# VINAYTYAGI v. IRSHAD ALI @ DEEPAK & ORS

- **Citation:** [2012] 13 S.C.R. 1005
- **Court:** Supreme Court of India
- **Decided:** 2012-12-13
- **Case number:** Criminal Appeal Nos. 2040-41 of 2012
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vinaytyagi-v-irshad-ali-deepak-ors-28085
- **Pages:** 44

## Headnote

Code of Criminal Procedure, 1973:
A
B
s. 173 - Whether in exercise of its powers uls. 173, the trial c
court has the jurisdiction to ignore any one of the reports,
where there are two reports by the same or different
investigating agencies in furtherance of the orders of a Court
and if so, to what effect - Held: The court of competent
jurisdiction is duty bound to consider all reports, entire records
0
and documents submitted therewith by the Investigating
Agency as its report in terms of s. 173(2) - This Rule is subject
to only the following exceptions; (a) Where a specific order
has been passed by the Magistrate at the request of the
prosecution limited to exclude any document or statement or E
any part thereof; (b) Where an order is passed by the higher
courts in exercise of its extra-ordinary or inherent jurisdiction
directing that any of the reports i.e. primary report,
supplementary report or the report submitted on 'fresh
investigation' or 're-investigation' or any part of it be excluded,
struck off the court record and be treated as non est.
F
s. 173 - Whether the Central Bureau of Investigation
(CBI) is empowered to conduct 'fresh/re-investigation' when
the cognizance has already been taken by the Court of
competent jurisdiction on the basis of a police report uls. 173
G
- Held: No investigating agency is empowered to conduct a
'fresh', 'de novo' or 're-investigation' in relation to the offence
for which it has already filed a report in terms of s. 173(2) - It
is only upon the orders of the higher courts empowered to
1005
H
1006
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A 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 Magistrate.
B
The following questions arose for consideration of
this Court in the present appeal:1) Whether in exercise
of its powers under Section 173 CrPC, the Trial Court has
the jurisdiction to ignore any one of the reports, where
there are two reports by the same or different
C investigating agencies in furtherance of the orders of a
Court and if so, to what effect and 2) Whether the Central
Bureau of Investigation (CBI) is empowered to conduct
'fresh'/'re-investigation' when the cognizance has already
been taken by the Court of competent jurisdiction on the
D basis of a police report under Section 173 CrPC.
Partly allowing the appeal, the Court
HELD: 1.1. The court of competent jurisdiction is duty
E bound to consider all reports, entire records and
documents submitted therewith by the Investigating
Agency as its report in terms of Section 173(2) CrPC. This
Rule is subject to only the following exceptions; (a)
Where a specific order has been passed by the
Magistrate at the request of the prosecution limited to
F exclude any document or statement or any part thereof;
(b) Where an order is passed by the higher courts in
exercise of its extra-ordinary or inherent jurisdiction
directing that any of the reports i.e. primary report,
supplementary report or the report submitted on 'fresh
G investigation' or 're-investigation' or any part of it be
excluded, struck off the court record and be treated as
non est. [Para 40) [1043-H; 1044-A-D]
1.2. No investigating agency is empowered to
H conduct a 'fresh', 'de novo' or 're-investigation' in relation
..
VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. 1007
to the offence for which it has already filed a report in
A
terms of Section 173(2) of CrPC.
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
B
conducted and the report so filed before the court of the
magistrate. [Para 40] [1044-E-F]
1.3. In the present case, report in terms of Section
173(2) CrPC had already been filed by the S

## Text

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[2012] 13 S.C.R. 1005
VINAYTYAGI
v.
IRSHAD ALI @ DEEPAK & ORS.
(Criminal Appeal Nos. 2040-41 of 2012)
DECEMBER 13, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Code of Criminal Procedure, 1973:
A
B
s. 173 - Whether in exercise of its powers uls. 173, the trial c
court has the jurisdiction to ignore any one of the reports,
where there are two reports by the same or different
investigating agencies in furtherance of the orders of a Court
and if so, to what effect - Held: The court of competent
jurisdiction is duty bound to consider all reports, entire records
0
and documents submitted therewith by the Investigating
Agency as its report in terms of s. 173(2) - This Rule is subject
to only the following exceptions; (a) Where a specific order
has been passed by the Magistrate at the request of the
prosecution limited to exclude any document or statement or E
any part thereof; (b) Where an order is passed by the higher
courts in exercise of its extra-ordinary or inherent jurisdiction
directing that any of the reports i.e. primary report,
supplementary report or the report submitted on 'fresh
investigation' or 're-investigation' or any part of it be excluded,
struck off the court record and be treated as non est.
F
s. 173 - Whether the Central Bureau of Investigation
(CBI) is empowered to conduct 'fresh/re-investigation' when
the cognizance has already been taken by the Court of
competent jurisdiction on the basis of a police report uls. 173
G
- Held: No investigating agency is empowered to conduct a
'fresh', 'de novo' or 're-investigation' in relation to the offence
for which it has already filed a report in terms of s. 173(2) - It
is only upon the orders of the higher courts empowered to
1005
H
1006
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A 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 Magistrate.
B
The following questions arose for consideration of
this Court in the present appeal:1) Whether in exercise
of its powers under Section 173 CrPC, the Trial Court has
the jurisdiction to ignore any one of the reports, where
there are two reports by the same or different
C investigating agencies in furtherance of the orders of a
Court and if so, to what effect and 2) Whether the Central
Bureau of Investigation (CBI) is empowered to conduct
'fresh'/'re-investigation' when the cognizance has already
been taken by the Court of competent jurisdiction on the
D basis of a police report under Section 173 CrPC.
Partly allowing the appeal, the Court
HELD: 1.1. The court of competent jurisdiction is duty
E bound to consider all reports, entire records and
documents submitted therewith by the Investigating
Agency as its report in terms of Section 173(2) CrPC. This
Rule is subject to only the following exceptions; (a)
Where a specific order has been passed by the
Magistrate at the request of the prosecution limited to
F exclude any document or statement or any part thereof;
(b) Where an order is passed by the higher courts in
exercise of its extra-ordinary or inherent jurisdiction
directing that any of the reports i.e. primary report,
supplementary report or the report submitted on 'fresh
G investigation' or 're-investigation' or any part of it be
excluded, struck off the court record and be treated as
non est. [Para 40) [1043-H; 1044-A-D]
1.2. No investigating agency is empowered to
H conduct a 'fresh', 'de novo' or 're-investigation' in relation
..
VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. 1007
to the offence for which it has already filed a report in
A
terms of Section 173(2) of CrPC.
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
B
conducted and the report so filed before the court of the
magistrate. [Para 40] [1044-E-F]
1.3. In the present case, report in terms of Section
173(2) CrPC had already been filed by the Special Cell of C
the Delhi Police even before the investigation was
handed over to CBI to conduct preliminary inquiry.
Furthermore, the final investigation on the basis of the
preliminary report submitted by the CBI had also not been
handed over to CBI at that stage. Once a Report under
Section 173(2) CrPC has been filed, it can only be
D
cancelled, proceeded further or case closed by the court
of competent jurisdiction and that too in accordance with
law.
Neither the Police nor a specialised investigating
agency has any right to cancel the said Report. In the
present case, the High Court had passed no order or
E
direction staying further investigation by the Delhi Police
or proceedings before the court of competent
jurisdiction. On the contrary, the court had noticed
explicitly in its order that it was a case of supplementary
or further investigation and filing of a 'supplementary
F
report'.Once the Court has taken this view, there is no
question of treating the first report as being withdrawn,
cancelled or capable of being excluded from the records
by the implication.
In fact, except by a specific order of
a higher court competent to make said orders, the G
previous as well as supplementary report shall form part
of the record which the trial court is expected to consider
for arriving at any appropriate conclusion, in accordance
with law. The CBI itself understood the order of the court
H
1008
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A and conducted only 'further investigation' as is evident
from the status report filed by the CBI before the High
Court. The trial court, therefore, has to consider the entire
record, including both the Delhi Police Report filed under
Section 173(2) CrPC as well as the Closure Report filed
B by the CBI and the documents filed along with these
reports. The trial court may have three options, firstly, it
may accept the application of accused for discharge.
Secondly, it may direct that the trial may proceed further
in accordance with law and thirdly, if it is dissatisfied on
c any important aspect of investigation already conducted
and in its considered opinion, it is just, proper and
necessary in the interest of justice to direct 'further
investigation', it may do so. [Paras 47, 48, 49, 50, 51 and
52] [1047-E-H; 1048-A-F]
D
Amit Kapur v. Ramesh Chander & Anr. JT 2012 (9) SC
329; Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6
SCC 1: 2010 (4) SCR 103; Gudalure M.J. Cherian & Ors. v.
Union of India & Ors. (1992) 1 SCC 397: 1991 (3) Suppl.
SCR 251; R.S. Sodhi, Advocate v. State of U.P. 1994 SCC
E Supp. (1) 142; K. Chandrasekhar v. State of Kera/a (1998) 5
SCC 223: 1998 (3) SCR 72; Ramachandran v. R.
Udhayakumar (2008) 5 SCC 413: 2008 (8) SCR 439; Nirmal
Singh Kah/on v State of Punjab & Ors. (2009) 1 SCC 441:
2008 (14) SCR 1049; Mithabhai Pashabhai Patel & Ors. v.
F State of Gujarat (2009) 6 SCC 332: 2009 (7) SCR 1126;
Babubhai v. State. of Gujarat (2010) 12 SCC 254: 2010 (10)
SCR 651; State of Punjab v. Central Bureau of Investigation
(2011) 9 SCC 182: 2011 (11) SCR 281; Minu Kumari & Anr.
v. State of Bihar & Ors. (2006) 4 SCC 359: 2006 (3) SCR
G 1086; Hemant Dhasmana v.
CBI (2001) 7 SCC 536: 2001
(1) Suppl. SCR 646; Union Public Service Commission v.
S. Papaiah & Ors (1997) 7 SCC 614: 1997 (4) Suppl. SCR
56; State of Orissa v. Mahima (2003) 5 SCALE 566; Kishan
Lal v. Dharmendra Bhanna & Anr. (2009) 7 SCC 685: 2009
H (11) SCR 234; State of Maharashtra v.
Sharat Chandra
VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. 1009
Vinayak Dongre (1995) 1 SCC 42: 1994 (4) Suppl. SCR
A
378; Bhagwant Singh v. Commissioner of Police & Anr.
(1985) 2 SCC 537: 1985 (3) SCR 942; Reeta Nag v. State
of West Bengal & Ors. (2009) 9 SCC 129: 2009 (13) SCR
276; Ram Naresh Prasad v. State of Jharkhand and Others
(2009) 11 SCC 299: 2009 (2) SCR 369; Randhir Singh Rana
B
v. State (Delhi Administration) (1997) 1 SCC 361: 1996 (10)
Suppl. SCR 880; Disha v. State of Gujarat & Ors. (2011) 13
SCC 337: 2011 (9) SCR 359; Vineet Narain & Ors. v. Union
of India & Anr. (1998) 1 SCC 226: 1997 (6) Suppl. SCR 595;
Union of India & Ors. v. Sushi/ Kumar Modi & Ors. 1996 (6) c
SCC 500: 1996 (8) Suppl. SCR 393; Rubabbuddin Sheikh
v. State of Gujarat & Ors. (2010) 2 SCC 200: 2010 (1) SCR
991 and Sivanmoorthy and Others v. State represented by
Inspector of Police (2010) 12 SCC 29 - referred to.
Case Law Reference:
JT 2012 (9) SC 329
2010 (4) SCR 103
referred to
Para 11
referred to
Para 16
D
1991 (3) Suppl. SCR 251
referred to
Para 16
E
1994 SCC Supp. (1) 142
referred to
Para 16
1998 (3) SCR 72
referred to
Para 18
2008 (8) SCR 439
2008 (14) SCR 1049
2009 (7) SCR 1126
2010 (10) SCR 651
2011 (11) SCR 281
referred to
Para 18
referred to
Para 18
referrE:d to
Para 18, 21
referred to
Para 18
referred to
Para 20
2006 (3) SCR 1086
referred to
Para 22
2001 (1) Suppl. SCR 646
referred to
Para 23, 26
F
G
H
1010
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
1997 (4) Suppl. SCR 56
referred to
Para 24, 25,
26
(2003) 5 SCALE 566
referred to
Para 24
2009 (11) SCR 234
referred to
Para 24
B
1994 (4) Suppl. SCR 378
referred to
Para 24
1985 (3) SCR 942
referred to
Para 26, 29
2009 (13) SCR 276
referred to
Para 27, 29
c
2009 (2) SCR 369
referred to
Para 27 29
1996 (10) Suppl. SCR 880 referred to
Para 27, 29
2011 (9 ) SCR 359
referred to
Para 34
D
1997 (6) Suppl. SCR 595
referred to
Para 34
1996 (8) Suppl. SCR 393
referred to
Para 34
2010 (1) SCR 991
referred to
Para 34
(201 O) 12 sec 29
referred to
Para 40
E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 2040-2041 of 2012 etc.
From the Judgment & Order dated 28.08.2009 of the High
F Court of Delhi at New Delhi in Criminal Revision No. 107 of
2009 & Criminal Miscellaneous Case No. 781 of 2009.
WITH
Crl. A. No. 2044, 2045, 2042-2043 of 2012.
G
Mukul Gupta, U.U. Lalit, Pramod Kumar Dubey, C.D.
Singh, Smriti Sinha, Parul Thapliyal, Shiv Chopra, Vibhor Garg,
T.A. Khan, Sangram Singh, B.V. Balramdas, A.K. Sharma,
Umesh Joshi, Anil Katiyar, M. Sufian Siddiqui, M. Tabish Zia,
Aftab Ali Khan, Narendra Kumar, Pravesh Thakur, Abhishek C.
H Kannan for the appearing parties.
VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS. 1011
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Leave Granted.
A
2. The following two important questions of law which are
likely to arise more often than not before the courts· of
competent jurisdiction fall for consideration of this Court in the
B
present appeal :
Question No.1:
Question No.2:
Facts :-
Whether in exercise of its powers under
Section 173 of the Code of Criminal
Procedure, 1973 (for short, 'the Code'), the
Trial Court has the jurisdiction to ignore any C
one of the reports, where there are two
reports by the same or different
investigating agencies in furtherance of the
orders of a Court? If so, to what effect?
Whether the Central Bureau of Investigation
(for short 'the CBI') is empowered to
D
conduct 'fresh'/'re-investigation' when the
cognizance has already been taken by the
Court of competent jurisdiction on the basis
E
of a police report under Section 173
of the Code?
3. lrshad Ali @ Deepak, Respondent No.1, in the present
F
appeal was working as an informer of the Special Cell of Delhi
Police in the year 2000. He. was also working in a similar
capacity for Intelligence Bureau. Primarily, his profession and
means of earning his livelihood was working as a rickshaw
puller. On 11th December, 2005, it is stated that he had a G
heated conversation with the Intelligence Bureau officials for
whom he was working. It was demanded of him that he should
join a militant camp in Jammu & Kashmir in order to give
information with respect their activities to the Intelligence
Bureau. However, the said respondent refused to do the job H
1012
SUPREME COURT REPORTS
[2012] 13 S.C.R
A
and consequently claims that he has been falsely implicated in
the present case.
In fact, on 12th December, 2005, a report
was lodged regarding disappearance of respondent no.2 by
his family members at Police Station, Bhajanpura, Delhi. Not
only this, the brother of the respondent no.2 also sent a
B
telegram to the Prime Minister, Home Minister and Police
Commissioner on 7th and 10th January, 2006, but to no avail.
On 9th February, 2006, a report was published in the Hindustan
Times newspaper, Delhi Edition, through SHO, Police Station,
Bhajanpura, Delhi with the photograph of respondent no.2
C
seeking help of the general public in tracing him. On that very
evening, it is stated that the Special Cell of the Delhi Police
falsely implicated both the respondents in a case, FIR No. 10/
2006, under Sections 4 and 5 of the Explosive Substances Act
and under Section 1208, 121 and 122 of the Indian Penal
D
Code, 1860 (for short 'IPC') read with Section 25 of the Arms
Act. Both the respondents were described as terrorists. In the
entire record, it was not stated that the respondents were
working as informers of these agencies. At this stage, it will
be pertinent to refer to the FIR that was registered against the
accused persons, relevant part of which can usefully be
E
extracted herein: -
"To, the Duty Officer, PS Special Cell, Lodhi Colony, New
Delhi. During the 3rd week of January, 2006 information
was received through Central Intelligence Agency that
F
militant of Kashmir based Organisation has set up a base
in Delhi. One lrshad Ali @ Deepak is frequently visiting
Kashmir to get arms, ammuniation and explosives or the
instructions from their Kashmir based Commanders. He
is also visiting different parts of the country to spread the
G
network of the militant organizations. As per the directions
of senior officers, a team under the supervision of Sh.
Sanjeev Kumar, ACP Special Cell led by Inspector Mohan
Chand Sharma was formed to develop this information and
identify lrshad and 'his whereabouts in Sultanpuri area.
H
Secret sources were deployed. During the course ot
VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS. 1013
[SWATANTER KUMAR, J.]
developments of information, it came to knowledge that
A
above noted lrshad Ali @ Deepak is resident of lnder
Enclave, Phase-II, Sultanpuri, Delhi. It also came to notice
that one Mohd. Muarif Qamar@ Nawab r/o Bhajanpura,
Delhi is also associated with the militant organization.
During the development of this information, it was revealed
B
that both lrshad Ali and nawab had gone to J&K on the
directions of their handlers to receive a consignment of
arms and explosives. Today on February 09, 2006 at
about 4 PM, one of these sources telephonically informed
SI Vinay Tyagi in the office of Special Cell, Lodhi Colony c
that lrshad A.li(sic) @ Deepak along with his associate
Mohd. Muarif Qamar @ Nawab R/o Bajanpura, Delhi is
coming from Jammu in JK SRTC Bus No. JK-02 Y-0299
with a consignment of explosives, arms & ammunition and
will alight at Mukarba Chowk, near Kamal Bypass in the
D
evening. This information was recorded in Daily Dairy (sic)
and discussed with senior officers. A team consisting of
lnsp. Sanjay Dutt, myself, SI Subhash Vats, SI Rahul, SI
Ravinder Kumar Tyagi, S.I Dalip Kumar, SI Pawan Kumar,
ASI Anil Tyagi, ASI Shahjahan, HC Krishna Ram, HC
Nagender, HC Rustam, Ct. Rajiv and Ct. Rajender was
E
constituted to act upon this information. Thereafter the
team members in 3 private vehicles and 2 two wheelers
armed with official weapons as per Malkhana register,
departed from the office of Special Cell, Lodhi Colony at
about 4.30 PM and reached G.T. Kamal Depot at 5.30 PM
F
where lnsp. Sanjay Dutt met the informer. lnsp. Sanjay Dutt
asked 6/7 persons to join the police party after disclosing
them about the information. All of them went away citing
genuine excuses. The police party was briefed by lnsp.
Sanjay Dutt and was deployed around Mukarba Chowk,
G
Interstate Bus Stand. At about 7.35 PM, above mentioned
lrshad and Nawab were identified by the informer when
they had alighted from the bus No.JK-02 Y-0299 coming
from Jammu. Both were scene (sic) carrying blue and
green-red check coloured airbags each on their right
H
'
A
B
c
D
E
F
G
H
1014
SUPREME COURT REPORTS
[2012) 13 S.C.R.
shoulders. In the meantime, team posted near by was
alerted and when they were about to cross the outer Ring
Road to go towards Rohini side, were overpowered.
Cursory search of the above-mentioned persons was
conducted and from the right dhub of the pant worn by
Mohd Muarif Qamar @ Nawab mentioned above,
apprehended by me with the help of Dalip Kumar, one
Chinese pistol star Mark.30 calibre along with 8 live
cartridges in its magazine was recovered. On measuring
the length of the barrel and body 19.4 ems, magazine 10.8
ems, butt 8.9 ems and diagonal length of pistol is 21.5 ems
Number 19396 is engraved on the butt of the pistol. On
checking the blue coloured bag recovered from the
possession of Nawab, one white envelope containing nonelectronic detonators, one ABCD green coloured Timer,
one AB cream coloured Timer was also recovered which
was concealed beneath the layers of clothes including one
light blue coloured shirt and dark gray coloured pant in the
bag, and from the red green coloured bag recovered from
the possession of lrshad Ali mentioned above,
apprehended by SI Ravinder Tyagi with the help of Ct.
Rajender Kumar, one Chinese pistol star Mark .30 calibre
along with 8 live cartridges in its magazine was recovered.
On measuring the length of the barrel and body 19.4 ems,
magazine 10.8 ems, butt 8.9 ems and diagonal length of
pistol is 21.5 ems, Number 33030545 is engraved on the
barrel and body of the pistol. One white polythene
containing a mixture of black and white oil based explosive
material kept in a black polythene and was also concealed
beneath the layers of clothes. On weighing the explosive
was found to be 2 kg. Out of this two samples of 10 gms
each were taken out in white plastic small jars. The
remaining recovered explosive kept back in black
polythene, pulinda prepared and sealed with the seal of
'VKT'. Sample explosive were marked as 81 and 82 and
sealed with the seal of 'VKT'. The ABCD timer and AB
Timer were kept in a plastic jar and sealed with the seal
VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS.
1015
[SWATANTER KUMAR, J.]
of 'VKT' marked as 'T' and 3 non electric detonators along
A
with envelope were kept in a transparent plastic jar with
the help of cotton and sealed with the seal of "VKT' marked
as 'D'. The recovered Star Mark pistol from the
possession of accused Mohd. Muarif@ Nawab and lrshad
ali were kept in separate pulindas and marked as M&I
B
respectively and sealed with the seal of "VKT'. The blue
coloured airbag and clothes recovered from the
possession of accused Mohd. Muarif@ Nawab and kept
in a cloth pulinda and sealed with the seal of 'T' and the
green-red colour check bag recovered from the c
possession of accused lrshad Ali containing clothes was
kept in a pulinda sealed with the seal of 'VKT' and CFSL
forms were filled-up and sealed with the seal of "VKT".
Seal after use was handed over to SI Ravinder Kumar
Tyagi. During their interrogation, both the accused lrshad
D
Ali @ Deepak S/o Mohd. Yunus Ali R/o F-247-A, lnder
Enclave, Phase-II, Sultnpuri, Delhi aged 30 years and
Mohd. Muarif Qamar @ Nawab Rio Viii. Deora Bandhoh,
P.0.-Jogiara, PS-Jale, Distt.-Darbhanga, Bihar, stated that
they brought the recovered consignment of arms,
ammunitions and explosives from J&K from their
E
Commanders in J&K and was to be kept in safe custody
and was to be used for terrorist activity in Delhi on the
directions of their handlers in J&K. Militant lrshad Ali and
Nawab above mentioned have kept in their possession
explosives, ABCD Timer, AB Timer, Non Electronic
F
detonators and arms and ammunition which were to be
used for the purpose of terrorist activities in order to
overawe the sovereignty, integrity and unity of India in order
to commit terrorist and disruptive activities and there by
committing offences punishable u/s 121/121A/122/123/ G
1208 IPC r/w 4/5 Explosive Substance Act and 25 Arms
Act. Rukka is being sent to you for registration of the case
. through SI Ravinder Kumar Tyagi. Case be registered and
further investigation be handed over to SI Rajpal Dabas,
D-882, PIS No. 28860555 who has already reached at the
H
1016
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
spot as per the direction of senior Officers who had already
been informed about the apprehension and recovery of
explosives, arms and ammunition from their possession.
Date and time of offence. February 09, 2006 at 7.35 PM,
place of occurrence; Outer ring road, Mukarba Chowk,
B
near Inter State bus stand, Delhi. Date and time of
sending the rukka: 09.02.2006 at 10.15 PM. Sd English
SI Vinay Tyagi No. D-1334, PIS No. 28862091, Special
Cell/NDR/OC, Lodhi Colony, New Delhi dated
09.02.2006."
c
4. Aggrieved by the action of the Delhi police, brother of
the accused filed a petition in the High Court of Delhi stating
the harrowing facts, the factum that both the accused were
working as 'informers', and that they have been falsely
implicated in the case and, inter a/ia, praying that the
D investigation in relation to FIR No.10 of 2006 be transferred to
the CBI. This writ petition was filed on 25th February, 2006
upon which the Delhi High Court had issued notice to the
respondents therein. Upon receiving the notice, Delhi Police
filed its status report before the High Court reiterating the
E contents stated in the above FIR but conceding to the fact that
the accused persons were working as 'informers' of the police.
While issuing the notice, the High Court did not grant any stay
of the investigation and/or the proceedings before the court of
competent jurisdiction, despite the fact that a prayer to that
F effect had been made. The Special Cell of the Delhi Police,
filed a chargesheet before the trial court on 6th May, 2006 when
the matter was pending before the High Court. In the writ
petition, it was stated to be a mala fide exercise of power. The
High Court on 9th May, 2006 passed the following order:
G
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'The Petitioner has filed this petition under Article 226 of
the Constitution of India read with the Section 482 Cr.P.C.
for issuance of Writ, Order or Direction in the nature of
Mandamus to the Respondents to transfer the investigation
of case FIR No.10/2006 dated 09.02.2006 of the Police
VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS. 1017
[SWATANTER KUMAR, J.]
Station Special Cell, under Section 121/121-A/122/123/
A
120-B I PC read with the Section 4/5 of Explosive
Substance Act and Section 25 of Arms Act to an
independent agency like CBI on the allegation that his
brother Moarif Qamar @ Nawab was falsely implicated in
a serious case like the present one on the basis of a totally
B
cooked up story. The above named brother of the
Petitioner was reported to be missing ever since
22.12.2005 and a complaint to that effect was lodged at
PS Bhajanpura, Delhi. It appears that usual notices, as
provided, were issued on order to search the brother of c
the Petitioner. Lastly, a notice was got published by SHO,
Bhajanpura, Delhi in Delhi Hindustan Times in its edition
dated 09.05.2006 which is precisely the date on which it
is alleged that the brother of the Petitioner and another
person were apprehended by the police when they were
0
returning from Jammu & Kashmir by Jammu & Kashmir
State Transpo.rt Roadways bus near Kingsway Camp,
Mukraba Chowk and a Chinese made pistol, certain
detonators and 2 Kg of ROX were recovered from the
Petitioner's brother and 2 Kg of ROX were recovered from
co-accused Mohd. lrshad Ali. The investigation leads the
E
police to pinpoint the Petitioner being a member of terrorist
organization, namely Al-Badar and consequently, after
usual investigation, a charge sheet has been filed against
both the accused persons.
On notice being issued to the Respondent/State. A
status report stands filed by the Assistant Commissioner
F
of Police, NDR/OC, Special Cell, Lodhi Colony, Delhi
which has reiterated the allegations about the arrest of the
Petitioner's brother and Mohd. lrshad Ali in the above
G
circumstances, the report has, however sustained the
allegation about a report in regard to the missing of the
brother of the Petitioners having being lodged with the
police as far as on 28.12.2005. The allegations about the
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1018
SUPREME COURT REPORTS
[2012] 13 S.C.R.
false implication of the Petitioner's brother are, however,
controverted and denied.
I have heard learned counsel for the parties.
Learned counsel for the Petitioner has invited the attention
of the Court to various attendant circumstances around the
time of the alleged arrest of the accused persons on
09.02.2006. The circumstances disclosed do cast a
suspicion on the case of the prosecution in regard to the
manner in which Mohd. Moarif Qamar @ Nawab and the
other accused Mohd. lrshad Ali were apprehended by the
officials of Special Cell and about the recovery of the
contraband articles like explosive and detonators. The
offences under Sections 121/121-A/122/123/120-B IPC
read with the Section 4/5 of Explosive Substance Act and
Section of 25 Arms Act are very grave offences and may
lead to a very severe punishment, if the charges are
established. Therefore, without commenting any further on
the merits of the matter, this Court is of the considered
opinion that it is a fit case where an inquiry by some
independent agency is called for the allegations made in
the present petition. Accordingly, the CBI, in the first
instance, is called upon to undertake an inquiry into the
matter and submit a report to this Court within four weeks.
List on 17th July, 2006.
Copy of the Order be forwarded to the Director, CBI for
taking necessary action in the matter."
5. The CBI also filed its report before the High Court
indicating therein that the alleged recoveries effected from the
G accused persons did not inspire confidence and further
investigation was needed. After perusing the records, the High
Court again on 4th August, 2008 passed the following order: -
H
"However, this relief cannot be claimed at this stage as if
there was any error or misconduct or false implication of
VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. 1019
[SWATANTER KUMAR, J.]
the accused on the part of any· police official or the
A
investigating officer while registering the case and while
the investigation of the case is yet to be ascertained by
the trial court during the trial of the case. Therefore. this
relief being premature cannot be granted."
6. After detailed investigation, the CBI filed the closure
B
report on 11th November, 2008 stating that the accused
persons were working as 'informers' of Special Cell of Delhi
Police and Intelligence Bureau Officials and that it was a false
case. After filing of the report by the CBI, the accusedrespondent no.2, namely, Mohd. Muarif Qamar Ali, filed an
C
application before the Trial Court in terms of Section 227 of the
Code with a prayer that in view of the 'closure report' submitted
by the CBI, he should be discharged. This application was
opposed by the Special Cell, Delhi Police, who filed a detailed
reply. The CBI, of course, stood by its report and submitted
D
that it had no objection if the said accused was discharged.
The learned Trial Court, in its order dated 13th February, 2009,
opined that the CBI had concluded in its report that the manner
of recovery and arrest of the accused persons from Mukarba
Chowk did not inspire any confidence but the CBI had not
E
discovered any fact pertaining to the recovery of the arms and
ammunition, explosive substances and bus tickets etc. from the
two accused persons.
7. Observing that the CBI had not investigated all the
aspects of the allegations, the Court also noticed that in the
order dated 4th August, 2008, the High Court noted that transfer
F
of investigation from Special Cell to CBI had been directed,
and further, filing of charge-sheet after completion of
investigation, which was pending before the Court of competent
jurisdiction had been directed.. Upon noticing all these facts
G
and pleas, the Court concluded, 'therefore, the prayer for
·~ acceptance of the closure report and discharge of the accused
is premature. The same cannot be granted at this stage. With
these observations, the contentions of the CBI, Special Cell and
the accused persons stand disposed of.'
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SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
8. Vide the same order, the Court also observed, 'no
definite conclusion can be drawn at this stage to ascertain the
truthfulness of the version of two different agencies' and fixed
the case for arguments on charge for 28th February, 2009.
9. The respondent no.2 herein, Maurif Qamar, filed a
B petition under Section 482 of the Code praying that the
proceedings pending before the Court of Additional Sessions
Judge, Delhi, pertaining to FIR No.10 of 2006, be quashed.
This was registered as Criminal Miscellaneous Petition No.781
of 2009 and the application for stay was registered as Crl.
C Misc. Application No.286/2009. As already noticed, the Court
had not granted any stay but had finally disposed of the petition
vide its order dated 28th August, 2009. The High Court
observed that once the report was filed by the CBI, that agency
has to be treated as the investigating agency in the case and
D the closure report ought to have been considered by the trial
court. It remanded the case to the trial court while passing the
following order:
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"12. In these circumstances, the impugned order dated
13.02.2009 dismissing the applications moved by the
petitioners for discharging them is set aside. The case is
remanded back to the Additional Sessions Judge to
proceed further in the matter after hearing the parties on
the basis of the closure report filed by the CBI dated
11 .11.2008 and in accordance with the provisions
contained under Section 173 and Section 190 of the Cocfe
of Criminal Procedure. In case he accepts the report, then
the matter may come to an end, subject to his orders, if
any, against the erring officers. However, if he feels that
despite the closure report filed by the CBI, it is a case fit
for proceeding further against the petitioners, he may pass
appropriate orders uninfluenced dby (sic) what this Court
has stated while disposing of this case. The only rider
would be that while passing the orders the Additional
Sessions Judge would not be influenced by the report of
VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS.
1021
[SWATANTER KUMAR, J.]
the Sepcial (sic) Cell in this matter. Parties to appear
A
before the Trial Judge on 14th September, 2009."
10. It is this order of the High Court which is the subject
matter of the present appeals by special leave.
11. It would be appropriate for the Court to examine the
8
relevant provisions and scheme of the Code in relation to filing
of a report before the court of competent jurisdiction and the
extent of its power to examine that report and pass appropriate
orders. The criminal investigative machinery is set into motion
by lodging of a First Information Report in relation to
C
commission of a cognizable offence. Such report may be made
orally, in writing or through any means by an officer in charge
of a police station. Such officer is required to reduce the same ·
into writing, read the same to the informant and wherever the
person reporting is present, the same shall be signed by such
D
person or the person receiving such information in accordance
with the provisions of Section 154 of the Code. A police officer
can conduct investigation in any congnizable case without the
orders of the Magistrate. He shall conduct such investigation
in accordance with the provisions of Chapter XIII, i.e., in
E
accordance with Sections 177 to 189 of the Code. Where
information as contemplated in law is received by an
investigating officer and he has reasons to believe that an
offence has been committed, which he is empowered to
investigate, then he shall forthwith send a report of the same
F
to the Magistrate and proceed to the spot to investigate the
facts and circumstances of the case and take appropriate
measures for discovery and arrest of the offender. Every report
under Section 157 shall be submitted to the Magistrate in terms
of Section 158 of the Code upon which the Magistrate may
G
direct an investigation or may straight away proceed himself
or depute some other magistrate subordinate to him to hold an
inquiry and to dispose of the case in accordance with the
provisions of the Code. It needs to be recorded here that the
proceedings recorded by a police officer cannot be called into
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SUPREME COURT REPORTS
[2012] 13 S.C.R.
A question at any stage on the ground that he was not empowered
to conduct such investigation. The provisions of Section 156(3)
empower the Magistrate, who is competent to take cognizance
in terms of Section 190, to order investigation as prescribed
under Section 156(1) of the Code. Section 190 provides that
B subject to the provisions of Chapter XIV of the Code, any
Magistrate of the first class and any magistrate of the second
class specifically empowered in this behalf may take
cognizance of any offence upon receipt of a complaint, facts
of which constitute such offence, upon a police report of such
c facts or upon information received from any person other than
a police officer, or upon his own knowledge, that such offence
has been committed. The Chief Judicial Magistrate is
competent to empower any Magistrate of the second class to
take cognizance in terms of Section 190. The competence to
D take cognizance, in a way, discloses the sources upon which
the empowered Magistrate can take cognizance. After the
investigation has been completed by the Investigating Officer
and he has prepared a report without unnecessary delay in
terms of Section 173 of the Code, he shall forward his report
E to a Magistrate who is empowered to take cognizance on a
police report.
The report so completed should satisfy the
requirements stated under clauses (a) to (h) of sub-section (2)
of Section 173 of the Code. Upon receipt of the report, the
empowered Magistrate shall proceed further in accordance
with law. The Investigating Officer has been vested with some
F definite powers in relation to the manner in which the report
should be completed and it is required that all the documents
on which the prosecution proposes to rely and the statements
of witnesses recorded under Section 161 of the code
accompany the report submitted before the Magistrate, unless
G some part thereof is excluded by the Investigating Officer in
exercise of the powers vested in him under Section 173(6) of
the Code. A very wide power is vested in the investigating
agency to conduct further investigation after it has filed the
report in terms of Section 173(2). The legislature has
H specifically used the expression 'nothing in this section shall be
VINAY'TYAGI v. IRSHAD ALI@ DEEPAK & ORS.
1023
[SWATANTER KUMAR, J.]
deemed to preclude further investigation in respect of an
A
offence after a report under Section 173(2) has been forwarded
to the Magistrate', which unambiguously indicates the legislative
intent that even after filing of a report before the court of
competent jurisdiction, the Investigating Officer can still conduct
further investigation and where, upon such investigation, the
B
officer in charge of a police station gets further evidence, oral
or documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the prescribed
form. In other words, the investigating agency is competent to
file a supplementary report to its primary report in terms of C
Section 173(8). The supplementary report has to be treated
by the Court in continuation of the primary report and the same
provisions of law, i.e., sub-section (2) to sub-section (6) of
Section 173 shall apply when the Court deals with such report.
Once the Court examines the records, applies its mind, duly
complies with the requisite formalities of summoning the
D
accused and, if present in court, upon ensuring that the copies
of the requisite documents, as contemplated under Section
173(7), have been furnished to the accused, it would proceed
to hear the case. After taking cognizance, the next step of
definite significance is the duty of the Court to frame charge in
E
terms of Section 228 of the Code unless the Court finds, upon
conslc:Jeration of the record of the case and the documents
submitted therewith, that there exists no sufficient ground to
proceed against the accused, in which case it shall discharge
him for reasons to be recorded in terms of Section 227 of the
F
Code. It may be .noticed that the language of Section 228
opens with the words, 'if after such consideration and hearing
as aforesaid, the Judge is of the opinion that there is ground
for presuming that the accused has committed an offence', he
may frame a charge and try him in terms of Section 228(1)(a)
G
and if exclusively triable by the Court of Sessions, commit the
same to the Court of Sessions in terms of Section 228(1 )(b).
Why the legislature has used the word 'presuming' is a matter
which requires serious deliberation. It is a settled rule of
interpretation that the legislature does not use any expression
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1024
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A purposelessly and without any object. Furthermore, in terms
of doctrine of plain interpretation, every word should be given
its ordinary meaning unless context to the contrary is specifically
stipulated in the relevant provision. Framing of charge is
certainly a matter of earnestness. It is not merely a formal step
8 in the process of criminal inquiry and trial. On the contrary, it
is a serious step as it is determinative to some extent, in the
sense that either the accused is acquitted giving right to
challenge to the complainant party, or the State itself, and if the
charge is framed, the accused is called upon to face the
C complete trial which may prove prejudicial to him, if finally
acquitted. These are the courses open to the Court at that
stage. Thus, the word 'presuming' must be read ejusdem
generis to the opinion that there is a ground. The ground must
exist for forming the opinion that the accused had committed
an offence. Such opinion has to be formed on the basis of the
D record of the case and the documents submitted therewith. To
a limited extent, the plea of defence also has to be considered
by the Court at this stage. For instance, if a plea of
proceedings being barred under any other law is raised, upon
such consideration, the Court has to form its opinion which in
E a way is tentative. The expression 'presuming' cannot be said
to be superfluous in the language and ambit of Section 228 of
the Code. This is to emphasize that the Court may believe that
the accused had committed an offence, if its ingredients are
satisfied with reference to the record before the Court. At this
F stage, we may refer to the judgment of this Court in the case
of Amit Kapur v. Ramesh Chander & Anr. [JT 2012 (9) SC
329] wherein, the Court held as under :
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"The above-stated principles clearly show that inherent as
well as revisional jurisdiction should be exercised
cautiously. If the jurisdiction under Section 482 of the
Code in relation to quashing of an FIR is circumscribed
by the factum and caution afore-noticed, in that event, the
revisional jurisdiction, particularly while dealing with
framing of a charge, has to be even more limited.
VINAY TYAGI v.