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TMI Blog2019 (10) TMI 1428X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor, Surat-so strongly relied upon by Shri Dushyant Dave-bears this out. In this communication, the learned Commissioner doubts that a particular order dated 14.04.1976 passed by a revenue authority ever existed, and that by making an application in the name of the long since deceased Bhikhabhai Khushalbhai in 2010, for getting a copy of Form No. 3 would, prima facie, amount to a criminal offence. This is not a case which calls for any further investigation into the facts alleged in the FIR lodged on 22.12.2009. Yet, having regard to what is stated by the learned Commissioner in the said letter, the police be directed to register an FIR qua these facts, which needs to be investigated by a senior police officer nominated by the concerned Commissioner of Police. However, given the serious nature of the facts alleged in the communication of the Commissioner of Revenue dated 15.03.2011, we direct that the police register an FIR based on this letter within a period of one week from the date of this judgment - This FIR is to be enquired into by a senior police officer designated by the concerned Commissioner of Police, who is to furnish a police report pursuant to investigation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khabhai became tenant in his place. Bhikhabhai in turn died on 23.12.1984 and his wife Bhikiben died on 18.12.1999. A public notice dated 07.06.2008 was issued in 'Gujarat Mitra' and 'Gujarat Darpan Dainik' by the heirs of Bhikhabhai, stating that Ramanbhai and Shankarbhai Patel are land-grabbers, and are attempting to create third-party rights in the said property. This led to the legal heirs of Bhikhabhai, through their Power-of-Attorney holder, applying on 12.06.2008 to the Collector, Nanpura (Surat), to cancel revenue entries that were made way back in 1976. 3. Pursuant to the filing of the FIR, investigation was conducted by the police, which resulted in a charge-sheet dated 22.04.2010 being submitted to the Judicial Magistrate (First Class), Surat. On 23.04.2010, the said Magistrate took cognizance and issued summons to the Accused regarding offences Under Sections 420, 465, 467, 468, 471, 384 and 511 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ). Pursuant to the summons, the Accused appeared before the said Magistrate. On 10.06.2011, an application (Exhibit 28) was filed by Accused No. 1 Vinubhai Haribhai Malaviya for further investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation be carried out. But by covering this investigation also in the complaint of the present matter, if it is found out in such investigation that any offence was committed, then appropriate criminal proceedings can be initiated against such person. 6. Pursuant to this order, the investigation was handed over to Investigating Officer R.A. Munshi (hereinafter referred to as IO Munshi ) on 06.03.2012, who then submitted two further investigation reports-one within three days, dated 09.03.2012 and a second one dated 10.04.2012, in which the IO Munshi went into the facts mentioned in the 173(8) applications that were filed. On 13.06.2012, the original Accused withdrew Special Criminal Application No. 727 of 2012 filed in the High Court, which was filed challenging the order by which the learned Revisional Court had confirmed the order rejecting the discharge applications, with liberty to move an appropriate application for discharge before the Magistrate. The High Court heard Criminal Revision Application No. 44 of 2012 together with Criminal Miscellaneous Application No. 1746 of 2012, and arrived at the conclusion that, as a matter of law, the Magistrate does not possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to have been carried out on the facts of this case, in that, a huge fraud had been perpetrated on his clients by land-grabbing mafia, and it would be a travesty of justice if the learned Second Additional Sessions Judge's judgment dated 10.01.2012 was not upheld. According to him, the High Court judgment was greatly influenced by the fact that: (1) IO Munshi submitted further interim investigation reports very quickly, and (2) had submitted these reports to the Additional Sessions Judge instead of the Magistrate; resulting in the throwing out of the baby with the bathwater. He therefore urged us to uphold the order of the Second Additional Sessions Judge who ordered further investigation, as that would lead to the truth of the matter in this case. 8. On the other hand, Shri Basant and Shri Navare, learned Senior Advocates appearing on behalf of the Respondents, supported the judgment of the trial court and the High Court, stating that there is no doubt that without filing a cross-FIR, what was sought to be adduced is evidence which may perhaps amount to a defence in the trial to be conducted, which would be impermissible. They emphasised that at no stage had an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). xxx xxx xxx 190. Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. xxx xxx xxx 204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the Accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summon, for causing the Accused to be brought or to appear at a certain time before such other Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the Accused under Sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -First Law Commission Report (The Code of Criminal Procedure, 1898) forwarded to the Ministry of Law in September 1969 (hereinafter referred to as the Law Commission Report ), therefore, recommended the addition of Sub-section (7) to Section 173 as it stood under the Code of Criminal Procedure, 1898 for the following reasons: 14.23. A report Under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report Under Section 173 comes upon evidence bearing on the guilt or innocence of the Accused. We should have thought that the police officer can collect that evidence and send it to the magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report Under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the Accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the Accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngal (1980) 2 SCC 91, this Court held as follows: 50. Sections 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation (1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the Accused to a Magistrate (Section 169) or (2) that there is sufficient evidence or reasonable ground as aforesaid (Section 170). In either case the final report of the police is to be submitted to the Magistrate under Sub-section (1) of Section 173. Sub-section (3) of that Section further provides that in the case of a report by the police that the Accused has been released on his bond (which is the situation envisaged by Section 169), the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit . Now what are the courses open to the Magistrate in such a situation? He may, as held by this Court in Abhinandan Jha v. Dinesh Mishra [ (1967) 3 SCR 668 : AIR 1968 SC 117 : 1968 Cri. LJ 97]: (1) agree with the report of the police and file the proceedings; or (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 173(8). Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409, this Court held: 12. Thus in Mohd. Yousuf v. Afaq Jahan [ (2006) 1 SCC 627 : (2006) 1 SCC (Cri.) 460 : JT (2006) 1 SC 10] this Court observed: (SCC p. 631, para 11) 11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation Under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation Under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not being done by the police. Section 156(3) Code of Criminal Procedure, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. 23. It is thus clear that the Magistrate's power Under Section 156(3) of the Code of Criminal Procedure is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police-which such Magistrate is to supervise-Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess which begins with the collection of evidence Under Section 156 and ends with a report or charge-sheet Under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered Under Section 202 to direct, within the limits circumscribed by that Section an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding . Thus the object of an investigation Under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. This judgment was then followed in Tula Ram and Ors. v. Kishore Singh (1977) 4 SCC 459 at paragraphs 11 and 15. 25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a defect or illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to cognizance or trial. However, it was observed: It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial. When the breach of such mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for. This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it. The Court then went on to hold: 20. Anyone acqua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. 21. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Ram Lal Narang v. State (Delhi Admn.) [ (1979) 2 SCC 322 : 1979 SCC (Cri.) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 1985 SCC (Cri.) 267] a three-Judge Bench of this Court has said, though in a slightly different context, that three options are open to the court on receipt of a report Under Section 173(2) of the Code, when such report states that no offence has been committed by the persons Accused in the complaint. They are: (SCC p. 542, para 4) (1) The court may accept the report and drop the proceedings; or (2) the court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) the court may direct further investigation to be made by the police. 18. Another three-Judge Bench in India Carat (P) Ltd. v. State of Karnataka [ (1989) 2 SCC 132 : 1989 SCC (Cri.) 306] has stated thus: (SCC pp. 139-40, para 16) 16. The position is, therefore, now well settled that upon receipt of a police report Under Section 173(2) a Magistrate is entitled to take cognizance of an offence Under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the Accused. The Magistrate can take into account the statements of the witnesses examined by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) Code of Criminal Procedure open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate. Thus, Under Section 173(8), where charge-sheet has been filed, that court also enjoys the jurisdiction to direct further investigation into the offence. (Ref. Hemant Dhasmana v. CBI [ (2001) 7 SCC 536 : 2001 SCC (Cri.) 1280].) This power cannot have any inhibition including such requirement as being obliged to hear the Accused before any such direction is made. xxx xxx xxx 29. While the trial court does not have inherent powers like those of the High Court Under Section 482 Code of Criminal Procedure or the Supreme Court Under Article 136 of the Constitution of India, such that it may order for complete reinvestigation or fresh investigation of a case before it, however, it has substantial powers in exercise of discretionary jurisdiction Under Sections 311 and 391 Code of Criminal Procedure In cases where cognizance has been taken and where a substantial portion of investigation/trial has already been complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated under the head of a retired Supreme Court Judge along with other officers and experts, held that if further investigation is sought Under Section 173(8) of Code of Criminal Procedure, the same can always be effected even after the filing of the final report. 33. We now come to the decision in Vinay Tyagi v. Irshad Ali and Ors. (2013) 5 SCC 762. This is another case that arose out of a CBI report to the Magistrate, which requested for closure of the case against the Accused. The judgment of the Court first discussed in detail how the criminal investigative machinery is set into motion right until the stage at which the trial begins. The Court then held: 20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers Under Section 156(3) of the Code. Investigation can be of the following kinds: (i) Initial investigation, (ii) Further investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation. 34. In support of these principles reference can be made to the judgments of this Court in UPSC v. S. Papaiah [ (1997) 7 SCC 614 : 1997 SCC (Cri.) 1112], State of Orissa v. Mahima [ (2007) 15 SCC 580 : (2010) 3 SCC (Cri.) 611 : (2003) 5 Scale 566], Kishan Lal v. Dharmendra Bafna [ (2009) 7 SCC 685 : (2009) 3 SCC (Cri.) 611], State of Maharashtra v. Sharadchandra Vinayak Dongre [ (1995) 1 SCC 42 : 1995 SCC (Cri.) 16]. 35. We may also notice here that in S. Papaiah [ (1997) 7 SCC 614 : 1997 SCC (Cri.) 1112], the Magistrate had rejected an application for reinvestigation filed by the Applicant primarily on the ground that it had no power to review the order passed earlier. This Court held that it was not a case of review of an order, but was a case of further investigation as contemplated Under Section 173 of the Code. It permitted further investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a report Under Section 173(2) of the Code is filed, is empowered in law to direct further investigation and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] has, in no uncertain terms, stated that principle, as aforenoticed. 39. The contrary view taken by the Court in Reeta Nag [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri.) 1051] and Randhir Singh [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] do not consider the view of this Court expressed in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267]. The decision of the Court in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri.) 267] in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three-Judge Bench concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh [Bhagwant Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court can still not direct the investigating agency to conduct further investigation which it could do on its own. 40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue further investigation and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case. xxx xxx xxx 48. What ultimately is the aim or significance of the expression fair and proper investigation in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct further investigation to clear its doubt and to order the investigating agency to further substantiate its charge-sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India (1996) 6 SCC 775, and dealt with when trials before the Sessions Court; trials of warrant-cases; and trials of summons-cases by Magistrates can be said to commence, as follows: 34. In Common Cause v. Union of India [ (1996) 6 SCC 775 : 1997 SCC (Cri.) 42 : AIR 1997 SC 1539], this Court while dealing with the issue held: (SCC p. 776, para 1) 1. II (i) In cases of trials before the Sessions Court the trials shall be treated to have commenced when charges are framed Under Section 228 of the Code of Criminal Procedure, 1973 in the cases concerned. (ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed Under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the Accused concerned Under Section 246 of the Code of Criminal Procedure, 1973. (iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Code of Criminal Procedure. 36. Despite the aforesaid judgments, some discordant notes were sounded in three recent judgments. In Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel (2017) 4 SCC 177, on the facts in that case, the Appellant/Informant therein sought a direction Under Section 173(8) from the Trial Court for further investigation by the police long after charges were framed against the Respondents at the culminating stages of the trial. The Court in its ultimate conclusion was correct, in that, once the trial begins with the framing of charges, the stage of investigation or inquiry into the offence is over, as a result of which no further investigation into the offence should be ordered. But instead of resting its judgment on this simple fact, this Court from paragraphs 29 to 34 resuscitated some of the earlier judgments of this Court, in which a view was taken that no further investigation could be ordered by the Magistrate in cases where, after cognizance is ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate has the power to direct investigation Under Section 156(3) at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the Accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate Under Section 202, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated Under Section 173(8) of the Code. If the power of the Magistrate, in such a scheme envisaged by Code of Criminal Procedure to order further investigation even after the cognizance is taken, the Accused persons appear and charge is framed, is acknowledged or approved, the same would be discordant with the state of law, as enunciated by this Court and also the relevant layout of Code of Criminal Procedure adumbrated hereinabove. Additionally had it bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure, namely, Sections 167(2), 173, 227 and 228 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) 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. As observed hereinabove, having not been satisfied with the investigation on considering the report forwarded by the police Under Section 173(2)(i) Code of Criminal Procedure, the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure However, at the same time, considering the provisions of Section 173(8) Code of Criminal Procedure, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the learned Magistrate thereafter in accordance with law. The Magistrate cannot suo motu direct for further investigation Under Section 173(8) Code of Criminal Procedure or direct reinvestigation into a case at the post-cognizance stage, more particularly when, in exercise of powers Under Section 227 Code of Criminal Procedure, the Magistrate discharges the Accused. However, Section 173(8) 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 Code of Criminal Procedure Therefore, it is always open for the investigating officer to apply for further investigation, even after forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the Code of Criminal Procedure, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment also is far removed from the question that has been decided by us in the facts of this case. 41. When we come to the facts of this case, it is clear that the FIR dated 22.12.2009 is concerned with two criminal acts, namely, the preparing of fake and bogus 'Satakhat' and Power-of-Attorney in respect of the agricultural land in question, and the demanding of an amount of ₹ 2.5 crores as an attempt to extort money by the Accused persons. The facts that are alleged in the application for further investigation are facts which pertain to revenue entries having been made in favour of Ramanbhai Bhagubhai Patel and Shankarbhai Bhagubhai Patel, and how their claim over the same land is false and bogus. Shri Basant is, therefore, right in submitting that the facts alleged in the applications for further investigation are really in the nature of a cross-FIR which has never been registered. In fact, the communication of the Commissioner of Revenue, Gujarat dated 15.03.2011 to the Collector, Surat-so strongly relied upon by Shri Dushyant Dave-bears this out. In this communication, the learned Commissioner doubts that a particular order dated 14.04.1976 passed by a revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded of power to order further investigation. However, given that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22.12.2009, we uphold the impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated 10.01.2012 which had ordered further investigation, and also the consequential order setting aside the two additional interim reports of the IO Munshi. So far as Criminal Revision Application No. 346 of 2011 is concerned, we set aside the impugned High Court judgment which remanded the matter to the revisional court. Consequently, the judgment of the learned Additional Sessions Judge dated 23.04.2016 upon remand is also set aside, rendering Special Criminal Application No. 3085 of 2016 infructuous. 44. However, given the serious nature of the facts alleged in the communication of the Commissioner of Revenue dated 15.03.2011, we direct that the police register an FIR based on this letter within a period of one week from the date of this judgment. This FIR is to be enquired into by a senior police officer designated by the concerned Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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