Further Investigation under Section 173(8) CrPC

The Evolving Jurisprudence of Further Investigation under Section 173(8) of the Code of Criminal Procedure, 1973

Introduction

The power of the police to conduct "further investigation" after the submission of a police report under Section 173(2) of the Code of Criminal Procedure, 1973 (CrPC) is codified in Section 173(8) CrPC. This provision plays a critical role in the criminal justice system, allowing for the collection of additional evidence that may come to light post the initial investigation. The interpretation and application of Section 173(8) CrPC have been the subject of extensive judicial scrutiny, leading to a nuanced and evolving jurisprudence. This article seeks to provide a comprehensive analysis of the law relating to further investigation in India, drawing heavily upon landmark judicial pronouncements and statutory provisions. It will explore the genesis of this power, the scope of authority vested in the investigating agencies and the courts, and the overarching principles guiding its exercise, particularly the imperative of ensuring a fair and thorough investigation to achieve the ends of justice.

Genesis and Legislative Intent of Section 173(8) CrPC

The Code of Criminal Procedure, 1898 (Old Code) did not contain an explicit provision analogous to Section 173(8) of the CrPC, 1973. The Supreme Court in *State Through Central Bureau Of Investigation v. Hemendhra Reddy Etc. Etc.*[10] noted that Section 173(8) was a new addition to the CrPC, 1973, incorporated following the recommendations of the Law Commission of India in its 41st Report. The Law Commission advocated for the statutory affirmation of the police's right to conduct further investigation.[10] Prior to this, while there was no express prohibition on further investigation after the submission of a police report, the procedure was not clearly defined. The Madras High Court, as early as 1919 in *Divakar Singh v. A. Ramamurthi Naidu*[20], recognized the police's authority to conduct multiple investigations into a single crime based on new information, a principle also acknowledged in *Ram Lal Narang v. State (Delhi Administration)*.[1]

The legislative intent behind Section 173(8) CrPC, as articulated in *Awadhesh Kumar v. The State Of Bihar & Anr.*, was to ensure that the submission of a charge-sheet does not terminate the investigating agency's power, allowing them to bring further and better material before the court.[13] This provision empowers the officer in charge of the police station, upon obtaining further evidence (oral or documentary), to forward a supplementary report to the Magistrate.[12], [13]

The Power of the Investigating Agency for Further Investigation

Section 173(8) CrPC unequivocally permits further investigation by the police after a report under sub-section (2) has been forwarded. As observed in *Rama Chaudhary v. State Of Bihar*, "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".[12] This power can be exercised *suo motu* by the investigating agency if fresh facts come to light.[6] The Supreme Court in *Ram Lal Narang* affirmed the police's authority to conduct further investigations based on emerging facts, even if it leads to distinct aspects of a conspiracy being uncovered.[1]

It is crucial to distinguish "further investigation" from "re-investigation" or "fresh/de novo investigation." "Further investigation," as clarified in *Vinay Tyagi v. Irshad Ali Alias Deepak And Others*, refers to the collection of supplementary evidence related to the same offence, building upon the initial investigation.[7] In contrast, "re-investigation" implies a new, independent inquiry, often ordered by higher courts under exceptional circumstances.[4], [7] Section 173(8) CrPC permits further investigation but prohibits re-investigation by the same agency at its own behest or by the Magistrate.[12] The power under sub-section (8) is of wide amplitude and is not restrictive; further investigation long after the submission of the final form has been held valid.[17], [24] However, some courts have suggested that further investigation under Section 173(8) should ideally be restricted to the same agency that conducted the initial investigation, as noted in *Lt. Col. Prasad Shrikant Purohit & Ors. v. National Investigation Agency & Ors.*[18]

The Role and Powers of the Magistrate

The Magistrate's power concerning further investigation has been a subject of considerable judicial deliberation, particularly regarding its exercise at different stages of the proceedings.

Pre-Cognizance Stage

Upon receiving a police report under Section 173(2) CrPC, the Magistrate has several options. As established in *Bhagwant Singh v. Commissioner Of Police And Another*[8] and reiterated in *Vinubhai Haribhai Malaviya And Others v. State Of Gujarat And Another*[5], the Magistrate may:

  1. Accept the report and drop the proceedings (if it is a closure report).
  2. Disagree with the report, take cognizance of the offence, and issue process.
  3. Direct further investigation to be made by the police, typically under Section 156(3) CrPC.
The Gauhati High Court in *Rana Sinha @ Sujit Sinha v. State Of Tripura And Ors.* observed that a Magistrate can direct further investigation pre-cognizance if a defect or deficiency in the investigation is noticed by the court itself or brought to its notice by the informant, de facto complainant, aggrieved person, or victim, provided the lacunae warrant such a direction.[9] The informant has a right to be heard before the Magistrate decides to drop proceedings based on a police report.[8]

Post-Cognizance Stage

The question of whether a Magistrate can order further investigation after taking cognizance of an offence has seen significant judicial evolution. In *Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel And Others*, the Supreme Court held that a Magistrate does not possess the authority to order further investigation *suo motu* or upon the request of the complainant/informant after cognizance has been taken and the accused has appeared, unless such further investigation is initiated by the investigating agency itself.[3]

However, this position was substantially clarified and, in effect, modified by a larger bench in *Vinubhai Haribhai Malaviya And Others v. State Of Gujarat And Another*.[5] The Court, emphasizing the need for a fair and proper investigation as a fundamental facet of a fair trial under Article 21 of the Constitution, held that a Magistrate has the power to order further investigation under Section 156(3) read with Section 173(8) CrPC even after cognizance is taken, charges are framed, and up until the commencement of trial. The Court reasoned:

"Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8)."[15] (citing Vinubhai Haribhai Malaviya)

This interpretation empowers the Magistrate to ensure that the investigation is complete and just. The Court in *Vinubhai Haribhai Malaviya* also noted that such an order could be passed on objections raised by the complainant against a police report.[5] The Kerala High Court in *J. Prabhavathiamma v. The State Of Kerala* also opined that there is no provision prohibiting the Magistrate from ordering further investigation if circumstances warrant to prevent a miscarriage of justice, and Section 173(8) enables the court to order the same or a superior agency to conduct it.[11] However, it remains settled that a Magistrate cannot order a "re-investigation."[7]

On Application by Parties

While the power to order further investigation vests with the Magistrate, it can be triggered by various stakeholders. The informant's right to file a protest petition against a closure report is well-established,[8] and upon such a petition, the Magistrate can order further investigation.[5] The Madras High Court in *A. Mohan & Ors. v. State & Anr.* held that a de facto complainant is entitled to seek further investigation under Section 173(8) CrPC.[19] Even an accused can apply for further investigation, as was the case in *Vinubhai Haribhai Malaviya*, though such applications are scrutinized carefully to prevent abuse of process.[5], [23]

Powers of Higher Courts

Higher courts, particularly the High Court, possess broader powers to ensure justice. Under its inherent powers enshrined in Section 482 CrPC, a High Court can direct further investigation or even "re-investigation" by an independent agency like the Central Bureau of Investigation (CBI), especially if the initial investigation is found to be tainted, biased, or unfair.[4] In *State Of Punjab v. Central Bureau Of Investigation And Others*, the Supreme Court upheld the High Court's authority to transfer an investigation to the CBI even after a charge-sheet had been filed, where local police investigation was compromised.[4] Similarly, in *XXXXXX v. State Of Karnataka*, it was observed that if an investigation is unfair and deliberately incomplete, the court may direct further investigation, and in exceptional circumstances, even de novo investigation to prevent a miscarriage of criminal justice.[16] (citing *Manu Sharma v. State (NCT of Delhi)*[23]).

Key Judicial Principles and Interpretations

The jurisprudence surrounding Section 173(8) CrPC is anchored in several core principles:

  • Fair Investigation and Fair Trial: A fair and proper investigation is paramount and is intrinsically linked to the right to a fair trial under Article 21 of the Constitution of India.[5], [15], [16] As stated in *Vinay Tyagi*, "it is not only the responsibility of the investigating agency but as well as of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law."[7] (citing *Manu Sharma*).
  • Pursuit of Truth: The ultimate object of a criminal trial is to arrive at the truth. The mere fact that further investigation may cause delay should not impede it if it helps the court in achieving real and substantial justice.[6], [18]
  • Statutory Affirmation and Scope: Section 173(8) CrPC statutorily affirms the right of the police to make further investigation.[10] This power is of the "widest amplitude" and should not be unduly restricted.[17], [24]
  • Magisterial Oversight: The Magistrate plays a crucial supervisory role. The Supreme Court in *Sakiri Vasu v. State Of Uttar Pradesh And Others* emphasized the Magistrate's extensive powers under Section 156(3) CrPC to oversee and direct investigations, including the power to order registration of an FIR and monitor the investigation.[2] These powers are seen as complementary to Section 173(8) CrPC in ensuring a thorough inquiry.[5]
  • Police Opinion Not Binding: The opinion formed by the police is not binding on the courts, which must apply their judicial mind.[14] (citing *King Emperor v. Khwaja Nazir Ahmad*[21]).

Challenges and Considerations

While the power of further investigation is vital, its exercise is not without challenges. There is a need to balance the quest for truth with the imperative of concluding trials expeditiously. The potential for misuse of this provision to delay proceedings or harass individuals must be guarded against. The determination of what constitutes "commencement of trial" – the cut-off point for a Magistrate to order further investigation as per *Vinubhai Haribhai Malaviya*[5] – requires consistent application. The distinction between further investigation, which is permissible, and re-investigation, which has limitations, must always be maintained by the Magistrates, reserving orders for re-investigation to the higher judiciary in exceptional cases.

Conclusion

The law relating to further investigation under Section 173(8) CrPC has been significantly shaped by judicial pronouncements, evolving from a nascent concept to a well-defined power. The Supreme Court, particularly in *Vinubhai Haribhai Malaviya*, has clarified and expanded the Magistrate's role in ensuring a complete and fair investigation, even post-cognizance, until the trial commences. This underscores the judiciary's commitment to the principles of natural justice and the fundamental right to a fair trial. While the investigating agency retains the primary authority to conduct further investigation upon the discovery of new evidence, the courts serve as crucial checks to prevent investigative deficiencies or biases from leading to a miscarriage of justice. The harmonious interplay between the investigative autonomy of the police and judicial oversight ensures that the pursuit of truth remains the cornerstone of the criminal justice system in India.

References