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2019 (4) TMI 2114 - SC - Indian LawsFurther investigation once order of discharge given - whether once the learned Magistrate passes an order of discharge of the Accused, whether thereafter is it permissible for the Magistrate to order further investigation and direct the investigating officer to submit the report? - HELD THAT - In the celebrated judgment of this Court in the case of BHAGWANT SINGH VERSUS. COMMISSIONER OF POLICE 1985 (4) TMI 327 - SUPREME COURT which has been subsequently followed consistently, this Court had the occasion to consider the procedure to be followed by the learned Magistrate and/or the options which are available to 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 We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded Under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. In the case of MINU KUMARI AND ANR VERSUS THE STATE OF BIHAR AND ORS 2006 (4) TMI 534 - SUPREME COURT , it is observed by this Court that when a report forwarded by the police to the Magistrate Under Section 173(2)(i) is placed before him, several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issued process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation Under Section 156(3) and require the police to make a further report. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of the Code of Criminal Procedure, namely Sections 167(2), 173, 227 and 228 of the Code of Criminal Procedure, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate Under Section 173(2)(i) of the Code of Criminal Procedure, the learned Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation Under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the Accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the Accused - Section 173(8) of the Code of Criminal Procedure confers power upon the officer-in-charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report Under Sub-section (2) of Section 173 of the Code of Criminal Procedure. Therefore, it is always open for the investigating officer to apply for further 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/police officer-in-charge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the Accused. In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the Accused, cannot be sustained and the same deserves to be quashed and set aside. The impugned judgment as well as that part of the order passed by the learned Magistrate directing the investigating officer for further investigation and submit the report, is hereby quashed and set aside - Appeal allowed.
Issues Involved:
1. Jurisdiction of the Magistrate to order further investigation after discharging the accused. 2. Applicability of Section 173(8) of the Code of Criminal Procedure (CrPC) for further investigation. 3. Distinction between pre-cognizance and post-cognizance stages in criminal proceedings. 4. Powers of the Magistrate at different stages of investigation and trial. Detailed Analysis: 1. Jurisdiction of the Magistrate to Order Further Investigation After Discharging the Accused: The Supreme Court addressed whether a Magistrate can order further investigation after discharging the accused. The Court concluded that once the Magistrate discharges the accused under Section 227 CrPC, he becomes functus officio and cannot suo moto order further investigation. The Court emphasized that such an order at the post-cognizance stage is beyond the Magistrate's jurisdictional competence. The Court stated, "Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report." 2. Applicability of Section 173(8) of the Code of Criminal Procedure (CrPC) for Further Investigation: The Court clarified the scope of Section 173(8) CrPC, which allows the police to conduct further investigation even after submitting the charge-sheet. However, the Court highlighted that this power is vested in the investigating agency and not the Magistrate. The judgment stated, "It is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report." Thus, the Magistrate cannot independently order further investigation under Section 173(8) CrPC after discharging the accused. 3. Distinction Between Pre-Cognizance and Post-Cognizance Stages in Criminal Proceedings: The Court distinguished between the powers of the Magistrate at pre-cognizance and post-cognizance stages. At the pre-cognizance stage, the Magistrate can direct further investigation under Section 156(3) CrPC. However, once cognizance is taken and the accused is discharged, the Magistrate loses the authority to order further investigation. The Court noted, "The power to order further investigation which may be available to the Magistrate at the pre-cognizance stage may not be available to the Magistrate at the post-cognizance stage, more particularly, when the Accused is discharged by him." 4. Powers of the Magistrate at Different Stages of Investigation and Trial: The Court reviewed various precedents and statutory provisions to outline the Magistrate's powers at different stages. It referred to the landmark judgment in Bhagwant Singh v. Commissioner of Police, which enumerated the options available to a Magistrate when a police report is submitted. The Court reiterated that the Magistrate could accept the report, drop the proceedings, or direct further investigation at the pre-cognizance stage. However, after discharging the accused, the Magistrate cannot order further investigation on his own. The Court emphasized, "The Magistrate cannot suo moto direct for further investigation under Section 173(8) of the Code of Criminal Procedure or direct the re-investigation into a case at the post-cognizance stage." Conclusion: The Supreme Court allowed the appeal, setting aside the High Court's judgment and the Magistrate's order directing further investigation. The Court held that the Magistrate acted beyond his jurisdiction by ordering further investigation after discharging the accused. However, the Court left open the possibility for the investigating officer to apply for further investigation under Section 173(8) CrPC. The judgment concluded, "It will be open for the investigating officer to submit a proper application before the learned Magistrate for further investigation and conduct fresh investigation and submit the further report in exercise of powers under Section 173(8) of the Code of Criminal Procedure."
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