# Jitendra Singh @ Bablu & Ors v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 522
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-09
- **Case number:** Criminal Misc. Writ Petition No. 10247 of 2023
- **Bench:** Vivek Kumar Birla, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-singh-bablu-ors-v-state-of-u-p-ors-49622
- **Pages:** 21

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 323, 324, 325,
308, 504 & 506 - The Code of criminal
procedure, 1973 - Section 173 (8) -
Further investigation - Police has a right
to further investigate the matter even
after the submissions of the charge
sheet/report
before
the
learned
Magistrate and even after the Magistrate
had
taken
cognizance
of
the
report/charge sheet (settled principles of
law)
-
doctrine
of
"contemporanea
expositio" - no statutory requirement that
before initiating further investigation,
investigation
agency
must
take
permission
of
the
concerned
Magistrate.(Para - 32, 34)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Further investigation is
distinct from the re-investigation/de novo
investigation or fresh investigation - It is
the continuance of the investigation,
which has already been done and on
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
523
discovery of new facts or the facts which
were left out during the investigation - In
case
of
the
fresh,
De-novo
or
reinvestigation, the investigation already
done is required to be wiped out and
investigation is required to begun from its
inception - Further investigation can be
carried out even without any permission
from the concerned Magistrate - Fresh,
de-novo or reinvestigation cannot be done
without
the
specific
orders
by
the
competent Court. (Para - 32, 36)

Investigating Officer submitted a report/chargesheet for a case - report/ charge-sheet was
already submitted before the Magistrate -
Magistrate has already taken the cognizance on
the said report/ charge-sheet - finding some
deficiencies in the investigation - Superintendent
of Police ordered a further investigation -
Investigating Officer filed an application in the
court - requesting relevant documents and a
case diary - court ordered photocopies of the
record - challenge to impugned order - raised
on ground that after passing an order of further
investigation the procedure to obtain permission
of the court was not adopted.(Para -2, 33, 37)

HELD:- In exercise of power u/S 173 (8) Cr.P.C
of the Code, it has been statutorily recognized
that there is no statutory requirement that
before
initiating
further
investigation,
investigation agency must take permission of
the concerned Magistrate. Order passed by
Superintendent of Police for further investigation
was within his power. No illegality in the
order.(Para - 32, 37, 38)

Writ Petition dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,971 of 69,868. This is a partial read: ask again with offset=39971 for what follows._

522 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In the event of arrest of the
applicant, Ashish Kumar @ Rinku
involved in the aforesaid case crime
number, shall be released on anticipatory
bail till the conclusion of trial on furnishing
a personal bond with two sureties each in
the like amount to the satisfaction of the
Presiding Officer/Court Concerned, with
the conditions that:-

i. that the applicant shall make
himself available for interrogation by a
police officer as and when required;

ii. that the applicant shall not,
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the court
or to any police officer or tamper with the
evidence;

iii. that the applicant shall not
leave India without previous permission of
the court;

iv. that the applicant shall not
tamper with the evidence during the trial;

v. that the applicant shall not
pressurize/
intimidate
the
prosecution
witness;

vi. that the applicant shall appear
before the trial court on each date fixed
unless personal presence is exempted;

17. In case of breach of any of the
above conditions, the court concerned shall
have the liberty to cancel the bail granted to
the applicant.

18. It is made clear that observations
made in granting anticipatory bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses.
----------
(2023) 12 ILRA 522
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2023
BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Misc. Writ Petition No. 10247 of 2023

Jitendra Singh @ Bablu & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vinay Kumar Jaiswal, Sri Man Singh
Chauhan

Counsel for the Respondents:
G.A.,Sri Santosh Kumar Singh

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 323, 324, 325,
308, 504 & 506 - The Code of criminal
procedure, 1973 - Section 173 (8) -
Further investigation - Police has a right
to further investigate the matter even
after the submissions of the charge
sheet/report
before
the
learned
Magistrate and even after the Magistrate
had
taken
cognizance
of
the
report/charge sheet (settled principles of
law)
-
doctrine
of
"contemporanea
expositio" - no statutory requirement that
before initiating further investigation,
investigation
agency
must
take
permission
of
the
concerned
Magistrate.(Para - 32, 34)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Further investigation is
distinct from the re-investigation/de novo
investigation or fresh investigation - It is
the continuance of the investigation,
which has already been done and on
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
523
discovery of new facts or the facts which
were left out during the investigation - In
case
of
the
fresh,
De-novo
or
reinvestigation, the investigation already
done is required to be wiped out and
investigation is required to begun from its
inception - Further investigation can be
carried out even without any permission
from the concerned Magistrate - Fresh,
de-novo or reinvestigation cannot be done
without
the
specific
orders
by
the
competent Court. (Para - 32, 36)

Investigating Officer submitted a report/chargesheet for a case - report/ charge-sheet was
already submitted before the Magistrate -
Magistrate has already taken the cognizance on
the said report/ charge-sheet - finding some
deficiencies in the investigation - Superintendent
of Police ordered a further investigation -
Investigating Officer filed an application in the
court - requesting relevant documents and a
case diary - court ordered photocopies of the
record - challenge to impugned order - raised
on ground that after passing an order of further
investigation the procedure to obtain permission
of the court was not adopted.(Para -2, 33, 37)

HELD:- In exercise of power u/S 173 (8) Cr.P.C
of the Code, it has been statutorily recognized
that there is no statutory requirement that
before
initiating
further
investigation,
investigation agency must take permission of
the concerned Magistrate. Order passed by
Superintendent of Police for further investigation
was within his power. No illegality in the
order.(Para - 32, 37, 38)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. Vinay Tyagi Vs Irshad Ali @ Deepak & ors. ,
(2013) 5 SCC 762

2. Peethambaran Vs St. of Kerala & anr. , 2023
SCC OnLine 553

3. Bohatie Devi (Dead) Through LR Vs St. of
U.P. , AIRONLINE 2023 SC 362

4. Ram Lal Narang Vs St. (Delhi Admin.) ,
(1979) 2 SCC 322;
5. Anant Thanur Karmuse Vs St. of Maha. & ors.
, (2023) 5 SCC 802

6. Rama Chaudhary Vs St. of Bihar , (2009) 6
SCC 346

7. St. of Bihar & anr. Vs J.A.C. Saldanha & ors. ,
(1980) 1 SCC 554

8. K.Chandrashekhar Vs St. of Kerela , (1998) 5
SCC 223

9. St. through C.B.I. Vs Hemendra Reddy &
anr., 2023 SCC OnLine SC 515

10. Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj, 1999 (5) SCC
740

11. Smt. Preety Verma Vs St. of U.P. & ors., Crl.
Misc. Writ Petition No. 11257 of 2023

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Anish Kumar Gupta, J.)

1. Heard Sri Man Singh Chauhan,
learned counsel for the petitioners, Sri
Santosh Kumar Singh, learned counsel
appearing for the informant and Sri Ratan
Singh, learned A.G.A. appearing for the the
State respondents and perused the record.

2. The instant writ petition has been
filed by the petitioners, who are the
accused in Case Crime No. 0057 of 2022
u/S 147, 148, 323, 324, 325, 308, 504, 506
IPC, challenging and seeking quashing of
the impugned order dated 06.12.2022,
issued by the Superintendent of Police,
Kushinagar, directing further investigation
in
the
matter
after
analysing
the
report/charge-sheet
and
finding
some
deficiencies in the investigation, though the
said report/ charge-sheet was already
submitted before the Magistrate and the
Magistrate
has
already
taken
the
cognizance on the said report/ charge-sheet.
524 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The brief facts of the case are that
on 21.03.2022, the applicant/respondent
no.4 herein lodged the First Information
Report, which was registered as Case
Crime No. 0057 of 2022. In the FIR, it was
alleged that the informant/respondent no.4,
Ajay Singh s/o Harikesh Singh, R/o Dudahi
Barhara,
P.S.-
Vishnupura,
District-
Kushinagar, has some dispute with his
brother and the land owners of the
adjoining
land
with
regard
to
the
boundaries of the land and they used to
conspire to kill the applicant with the intent
to grab the share of the applicant.

4. On 08.03.2022 at about 5:00 P.M.,
all the accused/ petitioners herein, armed
with knife, lathi, danda and iron rod, came at
the door of the house of the applicant with the
intent to kill the applicant. All of them abused
the respondent no.4 and his brother Vijay
Singh and threatened to kill them and began
to assault him and his brother, Vijay Singh.
During the incident, his brother has sustained
injuries on his body and head and his head
was ruptured and there was a fracture on his
chest bone. When the wife and nephew of
respondent no.4 saw the accused/petitioners
herein assaulting the respondent no. 4 and
Vijay Singh, then they came forward to save
them. Then, petitioner no.1 assaulted with
knife on the head of the wife of the
respondent no.4. They also assaulted his
nephew, Jay Kumar Singh, whereby his hand
was fractured. Then, they threatened that if
anyone comes to save them, they will also be
killed. Thereafter, the Police, of 112 Number,
came there and intervened then they could be
saved.
While
going
back
the
accused/petitioners herein threatened that if
any legal action is taken against them then,
the result of the same will be very bad for the
respondent no.4 and his family members.

5. In the F.I.R., it was further stated
that the said incident was witnessed by
various other persons including the wife
and son of said Vijay Singh, brother of the
respondent no.4. After the information, his
son, Shubham Singh, came there and
carried all the injured persons at CHC
Dudahi, where the medical examination
and
primary
treatment
was
done.
Thereafter, looking at the serious nature of
injuries suffered by the injured persons
they were referred to District Hospital,
wherefrom, they were referred to Medical
College, Gorakhpur, where the injured
were under treatment and the said Vijay
Singh, the brother of the respondent no.4,
was fighting to survive. The respondent
no.4 has reported the incident after coming
from the Medical College.

6. After the registration of the
aforesaid First Information Report, the
matter was duly investigated by the police
and the charge-sheet was submitted on
09.11.2022,
upon
which
the
learned
Magistrate has taken cognizance on the
said charge-sheet on 15.11.2022. After the
learned Magistrate took cognizance on the
said charge-sheet filed by the police on
09.11.2022, the Superintendent of Police,
Kushinagar,
after
analysing
the
said
report/charge-sheet and having found some
deficiencies in the investigation, vide order
dated 06.12.2022, transferred the further
investigation in the matter to the Crime
Branch through the Inspector, Sri Sanjay
Kumar Singh, Crime Branch, Kushinagar.
After
taking
charge
of
the
further
investigation, the said Inspector, Sri Sanjay
Kumar Singh, informed about the further
investigation being undertaken by him
under the order dated 06.12.2022 to the
learned Magistrate on 10.01.2023.
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
525

7. Aggrieved by the said order, the
instant writ petition has been filed by the
accused persons.

8. Learned counsel for the petitioners
submits that in the instant case, the
Superintendent of Police has transferred the
investigation to Crime Branch and directed
further investigation in the matter without
seeking any permission from the learned
Magistrate, as the learned Magistrate has
already taken cognizance on the chargesheet dated 09.11.2022, filed by the Police
on
15.11.2022,
therefore,
the
Superintendent of Police has no right to
direct further investigation in the matter
without
prior
permission
from
the
concerned Magistrate.

9. Learned counsel for the petitioners
relying upon the judgement of the Apex
Court in the case of Vinay Tyagi vs. Irshad
Ali @ Deepak & Others : (2013) 5 SCC
762, submits that further investigation
cannot be directed without prior leave of
the learned Magistrate. Learned counsel for
the petitioners further submitted that after
submitting the charge-sheet, whereupon the
cognizance
has
been
taken
by
the
Magistrate,
the
investigation
agency
becomes functus officio and has no role to
play and that any further investigation
cannot be proceeded without the prior
permission from the concerned Magistrate.
To substantiate his arguments, learned
counsel for the petitioners further relied
upon the judgment of the Apex Court in the
case of Peethambaran vs. State of Kerala
and Another : 2023 SCC OnLine 553 and
also on Bohatie Devi (Dead) Through LR
vs. State of Uttar Pradesh : AIRONLINE
2023 SC 362.

10. Per contra, learned A.G.A. and
learned counsel appearing for the informant
have made identical arguments that after
registration of a cognizable offence, the
role of investigation agency starts and the
role of investigation agency does not end
with the submission of the charge-sheet. If,
even after the submission of the chargesheet or even after the cognizance is taken
by the learned Magistrate, on the said
charge-sheet, if the investigation agency
find disclosure of new facts, they are
obliged to further investigate the matter and
submit the supplementary report/ chargesheet. To substantiate his submissions,
learned counsel for the State has drawn
attention to the provisions of Section
173(8) of the Code of Criminal Procedure,
1973 (hereinafter referred as the 'the
Code'), which do not mandate any prior
permission of the Magistrate to carry on
further investigation and file the chargesheet and has also relied upon the
judgments of the Apex Court in the cases
of Ram Lal Narang vs. State (Delhi
Administration) : (1979) 2 SCC 322;
Anant Thanur Karmuse vs. State of
Maharashtra and Others : (2023) 5 SCC
802 and also on Rama Chaudhary vs.
State of Bihar : (2009) 6 SCC 346.

11. Learned counsel for the informant
and learned A.G.A. further submitted that
in the instant case, after the order dated
06.12.2022, the Investigating Officer, after
taking charge of the further investigation
has informed in writing to the concerned
Magistrate on 10.01.2023, with regard to
the further investigation as directed by the
Superintendent of Police, Kushinagar, vide
its order dated 06.12.2022 and sought
photocopy of entire case diary and all other
relevant documents for this purpose. On the
same date application was allowed and the
relevant record was actually received by
the Investigating Officer on 19.01.2023.
Relying upon the provision of Section
526 INDIAN LAW REPORTS ALLAHABAD SERIES
173(8) of the Code, learned A.G.A. as well
as learned counsel for respondent no. 4
submit that the powers of investigation
agency after registration of the F.I.R. are
unfettered and for further investigation no
prior
permission
from
Magistrate
is
required even when the cognizance has
been taken by the learned Magistrate. It is
further submitted that in any case, even
assuming for the sake of arguments that
such permission is required, the same was
duly received and there is/was no legal
infirmity in proceeding with the further
investigation.

12. To appreciate the arguments
advanced at the Bar, it is necessary to
briefly note the provisions of Sections 173
and 190 of the Code, which are quoted as
under:

"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
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.
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
527

(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).

(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."

(emphasis supplied)

13. Section 173(1) of the Code
provides that every investigation under this
chapter
shall
be
completed
by
the
investigation agency without unnecessary
delay. Section 173(2) of the Code, provides
that as soon as the investigation is
528 INDIAN LAW REPORTS ALLAHABAD SERIES
completed, the officer in-charge of the
concerned police station is obliged to
submit the police report to the Magistrate in
a prescribed format. It further mandates the
officer in-charge of the police station to
inform the action taken by him to the
informant of the said case. Section 173(3)
of the Code, provides that wherever the
superior officer of the police station has
been appointed, the report shall be
submitted through that officer and the
pending orders of Magistrate, the such
officer is competent to direct the officer incharge of the police station to make further
investigation in the matter. Sub-section (5)
of Section 173 of the Code provides that
the documents which should be forwarded
to the Magistrate alongwith the report
under Section 173(2) of the Code. Section
173(7) of the Code mandates that the
copies of the report and the documents be
provided to the accused. Sub-section (8) of
Section 173 of the Code provides that
nothing in this section shall preclude
further investigation in respect of an
offence after a report under sub-section (2)
of Section 173 is forwarded to the
Magistrate,
and
if
on
such
further
investigation, if the officer in-charge of the
police station obtains further evidence, oral
or documents, he shall forward the same to
the Magistrate along with a further report
regarding such evidence in the prescribed
format. There is nothing in Sub-section (8)
of Section 173 of the Code, which
mandates that before taking up the further
investigation in the matter, the officer incharge or the investigation officer is
obliged to seek any permission from the
Magistrate. Rather, it recognises the right
of the investigation agency to conduct the
further investigation in the matter and
collect further evidence and forward it to
the learned Magistrate. Section 190 of the
Code provides how the Magistrate shall
take cognizance of any offences. He can
take the cognizance of the matter on
receiving a complaint of facts which
constitute such offences or upon a police
report of such acts or upon information
received from any person other than the
police officer or upon his own knowledge
that such offence shall be committed.
Therefore, there is nothing in Section 190
or 173(8) of the Code, which limits the
powers of the investigation agency with
regard to further investigation in the matter.

14. In the case of Ram Lal Narang
(supra), the Apex Court has noted all the
previous judgements including those of
different High Courts and has considered
the diverse views taken by the different
High Courts and has also noted the
developments
and
inclusion
of
new
provisions as Section 173(8) in the
Criminal Procedure Code, 1973, on the
basis of the 41st 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 in following
words:

"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
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
529
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
evidence and send a report to the
Magistrate. Copies concerning the fresh
material must of course be furnished to the
accused."

(emphasis supplied)

15. On the basis of the aforesaid
report of the Law Commission, in the Code
(Cr.P.C. 1973), the aforesaid report was
implemented and Section 173(8), was
introduced, which provides as under:

"173(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,under sub-section
(2) 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)."

16. In Paragraph 15, 20 and 21 of the
aforesaid judgement in Ram Lal Narang
(supra), the Hon'ble Apex Court has
observed 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
the 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
530 INDIAN LAW REPORTS ALLAHABAD SERIES
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 ...."

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
evidence 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 subsections (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)."
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
531

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 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
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
532 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(emphasis supplied)

17. From the aforesaid observations,
though the same were with regard to the
old provisions of Section 173 of Criminal
Procedure Code, 1898 (hereinafter referred
as 'the Old Code'), the Apex Court has
categorically recognized the right of the
police to further investigate in the matter
even after submission of the charge-sheet
and held that the right of police to further
investigate
is
not
exhausted
after
submissions of the charge-sheet and the
police could exercise such right as and
when
it
is
necessary
when
fresh
information came to the knowledge of the
police/investigation agency.

18. From the reading of the aforesaid
judgments as well as the new provisions of
Section 173(8) of the Code, the position of
law as per the Old Code was that though
there were no fetters on the right of further
investigation by the police but it was the
normal practice that the police used to seek
formal
permission
to
make
further
investigation. However, in the present
Code, the right of police to further
investigate
and
further
submit
the
supplementary charge sheet has been
statutorily recognized. For such further
investigation,
even
in
the
Criminal
Procedure Code, 1973 there is no specific
requirement to seek any permission from
the learned Magistrate.

19. 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, dealing with the
powers of the senior police officers of
superintendence under the Police Act of
State of Bihar and the powers under
Section 173(8) of the Code, 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. Paragraphs 18 & 19 of
the aforesaid judgment are as under:under
sub-section (2)

"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 State Government to direct further
investigation into the case. Undoubtedly,
12 All. Jitendra Singh @ Bablu & Ors. Vs. State of U.P. & Ors.
533
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 the investigation; otherwise that
provision would have been a short answer
to the contention raised on behalf of
Respondent 1."

(emphasis supplied)

20. In the 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 subsection (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".