IMPORTANT POINT
The judgment established the wide powers of the Magistrate to order further investigation at all stages of the criminal proceedings until the trial commences, as provided under Section 156(3) and Section 173(8) of the CrPC.

JUDGMENT :

1. Heard Sri Bal Ram Gupta, learned counsel for the petitioners and Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-respondent.

2. The present petition has been filed seeking to assail the order dated 12.07.2023 passed by the Metropolitan Magistrate, Court No.9, Kanpur Nagar in Misc. Case No.1124 of 2023 (Syed Tariq Umar Vs. Rakesh Kumar Awasthi and others), whereby the final report submitted by the police has been rejected and a direction has been issued for further investigation.

3. The principal ground urged to assail the aforesaid order is that no protest petition was filed by the informant before the concerned Magistrate and despite the same, the order impugned has been passed.

4. It is further sought to be contended that the power to order investigation by the police under Section 156(3) of the Code of Criminal Procedure, 1973[CrPC] CrPC can only be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a), and such a direction could not have been issued in exercise of powers under Section 173(8), wherein the investigating officer alone has been authorized to conduct further investigation.

5. Learned AGA has controverted the submissions made by the counsel for the petitioners by pointing out that the miscellaneous application filed by the informant, upon which the order impugned has been passed by the Magistrate, was captioned as ‘narazgi yachika’, under Section 173(8) CrPC, wherein a prayer had been made to reject the final report and direct further investigation.

6. It is submitted that the aforesaid application is clearly in the nature of a ‘protest petition’, filed under Section 173(8) CrPC, wherein the Magistrate is fully empowered to direct further investigation, and the order impugned cannot be faulted with on this ground.

7. Rival contentions fall for consideration.

8. The statutory scheme under the CrPC contains a clear demarcation between the powers of the police to investigate and the jurisdiction of criminal courts in inquiries, followed by the procedure once the trial begins.

9. The expression ‘investigation’ has been defined under Section 2(h) CrPC, as including all the proceedings under the Code for the purpose of collecting evidence by a police officer, and otherwise by any person authorized by a Magistrate in this behalf, and also pertains to a stage before the trial commences. The investigation which may ultimately lead to a police report is an investigation conducted by the police, and may be ordered in an inquiry made by a Magistrate himself in a ‘complaint case’.

10. The Code of Criminal Procedure, 1898, did not contain a provision under which the police were empowered to conduct a further investigation in respect of an offence after a police report under Section 173 had been forwarded to the Magistrate.

11. Taking notice of the difficulties arising as a result thereof, the Law Commission in its 41st report made a recommendation with regard to reopening of investigation, in the following terms:-

"14.23. Reopening of investigation.-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 re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very 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."

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