REETA NAG v.

STATE OF WEST BENGAL & ORS. (Slp (Crl.) No. 3062 of 2007)

AUGUST 13, 2009 [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

[2009] 13 SCR 276 The Order of the Court was delivered by

ORDER

ALTAMAS KABIR, J. 1. 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.

2. 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.  

Subsequently,  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.

3.  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  

4. 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.  

5. 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 of trial.

6. 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.

7. 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.  

Gupta 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.  

8. 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.  

Mr. Gupta 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.  

9.  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.  

the 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.

10. 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  

discovered.

11. 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.

12. 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.

13. 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.  

14. 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 manner.

15. 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 August, 2004.  

By virtue 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.

16. 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.  

Holding 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 482 Cr.P.C.

17.  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.  

It was 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 Magistrate.  

18.  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.

19. 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.  

20.  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 Magistrate.  

Not only 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.  

21. 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.  

22. 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.

23. The Special Leave Petition is, accordingly, dismissed, but  

there will be no order as to costs.