# STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC

- **Citation:** [2023] 7 S.C.R. 134
- **Court:** Supreme Court of India
- **Decided:** 2023-04-28
- **Case number:** Criminal Appeal Nos. 1300-1302 of 2023
- **Bench:** Surya Kant, J.B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-through-central-bureau-of-investigation-v-hemendhra-reddy-another-etc-37470
- **Pages:** 51

## Headnote

Code of Criminal Procedure, 1973 - ss. 169, 173(2), 173(8)
- Further Investigation - Whether the High Court was justified in
quashing the entire prosecution instituted by the CBI against the
accused persons for the alleged offences on the ground that the
CBI could not have undertaken further investigation under subsection (8) of s.173 of the Code of Criminal Procedure, 1973 and
filed a charge-sheet having once already submitted a final report
under sub-section (2) of the s.173 of the CrPC (closure report) -
Held: There is no bar against conducting further investigation u/s.
173(8) of the CrPC after the final report submitted u/s. 173(2) of
the CrPC has been accepted - Prior to carrying out a further
investigation u/s. 173(8) of the CrPC, it is not necessary for the
Magistrate to review or recall the order accepting the final report -
Further investigation is merely a continuation of the earlier
investigation, hence it cannot be said that the 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 - There is nothing in the CrPC to suggest
that the court is obliged to hear the accused while considering an
application for further investigation u/s. 173(8) of the CrPC -
Impugned orders passed by the High Court set aside.
Code of Criminal Procedure, 1973 - s.173 - Delay in trial on
account of further investigation - Held: It is settled law that the
criminal offence is considered as a wrong against the State and the
Society even though it has been committed against an individual -
Normally, in serious offences, prosecution is launched by the State
and a Court of law has no power to throw away prosecution solely
on the ground of delay - Mere delay in approaching a Court of law
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would not by itself afford a ground for dismissing the case - Though
it may be a relevant circumstance in reaching a final verdict.
Code of Criminal Procedure, 1973 - ss. 169, 173 - Distinction
between - Section 169 of the CrPC is silent in making report to the
Magistrate, however the Investigating Officer is under an obligation
to submit its report to the Magistrate under Section 173 of the CrPC
- Though Section 169 of the CrPC does not contemplate making a
report, it contemplates of obtaining a bond with or without sureties
from the accused to appear if and when so required before the
Magistrate empowered to take cognizance of the offence on a police
report and such report is contemplated under Section 173 of the
CrPC.
Prevention of Corruption Act, 1988 - Non-compliance to
second proviso to s. 17 - A superior police officer of the rank of
Superintendent of Police or any officer higher in rank is required
to pass an order before an investigation, if any, for offence u/s.
13(1)(e) is commenced - The argument canvassed on behalf of the
accused persons is that there is no such order of the police officer
not below the rank of Superintendent of Police in the charge-sheet
- Held: In the instant case, this issue was not raised before the
High Court - Even otherwise, this is a question of fact and a matter
of record - If it is the case of the accused that there is no such order
on record, the same may be pointed out to the trial court in the
course of the trial - It is for the trial court to verify the record, look
into it and take an appropriate call on this issue in accordance with
law.
Maxim - Nullum tempus aut locus occurrit regi - discussed.
Allowing the appeal, the Court
HELD: Section 169 of CrPC
1. Section 169 of the CrPC is silent in making report to the
Magistrate, however the Investigating Officer is under an
obligation to submit its report to the Magistrate under Section
173 of the CrPC. Thus, though Section 169 of the CrPC does not
contemplate making a report, it contemplates of obtain

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SUPREME COURT REPORTS
[2023] 7 S.C.R.
 [2023] 7 S.C.R. 134
134
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION
v.
HEMENDHRA REDDY & ANOTHER. ETC.
(Criminal Appeal Nos. 1300-1302 of 2023)
APRIL 28, 2023
[SURYA KANT AND J.B. PARDIWALA, JJ.]
Code of Criminal Procedure, 1973 - ss. 169, 173(2), 173(8)
- Further Investigation - Whether the High Court was justified in
quashing the entire prosecution instituted by the CBI against the
accused persons for the alleged offences on the ground that the
CBI could not have undertaken further investigation under subsection (8) of s.173 of the Code of Criminal Procedure, 1973 and
filed a charge-sheet having once already submitted a final report
under sub-section (2) of the s.173 of the CrPC (closure report) -
Held: There is no bar against conducting further investigation u/s.
173(8) of the CrPC after the final report submitted u/s. 173(2) of
the CrPC has been accepted - Prior to carrying out a further
investigation u/s. 173(8) of the CrPC, it is not necessary for the
Magistrate to review or recall the order accepting the final report -
Further investigation is merely a continuation of the earlier
investigation, hence it cannot be said that the 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 - There is nothing in the CrPC to suggest
that the court is obliged to hear the accused while considering an
application for further investigation u/s. 173(8) of the CrPC -
Impugned orders passed by the High Court set aside.
Code of Criminal Procedure, 1973 - s.173 - Delay in trial on
account of further investigation - Held: It is settled law that the
criminal offence is considered as a wrong against the State and the
Society even though it has been committed against an individual -
Normally, in serious offences, prosecution is launched by the State
and a Court of law has no power to throw away prosecution solely
on the ground of delay - Mere delay in approaching a Court of law
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would not by itself afford a ground for dismissing the case - Though
it may be a relevant circumstance in reaching a final verdict.
Code of Criminal Procedure, 1973 - ss. 169, 173 - Distinction
between - Section 169 of the CrPC is silent in making report to the
Magistrate, however the Investigating Officer is under an obligation
to submit its report to the Magistrate under Section 173 of the CrPC
- Though Section 169 of the CrPC does not contemplate making a
report, it contemplates of obtaining a bond with or without sureties
from the accused to appear if and when so required before the
Magistrate empowered to take cognizance of the offence on a police
report and such report is contemplated under Section 173 of the
CrPC.
Prevention of Corruption Act, 1988 - Non-compliance to
second proviso to s. 17 - A superior police officer of the rank of
Superintendent of Police or any officer higher in rank is required
to pass an order before an investigation, if any, for offence u/s.
13(1)(e) is commenced - The argument canvassed on behalf of the
accused persons is that there is no such order of the police officer
not below the rank of Superintendent of Police in the charge-sheet
- Held: In the instant case, this issue was not raised before the
High Court - Even otherwise, this is a question of fact and a matter
of record - If it is the case of the accused that there is no such order
on record, the same may be pointed out to the trial court in the
course of the trial - It is for the trial court to verify the record, look
into it and take an appropriate call on this issue in accordance with
law.
Maxim - Nullum tempus aut locus occurrit regi - discussed.
Allowing the appeal, the Court
HELD: Section 169 of CrPC
1. Section 169 of the CrPC is silent in making report to the
Magistrate, however the Investigating Officer is under an
obligation to submit its report to the Magistrate under Section
173 of the CrPC. Thus, though Section 169 of the CrPC does not
contemplate making a report, it contemplates of obtaining a bond
with or without sureties from the accused to appear if and when
so required before the Magistrate empowered to take cognizance
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC.
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[2023] 7 S.C.R.
of the offence on a police report and such report is contemplated
under Section 173 of the CrPC. [Para 39][153-A-B]
What is the meaning of the term "Further Investigation"?
2. In Rama Chaudhary Vs. State of Bihar reported in (2009)
6 SCC 346, this Court held that, "further investigation within the
meaning of provision of Section 173(8) CrPC is additional; more;
or 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." [Para 48][156-B-C]
What are the alternatives before a Magistrate when a "Final
Report" is filed?
3. Wherever a final report forwarded by the Investigating
Officer to a Magistrate under Section 173(2)(i) of the CrPC is
placed before him, several situations may arise. The report may
conclude that an offence appears to have been committed by a
particular person and persons, and in such a case the Magistrate
may either:(1) accept the report and take cognizance of offence
and issue process, (2) may disagree with the report and drop the
proceeding or may take cognizance on the basis of report/material
submitted by the investigation officer, (3) may direct further
investigation under Section 156(3) and require police to make a
report as per Section 173(8) of the CrPC. (4) may treat the protest
complaint as a complaint, and proceed under Sections 200 and
202 of the CrPC. [Para 49][156-C-F]
What is the prime consideration for "Further
Investigation"?
4. As observed in Hasanbhai Valibhai Qureshi v. State of
Gujarat and Others reported in (2004) 5 SCC 347, the prime
consideration for further investigation is to arrive at the truth
and do real and substantial justice. The hands of investigating
agency for further investigation should not be tied down on the
ground of mere delay. In other words, the mere fact that there
may be further delay in concluding the trial should not stand in
the way of further investigation if that would help the court in
arriving at the truth and do real and substantial and effective
justice. [Para 50][156-G-H; 157-A]
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5. A conspectus of the various decisions of the Supreme
Court rendered in cases where final reports (closure reports)
had already been submitted and accepted makes the position of
law very clear that 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. It is also
evident, that prior to carrying out a further investigation under
Section 173(8) of the CrPC, it is not necessary for the Magistrate
to review or recall the order accepting the final report. [Para
76][171-B-C]
6. The final conclusion can be summarized as: (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 the 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. [Para 77][171D-G]
Delay in Trial on account of Further Investigation
7. The general rule of criminal justice is that "a crime never
dies". The principle is reflected in the well-known maxim nullum
tempus aut locus occurrit regi (lapse of time is no bar to Crown in
proceeding against offenders). It is settled law that the criminal
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC.
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offence is considered as a wrong against the State and the Society
even though it has been committed against an individual. Normally,
in serious offences, prosecution is launched by the State and a
Court of law has no power to throw away prosecution solely on
the ground of delay. Mere delay in approaching a Court of law
would not by itself afford a ground for dismissing the case. Though
it may be a relevant circumstance in reaching a final verdict. [Para
84][181-G-H]
Non-compliance of the Second Proviso to Section 17 of the
1988 Act
8. The Second proviso to Section 17 of the 1988 Act directs
that the offence referred to under clause (e) of sub section (1) of
Section 13 of the 1988 Act shall not be investigated without the
order of a police officer not below the rank of a Superintendent of
Police. Thus, from the Second proviso, it is clear that an
investigation into the offence referred to in clause (e) of sub
section (1) of Section 13 of the 1988 Act even by any police officer
enumerated in clauses (a) to (c) or any Police Officer authorized
in that behalf by the State Government as per the first proviso,
can be undertaken only by an order of the police officer not below
the rank of Superintendent of Police. Thus, the Second proviso
is in the nature of additional safe guard for the public servant
who are accused of the offence punishable under Section 13(1)(e)
of the 1988 Act against an investigation by a police officer without
the knowledge and consent of superior police officer not below
the rank of Superintendent of Police. A superior police officer of
the rank of Superintendent of Police or any officer higher in rank
is required to pass an order before an investigation, if any, for
such offence is commenced. It is needless to point-out that, before
directing such investigation, the Superintendent of Police or an
officer superior to him is required to apply his mind to the
information and come to an opinion that the investigation on such
allegations is necessary. The argument canvassed on behalf of
the accused persons is that there is no such order of the police
officer not below the rank of Superintendent of Police in the
chargesheet. This issue was not even raised before the High
Court. Even otherwise, this is a question of fact and a matter of
record. If it is the case of the accused that there is no such order
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on record, the same may be pointed out to the trial court in the
course of the trial. It is for the trial court to verify the record,
look into it and take an appropriate call on this issue in accordance
with law. [Para 88][183-F-H; 184-A-D]
Rama Chaudhary Vs. State of Bihar (2009) 6 SCC 346
: [2009] 5 SCR 482; Hasanbhai Valibhai Qureshi v.
State of Gujarat and Others (2004) 5 SCC 347 : [2004]
3 SCR 762; Ramchandran v. R. Udhayakumar and
Others (2008) 5 SCC 413 : [2008] 8 SCR 439; K.
Chandrasekhar v. State of Kerala and Others (1998) 5
SCC 223 : [1998] 3 SCR 72; Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v.
State of A.P. and Others (1999) 5 SCC 740 : [1999] 3
SCR 870; Hemant Dhasmana v. Central Bureau of
Investigation and Another (2001) 7 SCC 536 : [2001]
1 Suppl. SCR 646; Union Public Service Commission
v. S. Papaiah and Others (1997) 7 SCC 614 : [1997] 4
Suppl. SCR 56; Ram Lal Narang v. State (Delhi
Administration) (1979) 2 SCC 322 : [1979] 2 SCR 923;
State of Andhra Pradesh v. A.S. Peter (2008) 2 SCC
383 : [2007] 13 SCR 517; Nirmal Singh Kahlon v. State
of Punjab and Others (2009) 1 SCC 441 : [2008] 14
SCR 1049; Kari Choudhary v. Mst. Sita Devi and
Others (2002) 1 SCC 714 : [2001] 5 Suppl. SCR 588;
Official Liquidator v. Dayanand and Others (2008) 10
SCC 1 : [2008] 15 SCR 331; Pooja Pal v. Union of
India and Others (2016) 3 SCC 135 : [2016] 11 SCR
560 - relied on.
Vinay Tyagi v. Irshad Ali alias Deepak and Others
(2013) 5 SCC 762 : [2012] 13 SCR 1005; Vinubhai
Haribhai Malaviya v. State of Gujarat (2019) 17 SCC
1 : [2019] 15 SCR 936; Luckose Zachariah alias Zak
Nedumchira Luke and Others v. Joseph Joseph and
Others (2022) SCC Online SC 241; H.N. Rishbud v.
State of Delhi AIR 1955 SC 196 : [1955] SCR 1150;
Kamlapati Trivedi v. State of West Bengal 1980 (2) SCC
91 : [1979] 2 SCR 717; State of Rajasthan v. Aruna
Devi and Others (1995) 1 SCC 1 : [1994] 5 Suppl. SCR
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC.
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274; N.P. Jharia v. State of M.P. (2007) 7 SCC 358 :
[2007] 8 SCR 618; Japani Sahoo v. Chandra Sekhar
Mohanty (2007) 7 SCC 394 : [2007] 8 SCR 582;
Commissioner of Police, Delhi and Another v. Registrar,
Delhi High Court, New Delhi (1996) 6 SCC 323 : [1996]
7 Suppl. SCR 432 - referred to.
Divakar Singh v. A. Ramamurthi Naidu AIR 1919 Mad
751; State v. Mehar Singh and Ors. 1974 Crl LJ 970 -
referred to.
King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXI
Indian Appeals, 203 - referred to.
Case Law Reference
[2012] 13 SCR 1005
referred to
Para 17 (ii), 33 (i)
[2019] 15 SCR 936
referred to
Para 33 (ii)
[1955] SCR 1150
referred to
Para 43
[2009] 5 SCR 482
relied on
Para 48
[2004] 3 SCR 762
relied on
Para 50
[2008] 8 SCR 439
relied on
Para 51
[1998] 3 SCR 72
relied on
Para 51
[1999] 3 SCR 870
relied on
Para 53
[2001] 1 Suppl. SCR 646
relied on
Para 54
[1997] 4 Suppl. SCR 56
relied on
Para 55
[1979] 2 SCR 923
relied on
Para 57
[2007] 13 SCR 517
relied on
Para 58
[2008] 14 SCR 1049
relied on
Para 59
[1979] 2 SCR 717
referred to
Para 66
[1994] 5 Suppl. SCR 274
referred to
Para 68
[2007] 8 SCR 618
referred to
Para 74
[2001] 5 Suppl. SCR 588
relied on
Para 75
[2008] 15 SCR 331
relied on
Para 82
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[2007] 8 SCR 582
referred to
Para 84
[1996] 7 Suppl. SCR 432
referred to
Para 86
[2016] 11 SCR 560
relied on
Para 87
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos.1300-1302 of 2023.
From the Judgment and Order dated 15.12.2015 in CRLOP
Nos.11101 and 15873 of 2015 and dated 08.01.2016 in CRLOP No.411
of 2016 of the High Court of Judicature at Madras.
Jayant K. Sud, ASG, Praveena Gautam, Mrs. Suhasini Sen, Mrs.
Saudamini Sharma, Amit Sharma B, Santosh Kumar, P V Yogeswaran,
Arvind Kumar Sharma, Advs. for the Appellant.
Suresh Babu, C. K. Sasi, Abdulla Naseeh V T, Ms. Meena K
Poulose, Navin Suresh, Advs. for the Respondents.
The Judgment of the Court was delivered by
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. Since the issues raised in all the captioned appeals are the
same those were taken up for hearing analogously and are being disposed
of by this common judgment and order.
3. The principal question of law that falls for the consideration of
this Court in the present litigation is whether the High Court was justified
in quashing the entire prosecution instituted by the CBI against the
accused persons for the alleged offences on the ground that the CBI
could not have undertaken further investigation under sub section (8) of
Section 173 of the Code of Criminal Procedure, 1973 (for short, 'the
CrPC') and filed a chargesheet having once already submitted a final
report under sub section (2) of the Section 173 of the CrPC (closure
report)? In other words, whether the High Court was right in taking the
view that the Special Court could not have taken cognizance upon the
chargesheet filed by the CBI based on further investigation having once
already filed a closure report in the past and the same having been
accepted by the court concerned at the relevant point of time?
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC.
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FACTUAL MATRIX
4. The respondent No. 3 herein D. Dwarakanadha Reddy
(Accused No. 1) joined the services of the Customs Department as a
Preventive Officer in the year 1993.
5. In January, 2003, the respondent No. 3 was promoted as an
Appraiser in Customs Department.
6. On 30.06.2006, the office of Superintendent of Police (CBI)
was in receipt of the following information:
(i)
D. Dwarakanadha Reddy (A-1) was holding the post of
Appraiser, Customs Department since 2004, and his main
income was his salary.
(ii)
His wife D. Sujana Reddy (A-2) has no agricultural land in
her name and does business in the name of M/s Sujana
Engineers.
(iii)
That the couple had acquired assets worth Rs. 64, 41, 690.92
lakh between 01.04.2001 and 31.03.2005, however their
combined income during the said period was Rs. 50, 95,
371.57/-, comprising of salary income of A-1, agricultural
income of A-2, business income of A-2, bank interest, housing
loan from the Andhra Bank, capital gain on sale of property,
rewards given to A-1 etc.
(iv)
During the period between 01.04.2001 and 31.03.2005, they
incurred expenditure of Rs. 12, 74, 347.16/-, leaving them
with the savings of Rs. 38, 21, 024.41/-.
(v)
Therefore, their total disproportionate assets were worth
Rs. 26, 20, 666.51/- as on 31.03.2005.
In such circumstances referred to above, an FIR in RC MA 1
2006 A 0027 was registered by the CBI under Section 13(1)(e) read
with Section 13(2) of the Prevention of Corruption Act, 1988 (for short,
'the 1988 Act') along with Section 109 of the Indian Penal Code, 1860
(for short, 'the IPC').
7. On 24.12.2008, the CBI/ACB filed an application before the
Principal Special Judge for CBI Cases, Chennai, with a prayer to close
the proceedings and return the documents for the purpose of regular
departmental action against the accused No. 1 (respondent No. 3). The
application stated inter alia as follows:
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"After completion of investigation it has come to light that
the accused cannot be prosecuted. Hence, Final Report u/s.
173 Cr.PC is being filed which may be accepted."
8. It was further prayed that the documents seized during the
course of investigation be returned so that the same could be used in the
regular departmental action that may be initiated against the accused
No. 1.
9. The aforesaid application filed by the CBI was taken up by the
Special Court and the following order dated 29.01.2009 came to be
passed:
"ORDER
This petition is filed by the Petitioner/Complainant u/s. 173
Cr.PC praying to close the FIR and to retain the documents
collected during the investigation to be used in the Regular
Departmental Action against A1 .
1. Heard the learned Public Prosecutor. Perused the FIR,
report and connected records. Reason stated in the report is
convincing. Hence Final Report is accepted and FIR is closed
and permitted to retain the documents collected during the
investigation to be used in the regular Departmental Action
against A1.
Pronounced by me in the Open Court, this the 29th day of
January 2009.
Principal Spl. Judge for CBI Cases"
10. On 24.02.2012, departmental proceedings were initiated against
the accused No. 1.
11. It appears from the materials on record that at the end of the
departmental proceedings, the possession of disproportionate assets could
not be established. However, an administrative warning was issued to
the accused No. 1 for the lapse on his part to intimate his department the
fact of having obtained a loan of Rs. 3, 00, 000/- (Rupees Three Lakh)
from the Andhra Bank jointly along with his wife. An administrative
warning was also issued in regard to not intimating the correct expense
incurred by the accused No. 1 towards the construction of the house.
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC. [J. B. PARDIWALA, J.]
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12. On 26.06.2013, the CBI filed the Crl. MP 3833/2013 in RC
MA 1 2006 A0027 under Section 173(8) of the CrPC, seeking to reopen
and undertake further investigation of the case, stating inter alia as
follows:
"...the prosecution had filed final report under Section 173
Cr.P.C. before this Hon'ble Court on 24.12.2008 with a prayer
to close the FIR as a mistake of fact..."
"... It is humbly submitted that now new evidences emerged to
prove the allegation levelled against the above said accused
persons and to substantiate the charge of possession of the
disproportionate to the known sources of income of A-1 and
A-2. Hence, it is just and necessary to re-open and further
investigate the above case U/s. 173(8) Cr.P.C. in the interest
of justice."
13. The Special Court allowed the aforesaid application vide order
dated 28.06.2013, holding inter alia as under:
"Heard. According to the prosecution, the prosecution is in
possession of new evidences to substantiate the allegation of
possession of disproportionate assets to the known sources
of income against the accused persons. Hence, it is just and
proper to order for re-opening of the case."
14. On 01.03.2014, the CBI issued a letter/summons No. RC 27/
A/2006/ CBI/ACB/Chennai/0799 to the Deputy Commissioner of
Customs, CIV-Vigilance Customs House, Chennai, requiring the presence
of the respondent No.3 D. Dwarakanadha Reddy in connection with the
investigation in RC 27(A)/06.
15. On 13.03.2014, respondent No. 3 filed Crl. O.P. of No. 6371
of 2014 before the Madras High Court seeking quashing of the
proceedings related to the summons dated 1.03.2014. The respondent
No. 3 stated that he had attended the summons and during the
interrogation he was asked to produce documents which were "either
not in existence or not available with the petitioner or already
available with CBI".
16. On 21.03.2014, the CBI filed its counter affidavit to the above
referred petition filed by the respondent No. 3, stating specifically that:
"3. It is submitted that in the year 2013 CBI received certain
information/materials warranting the re-opening of the
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investigation of this closed case. Accordingly Shri G.
Palaniappan, Inspector of Police, CBI/ACB, Chennai filed a
petition in the Hon'ble Court of Principal Special Judge for
CBI Cases, Chennai seeking the orders of the said court for
re-opening of investigation and the Hon'ble Court of PSJ,
Chennai had issued order dt. 28.06.2.013 ordering the reopening investigation of this case."
17. The High Court vide its order dated 11.09.2014 rejected the
Crl. O.P. No. 6371 of 2014, holding inter alia as under:
(i)
In the year 2013, the CBI came into possession of certain
fresh materials warranting the re-opening of the investigation
against the accused persons.
(ii)
Under 173(8) of the CrPC, a police officer can carry on
further investigation even after a report under Section
173(2) of the CrPC is submitted, in view of Section 173(8)
of the CrPC and held in Vinay Tyagi v. Irshad Ali alias
Deepak and Others reported in (2013) 5 SCC 762, with
the only rider being that the police should seek formal
permission from the Court.
(iii)
Acceptance of the final report by the Magistrate does not
debar him from taking cognizance if on further investigation,
fresh material comes to light.
(iv)
In the CBI counter, it is stated that fresh material was
received in the year 2013 which warranted reopening of
the investigation.
(v)
The Magistrate's power to order further investigation under
Section 156(3) of the CrPC does not conflict with the power
of the police to investigate further in light of Section 173(8)
of the CrPC, and therefore the Magistrate can order
reopening of the investigation.
(vi)
This can of course only be done when fresh material comes
to the knowledge of the investigating officer which he did
not have before as in the present case.
(vii)
Since the CBI has collected fresh material connected with
the case which were not available earlier, it cannot be said
that the Special Court has acted beyond its jurisdiction in
reopening the investigation.
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC. [J. B. PARDIWALA, J.]
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18. On 17.12.2014, the CBI filed its detailed chargesheet against
the respondent Nos. 1, 2 and 3 respectively alleging inter alia as follows:
(i)
That the Respondent No.1, Hemendra Reddy, the brotherin-law of D. Sujana (A-2) was a farmer at Chenna Reddy
Garu Palli, Chithoor Dist.
(ii)
The Respondent No.3, was found to be in possession of
assets/pecuniary resources in his name and in the names
of his family members D. Sujana and Hemendra Reddy to
the tune of Rs. 61, 11, 989/- as against their known sources
of income of Rs. 59, 90, 135/- during the period between
01.01.1998 and 30.06.2005.
19. On 2.06.2015, the respondent No. 2 herein filed Crl. O.P. No.
15873 of 2015 before the Madras High Court, seeking quashing of the
chargesheet.
20. On 27.04.2015, the respondent No. 1 herein filed Crl. O.P.
No. 11101 of 2015, seeking quashing of the chargesheet.
21. On 14.09.2015, the CBI filed its counter to all the aforesaid
petitions.
22. On 15.12.2015, the High Court allowed the Crl. O.P. No.
11101 of 2015 and Crl. O.P. No. 15873 of 2015 respectively by a common
order, holding inter alia as follows:
(i)
That on receipt of a final report under Section 173 of the
CrPC, the Magistrate has three options - either to accept
the report and close the case, to disagree with the report
and proceed with the case or to order further investigation
under Section 156(3) of the CrPC.
(ii)
That the Magistrate is only empowered to direct "further
investigation" and not to direct a "re-investigation/ de-novo
investigation".
(iii)
In terms of the judgment in Vinay Tyagi(supra)no
investigation agency is empowered to conduct a fresh, denovo or reinvestigation once a report under Section 173(2)
of the CrPC is filed.
(iv)
The petition seeking "re-opening"/ "further investigation"
was filed after a lapse of 4 years.
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(v)
In order to empower the Magistrate to permit further
investigation, something should have been pending before
the Magistrate, but no matter was pending as the
investigation had already been closed.
(vi)
The Special Court thus had no power to grant permission
to conduct a further investigation.
(vii)
The judgment of Vinay Tyagi (supra) had not been brought
to the attention of the High Court at the time of deciding
Crl. O.P. No. 6371 of 2014.
23. It appears that the respondent No. 3 herein also filed Crl. O.P.
No. 411 of 2016, seeking quashing of the chargesheet. The High Court
vide order dated 08.01.2016 allowed the Crl. O.P. No. 411 of 2016 filed
by D. Dwarakanadha Reddy in terms of the order passed by it dated
15.12.2015, holding that the same principles and reasonings would apply
to the petition filed by the D. Dwarakanadha Reddy too.
24. Thus, the High Court ultimately quashed the entire prosecution,
essentially on the ground that the Special Court (CBI) had no jurisdiction/
power to grant permission to the CBI to conduct further investigation. In
other words, the High Court took the view that the chargesheet filed
against the accused persons was the outcome of the materials collected
during the course of the further investigation, which by itself was illegal
and, therefore, the criminal proceedings would not be maintainable in
the eye of law. It appears that the High Court was also cognizant of the
fact that a Co-ordinate Bench had earlier set at rest all the issues vide
order dated 11.09.2014 passed in the Crl. O.P. No. 6371 of 2014.
However, the same was not looked into on the ground that the said order
passed by the Co-ordinate Bench was per incuriam and, therefore, not
binding to another Co-ordinate Bench.
25. In such circumstances referred to above, the CBI is herein
before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE CBI
26. Mr. Jayant K. Sud, the learned Additional Solicitor General of
India, appearing for the CBI vehemently submitted that the High Court
committed a serious error in passing the impugned orders thereby leading
to a serious miscarriage of justice.
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
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27. The learned counsel further submitted that the law is well
settled that further investigation can be undertaken under sub section
(8) of Section 173 of the CrPC even after the closure report is filed and
accepted by the court concerned. He would submit that new material/
evidence surfaced and came in the hands of the CBI on the basis of
which an appropriate application was filed before the Special Court,
seeking permission to undertake the further investigation. He further
submitted that the application filed by the CBI was duly considered and
the Special Court permitted the CBI to re-open the case and undertake
further investigation.
28. The learned counsel further submitted that the respondent
No. 3 (Accused No. 1) had questioned the entire action on the part of
the CBI in seeking to re-open the case and undertake further investigation
before the High Court by filing Crl. O.P. No. 6371 of 2014 and the High
Court by a detailed order had declined to interfere. According to the
learned counsel, the order passed by a Co-ordinate Bench of the High
Court in Crl. O.P. No. 6371 of 2014 was binding to another Co-ordinate
Bench and same could not have been over-looked or ignored on the
ground that while deciding Crl. O.P. No. 6371 of 2014, the attention of
the High Court was not drawn to the decision of this Court in the case of
Vinit Tyagi (supra). Mr. Sud further submitted that it is not that the
decision of this Court in Vinit Tyagi (supra) was not considered in the
earlier round of the litigation i.e., while deciding Crl. O.P. No. 6371 of
2014 as is evident from para 5 of the order passed by the High Court
dated 11.09.2014 in Crl. O.P. No. 6371 of 2014.
29. In such circumstances as referred to above, the learned counsel
prays that there being merit in all his appeals, those may be allowed and
the impugned order be set aside.
SUBMISSIONS ON BEHALF OF THE ACCUSED
PERSONS
30. On the other hand, all the appeals have been vehemently
opposed by the learned counsel appearing for the accused persons,
submitting that no error, much less an error of law could be said to have
been committed by the High Court in passing the impugned orders. The
learned counsel would submit that the acceptance of a closure report by
the Special Court (CBI) would terminate the proceedings finally and the
same would thereafter operate as a legal bar for the investigating agency
to undertake any further investigation in connection with the alleged
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offence. The learned counsel laid much stress on the fact that for the
purpose of granting permission to conduct further investigation, something
must be pending before the court concerned in the primary report to
enable to file a supplementary report. In the instant case, according to
the learned counsel, nothing was pending at the time of passing the order
under Section 173(8) of the CrPC. It was pointed out that the FIR was
closed and all the evidence collected during the investigation was ordered
to be returned to the CBI for the purpose of departmental proceedings.
In such circumstances, according to the learned counsel, there was no
scope for further investigation and even if further investigation is ordered
then it is as good as re-investigation or fresh investigation or de novo
investigation, which is otherwise not permissible in law.
31. The learned counsel submitted that further investigation cannot
be ordered at any point of time. It was argued that in the case on hand,
the further investigation was undertaken after a period of four years
from the date of the closure report. If further investigation is permitted
to be undertaken after an indefinite period of time, the same would result
in delaying the trial thereby violating the Article 21 of the Constitution,
i.e., the right of the accused to have a speedy trial.
32. The learned counsel further submitted that one additional issue
arises in the present litigation relating to non-compliance of the mandatory
requirement under Section 17(Second proviso) of the 1988 Act.
According to the learned counsel the chargesheet in C.C.No.13 of 2015
on the file of the XIII Additional Special Judge for CBI Cases, Chennai,
was filed by Mr. Syed Bazlullah ASP/CBI/ACB/Chennai. Upon perusal
of the chargesheet which was served on the accused by the Magistrate
under Section 207 of the CrPC, it was noticed that the same does not
include the order passed by an officer not below the Rank of
Superintendent of Police, as mandatorily required under Section
17(Second proviso) of the 1988 Act, conferring powers to Mr. Syed
Bazlullah to investigate this case in RC MA 1 2006 A 0027 for an offence
under Section 13(1)(e) of the 1988 Act, which thereon got culminated
into the chargesheet in C.C.No.13 of 2015. It was argued that the noncompliance of Section 17(Second proviso) of the 1988 Act is an illegality
that vitiates the entire trial.
33. In support of the aforesaid submissions, reliance has been
placed on the following case law:
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
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(i)
Vinay Tyagi v. Irshad Ali alias Deepak and Others
reported in (2013) 5 SCC 762;
(ii)
Vinubhai Haribhai Malaviya v. State of Gujarat reported
in (2019) 17 SCC 1; and
(iii)
Luckose Zachariah alias Zak Nedumchira Luke and
Others v. Joseph Joseph and Others reported in (2022)
SCC Online SC 241.
ANALYSIS
34. Section 169 of the CrPC reads as under:
"169. Release of accused when evidence deficient.-
If, upon an investigation under this Chapter, it appears to the
officer in charge of the police station that there is not sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such officer shall,
if such person is in custody, release him on his executing a
bond, with or without sureties, as such officer may direct, to
appear, if and when so required, before a Magistrate
empowered to take cognizance of the offence on a police
report, and to try the accused or commit him for trial."
35. The perusal of the aforesaid Section would reveal that the
Investigating Officer is under an obligation to release such person, who
is in custody on executing a bond with or without sureties, if evidence is
not sufficient and/or there are no reasonable grounds of suspicion to
forward such person to the Magistrate.
36. The plain reading of Section 169 of the CrPC, therefore,
postulates that when the Investigating Officer reports his action to the
learned Magistrate, it will not be a report, however it will be a report of
his action either by the Investigating Officer or by the Officer in-charge
of the police station.
37. Section 173 of the CrPC states about the steps to be taken by
the Investigating Officer after the completion of the investigation. The
Officer in-charge of the police station is required to forward the report
under said Section to the Magistrate empowered to take cognizance of
the offence in prescribed form.
38. Section 173 of the CrPC reads thus:
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"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 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,
whether 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 section 376E of the Indian Penal Code (45 of 1860).
(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
STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.
HEMENDHRA REDDY & ANOTHER. ETC. [J. B.