial. A profitable
reference can be made to the judgment in the case of
CBI vs Aryan Singh (2023 SCC Online SC 379 .
Relevant paragraph from the judgment is extracted
here under:
“Para 10…As per the cardinal principle of law, at
the stage of discharge and/or quashing of the
criminal proceedings, while exercising the
powers under Section 482 Cr. P.C., the Court is
not required to conduct the mini trial.
At the stage of discharge and/or while exercising
the powers under Section 482 Cr. P.C., the Court
has a very limited jurisdiction and is required to
consider “whether any sufficient material isPage 16 of 37
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available to proceed further against the accused
for which the accused is required to be tried or
not”.
18. In the instant case, the High Court has delved into
an aspect which was absolutely not warranted and
has exceeded its jurisdiction. The aspect about
complicity of a person who was involved in the forgery
is a disputed question of fact and the same will have
to be addressed after a proper appreciation of
evidence which can be done only during trial and not
at such a nascent stage when summons is served. The
Magistrate while considering the fact that the
Respondent No. 2 -Santosh Kumar Choudha, was a
beneficiary and after considering the scope of
summons order had rightly observed that a prima
facie case is made out and the same required an
adjudication through a trial.
19. The High Court ought to have considered the
complicity of the accused in case of forgery, which
will have to be addressed after a proper appreciation
of evidence and such appreciation of evidence can be
done only by undertaking the initial process i.e. by
conducting the trial on the aspect of forgery. The
summons order was only at an initial stage and at
such a nascent stage, the High Court ought not to
have recorded the finding on the aspect of forgery.
12. In the aforesaid exposition of law, the contention of
learned advocate Mr. Sharma in Special Criminal Application
No.834 of 2019 is found to be preposterous and pointless.
13. As far as judgments upon which learned advocate Mr.
Sharma has relied upon, it does not render any assistance to
him.
14. The second question raised by learned advocate Mr.
Sharma that without obtaining permission from the
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jurisdictional Magistrate/court, the investigating officer cannot
continue investigation and file subsequent charge sheet
thereof.
15. Let refer sections 156(3), 173 and 190 of the Code of
Criminal Procedure, 1973, which reads as under:-
“156 : Police officer’s power to investigate
cognizable case
(3) Any Magistrate empowered under section 190
may order such an investigation as above-mentioned.
173. Report of police officer on completion of
investigation.
(1) Every investigation under this Chapter shall be
completed without unnecessary delay.
[(1A) The investigation in relation to [an offence
under sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB or 376E of the Indian Penal Code (45
of 1860) shall be completed within two months] from
the date on which the information was recorded by
the officer in charge of the police station.
(2) (i) As soon as it is completed, the officer in charge
of the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a
police report, a report in the form prescribed by the
State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if
so, weather with or without sureties;
(g) whether he has been forwarded in custody under
section 170.
[(h) whether the report of medical examination of the
woman has been attached where investigation relates
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to an offence under [sections 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB] or 376E of the
Indian Penal Code.
(ii) The officer shall also communicate, in such
manner as may be prescribed by the State
Government, the action taken by him, to the person,
if any, by whom the information relating to the
commission of the offence was first given.
(3) Where a superior officer of police has been
appointed under section 158, the report shall, in any
case in which the State Government by general or
special order so directs, be submitted through that
officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police
station to make further investigation.
(4) Whenever it appears from a report forwarded
under this section that the accused has been released
on his bond, the Magistrate shall make such order-
for the discharge of such bond or otherwise as he
thinks fit.
(5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to
the Magistrate alongwith the report-
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during
investigation;
(b) the statements- recorded under section 161 of all
the persons whom the prosecution proposes to
examine as its witnesses.
(6) If the police officer is of opinion that any part of
any such statement is not relevant to the subject-
matter of the proceedings or that its disclosure to the
accused is not essential in the interests of justice and
is inexpedient in the public interest, he shall indicate
that part of the statement and append a note
requesting the Magistrate to exclude that part from
the copies to be granted to the accused and stating
his reasons for making such request.
(7) Where the police officer investigating the case
finds it convenient so to do, he may furnish to the
accused copies of all or any of the documents
referred to in sub- section (5).
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(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).
190. Cognizance of offences by Magistrates. (1)
Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of
the second class specially empowered in this behalf
under sub- section (2), may take cognizance of any
offence-
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge, that
such offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance
under sub- section (1) of such offences as are within
his competence to inquire into or try.”
16. The introduction of section 173(8) of the Code in the
Legislature has recognized the right of the investigating
agency to conduct the further investigate in the matter,
collect further evidence and forward it to the learned
Magistrate u/s 190 of the Code. Section 190 of the Code
empowers Magistrate to take cognizance of the offence upon
receiving a complaint constituting offences or upon a police
report or upon information received from any person other
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than the police officer or upon his own knowledge that such
offence has been committed. Section 156(3) of the Code
permits Magistrate, who is empowered with section 190 of the
Code, to direct police to investigate into a cognizable offence.
17. The conjoint reading of aforesaid provisions lead to
establish that investigation in the offence can be continued
even after first report u/s 173 of the Code is filed. Therefore,
the solitary contention raised by learned advocate Mr. Sharma
that the investigating officer cannot further investigate the
offence and file further report to the learned Magistrate
without seeking prior permission of the Magistrate or Court
has no force.
18. In Ram Lal Narang vs. State (Delhi Administration),
(1979) 2 SCC 322, the Hon’ble Apex Court noted all the
previous judgments including diverse views taken by the
different High Courts and has noted the developments and
inclusion of new provisions as Section 173(8) in the Code on
the basis of the 41 st report of the Law Commission. The Law
Commission, in its 41st report has recognized the well settled
position and recommended that the right of the police to make
further investigation should be statutorily affirmed. Relevant
observations are extracted as under:-
“”15. The police thus had the statutory right and duty
to “register” every information relating to the
commission of a cognizable offence. The police also
had the statutory right and duty to investigate the
facts and circumstances of the case where thePage 21 of 37
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commission of a cognizable offence was suspected
and to submit the report of such investigation to the
Magistrate having jurisdiction to take cognizance of
the offence upon a police report. These statutory
rights and duties of the police were not
circumscribed by any power of superintendence or
interference in the Magistrate; nor was any sanction
required from a Magistrate to empower the Police to
investigate into a cognizable offence. This position in
law was well-established. In King Emperor v. Khwaja
Nazir Ahmad [AIR 1945 PC 18 : 71 IA 203 : 46 Cri LJ
413] the Privy Council observed as follows:
“Just as it is essential that everyone accused of a
crime should have free access to a Court of justice, so
that he may be duly acquitted if found not guilty of
the offence with which he is charged, so it is of the
utmost importance that the judiciary should not
interfere with the police in matters which are within
their province and into which the law imposes on
them the duty of inquiry. 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
rules 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 Courts 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 … In
the present case, the police have under Sections 154
and 156 of the Criminal Procedure Code, a statutory
right to investigate a cognizable offence without
requiring the sanction of the Court ….”
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Ordinarily, the right and duty of the police would end
with the submission of a report under Section 173(1)
CrPC upon receipt of which it was up to the
Magistrate to take or not to take cognizance of the
offence. There was no provision in the 1898 Code
prescribing the procedure to be followed by the
police, where, after the submission of a report under
Section 173(1) CrPC and after the Magistrate had
taken cognizance of the offence, fresh facts came to
light which required further investigation. There was,
of course, no express provision prohibiting the police
from launching upon an investigation into the fresh
facts coming to light after the submission of the
report under Section 173(1) or after the Magistrate
had taken cognizance of the offence. As we shall
presently point out, it was generally thought by many
High Courts, though doubted by a few, that the police
were not barred from further investigation by the
circumstance that a report under Section 173(1) had
already been submitted and a Magistrate had already
taken cognizance of the offence. The Law Commission
in its 41st report recognized the position and
recommended that the right of the police to make
further investigation should be statutorily affirmed.
The Law Commission said:
“14.23. A report under Section 173 is normally the
end of the investigation. Sometimes, however, the
police officer after submitting the report under
Section 173 comes upon evidence bearing on the
guilt or innocence of the accused. We should have
thought that the police officer can collect that
evidence and send it to the Magistrate concerned. It
appears, however, that Courts have sometimes taken
the narrow view that once a final report under
Section 173 has been sent, the police cannot touch
the case again and cannot re-open the investigation.
This view places a hindrance in the way of the
investigating agency, which can be very unfair to the
prosecution and, for that matter, even to the accused.
It should be made clear in Section 173 that the
competent police officer can examine such evidencePage 23 of 37
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and send a report to the Magistrate. Copies
concerning the fresh material must of course be
furnished to the accused.”
Accordingly, in the CrPC, 1973, a new provision,
Section 173(8), was introduced and it says:
“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).”
20. Anyone acquainted with the day-to-day working of
the criminal courts will be alive to the practical
necessity of the police possessing the power to make
further investigation and submit a supplemental
report. It is in the interests of both the prosecution
and the defence that the police should have such
power. It is easy to visualise a case where fresh
material may come to light which would implicate
persons not previously accused or absolve persons
already accused. When it comes to the notice of the
investigating agency that a person already accused of
an offence has a good alibi, is it not the duty of that
agency to investigate the genuineness of the plea of
alibi and submit a report to the Magistrate- After all
the investigating agency has greater resources at its
command than a private individual. Similarly, where
the involvement of persons who are not already
accused comes to the notice of the investigating
agency, the investigating agency cannot keep quiet
and refuse to investigate the fresh information. It is
their duty to investigate and submit a report to the
Magistrate upon the involvement of the other
persons. In either case, it is for the Magistrate to
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decide upon his future course of action depending
upon the stage at which the case is before him. If he
has already taken cognizance of the offence, but has
not proceeded with the enquiry or trial, he may direct
the issue of process to persons freshly discovered to
be involved and deal with all the accused in a single
enquiry or trial. If the case of which he has previously
taken cognizance has already proceeded to some
extent, he may take fresh cognizance of the offence
disclosed against the newly involved accused and
proceed with the case as a separate case. What action
a Magistrate is to take in accordance with the
provisions of the CrPC in such situations is a matter
best left to the discretion of the Magistrate. The
criticism that a further investigation by the police
would trench upon the proceeding before the court is
really not of very great substance, since whatever the
police may do, the final discretion in regard to further
action is with the Magistrate. That the final word is
with the Magistrate is sufficient safeguard against
any excessive use or abuse of the power of the police
to make further investigation. We should not,
however, be understood to say that the police should
ignore the pendency of a proceeding before a court
and investigate every fresh fact that comes to light as
if no cognizance had been taken by the Court of any
offence. We think that in the interests of the
independence of the magistracy and the judiciary, in
the interests of the purity of the administration of
criminal justice and in the interests of the comity of
the various agencies and institutions entrusted with
different stages of such administration, it would
ordinarily be desirable that the police should inform
the court and seek formal permission to make further
investigation when fresh facts come to light.
21. As observed by us earlier, there was no provision
in the CrPC, 1898 which, expressly or by necessary
implication, barred the right of the police to further
investigate after cognizance of the case had been
taken by the Magistrate. Neither Section 173 nor
Section 190 lead us to hold that the power of the
police to further investigate was exhausted by the
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Magistrate taking cognizance of the offence. Practice,
convenience and preponderance of authority,
permitted repeated investigations on discovery of
fresh facts. In our view, notwithstanding that a
Magistrate had taken cognizance of the offence upon
a police report submitted under Section 173 of the
1898 Code, the right of the police to further
investigate was not exhausted and the police could
exercise such right as often as necessary when fresh
information came to light. Where the police desired
to make a further investigation, the police could
express their regard and respect for the court by
seeking its formal permission to make further
investigation.”
19. Perusal of the aforesaid observations and findings of the
Hon’ble Apex Court though the same were with regard to old
provisions of section 173 of the Code of Criminal Procedure,
1898, it has categorically recognized right of police to further
investigate into the matter even after submission of charge
sheet and held that right of the police to further investigate is
not exhausted or discontinued after submission of charge
sheet.
20. After addition of section 173(8) of the Code of Criminal
Procedure, 1973, the position of law has become statutorily
clear. Apt to note that even in old Code of Criminal
Procedure, there was no fetter on the right of further
investigation by the police. But the normal practice is that the
police used to seek formal permission for further
investigation, but the new amendment by way of section
173(8) in Code of Criminal Procedure, 1973 has statutorily
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recognized the right of the police to further investigate and to
submit supplementary charge sheet. Bare reading of section
173(8) of the Code does not contemplate specific requirement
to seek any permission from the learned Magistrate.
21. In the case of State of Bihar and Another vs. J.A.C.
Saldanha and Others, (1980) 1 SCC 554, the Constitutional
Bench of the Apex Court while examining the power of the
senior police officers of superintendence under the Police Act,
has held that there is no conflict between the powers under
the Police Act as well as Section 173(8) of the Code, to carry
on the further investigation without any permission of the
learned Magistrate. In para 18 and 19, the Hon’ble Apex Court
held as under:-
“18. There is no warrant for invoking this principle
because Section 5 of the Code provides that nothing
in the Code shall, in the absence of a specific
provision to the contrary, affect any special or local
law for the time being in force, or any special
jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the
time being in force. Section 3 of the Act does not
prescribe any special procedure for investigation
contrary to one prescribed in the Code. It merely
provides for conferment of certain power which,
when exercised, would project into the provisions of
the Code which confers power on the officer in
charge of a police station to carry on further
investigation under Section 173(8) after submission
of a report and that too without any permission of the
Magistrate. There is no conflict between the two
provisions. Power to direct investigation or further
investigation is entirely different from the method
and procedure of investigation and the competence of
the person to investigate. Section 3 of the Act as
interpreted by us deals with the powers of the StatePage 27 of 37
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Government to direct further investigation into the
case. Undoubtedly, such direction will be given to a
person competent to investigate the offence and as
has been pointed out, the police officer in rank
superior to the police officer in charge of the police
station, to wit, Inspector General, Vigilance, has been
directed to carry on further investigation. An officer
superior in rank to an officer in charge of a police
station could as well exercise the power of further
investigation under Section 173(8) in view of the
provision embodied in Section 36 of the Code. If that
be so, such superior officer could as well undertake
further investigation on his own and it is immaterial
and irrelevant that he does it at the instance or on
the direction of the State Government. Such a
direction in no way corrodes his power to further
investigate on his own.
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 case even 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 Section 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 thePage 28 of 37
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investigation; otherwise that provision would have
been a short answer to the contention raised on
behalf of Respondent 1.”
22. Yet in another case of K. Chandrashekhar vs. State of
Kerela,(1998) 5 SCC 223, the Hon’ble Apex Court has
recognized the right of further investigation by the Police
under Section 173(8) of the Code. Relevant paragraph 24 is as
under:
“24. From a plain reading of the above section it is
evident that even after submission of police report
under sub-section (2) on completion of investigation,
the police has a right of “further” investigation under
sub-section (8) but not “fresh investigation” or
“reinvestigation”. That the Government of Kerala was
also conscious of this position is evident from the fact
that though initially it stated in the Explanatory Note
of their notification dated 27-6-1996 (quoted earlier)
that the consent was being withdrawn in public
interest to order a “reinvestigation” of the case by a
special team of State police officers, in the
amendatory notification (quoted earlier) it made it
clear that they wanted a “further investigation of the
case” instead of “reinvestigation of the case”. The
dictionary meaning of “further” (when used as an
adjective) is “additional; more; supplemental”.
“Further” investigation therefore is the continuation
of the earlier investigation and not a fresh
investigation or reinvestigation to be started ab initio
wiping out the earlier investigation altogether. In
drawing this conclusion we have also drawn
inspiration from the fact that sub-section (8) clearly
envisages that on completion of further investigation
the investigating agency has to forward to the
Magistrate a “further” report or reports — and not
fresh report or reports — regarding the “further”
evidence obtained during such investigation. Once it
is accepted — and it has got to be accepted in view of
the judgment in Kazi Lhendup Dorji [1994 Supp (2)
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SCC 116 : 1994 SCC (Cri) 873] — that an
investigation undertaken by CBI pursuant to a
consent granted under Section 6 of the Act is to be
completed, notwithstanding withdrawal of the
consent, and that “further investigation” is a
continuation of such investigation which culminates
in a further police report under sub-section (8) of
Section 173, it necessarily means that withdrawal of
consent in the instant case would not entitle the
State Police, to further investigate into the case. To
put it differently, if any further investigation is to be
made it is the CBI alone which can do so, for it was
entrusted to investigate into the case by the State
Government. Resultantly, the notification issued
withdrawing the consent to enable the State Police to
further investigate into the case is patently invalid
and unsustainable in law. In view of this finding of
ours we need not go into the questions, whether
Section 21 of the General Clauses Act applies to the
consent given under Section 6 of the Act and
whether consent given for investigating into Crime
No. 246 of 1994 was redundant in view of the
general consent earlier given by the State of Kerala.”
23. In the case of Rama Chaudhary v. State of Bihar, (2009)
6 SCC 346, the Apex Court has further confirmed the
statutory right of the police to further investigate the matter
even after filing of the charge-sheet in following words in para
22:
“22. The law does not mandate taking prior
permission from the Magistrate for further
investigation. It is settled law that carrying out
further investigation even after filing of the charge-
sheet is a statutory right of the police (vide K.
Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 :
1998 SCC (Cri) 1291] ). The material collected in
further investigation cannot be rejected only because
it has been filed at the stage of the trial. The facts
and circumstances show that the trial court is fullyPage 30 of 37
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justified to summon witnesses examined in the course
of further investigation. It is also clear from Section
231 CrPC that the prosecution is entitled to produce
any person as witness even though such person is not
named in the earlier charge-sheet.”
24. Assistance can also be taken from the judgment in case
of Vinay Tyagi vs. Irshad Ali @ Deepak & Others, (2013) 5
SCC 762, wherein the Hon’ble Apex Court categorically noted
that 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
Apex Court, while recognizing the aforesaid position of law
applying the doctrine of “contemporanea expositio” has
observed that though there is no requirement of seeking prior
leave of the learned Magistrate to conduct further
investigation and to file supplementary report, however, as a
matter of practice, which was understood and implemented
for long time that normally the permission of the learned
Magistrate was formally sought for further investigation, it
should be ideally observed. The Hon’ble Apex Court further
held that so far as the further investigation is concerned, no
permission is required. However, for the purposes of fresh, de
novo or re-investigation, the permission of the learned
Magistrate is mandatory. It will be relevant to note
paragraphs 40, 49, 50, 51, 52, 53 & 54 of the aforesaid
judgment, which are 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 SectionPage 31 of 37
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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.
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
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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 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.
51. 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
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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 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 Sivanmoorthy v.
State [(2010) 12 SCC 29 : (2011) 1 SCC (Cri) 295] .
52. In light of the above discussion, we answer the
questions formulated at the opening of this judgment as
follows.
53. 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;
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(b) Where an order is passed by the higher courts in
exercise of its extraordinary 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.
54. 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 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. ”
25. In case of Hemendra Reddy (supra), the issue before the
Hon’ble Apex Court was that after filing of closure report, can
investigation be carried out and upon which, cognizance can
be taken. The Hon’ble Apex Court while summarizing final
conclusion, in para 83, held as under:-
“83. We may summarise our final conclusion as under:
(i) Even after the final report is laid before the
Magistrate and is accepted, it is permissible for the
investigating agency to carry out further investigation in
the case. In other words, there is no bar against
conducting further investigation under Section 173(8) of
the CrPC after the final report submitted under Section
173(2) of the CrPC has been accepted.
(ii) Prior to carrying out further investigation under
Section 173(8) of the CrPC it is not necessary that the
order accepting the final report should be reviewed,
recalled or quashed.
(iv) Further investigation is merely a continuation of the
earlier investigation, hence it cannot be said that thePage 35 of 37
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accused are being subjected to investigation twice over.
Moreover, investigation cannot be put at par with
prosecution and punishment so as to fall within the
ambit of Clause (2) of Article 20 of the Constitution. The
principle of double jeopardy would, therefore, not be
applicable to further investigation.
(v) 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 the CrPC.”
26. It is well settled that the police has a right to further
investigate even after submission of charge sheet before the
learned Magistrate in exercise of powers u/s 173(8) of the
Code. It has been statutorily recognized that there is no
requirement that before initiating further investigation, the
investigating agency must take permission of the Magistrate
concerned, as further investigation is distinct from re-
investigation / de novo investigation or fresh investigation.
Further investigation is just continuance of the investigation,
which has already been done and to find out the facts in
continuation of the facts, which are forming part of the final
report and which were left out during the investigation.
However, fresh, de novo or reinvestigation has effect of
wiping out the investigation already done and to start it from
the beginning or from its inception.
27. Coming back to the case on hand, it is noticeable that in
final report filed u/s 173(2) of the Code against the petitioner
dated 14.6.2017 showcase that the investigating officer has
reserved his right to file prosecution sanction u/s 19 of the
Act, as at the relevant time, it was not obtained during
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investigation. Prosecution sanction u/s 19 of the Act is
incumbent to take cognizance of the charges under the Act
levelled in the FIR. The principal allegation against the
petitioner is misuse of his power as DPS and facilitated
exchange of demonetized notes in the post office. The
supplementary charge sheet filed on 27.2.2018 u/s 173 of the
Code at Annexure A reveals two aspects. Firstly, source of old
currency exchanged by the petitioner – the then DPS,
Ahmedabad and secondly, filing of prosecution sanction u/s 19
of the Act in respect of all charge sheeted accused. Either of
the act of the investigating officer cannot be held as de novo,
fresh or re-investigation. It is in continuation of the earlier
part of the investigation. The case of Peethambaran (supra) is
distinguishable on the fact that in case on hand, investigating
officer has not carried any re-investigation and secondly, he
has reserved his right to investigate further at the time of
filing final report u/s 173(2) of the Code. Thus, no substance
found in submission that supplementary charge sheet
(Annexure A) cannot be filed.
28. In view of above, second petition i.e. Special Criminal
Application No.1776 of 2019 is found to be speculative, futile
and fatuous.
29. In the premises of aforesaid reasons, both the petitions
fail and stand dismissed. Notice discharged. Interim relief
granted earlier stands vacated.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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