Nathu Lal and Others vs State of Rajasthan

S.S. Kothari, J.

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 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).

Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.

Sub-section (8) of Section 173 Cr.P.C. only lays down a deeming provision. The necessity for providing such a deeming provision is to be found in the 41st report of the Law Commission of India which is quoted as under:-

A report u/s 173 is normally the end of the investigation. Sometimes, however, the Police Officer after submitting the report, u/s 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 sent it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report u/s 173 has been sent, the Police cannot touch the case again the reopen the investigation. This places a hindrance in the way of the Investigating agency which can be more 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.

Before the aforesaid provision was enacted, there was a conflict in judicial opinions as to whether a further investigation is permissible in a given case after the Final Report having been forwarded by the Investigating Officer and accepted by the concerned Court. In order to remove doubts which was expressed in some judicial decisions that no further investigation is permissible after a Final Report/Police Report is submitted u/s 173 Cr.P.C., an express provision has been made investing powers of further investigation to the Investigating Officer in a given case if he thinks that some more material should be collected by him or when fresh evidence comes to his notice. The language of the aforesaid provision is also suggestive that it is only permissible in character. The Investigation Officer (or Officer-in-charge of Police Station) may undertake a further investigation even after filing of a charge-sheet. If he does so, the further evidence collected by him should be forwarded to the Magistrate along with a further report...

Our experience shows that sometimes fresh material/evidence may come to light which would implicate persons not previously accused or absolve persons already accused. There may be a case when it comes to the notice of the investigating Agency that a person already accused of an offence has a good alibi. In such a situation, the Investigating Agency cannot keep quiet and, refuse to further investigate the matter. It can also not be disputed that some times the evidence of good defence like alibi etc., if comes to the notice of the Investigating Agency, it may be a duty of the Investigating Officer to make further investigation, but further investigation is necessary or not is a question which will obviously have to be left to the choice of the Investigating Officer. It is also true that the Magistrate may also give direction for further investigation in a given case But the aforesaid powers have to be exercised sparingly and in some exceptional cases and not in a normal course on a mere application by a complainant or an accused.

The provisions of sub-section (8) of Section 173 of the Criminal Procedure Code were considered by the Hon''ble Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), . After considering the provisions of the Criminal procedure Code 1898, the report of the Law Commission, the provisions of Criminal Procedure Code 1973 and the judgments of the High Courts, the Hon''ble Supreme Court held that under the Code of Criminal Procedure 1898 as well as under the Code of Criminal Procedure Code 1973 the police have right to Criminal Procedure Code 1973 the police have right to further investigate the case after the submission of the report u/s 173 Cr.P.C The view taken by this Court in Hanuman and Another Vs. Raj., was over ruled by the Hon''ble Supreme Court. In view of the authoritative pronouncement of the Hon''ble Supreme Court in Ram Lal Narang''s case, it must be said that even after the submission of the report u/s 173 Cr.P.C. the police have a statutory right to conduct further investigation in the case. A bare reading of sub-section (8) of Section 173 shows that for the purpose of exercising the powers of conducting further investigation, no formality is required to be performed as a condition precedent for the exercise of power to investigate, and therefore, further investigation is started by the police after the submission of the report u/s 173 Cr.P.C. before the competent court, it cannot be said that further investigation started by the police is illegal.

In view of the Explanation 1 given below sub-section (2) of Section 309 Cr.P.C., it is obvious that if a judicial inquiry or trial is pending before a court which is taking cognizance on the basis of a report submitted u/s 173 Cr.P.C., the hearing of the case may be adjourned and the accused if in custody may be remanded to further custody, if there is likelihood of obtaining further evidence by a remand. In cases following in this category if the police officer wants to conduct further investigation, it is expected from him that he will inform the Court u/s 309 Cr.P.C. that he intends to conduct further investigation in the case and that there is likelihood of collection of further evidence and he may also apply for the adjournment of the inquiry or trial and remand to further custody of the accused, who may be in custody. On the other hand, the cases in which no judicial inquiry or trial is pending before the Court, would be the cases in which there would be no necessity to exercise the powers u/s 309 Cr.P.C. and therefore, there would be no necessity of informing the Court that a further investigation in intended, nor there would be any necessity of moving any application for adjournment and remand u/s 309 Cr.P.C. The observations made by the Hon''ble Apex Court in para No. 21 of the judgment at page 1357 of the report and quoted above do not apply to the cases in which no inquiry or trial is pending on the date when further investigation is conducted, I, therefore, do not find any force in the submission made by the learned counsel for the petitioner that without the permission granted by the Magistrate, the investigation could not have been started.

It may be pointed out that in the case of Ram Lal Narang (supra), the police officer did not obtain any formal permission from Ambala Magistrate for second investigation. The Hon''ble Supreme Court observed-

Though the investigation agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality.

In view of the observations of the Hon''ble Supreme Court, it may be said without any hesitation that even in those cases in which it is necessary for the police to inform the Court about their intention of conducting further investigation and to seek a formal permission out of regard and respect for the Court, the failure on the part of the police officer conducting investigation and to seek a formal permission from the Court to conduct further investigation does not amount to any illegality, though such omission may be taken into consideration for the purpose of deciding the question whether the police officer acted in bona fide manner or acted with malice by starting further investigation in the case.

If the Magistrate had judicially considered the evidence produced before him and arrived at a conclusion that there is no ground to proceed against any accused, he is entitled to decline the issue of process u/s 204 Cr.P.C. and in such a case, the order which he may pass would be an order analogous to an order passed u/s 203 Cr.P.C. It is well established that unless additional evidence is collected, the Magistrate, who has judicially passed an order to the effect that no prima facie case is made out, is not entitled to take a contrary view, because doing so would amount to revising his order and he has no power under the Criminal Procedure Code to revise his own order. On the other hand if additional evidence is available to come to the conclusion that a prime facie case is made out, the Magistrate would be within his powers to proceed against an accused and his act of proceeding against the accused in such a case would not amount to revising his earlier order, because he would be acting not on the same evidence as was available to him when the earlier order was passed, but on additional evidence which was collected after the passing of the earlier order.

In light of the observations of the Hon''ble Supreme Court in Ram Lal Narang''s case (supra) and M/s. Jayant Vitamins Ltd. (supra), it must be said that the police have statutory power to conduct further investigation even after the submission of the report u/s 173 Cr.P.C. The orders passed by the Magistrate on the report submitted by the police u/s 173 Cr.P.C., do not in any manner deprive the police of their power to conduct further investigation. In other words, if the Magistrate has declined to take cognizance on the basis of the police report submitted before him u/s 173, no proceedings are instituted in the Court of Magistrate. Such an order, though judicial order, does not prevent the police from exercising their power to conduct further investigation under sub-section (8) of Section 173.....