STATE THROUGH CENTRAL BUREAU OF INVESTIGATION versus HEMENDHRA REDDY & ANOTHER. ETC. on 28 April 2023

1. Section 169 of the CrPC is silent in making report to theMagistrate, however the Investigating Officer is under anobligation to submit its report to the Magistrate under Section173 of the CrPC. Thus, though Section 169 of the CrPC does notcontemplate making a report, it contemplates of obtaining a bondwith or without sureties from the accused to appear if and whenso required before the Magistrate empowered to take cognizance A

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Aof the offence on a police report and such report is contemplatedunder 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 theBmeaning of provision of Section 173(8) CrPC is additional; more;or supplemental. “Further investigation”, therefore, is thecontinuation of the earlier investigation and not a fresh investigationor reinvestigation to be started ab initio wiping out the earlierinvestigation altogether.” [Para 48][156-B-C]

C“What are the alternatives before a Magistrate when a FinalReport” is filed?

3. Wherever a final report forwarded by the InvestigatingOfficer to a Magistrate under Section 173(2)(i) of the CrPC isplaced before him, several situations may arise. The report mayDconclude that an offence appears to have been committed by aparticular person and persons, and in such a case the Magistratemay either:(1) accept the report and take cognizance of offenceand issue process, (2) may disagree with the report and drop theproceeding or may take cognizance on the basis of report/materialEsubmitted by the investigation officer, (3) may direct furtherinvestigation under Section 156(3) and require police to make areport as per Section 173(8) of the CrPC. (4) may treat the protestcomplaint as a complaint, and proceed under Sections 200 and202 of the CrPC. [Para 49][156-C-F]

FWhat is the prime consideration for “FurtherInvestigation”?

4. As observed in Hasanbhai Valibhai Qureshi v. State ofGujarat and Others reported in (2004) 5 SCC 347, the primeconsideration for further investigation is to arrive at the truthand do real and substantial justice. The hands of investigatingGagency for further investigation should not be tied down on theground of mere delay. In other words, the mere fact that theremay be further delay in concluding the trial should not stand inthe way of further investigation if that would help the court inarriving at the truth and do real and substantial and effectiveHjustice. [Para 50][156-G-H; 157-A]

5. A conspectus of the various decisions of the SupremeCourt rendered in cases where final reports (closure reports)had already been submitted and accepted makes the position oflaw very clear that even after the final report is laid before theMagistrate and is accepted, it is permissible for the investigatingagency to carry out further investigation in the case. In otherwords, there is no bar against conducting further investigationunder Section 173(8) of the CrPC after the final report submittedunder Section 173(2) of the CrPC has been accepted. It is alsoevident, that prior to carrying out a further investigation underSection 173(8) of the CrPC, it is not necessary for the Magistrateto review or recall the order accepting the final report. [Para76][171-B-C]

6. The final conclusion can be summarized as: (i) Even afterthe final report is laid before the Magistrate and is accepted, it ispermissible for the investigating agency to carry out furtherinvestigation in the case. In other words, there is no bar againstconducting further investigation under Section 173(8) of the CrPCafter the final report submitted under Section 173(2) of the CrPChas been accepted; (ii) Prior to carrying out further investigationunder Section 173(8) of the CrPC it is not necessary that theorder accepting the final report should be reviewed, recalled orquashed; (iv) Further investigation is merely a continuation ofthe earlier investigation, hence it cannot be said that the accusedare being subjected to investigation twice over. Moreover,investigation cannot be put at par with prosecution andpunishment so as to fall within the ambit of Clause (2) of Article20 of the Constitution. The principle of double jeopardy would,therefore, not be applicable to further investigation; (v) There isnothing in the CrPC to suggest that the court is obliged to hearthe accused while considering an application for furtherinvestigation under Section 173(8) of the CrPC. [Para 77][171-D-G]

Delay in Trial on account of Further Investigation

7. The general rule of criminal justice is that “a crime neverdies”. The principle is reflected in the well-known maxim nullumtempus aut locus occurrit regi(lapse of time is no bar to Crown inproceeding against offenders). It is settled law that the criminal A

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Aoffence is considered as a wrong against the State and the Societyeven though it has been committed against an individual. Normally,in serious offences, prosecution is launched by the State and aCourt of law has no power to throw away prosecution solely onthe ground of delay. Mere delay in approaching a Court of lawwould not by itself afford a ground for dismissing the case. ThoughBit may be a relevant circumstance in reaching a final verdict. [Para84][181-G-H]Non-compliance of the Second Proviso to Section 17 of the1988 Act

C8. The Second proviso to Section 17 of the 1988 Act directsthat the offence referred to under clause (e) of sub section (1) ofSection 13 of the 1988 Act shall not be investigated without theorder of a police officer not below the rank of a Superintendent ofPolice. Thus, from the Second proviso, it is clear that aninvestigation into the offence referred to in clause (e) of subDsection (1) of Section 13 of the 1988 Act even by any police officerenumerated in clauses (a) to (c) or any Police Officer authorizedin that behalf by the State Government as per the first proviso,can be undertaken only by an order of the police officer not belowthe rank of Superintendent of Police. Thus, the Second provisoEis in the nature of additional safe guard for the public servantwho are accused of the offence punishable under Section 13(1)(e)of the 1988 Act against an investigation by a police officer withoutthe knowledge and consent of superior police officer not belowthe rank of Superintendent of Police. A superior police officer ofthe rank of Superintendent of Police or any officer higher in rankFis required to pass an order before an investigation, if any, forsuch offence is commenced. It is needless to point-out that, beforedirecting such investigation, the Superintendent of Police or anofficer superior to him is required to apply his mind to theinformation and come to an opinion that the investigation on suchGallegations is necessary. The argument canvassed on behalf ofthe accused persons is that there is no such order of the policeofficer not below the rank of Superintendent of Police in thechargesheet. This issue was not even raised before the HighCourt. Even otherwise, this is a question of fact and a matter ofrecord. If it is the case of the accused that there is no such orderH

on record, the same may be pointed out to the trial court in thecourse 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 accordancewith 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 andOthers(2008) 5 SCC 413 : [2008] 8 SCR 439;K.Chandrasekhar v. State of Kerala and Others(1998) 5SCC 223 : [1998] 3 SCR 72;Sri Bhagwan SamardhaSreepada Vallabha Venkata Vishwanandha Maharaj v.State of A.P. and Others(1999) 5 SCC 740 : [1999] 3SCR 870;Hemant Dhasmana v. Central Bureau ofInvestigation and Another(2001) 7 SCC 536 : [2001]1 Suppl. SCR 646;Union Public Service Commissionv. S. Papaiah and Others(1997) 7 SCC 614 : [1997] 4Suppl. SCR 56;Ram Lal Narang v. State (DelhiAdministration)(1979) 2 SCC 322 : [1979] 2 SCR 923;State of Andhra Pradesh v. A.S. Peter(2008) 2 SCC383 : [2007] 13 SCR 517;Nirmal Singh Kahlon v. Stateof Punjab and Others(2009) 1 SCC 441 : [2008] 14SCR 1049;Kari Choudhary v. Mst. Sita Devi andOthers(2002) 1 SCC 714 : [2001] 5 Suppl. SCR 588;Official Liquidator v. Dayanand and Others(2008) 10SCC 1 : [2008] 15 SCR 331;Pooja Pal v. Union ofIndia and Others(2016) 3 SCC 135 : [2016] 11 SCR560 – relied on.

Vinay Tyagi v. Irshad Ali alias Deepak and Others(2013) 5 SCC 762 : [2012] 13 SCR 1005;VinubhaiHaribhai Malaviya v. State of Gujarat(2019) 17 SCC1 : [2019] 15 SCR 936;Luckose Zachariah alias ZakNedumchira Luke and Others v. Joseph Joseph andOthers(2022) SCC Online SC 241; H.N. Rishbud v.State of DelhiAIR 1955 SC 196 : [1955] SCR 1150;Kamlapati Trivedi v. State of West Bengal1980 (2) SCC91 : [1979] 2 SCR 717;State of Rajasthan v. ArunaDevi and Others(1995) 1 SCC 1 : [1994] 5 Suppl. SCR

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A274;N.P. Jharia v. State of M.P.(2007) 7 SCC 358 :[2007] 8 SCR 618;Japani Sahoo v. Chandra SekharMohanty(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.

BDivakar Singh v. A. Ramamurthi NaiduAIR 1919 Mad751;State v. Mehar Singh and Ors.1974 Crl LJ 970 –referred to.

King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXICIndian Appeals, 203 – referred to.

Case Law Reference

[2007] 8 SCR 582referred toPara 84A[1996] 7 Suppl. SCR 432referred toPara 86[2016] 11 SCR 560relied onPara 87

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos.1300-1302 of 2023.

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From the Judgment and Order dated 15.12.2015 in CRLOPNos.11101 and 15873 of 2015 and dated 08.01.2016 in CRLOP No.411of 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.

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Suresh Babu, C. K. Sasi, Abdulla Naseeh V T, Ms. Meena KPoulose, Navin Suresh, Advs. for the Respondents.

The Judgment of the Court was delivered by D

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 thesame those were taken up for hearing analogously and are being disposedof by this common judgment and order.

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3. The principal question of law that falls for the consideration ofthis Court in the present litigation is whether the High Court was justifiedin quashing the entire prosecution instituted by the CBI against theaccused persons for the alleged offences on the ground that the CBIcould not have undertaken further investigation under sub section (8) ofSection 173 of the Code of Criminal Procedure, 1973 (for short, ‘theCrPC’) and filed a chargesheet having once already submitted a finalreport under sub section (2) of the Section 173 of the CrPC (closurereport)? In other words, whether the High Court was right in taking theview that the Special Court could not have taken cognizance upon thechargesheet filed by the CBI based on further investigation having oncealready filed a closure report in the past and the same having beenaccepted by the court concerned at the relevant point of time?

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AFACTUAL MATRIX

4. The respondent No. 3 herein D. Dwarakanadha Reddy(Accused No. 1) joined the services of the Customs Department as aPreventive Officer in the year 1993.

5. In January, 2003, the respondent No. 3 was promoted as anBAppraiser 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 ofAppraiser, Customs Department since 2004, and his mainCincome was his salary.

(ii) His wife D. Sujana Reddy (A-2) has no agricultural land inher name and does business in the name of M/s SujanaEngineers.

(iii) That the couple had acquired assets worth Rs. 64, 41, 690.92Dlakh between 01.04.2001 and 31.03.2005, however theircombined income during the said period was Rs. 50, 95,371.57/-, comprising of salary income of A-1, agriculturalincome of A-2, business income of A-2, bank interest, housingloan from the Andhra Bank, capital gain on sale of property,Erewards given to A-1 etc.

(iv) During the period between 01.04.2001 and 31.03.2005, theyincurred expenditure of Rs. 12, 74, 347.16/-, leaving themwith the savings of Rs. 38, 21, 024.41/-.

(v) Therefore, their total disproportionate assets were worthFRs. 26, 20, 666.51/- as on 31.03.2005.

In such circumstances referred to above, an FIR in RC MA 12006 A 0027 was registered by the CBI under Section 13(1)(e) readwith Section 13(2) of the Prevention of Corruption Act, 1988 (for short,‘the 1988 Act’) along with Section 109 of the Indian Penal Code, 1860G(for short, ‘the IPC’).

7. On 24.12.2008, the CBI/ACB filed an application before thePrincipal Special Judge for CBI Cases, Chennai, with a prayer to closethe proceedings and return the documents for the purpose of regulardepartmental action against the accused No. 1 (respondent No. 3). Theapplication stated inter alia as follows:H

“After completion of investigation it has come to light thatthe 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 thecourse of investigation be returned so that the same could be used in theregular departmental action that may be initiated against the accusedNo. 1.

9. The aforesaid application filed by the CBI was taken up by theSpecial Court and the following order dated 29.01.2009 came to bepassed:

“ORDER

This petition is filed by the Petitioner/Complainant u/s. 173Cr.PC praying to close the FIR and to retain the documentscollected during the investigation to be used in the RegularDepartmental Action against A1 .

1. Heard the learned Public Prosecutor. Perused the FIR,report and connected records. Reason stated in the report isconvincing. Hence Final Report is accepted and FIR is closedand permitted to retain the documents collected during theinvestigation to be used in the regular Departmental Actionagainst A1.

Pronounced by me in the Open Court, this the 29th day ofJanuary 2009.

Principal Spl. Judge for CBI Cases”

10. On 24.02.2012, departmental proceedings were initiated againstthe accused No. 1.

11. It appears from the materials on record that at the end of thedepartmental proceedings, the possession of disproportionate assets couldnot be established. However, an administrative warning was issued tothe accused No. 1 for the lapse on his part to intimate his department thefact of having obtained a loan of Rs. 3, 00, 000/- (Rupees Three Lakh)from the Andhra Bank jointly along with his wife. An administrativewarning was also issued in regard to not intimating the correct expenseincurred by the accused No. 1 towards the construction of the house.

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A12. On 26.06.2013, the CBI filed the Crl. MP 3833/2013 in RCMA 1 2006 A0027 under Section 173(8) of the CrPC, seeking to reopenand undertake further investigation of the case, stating inter alia asfollows:

“…the prosecution had filed final report under Section 173BCr.P.C. before this Hon’ble Court on 24.12.2008 with a prayerto close the FIR as a mistake of fact…”

“… It is humbly submitted that now new evidences emerged toprove the allegation levelled against the above said accusedpersons and to substantiate the charge of possession of theCdisproportionate to the known sources of income of A-1 andA-2. Hence, it is just and necessary to re-open and furtherinvestigate the above case U/s. 173(8) Cr.P.C. in the interestof justice.”

13. The Special Court allowed the aforesaid application vide orderdated 28.06.2013, holding inter alia as under:D

“Heard. According to the prosecution, the prosecution is inpossession of new evidences to substantiate the allegation ofpossession of disproportionate assets to the known sourcesof income against the accused persons. Hence, it is just andproper to order for re-opening of the case.”E

14. On 01.03.2014, the CBI issued a letter/summons No. RC 27/A/2006/ CBI/ACB/Chennai/0799 to the Deputy Commissioner ofCustoms, CIV-Vigilance Customs House, Chennai, requiring the presenceof the respondent No.3 D. Dwarakanadha Reddy in connection with theinvestigation in RC 27(A)/06.F

15. On 13.03.2014, respondent No. 3 filed Crl. O.P. of No. 6371of 2014 before the Madras High Court seeking quashing of theproceedings related to the summons dated 1.03.2014. The respondentNo. 3 stated that he had attended the summons and during theinterrogation he was asked to produce documents which were “eitherGnot in existence or not available with the petitioner or alreadyavailable with CBI”.

16. On 21.03.2014, the CBI filed its counter affidavit to the abovereferred petition filed by the respondent No. 3, stating specifically that:

“3. It is submitted that in the year 2013 CBI received certainHinformation/materials warranting the re-opening of the investigation of this closed case. Accordingly Shri G.Palaniappan, Inspector of Police, CBI/ACB, Chennai filed apetition in the Hon’ble Court of Principal Special Judge forCBI Cases, Chennai seeking the orders of the said court forre-opening of investigation and the Hon’ble Court of PSJ,Chennai had issued order dt. 28.06.2.013 ordering the re-opening investigation of this case.”

17. The High Court vide its order dated 11.09.2014 rejected theCrl. O.P. No. 6371 of 2014, holding inter alia as under:

(i) In the year 2013, the CBI came into possession of certainfresh materials warranting the re-opening of the investigationagainst the accused persons.

(ii) Under 173(8) of the CrPC, a police officer can carry onfurther investigation even after a report under Section173(2) of the CrPC is submitted, in view of Section 173(8)of the CrPC and held in Vinay Tyagi v. Irshad Ali aliasDeepak and Others reported in (2013) 5 SCC 762, withthe only rider being that the police should seek formalpermission from the Court.

(iii) Acceptance of the final report by the Magistrate does notdebar him from taking cognizance if on further investigation,fresh material comes to light.

(iv) In the CBI counter, it is stated that fresh material wasreceived in the year 2013 which warranted reopening ofthe investigation.

(v) The Magistrate’s power to order further investigation underSection 156(3) of the CrPC does not conflict with the powerof the police to investigate further in light of Section 173(8)of the CrPC, and therefore the Magistrate can orderreopening of the investigation.

(vi) This can of course only be done when fresh material comesto the knowledge of the investigating officer which he didnot have before as in the present case.

(vii) Since the CBI has collected fresh material connected withthe case which were not available earlier, it cannot be saidthat the Special Court has acted beyond its jurisdiction inreopening the investigation.

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A18. On 17.12.2014, the CBI filed its detailed chargesheet againstthe respondent Nos. 1, 2 and 3 respectively alleging inter alia as follows:

(i) That the Respondent No.1, Hemendra Reddy, the brother-in-law of D. Sujana (A-2) was a farmer at Chenna ReddyGaru Palli, Chithoor Dist.

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(ii) The Respondent No.3, was found to be in possession ofassets/pecuniary resources in his name and in the namesof his family members D. Sujana and Hemendra Reddy tothe tune of Rs. 61, 11, 989/- as against their known sourcesof income of Rs. 59, 90, 135/- during the period betweenC01.01.1998 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 thechargesheet.

20. On 27.04.2015, the respondent No. 1 herein filed Crl. O.P.DNo. 11101 of 2015, seeking quashing of the chargesheet.21. On 14.09.2015, the CBI filed its counter to all the aforesaidpetitions.

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 commonEorder, holding inter alia as follows:

(i) That on receipt of a final report under Section 173 of theCrPC, the Magistrate has three options – either to acceptthe report and close the case, to disagree with the reportand proceed with the case or to order further investigationFunder Section 156(3) of the CrPC.

(ii) That the Magistrate is only empowered to direct “furtherinvestigation” and not to direct a “re-investigation/ de-novoinvestigation”.

(iii) In terms of the judgment in Vinay Tyagi(supra)noGinvestigation agency is empowered to conduct a fresh, de-novo 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 furtherAinvestigation, something should have been pending beforethe Magistrate, but no matter was pending as theinvestigation had already been closed.

(vi) The Special Court thus had no power to grant permissionto conduct a further investigation.

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(vii) The judgment of Vinay Tyagi (supra) had not been broughtto the attention of the High Court at the time of decidingCrl. 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 Courtvide order dated 08.01.2016 allowed the Crl. O.P. No. 411 of 2016 filedby D. Dwarakanadha Reddy in terms of the order passed by it dated15.12.2015, holding that the same principles and reasonings would applyto the petition filed by the D. Dwarakanadha Reddy too.

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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. Inother words, the High Court took the view that the chargesheet filedagainst the accused persons was the outcome of the materials collectedduring the course of the further investigation, which by itself was illegaland, therefore, the criminal proceedings would not be maintainable inthe eye of law. It appears that the High Court was also cognizant of thefact that a Co-ordinate Bench had earlier set at rest all the issues videorder 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 orderpassed by the Co-ordinate Bench was per incuriam and, therefore, notbinding to another Co-ordinate Bench.

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25. In such circumstances referred to above, the CBI is hereinbefore this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE CBI

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26. Mr. Jayant K. Sud, the learned Additional Solicitor General ofIndia, appearing for the CBI vehemently submitted that the High Courtcommitted a serious error in passing the impugned orders thereby leadingto a serious miscarriage of justice.

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A27. The learned counsel further submitted that the law is wellsettled that further investigation can be undertaken under sub section(8) of Section 173 of the CrPC even after the closure report is filed andaccepted by the court concerned. He would submit that new material/evidence surfaced and came in the hands of the CBI on the basis ofwhich an appropriate application was filed before the Special Court,Bseeking permission to undertake the further investigation. He furthersubmitted that the application filed by the CBI was duly considered andthe Special Court permitted the CBI to re-open the case and undertakefurther investigation.

28. The learned counsel further submitted that the respondentCNo. 3 (Accused No. 1) had questioned the entire action on the part ofthe CBI in seeking to re-open the case and undertake further investigationbefore the High Court by filing Crl. O.P. No. 6371 of 2014 and the HighCourt by a detailed order had declined to interfere. According to thelearned counsel, the order passed by a Co-ordinate Bench of the HighDCourt in Crl. O.P. No. 6371 of 2014 was binding to another Co-ordinateBench and same could not have been over-looked or ignored on theground that while deciding Crl. O.P. No. 6371 of 2014, the attention ofthe High Court was not drawn to the decision of this Court in the case ofVinit Tyagi (supra). Mr. Sud further submitted that it is not that thedecision of this Court in Vinit Tyagi (supra) was not considered in theEearlier round of the litigation i.e., while deciding Crl. O.P. No. 6371 of2014 as is evident from para 5 of the order passed by the High Courtdated 11.09.2014 in Crl. O.P. No. 6371 of 2014.

29. In such circumstances as referred to above, the learned counselprays that there being merit in all his appeals, those may be allowed andFthe impugned order be set aside.

SUBMISSIONS ON BEHALF OF THE ACCUSEDPERSONS

30. On the other hand, all the appeals have been vehementlyGopposed by the learned counsel appearing for the accused persons,submitting that no error, much less an error of law could be said to havebeen committed by the High Court in passing the impugned orders. Thelearned counsel would submit that the acceptance of a closure report bythe Special Court (CBI) would terminate the proceedings finally and thesame would thereafter operate as a legal bar for the investigating agencyHto undertake any further investigation in connection with the alleged offence. The learned counsel laid much stress on the fact that for thepurpose of granting permission to conduct further investigation, somethingmust be pending before the court concerned in the primary report toenable to file a supplementary report. In the instant case, according tothe learned counsel, nothing was pending at the time of passing the orderunder Section 173(8) of the CrPC. It was pointed out that the FIR wasclosed and all the evidence collected during the investigation was orderedto be returned to the CBI for the purpose of departmental proceedings.In such circumstances, according to the learned counsel, there was noscope for further investigation and even if further investigation is orderedthen it is as good as re-investigation or fresh investigation or de novoinvestigation, which is otherwise not permissible in law.

31. The learned counsel submitted that further investigation cannotbe 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 yearsfrom the date of the closure report. If further investigation is permittedto be undertaken after an indefinite period of time, the same would resultin 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 issuearises in the present litigation relating to non-compliance of the mandatoryrequirement under Section 17(Second proviso) of the 1988 Act.According to the learned counsel the chargesheet in C.C.No.13 of 2015on the file of the XIII Additional Special Judge for CBI Cases, Chennai,was filed by Mr. Syed Bazlullah ASP/CBI/ACB/Chennai. Upon perusalof the chargesheet which was served on the accused by the Magistrateunder Section 207 of the CrPC, it was noticed that the same does notinclude the order passed by an officer not below the Rank ofSuperintendent of Police, as mandatorily required under Section17(Second proviso) of the 1988 Act, conferring powers to Mr. SyedBazlullah to investigate this case in RC MA 1 2006 A 0027 for an offenceunder Section 13(1)(e) of the 1988 Act, which thereon got culminatedinto the chargesheet in C.C.No.13 of 2015. It was argued that the non-compliance of Section 17(Second proviso) of the 1988 Act is an illegalitythat vitiates the entire trial.

33. In support of the aforesaid submissions, reliance has beenplaced on the following case law:

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A(i)Vinay Tyagi v. Irshad Ali alias Deepak and Othersreported in (2013) 5 SCC 762;

(ii) Vinubhai Haribhai Malaviya v. State of Gujarat reportedin (2019) 17 SCC 1; and

(iii) Luckose Zachariah alias Zak Nedumchira Luke andBOthers v. Joseph Joseph and Others reported in (2022)SCC Online SC 241.

ANALYSIS

34. Section 169 of the CrPC reads as under:

C“169. Release of accused when evidence deficient.—

If, upon an investigation under this Chapter, it appears to theofficer in charge of the police station that there is not sufficientevidence or reasonable ground of suspicion to justify theforwarding of the accused to a Magistrate, such officer shall,Dif such person is in custody, release him on his executing abond, with or without sureties, as such officer may direct, toappear, if and when so required, before a Magistrateempowered to take cognizance of the offence on a policereport, and to try the accused or commit him for trial.”

35. The perusal of the aforesaid Section would reveal that theInvestigating Officer is under an obligation to release such person, whois in custody on executing a bond with or without sureties, if evidence isnot sufficient and/or there are no reasonable grounds of suspicion toforward such person to the Magistrate.

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36. The plain reading of Section 169 of the CrPC, therefore,postulates that when the Investigating Officer reports his action to thelearned Magistrate, it will not be a report, however it will be a report ofhis action either by the Investigating Officer or by the Officer in-chargeof the police station.

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37. Section 173 of the CrPC states about the steps to be taken bythe Investigating Officer after the completion of the investigation. TheOfficer in-charge of the police station is required to forward the reportunder said Section to the Magistrate empowered to take cognizance ofthe offence in prescribed form.

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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 completedwithout unnecessary delay.

(1A) The investigation in relation to an offence under sections376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or376E from the date on which the information was recordedby the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of thepolice station shall forward to a Magistrate empowered totake cognizance of the offence on a police report, a report inthe 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 acquaintedwith 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 section170.

(h) whether the report of medical examination of the womanhas been attached where investigation relates to an offenceunder 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 asmay be prescribed by the State Government, the action takenby him, to the person, if any, by whom the information relatingto the commission of the offence was first given.

(3) Where a superior officer of police has been appointedunder section 158, the report shall, in any case in which theState Government by general or special order so directs, besubmitted through that officer, and he may, pending the orders A

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of the Magistrate, direct the officer in charge of the policestation to make further investigation.

(4) Whenever it appears from a report forwarded under thissection that the accused has been released on his bond, theMagistrate shall make such order for the discharge of suchbond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section170 applies, the police officer shall forward to the Magistratealong with the report—

(a) all documents or relevant extracts thereof on which theprosecution proposes to rely other than those already sent tothe Magistrate during investigation; (b) the statements recorded under section 161 of all the personswhom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of anysuch statement is not relevant to the subject-matter of theproceedings or that its disclosure to the accused is notessential in the interests of justice and is inexpedient in thepublic interest, he shall indicate that part of the statementand append a note requesting the Magistrate to exclude thatpart from the copies to be granted to the accused and statinghis reasons for making such request.

(7) Where the police officer investigating the case finds itconvenient so to do, he may furnish to the accused copies ofall or any of the documents referred to in sub-section (5).

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

39. Thus, Section 169 of the CrPC is silent in making report to theMagistrate, however the Investigating Officer is under an obligation tosubmit 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 theaccused to appear if and when so required before the Magistrateempowered to take cognizance of the offence on a police report andsuch report is contemplated under Section 173 of the CrPC. Clauses (d)and (f) of Section 173(2)(i) of the CrPC read as under:

“173(2)(i)xxxxxx

(d) whether any offence appears to have been committed and,if so, by whom; xxxxxxxxx (f) whether he has been released on his bond and, if so,whether with or without sureties”.

40. Section 173(8) of the CrPC deals with further investigationand supplementary report. In the Code of Criminal Procedure, 1898 (forshort, ‘the Old Code’), there was no identical provision to that of Section173(8) of the CrPC. The same is a newly added provision in the CrPC.It was added on the recommendation of the Law Commission in its 41stReport that the right of the police to make further investigation should bestatutorily affirmed.

41. In the Old Code, there was no provision prescribing theprocedure to be followed by the police for fresh investigation, whenfresh facts came to light, upon the submission of the police report andsubsequent to taking cognizance by the Magistrate. There was, also, noexpress provision prohibiting further investigation by the police.

42. The said omission was sought to be supplied for the first timeby a two-Judge Bench of the Madras High Court as early as in 1919 inDivakar Singh v. A. Ramamurthi Naidu reported in AIR 1919 Mad751, where it was observed that:

“Another contention is put forward that when a report ofinvestigation has been sent in under Section 173 of the CrPC, the police has no further powers of investigation, butthis argument may be briefly met by the remark that the numberof investigations into a crime is not limited by law and that A

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when one has been completed another may be begun onfurther information received.”.

43. After recognition of the right of the police to make repeatedinvestigations under the Old Code in Divakar’s case, a three-JudgeBench of this Court in H.N. Rishbud v. State of Delhi reported in AIRB1955 SC 196, held that:- “It does not follow, however, that the invalidity of theinvestigation is to be completely ignored by the Court duringtrial. When the breach of such a mandatory provision isbrought to the knowledge of the Court at a sufficiently earlystage, the Court, while not declining cognizance, will have totake the necessary steps to get the illegality cured and thedefect rectified, by ordering such reinvestigation as thecircumstances of an individual case may call for. Such a courseis not altogether outside the contemplation of the scheme ofthe Code as appears from Section 202 under which aMagistrate taking cognizance on a complaint can orderinvestigation by the police. Nor can it be said that the adoptionof such a course is outside the scope of the inherent powersof the Special Judge, who for purposes of procedure at thetrial is virtually in the position of a Magistrate trying a warrantcase.”

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44. Some High Courts were also of the view that with thesubmission of a chargesheet under Section 173, the power of the policeto investigate into an offence comes to an end and the Magistrate’scognizance of the offence started. For instance, in State v. Mehar SinghFand Ors. reported in 1974 Crl LJ 970, a Full Bench of the High Court ofPunjab and Haryana held that the police became functus officio oncethe Court took cognizance of an offence on the filing of a chargesheetby the police and thereafter, further investigation by the police was notpermissible.

G45. It was, however, observed that in light of the decision in H.N.Rishbud (supra), it would be open to the Magistrate to ‘suspendcognizance’ and direct the police to make further investigation into thecase and submit a report.

46. The said inconsistency and incongruity in the judicial decisionswas recognized by the Law Commission in its 41[st] Report (under Clause H

14.23) and it was recommended that the right of the police to makefurther investigation should be statutorily affirmed. Accordingly, in theCrPC, Section 173(8), came to be introduced, which statutorilyempowered the police to undertake further investigation after submissionof the final report under Section 173(2) of the CrPC. Conspicuously, itstill did not confer such powers on the Magistrate to direct further and/or fresh investigation after submission of the final report by the Police.

47. Section 173(8) of the CrPC may be fragmented or dissectedas under:

(1) Further investigation can be done in respect of an offencewherein report under Section 173(2) has been forwarded to theMagistrate; and

(2) During further investigation, the officer-in-charge has power (a) to obtain further evidence, oral or documentary, (b) to forward to the Magistrate, a further report or reportsregarding such evidence in the form prescribed,

(3) The provisions of sub sections (2) to (6) shall, as far as maybe, apply in relation to such further report or reports.

Sub section (1) of Section 173 of the CrPC provides that everyinvestigation by the police shall be completed without unnecessary delayand sub section (2) of Section 173 of the CrPC provides that as soon assuch investigation is completed, the officer in charge of the police stationshall forward to a Magistrate empowered to take cognizance of theoffence on a police report, a report in the form prescribed by the StateGovernment.

Under sub section (2) of the Section 173 of the CrPC, a policereport (chargesheet or Challan) is filed by the police after investigationis complete.

Sub section (8) of Section 173 of the CrPC, states that nothing inthe section shall be deemed to preclude any further investigation in respectof an offence after a report under sub-section (2) has been forwardedto the Magistrate.

Thus, even where chargesheet or Challan has been filed by thepolice under sub section (2) of Section 173 of the CrPC, the police canundertake further investigation in respect of an offence under sub section(8) of Section 173 of the CrPC. (Reference: Article titled “Different A

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AAspects of Section 173(8) of the CrPC” by D. Nageswara Rao, Prl.JCJ,Manthani.)

What is the meaning of the term “Further Investigation”?

48. In Rama Chaudhary Vs. State of Bihar reported in (2009) 6SCC 346, this Court held that, “further investigation within the meaningBof provision of Section 173(8) CrPC is additional; more; orsupplemental. “Further investigation”, therefore, is the continuationof the earlier investigation and not a fresh investigation orreinvestigation to be started ab initio wiping out the earlierinvestigation altogether.”

CWhat are the alternatives before a Magistrate when a “FinalReport” is filed?

49. Wherever a final report forwarded by the Investigating Officerto a Magistrate under Section 173(2)(i) of the CrPC is placed beforehim, several situations may arise. The report may conclude that an offenceappears to have been committed by a particular person and persons, andDin such a case the Magistrate may either:

(1) accept the report and take cognizance of offence and issueprocess,

(2) may disagree with the report and drop the proceeding or mayEtake cognizance on the basis of report/material submitted by theinvestigation officer,

(3) may direct further investigation under Section 156(3) andrequire police to make a report as per Section 173(8) of the CrPC.

(4) may treat the protest complaint as a complaint, and proceedFunder Sections 200 and 202 of the CrPC.

What is the prime consideration for “FurtherInvestigation”?

50. As observed in Hasanbhai Valibhai Qureshi v. State ofGujarat and Others reported in (2004) 5 SCC 347, the primeGconsideration for further investigation is to arrive at the truth and do realand substantial justice. The hands of investigating agency for furtherinvestigation should not be tied down on the ground of mere delay. Inother words, the mere fact that there may be further delay in concludingthe trial should not stand in the way of further investigation if that would H

help the court in arriving at the truth and do real and substantial andeffective justice.

Difference between “Further Investigation” and “Re-investigation”

51. There is no doubt that “further investigation” and “re-investigation” stand altogether on a different footing. In Ramchandranv. R. Udhayakumar and Others reported in (2008) 5 SCC 413, thisCourt has explained the fine distinction between the two relying on itsearlier decision in K. Chandrasekhar v. State of Kerala and Othersreported in (1998) 5 SCC 223. We quote paras 7 and 8 as under:

“7. At this juncture it would be necessary to take note ofSection 173 of the Code. From a plain reading of the abovesection it is evident that even after completion of investigationunder sub-section (2) of Section 173 of the Code, the policehas right to further investigate under sub-section (8), but notfresh investigation or reinvestigation. This was highlightedby this Court in K. Chandrasekhar v. State of Kerala [(1998)5 SCC 223 : 1998 SCC (Cri) 1291] . It was, inter alia,observed as follows : (SCC p. 237, para 24)

“24. The dictionary meaning of ‘further’ (when used as anadjective) is ‘additional; more; supplemental’. ‘Further’investigation therefore is the continuation of the earlierinvestigation and not a fresh investigation or reinvestigationto be started ab initio wiping out the earlier investigationaltogether. In drawing this conclusion we have also drawninspiration from the fact that sub-section (8) clearly envisagesthat on completion of further investigation the investigatingagency has to forward to the Magistrate a ‘further’ report orreports—and not fresh report or reports—regarding the‘further’ evidence obtained during such investigation.”

8. In view of the position of law as indicated above, thedirections of the High Court for reinvestigation or freshinvestigation are clearly indefensible. We, therefore, directthat instead of fresh investigation there can be furtherinvestigation if required under Section 173(8) of the Code.The same can be done by CB CID as directed by the HighCourt.”

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APosition of Law on the subject of “Further Investigation”52. In King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXI IndianAppeals, 203 the Privy Council delineated the powers of the police toinvestigate. It was held thus:

“Just as it is essential that every one accused of a crime shouldBhave free access to a Court of justice, so that he may be dulyacquitted if found not guilty of the offence with which he ischarged, so it is of the utmost importance that the judiciaryshould not interfere with the police in matters which are withintheir province and into which the law imposes on them theCduty of inquiry. In India, as has been shown, there is a statutoryright on the part of the police to investigate the circumstancesof an alleged cognizable crime without requiring any authorityfrom the judicial authorities, and it would, as their Lordshipsthink, be an unfortunate result if it should be held possible tointerfere with those statutory rules by an exercise of theDinherent jurisdiction of the Court. The functions of thejudiciary and the police are complementary, not overlapping,and the combination of individual liberty with a dueobservance of law and order is only to be obtained by leavingeach to exercise its own function, always, of course, subjectEto the right of the Courts to intervene in an appropriate casewhen moved under Section 491 of the Criminal ProcedureCode to give directions in the nature of Habeas Corpus.”

53. In Sri Bhagwan Samardha Sreepada Vallabha VenkataVishwanandha Maharaj v. State of A.P. and Others reported in (1999)F5 SCC 740, it was held in paras 10 and 11:

“10. Power of the police to conduct further investigation, afterlaying final report, is recognised under Section 173(8) of theCode of Criminal Procedure. Even after the court tookcognizance of any offence on the strength of the police reportGfirst submitted, it is open to the police to conduct furtherinvestigation. This has been so stated by this Court in RamLal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979SCC (Cri) 479 : AIR 1979 SC 1791] . The only rider providedby the aforesaid decision is that it would be desirable that thepolice should inform the court and seek formal permission toHmake further investigation.

11. In such a situation the power of the court to direct thepolice to conduct further investigation cannot have anyinhibition. There is nothing in Section 173(8) to suggest thatthe court is obliged to hear the accused before any suchdirection is made. Casting of any such obligation on the courtwould only result in encumbering the court with the burdenof searching for all the potential accused to be afforded withthe opportunity of being heard. As the law does not require it,we would not burden the Magistrate with such an obligation.”

54. In Hemant Dhasmana v. Central Bureau of Investigationand Another reported in (2001) 7 SCC 536, it was held:

“15. When the report is filed under the sub-section theMagistrate (in this case the Special Judge) has to deal with itby bestowing his judicial consideration. If the report is to theeffect that the allegations in the original complaint were foundtrue in the investigation, or that some other accused and/orsome other offences were also detected, the court has to decidewhether cognizance of the offences should be taken or noton the strength of that report. We do not think that it isnecessary for us to vex our mind, in this case, regarding thataspect when the report points to the offences committed bysome persons. But when the report is against the allegationscontained in the complaint and concluded that no offencehas been committed by any person, it is open to the court toaccept the report after hearing the complainant at whosebehest the investigation had commenced. If the court feels ona perusal of such a report that the alleged offences have infact been committed by some persons the court has the powerto ignore the contrary conclusions made by the investigatingofficer in the final report. Then it is open to the court toindependently apply its mind to the facts emerging therefromand it can even take cognizance of the offences which appearto it to have been committed, in exercise of its power underSection 190(1)(b) of the Code. The third option is the oneadumbrated in Section 173(8) of the Code. …

16. Although the said sub-section does not, in specific terms,mention about the powers of the court to order furtherinvestigation, the power of the police to conduct further A

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investigation envisaged therein can be triggered into motionat the instance of the court. When any such order is passedby a court which has the jurisdiction to do so, it would not bea proper exercise of revisional powers to interfere therewithbecause the further investigation would only be for the endsof justice. …”

55. In Union Public Service Commission v. S. Papaiah andOthers reported in (1997) 7 SCC 614, it was held in Para 13:

“The Magistrate could, thus in exercise of the powers underSection 173(8) CrPC direct the CBI to “further investigate”the case and collect further evidence keeping in view theobjections raised by the appellant to the investigation andthe “new” report to be submitted by the investigating officerwould be governed by sub-sections (2) to (6) of Section 173CrPC.”.

56. This Court in Hasanbhai (supra) held thus:

“12. Sub-section (8) of Section 173 of the Code permits furtherinvestigation, and even dehors any direction from the courtas such, it is open to the police to conduct proper investigation,even after the court took cognisance of any offence on thestrength of a police report earlier submitted. All the more so,if as in this case, the Head of the Police Department also wasnot satisfied of the propriety or the manner and nature ofinvestigation already conducted.

13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observedby this Court that further investigation is not altogether ruledout merely because cognisance has been taken by the court.When defective investigation comes to light during course oftrial, it may be cured by further investigation, if circumstancesso permitted. It would ordinarily be desirable and all the moreso in this case, that the police should inform the court andseek formal permission to make further investigation whenfresh facts come to light instead of being silent over the matterkeeping in view only the need for an early trial since aneffective trial for real or actual offences found during courseof proper investigation is as much relevant, desirable andnecessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there isnecessity for further investigation, the same can certainly bedone as prescribed by law. The mere fact that there may befurther delay in concluding the trial should not stand in theway of further investigation if that would help the court inarriving at the truth and do real and substantial as well aseffective justice. ”

57. In Ram Lal Narang v. State (Delhi Administration) reportedin (1979) 2 SCC 322, this Court held thus:

“21. As observed by us earlier, there was no provision in theCrPC, 1898 which, expressly or by necessary implication,barred the right of the police to further investigate aftercognizance of the case had been taken by the Magistrate.Neither Section 173 nor Section 190 lead us to hold that thepower of the police to further investigate was exhausted bythe Magistrate taking cognizance of the offence. Practice,convenience and preponderance of authority, permittedrepeated investigations on discovery of fresh facts. In ourview, notwithstanding that a Magistrate had taken cognizanceof the offence upon a police report submitted under Section173 of the 1898 Code, the right of the police to furtherinvestigate was not exhausted and the police could exercisesuch right as often as necessary when fresh information cameto light. Where the police desired to make a furtherinvestigation, the police could express their regard and respectfor the court by seeking its formal permission to make furtherinvestigation.”

58. In State of Andhra Pradeshv.A.S. Peter reported in (2008)2 SCC 383, this Court held thus:

“9. Indisputably, the law does not mandate taking of priorpermission from the Magistrate for further investigation.Carrying out of a further investigation even after filing ofthe charge-sheet is a statutory right of the police. A distinctionalso exists between further investigation and reinvestigation.Whereas reinvestigation without prior permission isnecessarily forbidden, further investigation is not.”

59. In Nirmal Singh Kahlon v. State of Punjab and Others

reported in (2009) 1 SCC 441, this Court held as follows:

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“68. An order of further investigation in terms of Section173(8) of the Code by the State in exercise of its jurisdictionunder Section 36 thereof stands on a different footing. Thepower of the investigating officer to make furtherinvestigation in exercise of its statutory jurisdiction underSection 173(8) of the Code and at the instance of the Statehaving regard to Section 36 thereof read with Section 3 ofthe Police Act, 1861 should be considered in different contexts.Section 173(8) of the Code is an enabling provision. Onlywhen cognizance of an offence is taken, the learnedMagistrate may have some say. But, the restriction imposedby judicial legislation is merely for the purpose of upholdingthe independence and impartiality of the judiciary. It is onething to say that the court will have supervisory jurisdictionto ensure a fair investigation, as has been observed by a Benchof this Court in Sakiri Vasu v. State of U.P. [(2008) 2 SCC409 : (2008) 1 SCC (Cri) 440] , correctness whereof is opento question, but it is another thing to say that the investigatingofficer will have no jurisdiction whatsoever to make anyfurther investigation without the express permission of theMagistrate.”

60. In Vinay Tyagi (supra), it was held that “furtherinvestigation” in terms of Section 173(8) of the CrPC can be made ina situation where the investigating officer obtains further oral ordocumentary evidence after the final report has been filed before theCourt. The report on such further investigation under Section 173(8) ofthe CrPC can be termed as a supplementary report.

61. In Vinay Tyagi (supra), it was held that:

“40.2. A Magistrate has the power to direct “furtherinvestigation” after filing of a police report in terms of Section173(6) of the Code.

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40.4. Neither the scheme of the Code nor any specificprovision therein bars exercise of such jurisdiction by theMagistrate. The language of Section 173(2) cannot beconstrued so restrictively as to deprive the Magistrate of suchpowers particularly in face of the provisions of Section 156(3)

and the language of Section 173(8) itself. In fact, such powerwould have to be read into the language of Section 173(8).

40.5. The Code is a procedural document, thus, it must receivea construction which would advance the cause of justice andlegislative object sought to be achieved. It does not stand toreason that the legislature provided power of furtherinvestigation to the police even after filing a report, butintended to curtail the power of the court to the extent thateven where the facts of the case and the ends of justicedemand, the court can still not direct the investigating agencyto conduct further investigation which it could do on its own.

40.6. It has been a procedure of propriety that the police hasto seek permission of the court to continue “furtherinvestigation” and file supplementary charge-sheet. …”

62. In Vinubhai (supra); a three-Judge Bench of this Court hasendeavoured to lay at rest the controversy enveloping the evasive issueof further investigation directed by the Magistrate. This Court, speakingthrough Justice R.F. Nariman, has laid down at Para 38 that:

“To say that a fair and just investigation would lead to theconclusion that the police retain the power, subject, of course,to the Magistrate’s nod under Section 173(8) to furtherinvestigate an offence till charges are framed, but that thesupervisory jurisdiction of the Magistrate suddenly ceasesmidway through the pre-trial proceedings, would amount to atravesty of justice, as certain cases may cry out for furtherinvestigation so that an innocent person is not wronglyarraigned as an accused or that a prima facie guilty personis not so left out. There is no warrant for such a narrow andrestrictive view of the powers of the Magistrate, particularlywhen such powers are traceable to Section 156(3) read withSection 156(1), Section 2(h) and Section 173(8) CrPC, ashas been noticed hereinabove, and would be available at allstages of the progress of a criminal case before the trialactually commences. It would also be in the interest of justicethat this power be exercised suo motu by the Magistratehimself, depending on the facts of each case. Whether furtherinvestigation should or should not be ordered is within the A

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Adiscretion of the learned Magistrate who will exercise suchdiscretion on the facts of each case and in accordance withlaw.” It was also clarified that, “The “investigation” spoken ofin Section 156(3) would embrace the entire process, whichbegins with the collection of evidence and continues untilcharges are framed by the Court, at which stage the trial canBbe said to have begun.”.

63. Thus, this Court, in conclusion, observed that, “when Section156(3) states that a Magistrate empowered under Section 190 mayorder “such an investigation”, such Magistrate may also orderfurther investigation under Section 173(8), regard being had to theCdefinition of “investigation” contained in Section 2(h).”

64. Thus, in view of the law laid down by this Court in the variousdecisions cited hereinabove, it is well settled that sub section (8) of Section173 of the CrPC permits further investigation, and even dehors anydirection from the court, it is open to the police to conduct properDinvestigation, even after the court takes cognizance of any offence onthe strength of a police report earlier submitted.

65. However, the question before this Court is whether sub section(8) of Section 173 of the CrPC permits further investigation after theMagistrate has accepted a final report (closure report) under sub sectionE(2) of Section 173 of the CrPC. The contention raised on behalf of theaccused persons is that acceptance of a closure report would terminatethe proceedings finally so as to bar the investigating agency from carryingout any further investigation in connection with the offence.

66. The learned counsel appearing for the accused personsFsubmitted that an order accepting the closure report under Section190(1)(c) of the CrPC is a judicial order and not an administrative order.Relying on the decision of this Court in Kamlapati Trivedi v. State ofWest Bengal reported in 1980 (2) SCC 91, it was submitted that when afinal report of the police is submitted to the Magistrate and the Magistratepasses an order (a) agreeing with the report of the police and filingGproceedings; or (b) not agreeing with the police report and holding thatthe evidence is sufficient to justify the forwarding of the accused to theMagistrate and takes cognizance of the offence complained of, suchorder is a judicial order.

67. We are at one with the aforesaid submission canvassed onHbehalf of the accused persons. However, this is not going to make any

difference. What is necessary to be examined is as to whether an orderpassed under Section 190(1) of the CrPC accepting a final report beinga judicial order would bar further investigation by the police or the CBIas in the present case, in exercise of the statutory powers under chapterXII of the CrPC?

68. In State of Rajasthan v. Aruna Devi and Others reported in(1995) 1 SCC 1, a complaint was filed in the Court of Munsif and JudicialMagistrate, First Class, Bilara, against the respondents under varioussections of the IPC. The gravamen of the allegation was that therespondents had, in pursuance of a conspiracy, transferred some land onthe strength of a special power of attorney bearing forged signature.The Magistrate, after perusal of the complaint, directed an investigationto be made as contemplated by Section 156(3) of the CrPC. A case wasregistered thereafter, by the police and a final report was submitted on18.07.1981 stating that complaint was false. The report came to beaccepted by the Magistrate on 23.09.1981. It, however, so happenedthat the Superintendent of Police had independently ordered furtherinvestigation on 24.09.1981 and a challan came to be filed by policeagainst the respondents, inter alia, under Sections 420 and 467 of theIPC. The Magistrate took cognizance on 25.06.1984. A challenge wasmade to this act of the Magistrate before Sessions Judge, Jodhpur, whodismissed the revision. On further approach to the High Court, the revisionwas allowed and the order of cognizance was set aside. The State camein appeal under Article 136 of the Constitution.

69. This Court observed in paras 3 and 4 respectively as under:

3. A perusal of the impugned judgment of the High Courtshows that it took the view that the Magistrate had nojurisdiction to take cognizance after the final report submittedby police had been once accepted. Shri Gupta, appearingfor the appellant, contends that this view is erroneous in lawinasmuch as Section 173(8) of the Code permits furtherinvestigation in respect of an offence after a report undersub-section (2) has been submitted. Sub-section (8) alsovisualises forwarding of another report to the Magistrate.Further investigation had thus legal sanction and if after suchfurther investigation a report is submitted that an offence wascommitted, it would be open to the Magistrate to takecognizance of the same on his being satisfied in this regard.

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A4. Shri Francis for the respondents, however, contends thatthe order of the Magistrate taking cognizance pursuant tofiling of further report amounted to entertaining secondcomplaint which is not permissible in law. To substantiate thelegal submission, we have been first referred to PramathaNath Taluqdar v. Saroj Ranjan Sarkar [1962 Supp (2) SCRB297 : AIR 1962 SC 876 : (1962) 1 Cri LJ 770] , in which athree-Judge Bench of this Court dealt with this aspect. Aperusal of the judgment of the majority shows that it took theview that dismissal of a complaint under Section 203 of theCode is no bar to the entertainment of a second complaint onCthe same facts; but the same could be done only in exceptionalcircumstances some of which have been illustrated in thejudgment. Further observation in this regard is that a freshcomplaint can be entertained, inter alia, when fresh evidencecomes forward. In the present case, this is precisely what hadhappened, as on further investigation being made, freshDmaterials came to light which led to the filing of further reportstating that a case had been made out.

The aforesaid decision of this Court has been rightly referred toand relied upon by the High Court in its first order dated 11.09.2014.

E70. This Court in K. Chandrasekhar (supra) was considering acase, where on the complaint of a Police Inspector, a case was registeredby the Kerala Police against the appellants therein for the offencespunishable under Sections 3 and 4 respectively of the Official SecretsAct, 1923 read with Section 34 IPC on the allegation that in collusionwith some Indians and foreigners they had committed acts prejudicial toFthe safety and sovereignty of India. During the investigation, certainother persons (appellants in accompanying appeals) were arrested.Thereafter, a DIG of Police, who was the head of the team conductingthe investigation, recommended the case for being investigated by theCBI. Pursuant to such recommendation, the Government of Kerala by aGnotification dated 02.12.1994 accorded its consent under Section 6 ofthe Delhi Special Police Establishment Act, 1946 (for short, ‘the Act’)for further investigation of the case by the CBI. Accordingly, the CBItook up the investigation. After completion of the investigation, on16.04.1996, the CBI filed its report in the final form under Section 173(2)of the CrPC, stating that the charges were not proved and were false.

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Accepting the report, the Magistrate discharged the accused-appellants.Thereafter, on 27.6.1996, the Government of Kerala issued a notificationwithdrawing the consent earlier given to the CBI to investigate the saidcase. The object of the said notification was to enable a reinvestigationof the case by a team of State Police Officers. By a mandatorynotification dated 08.07.1996, the words “reinvestigation of the case”were substituted by the words “further investigation of the case”. TheState Government notification dated 27.6.1996 (as amended) was upheldby the High Court. This Court held that, from a plain reading of Section173 of the CrPC, it is evident that even after submission of police reportunder sub section (2) on completion of investigation, the police has aright of “further” investigation under sub section (8), but not “freshinvestigation” or “reinvestigation”. The dictionary meaning of “further”“”“”(when used as an adjective) is additional; more; supplemental. Furtherinvestigation, therefore, is the continuation of the earlier investigationand not a fresh investigation or reinvestigation to be started ab initiowiping out the earlier investigation altogether.The Court drew inspirationfrom the fact that sub section (8) clearly envisages that on completion offurther investigation, the investigating agency has to forward to theMagistrate a “further” report or reports - and not fresh report or reports- regarding the “further” evidence obtained during such investigation.The Court held that once it is accepted that an investigation undertakenby CBI pursuant to a consent granted under Section 6 of the Act is to becompleted, notwithstanding withdrawal of the consent, and that “furtherinvestigation” is a continuation of such investigation which culminates ina further police report under Section 173(8), it necessarily means thatwithdrawal of consent in the said case would not entitle the State Policeto further investigate into the case. However, the Court further observedthus: “To put it differently, if any further investigation is to be made,it is the CBI alone which can do so, for it was entrusted to investigateinto the case by the State Government.” (Emphasis supplied). Thus,what was held by the Court was that after submission of report underSection 173(2) Cr.P.C. reinvestigation or fresh investigation is notpermissible. However, it has been expressly observed that if any furtherinvestigation is to be made, it is the CBI alone which can do so. In otherwords, further investigation could be carried out, but that the same couldbe done by the CBI alone as it was entrusted to investigate into the caseby the State Government and had carried out the investigation andsubmitted final report in connection therewith.

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A71. In S. Papaiah (supra) on a complaint made by the UPSC,investigation had been carried out by the CBI and final report wassubmitted under Section 173 of the CrPC before the MetropolitanMagistrate, before whom the first information report had been lodged,seeking closure of the case. The CBI in spite of the request made to itby the UPSC did not inform about the filing of the final report seekingBclosure of the case to the UPSC. The report was returned by the learnedMetropolitan Magistrate as notice had not been issued to the complainantby the CBI though the CBI had asserted that it had informed the UPSCregarding the filing of the closure report. The final report was resubmittedby the CBI to the Court of the Metropolitan Magistrate along with aCcopy of the notice sent by the CBI to the UPSC. It appears that thereport was again returned by the Metropolitan Magistrate seeking proofof service of notice on the de facto complainant. While the proceedingsof submission of the final report were pending, the UPSC addressed aletter to the Director of CBI pointing out that the investigation had notbeen carried out properly and that the filing of the closure report was notDjustified. While the UPSC was awaiting further communication fromthe CBI in that behalf, the CBI resubmitted the closure report and thelearned Metropolitan Magistrate accepted the final report submitted bythe CBI and closed the file without any opportunity being provided to theUPSC to have its say. Upon receipt of communication of the order ofEthe court accepting the closure report, the UPSC filed a petition beforethe learned Metropolitan Magistrate submitting that the complaint hadnot been properly investigated and that it had no notice about theacceptance of the final report. The Court rejected the petition of theUPSC observing that it had accepted the final report filed by the CBI on16.03.1995, since the UPSC had not filed its objections to the acceptanceFof the final report and as such, it could not complain. The Court alsoopined that since an order accepting final report was a judicial order andnot an administrative order, therefore, it had no power to review such anorder passed by it “rightly or wrongly” and that the UPSC could file arevision petition seeking appropriate orders against the acceptance ofGthe final report from the revisional court. The revision petition filed bythe UPSC was dismissed by the revisional court. In appeal before thisCourt, it was held thus:

“13. The appellant brought the contents of communicationdated 23.01.1995 to the notice of the learned MetropolitanHMagistrate through its Miscellaneous Petition No. 2040 of 1995 seeking ‘reinvestigation’ but the learned Magistrate,rejected the petition vide order dated 4.11.1995, observingthat ‘rightly or wrongly that court had passed an order and ithad no power to review the earlier order.’ Here, again thelearned Magistrate fell into an error. He was not required to‘review’ his order. He could have ordered ‘furtherinvestigation’ into the case. It appears that the learnedMetropolitan Magistrate overlooked the provisions of Section173(8) which have been enacted to take care of such likesituations also.”

72. After referring to the provisions of Section 173(8) of the CrPC,the Court observed that the Magistrate could, thus, in exercise of thepowers under Section 173(8) of the CrPC, direct the CBI to “furtherinvestigate” the case and collect further evidence keeping in view theobjections raised by the UPSC to the investigation and the “new” reportto be submitted by the Investigating Officer would be governed by sub-sections (2) to (6) of Section 173 of the CrPC. The Court held that thelearned Magistrate failed to exercise the jurisdiction vested in him bylaw and his order dated 04.11.1995 cannot be sustained.

73. In the light of the aforesaid decision of the Supreme Court, itappears that though the order passed by the learned Magistrate acceptinga final report under Section 173 is a judicial order, there is no requirementfor recalling, reviewing or quashing the said order for carrying out furtherinvestigation under Section 173(8) of the CrPC. As held by this Court inthe said decision, the provisions of Section 173(8) of the CrPC havebeen enacted to take care of such like situations also.

74. In N.P. Jhariav.State of M.P. reported in (2007) 7 SCC358, proceedings had been initiated against the appellant therein inconnection with possession of pecuniary resources disproportionate tohis known sources of income. After investigation the Special PoliceEstablishment (SPE) submitted a “final report” on 01.03.1990 informingthe court that no offence was made out against the appellant. The finalreport was accepted by the Special Judge on 17.04.1990. But on01.07.1992, the SPE submitted an application before the Special Judge,seeking permission for further investigation. The Special Judge permittedfurther investigation. Thereafter, the sanction for prosecution wasobtained from the State Government on 01.03.1995. The chargesheet AB

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Awas filed in the court on 24.07.1995. On behalf of the appellant, it wasurged that once the final report was submitted there is no scope forfurther investigation. The Court held that so far as further investigationwas concerned in the background of Section 173(8) of the CrPC theplea was clearly untenable.

B75. In Kari Choudhary v. Mst. Sita Deviand Others reportedin (2002) 1 SCC 714, FIR No. 135 was registered on the basis of acomplaint lodged by Sita Devi and investigation was commencedthereafter. During investigation, the police found that the murder of thevictim, Sugnia Devi was committed pursuant to a conspiracy hatched byher mother-in-law Sita Devi and her daughters-in-law besides the others.CSo, the police sent a report to the court on 30.11.1998 stating that theallegations in FIR No. 135 were false. The police continued with theinvestigation after informing the court that they had registered anotherFIR as FIR No. 208 of 1998. This Court, inter alia, held thus:

“11. Learned counsel adopted an alternative contention thatDonce the proceedings initiated under FIR No. 135 ended in afinal report the police had no authority to register a secondFIR and number it as FIR No. 208. Of course the legal positionis that there cannot be two FIRs against the same accused inrespect of the same case. But when there are rival versions inErespect of the same episode, they would normally take theshape of two different FIRs and investigation would be carriedon under both of them by the same investigating agency. Eventhat apart, the report submitted to the court styling it as FIRNo. 208 of 1998 need be considered as an informationsubmitted to the court regarding the new discovery made byFthe police during the investigation that persons not named inFIR No. 135 are the real culprits. To quash the proceedingsmerely on the ground that final report had been laid in FIRNo. 135 is, to say the least, too technical. The ultimate objectof every investigation is to find out whether the offencesGalleged have been committed and, if so, who have committedit.

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12. Even otherwise, the investigating agency is not precludedfrom further investigation in respect of an offence in spite of-forwarding a report under subsection (2) of section 173 of a H

previous occasion. This is clear from Section 173(8) of theCode.”

76. Thus, a conspectus of the aforesaid decisions of this Courtrendered in cases where final reports (closure reports) had already beensubmitted and accepted makes the position of law very clear that evenafter the final report is laid before the Magistrate and is accepted, it ispermissible for the investigating agency to carry out further investigationin the case. In other words, there is no bar against conducting furtherinvestigation under Section 173(8) of the CrPC after the final reportsubmitted under Section 173(2) of the CrPC has been accepted. It isalso evident, that prior to carrying out a further investigation under Section173(8) of the CrPC, it is not necessary for the Magistrate to review orrecall the order accepting the final report.

77. We may summarise our final conclusion as under:

(i) Even after the final report is laid before the Magistrate and isaccepted, it is permissible for the investigating agency to carryout further investigation in the case. In other words, there is nobar 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 finalreport should be reviewed, recalled or quashed.

(iv) Further investigation is merely a continuation of the earlierinvestigation, hence it cannot be said that the accused are beingsubjected to investigation twice over. Moreover, investigationcannot be put at par with prosecution and punishment so as to fallwithin the ambit of Clause (2) of Article 20 of the Constitution.The principle of double jeopardy would, therefore, not be applicableto further investigation.

(v) There is nothing in the CrPC to suggest that the court is obligedto hear the accused while considering an application for furtherinvestigation under Section 173(8) of the CrPC.

ONE DISTURBING PART OF THE PRESENTLITIGATION

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A78. While recording the facts in the earlier part of our judgment,we have made reference of the order passed by a Co-ordinate Bench ofthe High Court dated 11.09.2014 in Crl. O.P. No. 6371 of 2014. All legalissues which we have discussed in the present judgment were lookedinto by the High Court and by a reasoned order, the High Court took theview that it was permissible for the CBI to undertake further investigationBand the objections raised on behalf of the accused were not sustainablein law. We quote some of the relevant observations made by the HighCourt in its order dated 11.09.2014:

“5. In my opinion, on the facts and circumstances of the instantcase, the above said decisions are of no help to the petitioner.In the aforesaid decisions, the well settled principle is restatedthat Section 173(8) of Cr.P.C enables an officer in charge ofa Police Station/CBI to carry on further investigation evenafter a report under Section 173(2) of Cr.P.C is submitted tothe court. The power to further investigation, after filing offinal report in court and even after the Magistrate has takencognizance, is available to the Police in view of the Section173(8) of Cr.P.C. Further investigation, therefore, is thecontinuation of the earlier investigation and not a freshinvestigation or reinvestigation to be started ab initio wipingout the earlier investigation altogether. This is well settled in’-the decision of the Honble Supreme Court reported in 20135-SCC-762 (Tyagi Vs. Irshad Ali). The only rider is providedis that it would be desirable that the Police should inform theCourt and seek formal permission to make furtherinvestigation as observed in Bhagwan Samardha Sreepada-Vallabha Venkata Vishwadaha Maharaj Vs. State of AP (AIR1999-SC-2332).

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6. Although sub section (8) of Section 173 of Cr.P.C does not,in specific terms, mention about the powers of the court toorder further investigation, the power of the police to conductfurther investigation envisaged therein can be triggered intomotion at the instance of the court. Therefore, acceptance offinal report by Magistrate does not debar him from takingcognizance of the offence if no further investigation freshmaterials come to light. In such a situation, the power of thecourt to direct the police to conduct further investigation G

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cannot have any inhibition. There is nothing in Section 173(8)of Cr.P.C to suggest that the court is obliged to hear theaccused before any such direction is made.

7. In the instant case, in the counter filed by the Respondent/CBI, it is specifically stated that in the year 2013, CBI receivedcertain information/materials warranting reopening of theinvestigation. Accordingly, the Inspector of Police, CBI/ ACBhas filed a petition in Crl. M.P.No.3833/2013 in respect ofthe same First Information Report, stating that the prosecutionis in possession of new evidence to substantiate the allegationof possession of disproportionate assets to the known sourcesof income against the accused persons. The said petition hasbeen allowed by the learned Principal Special Judge for CBICases, permitting further investigation.

8. In so far as the power of the Magistrate to direct furtherinvestigation is concerned, I may point out her that the powerof the Magistrate under Section 156(3) of the code to directfurther investigation is clearly an independent power anddoes not stand in conflict with the power of the Police Officer.The power conferred upon the Magistrate under Section156(3) of the code can be exercised by the Magistrate evenafter submission of a report by the Investigating Officer, whichwould mean that it would be open to the Magistrate not toaccept the conclusion of the Investigating Officer and directfurther investigation. This provision does not, in any way,affect the power of the Investigating Officer to furtherinvestigate the case even after submission of the report asprovided in sub section (8) of Section 173 of the Code.Therefore, considering all these provisions, in my view, theMagistrate can order reopening of the investigation even afteracceptance of the final report “making closure report”.

9. In the instant case, the learned Principal Special Judgefor CBI Cases has passed the impugned order on the petitionfiled by the Investigating Officer, Inspector, CBI/ACB. It isnow clear that sub section (8) of section 173 of Cr.P.C givespower to the Investigating Officer to reopen the investigationin the case in which final report had been submitted earlierand after completing the investigation fresh report has to be A

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submitted before the learned Special Judge under sub section(2) of Section 173 of the Code. Of course, this can be doneonly on such fresh materials which did not come to theknowledge of the Investigating Officer, while he wasconducting the investigation and in my view, exactly the samesituation prevailed in this case.

11. The same view has also been taken in the decision of theHon’ble Supreme Court in State of Rajasthan Vs. Aruna Deviand others (1995-SCC-Crl-1) wherein it was held thatacceptance of final report by Magistrate does not debar himfrom taking cognizance of the offence if on furtherinvestigation fresh materials come to light.

12. Mr. N. Chandrasekaran, the learned Special PublicProsecutor has contended that there is no legal bar to thereopening of the investigation of any case in which closurereport has been submitted if there are sufficient, cogent freshmaterials to proceed against the accused persons. I find allforce in his submissions. Having considered the rivalcontentions of both the parties, I am of the opinion that inview of the facts that the Inspector CBI/ACB has collectedsome fresh materials connected with this case, which werenot available to the Investigating Officer earlier, it cannot besaid that the learned Principal Special Judge for CBI caseshad acted beyond its jurisdiction by ordering reopening ofthe investigation of the case.

13. For the reasons stated above, I find full force in thecontentions raised by the learned Special Public Prosecutorfor CBI Cases. I, therefore, do not find any illegality in theimpugned order which warrants any interference by thiscourt.”

79. It goes without saying that the aforesaid judgment deliveredby the learned Single Judge of the High Court was very much binding toa Co-ordinate Bench when the Crl. O.P. Nos. 15873 and 11101 of 2015respectively and Crl. O.P. No. 411 of 2016 were heard and decided.These are the matters, which were filed by the accused persons seekingdischarge from the criminal proceedings. We may reproduce some of the observations made by the Co-ordinate Bench of the High Court inthe impugned order assailed before us:

“9. The legal point involved in the present criminal originalpetitions is as to whether the concerned Magistrate is havingpower of granting fresh investigation, especially after gettingclosure report and consequently accepting the same.

10. The Hon’ble Supreme Court, with regard to power of aMagistrate under section 173(8) of the code of CriminalProcedure, 1973, has made a threadbare discussion in thedecision reported in AIR 2015 SC 3566 (Chandra Babu aliasMoses V. State through the Inspector of Police and others).After making elaborate discussion, the Hon’ble SupremeCourt has culled out the powers of Magistrate under the saidSection like thus:

“Now, when the report forwarded by the officer in charge ofa police station to the Magistrate under sub-section (2)(i) ofSection 173 comes up for consideration by the Magistrate,one of two different situations may arise. The report mayconclude that an offence appears to have been committed bya particular person or persons and in such a case, theMagistrate may do one of three things: (1) he may accept thereport and take cognizance of the offence and issue process,or (2) he may disagree with the report and drop theproceeding, or (3) he may direct further investigation undersub-section (3) of section 156 and require the police to makea further report. The report may on the other hand state that,in the opinion of the police, no offence appears to have beencommitted and where such a report has been made, theMagistrate again has an option to adopt one of three courses:(1) he may accept the report and drop the proceeding, or (2)he may disagree with the report and taking the view that thereis sufficient ground for proceeding further, take cognizanceof the offence and issue process, or (3) he may direct furtherinvestigation to be made by the police under sub-section (3)of section 156”

11. From a cursory reading of the observations made by theHon’ble Supreme Court, it is discernible that after getting a AB

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final report under section 173(2) of the said code, theconcerned Magistrate is having power, either to takecognizance or to direct the investigating agency to conductfurther investigation as per section 173(8) of the said code.

12. Even a mere reading of Section 173 of the Code and itssub-clauses, would get to show that after getting a final report,the concerned Magistrate is having unfettered right ofgranting further investigation as envisaged in sub-clause(s)of Section 173 of the said code.

13. But, the legal position involves in the present petitions isotherwise. The legal point is as to whether after closure offinal report, as well as First Information Report, whether theconcerned Magistrate is having power to grant permission--either to conduct further investigation/reinvestigation/denovo investigation.

14. At this juncture, it would be condign to look into the realdictionary meaning of “further investigation”. The dictionarymeaning of ‘further’ (when used as an adjective) is additional;more; supplemental’. ‘Further’ Investigation therefore is thecontinuation of the earlier investigation and not a freshinvestigation or reinvestigation to be started ab initio wipingout the earlier investigation altogether. Therefore, it is pellucidthat for granting permission to conduct ‘further investigation’an investigation must be pending or to put it in short, someproceeding must be pending before the concerned court. It isalso a settled principle of law that after filing a final reportunder sub-clause (2) of Section 173 of the said code, whilematter is pending, the investigating officer can collect somemore materials so as to strengthen the accusation made againstthe concerned accused.

15. As adverted to earlier, in the instant case, the maincontention of the petitioners is that already investigation hasbeen done against the accused 1 and 2 and a closure reporthas been filed before the Principal Special Judge for CBI Cases, Chennai and thesame has been accepted and consequently, First InformationReport has been dosed. Under the said circumstances, to grant permission either to conduct ‘further investigation’ or‘reinvestigation’ does not arise.

20. After lapse of four years from passing the order mentionedsuprain the year 2013, the respondent, as petitioner, has filedCrl.M.P.No.3833 of 2013, on the file of the Principals SpecialCourt for CBI Cases, Chennai, herein, it is prayed to permitthe petitioner therein to re-open and further investigation theabove case.

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23. The learned Special Public Prosecutor has advanced hisentire argument only on the basis of the order passed inCriminal Original Petition No.6371 of 2014. In fact, at thetime of passing the order in Crl.O.P.No.6371 of 2014, thedecision mentioned supra has not been brought to theknowledge of this court. Under the said circumstances, thiscourt has erroneously ratified the permission granted by thePrincipal Special Judge for CBI cases, Chennai. Therefore,on the basis of the order passed, in Crl.O.P.No.6371 of 2014by this court, we cannot come to a conclusion that the orderpassed by the Principal Special Judge for CBI Case, Chennai,is valid in law. Further, it has already been pointed out thatthe said order has been passed even without power. Since thesaid order is totally alien to law, the subsequent proceedingsare also bad in law.

24. The present petitions have been filed praying to quashthe final report filed in Calendar Case No.13 of 2015. Since-the permission granted to the respondent for conducting reinvestigation or further investigation by the Principal SpecialJudge for CBI Cases, Chennai is totally illegal and since thesubsequent proceedings are also entirely bad in law, it isneedless to say that the final report filed thereon is also bothfactually and legally not sustainable. Under the saidcircumstances, the legal point raised on the side of thepetitioner is really having subsisting force. On that score alone,these petitions are liable to be allowed.”

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A80. Thus, one Co-ordinate Bench of the High Court, virtually satin appeal over the judgment of another Co-ordinate Bench and took acontrary view. The learned Single Judge says in his impugned order thatthe High Court in its earlier order dated 11.09.2014 referred to aboveomitted to consider the decision of this Court in the case of Vinay Tyagi(supra) and therefore, per incuriam whereas, the decision of this CourtBin the case of Vinay Tyagi (supra) was very much looked into and hasbeen referred to in the order dated 11.09.2014. Thus, two contrary viewshave been taken by different judges of equal strength of the High Courton the same subject and litigation.

81. We would like to extend a word of caution over here. While itCis open to a learned Judge to differ with a view of a Co-ordinate Benchthe sequitur is to make a reference to a larger Bench on papers beingplaced before the learned Chief Justice. The learned Judge cannot simplysay “with due respect, I do not agree to the ratio...” or “the decision isper incuriam as a binding judgment of the Supreme Court has not beenDconsidered….” and proceed to take a contrary view as done in theimpugned order. Such an approach would result in conflicting opinionsof Co-ordinate Benches, resulting in judicial chaos and is, thus,improper. This is something atrocious and unacceptable.

82. We may remind the High Court of the observations made byEthis Court in Official Liquidator v. Dayanand and Others reported in(2008) 10 SCC 1. In this decision, this Court has emphasised theadherence to basics of judicial discipline and the need for predictabilityand a certainty in law. In that context, certain earlier judgments havebeen referred to as to whether one Bench of the Court not following theview of another Co-ordinate Bench has been commented upon as under:F

“78. There have been several instances of different Benchesof the High Courts not following the judgments/orders ofcoordinate and even larger Benches. In some cases, the HighCourts have gone to the extent of ignoring the law laid downby this Court without any tangible reason. Likewise, thereGhave been instances in which smaller Benches of this Courthave either ignored or bypassed the ratio of the judgments ofthe larger Benches including the Constitution Benches. Thesecases are illustrative of non-adherence to the rule of judicialdiscipline which is sine qua non for sustaining the system.In Mahadeolal Kanodia v. Administrator General of W.B. [AIR

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1960 SC 936 : (1960) 3 SCR 578] this Court observed : (AIRp. 941, para 19)

“19. … If one thing is more necessary in law than any otherthing, it is the quality of certainty. That quality would totallydisappear if Judges of coordinate jurisdiction in a High Courtstart overruling one another’s decisions. If one Division Benchof a High Court is unable to distinguish a previous decisionof another Division Bench, and holding the view that theearlier decision is wrong, itself gives effect to that view theresult would be utter confusion. The position would be equallybad where a Judge sitting singly in the High Court is of opinionthat the previous decision of another Single Judge on aquestion of law is wrong and gives effect to that view insteadof referring the matter to a larger Bench. In such a caselawyers would not know how to advise their clients and allcourts subordinate to the High Court would find themselvesin an embarrassing position of having to choose betweendissentient judgments of their own High Court.”

(emphasis added)

79. In Lala Shri Bhagwan v. Ram Chand [AIR 1965 SC 1767]Gajendragadkar, C.J. observed : (AIR p. 1773, para 18)

“18. … It is hardly necessary to emphasise that considerationsof judicial propriety and decorum require that if a learnedSingle Judge hearing a matter is inclined to take the viewthat the earlier decisions of the High Court, whether of aDivision Bench or of a Single Judge, need to be reconsidered,he should not embark upon that enquiry sitting as a SingleJudge, but should refer the matter to a Division Bench or, ina proper case, place the relevant papers before the ChiefJustice to enable him to constitute a larger Bench to examinethe question. That is the proper and traditional way to dealwith such matters and it is founded on healthy principles ofjudicial decorum and propriety. It is to be regretted that thelearned Single Judge departed from this traditional way inthe present case and chose to examine the question himself.”

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82. In Vijay Laxmi Sadho (Dr.) v. Jagdish [(2001) 2 SCC 247]this Court considered whether the learned Single Judge ofthe Madhya Pradesh High Court could ignore the judgmentof a coordinate Bench on the same issue and held : (SCC p.256, para 33)

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“33. As the learned Single Judge was not in agreement withthe view expressed in Devilal case [Devilal v. Kinkar NarmadaPrasad, Election Petition No. 9 of 1980 (MP)] it would havebeen proper, to maintain judicial discipline, to refer the matterto a larger Bench rather than to take a different view. Wenote it with regret and distress that the said course was notfollowed. It is well settled that if a Bench of coordinatejurisdiction disagrees with another Bench of coordinatejurisdiction whether on the basis of ‘different arguments’ orotherwise, on a question of law, it is appropriate that the matterbe referred to a larger Bench for resolution of the issue ratherthan to leave two conflicting judgments to operate, creatingconfusion. It is not proper to sacrifice certainty of law. Judicialdecorum, no less than legal propriety forms the basis ofjudicial procedure and it must be respected at all costs.”

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90. We are distressed to note that despite severalpronouncements on the subject, there is substantial increasein the number of cases involving violation of the basics ofjudicial discipline. The learned Single Judges and Benchesof the High Courts refuse to follow and accept the verdictand law laid down by coordinate and even larger Benches byciting minor difference in the facts as the ground for doingso. Therefore, it has become necessary to reiterate thatdisrespect to the constitutional ethos and breach of disciplinehave grave impact on the credibility of judicial institutionand encourages chance litigation. It must be remembered thatpredictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decadesand increase in the frequency of conflicting judgments of thesuperior judiciary will do incalculable harm to the systeminasmuch as the courts at the grass roots will not be able todecide as to which of the judgments lay down the correct lawand which one should be followed.

91. We may add that in our constitutional set-up every citizenis under a duty to abide by the Constitution and respect itsideals and institutions. Those who have been entrusted withthe task of administering the system and operating variousconstituents of the State and who take oath to act in accordancewith the Constitution and uphold the same, have to set anexample by exhibiting total commitment to the constitutionalideals. This principle is required to be observed with greaterrigour by the members of judicial fraternity who have beenbestowed with the power to adjudicate upon importantconstitutional and legal issues and protect and preserve rightsof the individuals and society as a whole. Discipline is sinequa non for effective and efficient functioning of the judicialsystem. If the courts command others to act in accordancewith the provisions of the Constitution and rule of law, it isnot possible to countenance violation of the constitutionalprinciple by those who are required to lay down the law.”

We need to add nothing more in this context.

DELAY IN TRIAL ON ACCOUNT OF FURTHERINVESTIGATION

83. It was vehemently submitted on behalf of the accused thatfurther investigation if permitted after such a long lapse of time, wouldresult in delay in trial. For years to come, the sword of Damocles shouldnot be kept hanging on the neck of the accused persons. In suchcircumstances, it was argued before us that keeping in mind that thislitigation is now almost more than a decade old, it will not be in fitness ofthings to put the accused persons to trial.

84. In the aforesaid context, we may only say that the generalrule of criminal justice is that “a crime never dies”. The principle isreflected in the well-known maxim nullum tempus aut locus occurritregi(lapse of time is no bar to Crown in proceeding against offenders).It is settled law that the criminal offence is considered as a wrong againstthe State and the Society even though it has been committed against anindividual. Normally, in serious offences, prosecution is launched by theState and a Court of law has no power to throw away prosecution solelyon the ground of delay. Mere delay in approaching a Court of law would A

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Anot by itself afford a ground for dismissing the case. Though it may be arelevant circumstance in reaching a final verdict. (See: Japani Sahoov. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394.)

85. The following observations in Hasanbhai (supra), have beenmade by this Court in reference to further investigation:B“

“13. ….if there is necessity for further investigation, the samecan certainly be done as prescribed by law. The mere factthat there may be further delay in concluding the trial shouldnot stand in the way of further investigation if that wouldhelp the court in arriving at the truth and do real andCsubstantial as well as effective justice. …”

86. Thus, the assurance of a fair trial is to be the first imperativein the dispensation of justice. [Reference: Commissioner of Police,Delhiand Another v. Registrar, Delhi High Court, New Delhi reportedin(1996) 6 SCC 323]. The need for fair investigation has also beenDemphasized in Vinay Tyagi (supra) where it was observed as under:

“48. What ultimately is the aim or significance of theexpression “fair and proper investigation” in criminaljurisprudence? It has a twin purpose: Firstly, the investigationmust be unbiased, honest, just and in accordance with law;Esecondly, the entire emphasis on a fair investigation has tobe to bring out the truth of the case before the court ofcompetent jurisdiction. ….”

87. Reference may also be placed on the decision in Pooja Pal v.Union of Indiaand Others reported in (2016) 3 SCC 135, where theFfundamental rights enshrined under Article 21 of the Constitution of Indiawere discussed in the context of ”speedy trial” juxtaposed to ”fairtrial” in the following manner:

“83. A “speedy trial”, albeit the essence of the fundamentalright to life entrenched in Article 21 of the Constitution ofIndia has a companion in concept in “fair trial”, both beingGinalienable constituents of an adjudicative process, toculminate in a judicial decision by a court of law as the finalarbiter. There is indeed a qualitative difference between rightto speedy trial and fair trial so much so that denial of theformer by itself would not be prejudicial to the accused, whenHpitted against the imperative of fair trial. As fundamentally,

justice not only has to be done but also must appear to havebeen done, the residuary jurisdiction of a court to directfurther investigation or reinvestigation by any impartialagency, probe by the State Police notwithstanding, has to beessentially invoked if the statutory agency already in chargeof the investigation appears to have been ineffective or ispresumed or inferred to be not being able to discharge itsfunctions fairly, meaningfully and fructuously. As the causeof justice has to reign supreme, a court of law cannot reduceitself to be a resigned and a helpless spectator and with theforeseen consequences apparently unjust, in the face of afaulty investigation, meekly complete the formalities to recorda foregone conclusion. Justice then would become a casualty.Though a court’s satisfaction of want of proper, fair, impartialand effective investigation eroding its credence and reliabilityis the precondition for a direction for further investigation or-reinvestigation, submission of the chargesheet ipso facto orthe pendency of the trial can by no means be a prohibitiveimpediment. The contextual facts and the attendantcircumstances have to be singularly evaluated and analysedto decide the needfulness of further investigation orreinvestigation to unravel the truth and mete out justice tothe parties. The prime concern and the endeavour of the courtof law is to secure justice on the basis of true facts whichought to be unearthed through a committed, resolved and a”competent investigating agency..

NON-COMPLIANCE OF THE SECOND PROVISO TOSECTION 17 OF THE 1988 ACT

88. The Second proviso to Section 17 of the 1988 Act directs thatthe offence referred to under clause (e) of sub section (1) of Section 13of the 1988 Act shall not be investigated without the order of a policeofficer not below the rank of a Superintendent of Police. Thus, from theSecond proviso, it is clear that an investigation into the offence referredto in clause (e) of sub section (1) of Section 13 of the 1988 Act even byany police officer enumerated in clauses (a) to (c) or any Police Officerauthorized 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 A

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Arank of Superintendent of Police. Thus, the Second proviso is in thenature of additional safe guard for the public servant who are accusedof the offence punishable under Section 13(1)(e) of the 1988 Act againstan investigation by a police officer without the knowledge and consentof superior police officer not below the rank of Superintendent of Police.A superior police officer of the rank of Superintendent of Police or anyBofficer 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 anofficer superior to him is required to apply his mind to the informationand come to an opinion that the investigation on such allegations isCnecessary. The argument canvassed on behalf of the accused personsis that there is no such order of the police officer not below the rank ofSuperintendent of Police in the chargesheet. We do not propose to gointo this issue in the present litigation. This issue was not even raisedbefore the High Court. Even otherwise, this is a question of fact and amatter of record. If it is the case of the accused that there is no suchDorder on record, the same may be pointed out to the trial court in thecourse of the trial. It is for the trial court to verify the record, look into itand take an appropriate call on this issue in accordance with law.

89. In view of the aforesaid discussion, all the appeals filed by theCBI succeed and are hereby allowed.E

90. The impugned orders passed by the High Court are herebyset aside.

91. The Special Court shall now proceed further with the trial ofthe accused persons in accordance with law.F

92. Pending applications if any shall stand disposed of.

Ankit Gyan

(Assisted by : Mahendra Yadav, LCRA)

Appeals allowed.

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