Court's Permission Necessary For Further Investigation After Filing Final Report : Supreme Court

The Supreme Court has held that the police can't proceed with further investigation on their own, and it is mandatory to obtain a leave of the court before doing further investigation under Section 173(8) CrPC/Section 193(9) of BNSS.

A bench comprising Justices Rajesh Bindal and Vijay Bishnoi allowed an appeal filed by the accused persons, setting aside a 2023 Allahabad High Court judgment that had permitted the continuation of a "further investigation" by police authorities in a decade-old rape case.

The issue before the court was whether after submitting a final report under Section 173(2) CrPC, the police/investigating agency can conduct further investigation under Section 173(8) CrPC without obtaining the leave of the Magistrate/Court concerned?

Answering in the negative, the judgment authored by Justice Bishnoi observed:

“…the power to direct further investigation in a case rests solely at the discretion of the Magistrate/Court concerned. In the event, the police/ investigation agency is of the opinion that further investigation is necessary in any particular case to cull out complete facts and truth in the case, it is binding upon them to file an appropriate application before the Magistrate/Court, without directing an order for further investigation by themselves. Once such an application is filed by the investigation agency, the Magistrate/Court would apply its judicial mind, in light of the facts and circumstances of the particular case and the reasons demonstrated by the investigating agency, in order to exercise its discretion for exercise of its power to decide whether or not further investigation is to be ordered under the purview of Section 173(8) CrPC.”

In support, the Court relied on Vinay Tyagi v. Irshad Ali, reported in (2013) 5 SCC 762, where it was held:

“It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.”

Also, reliance was placed on recent decision of Peethambaran Versus State Of Kerala & Anr., 2023 LiveLaw (SC) 402, wherein the District Police Chief, i.e., Superintendent of Police, ordered further investigation. The Court therein, while quashing the order passed by the District Police Chief, held that the power to order further investigation rests either with the Magistrate concerned or a higher court, but not with an investigation agency.

Background

In 2013, an FIR for gang rape was registered in Firozabad, U.P. After investigation, the police submitted a Closure Report in May 2014, which the Magistrate accepted in September 2015 after the complainant failed to appear or protest.

Nearly four years later, based on an NHRC complaint, the state and police authorities (in June 2019 and April 2021) unilaterally ordered a "further investigation" under Section 173(8) CrPC, leading to DNA collection.

The Appellants challenged the executive orders before the Allahabad High Court (Lucknow Bench), arguing that the police could not unilaterally order further investigation after judicial closure.

Dismissing the petition, the High Court noted the prosecutrix had filed a protest petition (though the record showed she hadn't at the initial stage) and that the DNA test was aimed at identifying the real accused, prompting the Appellants to move to the Supreme Court.

Resultantly, the Supreme Court set aside the impugned order and also quashed the further investigation orders issued by the Police Authorities without seeking the court's leave.

Cause Title: PRAMOD KUMAR & ORS. VERSUS STATE OF U.P. & ORS.

Click here to download judgment

Appearance:

For Petitioner(s) : Mr. Divyesh Pratap Singh, AOR Ms. Shivangi Singh, Adv. Mr. Amit Sangwan, Adv. Mr. Bharat Mishra, Adv. Mr. Tiwari Prashantipriya Awadesh, Adv. Mr. Suraj Prakash Singh, Adv.

For Respondent(s) : Mr. Apoorva Agrawal, A.A.G. Mr. Abhisehk Kumar Singh, Adv. Mr. Sarvesh Singh Baghel, AOR