The Supreme Court reiterated that a Magistrate is not obliged to hear the accused before any direction for further investigation is made under Section 173 (8) of the Code of Criminal Procedure, 1973.

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.12.2018 passed by the High Court of Gujarat at Ahmedabad in Criminal Miscellaneous Application No. 1 of 2018 in Special Criminal Application No. 8704 of 2018, by which the High Court has dismissed the said application preferred by the appellant herein permitting him to be joined as respondent No. 4 in the said Special Criminal Application No. 8704 of 2018, which was filed by the private respondent herein seeking further investigation against other persons (other than the appellant who is one of the accused and is already charge-sheeted), the appellant preferred Criminal Appeal No. 353 of 2020 titled Satishkumar Nyalchand Shah Vs State of Gujarat & Ors., before the Apex Court.

The issue raised was as to whether the appellant, who is/was one of the co-accused against whom the charge-sheet is/was already filed and against whom the trial is/was in progress, is/was required to be heard and/or has/had any locus in the proceedings under Section 173 (8) of the Code of Criminal Procedure, 1973 further investigation qua one another accused namely Shri Bhaumik against whom no charge-sheet has/had been filed till date?
Upholding the High Court Judgment, the Bench comprising Justice Ashok Bhushan and MR Shah, referring to earlier decisions on this aspect, observed that there is nothing in Section 173 (8) Cr. P. C to suggest that the Court is obliged to hear the accused before any direction for further investigation is made.

It said:
Therefore, when the proposed accused against whom the further investigation is sought, namely Shri Bhaumik is not required to be heard at this stage, there is no question of hearing the appellant-one of the co-accused against whom the charge-sheet is already filed and the trial against whom is in progress and no relief of further investigation is sought against him.

Therefore, the High Court is absolutely justified in rejecting the application submitted by the appellant to implead him as a party respondent in the Special Criminal Application.

The Bench, in particular, referred to following observations made in [Sri Bhagwan Sawardha Sreepada Venkata Vishwandadha Maharaj Vs State of Andhra Pradesh & Ors., (1999) 5 SCC 740]:
In such a situation the power of the Court to direct the Police to conduct further investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation

While dismissing the Criminal Appeal, the Bench further observed:
We are of the opinion that as such no error has been committed by the High Court dismissing the application submitted by the appellant herein to implead him in the Special Criminal Application filed by the private respondent herein challenging the order passed by the Learned Chief Judicial Magistrate rejecting his application for further investigation under Section 173 (8) Cr. P. C with respect to one another accused namely Shri Bhaumik against whom no charge-sheet has been filed till date.

Therefore, it is not at all appreciable how the appellant against whom no relief is sought for further investigation has any locus and/or any say in the application for further investigation under Section 173 (8) Cr. P. C. How he can be said to be a necessary and a proper party. It is required to be noted that, as such, even the proposed accused Shri Bhaumik shall not have any say at this stage in an application under Section 173 (8) Cr. P. C for further investigation.

Section 173 in The Code of Criminal Procedure, 1973 reads as under:

173. Report of Police Officer on completion of Investigation:

1. Every investigation under this Chapter shall be completed without unnecessary delay.
   [(1A) The investigation in relation to rape of a child may be completed, within three months from the date on which the information was recorded by the officer in charge of the police station.]
    
2. (i) As soon as it 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, stating -
   (a) the names of the parties;
   (b) the nature of the information;
   (c) the names of the persons who appear to be acquainted with the circumstances of the case;
   (d) whether any offence appears to have been committed and, if so, by whom;
   (e) whether the accused has been arrested;
   (f) whether he has been released on his bond and, if so, weather with or without sureties;
   (g) whether he has been forwarded in custody under section 170.
   [(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376 A, 376 B, 376 C {376 D or section 376 E of the Indian Penal Code (45 of 1860}].
   (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
    
3. Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
    
4. Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.
    
5. When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along-with the report -
   (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
   (b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
    
6. If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
    
7. Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).
    
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).

Object and reason for incorporating Section 173 (8) Criminal Procedure Code, 1973 is reflected in 41st Report of the Law Commission. Relevant portion is as follows:
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 reopen the investigation.

This view places a hindrance in the way of the investigating agency, which can be 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.

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 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.

The police has powers under Section 178 (8) Cr. P. C to continue with further investigation if anything new in connection with the commission of crime surfaces. It is settled that powers exercisable under Section 173 (8) Cr. P. C by the police as well as the Trial Court are available provided the need for exercise of such power arises on finding any fresh evidence or about culpability of any other accused.

If the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free to order further investigation to avoid failure of justice.

The power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a charge-sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. [Dinesh Dalmia Vs CBI, 2008 Cri. L. J 337 (SC)].

There is nothing in Section 173 (8) Cr, P. C to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. [Sri Bhagwan Sawardha Sreepada Venkata Vishwandadha Maharaj Vs State of Andhra Pradesh & Ors., 1999 (6) Supreme 47]

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu