Summary
A closure report in a gang-rape FIR had been accepted by the Magistrate in 2015. Years later, on a State communication issued after NHRC directions, a Superintendent of Police directed further investigation without the Magistrate's leave. The Supreme Court held that only the Magistrate or a higher court can direct further investigation under Section 173(8) CrPC, and that police wanting it must apply to the court. It quashed both the State communication and the Superintendent's order.
Issues
- Whether, after a final report under Section 173(2) CrPC has been submitted, the police may carry out further investigation under Section 173(8) CrPC without the leave of the Magistrate or court concerned.
- Whether the communication of 06.06.2019 and the Superintendent of Police's order of 26.04.2021 directing further investigation were valid.
Provisions considered
- Section 173(8), Code of Criminal Procedure, 1973The section allows further investigation after a report under Section 173(2) has been forwarded. Following Vinay Tyagi, Vinubhai Haribhai Malviya and Peethambaran, the Court read into it a requirement of prior leave of the court, and held that the power to direct further investigation lies with the Magistrate or a higher court, not with the investigating agency. (¶¶ 3, 27, 28, 29, 30, 31, 32, 33)
- Section 173(2), Code of Criminal Procedure, 1973A final (closure) report under this sub-section had been submitted and accepted by the Magistrate before the further investigation was directed. (¶¶ 3, 6, 7)
- Section 193(3) and Section 193(9), Bharatiya Nagarik Suraksha Sanhita, 2023Referred to as the corresponding provisions of Section 173(2) and Section 173(8) CrPC in framing the question. (¶¶ 3, 27)
Held
- The investigating agency's power to investigate further is not in doubt. The question is which authority may order further investigation under Section 173(8) CrPC. (¶ 28)
- Section 173(8) does not expressly require it, but prior leave of the court must be read into the provision as a necessary implication, applying the doctrine of contemporanea expositio as explained in Vinay Tyagi and affirmed in Vinubhai Haribhai Malviya. (¶¶ 29, 30, 31)
- The power to direct further investigation rests solely with the Magistrate or the court concerned. If the police consider it necessary, they must apply to the Magistrate, who will apply judicial mind to the facts and the reasons given and decide whether to order it. The police cannot direct it themselves, and a Superintendent of Police cannot order it. (¶¶ 32, 33)
- Here the CBCID officer applied to the Magistrate for permission, but no order granting it was passed. The Superintendent of Police nevertheless directed the further investigation, in defiance of the procedure and in excess of jurisdiction. (¶¶ 34, 35, 36)
- The State relied on Dharam Pal, but that case concerned a de novo investigation transferred to the CBI by a constitutional court. It also recognised that the Magistrate has discretion to direct further investigation, so it did not support the State. (¶ 37)
Result
Appeal allowed. The High Court's judgment of 20.11.2023 is set aside, and the communication of 06.06.2019 and the order of 26.04.2021 directing further investigation are quashed. The complainant's pending criminal revision (Criminal Misc. Case No. 440 of 2017) and any other proceeding on FIR No. 70/2013 are to be decided on their own merits.