http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

PETITIONER: RAM LAL NARANG ETC. ETC.

       Vs.

RESPONDENT: STATE OF DELHI (ADMN.)

DATE OF JUDGMENT10/01/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) UNTWALIA, N.L.

CITATION:  1979 AIR 1791            1979 SCC  (2) 322

ACT:      Criminal Procedure  Code, 1973, Section 173-Whether the Police  have   powers  to  further  investigate,  after  the magistrate has  taken cognizance  of the  offence-Scope  and ambit of Section 173 Cr. P.C.

HEADNOTE:      A criminal  case, arising  out of  F.I.R.  72  of  1967 against one  Sri Bali  Ram Sharma  and two  others  for  the offence of  the theft  of two  sandstone  pillars  of  great antiquity, beauty  and value  from the Suraj Kund Temple, in village Amin,  Dist. Karnal,  ended in  the acquittal of the accused. During the pendency of this case, on an application made by him one Narinder Nath Malik (N. N. Malik) an alleged research scholar and a friend of H. L. Mehta, the then Chief Judicial Magistrate  was given  the  custody  of  these  two sandstone pillars which had been recovered from the accused. The pillars remained in the custody of N. N. Malik from 1-3- 1968 to 27-5-1968 and on the acquittal of the accused on 16- 7-1968, they  were handed  over to  the Lambardar of Village Amin. Later,  it came  to light that the pillars returned by Malik were  not the  original pillars  but fakes. Thereupon, F.I.R. RC  2-71-CIA/SPE/CBI was  registered at Delhi against Malik and H. L. Mehta under Section 120 B read with Sections 406 and  420 I.P.C.  After completing  the  investigation  a charge sheet  No. RC  2 of  1971 was filed on 30-12-1972, in the Court of Special Magistrate, Ambala against Malik and H. L. Mehra  for the  aforesaid offences  noted in  the  F.I.R. Though an  order  was  passed  on  17-5-1976  directing  the framing  of   charges,  no  charges  were  actually  framed. However, on  16-5-77, on  an application dated 17-4-77 filed by the  Public Prosecutor  under Section 494 of the Criminal Procedure Code,  1973, the  Special Magistrate permitted the withdrawal of  the case  and discharged  the accused. During the pendency  of the  case, the  two  genuine  pillars  were traced and  found in London in the ware house of Spink & Co. It was  suspected that  Manohar Lal Narang and Ramlal Narang had engaged  Balkishan Rawal  and Nathubai Rawal of Delhi to make three  sets of  fakes  and  had  exported  the  genuine pillars to  London. This  resulted  in  the  registering  of F.I.R. RC  4/76-CIU(A)/SPE by  the Superintendent of Police, CIV (Antiquities  SPE/CBI, New  Delhi) against  Manohar  Lal Narang and  others for  alleged offences under Section 120B,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

read with  Section 411  I.P.C. and  Section 25  (1)  of  the Antiquities and  Art Treasures  Act,  1972.  An  application under s.  306 Cr.P.C.  filed by  N. N.  Malik  on  26-6-1976 before the  Chief Metropolitan  Magistrate, New  Delhi  with reference to  this F.I.R.  RC 4/76, was accepted on 3-7-1976 and Malik  was granted  pardon, after confessional statement was recorded. On 19-7-1976 a charge sheet was filed (RC 4 of 1976) before  the same  Court for  offences  under  Sections 120B, I.P.C.  read with  Section 420, 411 and 406 I.P.C. and Section 25  of the  Antiquities and  Art Treasures Act 1972. The case  was transferred  to the  Court of Additional Chief Metropolitan Magistrate.  On 20-7-1976 the Magistrate issued process for  the appearance  of the  accused  including  the three Narang  brothers out  of whom  the appellant  in  Crl. Appeal 373  of 1978  was already  under detention under MISA and  COFEPOSA.  The  other  two  who  were  in  London  were extradited and brought 924 to India on 27-7-1977. An application filed by Ramlal Narang in March  1977 immediately after his release from detention, to  drop   the  proceedings   against  him,  to  cancel  the extradition  warrants   against  his  two  brothers  and  to discharge all the accused on the ground of illegality of the Delhi case in view of the fact that a case on the same facts was already  pending in  the Ambala Court failed. Thereafter two applications filed by the three Narang brothers on 21-6- 1977 in  the Delhi  High Court  under Section  482 Crl. P.C. once again  challenging  the  legality  of  the  proceedings arising out of charge sheet RC4 of 1974 were admitted on 22- 6-1977, but  dismissed on  10-1-1978. During the pendency of these two  appeals Malik  died sometime  during May 1977 and Mehra was made a co-accused in the Delhi case on 1-8-1977 in view of the withdrawal of the Ambala case on 16-5-1977.      Dismissing the appeals by special leave, the Court, ^      HELD: 1.  The police  have the statutory right and duty to ’register’  every information  relating to the commission of a  cognizable offence. The police also have the statutory right and  duty to investigate the facts and circmstances of the case  where the  commission of  a cognizable offence was suspected and  to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon  a police  report. These  statutory rights  and duties of  the police were not circumscribed by any power of superintendence or  interference in  the Magistrate; nor was any sanction  required from  a  Magistrate  to  empower  the police to investigate into a cognizable offence. [937 F-H]      (a) The  scheme of  the 1898 Code of Criminal Procedure was that  the  First  Information  Report  was  followed  by investigation, the  investigation led to the submission of a report to  the Magistrate, the Magistrate took cognizance of the offence on receipt of the police report and finally, the Magistrate taking  cognizance issued process to the accused. As such  ordinarily the  right and  duty of the police would end with  the submission  of a  report under  Section 173(1) Criminal Procedure  Code upon  receipt of which it was up to the Magistrate  to take  or not  to take  cognizance of  the offence. [937 E-F, 938 F]      (b) There was no provision in the 1898 Code prescribing the procedure  to be followed by the police, where after the submission  of   a  report  under  Section  173(1)  Criminal Procedure Code and after the Magistrate had taken cognizance of the  offence, fresh  facts came  to light  which required further  investigation.  Similarly,  there  was  no  express provision prohibiting  the police  from  launching  upon  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

investigation into the fresh facts coming to light after the submission of  the report  under Section 173(1) or after the Magistrate had  taken cognizance  of the  offence. Therefore further investigation was permissible and was 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  could also  be  cured  by  a further investigation,  if circumstances  permitted it. [938 F-H, 941 C-D]           King Emperor  v. Khwaja  Wazir  Ahmed,  71  Indian      Appeals, PC 203: followed.           Diwakar Singh  v. A.  Ramamurthy Naidu,  AIR  1919      Madras 751. In re. Palaniswami Goundan, AIR 1946 Madras      502; Mohd. Niwaj v. The Crown, 48 Crl. L.J. 744 Lahore;      Prosecuting Inspector v. Minaketan 925      Monato, AIR  1952 Orissa  350; Ramashankar  v. State of      U.P., AIR  1956 All.  525; In  re. State  of Kerala  v.      State Prosecutor,  79 Crl.  L.J. 1973  p. 1288 (Kerala)      D.B.; approved.           H. N.  Rishbud v.  State of  Delhi, [1955]  1  SCR      1150; Tara Singh v. State [1951] SCR 72; referred to.      2. (a)  Neither Section 173 nor section 190 lead to the conclusion  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 and discovery of fresh facts. Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report  submitted under Section 173 of the 1898 Code, the right  of the  police to  further  investigate  was  not exhausted and  the police could exercise such right as often as necessary when fresh information came to light. Where the police desired  to make  a further investigation, the police could express  their regard  and respect  for the  Court  by seeking its formal permission to make further investigation. [943 G-H, 944 A]      (b) When  it comes  to the  notice of the investigating agency that  a person already an accused of an offence has a good alibi  or where  the involvement of persons who are not already accused  comes to  the notice  of the  investigating agency, the  investigating  agency  cannot  keep  quiet  and refuse to  investigate the  fresh information.  It is  their duty to  investigate and  submit a  report to the Magistrate upon the  innocence or involvement of the persons concerned. In either  case, it is for the Magistrate to decide upon his future course  of action  depending upon  the stage at which the case  is before  him. If he has already taken cognizance of the  offence, but  has not  proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry  or trial.  If  the  case  of  which  he  has previously taken  cognizance has  already proceeded  to some extent,  he   may  take  fresh  cognizance  of  the  offence disclosed against  the newly  involved accused  and  proceed with the  case as  a separate case. What action a Magistrate is to  take in accordance with the provisions of the Code of Criminal Procedure  in such situations is a matter best left to the discretion of the Magistrate. A further investigation by the  police cannot  be considered  as trenching  upon the proceedings before the Court because whatever the police may do, the final discretion in regard to further action is with the Magistrate.  That the  final word is with the Magistrate is sufficient  safeguard against  any excessive use or abuse of the  power of  the police  to make further investigation.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

[942 F-H, 943 A-D]      Ram Gopal Neotia v. State of West Bengal, AIR 1969 Cal. 316 Hanuman  and Anr.  v. Raj. AIR 1951 Rajasthan 131; State v. Mehr Singh and Ors., ILR 1973 (3) P & H 561-[1974] 2 Cal. LJ 970; over-ruled.      (c) Where  the report  of the  second investigation  is submitted to  a Magistrate other than the Magistrate who has already taken  cognizance of the first case, it is up to the prosecuting  agency   or  the   accused  concerned  to  take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrate themselves may take action suo motu. [944 B] 926      In the  instant case;  the prosecution did not act with any oblique  motive or  out of  any malice  by submitting  a charge sheet  to the Delhi Court and by withdrawing the case in the  Ambala Court. In the charge sheet filed in the Delhi Court, it was expressly mentioned that a case had been filed in the  Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court  granted its  permission for the withdrawal of the case. [944 C-E]      3. Where  the conspiracy  discovered later  is found to cover a  much larger  canvas with  broader ramifications, it cannot be  equated with the earlier conspiracy which covered a smaller field of narrower dimentions. [936 B-C]      In the present case, (a) the conspiracies which are the subject matter  of the  two  cases  cannot  be  said  to  be identical though  the conspiracy which is the subject matter of the first case, may perhaps be said to have turned out to be part of the conspiracy which is the subject matter of the second  case.   When  investigation   commenced   in   First Information  Report   No.  RC4   of  1976,  apart  from  the circumstance that  the property  involved was  the same, the link between  the conspiracy  to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known. [936 C-D]      (b) A  comparison of  the two  First Information Report coupled with  the several  facts and circumstances show that the conspiracy  which was  the subject  matter of the second case could  not be  said to be identical with the conspiracy which  was  the  subject  matter  of  the  first  case.  The conspirators were  different. Malik  and  Mehra  alone  were stated to  be the  conspirators in the first case, while the three Narang  brothers were  alleged  to  be  the  principal conspirators in  the second  case. The  objects of  the  two conspiracies were different. The alleged object of the first conspiracy was  to obtain possession of the pillars from the Court by  cheating and  to misappropriate  them. The alleged object of  the second  conspiracy was  the disposal  of  the stolen property  by exporting  the pillars  to  London.  The offences alleged  in the  first case  were Section 120B read with Section  420  and  406  Indian  Penal  Code  while  the offences alleged  in the  second case were S. 120B read with S. 411  IPC and  Section  25  of  the  Antiquities  and  Art Treasures Act, 1972. [935 D-F]      (c) No  fault  could  be  found  with  the  police  for registering a  first information  Report against  the Narang brothers for  the offence of conspiracy to commit an offence under section  411 Indian  Penal Code.  In the course of the investigation into  this offence,  it  transpired  that  the Narang brothers were also parties to the original conspiracy to obtain  possession of  the  pillars  from  the  Court  by cheating Facts  came  to  light  which  indicated  that  the conspiracy which  was the subject matter of the case pending

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

in the Ambala Court was but part of a larger conspiracy. The fresh facts  which came  to light  resulted in the filing of the second charge sheet. [935 C-D]      (d) Neither  at the  time when  the  First  Information Report pertaining  to the  Ambala Case was registered nor at the time  when the  Charge sheet  was filed  in  the  Ambala Court, were  the Narang brothers known to be in the picture. The investigating  agency was  not also  aware of what Malik and Mehra  had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake  pillars to  the Court.  The First Information Report and  the charge-sheet  were concerned  primarily with the 927 offences  of  conspiracy  to  cheat  and  to  misappropriate committed  by   Malik  and   Mehra.  At   that  stage,   the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that Narang brothers were  also parties  to  the  conspiracy  to  obtain possession of the pillars from the Court. It was much later, that the pillars surfaced in London were discovered to be in the constructive  possession of  Narang brothers. Even then, the precise  connection between  Malik and  Mehra on the one side and  Narang brothers  on the  other was  not known. All that was  known was  that  the  pillars  which  were  stolen property within  the definition of the expression in Section 410 Indian  Penal Code were found to be in the possession of Narang brothers  in London.  On the discovery of the genuine pillars  in  the  possession  of  Narang  brothers,  without anything further  to connect  Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411  Indian Penal Code against Narang brothers. That was what was done. [934 F-H, 935 A-B] Observation:           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. [943 E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 373-374 of 1978.      Appeals by  Special Leave  from the Judgment and Orders dated 10-1-1978  and 14-9-1978  of the  Delhi High  Court in Criminal Misc.  (M) No.  323 and  322/77 and  Criminal Misc. Nos. 1083, 1149 of 1978 in Special Misc. (M) No. 322/77.      Ram Jethmalani  (In Crl.  A.373), A.  K. Sen  (In  Crl. A.374) and Harjinder Singh for the Appellants.      U. R. Lalit and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.-On the  intervening night  of 31st March 1967  and Ist  April 1967,  two sandstone  pillars  of great antiquity,  beauty and  value were  stolen from  Suraj Kund temple,  in Village  Amin (District  Karnal,  Haryana). They were  of the  Sunga period (2nd Century B.C.) and their present estimated  value in the International Art Treasures’ Market is  said to  be around five hundred thousand American

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

dollars. A  first information report (F.I.R. No. 72 of 1967) was registered by the Police of Butana, District Karnal. The pillars were  recovered on  2nd May  1967. On  completion of investigation a  charge-sheet was  filed on 3rd October 1967 in the  Court of the Ilaqa Magistrate at Karnal, against one Bali Ram Sharma and two others. 3-119 SCI/79 928 The case  ended in their acquittal on 16th July 1968. During the pendency  of the  case one  Narinder Nath  Malik (N.  N. Malik) filed  an application  before the Magistrate alleging that he  was a research scholar and requesting that he might be given  custody of the two pillars to enable him to make a detailed study.  At the  instance of  H. L.  Mehra, the then Chief Judicial  Magistrate, Karnal  and a  friend of  N.  N. Malik, the  learned Ilaqa Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond in a sum of  Rs. 20,000/-.  The order  was written by H. L. Mehra himself and  signed by  the Ilaqa  Magistrate.  The  pillars remained in  the custody  of N. N. Malik from Ist March 1968 to 27th  May 1968, when N. N. Malik purported to return them to the  Court of  the Ilaqa  Magistrate, Karnal.  After  the acquittal of  Bali Ram  Sharma and  others, the pillars were handed over to the Lambardar of village Amin. Later, it came to light  that the  pillars returned by N. N. Malik were not the original pillars but fakes. Thereupon, First Information Report  No.  RC.2/71-CIA/SPE/CBI  was  registered  at  Delhi against N. N. Malik and H. L. Mehra under Section 120-B read with  Sections   406  and   420  Indian  Penal  Code.  After completing the investigation the C.B.I. filed a charge-sheet No. R.C.  2 of  1971 in  the Court  of  Special  Magistrate, Ambala, against  N. N.  Malik and  H. L.  Mehra for  alleged offences under  Section 120-B read with Sections 406 and 420 Indian Penal  Code.  The  charge-sheet  was  filed  on  30th December, 1972.  On 17th  May,  1976,  the  learned  Special Magistrate, Ambala, passed an order directing the framing of charges against N. N. Malik and H. L. Mehra. But, no charges were actually  framed as the accused were not present in the Court. On  17th April,  1977, the Public Prosecutor filed an application under  Section 494  Criminal Procedure  Code for permission to withdraw the case against Malik and Mehra. The learned Special  Magistrate, Ambala, by his order dated 16th May  1977,   permitted  the   withdrawal  of  the  case  and discharged the accused.      Between May  1976 and  May 1977  several  other  things happened and  the Narang brothers, the appellants in the two appeals, made  their appearance  on the  scene.  It  may  be mentioned here,  that  of  the  three  Narang  brothers,  Om Prakash alias  Omi Narang  had been  living in  London since 1970, Manohar  Lal alias  Manu  Narang  had  been  similarly living in  London since  July 1974  and Ram Lal Narang alone had been  living in India. Ram Lal Narang was detained first under the  MISA from  September 1974  till he  was  released under orders  of  the  High  Court,  and  later,  under  the COFEPOSA from 1st July 1975 till after the revocation of the internal Emergency in March 1977. 929 The two  genuine pillars  which had  been removed from Suraj Kund temple were traced and found in London in the warehouse of Messrs  Spink &  Co. It  was  suspected  that  Manoharlal Narang and  Ramlal Narang  had engaged  Balkishan Rawal  and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the  genuine pillars to London. A First Information Report  (R.C.   4/76-CIU(A)/SPE)  was   registered  by   the Superintendent of  Police, CIU  (Antiquities,  SPE/CBI,  New Delhi) against  Manohar Lal  Narang and  others, for alleged

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

offences under  Section 120-B  Indian Penal  Code read  with Section 411  Indian Penal  Code and  Section  25(1)  of  the Antiquities and Art Treasures Act, 1972, On 26th June, 1976, N.  N.   Malik  made   and  application   before  the  Chief Metropolitan Magistrate,  Delhi,  in  case  R.C.  No.  4/76- CIU(A)/SPE, New Delhi, purporting to be under Section 306 of the Code  of Criminal Procedure, 1973, praying that he might be granted  pardon. The  application mentioned Sections 411, 406 and  420 Indian  Penal Code  read with Section 120-B and Section 25(1)  of the  Antiquities and  Art  Treasures  Act, 1972,  as   the  offences   involved.  The  application  was supported by  the  reply  filed  by  the  Superintendent  of Police, C.B.I.  On 3rd  July 1976,  the  Chief  Metropolitan Magistrate, Delhi, granted pardon to N. N. Malik. Before the grant of  pardon the  confessional statement  of N. N. Malik was got  recorded by  the  Metropolitan  Magistrate,  Delhi. Thereafter, on  19th July 1976, a charge-sheet (R.C. 4/1976) was filed  in the Court of Chief Judicial Magistrate, Delhi, for offences under Section 120-B Indian Penal Code read with Sections 420,  411 and  406 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972. The case was transferred  to   the  Court   of   the   Additional   Chief Metropolitan Magistrate.  On 20th  July 1976, the Additional Metropolitan Magistrate issued process for the appearance of the three  Narang  brothers.  The  learned  Magistrate  also issued warrants  for the  extradition of Omi Narang and Manu Narang who  were in  London.  Extradition  proceedings  were initiated in  Britain at  the instance  of the Government of India.  The  Metropolitan  Magistrate,  Bow  Street,  London ordered the  detention of Omi Narang and Manu Narang pending the issue  of warrants  by  the  Secretary  of  State  under Section 5  of the Fugitive Offenders Act. A petition for the issue of  Writ of Habeas Corpus Ad Subjiciendum was filed in the High  Court of  Justice, Queen’s Bench Division, London. The Divisional  Court directed the release of Omi Narang and Manu Narang.  The Government of India filed an appeal to the House of  Lords and  on 24th  March, 1977,  the  appeal  was allowed. Omi  Narang and Manu Narang were finally extradited and brought to India on 27th July, 1977. 930      Meanwhile internal  emergency was  lifted in  India  in March  1977   and  Ram   Lal  Narang  was  released.  Almost immediately  he  filed  a  petition  before  the  Additional Metropolitan Magistrate to drop the proceedings against him, to cancel  the extradition  warrants and  to  discharge  the accused. The contention was that the entire investigation in First Information Report No. R.C. 4/76 was illegal as a case on the  same facts  was already  pending before  the  Ambala Court and that the Delhi Court acted without jurisdiction in taking cognizance of the case pursuant to a report of police based  upon   such  illegal   investigation.   The   learned Magistrate  held  that  he  was  not  competent  to  sit  in judgment, as  it were,  over the  order of  his  predecessor taking cognizance  of the  case. He, however, found that the conspiracy which  was the  subject matter of the case before the Court at Ambala and the conspiracy which was the subject matter of  the case  before himself  were one  and the same, but, he  held that  the question  as to  which Court  should proceed with  the case,  was not for him to decide; it was a matter for  the High  Court  to  decide  under  Section  186 Criminal Procedure Code. The learned Magistrate also noticed an application  filed before  him, after  the conclusion  of arguments, informing  him that  the case  in  the  Court  at Ambala against  Malik and  Mehra had since been withdrawn on 16th May 1977.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

    On 21st  June 1977,  two applications were filed in the Delhi High  Court under Section 482 Criminal Procedure Code, one by  Ramlal Narang  and the other on behalf of Omi Narang and  Manu   Narang  who   were  still  in  England  awaiting extradition. The applicants sought quashing of the orders of the learned  Metropolitan Magistrate issuing process to them and warrants  for the  extradition of  Omi Narang  and  Manu Narang. It  was also  sought to  be declared that the entire investigation in  R.C. 4  of 1976 was illegal and the orders of the  Chief Metropolitan  Magistrate  and  the  Additional Metropolitan Magistrate  taking cognizance of R.C. 4 of 1976 were illegal.  The grant  of  pardon  to  N.  N.  Malik  was questioned. It  was also  prayed that the proceedings before the Metropolitan  Magistrate might be quashed. The petitions were admitted  by the  Delhi High  Court on 22nd June, 1977, but ultimately  dismissed on  10th January 1978, by a common judgment. Ramlal  Narang having  obtained special leave from this Court has filed Criminal Appeal No. 373 of 1978 and Omi and Manu  Narang have  preferred Criminal  Appeal No. 374 of 1978. We  may mention  here that  on  1st  August,  1977,  a supplemental charge-sheet  was filed making Mehra an accused in the  Delhi case, the case in the Ambala Court having been withdrawn on 16th May, 1977, as mentioned earlier. Malik, we may add, died sometime during August, 1977. 931 We are  given to understand that Mehra also was subsequently granted pardon.      Shri Harjinder Singh, learned Counsel for the appellant in Criminal  Appeal No.  373 of  1978 and  Shri  Ashok  Sen, learned Counsel  for the  appellants in  Criminal Appeal No. 374 of  1978 argued  that the  conspiracy and the overt acts which were  the subject  matter of the two First Information Reports  and  the  two  charge-sheets  were  the  same  and, therefore, there  was an  implied bar  to the  power of  the Police to investigate into First Information Report No. R.C. 4 of  1976 and  the power  of the  Court at  Delhi  to  take cognizance of  the case upon the report of such information. It was  submitted that  the mere circumstance that some more persons were  mentioned as involved or the mere circumstance that the  property was  said to  have been  recovered  later would not  affect the  legal position. It was submitted that gist of  the conspiracy  in both  the cases  was  to  obtain possession  of   the  pillars.  The  offence  of  conspiracy relating  to  the  obtaining  of  the  pillars  having  been investigated and  a charge-sheet  having been  filed in  the Ambala Court,  the Police had no authority in law to start a fresh investigation  under the  Criminal Procedure  Code  by registering another First Information Report and to submit a charge-sheet in  the Delhi  Court for the very same offence. That was  an unwarranted interference by the Police with the proceedings  pending   in  the   Court.  The  whole  of  the investigation subsequent  to the  filing of the charge-sheet in the Ambala Court was without jurisdiction and no material or  fact   gathered  during   the  course  of  such  illegal investigation could  be used  to found  further proceedings. The  Delhi   Court  was,   therefore,  in  error  in  taking cognizance of  offences which  had already been investigated and which  were the subject matter of proceedings in another Court. It  was also argued that the subsequent withdrawal of the case  from the Ambala Court did not and could not confer jurisdiction on  the Delhi  Court. The withdrawal itself was an abuse of the process of the Court.      Shri Lalit,  learned Counsel  for the respondents urged that the  conspiracy which  was the  subject matter  of  the charge-sheet filed  in the  Delhi Court  was not the same as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

the conspiracy  which was  the subject matter of the charge- sheet filed  in the Ambala Court. The circumstance that some of the conspirators were common and part of the case was the same did  not make  the two conspiracies identical with each other. There  was, therefore, no question of any bar against the Delhi  Court from  taking cognizance  of the  case based upon the  wider conspiracy  merely because  the Ambala Court had taken  cognizance of  the case  based upon  the narrower conspiracy. Shri  Lalit also  urged that the statutory right of the Police to investigate into cognizable 932 offences  was   not  fettered  and  did  not  end  with  the submission of a charge-sheet to the Court. He submitted that the  Police   had  the   right  and  indeed,  the  duty,  to investigate into fresh facts coming to light and to appraise the Court of the same.      The basic  submission on  behalf of  the appellants was that the  two conspiracies alleged in the two cases were but one. The  sequitur was  that the  investigation into and the taking  of  cognizance  of  the  second  case  were  without jurisdiction.      We  will   first  examine   the  question  whether  the conspiracy which  was investigated  by the  Police and which investigation led  to the  filing of the charge-sheet in the Ambala case  can be  said to  be the  same as the conspiracy which was  later investigated and which led to the filing of the charge-sheet in the Delhi Court. For this purpose, it is necessary to  compare the  First Information  Report and the charge-sheet in the two cases.      The First  Information Report  relating to  the case in the Ambala  Court was  registered against  "N. N.  Malik and others" for  alleged offences  under "Section  120-B  Indian Penal Code  read with  Section 420  and Section  406  Indian Penal Code."  It was stated therein that N. N. Malik applied to the  Court of  the Judicial  Magistrate 1st Class, Karnal and  obtained  possession  of  the  two  stone  pillars  and dishonestly substituted  two fake pillars in their place and returned them to the Court. The charge-sheet which was filed on 30th December, 1972 mentioned N. N. Malik and H. L. Mehra as the  two accused in the case and recited that N. N. Malik was introduced  by Mehra  to the  Magistrate as  an  eminent archaeologist and that he obtained possession of the pillars on the  pretext that  he wanted  to make  some research. The actual order  granting custody  of the  pillars to Malik was written by  Mehra but signed by the Magistrate R. K. Sen. It was further  recited that  sometime after  the pillars  were returned by  Malik to  the Court  it was discovered that the pillars so  returned were fakes and that N. N. Malik was not an archaeologist.  It was  finally said that Malik and Mehra had "thus dishonestly made misrepresentation of fact and got the delivery  of the  two statues  which  were  subsequently substituted by  them"  and  they  had  "thus  committed  the offence under  Section 120-B  read with  Section 420  Indian Penal Code  and Section  406  Indian  Penal  Code."  It  is, therefore, seen  from the  allegations in  the  charge-sheet filed in  the Ambala Court that the conspirators involved in the conspiracy  which  was  its  subject  matter  were  two, namely, Malik  and Mehra,  that the object of the conspiracy was to  dishonestly obtain  possession  of  the  pillars  by making  false   representation  to  the  Magistrate  and  to substitute the pillars by fakes after 933 obtaining possession  of the  same  and  that  the  offences committed were under Section 120-B read with Section 420 and 406 Indian Penal Code.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

    The First  Information Report  in the  Delhi  case  was registered on  13th May,  1976, and  the offences  mentioned were Section  120-B Indian  Penal Code read with Section 411 Indian Penal  Code and  Section 25(1) of the Antiquities and Art Treasures Act, 1972. The accused mentioned in the report were Manu  Narang and Ramlal Narang. After reciting that the pillars had been taken from the Court by N. N. Malik and had been substituted  by fake  pillars,  the  First  Information Report went  on to  recite that  the genuine  pillars, which were stolen  from Suraj  Kund temple as mentioned above were found to  be in  the possession  and control  of Manohar Lal alias Manu  Narang in  London. It  was further  recited that Manu Narang  was negotiating the sale of the pillars through some London brokers and the price expected to be fetched was approximately five  hundred American dollars. It was recited further that  Manu Narang  and his brother Ramlal Narang had commissioned two well known sculptors of Delhi to make three sets of fake pillars. The two brothers and others, acting in conspiracy, had  dishonestly received  and exported  the two stone  pillars.   The  charge-sheet   which   followed   the investigation was  filed on  19th July  1976  in  the  Delhi Court. The charge-sheet mentioned the three Narang brothers, Ramlal Narang,  Manoharlal Narang  and Om Parkash Narang, as the three  accused persons sent up for trial and H. L. Mehra as a  person not  sent up for trial as he was already facing trial before  the Special  Magistrate, Ambala.  The  charge- sheet recited,  among other  facts, that the Narang brothers had come  to know  in or  about the  month of  February 1978 about the  invaluable nature  of the  pillars and  devised a stratagem to  get the custody of the pillars. They discussed their stratagem  with  their  family  friend  N.  N.  Malik, informing him  that the pillars were worth a fortune. Ramlal Narang and  Malik met  Mehra and  it was  decided that Malik should file  an application  for temporary  custody  of  the pillars and  that Mehra  should wield his influence over the Magistrate to  help  N.  N.  Malik  to  get  such  temporary custody. That was done. Temporary custody of the pillars was obtained and  they were  removed to  Delhi in a truck at the instance of  the Narang  brothers  to  a  place  in  Defence Colony, New  Delhi. Replicas  of the  pillars were  made  by Balkrishan Rawal  and Natwarlal,  two eminent  sculptors  of Delhi under the supervision of Ramlal Narang and Omi Narang. Manu Narang  also used to visit Delhi and check the progress made. The  original pillars  were transported  to Bombay  by Manu Narang and smuggled out of the country. 934 Fake pillars were substituted and returned by N. N. Malik to the Court.  Later on, suspicion was created by the discovery of two fake pillars which were also attempted to be smuggled out of  the country. The two pillars returned by N. N. Malik were then  got examined  by experts  and were  found  to  be fakes. Malik  was presented  by the  Narang brothers  with a Fiat car,  a revolving  brass bed and a sum of Rs. 70,000/-. They also  paid for two pleasure trips made by Malik and his wife to  Bombay. It was recited in the charge-sheet that the facts disclosed  "the commission  of offences  under Section 406 (criminal  breach of  trust), Section 411 (receiving and retaining stolen  property), Section  420 (cheating)  Indian Penal Code  and Section  25(1) of  the Antiquities  and  Art Treasures Act,  1972, all  read with  Section  120-B  Indian Penal Code,  in pursuance  of criminal  conspiracy to  which Manoharlal Narang,  Ramlal Narang  and Om Prakash Narang, H. L. Mehra  and N.  N. Malik  (already  granted  pardon)  were parties." It  was further recited "Manoharlal Narang, Ramlal Narang  and  Omi  Narang  also  abetted  the  commission  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

offences under Section 420 and Section 406 Indian Penal Code by N.  N. Malik  approver  and  these  three  accused  were, therefore, liable  for prosecution  under  Section  406  and Section 420  Indian Penal  Code read with Section 109 Indian Penal Code  and they had also committed other offences under Section 411  Indian Penal Code." It was further mentioned in the charge-sheet  that Manoharlal Narang and Omi Narang were in London  and that  proceedings for  their extradition were under way. It was also mentioned that H. L. Mehra was facing trial  before   the  Special  Magistrate,  Ambala,  for  the offences committed  by him  and, therefore, he was nor being sent up for trial in this case.      It is  obvious that  neither at the time when the First Information  Report   pertaining  to  the  Ambala  case  was registered nor  at the  time when the charge-sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture.  The investigating agency was not also aware of what Malik  and Mehra  had done  with the pillars after they had obtained  possession of  the pillars  from the Court and substituted and  returned fake  pillars to  the  Court.  The First Information Report and the charge-sheet were concerned primarily with  the offences  of conspiracy  to cheat and to misappropriate committed  by Malik and Mehra. At that stage, the investigating  agency was not aware of any conspiracy to send the  pillars out  of the country. It was not known that the Narang  brothers were  also parties to the conspiracy to obtain possession of the pillars from the Court. It was much later  that   the  pillars   surfaced  in  London  and  were discovered to  be in  the constructive  possession of Narang brothers. Even  then, the  precise connection  between Malik and Mehra on the one side and 935 Narang brothers  on the  other was  not known.  All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were  found to  be in the possession of Narang brothers in London.  On the  discovery of  the genuine pillars in the possession of  Narang brothers,  without anything further to connect Narang brothers with Malik and Mehra, the police had no option  but to  register a  case under Section 411 Indian Penal Code  against Narang brothers. That was what was done. No fault  could, therefore,  be found  with the  police  for registering a  First Information  Report against  the Narang brothers for  the offence of conspiracy to commit an offence under Section  411 Indian  Penal Code.  In the course of the investigation into  this offence,  it  transpired  that  the Narang brothers were also parties to the original conspiracy to obtain  possession of  the  pillars  from  the  Court  by cheating. Facts  came to  light  which  indicated  that  the conspiracy, which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy. The fresh facts  which came  to light  resulted in the filing of the second charge-sheet. The several facts and circumstances mentioned by  us earlier  and a  comparison of the two First Information Reports  and the two charge-sheets show that the conspiracy which  was the  subject matter of the second case could not  be said to be identical with the conspiracy which was the  subject matter  of the first case. The conspirators were different.  Malik and Mehra alone were stated to be the conspirators in  the first  case,  while  the  three  Narang brothers were  alleged to  be the  principal conspirators in the second  case. The  objects of  the two conspiracies were different. The alleged object of the first conspiracy was to obtain possession  of the pillars from the Court by cheating and to misappropriate them. The alleged object of the second

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

conspiracy was  the  disposal  of  the  stolen  property  by exporting the pillars to London. The offences alleged in the first case  was Section  120-B read  with  Section  420  and Section 406 Indian Penal Code, while the offences alleged in the second  case were  Section 120-B  read with  Section 411 Indian Penal  Code and Section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act  had not  yet come into force on the date when the First Information Report was registered. It is also true that Omi  Narang and Manu Narang were not extradited for the offence under  the Antiquities  and Art  Treasures Act  and, therefore, they  could not  be tried  for  that  offence  in India. But  the question  whether any  of the accused may be tried  for  a  contravention  of  the  Antiquities  and  Art Treasures Act  or under  the corresponding  provision of the earlier Act is really irrelevant in deciding whether the two 936 conspiracies are one and the same. The trite argument that a Court takes  cognizance of  offences and  not offenders  was also advanced.  This argument  is again  of no  relevance in determining the  question whether the two conspiracies which were taken  cognizance of by the Ambala and the Delhi Courts were the  same in substance. The question is not whether the nature and  character of  the conspiracy  has changed by the mere inclusion  of a  few more conspirators as accused or by the  addition   of  one   more  among  the  objects  of  the conspiracy. The question is whether the two conspiracies are in substance  and  truth  the  same.  Where  the  conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy  which   covered  a  smaller  field  of  narrower dimensions. We  are clear,  in the  present case,  that  the conspiracies which  are the  subject matter of the two cases cannot be  said to  be identical though the conspiracy which is the  subject matter  of the  first case  may, perhaps, be said to  have turned  out to be part of the conspiracy which is the  subject matter  of the  second case. As we mentioned earlier, when  investigation commenced  in First Information Report No.  R.C. 4 of 1976, apart from the circumstance that the property  involved was  the same;  the link  between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.      The   further    connected   questions    arising   for consideration are,  what was  the  duty  of  the  police  on discovering that  the  conspiracy,  which  was  the  subject matter of the earlier case, was part of a larger conspiracy, whether   the   police   acted   without   jurisdiction   in investigating or  in continuing to investigate into the case and whether  the  Delhi  Court  acted  illegally  in  taking cognizance of the case ?      In order  to answer these questions, it is necessary to refer to  the relevant  provisions of the Criminal Procedure Code. Counsel  on both  sides argued  the questions  on  the basis that  the Old  Criminal Procedure  Code  governed  the situation. We  proceed on  that assumption  without deciding whether the trial in the Delhi Court will be governed by the old Code or the new one.      Under the  Criminal Procedure  Code, 1898,  whenever an officer in charge of the Police Station received information relating to  the commission  of a cognizable offence, he was required to  enter the  substance thereof  in a book kept by him, for  that purpose,  in the prescribed form (Section 154 Criminal Procdure Code). Section 156 Criminal Procedure Code invested the Police with the power to investigate into 937

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

cognizable offences  without the  order of a Court. If, from the information received or otherwise, the officer in charge of a Police Station suspected the commission of a cognizable offence, he  was required  to send forthwith a report of the same to  a Magistrate  empowered to  take cognizance of such offence upon  a police  report and than to proceed in person or depute  one of his subordinate officers to proceed to the spot, to investigate the facts and circumstances of the case and to  take measures  for the  discovery and  arrest of the offender (Section  157  Criminal  Procedure  Code).  He  was required to  complete the  investigation without unnecessary delay, and,  as soon  as it  was completed,  to forward to a Magistrate empowered  to take cognizance of the offence upon a police  report, a  report in  the prescribed form, setting forth  the   names  of   the  parties,  the  nature  of  the information and  the names of the persons who appeared to be acquainted with  the  circumstances  of  the  case  (Section 173(1) Criminal  Procedure Code).  He was  also required  to state whether  the accused  had been forwarded in custody or had been  released on  bail.  Upon  receipt  of  the  report submitted under  Section 173(1)  Criminal Procedure  Code by the officer  incharge of  the Police Station, the Magistrate empowered to  take cognizance  of an  offence upon  a police report might  take cognizance of the offence (Section 190(1) (b) Criminal Procedure Code). Thereafter, if, in the opinion of the  Magistrate taking  cognizance of  the offence, there was sufficient  ground for  proceeding, the  Magistrate  was required to  issue  the  necessary  process  to  secure  the attendance of  the accused  (Section 204  Criminal Procedure Code). The  scheme of  the Code  thus  was  that  the  First Information  Report   was  followed  by  investigation,  the investigation led  to the  submission of  a  report  to  the Magistrate, the Magistrate took cognizance of the offence on receipt of  the police  report and,  finally, the Magistrate taking cognizance issued process to the accused.      The police  thus had  the statutory  right and  duty to ’register’ every information relating to the commission of a cognizable offence.  The police also had the statutory right and duty  to investigate  the facts and circumstances of the case where  the  commission  of  a  cognizable  offence  was suspected and  to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon  a police  report. These  statutory rights  and duties of  the police were not circumscribed by any power of superintendence or  interference in  the Magistrate; nor was any sanction  required from  a  Magistrate  to  empower  the Police  to  investigate  into  a  cognizable  offence.  This position in law was well established. In King Emperor 938 v. Khwaja  Nazir Ahmed(1),  the Privy  Council  observed  as follows:           "Just as it is essential that every one accused of      a crime  should have free access to a Court of justice,      so that he may be duly acquitted if found not guilty of      the offence  with which  he is charged, so it is of the      utmost  importance   that  the   judiciary  should  not      interfere with  the police  in matters which are within      their province  and into  which the law imposes on them      the duty of inquiry. In India, as has been shown, there      is a  statutory right  on the  part of  the  police  to      investigate the  circumstances of an alleged cognizable      crime without requiring any authority from the judicial      authorities, and it would, as their Lordships think, be      an unfortunate  result if it should be held possible to      interfere with  those statutory rules by an exercise of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

    the inherent  jurisdiction of  the Court. The functions      of the  judiciary and the police are complementary, not      overlapping, and  the combination of individual liberty      with a  due observance  of law  and order is only to be      obtained by  leaving each to exercise its own function,      always, of  course, subject to the right of the Courts,      to intervene  in an  appropriate case  when moved under      Section 491  of the  Criminal Procedure  Code  to  give      directions in  the nature  of Habeas  Corpus. In such a      case as  the present,  however,  the  Court’s  function      begin when  a charge  is preferred  before it  and  not      until then.......  In the present case, the police have      under Sections  154 and  156 of  the Criminal Procedure      Code, a  statutory right  to investigate  a  cognizable      offence  without   requiring  the   sanction   of   the      Court.......... Ordinarily, the  right and duty of the police would end with the submission  of a  report under  Section 173(1)  Criminal Procedure Code  upon receipt  of which  it  was  up  to  the Magistrate to take or not to take cognizance of the offence. There was  no provision  in the  1898 Code  prescribing  the procedure to  be followed  by the  police, where,  after the submission  of   a  report  under  Section  173(1)  Criminal Procedure Code and after the Magistrate had taken cognizance of the  offence, fresh  facts came  to light  which required further investigation.  There was,  of  course,  no  express provision prohibiting  the police  from  launching  upon  an investigation into the fresh facts coming to light after the submission of  the report  under Section 173(1) or after the Magistrate had  taken cognizance of the offence. As we shall presently point out, it was generally, thought by many High 939 Courts, though  doubted by  a few,  that the police were not barred from further investigation by the circumstance that a report under Section 173(1) had already been submitted and a Magistrate had  already taken cognizance of the offence. The Law Commission  in its  41st report  recognized the position and recommended that the right of the police to make further investigation  should   be  statutorily  affirmed.  The  Law Commission said :           "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   fresh  material  must  of  course  be      furnished to the accused". Accordingly, in  the Criminal  Procedure Code,  1973, a  new provision, Section 173(8), was introduced and it says:           "Nothing  in  this  section  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 and,  where upon such investigation,      the officer  in charge  of the  police Station  obtains

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

    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)".      The right of the police to make repeated investigations under the  old Code  was recognised by the Madras High Court as early  as in 1919 in Divakar Singh v. A. Ramamurthi Naidu (1), where Phillips and Krishnan, JJ., observed as follows: 940           "Another contention  is put  forward that  when  a      report of  investigation has been sent in under Section      173, Criminal P.C., the police has no further powers of      investigation, but  this argument may be briefly met by      the remark  that the  number of  investigations into  a      crime is  not limited by law and that when one has been      completed another  may be  begun on further information      received".      In re.  Palaniswami Goundan(1)  the Madras  High  Court held that  notwithstanding the  filing of  a  final  charge- sheet, a  police officer  could still  investigate  and  lay further charge-sheets  if he  got information and that there was no finality either to the investigation or to the laying of charge-sheets.  In Md.  Niwaz v.  The Crown(2) a Bench of the  Lahore  High  Court  consisting  of  Din  Mohammad  and Cornelius JJ.,  cited with  approval  the  decision  of  the Division Bench  of the Madras High Court in Divakar Singh v. A.  Ramamurthi  Naidu(3)  already  referred  to  by  us.  In Prosecuting Inspector v. Minaketan Mahato(4), the High Court of Orissa  held that  the police  had the  right  to  reopen investigation even  after the submission of the charge-sheet under Section  173 Criminal  Procedure Code  if fresh  facts came to  light. In  Rama  Shanker  v.  State  of  U.P.(5)  a Division Bench  of Allahabad  High Court  took the view that the submission  of a  charge-sheet not being a judicial act, the submission of a fresh charge-sheet after submission of a report under  Section 173  Criminal Procedure  Code was  not illegal. In  re. State  of Kerala  v. State  Prosecutor(6) a Division Bench  of the Kerala High Court thought it was well settled law  that the  police had  the right  to reopen  the investigation even  after the  submission of  a charge-sheet under Section 173 Criminal Procedure Code and that there was no  bar   for  further   investigation  or   for  filing  of supplementary report.      In H.  N. Rishbud  v. The  State of Delhi(7),this Court contemplated the  possibility of  further investigation even after a  Court had  taken  cognizance  of  the  case.  While noticing  that   a   police   report   resulting   from   an investigation was provided in Section 190 Criminal Procedure Code as  the material  on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police  report was  the foundation of the jurisdiction of the Court to take cognizance. 941 It was  held that where cognizance of the case had, in fact, 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

    investigation is  to be  completely ignored  by a Court      during trial.  When the  breach  of  such  a  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.      In Tara  Singh v. State(1) the police first submitted a report styled  as "an  incomplete challan",  which, however, contained all  the particulars prescribed by Section 173(1). Later, two  supplemental challans  were submitted containing the names  of certain  formal witnesses.  The Magistrate had taken cognizance of the case when the incomplete challan was submitted. It  was  urged  that  the  Magistrate  had  taken cognizance of  the case  illegally  and  the  statements  of witneses examined  before  submission  of  the  supplemental challans should be excluded from the record. This Court held that the so called incomplete challan was in fact a complete report of  the kind contemplated by Section 173(1) (a), and, therefore, the  Magistrate had  properly taken cognizance of the case.  The Court  declined to express any opinion on the question whether  the police  could  be  permitted  to  send incomplete reports  under Section  173(1) Criminal Procedure Code. This case while neither approving nor disapproving the practice of  submitting incomplete  challans  in  the  first instance, certainly notices the existence of such practice.      Some High Courts took the view that with the submission of a  charge-sheet under Section 173 the power of the police to  investigate   came  to   an  end  and  the  Magistrate’s cognizance of the offence started. 942 It was  said that  any further  investigation by  the police would trench upon the magisterial cognizance. Vide-Ram Gopal Neotia v.  State of  West Bengal(1).  In Hanuman  & Anr.  v. Raj.(2) it  was held  that when  a case was pending before a Magistrate,  the   action  of   the   police   in   resuming investigation and  putting up a new challan against a person not originally  an  accused  as  a  result  of  the  further investigation was  unauthorised and  unlawful. In  State  v. Mehar Singh  & Ors.(3),  a Full  Bench of  the High Court of Punjab and  Haryana held  that  the  police  became  functus officio once  the Court took cognizance of an offence on the filing of  a  charge-sheet  by  the  police  and  thereafter further investigation by the police was not permissible. The police, it was said, could not ’tinker’ with the proceedings pending in  the Court.  It was,  however, observed  that  it would be  open to the Magistrate to ’suspend cognizance’ and direct the  police to  make further  investigation into  the case and  submit a  report. The  High Court  of  Punjab  and Haryana  acknowledged  the  existence  of  the  practice  of submitting supplemental  charge-sheets, but  was of the view that such  practice was  not sanctioned  by the  Code. Faced with the impracticality of banning all further investigation once cognizance  of an  offence was  taken by the Court, the High Court  tried to  find a  solution  to  the  problem  by suggesting  the   procedure  of  the  Magistrate  suspending cognizance and ordering further investigation. The procedure of ’suspending  cognizance’ suggested  by the  High Court of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

Punjab and  Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.      Anyone acquainted  with the  day today  working of  the criminal courts  will be alive to the practical necessity of the  police   possessing   the   power   to   make   further investigation and submit a supplemental report. It is in the interests of  both the  prosecution and the defence that the police should  have such  power. It  is easy  to visualise a case where  fresh material  may come  to light  which  would implicate persons  not previously accused or absolve persons already  accused.  When  it  comes  to  the  notice  of  the investigating agency  that a  person already  accused of  an offence has  a good alibi, is it not the duty of that agency to investigate  the genuineness  of the  plea of  alibi  and submit  a   report  to   the  Magistrate  ?  After  all  the investigating agency  has greater  resources at  its command than a  private individual. Similarly, where the involvement of persons  who are  not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet  and refuse to investigate the fresh information. It is their duty 943 to investigate  and submit  a report  to the Magistrate upon the involvement  of the other persons. In either case, it is for the  Magistrate to  decide upon  his  future  course  of action depending  upon the stage at which the case is before him. If  he has already taken cognizance of the offence, but has not  proceeded with  the enquiry or trial, he may direct the issue  of process  to persons  freshly discovered  to be involved and  deal with all the accused, in a single enquiry or trial.  If the  case of  which he  has  previously  taken cognizance has already proceeded to some extent, he may take fresh cognizance  of the offence disclosed against the newly involved accused  and proceed  with the  case as  a separate case. What action a Magistrate is to take in accordance with the provisions  of the  Code of  Criminal Procedure  in such situations is  a matter  best left  to the discretion of the Magistrate. The  criticism that  a further  investigation by the police  would trench  upon the  proceedings  before  the Court is  really not of very great substance, since whatever the police may do, the final discretion in regard to further action is  with the  Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or  abuse of  the power  of the  police to  make further investigation. We  should not, however, be understood to say that the  police should  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.      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

preponderance    of     authority,    permitted     repeated investigations on  discovery of  fresh facts.  In our  view, notwithstanding that  a Magistrate  had taken  cognizance of the offence upon a police report submitted under Section 173 of the  1898 Code,  the  right  of  the  police  to  further investigate was  not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desi 944 ed to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.      As in  the present  case, occasions  may arise  when  a second investigation  started independently of the first may disclose a wide range of offences including those covered by the first  investigation. Where  the report  of  the  second investigation is  submitted to  a Magistrate  other than the Magistrate who  has already  taken cognizance  of the  first case, it  is up  to the  prosecuting agency  or the  accused concerned to take necessary action by moving the appropriate superior Court  to have  the two  cases tried  together. The Magistrates themselves  may take  action suo  motu.  In  the present case, there is no problem since the earlier case has since been  withdrawn by  the  prosecuting  agency.  It  was submitted to us that the submission of a charge-sheet to the Delhi Court  and the  withdrawal of  the case  in the Ambala Court amounted  to an  abuse of the process of the Court. We do not  think that  the prosecution  acted with  any oblique motive. In the charge-sheet filed in the Delhi Court, it was expressly mentioned  that Mehra  was already facing trial in the Ambala  Court and  he was, therefore, not being sent for trial. In  the application  made to  the Ambala  Court under Section  494  Criminal  Procedure  Code,  it  was  expressly mentioned that  a case  had been  filed in  the Delhi  Court against  Mehra   and  others  and,  therefore,  it  was  not necessary to  prosecute Mehra in the Ambala Court. The Court granted its  permission for  the  withdrawal  of  the  case. Though the investigating agency would have done better if it had informed  the Ambala  Magistrate and  sought his  formal permission for  the second  investigation, we  are satisfied that the investigating agency did not act out of any malice. We are  also satisfied  that there  has been  no illegality. Both the appeals are, therefore, dismissed. M.R.                                      Appeals dismissed. 945