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TMI Blog2019 (4) TMI 2114X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP (Crl.) No. 297 of 2015) - - - Dated:- 16-4-2019 - L. Nageswara Rao And M.R. Shah, JJ. For the Appellant : Mrinal Kanti Mandal, Parvez Bashista, Mukesh Kumar and Debasis Misra, Advs. For the Respondents : Vibha Datta Makhija, Sr. Adv., B. Sunita Rao, K. Subba Rao and B.V. Balaram Das, Advs. JUDGMENT M.R. SHAH, J. 1. Leave granted. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.08.2014 passed by the High Court of Delhi in Criminal M.C. No. 3386 of 2013 by which the High Court has dismissed the said petition and has confirmed the order passed by the learned Additional Chief Metropolitan Magistrate (West) Delhi dated 05.02.2013, by which the learned Magistrate ordered further investigation, the original Accused has preferred the present appeal. 3. That the FIR was lodged against the Appellant herein-original Accused on 28.09.2007 being FIR No. 426/2007 at Police Station Janakpuri, Delhi for the offences Under Sections 420, 468 and 471 of the Indian Penal Code. That on completion of the investigation, the investigating officer filed the charge-sheet against the Accused-Appellant for the offences Under Sections 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, learned Advocate appearing on behalf of the Appellant-original Accused, has vehemently submitted that, in the facts and circumstances of the case, the High Court has committed a grave error in confirming the order dated 05.02.2013 passed by the learned Magistrate for further investigation. 4.1 Learned Counsel appearing on behalf of the Appellant-original Accused has vehemently submitted that the High Court has not properly appreciated the fact that after the Accused was discharged by the learned Magistrate, thereafter he has no jurisdiction to pass any order for further investigation Under Section 173(8) of the Code of Criminal Procedure. 4.2 It is further submitted by the learned Counsel appearing on behalf of the Appellant-original Accused that once the Accused is discharged by the learned Magistrate after considering the charge-sheet and the material on record, thereafter the learned Magistrate becomes functus officio and has no jurisdiction to order further investigation even Under Section 173(8) of the Code of Criminal Procedure. 4.3 It is further submitted by the learned Counsel appearing on behalf of the Appellant-original Accused that the order passed by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... root of the matter and therefore having not satisfied with the manner in which the investigation was carried out and the charge-sheet was submitted and 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 on behalf of the Respondent-State that, as such, the learned Magistrate is vested with the power to order further investigation if he comes to the conclusion that the investigation was not proper and/or the investigation was made in perfunctory manner and the benefit would go to the Accused. It is further submitted that the powers of the Magistrate to order further investigation has been recognized by law Under Section 173(8) of the Code of Criminal Procedure as well as by this Court in a catena of decisions, including the decisions of this Court in Bhagwant Singh (supra) and even in Reeta Nag (supra). It is submitted that therefore, in the facts and circumstances of the case, the learned Magistrate was justified in ordering further investigation. 5.2 Relying upon the decision of this Court in Kishan Lal v. Dharmendra Bafna (2009) 7 SCC 685 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance discharged the Accused. However, simultaneously, while discharging the Accused, learned Magistrate also passed an order for further investigation and directed the investigating officer to further investigate in the matter and submit the report. That part of the order, by which the learned Magistrate ordered further investigation is the subject matter of dispute. Therefore, the short question which is posed for consideration by this Court is 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? 6.1 While considering the aforesaid issue/question, few decisions of this Court on the procedure to be followed by the learned Magistrate when the investigating officer submits the report Under Section 173(2) of the Code of Criminal Procedure and what are the powers of the learned Magistrate and/or what are the options available to the learned Magistrate at a time when the investigating officer after concluding the investigation submits the report/challan/charge-sheet before the learned Magistrate, are required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can. therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station Under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded Under Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 173(2)(i) of the Code of Criminal Procedure, learned Magistrate in exercise of the powers Under Section 227 of the Code of Criminal Procedure discharges the Accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the Accused 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 to be exercised by the Magistrate for further investigation at the pre-cognizance stage and post-cognizance stage. 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. As observed hereinabove, if the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer Under Section 173(2) (i) of the Code of Criminal Procedure, as observed by this Court in catena of decisions and as observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on/reinvestigation after he discharges the Accused. 7.1 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. Consequently, the impugned judgment and order passed by the High Court confirming such an order passed by the learned Magistrate also deserves to be quashed and set aside. At the same time, it will always be open for the investigating officer to file an appropriate application for further investigation and undertake further investigation and submit a further report in exercise of powers Under Section 173(8) of the Code of Criminal Procedure. 8. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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