REPORTABL E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.              OF 2009 (Arising out of S.L.P. (Crl.) No. 370 of 2009

Rama Chaudhary           .... Appellant(s)

Versus

State of Bihar                   .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.  

2) This  appeal  is  directed  against  the  order  of  the  High

Court of Judicature at Patna passed in Criminal Revision No.

437 of 2008 dated 10.12.2008 in and by which, after finding

that  there  is  no  illegality  or  irregularity  in  summoning  the

witnesses named in the supplementary charge-sheet, the High

Court  rejected  the  criminal  revision  filed  by  the  appellant

herein against the order dated 19.02.2008 passed in Sessions

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Trial No. 63 of 2004 whereby the learned Additional Sessions

Judge allowed the application of the prosecution to summon

the witnesses named in the supplementary charge-sheet.   

3) Brief facts of the case are as follows:

a) On the basis of fardebayan of Smt. Champa Devi – wife of

Awadh Yadav in Siwan Mofussil Police Station case No. 8

of 2001 was registered against the appellant and others

on 13.01.2001 under Section 364/34 of IPC.

b) On 08.08.2003, an offence under Section 27 of the Arms

Act  was  also  added.   The  police,  after  completion  of

investigation,  submitted  charge-sheet  on  29.08.2003

against  the  appellant  and  other  five  accused  under

Section 364/34 IPC and Section 27 of the Arms Act.  In

the said charge-sheet, the prosecution has conveyed that

they are going to examine altogether 18 witnesses.  

c) On  11.03.2004,  the  learned  Sessions  Judge  framed

charges  under  Sections  120-B,  364/34,  302/34  and

201/34 IPC read with Section 27 of the Arms Act.  The

prosecution had examined 21 witnesses.   

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d) When  the  trial  was  at  the  stage  of  closure,  on

08.09.2007, another charge-sheet was submitted by the

Police  in the court of Chief  Judicial  Magistrate,  Siwan,

against  the  charge-sheeted  accused  persons  adding

names of eight new witnesses in the charge-sheet.  In the

said report/charge-sheet, Police did not mention name of

any  accused.   The  learned  Chief  Judicial  Magistrate,

Siwan,  without  proceeding  under  Section  190  Cr.P.C.

forwarded  the  second  charge-sheet  to  the  court  of

Session/Special Court, Siwan, on 10.09.2007.  

e) On 12.01.2008, the prosecution has filed an application

in a pending Sessions Trial No. 63 of 2004 to summon

the  prosecution  witnesses  named  in  the  second

charge-sheet.  The appellant has filed a reply contending

that  the  application  filed  by  the  prosecution  is  not

maintainable  and  the  same  was  filed  with  mala  fide

intention.   By  order  dated  19.02.2008,  the  learned

Sessions  Judge,  Special  Court  allowed  the  said

application to summon the witnesses by observing that

the goal of criminal trial is to discover the truth and to

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achieve  that  goal  the  best  possible  evidence  is  to  be

brought  on  record.   The  learned  trial  Judge  issued

summons to the newly added witnesses and posted the

case to 23.02.2008.  Being aggrieved by the said order,

the  appellant  filed  Criminal  Revision  No.  437  of  2003

under Sections 397 and 401 of Cr.P.C. before the High

Court.   By  the  impugned  judgment  and  order  dated

10.12.2008, the High Court dismissed the said revision.

Aggrieved  by  the  same,  the  appellant  filed  the  above

appeal.   

4) We heard Mr. U.U. Lalit, learned senior counsel for the

appellant and Mrs. Vimla Sinha, learned counsel for the State

of Bihar.  

5) Mr. U.U. Lalit, learned senior counsel for the appellant,

after taking us through relevant materials as well as Section

173(2)  and  (8)  of  the  Code  of  Criminal  Procedure,  1973

contended  that  “further  investigation”  referred  to  in  sub-

clause  (8)  does  not  mean  “re-investigation”  against  the

accused persons who are already facing trial in the case.  He

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further pointed out that, in the present case, after submission

of  charge-sheet  under  Section 173(2)  in the  year 2003,  the

cognizance  of  the  offence  was  taken  by  the  Chief  Judicial

Magistrate and the case was remitted to the Court of Sessions.

Trial was commenced and altogether 21 witnesses have been

examined.  At a belated stage, the prosecution has filed the

present report for further investigation with a view to delay the

disposal of the trial.  According to him, further investigation as

contemplated  in  Section  173(8)  of  the  Cr.P.C.  cannot  be

allowed to be made into the very same offence in relation to

the  same  accused  if  the  trial  had  already  commenced.

According to him, at this juncture, allowing the application of

the  prosecution  for  summoning  eight  new  witnesses  would

prejudice the defence of the accused in the trial.     

6) On the other hand, Mrs. Vimla Sinha, learned counsel

for  the  State  of  Bihar,  submitted  that  sub-section  (8)  of

Section 173 Cr.P.C. recognizes right and confer statutory duty

on the Investigating Agency to conduct  further investigation

and submit supplementary charge-sheet on the basis of fresh

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materials  at  any  stage  and  no  prior  permission  from  the

Magistrate is required for further investigation.  She further

submitted that Section 231 of Cr.P.C. gives unfettered right to

the prosecution to produce any person as witness even though

such person  may  not  have  been  examined  by  the  Police  if

examination  of  such  person  is  necessary  for  unfolding  the

prosecution story.  

7) Sub-section (1) of Section 173 of Cr.P.C. makes it clear

that  every  investigation  shall  be  completed  without

unnecessary delay.  Sub-section (2) mandates that as soon as

the  investigation  is  completed,  the  officer  in  charge  of  the

police station shall forward to a Magistrate empowered to take

cognizance of the offence on a police report,  a report in the

form  prescribed  by  the  State  Government  mentioning  the

name  of  the  parties,  nature  of  information,  name  of  the

persons who appear to be acquainted with the circumstances

of the case and further particulars such as the name of the

offences that have been committed, arrest of the accused and

details  about  his  release  with  or  without  sureties.   Among

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other sub-sections, we are very much concerned about sub-

section (8) which reads as under:-

“(8) 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  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).”    

8) A mere reading of the above provision makes it clear that

irrespective of report under sub-section (2) forwarded to the

Magistrate, if the officer in-charge of the police station obtains

further evidence, it is incumbent on his part to forward the

same to the Magistrate  with a further report with regard to

such evidence in the form prescribed.  

9)   The  above  said  provision  also  makes  it  clear  that

further investigation is permissible, however, reinvestigation is

prohibited.  The  law  does  not  mandate  taking  of  prior

permission  from  the  Magistrate  for  further  investigation.

Carrying  out  a  further  investigation  even  after  filing  of  the

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charge-sheet is a statutory right of the police.  Reinvestigation

without prior permission is prohibited.   On the other hand,

further investigation is permissible.  

10) From a plain reading of  sub-section (2) and sub-section

(8) of Section 173, it is evident that even after submission of

police  report  under  sub-section  (2)  on  completion  of

investigation, the police has a right to “further” investigation

under  sub-section  (8)  of  Section  173  but  not  “fresh

investigation” or “reinvestigation”.  The meaning of “Further” is

additional;  more;  or  supplemental.   “Further”  investigation,

therefore, is the continuation of the earlier investigation and

not a fresh investigation or reinvestigation to be started  ab

initio wiping  out  the  earlier  investigation  altogether.   Sub-

section (8) of Section 173 clearly  envisages that on completion

of  further  investigation,  the  investigating  agency  has  to

forward to  the  Magistrate  a  “further”  report   and not  fresh

report regarding the “further” evidence obtained during such

investigation.

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11) As observed in Hasanbhai Valibhai Qureshi vs.  State

of  Gujarat  and  Others,  (2004)  5  SCC  347,  the  prime

consideration for further investigation is to arrive at the truth

and  do  real  and  substantial  justice.   The  hands  of

investigating  agency  for  further  investigation  should  not  be

tied down on the ground of mere delay.  In other words, the

mere fact that there may be further delay in concluding the

trial should not stand in the way of further investigation if that

would help the court in arriving at the truth and do real and

substantial as well as effective justice.       

12) If we consider the above legal principles, the order dated

19.02.2008  of  the  trial  Court  summoning  the  witnesses

named in the supplementary charge-sheet cannot be faulted

with.  It is true that after enquiry and investigation charges

were  framed on 11.03.2004  and thereafter  in the course  of

trial  about  21 witnesses  were  examined.   In  the meantime,

Police  submitted  supplementary  charge-sheet  with  certain

new  materials  and  on  the  basis  of  supplementary  charge-

sheet, the prosecution filed an application on 12.01.2008 in a

pending Sessions Trial No. 63 of 2004 to the trial Court for

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summoning the persons named in the charge-sheet for their

examination as prosecution witnesses.  On a careful perusal

of the application, the trial Court, by order dated 19.02.2008,

allowed the same and has summoned those witnesses named

in the supplementary charge-sheet.  

13) The law does not mandate taking prior permission from

the Magistrate for further investigation.  It is settled law that

carrying  out  further  investigation  even  after  filing  of  the

charge-sheet  is  a  statutory  right  of  the  Police.  [vide  K.

Chandrasekhar vs.  State of Kerala and Others, (1998) 5

SCC  223.]   The  material  collected  in  further  investigation

cannot be rejected only because it has been filed at the stage

of trial.  The facts and circumstances show that the trial Court

is fully justified to summon witnesses examined in the course

of further investigation.  It is also clear from Section 231 of the

Cr.P.C. that the prosecution is entitled to produce any person

as  witness  even  though  such  person  is  not  named  in  the

earlier  charge-sheet.   All  those  relevant  aspects  have  been

taken note of by the learned Magistrate while summoning the

witnesses  based  on supplementary  charge-sheet.   This  was

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correctly appreciated by the High Court by rightly rejecting the

revision.  We fully agree with the said conclusion.  

14) In the light of the above discussion, we do not find any

valid  ground for  interference,  consequently,  the  appeal  fails

and the same is dismissed.                    

.…….…….……………………..J.                                                   (S.B. SINHA)

    ...…………………………………J.

                              (P. SATHASIVAM)                  NEW DELHI; APRIL 02, 2009.

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