REETA NAGversusSTATE OF WEST BENGAL & ORS.

                    [2009] 13 (ADDL.) S.C.R. 276


A                          REETA NAG
                                 v.
                STATE OF WEST BENGAL & ORS.
                   (SLP (Crl.) No. 3062 of 2007)

                         AUGUST 13, 2009
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

         CODE OF CRIMINAL PROCEDURE, 1973:                            A

       ss.173(2) and 173(8) rlw s.167(2) - Filing of report by
c investigating officer and propriety of order for reinvestigation!
    further investigation passed by Magistrate after taking
    cognizance and framing of charge - HELD: Once a report is
    filed u/s 173(2) and either the charge is framed or the accused       ,.'L
D
    are discharged, the Magistrate may, on the basis of a protest
                                                                     t    r
    petition, take cognizance of the offence complained of or on
    the application made by the investigating authorities permit
    further investigation uls 173(8) - The Magistrate cannot uls
     173(8) suo motu direct a further investigation/re-investigation
    into a case on account of the bar of s.167(2) - In the instant
E   case, investigating authorities did not apply for further
    investigation and it was only upon the application filed by de
    facto complaint uls 173(8), that a direction was given by the
    Magistrate to re-investigate the matter - Having passed a final
                                                                     f-
    order framing charge against six persons and discharging the
F   remaining accused persons, it was no longer within the
    Magistrate's jurisdiction to direct a re-investigation into the
    case - Not only was the Magistrate wrong in directing a re-
    investigation on the application made by the de facto
    complainant, but he also exceeded his jurisdiction in
G   entertaining the said application - However, it will always be
    open to the Magistrate to take recourse to the provisions of
    s.319 if any material is disclosed during the examination of A,
    the witnesses in the trial.

H                                276
          REETA NAG v. STATE OF WEST BENGAL & ORS. 277


            Sooraj Devi v. Pyare Lal and Anr. (1981) 1 SCC 500;         A
        Master Construction Co. (P) Ltd. vs. State of Orissa AIR 1966
        SC 1047; Sankatha Singh vs. State of UP. AIR 1962 SC
        1208; Ada/at Prasad v. Roop/al Jindal (2004) 7 SCC 338;
        Dinesh Dalmia v. CBI (2007) 8 SCC 770; Randhir Singh
        Rana v. State (Delhi Administration (1997) 1 SCC 361, relied    B
        on.

            K.M. Mathew v. State of Kera/a (1992) 1 SCC 217,
        overruled.

            Union Public Service Commission v. S. Papaiah & Ors.        c
        (1997) 7 sec 614 and State of Rajasthan V. Aruna Devi and
        & Ors. (1995) 1 SCC 1, cited.

                             Case Law Reference:
            (1981) 1 sec 500         relied on            para 4        D

            (1997) 1 sec 614         cited                para 9
            (1995) 1 sec 1           cited                para 10
            (1997) 1 sec 361         relied on            para 13       E
            AIR 1966 SC 1047         relied on            para 15

.....
            AIR 1962 SC 1028         relied on            para 15
            (2004) 1 sec 338         relied on            para 16
                                                                        F
            (1992) 1 sec 211         overruled            para 16
            (2001) 8 sec 110         relied on            para 17

            CRIMINAL APPELLATE JURISDICTION : SLP (Crl) No.
        3062 of 2007.                                                   G

            From the Judgment & Order dated 31.01.2007 of the High
        Court of Calcutta in C.R.R. No. 2318 of 2004.

            Jaideep Gupta, Raja Chatterjee, Arindam Mitra (for G.S.
                                                                        H
    278    SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.


A   Chatterjee) for the Petitioner.                                    ~

        K.K. Venugopal, Ajay Kr. Jha, Divya Sinha, Goopal
    Sankaranarayanan (for Parekh & Co.), Tara Chandra Sharma,
    Neelam Sharma for the Respondents.
8         The Order of the Court was delivered by

                                  ORDER

       ALTAMAS KABIR, J. 1. In this Special Leave Petition
  we are called upon to decide whether after charge-sheet has
c been filed by the investigating agency under Section 173(2) of
  the Code of Criminal Procedure, hereinafter referred to as
  "Cr.P.C.", and charge has been framed against some of the
  accused on the basis thereof and the other co-accused have
  been discharged, the Magistrate can direct the investigating         ,_
D
  authorities to conduct a re-investigation or even further
  investigation under Sub-section (8) of Section 173 Cr.P.C.

        2. In the instant case, on the basis of a charge-sheet filed
  by the Investigating Officer, the Sub-Divisional Judicial
E Magistrate, Asansol, West Bengal, on 9th July, 2004, took
  cognizance of offences alleged to have been committed by six
  of the original sixteen accused persons under Sections 467/
                                            I

  468/1208 of the Indian Penal Code. The other ten accused
                                                                       ~
  persons were discharged on the prayer of the Investigating
F Officer. Subsequently, on 20th August, 2004, while considering
  an application filed by the de facto complainant, who is the
  petitioner before us, under Section 173(8) Cr.P.C., praying for
  reinvestigation of the case, the learned Magistrate directed the
  Officer in-Charge, Asansol (South) Police Station, to
G reinvestigate   the case and to submit a report.

        3. The Respondents No.2 and 3 filed an application under
    Section 482 Cr.P.C., being CRR No.2318 of 2004, before the
    Calcutta High Court, for quashing the said order and the same
    was allowed by a judgment and order dated 31st January,
H
      REETA NAG v. STATE OF WEST BENGAL & ORS.                    279
                  [ALTAMAS KABIR, J.]
    2007, which is the subject matter of challenge in the present        A
    Special Leave Petition

         4. Before the learned Single Judge of the Calcutta High
    Court it was submitted on behalf of the above-mentioned
    respondents that after framing charge against six of the
                                                                         B
    accused persons and discharging the rest, the learned
    Magistrate had no jurisdiction to order a reinvestigation as had
A   been done in the instant case, having regard to the provisions
    of Section 362 Cr.P.C. as considered by this Court in the case
    of Sooraj Devi vs. Pyare Lal & Anr. [( 1981) 1 SCC 500]. The         C
    said submission was accepted by the High Court.

         5. Apart from the above, the learned Single Judge also
    took the view that merely because out of sixteen accused
    persons ten had been discharged, jt did not necessarily mean
    that they could not be tried subsequently. The learned Judge         D
    then referred to the provisions of Section 319 Cr.P.C. which
    empowers the court to proceed against the other persons if any
    material is disclosed against them during the trial. The learned
    Single Judge observed that although the Magistrate could not
    direct reinvestigation on the basis of an application made by        E
    the de facto complainant and that too on the technical ground
    of non-service of notice upon him, he could take recourse to
    Section 319 Cr.P.C. at the stage of trial.

         6. Having regard to the view taken by him, the learned
    Single Judge by his order dated 31st January, 2007, allowed          F
    the revisional application and directed the trial court to proceed
    with the case, in accordance with law.

         7. Appearing on behalf of the petitioner, Mr. Jaideep
    Gupta, learned Senior Advocate, urged that the application filed     G
    on behalf of the petitioner herein was really for the purpose of
    further investigation, as contemplated under Section 173(8)
    Cr.P.C., and not for reinvestigation, which expression had been
    inadvertently included in the prayer of the said application. Mr.
    Gupta submitted that the use of th9 expression "reinvestigation"     H
    280 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.


A had been taken literally a~d a decision had been rendered on
  the basis thereof. Mr. Gupta urged that the application filed by
                                                                            ·+
  the petitioner ought to have been considered for the purpose
  of further investigation as contemplated under Section 173(8)
  Cr.P.C.
B
       8. Mr. Gupta submitted that on a plain reading of Sub-
  section (8) of Section 173 Cr.P.C., it cannot be argued that a
  further investigation could not be directed by the learned                A
  Magistrate even if the charge-sheet had been filed and charges
  had been framed. Mr. Gupta urged that if such a procedure was
c not barred under the law, the order passed by the learned
  Magistrate on 20th August, 2004 could not be faulted.

          9. Referring to the decision of this Court in Union Public
     Service Commission vs. S. Papaiah & Ors. [(1997) 7 SCC
D   614], learned counsel submitted that in the said case this Court
    had occasion to consider in detail the provisions of Section
     173(8) Cr.P.C. and this Court had held that under Section
     173(8) Cr.P .C. the Magistrate could direct further investigation
    to collect furth,er evidence and the new report to be submitted
E   by the Investigating Officer would be governed by Sub-section
    (2) and (6) of Section 173 Cr.P.C. Mr. Gupta pointed out that
    in the said case, this Court had occasion to observe that by
    not ordering such further investigation on account of the facts,
    the learned Magistrate had, in fact, failed to exercise the
F   jurisdiction vested in him. Setting aside the order of the learned
    Magistrate accepting the Final Report, this Court remitted the
    matter to the learned Metropolitan Magistrate to issue directions
    under Section 173(8) Cr.P.C. to the Central Bureau of
    Investigation (C.8.1.) to investigate the case further and to collect
    further evidence in the larger public interest in order to ensure
G
    the purity of the examination conducted by the Union Public
    Service Commission, hereinafter referred to as "U.P.S.C.", for          -4.
    All India Services, to select the best talent.                                 ;;


       10. Reference was also made to the decision of this Court
H in State of Rajasthan vs. Aruna Devi & Ors. [(1995) 1 SCC
                                                                                  ,...,
                                                                                   '
_,


          REETA NAG v. STATE OF WEST BENGAL & ORS.                    281
                      [ALTAMAS KABIR, J.]

     +   1], wherein it was held that acceptance of Final Report by the       A
         Magistrate does not debar him from taking cognizance of the
         offence if on  further investigation fresh material came to be
         discovered.

              11. Mr. Gupta urged that since in Sub-section (8) of            8
         Section 173 Cr.P.C. there is no express prohibition, the
         Magistrate was always within his jurisdiction to order a fUrther
         investigation into the question of discharge of ten of the sixteen
         accused persons. Mr. Gupta submitted that the order of the
         High Court was contrary to the provisions of Section 173(8)          C
         Cr.P.C. and was, therefore, liable to be quashed.

               12. Mr. K.K. Venugopal, learned Senior Advocate, on the
         other hand, urged that the order of the learned Magistrate,
         which had been quashed by High Court, could not be supported
         since it had been passed by the learned Magistrate without           D
         jurisdiction. Re-emphasizing the provisions of Section 362
         Cr.P.C., Mr. Venugopal submitted that the order passed by the
         learned Magistrate on 20th August, 2004, amounted to review
         of his order dated 9th July, 2004, which he was not competent
         to do. Mr. Venugopal submitted that Magistrates being                E
         creatures of statute, cannot act in excess of the powers vested
         in them by the statute. Mr. Venugopal submitted that even if the
         intention was to direct further investigation, the order impugned
         in the Special Leave Petition could not be sustained having
         been passed in excess of the jurisdiction vested in the learned      F
         Magistrate.

              13. Apart from the above, Mr. Venugopal also submitted
         that once a charge-sheet had been filed and charges had been
         framed against some of the accused, it was no longer available
         to the learned Magistrate to order even a further investigation      G
         as contemplated under Section 173(8) Cr.P.C., much less a
         reinvestigation, in view of the bar imposed under Section 362
         Cr.P.C. In support of his submissions, Mr. Venugopal referred
         to the decision of this Court in Randhir Singh Rana vs. State
         (Delhi Administration) [(1997) 1 SCC 361], wherein this Court,       H
    282   SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.


A while considering the provisions of Section 156(3), 173(8), 190,     -+
  200 and 204 Cr.P.C. had held that after taking cognizance of
  an incident on the basis of a police report and after appearance
  of the accused, a Judicial Magistrate cannot on his own order
  further investigation in the case, and if an order of discharge is
B passed, nothing would prevent the police from making further
  investigation on its own.

        14. Mr. Venugopal submitted that the view taken by the         A
  High Court was on the basis of the settled position of law that
  having taken cognizance of an offence, the magistrate had no
c jurisdiction to direct a reinvestigation of the case under Sub-
  section (8) of Section 173 Cr.P.C. On the other hand, the High
  Court made it clear that if during the trial any fresh material
  surfaced against the discharged persons, the magistrate could
  take recourse to Section 319 Cr.P.C. It was urged that the High      }-
D Court should have kept in mind the well-settled principle that
  whatever was required to be done under a statute, could only
  be done in the manner prescribed by the statute and in no other
  manner.

E       15. Although, Mr. Jaideep Gupta based his submissions
  on the premise that the application filed by the petitioner (de
  facto complainant) was for a further investigation, the fact
  remains that the same was made for a direction for
  reinvestigation which was allowed by the magistrate by his order
F dated 20th August, 2004. By virtue of the said order, the
  magistrate directed the Officer-in-Charge, Asansol (South)
  Police Station, to reinvestigate the case and to submit a report,
  which the Magistrate could not do having regard to the fact that
  he had already passed an order of discharge of ten of the
  accused persons and such an order is contrary to the provisions
G
  of Section 362 Cr.P .C. As has been rightly held by the High
  Court, having regard to the decisions of this Court in the Master
  Construction Co. (P) Ud.'s case [AIR 1966 SC 1047] and the
  Sankatha Singh's case [AIR 1962 SC 1028], which were
  reflected in Sooraj Devi's case (supra), having passed a final
H
           REETA NAG v. STATE OF WEST BENGAL & ORS.                     283
                     . [ALTAMAS KABIR, J.]
          order framing charge against six persons and discharging the         A
+
          remaining accused persons, it was no longer within the
          Magistrate's jurisdiction to direct a re-investigation into thEi
          case.

                16. The aforesaid question was considered by a three
                                                                               B
          Judge Bench of this Court in Ada/at Prasad vs. Roop/al Jindal
          [(2004) 7 sec 338], on a reference made with regard to the
    .f.   correctness of the law laid down~ the Supreme Court in K. M.
          Mathew vs. State of Kera/a [(19 ) 1 SCC 217], where it was
          held that the Court issuing summons was entitled to recall the
          same on being satisfied that the issuance of summons was not
                                                                               c
          in accordance with law. Holding that the said decision did not
          lay down the correct law, this Court held that the Magistrate had
          no jurisdiction to recall his order issuing process in the absence
i         of any power of review or inherent power which did not inhere
          in the subordinate Criminal Courts, but was available to the High    D
          Court under Section 482 Cr.P.C.

                17. In addition to the above, the decision of this Court in
           Randhir Singh Rana's case (supra) also make~ it clear that
           after taking cognizance of an offence on the basis of a police      E
           report and after appearance of the accused, a Judicial
           Magistrate cannot of his own order further investigation in the
          case, though such an order could be passed on the application
           of the investigating authorities. The view expressed in Randhir
           Singh Rana's case (supra) finds support in the decision of this     F
           Court in the case of Dinesh Dalmia vs. CBI [(2007) 8 sec
          770], wherein while considering various provisions of the
           Criminal Procedure Code including Section 173 thereof, this
          Court held that so long as the charge-sheet is not filed within
          the meaning of Section 173(2) Cr.P.C., investigation remains
                                                                               G
          pending. But, even the filing of a charge-sheet did not preclude
          an Investigating Officer from carrying on further investigation in
          terms of Section 173(8) Cr.P.C. It was also observed that the
          power of the Investigating Officer to make a prayer for
          conducting further investigation in terms of Section 173(8) of
                                                                               H
    284 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.


A   the Code is not taken away only because a charge-sheet has           i
    been filed under Section 173(2) and a further investigation is
    permissible even if cognizance has been taken by the
    Magistrate.

         18. Although, the decision in Dinesh Dalmia's case (supra)
B
    was rendered in the context of the applicability of Section
    167(2) and the proviso thereto, when a charge-sheet has not
    been filed, the interpretation of the provisions of Section 173(8)
    in the said decision is relevant in the facts of this case also.

c       19. What emerges from the above-mentioned decisions
  of this Court is that once a charge-sheet is filed under Section
  173(2) Cr.P.C. and either charge is framed or the accused are
  discharged, the Magistrate may, on the basis of a protest
  petition, take cognizance of the offence complained of or on
D the application m.ade by the investigating authorities permit
  further investigation under Section 173(8). The Magistrate
  cannot suo moto direct a further investigation under Section
  173(8) Cr.P.C. or direct a re-investigation into a case on
  account of the bar of Section 167(2) of the Code.
E
        20. In the instant case, the investigating authorities did not
  apply for further investigation and it was only upon the
  application filed by the de facto complainant under Section
                                                                             ~.
   173(8), was a direction given by the learned Magistrate to re-
  investigate the matter. As we have already indicated above,
F such a course of action was beyond the jurisdictional
  competence of the Magistrate. Not only was the Magistrate
  wrong in directing a re-investigation on the application made
  by the de facto complainant, but he also exceeded his
  jurisdiction in entertaining the said application filed by the de
G facto complainant.

       21. Since no application had been made by the
  investigating authorities for conducting further investigation as
  permitted under Section 173(8) Cr.P.C., the other course of
H action open to the Magistrate as indicated by the High Court
 REETA NAG v. STATE OF WEST BENGAL & ORS. 285
             [ALTAMAS KABIR, J.]
was to take recourse to the provisions of Section 319 of the      A
Code at the stage of trial.

     22. We, therefore, see no reason to interfere with the order
of the High Court since it will always be available to the
Magistrate to take recourse to the provisions of Section 319 if
                                                                  8
any material is disclosed during the examination of the
witnesses during the trial.

     23. The Special Leave Petition is, accordingly, dismissed,
but there will be no order as to costs.
                                                                  c
R.P.                                          SLP dismissed.