Further Investigation and S.156(3) CR.P.C Prakash v/s State of Kerala does not appear to be fully correct

Further Investigation and S.156(3) CR.P.C Prakash v/s State of Kerala does not appear to be fully correct

Towards the fag end of the trial faced by the husband of the deceased for an offence punishable under Section 498-A of the Indian Penal Code, the learned Magistrate ordered further investigation by invoking the power under Section 173(8) of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short).  The Magistrate directed that as against the ASP who originally conducted the investigation, the further investigation shall be entrusted by the District Police Chief to any competent officer under his control and that the investigation shall be conducted by the entrusted officer under the supervision of the District Police Chief.  The accused challenged the above order before the Hon’ble High Court.  As per the verdict in question the High Court allowed the petition filed under Section 482 Cr.P.C. holding inter alia that –



  • the power of the Magistrate to order further investigation flows not from Section 173(8) Cr.P.C. but from Section 156(3) Cr.P.C. as per which the exercise of power ought to have been made at the pre-cognizance stage, and



  • it was impermissible for the Magistrate to issue directions for further investigation to the District Police Chief as was done in the case.


2. While the second proposition of law laid down in the above  verdict that the Magistrate while directing further investigation under Section 173(8) Cr.P.C.  cannot specify that such further investigation should be conducted by a particular superior police officer or a police officer of a particular rank, is unassailable, I have some reservation about the other declaration of the law made in the said verdict. Indeed, it is not within the province of the Magistrate while exercising power under Section 173(8) Cr.P.C to specify that a police officer other than the officer in charge of the police station (who is the SHO) or any particular police officer by name or any police officer of or above a particular rank should conduct such further investigation. Besides Central Bureau of Investigation v/s State of Rajasthan AIR 2001 SC 668 and Central Bureau of Investigation v/s State of Gujarat (2007) 6 SCC 156 relied on by the learned Judge, we have also the authority in Hemanth Dhasmana v/s CBI (2001)7 SCC 536 = AIR 2001 SC 2721 taking the same view.

3. The learned Judge has, however, observed in the above verdict that the power of the Magistrate to order further investigation flows from Section 156(3) Cr.P.C and not from Section 173(8) Cr.P.C. It is here that I beg to disagree. Placing reliance on the 3 Judge Bench decision of the Apex Court in Bhagwant Singh v/s Commissioner of Police and  Another – (1985) 2 SCC 537 the learned Judge had given the 3 options which are available to the Magistrate on receipt of an indicting police report under Section 173(2) Cr.P.C. Those options given are:-

(1)        The Magistrate may accept the report and take cognizance of the offence and issue process, or

(2)        The Magistrate may disagree with the report and drop the proceedings, or

(3)        The Magistrate  may direct further investigation under sub-section(3) of Section 156 Cr.P.C and require the police to make a further report.

It is evidently from the words “further investigation” stated in the third option given above that the learned Judge was inclined to articulate further to hold that the power to order further investigation flows from Section 156(3) Cr.P.C and not from Section 173(8) Cr.P.C. As a matter of fact, 156 Cr.P.C uses the expression “investigation” only and not “further investigation”. No doubt, where there was already an investigation culminating in a “police report” filed under Section 173(2) Cr.P.C and the Magistrate is passing an order under Section 156(3) Cr.P.C, it may be a case of further investigation in the sense that there was already an investigation which preceded the police report. But Section 156(3) takes in not only a case culminating in a police report. It takes in a private complaint as well.  Moreover, the occasion for the Court to order investigation for the first time arises only under Section 156(3) Cr.P.C.  Hence it is not further investigation at that stage.  At any rate, it is not “further investigation” as envisaged by Section 173(8) Cr.P.C which provision will be attracted only after a final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate. That apart, while the power of the court to order investigation under Section 156(3) Cr.P.C. can be exercised only at the pre-cognizance stage, it can soon be seen that the power of the court to trigger further investigation under Section 173(8) Cr.P.C. can be exercised both at the pre-cognizance as well as post cognizance stage but definitely after the final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate.

4. Further investigation which is comprehended under Section 173(8) Cr.P.C is something which is the exclusive prerogative of the police. The Apex Court had hastened to emphasise that the express permission of the Court is not necessary for conducting further investigation. (Vide Nirmal Singh Kahlon v/s State of Punjab(2009) 1 SCC 441 – Para 68; Rama Chaudhary v/s State of Bihar(2009) 6 SCC 346). The above said provision does not, in specific terms, mention about any power of the Court to order further investigation. What the Hon’ble Supreme Court has held is that in appropriate cases the said power of the police to conduct further investigation can be triggered into motion at the instance of the Court, ex debito justitia (Vide Hemant Dhasmana v/s CBI (2001) 7 SCC 536 = AIR 2001 SC 2721)

Just as the Court can trigger into motion the power of the police to conduct further investigation under Section 173(8) Cr.P.C., the State Government by virtue of its power of superintendence under Section 3 of the Police Act, 1861 can also give a direction to a superior police officer for further investigation under Section 173(8) Cr.P.C. (Vide State of Bihar v/s J.A.C. Saldanha (1980) 1 SCC 554 = AIR 1980 SC 326 (3 Judges); Nimal Singh Kahlon v/s State of Punjab (2009) 1 SCC 441 – (Paras 44 to 53, 57, 58, 67).

5. Now the further question is whether further investigation under Section 173(8) Cr.P.C can be ordered after the Court has taken cognizance of the offence. There is nothing in Section 173(8) Cr.P.C to indicate that the police cannot conduct further investigation after the court has taken cognizance of the offence on the police report initially filed under Section 173(2) Cr.P.C.  If by ordering further investigation, the court is only triggering into motion the power of the police to conduct further investigation, what is to be examined is whether there is any embargo or interdict on the police to conduct further investigation after the court has taken cognizance of the offences. There is sufficient precedential authority to show that the power to conduct further investigation can be exercised at the post-cognizance stage as well.  (vide (1) Union Public Service Commission v/s          S. Papaiah (1997) 7 SCC 614 = AIR 1997 Sc 3876 where the power of the Magistrate to direct further investigation after acceptance of the final report and closure of the case; was recognized.  (2)  Sri. Bhagwan Sreepada Vallabha Venkata Vishwanandha Maharaj v/s State of A.P. (1999) 5 SCC 740 = AIR 1999 Sc 2332 – where the power of the police to conduct further investigation even after taking cognizance of the offences by the court was recognised.  The decision also held that the power of the court to direct the police to conduct further investigation after taking cognizance of the offence cannot have any inhibition and that the court is not obliged to hear the accused before making such direction (3)   Hasanbhai Valabhai Qureshi v/s State of Gujarat (2004) 5 SCC 347 = AIR 2004 SC 2078 where it was held that the police can conduct further investigation even if the court has taken cognizance of the offence (4)  Zahira Habibulla N. Shaikh v/s State of Gujarat (2004)4 SCC 158 also recognised to power of the police to conduct proper further investigation even after the court has taken cognizance of any offence on a police report submitted earlier (para 79). However, in view of the peculiar fact situation in that case the Apex Court directed fresh investigation/ re-investigation in that case (5) In Dinesh Dalmia v/s CBI (2007) 8 SCC 770 also the Apex Court held that the power of the police to conduct further investigation is not taken away because a charge sheet has been filed or because the court has taken cognizance of the offence. (6) In Kishan Lal v/s Dharmendra Bafna (2009) 7 SCC 685 the Supreme Court held that it is permissible for the Magistrate to order further investigation even at the stage of trial (Paras 11, 14 and 15)

In fact, a Division Bench of the Kerala High Court in Shaji v/s State of Kerala 2003 (2) KLT 929 speaking through J.B. Koshy. J. Exhaustively considered the whole gamut of “further investigation” under Section 173(8) Cr.P.C. and over-ruled the view taken by a learned Single Judge in Natarajan v/s Sasidharan 2002 (1) KLT 499 to the effect that after taking cognizance of the offence and appearance of the accused, the Magistrate cannot order further investigation.  The Division Bench had affirmed Joisy v/s Sub Inspector of Police 2002(3) KLT 172 wherein another learned Single Judge had held that even after taking cognizance of the offence the court can direct further investigation to be conducted under Section 173(8) Cr.P.C.  The decision in Lonappan Nambadan v/s Deputy Superintendent of Police2003(2) KLT 213 by yet another Single Judge of the Kerala High Court  is also on the same lines as that of the Division Bench.

Both Randhir Singh Rana v/s State (Delhi Administration) – (1997) 1 SCC 361 and Reeta Nag v/s State of West Bengal and Others – (2009) 9 SCC 129 relied on by the learned Judge, do recognise the power of the investigating agencies to conduct further investigation under Section 173(8) Cr.P.C. even after the court has taken cognizance of the offence but proceed further to hold that at that stage the Court cannot suo motu order further investigation. If by doing so the court is only triggering into motion the power of the police under Section 173(8) Cr.P.C. , the distinction drawn is really without any difference.

6. If the expression “further investigation” in Section 173(8) Cr.P.C is interpreted to mean only investigation as is envisaged by Section 156(3) Cr.P.C, then, of course, such investigation can be conducted only at the pre-cognizance stage and it is not permissible for the court to order under Section 156(3) Cr.P.C investigation at the post-cognizance stage. But with due respect, the further investigation which is envisaged by Section 173(8) Cr.P.C is not confined only to the pre=cognizance investigation which is comprehended by Section 156(3) Cr.P.C. In my humble view the Division Bench in Abdul Latheef and Others v/s State of Kerala2014(3) KLT 905 had laid down the law correctly and the verdict of the Division Bench was binding on the learned Judge who was not justified in refusing to follow the same.

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act.