The power of the police to conduct further investigation after filing a police report has long occupied an uneasy space between investigative autonomy and judicial control. Section 173(8) of the Code of Criminal Procedure, 1973 (CrPC) expressly preserved the power of further investigation even after a report under Section 173(2) had been submitted. Yet the provision did not require prior permission of the Magistrate. Over time, the Supreme Court supplied that safeguard judicially. Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), however, changes the text. Its main provision substantially retains Section 173(8), but its newly added proviso states that further investigation “during the trial” may be conducted with the permission of the Court trying the case and must ordinarily be completed within ninety days.
That apparently modest addition raises a question: has Parliament merely codified the judicially developed law under Section 173(8), or has it deliberately confined the statutory requirement of permission to the trial stage?
Position Under CrPC
Under Section 173(8) CrPC, further investigation was a statutory power of the police. In Rama Chaudhary v. State of Bihar, (2009), the Supreme Court recognised that the text did not expressly make prior permission a condition for exercising that power. The position, however, shifted decisively in Vinay Tyagi v. Irshad Ali, (2013). Although acknowledging the absence of an express requirement, the Court held that prior leave of the Court had to be read into Section 173(8) as a necessary implication. That proposition was subsequently approved in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019).
Thus, by the time the BNSS was enacted, the statutory text and the judicial rule were not identical. Section 173(8) itself did not demand permission, but Supreme Court precedent effectively did.
Changed Text Under the BNSS
Section 193(9) BNSS retains the basic power of further investigation after forwarding the police report to the Magistrate. The significant departure lies in the proviso: where further investigation is conducted “during the trial”, permission of the Court trying the case is required; the investigation must ordinarily be completed within ninety days, with extension again dependent upon the Court's permission.
The placement and wording of the proviso are important. Parliament did not say that every further investigation after filing of the police report requires permission. Nor did it attach permission merely to post-cognizance investigation. It selected a particular procedural stage: “during the trial”. On an ordinary textual reading, therefore, the main part governs further investigation generally, while the proviso superimposes judicial and temporal control once the matter has entered trial.
The legislative history does not provide a definitive answer. The proviso was already present in Clause 193(9) of the original BNSS Bill placed before the Parliamentary Standing Committee. Yet the 247th Report of the Parliamentary Standing Committee does not offer a specific majority recommendation explaining why permission was confined to the trial stage. This makes it difficult to attribute a precise purpose to the provision beyond what its language itself reveals.
The dissent note of Rajya Sabha MP N. R. Elango is nevertheless notable. He specifically observed that sub-section (9) vested the investigating officer with the power of further investigation and stated that the matter needed discussion and relevant modification. His dissent therefore shows that the breadth of the further-investigation power was noticed during parliamentary scrutiny, even though it neither proposes a precise alternative to the proviso nor explains the choice of the expression “during the trial”. The legislative record, in short, identifies the concern but does not resolve the interpretive question.
High Courts: Giving Meaning to “During the Trial”
The Andhra Pradesh High Court confronted the distinction directly in State of Andhra Pradesh v. Balaji Govindappa (2025). Comparing Section 193(9) with Section 173(8), the Court noted that the BNSS had added a proviso requiring permission for further investigation during trial, but that there was “no mention” of seeking such permission at the pre-trial stage. It further recorded that, in the case before it, trial had admittedly not commenced.
This is significant because it refuses to treat the proviso as a general permission clause operating immediately upon filing of the charge-sheet. Instead, the language of Section 193(9) is treated as creating a distinction between further investigation generally and further investigation once trial has begun.
The Delhi High Court adopted a similar textual approach in Anuradha @ Chiku v. State (NCT of Delhi), 2026. Justice Sanjeev Narula described the change as a “calibrated control”: Section 193(9) carries forward the principle permitting further investigation, while the newly added proviso requires the permission of the Court when such investigation takes place “during the trial”. On the facts before it, the Court held that the investigation had not reached the stage at which the proviso was triggered.
Supreme Court: Reaffirming Section 173(8), Without Deciding Section 193(9)
The position has become more complicated after Palaniswamy Veeraraja v. State of Karnataka, (2026). The case itself arose under Section 173(8) CrPC. The Court reiterated Vinay Tyagi and the subsequent line of authority holding that permission for further investigation had evolved into a legal requirement. Significantly, however, while comparing the old and new provisions, the Court expressly observed that neither Section 173(8) CrPC nor Section 193(9) BNSS generally mandates permission, but that the proviso to Section 193(9) expressly requires permission once trial has begun.
That observation strongly supports a stage-specific reading of the new provision. Yet the Court proceeded to reaffirm the broader judge-made rule under Section 173(8), ultimately holding that the further investigation before it could not have proceeded without the Magistrate's permission.
The crucial qualification is that Palaniswamy Veeraraja concerned an investigation governed by the CrPC. The Court was therefore not required to decide whether the judicially created requirement under Section 173(8) survives unchanged for pre-trial further investigation under Section 193(9) BNSS. Consequently, its observations expose, rather than conclusively resolve, the tension between the old doctrine and the new statutory text.
Can the Court Suo Motu Order Further Investigation?
A related question is whether the Court must wait for the investigating agency to seek further investigation, or may direct it on its own motion. For CrPC, Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) answered this clearly. The Supreme Court held that the Magistrate's supervisory power to order further investigation does not cease merely because cognizance has been taken, process has been issued, or the accused has appeared. It continues throughout the pre-trial stage until the trial commences. The Court expressly held that, where the circumstances so require, the Magistrate may exercise this power suo motu. It reasoned that there was no justification for allowing the police to retain the power of further investigation until commencement of trial while simultaneously extinguishing the Magistrate's supervisory jurisdiction midway through the pre-trial proceedings. The power was traced to Sections 156(1), 156(3), 2(h) and 173(8) CrPC and was regarded as necessary to ensure a fair and just investigation.
Has the Law Changed?
Section 193(9) BNSS has undoubtedly altered the statutory framework governing further investigation. What remains uncertain is the extent to which that textual change has displaced, modified, or preserved the judicial doctrines developed under Sections 173(8) and 156(3) CrPC.
On the first issue, i.e., whether the police require permission to conduct further investigation, two interpretations remain possible. The first is that the law developed in Vinay Tyagi and affirmed in Vinubhai continues unchanged. On this view, the principal innovation in Section 193(9) is the ninety-day discipline imposed once further investigation takes place during trial.
The competing interpretation gives greater significance to Parliament's choice of the words “during the trial”. The main part of Section 193(9) preserves the power of further investigation generally, while the proviso expressly requires permission only when that investigation takes place during trial. On this reading, pre-trial further investigation does not carry an express statutory requirement of prior permission, while judicial control becomes mandatory once trial commences.
The second issue concerns the Court's own power to direct further investigation. Under Vinubhai Haribhai Malaviya, the Magistrate could, in an appropriate case, order further investigation suo motu at any stage before commencement of trial. The Court treated this as part of the Magistrate's supervisory jurisdiction over investigation and held that the power did not disappear merely because cognizance had been taken or process issued. It expressly recognised that the power could be exercised suo motu, depending upon the facts of the case.
Nothing in Section 193(9) expressly removes that pre-trial supervisory power. The stronger view, therefore, is that Vinubhai continues to govern the Court's power to order further investigation before trial. The position becomes less clear once trial has commenced. The proviso expressly contemplates further investigation during trial with the permission of the Court trying the case, but it does not expressly state whether that Court may itself initiate such investigation suo motu. The text therefore clearly establishes judicial control at the trial stage, but the precise source and extent of a trial court's power to set further investigation in motion remain open to authoritative clarification.
Author is a faculty and mentor at LiveLaw Academy. Views are personal.