Whether an order for further investigation u/s 173(8) CrPC can be passed post-cognizance ?

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This is a discussion of the recent decision by the Supreme Court in Amrutbhai Shambhubhai Patel vs Sumanbhai Kantibhai Patel & Ors (delivered by SC on 2nd February, 2017) wherein it has been held that an order for further investigation cannot be passed after court has taken cognizance of the case.

Before embarking on a decision, let us try setting the context right for the discussion: 

In a case based on police report, the vigil of the court does not terminate on the filing of the police report on conclusion of investigation and the court is not bound to accept the results of investigation conducted by the police.

Section 173(8) of the CrPC deals with further investigation.

Section 173(8) reads as under :

“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).

Noticeably, though the officer in-charge of a police station, in categorical terms, has been empowered thereby to conduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary, obtained in course of the said pursuit, no such authorization has been extended to the Magistrate as the Court is seisin of the proceedings. It is, however no longer res integra that a Magistrate, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted u/s 173(8) CrPC. 

The power of the Magistrate to order further investigation is no longer in dispute. The question, however, that arises is : whether such a power is available suo motu or on the prayer made by the informant, in absence of request by the investigating agency after cognizance has been taken and the trial is in progress after the accused has appeared in response to the process issued is the issue seeking scrutiny herein.

The Supreme Court in Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051 at page 134, held that the power to order further investigation u/s 173(8) CrPC cannot be exercised suo motu.

However, the SC in Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 expressed doubt as to the correctness of the decision in Reeta Nag (on account of a earlier three judge bench decision in Bhagwant Singh (1985) 2 SCC 537 and held power to order further investigation can be exercised even suo motu. 

The next question that arises is whether such a power can be exercised after cognizance of the offence has been taken by the Court ? 

On this point, the Court Amrutbhai recently held :

47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.

However, the court failed to refer to a earlier decision of the Supreme Court in Kishan Lal v. Dharmendra Bafna, (2009) 7 SCC 685 – wherein it was categorically held that :

15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.

It is notable that the strength of the bench even in Kishan lal (supra) was 2 judges as is the case with the latest pronouncment in Amrutbhai (https://indiankanoon.org/doc/41059103/)

The decision in Amrutbhai does not refer to the earlier decision in Kishan lal(supra), however, ought to be read for the lucid exposition of law therein. Although in the fitness of things the matter ought to have been referred to a larger bench.

3 comments

  1. Yes as held by the Apex Court in the judicial pronouncement under consideration…. ..kindly peruse para 47 which reads as follows:
    47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.

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  2. The only distinction that has been made in the present matter is with regard to exercise of power by the Magistrate and that by the Investigating Agency and the Court has been of the view that the Magistrate can exercise such power conferred under Section 173 (8) of Criminal Procedure Code before taking cognizance in the matter whereas the Investigating Agency can exercise it even after cognizance has been taken by the Magistrate.

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