Vs. State of West Bengal & Ors.  INSC 1441 (13 August 2009)
WEST BENGAL & ORS.
(Crl.) No. 3062 of 2007) AUGUST 13, 2009 [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
 13 SCR 276 The Order of the Court was delivered by ORDER ALTAMAS KABIR,
In this Special Leave Petition we are called upon to decide
whether after charge-sheet has been filed by the investigating agency under
Section 173(2) of the Code of Criminal Procedure, hereinafter referred to as
"Cr.P.C.", and charge has been framed against some of the accused on
the basis thereof and the other co-accused have been discharged, the Magistrate
can direct the investigating authorities to conduct a re-investigation or even
further investigation under Sub-section (8) of Section 173 Cr.P.C.
In the instant case, on the basis of a charge-sheet filed by the
Investigating Officer, the Sub-Divisional Judicial Magistrate, Asansol, West
Bengal, on 9th July, 2004, took cognizance of offences alleged to have been
committed by six of the original sixteen accused persons under Sections
467/468/120B of the Indian Penal Code. The other ten accused persons were
discharged on the prayer of the Investigating Officer.
on 20th August, 2004, while considering an application filed by the de facto
complainant, who is the petitioner before us, under Section 173(8) Cr.P.C.,
praying for reinvestigation of the case, the learned Magistrate directed the
Officer in-Charge, Asansol (South) Police Station, to reinvestigate the case
and to submit a report.
The Respondents No.2 and 3 filed an application under Section 482
Cr.P.C., being CRR No.2318 of 2004, before the Calcutta High Court, for
quashing the said order and the same was allowed by a judgment and order dated
31st January, 2007, which is the subject matter of challenge in the present
Special Leave Petition
Before the learned Single Judge of the Calcutta High Court it was
submitted on behalf of the above-mentioned respondents that after framing
charge against six of the accused persons and discharging the rest, the learned
Magistrate had no jurisdiction to order a reinvestigation as had been done in
the instant case, having regard to the provisions of Section 362 Cr.P.C. as
considered by this Court in the case of Sooraj Devi vs. Pyare Lal & Anr.
[(1981) 1 SCC 500]. The said submission was accepted by the High Court.
Apart from the above, the learned Single Judge also took the view
that merely because out of sixteen accused persons ten had been discharged, it
did not necessarily mean that they could not be tried subsequently. The learned
Judge then referred to the provisions of Section 319 Cr.P.C. which empowers the
court to proceed against the other persons if any material is disclosed against
them during the trial. The learned Single Judge observed that although the
Magistrate could not direct reinvestigation on the basis of an application made
by the de facto complainant and that too on the technical ground of non-service
of notice upon him, he could take recourse to Section 319 Cr.P.C. at the stage
Having regard to the view taken by him, the learned Single Judge
by his order dated 31st January, 2007, allowed the revisional application and
directed the trial court to proceed with the case, in accordance with law.
Appearing on behalf of the petitioner, Mr. Jaideep Gupta, learned
Senior Advocate, urged that the application filed on behalf of the petitioner
herein was really for the purpose of further investigation, as contemplated
under Section 173(8) Cr.P.C., and not for reinvestigation, which expression had
been inadvertently included in the prayer of the said application. Mr. Gupta
submitted that the use of the expression "reinvestigation" had been
taken literally and a decision had been rendered on the basis thereof. Mr.
urged that the application filed by the petitioner ought to have been
considered for the purpose of further investigation as contemplated under
Section 173(8) Cr.P.C.
Mr. Gupta submitted that on a plain reading of Sub-section (8) of
Section 173 Cr.P.C., it cannot be argued that a further investigation could not
be directed by the learned Magistrate even if the charge-sheet had been filed
and charges had been framed.
urged that if such a procedure was not barred under the law, the order passed
by the learned Magistrate on 20th August, 2004 could not be faulted.
Referring to the decision of this Court in Union Public Service
Commission vs. S. Papaiah & Ors. [(1997) 7 SCC 614], learned counsel
submitted that in the said case this Court had occasion to consider in detail
the provisions of Section 173(8) Cr.P.C. and this Court had held that under
Section 173(8) Cr.P.C.
Magistrate could direct further investigation to collect further evidence and
the new report to be submitted by the Investigating Officer would be governed
by Sub-section (2) and (6) of Section 173 Cr.P.C. Mr. Gupta pointed out that in
the said case, this Court had occasion to observe that by not ordering such further
investigation on account of the facts, the learned Magistrate had, in fact,
failed to exercise the jurisdiction vested in him. Setting aside the order of
the learned Magistrate accepting the Final Report, this Court remitted the
matter to the learned Metropolitan Magistrate to issue directions under Section
173(8) Cr.P.C. to the Central Bureau of Investigation (C.B.I.) to investigate
the case further and to collect further evidence in the larger public interest
in order to ensure the purity of the examination conducted by the Union Public
Service Commission, hereinafter referred to as "U.P.S.C.", for All
India Services, to select the best talent.
Reference was also made to the decision of this Court in State of
Rajasthan vs. Aruna Devi & Ors. [(1995) 1 SCC 1], wherein it was held that
acceptance of Final Report by the Magistrate does not debar him from taking
cognizance of the offence if on further investigation fresh material came to be
Mr. Gupta urged that since in Sub-section (8) of Section 173
Cr.P.C. there is no express prohibition, the Magistrate was always within his
jurisdiction to order a further investigation into the question of discharge of
ten of the sixteen accused persons. Mr. Gupta submitted that the order of the High
Court was contrary to the provisions of Section 173(8) Cr.P.C. and was,
therefore, liable to be quashed.
Mr. K.K. Venugopal, learned Senior Advocate, on the other hand,
urged that the order of the learned Magistrate, which had been quashed by High
Court, could not be supported since it had been passed by the learned
Magistrate without jurisdiction. Re- emphasizing the provisions of Section 362
Cr.P.C., Mr. Venugopal submitted that the order passed by the learned
Magistrate on 20th August, 2004, amounted to review of his order dated 9th
July, 2004, which he was not competent to do. Mr. Venugopal submitted that
Magistrates being creatures of statute, cannot act in excess of the powers
vested in them by the statute. Mr. Venugopal submitted that even if the
intention was to direct further investigation, the order impugned in the
Special Leave Petition could not be sustained having been passed in excess of
the jurisdiction vested in the learned Magistrate.
Apart from the above, Mr. Venugopal also submitted that once a
charge-sheet had been filed and charges had been framed against some of the
accused, it was no longer available to the learned Magistrate to order even a
further investigation as contemplated under Section 173(8) Cr.P.C., much less a
reinvestigation, in view of the bar imposed under Section 362 Cr.P.C. In
support of his submissions, Mr. Venugopal referred to the decision of this
Court in Randhir Singh Rana vs. State (Delhi Administration) [(1997) 1 SCC
361], wherein this Court, while considering the provisions of Section 156(3),
173(8), 190, 200 and 204 Cr.P.C. had held that after taking cognizance of an
incident on the basis of a police report and after appearance of the accused, a
Judicial Magistrate cannot on his own order further investigation in the case,
and if an order of discharge is passed, nothing would prevent the police from
making further investigation on its own.
Mr. Venugopal submitted that the view taken by the High Court was
on the basis of the settled position of law that having taken cognizance of an
offence, the magistrate had no jurisdiction to direct a reinvestigation of the
case under Sub-section (8) of Section 173 Cr.P.C. On the other hand, the High
Court made it clear that if during the trial any fresh material surfaced
against the discharged persons, the magistrate could take recourse to Section
319 Cr.P.C. It was urged that the High Court should have kept in mind the
well-settled principle that whatever was required to be done under a statute,
could only be done in the manner prescribed by the statute and in no other
Although, Mr. Jaideep Gupta based his submissions on the premise
that the application filed by the petitioner (de facto complainant) was for a
further investigation, the fact remains that the same was made for a direction
for reinvestigation which was allowed by the magistrate by his order dated 20th
of the said order, the magistrate directed the Officer-in- Charge, Asansol
(South) Police Station, to reinvestigate the case and to submit a report, which
the Magistrate could not do having regard to the fact that he had already
passed an order of discharge of ten of the accused persons and such an order is
contrary to the provisions of Section 362 Cr.P.C. As has been rightly held by
the High Court, having regard to the decisions of this Court in the Master
Construction Co. (P) Ltd.'s case [AIR 1966 SC 1047] and the Sankatha Singh's
case [AIR 1962 SC 1028], which were reflected in Sooraj Devi's case (supra),
having passed a final order framing charge against six persons and discharging
the remaining accused persons, it was no longer within the Magistrate's
jurisdiction to direct a re-investigation into the case.
The aforesaid question was considered by a three Judge Bench of
this Court in Adalat Prasad vs. Rooplal Jindal [(2004) 7 SCC 338], on a
reference made with regard to the correctness of the law laid down by the
Supreme Court in K.M. Mathew vs. State of Kerala [(1992) 1 SCC 217], where it
was held that the Court issuing summons was entitled to recall the same on
being satisfied that the issuance of summons was not in accordance with law.
that the said decision did not lay down the correct law, this Court held that
the Magistrate had no jurisdiction to recall his order issuing process in the
absence of any power of review or inherent power which did not inhere in the
subordinate Criminal Courts, but was available to the High Court under Section
In addition to the above, the decision of this Court in Randhir
Singh Rana's case (supra) also makes it clear that after taking cognizance of
an offence on the basis of a police report and after appearance of the accused,
a Judicial Magistrate cannot of his own order further investigation in the
case, though such an order could be passed on the application of the
investigating authorities. The view expressed in Randhir Singh Rana's case
(supra) finds support in the decision of this Court in the case of Dinesh
Dalmia vs. CBI [(2007) 8 SCC 770], wherein while considering various provisions
of the Criminal Procedure Code including Section 173 thereof, this Court held
that so long as the charge-sheet is not filed within the meaning of Section
173(2) Cr.P.C., investigation remains pending. But, even the filing of a
charge-sheet did not preclude an Investigating Officer from carrying on further
investigation in terms of Section 173(8) Cr.P.C.
also observed that the power of the Investigating Officer to make a prayer for
conducting further investigation in terms of Section 173(8) of the Code is not
taken away only because a charge-sheet has been filed under Section 173(2) and
a further investigation is permissible even if cognizance has been taken by the
Although, the decision in Dinesh Dalmia's case (supra) was
rendered in the context of the applicability of Section 167(2) and the proviso
thereto, when a charge-sheet has not been filed, the interpretation of the
provisions of Section 173(8) in the said decision is relevant in the facts of
this case also.
What emerges from the above-mentioned decisions of this Court is
that once a charge-sheet is filed under Section 173(2) Cr.P.C. and either
charge is framed or the accused are discharged, the Magistrate may, on the
basis of a protest petition, take cognizance of the offence complained of or on
the application made by the investigating authorities permit further
investigation under Section 173(8). The Magistrate cannot suo moto direct a
further investigation under Section 173(8) Cr.P.C. or direct a re-
investigation into a case on account of the bar of Section 167(2) of the Code.
In the instant case, the investigating authorities did not apply
for further investigation and it was only upon the application filed by the de
facto complainant under Section 173(8), was a direction given by the learned
Magistrate to re-investigate the matter. As we have already indicated above,
such a course of action was beyond the jurisdictional competence of the
was the Magistrate wrong in directing a re-investigation on the application
made by the de facto complainant, but he also exceeded his jurisdiction in
entertaining the said application filed by the de facto complainant.
Since no application had been made by the investigating
authorities for conducting further investigation as permitted under Section
173(8) Cr.P.C., the other course of action open to the Magistrate as indicated
by the High Court was to take recourse to the provisions of Section 319 of the
Code at the stage of trial.
We, therefore, see no reason to interfere with the order of the
High Court since it will always be available to the Magistrate to take recourse
to the provisions of Section 319 if any material is disclosed during the
examination of the witnesses during the trial.
The Special Leave Petition is, accordingly, dismissed, but there
will be no order as to costs.