BIKASH RANJAN ROUT versus STATE THROUGH THE SECRETARY (HOME) GOVERNMENT OF NCT OF DELHI, NEW DELHI on 16 April 2019

SUPREME COURT REPORTS [2019] 6 S.C.R. 82

[2019] 6 S.C.R.

ABIKASH RANJAN ROUT

v.

STATE THROUGH THE SECRETARY (HOME) GOVERNMENTOF NCT OF DELHI, NEW DELHI

(Criminal Appeal No. 687 of 2019)

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APRIL 16, 2019

[L. NAGESWARA RAO AND M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973: ss. 173(8), 167(2), 227and 228 – Powers of the Magistrate – Options available to theCmagistrate at the time when report/challan/charge-sheet is filed byinvestigating officer before him – On facts, the magistrate whiledischarging the accused, also passed an order for furtherinvestigation and directed the investigating officer to furtherinvestigate in the matter and submit the report – Permissibility of –DHeld: Magistrate cannot suo moto direct for further investigation u/s. 173(8) or direct the re-investigation into a case at the post-cognizance stage, when, in exercise of powers u/s. 227, theMagistrate has discharged the accused – On facts, the investigatingauthority did not apply for further investigation and that theMagistrate suo moto passed an order for further investigation andEdirected the investigating officer to further investigate and submitthe report, which is not permissible – Such course of action is beyondthe jurisdictional competence of the Magistrate – Thus, the orderby the Magistrate ordering further investigation after he dischargedthe accused, cannot be sustained and is set aside – InvestigatingFofficer at liberty to file an appropriate application forfurther investigation and submit a further report in exercise ofpowers u/s. 173(8).

Allowing the appeal, the Court

HELD: 1.1 After the investigation is concluded and theGreport is forwarded by the police to the Magistrate under Section173(2)(i) CrPC, the Magistrate may either (1) accept the reportand take cognizance of the offence and issue process, or (2) maydisagree with the report and drop the proceedings, or (3) maydirect further investigation under Section 156(3) and require theHpolice to make a further report. If the Magistrate disagrees with

Conclusion

the report and drops the proceedings, the informant is requiredto be given an opportunity to submit the protest application andthereafter, after giving an opportunity to the informant, theMagistrate may take a further decision whether to drop theproceedings against the accused or not. If the Magistrate acceptsthe objections, in that case, he may issue process and/or evenframe the charges against the accused. Having not satisfied withthe investigation on considering the report forwarded by the policeunder Section 173(2)(i) CrPC, the Magistrate may, at that stage,direct further investigation and require the police to make afurther report. However, it is required to be noted that all theaforesaid is required to be done at the pre-cognizance stage. Oncethe Magistrate takes the cognizance and, considering thematerials on record submitted along with the report forwardedby the police under Section 173(2)(i) CrPC, Magistrate inexercise of the powers under Section 227 CrPC discharges theaccused, thereafter, it will not be open for the Magistrate to suomoto order for further investigation and direct the investigatingofficer to submit the report. Such an order after discharging theaccused can be said to be made at the post-cognizance stage.There is a distinction and/or difference between the pre-cognizance stage and post-cognizance stage and the powers tobe exercised by the Magistrate for further investigation at thepre-cognizance stage and post-cognizance stage. The power toorder further investigation which may be available to theMagistrate at the pre-cognizance stage may not be available tothe Magistrate at the post-cognizance stage, more particularly,when the accused is discharged by him. If the Magistrate wasnot satisfied with the investigation carried out by the investigatingofficer and the report submitted by the investigating officer underSection 173(2)(i) CrPC, it was always open/permissible for theMagistrate to direct the investigating agency for furtherinvestigation and may postpone even the framing of the chargeand/or taking any final decision on the report at that stage.However, once the Magistrate, on the basis of the report and thematerials placed along with the report, discharges the accused,the Court is afraid that thereafter the Magistrate can suo motoorder the further investigation by the investigating agency. Oncethe order of discharge is passed, thereafter the Magistrate has AB

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Ano jurisdiction to suo moto direct the investigating officer forfurther investigation and submit the report. In such a situation,only two remedies are available: (i) a revision application can befiled against the discharge or (ii) the Court has to wait till thestage of Section 319 CrPC. However, at the same time,considering the provisions of Section 173(8) CrPC, it is alwaysBopen for the investigating agency to file an application for furtherinvestigation and thereafter to submit the fresh report and theCourt may, on the application submitted by the investigatingagency, permit further investigation and permit the investigatingofficer to file a fresh report and the same may be considered byCthe Magistrate thereafter in accordance with law. The Magistratecannot suo moto direct for further investigation under Section173(8) CrPC or direct the re-investigation into a case at the post-cognizance stage, more particularly when, in exercise of powersu/s. 227 CrPC, the Magistrate discharges the accused. However,

Section 173(8) CrPC confers power upon the officer-in-charge ofDthe police station to further investigate and submit evidence, oralor documentary, after forwarding the report under sub-section(2) of Section 173 of the CrPC. Therefore, it is always open forthe investigating officer to apply for further investigation, evenafter forwarding the report under sub-section (2) of Section 173Eand even after the discharge of the accused. [Para 7][94-A-H;95-A-F]1.2 In the instant case, the investigating authority did notapply for further investigation and that the Magistrate suo motopassed an order for further investigation and directed the Finvestigating officer to further investigate and submit the report,which is impermissible under the law. Such a course of action isbeyond the jurisdictional competence of the Magistrate.Therefore, that part of the order passed by the Magistrateordering further investigation after he discharges the accused, cannot be sustained. Thus, the judgment and order passed byGthe High Court confirming an order passed by the Magistrate isquashed and set aside. At the same time, it would always be openfor the investigating officer to file an appropriate application forfurther investigation and undertake further investigation andsubmit a further report in exercise of powers under Section 173(8)HCrPC. [Para 7.1][95-G-H; 96-A-B]

BIKASH RANJAN ROUT v. STATE THR. THE SECY. (HOME)GOVT. OF NCT OF DELHI

Bhagwant Singh v. Commissioner of Police (1985) 2SCC 537 : [1985] 3 SCR 942 ; Reeta Nag v. State ofWest Bengal (2009) 9 SCC 129 : [2009] 13 SCR 276 ;Vinay Tyagi v. Irshad Ali @ Deepak (2013) 5 SCC762 : [2012] 13 SCR 1005 ; Vasanti Dubey v. State ofMadhya Pradesh (2012) 2 SCC 731 : [2012] 1 SCR330 ; Amit Kapoor v. Ramesh Chander (2012) 9 SCC460 : [2012] 7 SCR 988 ; Randhir Singh Rana v. State(Delhi Administration) (1997) 1 SCC 361 : [1996] 10Suppl. SCR 880 ; Kishan Lal v. Dharmendra Bafna(2009) 7 SCC 685 : [2009] 11 SCR 234 ; HemantDhasmana v. Central Bureau of Investigation (2001) 7SCC 536 : [2001] 1 Suppl. SCR 646 ; Sajjan Kumar v.CBI (2010) 9 SCC 368 : [2010] 11 SCR 669 ; MinuKumari v. State of Bihar (2000) 4 SCC 359 – referredto.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 687 of 2019.

From the Judgment and Order dated 20.08.2014 of the High Courtof Delhi at New Delhi in Criminal Misc. Application No. 3386 of 2013.

Mrinal Kanti Mandal, Parvez Bashista, Mukesh Kumar, DebasisMisra, Advs. for the Appellant.

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AMs. Vibha Datha Makhija, Sr. Adv., Ms. B. Sunitha Rao, K. SubbaRao, B. V. Balaram Das, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

B2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.08.2014 passed by the High Court of Delhi in CriminalM. C. No. 3386 of 2013 by which the High Court has dismissed the saidpetition and has confirmed the order passed by the learned AdditionalChief Metropolitan Magistrate (West) Delhi dated 05.02.2013, by whichthe learned Magistrate ordered further investigation, the original accusedChas preferred the present appeal.

3. That the FIR was lodged against the appellant herein-originalaccused on 28.09.2007 being FIR No. 426/2007 at Police StationJanakpuri, Delhi for the offences under Sections 420, 468 and 471 of theIPC. That on completion of the investigation, the investigating officerDfiled the charge-sheet against the accused-appellant for the offencesunder Sections 420, 468 and 471 of the IPC. That at the time of framingof the charge and considering the charge-sheet papers, the learnedMagistrate discharged the appellant-original accused vide order dated05.02.2013. However, while discharging the accused and/or after theEaccused was discharged, in the same order, the learned Magistratedirected the Additional Commissioner of Police (West) Delhi to makeappreciation of quality of the investigation done in the case and to analysethe process of efficacy of sending any charge sheet before the prosecutionbranch for the purpose of scrutiny. Learned Magistrate also observedand directed that the case requires further investigation to reach a logicalFconclusion and the same be done responsibly and the report be filed on11.04.2012 (sic).

3.1 Feeling aggrieved and dissatisfied with that part of the orderpassed by the learned Magistrate dated 05.02.2013 by which the learnedMagistrate directed further investigation and to submit the report, theGappellant-original accused approached the High Court by way of CriminalMiscellaneous Case No. 3386 of 2013. In the meantime, following thedirections issued by the learned Magistrate vide order dated 05.02.2013,the District Investigating Unit, West District, Police Post MIG Flats, J-Block, Rajouri Garden, New Delhi issued summons dated 22.04.2013under Section 160 of the CrPC. The appellant also challenged the saidH

notice/summon issued under Section 160 of the CrPC. Basically, theappellant herein challenged that part of the order dated 05.02.2013 passedby the learned Magistrate, by which the learned Magistrate observedand directed further investigation and also directed the investigating officerto submit the report. That by the impugned judgment and order, the HighCourt has dismissed the said petition and has refused to interfere withthe order dated 05.02.2013 passed by the learned Magistrate directingfurther investigation by observing that the investigation was a faultyinvestigation and/or no proper investigation was carried out on certainaspects and, therefore, the learned Magistrate was justified in inquiringfurther investigation to reach to a logical conclusion. Consequently, theHigh Court has dismissed the said petition. Hence, the appellant-originalaccused is before this Court.

4. Mr. Mrinal Kanti Mandal, learned Advocate appearing on behalfof the appellant-original accused, has vehemently submitted that, in thefacts and circumstances of the case, the High Court has committed agrave error in confirming the order dated 05.02.2013 passed by the learnedMagistrate for further investigation.

4.1 Learned counsel appearing on behalf of the appellant-originalaccused has vehemently submitted that the High Court has not properlyappreciated the fact that after the accused was discharged by the learnedMagistrate, thereafter he has no jurisdiction to pass any order for furtherinvestigation under Section 173(8) of the CrPC.

4.2 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that once the accused isdischarged by the learned Magistrate after considering the charge-sheetand the material on record, thereafter the learned Magistrate becomesfunctus officio and has no jurisdiction to order further investigation evenunder Section 173(8) of the CrPC.

4.3 It is further submitted by the learned counsel appearing onbehalf of the appellant-original accused that the order passed by thelearned Magistrate for further investigation after the accused is dischargedis even hit by Section 167(2) of the CrPC.

4.4 Learned counsel appearing on behalf of the appellant-originalaccused has vehemently submitted that while passing the impugnedjudgment and order confirming the order passed by the learned Magistratefor further investigation after the accused was discharged, the High Court AB

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Ahas not properly appreciated and/or considered the distinction betweenthe powers to be exercised by the learned Magistrate at pre-cognizancestage and post-cognizance stage. It is submitted that the powers whichmay be available to the Magistrate at pre-cognizance stage cannot beexercised at post-cognizance stage.

B4.5 In support of his above submissions, the learned counselappearing on behalf of the appellant-original accused has heavily reliedupon the decisions of this Court in the case of Bhagwant Singh v.Commissioner of Police (1985) 2 SCC 537 as well as in the case ofReeta Nag v. State of West Bengal (2009) 9 SCC 129. Learned counselappearing on behalf of the appellant-original accused has further reliedCupon the decisions of this Court in the cases of Vinay Tyagi v. IrshadAli @ Deepak (2013) 5 SCC 762; Vasanti Dubey v. State of MadhyaPradesh (2012) 2 SCC 731; Amit Kapoor v. Ramesh Chander (2012)9 SCC 460 and Randhir Singh Rana v. State (Delhi Administration)(1997) 1 SCC 361.

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4.6 Relying upon the afore-stated decisions of this Court, learnedcounsel appearing on behalf of the appellant-original accused hasvehemently submitted that the order passed by the learned Magistrateand confirmed by the High Court, ordering further investigation after theaccused was discharged was wholly impermissible. Therefore, it is prayedEto allow the present appeal and quash and set aside the impugned judgmentand order passed by the High Court as well as the order passed by thelearned Magistrate ordering further investigation.

5. Ms. Vibha Datta Makhija, learned Senior Advocate appearingon behalf of the respondent-State, has vehemently opposed the presentFappeal. It is submitted by the learned counsel appearing on behalf of therespondent-State that as rightly observed by the learned Magistrate andeven the High Court that on certain aspects there was no investigationcarried out at all and no evidence was collected, which will go to the rootof the matter and therefore having not satisfied with the manner in whichthe investigation was carried out and the charge-sheet was submittedGand thereafter when the learned Magistrate ordered further investigation,the same is rightly not interfered with by the High Court.

5.1 It is further submitted by the learned counsel appearing onbehalf of the respondent-State that, as such, the learned Magistrate isvested with the power to order further investigation if he comes to the H

conclusion that the investigation was not proper and/or the investigationwas made in perfunctory manner and the benefit would go to the accused.It is further submitted that the powers of the Magistrate to order furtherinvestigation has been recognized by law under Section 173(8) of theCrPC as well as by this Court in a catena of decisions, including thedecisions of this Court in Bhagwant Singh (supra) and even in ReetaNag (supra). It is submitted that therefore, in the facts and circumstancesof the case, the learned Magistrate was justified in ordering furtherinvestigation.

5.2 Relying upon the decision of this Court in Kishan Lal v.Dharmendra Bafna (2009) 7 SCC 685, it is submitted by the learnedcounsel appearing on behalf of the respondent-State that, as observedand held by this Court, learned Magistrate can take cognizance on thebasis of the materials placed on record by the investigating agency. It isalso observed that it is also permissible for the Magistrate to direct furtherinvestigation. It is submitted that, as observed by this Court, the Magistratehas a duty to see that the investigation is carried out in a fair manner. Itis submitted that it is observed that an order of further investigation canbe made at various stages including the stage of the trial, that is evenafter taking cognizance of the offence.

5.3 Relying upon the decision of this Court in Hemant Dhasmanav. Central Bureau of Investigation (2001) 7 SCC 536, it is furthersubmitted that when the learned Magistrate passed an order of furtherinvestigation for the ends of justice, the same is not required to be interferedwith by the High Court in exercise of its revisional jurisdiction.

5.4 Learned counsel appearing on behalf of the respondent-Statehas also heavily relied upon the decision of this Court in Sajjan Kumarv. Central Bureau of Investigation (2010) 9 SCC 368. It is submittedthat even after the charge-sheet is filed, still the Magistrate is free todirect the accused to appear and try the offence, even at the stage ofSections 227 and 228 of the CrPC.

5.5 Making the above submissions and relying upon the abovedecisions of this Court, it is prayed to dismiss the present appeal.

6. Heard learned counsel appearing on behalf of the respectiveparties at length. At the outset, it is required to be noted that the challengein the present appeal is to the order passed by the High Court, confirmingthe order passed by the learned Magistrate of further investigation passed A

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Aat the time/after the accused was discharged by the learned Magistrate.It is required to be noted that, in the present case, the investigating officerafter concluding the investigation, submitted the report/charge-sheetbefore the learned Magistrate. Thereafter, the matter before the learnedMagistrate was at the stage of framing of the charge, as provided underSections 227 and 228 of the CrPC. After considering the material onBrecord submitted along with the charge-sheet, the learned Magistrate atthe first instance discharged the accused. However, simultaneously, whiledischarging the accused, learned Magistrate also passed an order forfurther investigation and directed the investigating officer to furtherinvestigate in the matter and submit the report. That part of the order, byCwhich the learned Magistrate ordered further investigation is the subjectmatter of dispute. Therefore, the short question which is posed forconsideration by this Court is whether once the learned Magistrate passesan order of discharge of the accused, whether thereafter is it permissiblefor the Magistrate to order further investigation and direct the investigatingofficer to submit the report?D

6.1 While considering the aforesaid issue/question, few decisionsof this Court on the procedure to be followed by the learned Magistratewhen the investigating officer submits the report under Section 173(2) ofthe CrPC and what are the powers of the learned Magistrate and/orwhat are the options available to the learned Magistrate at a time whenEthe investigating officer after concluding the investigation submits thereport/challan/charge-sheet before the learned Magistrate, are requiredto be referred to and considered.

6.2 In the celebrated judgment of this Court in the case ofBhagwant Singh (supra) which has been subsequently followedFconsistently, this Court had the occasion to consider the procedure to befollowed by the learned Magistrate and/or the options which are availableto the learned Magistrate at the time when the report/challan/charge-sheet is filed by the investigating officer before him. In that judgment,this Court in para 4 has observed and held as under:G“4. Now, when the report forwarded by the officer-in-charge ofa police station to the Magistrate under sub-section (2)(i) of Section173 comes up for consideration by the Magistrate, one of twodifferent situations may arise. The report may conclude that anoffence appears to have been committed by a particular personHor persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of theoffence and issue process or (2) he may disagree with the reportand drop the proceeding or (3) he may direct further investigationunder sub-section (3) of Section 156 and require the police tomake a further report. The report may on the other hand statethat, in the opinion of the police, no offence appears to have beencommitted and where such a report has been made, the Magistrateagain has an option to adopt one of three courses: (1) he mayaccept the report and drop the proceeding or (2) he may disagreewith the report and taking the view that there is sufficient groundfor proceeding further, take cognizance of the offence and issueprocess or (3) he may direct further investigation to be made bythe police under sub-section (3) of Section 156. Where, in eitherof these two situations, the Magistrate decides to take cognizanceof the offence and to issue process, the informant is not prejudiciallyaffected nor is the injured or in case of death, any relative of thedeceased aggrieved, because cognizance of the offence is takenby the Magistrate and it is decided by the Magistrate that thecase shall proceed. But if the Magistrate decides that there is nosufficient ground for proceeding further and drops the proceedingor takes the view that though there is sufficient ground forproceeding against some, there is no sufficient ground forproceeding against others mentioned in the first information report,the informant would certainly be prejudiced because the firstinformation report lodged by him would have failed of its purpose,wholly or in part. Moreover, when the interest of the informant inprompt and effective action being taken on the first informationreport lodged by him is clearly recognised by the provisionscontained in sub-section (2) of Section 154, sub-section (2) ofSection 157 and sub-section (2)(ii) of Section 173, it must bepresumed that the informant would equally be interested in seeingthat the Magistrate takes cognizance of the offence and issuesprocess, because that would be culmination of the first informationreport lodged by him. There can. therefore, be no doubt that when,on a consideration of the report made by the officer-in-charge ofa police station under sub-section (2)(i) of Section 173, theMagistrate is not inclined to take cognizance of the offence andissue process, the informant must be given an opportunity of beingheard so that he can make his submissions to persuade the ABCDEFG

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AMagistrate to take cognizance of the offence and issue process.We are accordingly of the view that in a case where the Magistrateto whom a report is forwarded under sub-section (2)(i) of Section173 decides not to take cognizance of the offence and to drop theproceeding or takes the view that there is no sufficient ground forproceeding against some of the persons mentioned in the firstBinformation report, the Magistrate must give notice to the informantand provide him an opportunity to be heard at the time ofconsideration of the report. It was urged before us on behalf ofthe respondents that if in such a case notice is required to begiven to the informant, it might result in unnecessary delay onCaccount of the difficulty of effecting service of the notice on theinformant. But we do not think this can be regarded as a validobjection against the view we are taking, because in any case theaction taken by the police on the first information report has to becommunicated to the informant and a copy of the report has to besupplied to him under sub-section (2)(i) of Section 173 and if thatDbe so, we do not see any reason why it should be difficult to servenotice of the consideration of the report on the informant. Moreover,in any event, the difficulty of service of notice on the informantcannot possibly provide any justification for depriving the informantof the opportunity of being heard at the time when the report isEconsidered by the Magistrate.”

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6.3 In the case of Vinay Tyagi (supra), after considering catenaof decisions of this Court, including the decisions of this Court inBhagwant Singh (supra) and Reeta Nag (supra), ultimately in para 40,this Court concluded as under:

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“40. Having analysed the provisions of the Code and the variousjudgments as aforeindicated, we would state the followingconclusions in regard to the powers of a Magistrate in terms ofSection 173(2) read with Section 173(8) and Section 156(3) ofthe Code:

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40.1. The Magistrate has no power to direct “reinvestigation” or“fresh investigation” (de novo) in the case initiated on the basis ofa police report.

40.2. A Magistrate has the power to direct “further investigation”after filing of a police report in terms of Section 173(6) of theHCode.

40.3. The view expressed in Sub-para 40.2 above is in conformitywith the principle of law stated in Bhagwant Singhcase [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537: 1985 SCC (Cri) 267] by a three-Judge Bench and thus inconformity with the doctrine of precedent.

40.4. Neither the scheme of the Code nor any specific provisiontherein bars exercise of such jurisdiction by the Magistrate. Thelanguage of Section 173(2) cannot be construed so restrictivelyas to deprive the Magistrate of such powers particularly in faceof the provisions of Section 156(3) and the language of Section173(8) itself. In fact, such power would have to be read into thelanguage of Section 173(8).

40.5. The Code is a procedural document, thus, it must receive aconstruction which would advance the cause of justice andlegislative object sought to be achieved. It does not stand to reasonthat the legislature provided power of further investigation to thepolice even after filing a report, but intended to curtail the powerof the court to the extent that even where the facts of the caseand the ends of justice demand, the court can still not direct theinvestigating agency to conduct further investigation which it coulddo on its own.

40.6. It has been a procedure of propriety that the police has toseek permission of the court to continue “further investigation”and file supplementary charge-sheet. This approach has beenapproved by this Court in a number of judgments. This as suchwould support the view that we are taking in the present case.”

6.4 In the case of Minu Kumari v. State of Bihar (2000) 4 SCC359, it is observed by this Court that when a report forwarded by thepolice to the Magistrate under Section 173(2)(i) is placed before him,several situations arise. The report may conclude that an offence appearsto have been committed by a particular person or persons and in such acase, the Magistrate may either (1) accept the report and take cognizanceof the offence and issued process, or (2) may disagree with the reportand drop the proceedings, or (3) may direct further investigation underSection 156(3) and require the police to make a further report.

7. Considering the law laid down by this Court in the aforesaiddecisions and even considering the relevant provisions of the CrPC, A

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Anamely Sections 167(2), 173, 227 and 228 of the CrPC, what is emergingis that after the investigation is concluded and the report is forwarded bythe police to the Magistrate under Section 173(2)(i) of the CrPC, thelearned Magistrate may either (1) accept the report and take cognizanceof the offence and issue process, or (2) may disagree with the reportand drop the proceedings, or (3) may direct further investigation underBSection 156(3) and require the police to make a further report. If theMagistrate disagrees with the report and drops the proceedings, theinformant is required to be given an opportunity to submit the protestapplication and thereafter, after giving an opportunity to the informant,the Magistrate may take a further decision whether to drop the proceedingsCagainst the accused or not. If the learned Magistrate accepts theobjections, in that case, he may issue process and/or even frame thecharges against the accused. As observed hereinabove, having notsatisfied with the investigation on considering the report forwarded bythe police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make aDfurther report. However, it is required to be noted that all the aforesaidis required to be done at the pre-cognizance stage. Once the learnedMagistrate takes the cognizance and, considering the materials on recordsubmitted along with the report forwarded by the police under Section173(2)(i) of the CrPC, learned Magistrate in exercise of the powersEunder Section 227 of the CrPC discharges the accused, thereafter, it willnot be open for the Magistrate to suo moto order for further investigationand direct the investigating officer to submit the report. Such an orderafter discharging the accused can be said to be made at the post-cognizance stage. There is a distinction and/or difference between thepre-cognizance stage and post-cognizance stage and the powers to beFexercised by the Magistrate for further investigation at the pre-cognizancestage and post-cognizance stage. The power to order further investigationwhich may be available to the Magistrate at the pre-cognizance stagemay not be available to the Magistrate at the post-cognizance stage,more particularly, when the accused is discharged by him. As observedGhereinabove, if the Magistrate was not satisfied with the investigationcarried out by the investigating officer and the report submitted by theinvestigating officer under Section 173(2)(i) of the CrPC, as observedby this Court in catena of decisions and as observed hereinabove, it wasalways open/permissible for the Magistrate to direct the investigatingagency for further investigation and may postpone even the framing ofH

the charge and/or taking any final decision on the report at that stage.However, once the learned Magistrate, on the basis of the report andthe materials placed along with the report, discharges the accused, weare afraid that thereafter the Magistrate can suo moto order the furtherinvestigation by the investigating agency. Once the order of discharge ispassed, thereafter the Magistrate has no jurisdiction to suo moto directthe investigating officer for further investigation and submit the report.In such a situation, only two remedies are available: (i) a revisionapplication can be filed against the discharge or (ii) the Court has to waittill the stage of Section 319 of the CrPC. However, at the same time,considering the provisions of Section 173(8) of the CrPC, it is alwaysopen for the investigating agency to file an application for furtherinvestigation and thereafter to submit the fresh report and the Courtmay, on the application submitted by the investigating agency, permitfurther investigation and permit the investigating officer to file a freshreport and the same may be considered by the learned Magistratethereafter in accordance with law. The Magistrate cannot suo motodirect for further investigation under Section 173(8) of the CrPC or directthe re-investigation into a case at the post-cognizance stage, moreparticularly when, in exercise of powers under Section 227 of the CrPC,the Magistrate discharges the accused. However, Section 173(8) ofthe CrPC confers power upon the officer-in-charge of the police stationto further investigate and submit evidence, oral or documentary, afterforwarding the report under sub-section (2) of Section 173 of the CrPC.Therefore, it is always open for the investigating officer to apply forfurther investigation, even after forwarding the report under sub-section(2) of Section 173 and even after the discharge of the accused. However,the aforesaid shall be at the instance of the investigating officer/policeofficer-in-charge and the Magistrate has no jurisdiction to suo motopass an order for further investigation/reinvestigation after he dischargesthe accused.

7.1 In the instant case, the investigating authority did not apply forfurther investigation and that the learned Magistrate suo moto passedan order for further investigation and directed the investigating officer tofurther investigate and submit the report, which is impermissible underthe law. Such a course of action is beyond the jurisdictional competenceof the Magistrate. Therefore, that part of the order passed by the learnedMagistrate ordering further investigation after he discharges the accused,cannot be sustained and the same deserves to be quashed and set aside.

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AConsequently, the impugned judgment and order passed by the HighCourt confirming such an order passed by the learned Magistrate alsodeserves to be quashed and set aside. At the same time, it will alwaysbe open for the investigating officer to file an appropriate application forfurther investigation and undertake further investigation and submit afurther report in exercise of powers under Section 173(8) of the CrPC.

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8. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order dated20.08.2014 as well as that part of the order dated 05.02.2013 passed bythe learned Magistrate directing the investigating officer for furtherinvestigation and submit the report, is hereby quashed and set aside.

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8.1 However, considering the observations made by the learnedMagistrate and the deficiency in the investigation pointed out by thelearned Magistrate and the ultimate goal is to book and/or punish thereal culprit, it will be open for the investigating officer to submit a properapplication before the learned Magistrate for further investigation andDconduct fresh investigation and submit the further report in exercise ofpowers under Section 173(8) of the CrPC and thereafter the learnedMagistrate to consider the same in accordance with law and on its ownmerits.