State Through Central Bureau of Investigation v. Hemendhra Reddy & Another. Etc.

STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC. (Criminal Appeal Nos. 1300-1302 of 2023) APRIL 28, 2023 [SURYA KANT AND J.B. PARDIWALA, JJ.] Code of Criminal Procedure, 1973 – ss. 169, 173(2), 173 (8) – Further Investigation – Whether the High Court was justi fied in quashing the entire prosecution instituted by the C BI against the accused persons for the alleged offences on the gro und that the CBI could not have undertaken further investigation under sub-section (8) of s.173 of the Code of Criminal Proced ure, 1973 and filed a charge-sheet having once already submitted a final report under sub-section (2) of the s.173 of the CrPC (clos ure report) –

Held: There is no bar against conducting further investigat ion u/s. 173(8) of the CrPC after the final report submitted u/ s. 173(2) of the CrPC has been accepted – Prior to carrying out a further investigation u/s. 173(8) of the CrPC, it is not ne cessary for the Magistrate to review or recall the order accepting the fi nal report – Further investigation is merely a continuation of t he earlier investigation, hence it cannot be said that the acc used are being subjected to investigation twice over – Moreover, i nvestigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution – The principle of double jeopardy would, therefore, not be ap plicable to further investigation – There is nothing in the CrPC to suggest that the court is obliged to hear the accused while co nsidering an application for further investigation u/s. 173(8) o f the CrPC – Impugned orders passed by the High Court set aside. Code of Criminal Procedure, 1973 – s.173 – Delay in trial on account of further investigation – Held: It is sett led law that the criminal offence is considered as a wrong against the Sta te and the Society even though it has been committed against an indivi dual – Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay – Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case – Though it may be a relevant circumstance in reaching a final verdict . Code of Criminal Procedure, 1973 – ss. 169, 173 – Distinction between – Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an oblig ation to submit its report to the Magistrate under Section 173 of the CrPC – Though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureti es from the accused to appear if and when so required before the Magistrate empowered to take cognizance of the offence on a p olice report and such report is contemplated under Sectio n 173 of the CrPC. Prevention of Corruption Act, 1988 – Non-compliance to second proviso to s. 17 – A superior police officer of the rank of Superintendent of Police or any officer higher in r ank is required to pass an order before an investigation, if any, f or offence u/s. 13(1)(e) is commenced – The argument canvassed on behalf of the accused persons is that there is no such order of the police officer not below the rank of Superintendent of Police in the char ge-sheet – Held: In the instant case, this issue was not rai sed before the High Court – Even otherwise, this is a question of fact and a matt er of record – If it is the case of the accused that there is no such order on record, the same may be pointed out to the trial court in the course of the trial – It is for the trial court to verify the record, look into it and take an appropriate call on this issue in accordance with law. Maxim – Nullum tempus aut locus occurrit regi – discussed. Allowing the appeal, the Court HELD: Section 169 of CrPC

¶1Section 169 of the CrPC is silent in making report to t he Magistrate, however the Investigating Officer is un der an obligation to submit its report to the Magistrate under Section 173 of the CrPC. Thus, though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear i f and when so required before the Magistrate empowered to take cogni zance STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC. of the offence on a police report and such report is contemp lated under Section 173 of the CrPC. [Para 39][153-A-B] What is the meaning of the term “Further Investigation”?

¶2In Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC 346, this Court held that, “further investigation within the meaning of provision of Section 173(8) CrPC is additional; more ; or supplemental. “Further investigation”, therefore , is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping o ut the earlier investigation altogether.” [Para 48][156-B-C] What are the alternatives before a Magistrate when a “Final Report” is filed?

¶3Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. The report ma y conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magi strate may either:(1) accept the report and take cognizance of off ence and issue process, (2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer, (3) may dir ect further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC. (4) may treat the prote st complaint as a complaint, and proceed under Sections 20 0 and 202 of the CrPC. [Para 49][156-C-F] What is the prime consideration for “Further Investigation”?

¶4As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of in vestigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial a nd effective justice. [Para 50][156-G-H; 157-A]

¶5A conspectus of the various decisions of the Sup reme Court rendered in cases where final reports (closur e reports) had already been submitted and accepted makes the posit ion of law very clear that even after the final report is laid befo re the Magistrate and is accepted, it is permissible for the inve stigating agency to carry out further investigation in the ca se. In other words, there is no bar against conducting further i nvestigation under Section 173(8) of the CrPC after the final report subm itted under Section 173(2) of the CrPC has been accepted. I t is also evident, that prior to carrying out a further investigation un der Section 173(8) of the CrPC, it is not necessary for the Ma gistrate to review or recall the order accepting the final r eport. [Para 76][171-B-C]

¶6The final conclusion can be summarized as: (i) Even after the final report is laid before the Magistrate and is acce pted, it is permissible for the investigating agency to carry o ut further investigation in the case. In other words, there is no ba r against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of t he CrPC has been accepted; (ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessar y that the order accepting the final report should be reviewed, recal led or quashed; (iv) Further investigation is merely a conti nuation of the earlier investigation, hence it cannot be said that t he accused are being subjected to investigation twice over. Mo reover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy w ould, therefore, not be applicable to further investigation; (v ) There is nothing in the CrPC to suggest that the court is obliged t o hear the accused while considering an application for fu rther investigation under Section 173(8) of the CrPC. [Par a 77][171-D-G] Delay in Trial on account of Further Investigation

¶7The general rule of criminal justice is that “a crime never dies”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the cr iminal STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC. offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of l aw would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. [Para 84][181-G-H] Non-compliance of the Second Proviso to Section 17 of the 1988 Act

¶8The Second proviso to Section 17 of the 1988 Act directs that the offence referred to under clause (e) of sub section (1) of Section 13 of the 1988 Act shall not be investigated without the order of a police officer not below the rank of a Superint endent of Police. Thus, from the Second proviso, it is clear that an investigation into the offence referred to in claus e (e) of sub section (1) of Section 13 of the 1988 Act even by any police of ficer enumerated in clauses (a) to (c) or any Police Officer a uthorized in that behalf by the State Government as per the first proviso, can be undertaken only by an order of the police officer not below the rank of Superintendent of Police. Thus, the Second p roviso is in the nature of additional safe guard for the pu blic servant who are accused of the offence punishable under Section 13(1)(e) of the 1988 Act against an investigation by a police officer witho ut the knowledge and consent of superior police officer n ot below the rank of Superintendent of Police. A superior police officer of the rank of Superintendent of Police or any officer higher in ra nk is required to pass an order before an investigatio n, if any, for such offence is commenced. It is needless to point-out that, before directing such investigation, the Superintendent of P olice or an officer superior to him is required to apply his mi nd to the information and come to an opinion that the investigation on such allegations is necessary. The argument canvassed on behalf of the accused persons is that there is no such order of the police officer not below the rank of Superintendent of Pol ice in the chargesheet. This issue was not even raised before the High Court. Even otherwise, this is a question of fact and a m atter of record. If it is the case of the accused that there is no such order on record, the same may be pointed out to the trial court in the course of the trial. It is for the trial court to ver ify the record, look into it and take an appropriate call on this issue in accordance with law. [Para 88][183-F-H; 184-A-D] Rama Chaudhary Vs. State of Bihar (2009) 6 SCC 346 : [2009] 5 SCR 482; Hasanbhai Valibhai Qureshi v. State of Gujarat and Others (2004) 5 SCC 347 : [2004] 3 SCR 762; Ramchandran v. R. Udhayakumar and Others (2008) 5 SCC 413 : [2008] 8 SCR 439; K. Chandrasekhar v. State of Kerala and Others (1998) 5 SCC 223 : [1998] 3 SCR 72; Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and Others (1999) 5 SCC 740 : [1999] 3 SCR 870; Hemant Dhasmana v. Central Bureau of Investigation and Another (2001) 7 SCC 536 : [2001] 1 Suppl. SCR 646; Union Public Service Commission v. S. Papaiah and Others (1997) 7 SCC 614 : [1997] 4 Suppl. SCR 56; Ram Lal Narang v. State (Delhi Administration) (1979) 2 SCC 322 : [1979] 2 SCR 923; State of Andhra Pradesh v. A.S. Peter (2008) 2 SCC 383 : [2007] 13 SCR 517; Nirmal Singh Kahlon v. State of Punjab and Others (2009) 1 SCC 441 : [2008] 14 SCR 1049; Kari Choudhary v. Mst. Sita Devi and Others (2002) 1 SCC 714 : [2001] 5 Suppl. SCR 588; Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 : [2008] 15 SCR 331; Pooja Pal v. Union of India and Others (2016) 3 SCC 135 : [2016] 11 SCR 560 – relied on. Vinay Tyagi v. Irshad Ali alias Deepak and Others

(2013) 5 SCC 762 : [2012] 13 SCR 1005; Vinubhai Haribhai Malaviya v. State of Gujarat (2019) 17 SCC 1 : [2019] 15 SCR 936; Luckose Zachariah alias Zak Nedumchira Luke and Others v. Joseph Joseph and Others (2022) SCC Online SC 241; H.N. Rishbud v. State of Delhi AIR 1955 SC 196 : [1955] SCR 1150; Kamlapati Trivedi v. State of West Bengal 1980 (2) SCC 91 : [1979] 2 SCR 717; State of Rajasthan v. Aruna Devi and Others (1995) 1 SCC 1 : [1994] 5 Suppl. SCR STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC. 274; N.P. Jharia v. State of M.P. (2007) 7 SCC 358 : [2007] 8 SCR 618; Japani Sahoo v. Chandra Sekhar Mohanty (2007) 7 SCC 394 : [2007] 8 SCR 582; Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323 : [1996] 7 Suppl. SCR 432 – referred to. Divakar Singh v. A. Ramamurthi Naidu AIR 1919 Mad 751; State v. Mehar Singh and Ors. 1974 Crl LJ 970 – referred to. King-Emperor v. Khwaja Nazir Ahmad , Vol. LXXI Indian Appeals, 203 – referred to. Case Law Reference [2012] 13 SCR 1005 referred to Para 17 (ii), 33 (i) [2019] 15 SCR 936 referred to Para 33 (ii) [1955] SCR 1150 referred to Para 43 [2009] 5 SCR 482 relied on Para 48 [2004] 3 SCR 762 relied on Para 50 [2008] 8 SCR 439 relied on Para 51 [1998] 3 SCR 72 relied on Para 51 [1999] 3 SCR 870 relied on Para 53 [2001] 1 Suppl. SCR 646 relied on Para 54 [1997] 4 Suppl. SCR 56 relied on Para 55 [1979] 2 SCR 923 relied on Para 57 [2007] 13 SCR 517 relied on Para 58 [2008] 14 SCR 1049 relied on Para 59 [1979] 2 SCR 717 referred to Para 66 [1994] 5 Suppl. SCR 274 referred to Para 68 [2007] 8 SCR 618 referred to Para 74 [2001] 5 Suppl. SCR 588 relied on Para 75 [2008] 15 SCR 331 relied on Para 82 [2007] 8 SCR 582 referred to Para 84 [1996] 7 Suppl. SCR 432 referred to Para 86 [2016] 11 SCR 560 relied on Para 87 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.1300-1302 of 2023. From the Judgment and Order dated 15.12.2015 in CRLO P Nos.11101 and 15873 of 2015 and dated 08.01.2016 in CRLOP No.411 of 2016 of the High Court of Judicature at Madras. Jayant K. Sud, ASG, Praveena Gautam, Mrs. Suhasini Sen, Mrs. Saudamini Sharma, Amit Sharma B, Santosh Kumar, P V Yogeswaran, Arvind Kumar Sharma, Advs. for the Appellant. Suresh Babu, C. K. Sasi, Abdulla Naseeh V T, Ms. Meena K Poulose, Navin Suresh, Advs. for the Respondents. The Judgment of the Court was delivered by The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

¶1Leave granted.

¶2Since the issues raised in all the captioned appeals are the same those were taken up for hearing analogously and are being disposed of by this common judgment and order.

¶3The principal question of law that falls for the consideration of this Court in the present litigation is whether the High Court was justified in quashing the entire prosecution instituted by the CBI agains t the accused persons for the alleged offences on the ground that the CBI could not have undertaken further investigation under sub section (8) of Section 173 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) and filed a chargesheet having once already submitte d a final report under sub section (2) of the Section 173 of the CrPC (closur e report)? In other words, whether the High Court was right in taking the view that the Special Court could not have taken cognizance upon the chargesheet filed by the CBI based on further investigation having once already filed a closure report in the past and the same having been accepted by the court concerned at the relevant point of time? STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. HEMENDHRA REDDY & ANOTHER. ETC. FACTUAL MATRIX

¶4The respondent No. 3 herein D. Dwarakanadha Redd y (Accused No. 1) joined the services of the Customs Department as a Preventive Officer in the year 1993.

¶5In January, 2003, the respondent No. 3 was promoted as an Appraiser in Customs Department.

¶6On 30.06.2006, the office of Superintendent of Police (CBI) was in receipt of the following information:

(i) D. Dwarakanadha Reddy (A-1) was holding the post of Appraiser, Customs Department since 2004, and his main income was his salary.

(ii) His wife D. Sujana Reddy (A-2) has no agricultural land in her name and does business in the name of M/s Sujana Engineers.

(iii) That the couple had acquired assets worth Rs. 64, 41, 690.92 lakh between 01.04.2001 and 31.03.2005, however their combined income during the said period was Rs. 50, 95,

371.57/-, comprising of salary income of A-1, agricultural income of A-2, business income of A-2, bank interest, housing loan from the Andhra Bank, capital gain on sale of property, rewards given to A-1 etc.

(iv) During the period between 01.04.2001 and 31.03.2005, they incurred expenditure of Rs. 12, 74, 347.16/-, leaving them with the savings of Rs. 38, 21, 024.41/-.

(v) Therefore, their total disproportionate assets were worth Rs. 26, 20, 666.51/- as on 31.03.2005. In such circumstances referred to above, an FIR in RC MA 1 2006 A 0027 was registered by the CBI under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the 1988 Act’) along with Section 109 of the Indian Penal Code, 1860 (for short, ‘the IPC’).

¶7On 24.12.2008, the CBI/ACB filed an application before the Principal Special Judge for CBI Cases, Chennai, with a prayer to close the proceedings and return the documents for the purpose of r egular departmental action against the accused No. 1 (respondent No. 3). The application stated inter alia as follows: “After completion of investigation it has come to l ight that the accused cannot be prosecuted. Hence, Final Repo rt u/s. 173 Cr.PC is being filed which may be accepted.”

¶8It was further prayed that the documents seized during the course of investigation be returned so that the same could be used in the regular departmental action that may be initiated against the accused No. 1.

¶9The aforesaid application filed by the CBI was taken up by the Special Court and the following order dated 29.01.2009 came to be passed: “ORDER This petition is filed by the Petitioner/Complainan t u/s. 173 Cr.PC praying to close the FIR and to retain the docum ents collected during the investigation to be used in th e Regular Departmental Action against A1 .

¶1Heard the learned Public Prosecutor. Perused the FIR, report and connected records. Reason stated in the re port is convincing. Hence Final Report is accepted and FIR is closed and permitted to retain the documents collected dur ing the investigation to be used in the regular Departmenta l Action against A1. Pronounced by me in the Open Court, this the 29th d ay of January 2009. Principal Spl. Judge for CBI Cases”

¶10On 24.02.2012, departmental proceedings were initiated against the accused No. 1.

¶11It appears from the materials on record that at the end of the departmental proceedings, the possession of disproportionate assets could not be established. However, an administrative warning was issued to the accused No. 1 for the lapse on his part to intimate his department the fact of having obtained a loan of Rs. 3, 00, 000/- (Rupees Three Lakh) from the Andhra Bank jointly along with his wife. An administrat ive warning was also issued in regard to not intimating the correct expense incurred by the accused No. 1 towards the construction of the house. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶12On 26.06.2013, the CBI filed the Crl. MP 3833/2013 in RC MA 1 2006 A0027 under Section 173(8) of the CrPC, seeking to reopen and undertake further investigation of the case, stating inter alia as follows: “…the prosecution had filed final report under Sect ion 173 Cr.P.C. before this Hon’ble Court on 24.12.2008 with a prayer to close the FIR as a mistake of fact…” “… It is humbly submitted that now new evidences emerged to prove the allegation levelled against the above said a ccused persons and to substantiate the charge of possessio n of the disproportionate to the known sources of income of A-1 and A-2. Hence, it is just and necessary to re-open and further investigate the above case U/s. 173(8) Cr.P.C. in the in terest of justice.”

¶13The Special Court allowed the aforesaid application vide order dated 28.06.2013, holding inter alia as under: “Heard. According to the prosecution, the prosecuti on is in possession of new evidences to substantiate the allegation o f possession of disproportionate assets to the known sources of income against the accused persons. Hence, it is just and proper to order for re-opening of the case.”

¶14On 01.03.2014, the CBI issued a letter/summons No. RC 27/ A/2006/ CBI/ACB/Chennai/0799 to the Deputy Commissio ner of Customs, CIV-Vigilance Customs House, Chennai, requiring the presence of the respondent No.3 D. Dwarakanadha Reddy in connection with the investigation in RC 27(A)/06.

¶15On 13.03.2014, respondent No. 3 filed Crl. O.P. of No. 6371 of 2014 before the Madras High Court seeking quashi ng of the proceedings related to the summons dated 1.03.2014. The respondent No. 3 stated that he had attended the summons and d uring the interrogation he was asked to produce documents which were “ either not in existence or not available with the petition er or already available with CBI ”.

¶16On 21.03.2014, the CBI filed its counter affidavit to the above referred petition filed by the respondent No. 3, stating specifically that: “3. It is submitted that in the year 2013 CBI received cert ain information/materials warranting the re-opening of the investigation of this closed case. Accordingly Shri G. Palaniappan, Inspector of Police, CBI/ACB, Chennai file d a petition in the Hon’ble Court of Principal Special Judge for CBI Cases, Chennai seeking the orders of the said cour t for re-opening of investigation and the Hon’ble Court o f PSJ, Chennai had issued order dt. 28.06.2.013 ordering t he re-opening investigation of this case.”

¶17The High Court vide its order dated 11.09.2014 rejected the Crl. O.P. No. 6371 of 2014, holding inter alia as under:

(i) In the year 2013, the CBI came into possession of certain fresh materials warranting the re-opening of the investigation against the accused persons.

(ii) Under 173(8) of the CrPC, a police officer can carry on further investigation even after a report under Sectio n 173(2) of the CrPC is submitted, in view of Section 173(8) of the CrPC and held in Vinay Tyagi v. Irshad Ali alias Deepak and Others reported in (2013) 5 SCC 762, with the only rider being that the police should seek formal permission from the Court.

(iii) Acceptance of the final report by the Magistrate does not debar him from taking cognizance if on further investigation, fresh material comes to light.

(iv) In the CBI counter, it is stated that fresh materia l was received in the year 2013 which warranted reopening of the investigation.

(v) The Magistrate’s power to order further investigation under Section 156(3) of the CrPC does not conflict with the power of the police to investigate further in light of Section 173(8) of the CrPC, and therefore the Magistrate can order reopening of the investigation.

(vi) This can of course only be done when fresh material comes to the knowledge of the investigating officer which he did not have before as in the present case.

(vii) Since the CBI has collected fresh material connected wit h the case which were not available earlier, it cannot be said that the Special Court has acted beyond its jurisdiction in reopening the investigation. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶18On 17.12.2014, the CBI filed its detailed chargesheet against the respondent Nos. 1, 2 and 3 respectively alleging inter alia as follows:

(i) That the Respondent No.1, Hemendra Reddy, the brother-in-law of D. Sujana (A-2) was a farmer at Chenna Reddy Garu Palli, Chithoor Dist.

(ii) The Respondent No.3, was found to be in possession of assets/pecuniary resources in his name and in the names of his family members D. Sujana and Hemendra Reddy to the tune of Rs. 61, 11, 989/- as against their known sources of income of Rs. 59, 90, 135/- during the period between

01.01.1998 and 30.06.2005.

¶19On 2.06.2015, the respondent No. 2 herein filed Crl. O.P. No. 15873 of 2015 before the Madras High Court, seeking quashing of the chargesheet.

¶20On 27.04.2015, the respondent No. 1 herein filed Crl. O.P. No. 11101 of 2015, seeking quashing of the chargesheet.

¶21On 14.09.2015, the CBI filed its counter to all the aforesaid petitions.

¶22On 15.12.2015, the High Court allowed the Crl. O.P. No. 11101 of 2015 and Crl. O.P. No. 15873 of 2015 respectively by a common order, holding inter alia as follows:

(i) That on receipt of a final report under Section 173 of t he CrPC, the Magistrate has three options – either to accept the report and close the case, to disagree with the report and proceed with the case or to order further investigation under Section 156(3) of the CrPC.

(ii) That the Magistrate is only empowered to direct “furth er investigation” and not to direct a “re-investigation/ de-novo investigation”.

(iii) In terms of the judgment in Vinay Tyagi (supra)no investigation agency is empowered to conduct a fresh, de-novo or reinvestigation once a report under Section 173(2) of the CrPC is filed.

(iv) The petition seeking “re-opening”/ “further investigatio n” was filed after a lapse of 4 years.

(v) In order to empower the Magistrate to permit furth er investigation, something should have been pending before the Magistrate, but no matter was pending as the investigation had already been closed.

(vi) The Special Court thus had no power to grant permission to conduct a further investigation.

(vii) The judgment of Vinay Tyagi (supra) had not been brought to the attention of the High Court at the time of deciding Crl. O.P. No. 6371 of 2014.

¶23It appears that the respondent No. 3 herein also filed Crl. O.P. No. 411 of 2016, seeking quashing of the chargesheet. The High Court vide order dated 08.01.2016 allowed the Crl. O.P. No. 411 of 2016 filed by D. Dwarakanadha Reddy in terms of the order passed by it dat ed

15.12.2015, holding that the same principles and reasonings would apply to the petition filed by the D. Dwarakanadha Reddy too.

¶24Thus, the High Court ultimately quashed the entire prosecution, essentially on the ground that the Special Court (CBI) had no jurisdiction/ power to grant permission to the CBI to conduct further investigation. In other words, the High Court took the view that the chargesheet filed against the accused persons was the outcome of the materials collected during the course of the further investigation, which by itself was illegal and, therefore, the criminal proceedings would not be maintainable in the eye of law. It appears that the High Court was also cognizant of the fact that a Co-ordinate Bench had earlier set at rest all t he issues vide order dated 11.09.2014 passed in the Crl. O.P. No. 6371 of 2014. However, the same was not looked into on the ground that the said order passed by the Co-ordinate Bench was per incuriam and, therefore, not binding to another Co-ordinate Bench.

¶25In such circumstances referred to above, the CBI is herein before this Court with the present appeals. SUBMISSIONS ON BEHALF OF THE CBI

¶26Mr. Jayant K. Sud, the learned Additional Solicitor General of India, appearing for the CBI vehemently submitted that the High Court committed a serious error in passing the impugned orders thereby leading to a serious miscarriage of justice. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶27The learned counsel further submitted that the law is well settled that further investigation can be undertaken under sub se ction

(8) of Section 173 of the CrPC even after the closure report is filed and accepted by the court concerned. He would submit that new mat erial/ evidence surfaced and came in the hands of the CBI on the bas is of which an appropriate application was filed before the Spec ial Court, seeking permission to undertake the further investigation. H e further submitted that the application filed by the CBI was duly considered and the Special Court permitted the CBI to re-open the case and undertake further investigation.

¶28The learned counsel further submitted that the respondent No. 3 (Accused No. 1) had questioned the entire action on the part of the CBI in seeking to re-open the case and undertake further investigation before the High Court by filing Crl. O.P. No. 6371 of 2014 and the High Court by a detailed order had declined to interfere. According to the learned counsel, the order passed by a Co-ordinate Bench of the Hig h Court in Crl. O.P. No. 6371 of 2014 was binding to another Co-ordinate Bench and same could not have been over-looked or ignored on the ground that while deciding Crl. O.P. No. 6371 of 2014, the attention of the High Court was not drawn to the decision of this Court in the case of Vinit Tyagi (supra). Mr. Sud further submitted that it is not that the decision of this Court in Vinit Tyagi (supra) was not considered in the earlier round of the litigation i.e., while deciding Crl. O.P. No. 6371 of 2014 as is evident from para 5 of the order passed by the Hi gh Court dated 11.09.2014 in Crl. O.P. No. 6371 of 2014.

¶29In such circumstances as referred to above, the learned counsel prays that there being merit in all his appeals, those may be allowed and the impugned order be set aside. SUBMISSIONS ON BEHALF OF THE ACCUSED PERSONS

¶30On the other hand, all the appeals have been vehemently opposed by the learned counsel appearing for the accuse d persons, submitting that no error, much less an error of law could be said to have been committed by the High Court in passing the impugned orders. The learned counsel would submit that the acceptance of a closure report by the Special Court (CBI) would terminate the proceedings finally and the same would thereafter operate as a legal bar for the investigating agency to undertake any further investigation in connection with the alleged offence. The learned counsel laid much stress on the fact that for the purpose of granting permission to conduct further investigation, something must be pending before the court concerned in the primary report to enable to file a supplementary report. In the instant case, according to the learned counsel, nothing was pending at the time of passing the order under Section 173(8) of the CrPC. It was pointed out that the FIR was closed and all the evidence collected during the investigation was ordered to be returned to the CBI for the purpose of departmental proceedings. In such circumstances, according to the learned counsel, t here was no scope for further investigation and even if further investigation is ordered then it is as good as re-investigation or fresh investigati on or de novo investigation, which is otherwise not permissible in law.

¶31The learned counsel submitted that further investigation cannot be ordered at any point of time. It was argued that in the case on hand, the further investigation was undertaken after a period of four years from the date of the closure report. If further investigation is permitted to be undertaken after an indefinite period of time, the same would result in delaying the trial thereby violating the Article 21 of the Constitution, i.e., the right of the accused to have a speedy trial.

¶32The learned counsel further submitted that one additional issue arises in the present litigation relating to non-compliance of the mandatory requirement under Section 17(Second proviso) of the 1988 Act. According to the learned counsel the chargesheet in C.C.No.13 of 2015 on the file of the XIII Additional Special Judge for CBI Cases, Chennai, was filed by Mr. Syed Bazlullah ASP/CBI/ACB/Chennai. Upon perusal of the chargesheet which was served on the accused by the Magistrate under Section 207 of the CrPC, it was noticed that the same does not include the order passed by an officer not below th e Rank of Superintendent of Police, as mandatorily required u nder Section 17(Second proviso) of the 1988 Act, conferring powers to Mr. S yed Bazlullah to investigate this case in RC MA 1 2006 A 0027 for an offence under Section 13(1)(e) of the 1988 Act, which thereon got culminated into the chargesheet in C.C.No.13 of 2015. It was argued that the non-compliance of Section 17(Second proviso) of the 1988 Act is an illegality that vitiates the entire trial.

¶33In support of the aforesaid submissions, reliance has bee n placed on the following case law: STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

(i) Vinay Tyagi v. Irshad Ali alias Deepak and Others reported in (2013) 5 SCC 762;

(ii) Vinubhai Haribhai Malaviya v. State of Gujarat reported in (2019) 17 SCC 1; and

(iii) Luckose Zachariah alias Zak Nedumchira Luke and Others v. Joseph Joseph and Others reported in (2022) SCC Online SC 241. ANALYSIS

¶34Section 169 of the CrPC reads as under: “169. Release of accused when evidence deficient.— If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not su fficient evidence or reasonable ground of suspicion to justi fy the forwarding of the accused to a Magistrate, such officer shall , if such person is in custody, release him on his ex ecuting a bond, with or without sureties, as such officer may direct , to appear, if and when so required, before a Magistrat e empowered to take cognizance of the offence on a po lice report, and to try the accused or commit him for trial.”

¶35The perusal of the aforesaid Section would reveal that the Investigating Officer is under an obligation to release such person, who is in custody on executing a bond with or without sureties, if evidence is not sufficient and/or there are no reasonable grounds of suspici on to forward such person to the Magistrate.

¶36The plain reading of Section 169 of the CrPC, therefo re, postulates that when the Investigating Officer reports his action to the learned Magistrate, it will not be a report, however it will be a report of his action either by the Investigating Officer or by the Officer in-charge of the police station.

¶37Section 173 of the CrPC states about the steps to be taken by the Investigating Officer after the completion of the investigation. The Officer in-charge of the police station is required to forward the report under said Section to the Magistrate empowered to take cognizance of the offence in prescribed form.

¶38Section 173 of the CrPC reads thus: “173.Report of police officer on completion of investigation.—

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E from the date on which the information was rec orded by the officer in charge of the police station.

(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowe red to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acqua inted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, i f so, whether with or without sureties;

(g) whether he has been forwarded in custody under sect ion

170.

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such ma nner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information rela ting to the commission of the offence was first given.

(3) Where a superior officer of police has been app ointed under section 158, the report shall, in any case in which the State Government by general or special order so dir ects, be submitted through that officer, and he may, pending the orde rs STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his b ond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistra te along with the report—

(a) all documents or relevant extracts thereof on w hich the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnes ses.

(6) If the police officer is of opinion that any pa rt of any such statement is not relevant to the subject-matte r of the proceedings or that its disclosure to the accused i s not essential in the interests of justice and is inexpe dient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude tha t part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5) .

(8) Nothing in this section shall be deemed to preclude furt her investigation in respect of an offence after a repo rt under sub-section (2) has been forwarded to the Magistrat e and, where upon such investigation, the officer in charg e of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or report s regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2) .” (Emphasis supplied)

¶39Thus, Section 169 of the CrPC is silent in making report to the Magistrate, however the Investigating Officer is under an obligation to submit its report to the Magistrate under Section 173 of the CrPC. Thus, though Section 169 of the CrPC does not contemplate making a report, it contemplates of obtaining a bond with or without sureties from the accused to appear if and when so required before th e Magistrate empowered to take cognizance of the offence on a police report a nd such report is contemplated under Section 173 of the CrPC. Clauses (d) and (f) of Section 173(2)(i) of the CrPC read as under: “173(2)(i) xxx xxx

(d) whether any offence appears to have been committed and, if so, by whom; xxx xxx xxx

(f) whether he has been released on his bond and, i f so, whether with or without sureties”.

¶40Section 173(8) of the CrPC deals with further investigatio n and supplementary report. In the Code of Criminal Procedure, 1898 (for short, ‘the Old Code’), there was no identical provision to that of Section 173(8) of the CrPC. The same is a newly added provision in the CrPC. It was added on the recommendation of the Law Commission in its 41st Report that the right of the police to make further investigation should be statutorily affirmed.

¶41In the Old Code, there was no provision prescribi ng the procedure to be followed by the police for fresh investigation , when fresh facts came to light, upon the submission of the police re port and subsequent to taking cognizance by the Magistrate. There was, also, no express provision prohibiting further investigation by the police.

¶42The said omission was sought to be supplied for the first time by a two-Judge Bench of the Madras High Court as early as in 1919 in Divakar Singh v. A. Ramamurthi Naidu reported in AIR 1919 Mad 751, where it was observed that: “ Another contention is put forward that when a repor t of investigation has been sent in under Section 173 of the Cr PC, the police has no further powers of investigati on, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by la w and that STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. when one has been completed another may be begun on further information received.”.

¶43After recognition of the right of the police to make repeated investigations under the Old Code in Divakar’s case, a three-Judge Bench of this Court in H.N. Rishbud v. State of Delhi reported in AIR 1955 SC 196, held that:- “It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court dur ing trial. When the breach of such a mandatory provisio n is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will hav e to take the necessary steps to get the illegality cure d and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the s cheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can ord er investigation by the police. Nor can it be said that the adopti on of such a course is outside the scope of the inherent po wers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.”

¶44Some High Courts were also of the view that wit h the submission of a chargesheet under Section 173, the power of the police to investigate into an offence comes to an end and the Magis trate’s cognizance of the offence started. For instance, in State v. Mehar Singh and Ors. reported in 1974 Crl LJ 970, a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a chargesheet by the police and thereafter, further investigation by the police was not permissible.

¶45It was, however, observed that in light of the decision in H.N. Rishbud (supra), it would be open to the Magistrate to ‘su spend cognizance’ and direct the police to make further investigation into the case and submit a report.

¶46The said inconsistency and incongruity in the judicial decisions was recognized by the Law Commission in its 41st Report (under Clause

14.23) and it was recommended that the right of the police to mak e further investigation should be statutorily affirmed. Accordingly, in the CrPC, Section 173(8), came to be introduced, which statutorily empowered the police to undertake further investigation after submission of the final report under Section 173(2) of the CrPC. Conspicuously, it still did not confer such powers on the Magistrate to direct further and/ or fresh investigation after submission of the final report by the Police.

¶47Section 173(8) of the CrPC may be fragmented or dissected as under:

(1) Further investigation can be done in respect of an offenc e wherein report under Section 173(2) has been forwarded to the Magistrate; and

(2) During further investigation, the officer-in-charge has power

(a) to obtain further evidence, oral or documentary,

(b) to forward to the Magistrate, a further report o r reports regarding such evidence in the form prescribed,

(3) The provisions of sub sections (2) to (6) shall, as far a s may be, apply in relation to such further report or reports. Sub section (1) of Section 173 of the CrPC provides that every investigation by the police shall be completed without unnecessary delay and sub section (2) of Section 173 of the CrPC provides that as soon as such investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance o f the offence on a police report, a report in the form prescribed by th e State Government. Under sub section (2) of the Section 173 of the CrPC, a pol ice report (chargesheet or Challan) is filed by the police after investigation is complete. Sub section (8) of Section 173 of the CrPC, states that nothing in the section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, even where chargesheet or Challan has been filed by t he police under sub section (2) of Section 173 of the CrPC, the police can undertake further investigation in respect of an offence under sub section

(8) of Section 173 of the CrPC. (Reference: Article title d “Different STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. Aspects of Section 173(8) of the CrPC” by D. Nageswara Rao, Prl.JCJ, Manthani.) What is the meaning of the term “Further Investigation”?

¶48In Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC 346, this Court held that, “further investigation within the meaning of provision of Section 173(8) CrPC is additional; more; or supplemental. “Further investigation”, therefore, is the continuation of the earlier investigation and not a fresh invest igation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. ” What are the alternatives before a Magistrate when a “Final Report” is filed?

¶49Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is place d before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magistrate may either:

(1) accept the report and take cognizance of offence and iss ue process,

(2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer,

(3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC.

(4) may treat the protest complaint as a complaint, and proc eed under Sections 200 and 202 of the CrPC. What is the prime consideration for “Further Investigation”?

¶50As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others reported in (2004) 5 SCC 347, the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and subst antial and effective justice. Difference between “Further Investigation” and “Re-investigation”

¶51There is no doubt that “further investigation” and “re-investigation” stand altogether on a different footing. In Ramchandran v. R. Udhayakumar and Others reported in (2008) 5 SCC 413, this Court has explained the fine distinction between the two relying on its earlier decision in K. Chandrasekhar v. State of Kerala and Others reported in (1998) 5 SCC 223. We quote paras 7 and 8 as under: “7. At this juncture it would be necessary to take not e of Section 173 of the Code. From a plain reading of the abo ve section it is evident that even after completion of invest igation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was hi ghlighted by this Court in K. Chandrasekhar v. State of Kerala [(199 8) 5 SCC 223 : 1998 SCC (Cri) 1291] . It was, inter al ia, observed as follows : (SCC p. 237, para 24) “24. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional; more; supplemental’. ‘Fu rther’ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvest igation to be started ab initio wiping out the earlier inve stigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisa ges that on completion of further investigation the inv estigating agency has to forward to the Magistrate a ‘further’ report or reports—and not fresh report or reports—regarding t he ‘further’ evidence obtained during such investigati on.”

¶8In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefo re, direct that instead of fresh investigation there can be fu rther investigation if required under Section 173(8) of t he Code. The same can be done by CB CID as directed by the H igh Court.” STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. Position of Law on the subject of “Further Investigation”

¶52In King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXI Indian Appeals, 203 the Privy Council delineated the powers of the police to investigate. It was held thus: “Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with w hich he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on th em the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court. The functions o f the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a du e observance of law and order is only to be obtained by leaving each to exercise its own function, always, of cours e, subject to the right of the Courts to intervene in an appropriate case when moved under Section 491 of the Criminal Proced ure Code to give directions in the nature of Habeas Corpus. ”

¶53In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P . and Others reported in (1999) 5 SCC 740, it was held in paras 10 and 11: “10. Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of t he Code of Criminal Procedure. Even after the court to ok cognizance of any offence on the strength of the police repo rt first submitted, it is open to the police to conduc t further investigation. This has been so stated by this Cour t in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] . The only rider provided by the aforesaid decision is that it would be desirable that t he police should inform the court and seek formal permission to make further investigation.

¶11In such a situation the power of the court to dire ct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation.”

¶54In Hemant Dhasmana v. Central Bureau of Investigation and Another reported in (2001) 7 SCC 536, it was held: “15. When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal wi th it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were f ound true in the investigation, or that some other accus ed and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think tha t it is necessary for us to vex our mind, in this case, regarding th at aspect when the report points to the offences commi tted by some persons. But when the report is against the allegation s contained in the complaint and concluded that no of fence has been committed by any person, it is open to the court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the court feels on a perusal of such a report that the alleged offence s have in fact been committed by some persons the court has the power to ignore the contrary conclusions made by the investigatin g officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging theref rom and it can even take cognizance of the offences which appear to it to have been committed, in exercise of its pow er under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. …

¶16Although the said sub-section does not, in specific terms , mention about the powers of the court to order furt her investigation, the power of the police to conduct f urther STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. investigation envisaged therein can be triggered int o motion at the instance of the court. When any such order is passed by a court which has the jurisdiction to do so, it would not be a proper exercise of revisional powers to interfere t herewith because the further investigation would only be for th e ends of justice. …”

¶55In Union Public Service Commission v. S. Papaiah and Others reported in (1997) 7 SCC 614, it was held in Para 13: “The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further invest igate” the case and collect further evidence keeping in vi ew the objections raised by the appellant to the investiga tion and the “new” report to be submitted by the investigating offic er would be governed by sub-sections (2) to (6) of Secti on 173 CrPC.”.

¶56This Court in Hasanbhai (supra) held thus: “12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from t he court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the mor e so, if as in this case, the Head of the Police Department also wa s not satisfied of the propriety or the manner and na ture of investigation already conducted.

¶13In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether rule d out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumst ances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigatio n when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial si nce an effective trial for real or actual offences found during course of proper investigation is as much relevant, desira ble and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, i f there is necessity for further investigation, the same can cert ainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not sta nd in the way of further investigation if that would help the court in arriving at the truth and do real and substantial a s well as effective justice. ”

¶57In Ram Lal Narang v. State (Delhi Administration) reported in (1979) 2 SCC 322, this Court held thus: “21. As observed by us earlier, there was no provision in the CrPC, 1898 which, expressly or by necessary implica tion, barred the right of the police to further investiga te after cognizance of the case had been taken by the Magist rate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhau sted by the Magistrate taking cognizance of the offence. Pr actice, convenience and preponderance of authority, permitt ed repeated investigations on discovery of fresh facts . In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to fu rther investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a furthe r investigation, the police could express their regard and resp ect for the court by seeking its formal permission to make further investigation.”

¶58In State of Andhra Pradesh v. A.S. Peter reported in (2008) 2 SCC 383, this Court held thus: “9. Indisputably, the law does not mandate taking of p rior permission from the Magistrate for further investig ation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A disti nction also exists between further investigation and reinves tigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not .”

¶59In Nirmal Singh Kahlon v. State of Punjab and Others reported in (2009) 1 SCC 441, this Court held as follows: STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. “68. An order of further investigation in terms of Sect ion 173(8) of the Code by the State in exercise of its jurisdic tion under Section 36 thereof stands on a different foot ing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdic tion under Section 173(8) of the Code and at the instance of th e State having regard to Section 36 thereof read with Secti on 3 of the Police Act, 1861 should be considered in different contexts . Section 173(8) of the Code is an enabling provision . Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of uphold ing the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jur isdiction to ensure a fair investigation, as has been observed by a Benc h of this Court in Sakiri Vasu v. State of U.P. [(2008 ) 2 SCC 409 : (2008) 1 SCC (Cri) 440] , correctness whereof is open to question, but it is another thing to say that the invest igating officer will have no jurisdiction whatsoever to mak e any further investigation without the express permissio n of the Magistrate.”

¶60In Vinay Tyagi (supra), it was held that “further investigation” in terms of Section 173(8) of the CrPC can be made in a situation where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court. The report on such further investigation under Section 173(8) of the CrPC can be termed as a supplementary report.

¶61In Vinay Tyagi (supra), it was held that: “40.2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of Section 173(6) of the Code. Xxx xxx xxx

40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdictio n by the Magistrate. The language of Section 173(2) cannot b e construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such p ower would have to be read into the language of Section 173( 8).

40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not s tand to reason that the legislature provided power of furth er investigation to the police even after filing a rep ort, but intended to curtail the power of the court to the e xtent that even where the facts of the case and the ends of ju stice demand, the court can still not direct the investigating agenc y to conduct further investigation which it could do on its own.

40.6. It has been a procedure of propriety that the police has to seek permission of the court to continue “furthe r investigation” and file supplementary charge-sheet. …”

¶62In Vinubhai (supra); a three-Judge Bench of this Court has endeavoured to lay at rest the controversy enveloping the evasive issue of further investigation directed by the Magistrate. This Court, speaking through Justice R.F. Nariman, has laid down at Para 38 that: “ To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of cours e, to the Magistrate’s nod under Section 173(8) to fur ther investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out f or further investigation so that an innocent person is not wro ngly arraigned as an accused or that a prima facie guilty p erson is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, par ticularly when such powers are traceable to Section 156(3) read w ith Section 156(1), Section 2(h) and Section 173(8) CrP C, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before th e trial actually commences. It would also be in the interest of justi ce that this power be exercised suo motu by the Magist rate himself, depending on the facts of each case. Whether furth er investigation should or should not be ordered is wi thin the STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. discretion of the learned Magistrate who will exerc ise such discretion on the facts of each case and in accorda nce with law.” It was also clarified that, “The “investigation” spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continue s until charges are framed by the Court, at which stage the trial can be said to have begun.” .

¶63Thus, this Court, in conclusion, observed that, “when Section 156(3) states that a Magistrate empowered under Section 190 m ay order “such an investigation”, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h).”

¶64Thus, in view of the law laid down by this Court in the various decisions cited hereinabove, it is well settled that sub section (8) of Section 173 of the CrPC permits further investigation, and even dehors any direction from the court, it is open to the police to c onduct proper investigation, even after the court takes cognizance of any of fence on the strength of a police report earlier submitted.

¶65However, the question before this Court is whether sub section

(8) of Section 173 of the CrPC permits further investigation after the Magistrate has accepted a final report (closure report) under sub section

(2) of Section 173 of the CrPC. The contention raised on behalf of t he accused persons is that acceptance of a closure report would terminate the proceedings finally so as to bar the investigating agency from carrying out any further investigation in connection with the offence.

¶66The learned counsel appearing for the accused p ersons submitted that an order accepting the closure repor t under Section 190(1)(c) of the CrPC is a judicial order and not an administrative order. Relying on the decision of this Court in Kamlapati Trivedi v. State of West Bengal reported in 1980 (2) SCC 91, it was submitted that when a final report of the police is submitted to the Magistrate and the Magistrate passes an order (a) agreeing with the report of the police and filing proceedings; or (b) not agreeing with the police report and holding that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and takes cognizance of the offence complained of, su ch order is a judicial order.

¶67We are at one with the aforesaid submission canvassed on behalf of the accused persons. However, this is not going to ma ke any difference. What is necessary to be examined is as to whether an order passed under Section 190(1) of the CrPC accepting a final report being a judicial order would bar further investigation by the police or the CBI as in the present case, in exercise of the statutory powers under chapter XII of the CrPC?

¶68In State of Rajasthan v. Aruna Devi and Others reported in

(1995) 1 SCC 1, a complaint was filed in the Court of Munsif and Judicial Magistrate, First Class, Bilara, against the respondents unde r various sections of the IPC. The gravamen of the allegation was that the respondents had, in pursuance of a conspiracy, transferred some land on the strength of a special power of attorney bearing forged sig nature. The Magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by Section 156(3) of the CrPC. A case was registered thereafter, by the police and a final report was submitted on

18.07.1981 stating that complaint was false. The report came t o be accepted by the Magistrate on 23.09.1981. It, however, so happened that the Superintendent of Police had independently ordered furt her investigation on 24.09.1981 and a challan came to be filed by police against the respondents, inter alia, under Sections 420 and 467 of the IPC. The Magistrate took cognizance on 25.06.1984. A challenge was made to this act of the Magistrate before Sessions Judge, Jodhpur, who dismissed the revision. On further approach to the High Court, the revision was allowed and the order of cognizance was set aside. The State came in appeal under Article 136 of the Constitution.

¶69This Court observed in paras 3 and 4 respectively as under:

¶3A perusal of the impugned judgment of the High Cou rt shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submi tted by police had been once accepted. Shri Gupta, appea ring for the appellant, contends that this view is erroneous in law inasmuch as Section 173(8) of the Code permits furt her investigation in respect of an offence after a repo rt under sub-section (2) has been submitted. Sub-section (8) also visualises forwarding of another report to the Magi strate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to ta ke cognizance of the same on his being satisfied in this reg ard. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶4Shri Francis for the respondents, however, contend s that the order of the Magistrate taking cognizance pursu ant to filing of further report amounted to entertaining s econd complaint which is not permissible in law. To substantiate the legal submission, we have been first referred to Pr amatha Nath Taluqdar v. Saroj Ranjan Sarkar [1962 Supp (2) SCR 297 : AIR 1962 SC 876 : (1962) 1 Cri LJ 770] , in which a three-Judge Bench of this Court dealt with this asp ect. A perusal of the judgment of the majority shows that it t ook the view that dismissal of a complaint under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated i n the judgment. Further observation in this regard is tha t a fresh complaint can be entertained, inter alia, when fresh evidenc e comes forward. In the present case, this is precisely wh at had happened, as on further investigation being made, f resh materials came to light which led to the filing of further report stating that a case had been made out. The aforesaid decision of this Court has been rightly referred to and relied upon by the High Court in its first order dated 11.09.2014.

¶70This Court in K. Chandrasekhar (supra) was considering a case, where on the complaint of a Police Inspector, a case was registered by the Kerala Police against the appellants therein for t he offences punishable under Sections 3 and 4 respectively of the Officia l Secrets Act, 1923 read with Section 34 IPC on the allegation that in collus ion with some Indians and foreigners they had committed acts prejudicial to the safety and sovereignty of India. During the investiga tion, certain other persons (appellants in accompanying appeals) we re arrested. Thereafter, a DIG of Police, who was the head of the team conducting the investigation, recommended the case for being investig ated by the CBI. Pursuant to such recommendation, the Government of Kerala by a notification dated 02.12.1994 accorded its consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, ‘the Act’) for further investigation of the case by the CBI. Accordingly , the CBI took up the investigation. After completion of the inves tigation, on

16.04.1996, the CBI filed its report in the final form under Section 173(2) of the CrPC, stating that the charges were not proved and were false. Accepting the report, the Magistrate discharged the accused-appellants. Thereafter, on 27.6.1996, the Government of Kerala issued a notification withdrawing the consent earlier given to the CBI to investigate the said case. The object of the said notification was to enable a reinvestigation of the case by a team of State Police Officers. By a mandatory notification dated 08.07.1996, the words “reinvestigation of the cas e” were substituted by the words “further investigation of t he case”. The State Government notification dated 27.6.1996 (as amended) was upheld by the High Court. This Court held that, from a plain reading of Section 173 of the CrPC, it is evident that even after submission of police report under sub section (2) on completion of investigation, the pol ice has a right of “further” investigation under sub section (8), but not “fres h investigation” or “reinvestigation”. The dictionary meaning of “further” (when used as an adjective) is “additional; more; supplemental”. “Further” investigation, therefore, is the continuation of the earlier investi gation and not a fresh investigation or reinvestigation to be starte d ab initio wiping out the earlier investigation altogether. The Court drew inspiration from the fact that sub section (8) clearly envisages that on completion of further investigation, the investigating agency has to forw ard to the Magistrate a “further” report or reports - and not fresh report or reports - regarding the “further” evidence obtained during such investigat ion. The Court held that once it is accepted that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that “further investigation” is a continuation of such investigation which culminates in a further police report under Section 173(8), it necessarily mea ns that withdrawal of consent in the said case would not entitle the State Police to further investigate into the case. However, the Court further observed thus: “To put it differently, if any further investigation is to be m ade, it is the CBI alone which can do so, for it was entrusted to investi gate into the case by the State Government. ” (Emphasis supplied). Thus, what was held by the Court was that after submission of re port under Section 173(2) Cr.P.C. reinvestigation or fresh invest igation is not permissible. However, it has been expressly observed that if any further investigation is to be made, it is the CBI alone which can do so. In other words, further investigation could be carried out, but that the same could be done by the CBI alone as it was entrusted to investigate into the case by the State Government and had carried out the investigat ion and submitted final report in connection therewith. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶71In S. Papaiah (supra) on a complaint made by the UPSC, investigation had been carried out by the CBI and final r eport was submitted under Section 173 of the CrPC before the Metropolitan Magistrate, before whom the first information report had been lodged, seeking closure of the case. The CBI in spite of the re quest made to it by the UPSC did not inform about the filing of the final report seeking closure of the case to the UPSC. The report was returned by the learned Metropolitan Magistrate as notice had not been issued to the complainant by the CBI though the CBI had asserted that it had informed the UPSC regarding the filing of the closure report. The final report was resubmitted by the CBI to the Court of the Metropolitan Magistrate along wi th a copy of the notice sent by the CBI to the UPSC. It appears t hat the report was again returned by the Metropolitan Magistrate seeking proof of service of notice on the de facto complainant. While the proceedings of submission of the final report were pending, the UPSC addressed a letter to the Director of CBI pointing out that the investigation had not been carried out properly and that the filing of the closure report was not justified. While the UPSC was awaiting further communicati on from the CBI in that behalf, the CBI resubmitted the closure repor t and the learned Metropolitan Magistrate accepted the final report submitted by the CBI and closed the file without any opportunity being provided to the UPSC to have its say. Upon receipt of communication of the or der of the court accepting the closure report, the UPSC filed a petition before the learned Metropolitan Magistrate submitting that the complaint had not been properly investigated and that it had no no tice about the acceptance of the final report. The Court rejected the p etition of the UPSC observing that it had accepted the final report filed by the CBI on

16.03.1995, since the UPSC had not filed its objections to the acceptance of the final report and as such, it could not complain. The Court als o opined that since an order accepting final report was a judicial order and not an administrative order, therefore, it had no power to review such an order passed by it “rightly or wrongly” and that the UPSC could fi le a revision petition seeking appropriate orders against the acceptance of the final report from the revisional court. The revision petition filed by the UPSC was dismissed by the revisional court. In appeal be fore this Court, it was held thus: “13. The appellant brought the contents of communic ation dated 23.01.1995 to the notice of the learned Metro politan Magistrate through its Miscellaneous Petition No. 2 040 of 1995 seeking ‘reinvestigation’ but the learned Magi strate, rejected the petition vide order dated 4.11.1995, o bserving that ‘rightly or wrongly that court had passed an order and it had no power to review the earlier order.’ Here, aga in the learned Magistrate fell into an error. He was not required to ‘review’ his order. He could have ordered ‘further investigation’ into the case. It appears that the l earned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also .” (Emphasis supplied)

¶72After referring to the provisions of Section 173(8) of the CrPC, the Court observed that the Magistrate could, thus, in exercise of the powers under Section 173(8) of the CrPC, direct the CBI to “furt her investigate” the case and collect further evidence kee ping in view the objections raised by the UPSC to the investigation and the “new” report to be submitted by the Investigating Officer would be governed by sub-sections (2) to (6) of Section 173 of the CrPC. The Court held that the learned Magistrate failed to exercise the jurisdiction vested in him by law and his order dated 04.11.1995 cannot be sustained.

¶73In the light of the aforesaid decision of the Supreme Court, it appears that though the order passed by the learned Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC. As held by this Court in the said decision, the provisions of Section 173(8) of the CrPC have been enacted to take care of such like situations also.

¶74In N.P . Jharia v. State of M.P . reported in (2007) 7 SCC 358, proceedings had been initiated against the appellant t herein in connection with possession of pecuniary resources disproportionate to his known sources of income. After investigation the Special Police Establishment (SPE) submitted a “final report” on 01.03.1990 informing the court that no offence was made out against the appellant. The final report was accepted by the Special Judge on 17.04.1 990. But on

01.07.1992, the SPE submitted an application before the Special Judge, seeking permission for further investigation. The Special Judge permitted further investigation. Thereafter, the sanction for prosecution was obtained from the State Government on 01.03.1995. The chargesheet STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. was filed in the court on 24.07.1995. On behalf of the appellant, it was urged that once the final report was submitted there is no scop e for further investigation. The Court held that so far as further investigation was concerned in the background of Section 173(8) of the CrPC the plea was clearly untenable.

¶75In Kari Choudhary v. Mst. Sita Deviand Others reported in (2002) 1 SCC 714, FIR No. 135 was registered on the basis of a complaint lodged by Sita Devi and investigation was commenced thereafter. During investigation, the police found that the murder of the victim, Sugnia Devi was committed pursuant to a conspiracy hatched by her mother-in-law Sita Devi and her daughters-in-law besides the others. So, the police sent a report to the court on 30.11.1998 stating th at the allegations in FIR No. 135 were false. The police continued wi th the investigation after informing the court that they had registered another FIR as FIR No. 208 of 1998. This Court, inter alia, held thus: “11. Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versi ons in respect of the same episode, they would normally ta ke the shape of two different FIRs and investigation would be carried on under both of them by the same investigating agency. Eve n that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an informatio n submitted to the court regarding the new discovery ma de by the police during the investigation that persons not named in FIR No. 135 are the real culprits. To quash the proce edings merely on the ground that final report had been laid i n FIR No. 135 is, to say the least, too technical. The ultimate obje ct of every investigation is to find out whether the o ffences alleged have been committed and, if so, who have committed it.

¶12Even otherwise, the investigating agency is not precluded from further investigation in respect of an offence in sp ite of forwarding a report under sub-section (2) of section 173 of a previous occasion. This is clear from Section 173(8 ) of the Code.” (Emphasis supplied)

¶76Thus, a conspectus of the aforesaid decisions of this Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is a ccepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the fi nal report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to revie w or recall the order accepting the final report.

¶77We may summarise our final conclusion as under:

(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency t o carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted.

(ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.

(iv) Further investigation is merely a continuation of the e arlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.

(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for furth er investigation under Section 173(8) of the CrPC. ONE DISTURBING PART OF THE PRESENT LITIGATION STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶78While recording the facts in the earlier part of our judgment, we have made reference of the order passed by a Co-ordinate Bench of the High Court dated 11.09.2014 in Crl. O.P. No. 6371 of 2014. All legal issues which we have discussed in the present judgment were lo oked into by the High Court and by a reasoned order, the High Court took the view that it was permissible for the CBI to undertake further investigation and the objections raised on behalf of the accused were not sustainable in law. We quote some of the relevant observations made by t he High Court in its order dated 11.09.2014: “5. In my opinion, on the facts and circumstances of the instant case, the above said decisions are of no help to the petitione r. In the aforesaid decisions, the well settled principle is restated that Section 173(8) of Cr.P.C enables an officer in charge o f a Police Station/CBI to carry on further investigat ion even after a report under Section 173(2) of Cr.P.C is submitt ed to the court. The power to further investigation, afte r filing of final report in court and even after the Magistrate has tak en cognizance, is available to the Police in view of th e Section 173(8) of Cr.P.C. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wi ping out the earlier investigation altogether. This is well sett led in the decision of the Hon’ble Supreme Court reported in 2013-5-SCC-762 (Tyagi Vs. Irshad Ali). The only rider is provide d is that it would be desirable that the Police should inform the Court and seek formal permission to make further investigation as observed in Bhagwan Samardha Sreep ada Vallabha Venkata Vishwadaha Maharaj Vs. State of AP (AIR-1999-SC-2332) .

¶6Although sub section (8) of Section 173 of Cr.P.C does not, in specific terms, mention about the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be trigge red into motion at the instance of the court. Therefore, acceptance of final report by Magistrate does not debar him from taking cognizance of the offence if no further investigati on fresh materials come to light. In such a situation, the power of the court to direct the police to conduct further inves tigation cannot have any inhibition. There is nothing in Section 173(8) of Cr.P.C to suggest that the court is obliged to h ear the accused before any such direction is made.

¶7In the instant case, in the counter filed by the Responde nt/ CBI, it is specifically stated that in the year 2013, CBI recei ved certain information/materials warranting reopening of the investigation. Accordingly, the Inspector of Police, CBI/ ACB has filed a petition in Crl. M.P.No.3833/2013 in re spect of the same First Information Report, stating that the pro secution is in possession of new evidence to substantiate the alleg ation of possession of disproportionate assets to the known sources of income against the accused persons. The said petition h as been allowed by the learned Principal Special Judge for CBI Cases, permitting further investigation .

¶8In so far as the power of the Magistrate to direct further investigation is concerned, I may point out her that the power of the Magistrate under Section 156(3) of the code to direct further investigation is clearly an independent pow er and does not stand in conflict with the power of the Police O fficer. The power conferred upon the Magistrate under Secti on 156(3) of the code can be exercised by the Magistrat e even after submission of a report by the Investigating Officer, which would mean that it would be open to the Magistrate not to accept the conclusion of the Investigating Officer and direct further investigation. This provision does not, in any way, affect the power of the Investigating Officer to fu rther investigate the case even after submission of the r eport as provided in sub section (8) of Section 173 of the C ode. Therefore, considering all these provisions, in my view, the Magistrate can order reopening of the investigation even af ter acceptance of the final report “making closure repo rt”.

¶9In the instant case, the learned Principal Speci al Judge for CBI Cases has passed the impugned order on the petit ion filed by the Investigating Officer, Inspector, CBI/ ACB. It is now clear that sub section (8) of section 173 of Cr.P.C gives power to the Investigating Officer to reopen the investigati on in the case in which final report had been submitted earlier and after completing the investigation fresh report has to be STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. submitted before the learned Special Judge under sub section

(2) of Section 173 of the Code. Of course, this can be done only on such fresh materials which did not come to the knowledge of the Investigating Officer, while he wa s conducting the investigation and in my view, exactly the same situation prevailed in this case.

¶11The same view has also been taken in the decision of the Hon’ble Supreme Court in State of Rajasthan Vs. Aruna Devi and others (1995-SCC-Crl-1) wherein it was held tha t acceptance of final report by Magistrate does not deba r him from taking cognizance of the offence if on further investigation fresh materials come to light.

¶12Mr. N. Chandrasekaran, the learned Special Publ ic Prosecutor has contended that there is no legal bar to the reopening of the investigation of any case in which closure report has been submitted if there are sufficient, cogent fres h materials to proceed against the accused persons. I find all force in his submissions. Having considered the riv al contentions of both the parties, I am of the opinio n that in view of the facts that the Inspector CBI/ACB has co llected some fresh materials connected with this case, whic h were not available to the Investigating Officer earlier, it cannot be said that the learned Principal Special Judge for C BI cases had acted beyond its jurisdiction by ordering reope ning of the investigation of the case.

¶13For the reasons stated above, I find full force in the contentions raised by the learned Special Public Pr osecutor for CBI Cases. I, therefore, do not find any illegal ity in the impugned order which warrants any interference by t his court.” (Emphasis supplied)

¶79It goes without saying that the aforesaid judgment delivered by the learned Single Judge of the High Court was very much binding to a Co-ordinate Bench when the Crl. O.P. Nos. 15873 and 11101 of 2015 respectively and Crl. O.P. No. 411 of 2016 were heard and decided. These are the matters, which were filed by the accused persons seeking discharge from the criminal proceedings. We may reproduce some of the observations made by the Co-ordinate Bench of the High Court in the impugned order assailed before us: “9. The legal point involved in the present criminal original petitions is as to whether the concerned Magistrate is havin g power of granting fresh investigation, especially after g etting closure report and consequently accepting the same.

¶10The Hon’ble Supreme Court, with regard to power o f a Magistrate under section 173(8) of the code of Crim inal Procedure, 1973, has made a threadbare discussion i n the decision reported in AIR 2015 SC 3566 (Chandra Babu alias Moses V. State through the Inspector of Police and others). After making elaborate discussion, the Hon’ble Supr eme Court has culled out the powers of Magistrate under the said Section like thus: “Now, when the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2) (i) of Section 173 comes up for consideration by the Magis trate, one of two different situations may arise. The repo rt may conclude that an offence appears to have been committed b y a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept t he report and take cognizance of the offence and issue proc ess, or (2) he may disagree with the report and drop the proceeding, or (3) he may direct further investigati on under sub-section (3) of section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have bee n committed and where such a report has been made, th e Magistrate again has an option to adopt one of three courses:

(1) he may accept the report and drop the proceeding, or (2) he may disagree with the report and taking the view that th ere is sufficient ground for proceeding further, take c ognizance of the offence and issue process, or (3) he may direct fur ther investigation to be made by the police under sub-section (3) of section 156”

¶11From a cursory reading of the observations made by th e Hon’ble Supreme Court, it is discernible that after ge tting a STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. final report under section 173(2) of the said code, the concerned Magistrate is having power, either to tak e cognizance or to direct the investigating agency to conduct further investigation as per section 173(8) of the s aid code.

¶12Even a mere reading of Section 173 of the Code and its sub-clauses, would get to show that after getting a final report , the concerned Magistrate is having unfettered right of granting further investigation as envisaged in sub-clause(s) of Section 173 of the said code.

¶13But, the legal position involves in the present petition s is otherwise. The legal point is as to whether after c losure of final report, as well as First Information Report, wheth er the concerned Magistrate is having power to grant permi ssion either to conduct further investigation/re-investig ation/de-novo investigation.

¶14At this juncture, it would be condign to look into the real dictionary meaning of “further investigation”. The dictionary meaning of ‘further’ (when used as an adjective) is additional; more; supplemental’. ‘Further’ Investigation theref ore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wi ping out the earlier investigation altogether. Therefore, it is pellucid that for granting permission to conduct ‘further investigatio n’ an investigation must be pending or to put it in sh ort, some proceeding must be pending before the concerned court. It i s also a settled principle of law that after filing a fi nal report under sub-clause (2) of Section 173 of the said cod e, while matter is pending, the investigating officer can co llect some more materials so as to strengthen the accusation made against the concerned accused.

¶15As adverted to earlier, in the instant case, th e main contention of the petitioners is that already investigation has been done against the accused 1 and 2 and a closure report has been filed before the Principal Special Judge for CBI Cases, Chennai and th e same has been accepted and consequently, First Informatio n Report has been dosed. Under the said circumstances , to grant permission either to conduct ‘further investig ation’ or ‘reinvestigation’ does not arise. Xxx xxx xxx

¶20After lapse of four years from passing the order menti oned suprain the year 2013, the respondent, as petitioner, has file d Crl.M.P.No.3833 of 2013, on the file of the Principals Special Court for CBI Cases, Chennai, herein, it is prayed to pe rmit the petitioner therein to re-open and further investigation the above case. Xxx xxx xxx

¶23The learned Special Public Prosecutor has advanced his entire argument only on the basis of the order pass ed in Criminal Original Petition No.6371 of 2014. In fact , at the time of passing the order in Crl.O.P.No.6371 of 201 4, the decision mentioned supra has not been brought to th e knowledge of this court. Under the said circumstanc es, this court has erroneously ratified the permission granted by the Principal Special Judge for CBI cases, Chennai. The refore, on the basis of the order passed, in Crl.O.P.No.6371 of 2014 by this court, we cannot come to a conclusion that the order passed by the Principal Special Judge for CBI Case, Chennai, is valid in law. Further, it has already been pointed o ut that the said order has been passed even without power. Since the said order is totally alien to law, the subsequent proceedings are also bad in law.

¶24The present petitions have been filed praying t o quash the final report filed in Calendar Case No.13 of 2015. Since the permission granted to the respondent for conduc ting re-investigation or further investigation by the Principal Spec ial Judge for CBI Cases, Chennai is totally illegal and since the subsequent proceedings are also entirely bad in law , it is needless to say that the final report filed thereon is also bot h factually and legally not sustainable. Under the sa id circumstances, the legal point raised on the side o f the petitioner is really having subsisting force. On that score alone, these petitions are liable to be allowed. ” (Emphasis supplied) STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶80Thus, one Co-ordinate Bench of the High Court, virtually sat in appeal over the judgment of another Co-ordinate Bench and took a contrary view. The learned Single Judge says in his impugned order that the High Court in its earlier order dated 11.09.2014 referred to ab ove omitted to consider the decision of this Court in the case of Vinay Tyagi (supra) and therefore, per incuriam whereas, the decision of this Court in the case of Vinay Tyagi (supra) was very much looked into and has been referred to in the order dated 11.09.2014. Thus, two contrary views have been taken by different judges of equal strength of the High Court on the same subject and litigation.

¶81We would like to extend a word of caution over here. While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on pap ers being placed before the learned Chief Justice. The learned Judge cannot simply say “with due respect, I do not agree to the ratio...” or “the decision i s per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.

¶82We may remind the High Court of the observations made by this Court in Official Liquidator v. Dayanand and Others reported in

(2008) 10 SCC 1. In this decision, this Court has emp hasised the adherence to basics of judicial discipline and the need for predictability and a certainty in law. In that context, certain earlier judgment s have been referred to as to whether one Bench of the Court not following the view of another Co-ordinate Bench has been commented upon as under: “78. There have been several instances of different Ben ches of the High Courts not following the judgments/orde rs of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise , there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicia l discipline which is sine qua non for sustaining the system. In Mahadeolal Kanodia v. Administrator General of W.B. [AIR 1960 SC 936 : (1960) 3 SCR 578] this Court observed : (AIR p. 941, para 19) “19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous dec ision of another Division Bench, and holding the view tha t the earlier decision is wrong, itself gives effect to th at view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients a nd all courts subordinate to the High Court would find thems elves in an embarrassing position of having to choose bet ween dissentient judgments of their own High Court.” (emphasis added)

¶79In Lala Shri Bhagwan v. Ram Chand [AIR 1965 SC 1767] Gajendragadkar, C.J. observed : (AIR p. 1773, para 18) “18. … It is hardly necessary to emphasise that consideratio ns of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take t he view that the earlier decisions of the High Court, wheth er of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional wa y to deal with such matters and it is founded on healthy prin ciples of judicial decorum and propriety. It is to be regretted th at the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.” Xxx xxx xxx STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v.

¶82In Vijay Laxmi Sadho (Dr.) v. Jagdish [(2001) 2 SCC 247] this Court considered whether the learned Single Ju dge of the Madhya Pradesh High Court could ignore the judg ment of a coordinate Bench on the same issue and held : (SCC p. 256, para 33) “33. As the learned Single Judge was not in agreement wi th the view expressed in Devilal case [Devilal v. Kinkar Narma da Prasad, Election Petition No. 9 of 1980 (MP)] it would have been proper, to maintain judicial discipline, to refer the matt er to a larger Bench rather than to take a different v iew. We note it with regret and distress that the said course was not followed. It is well settled that if a Bench of coo rdinate jurisdiction disagrees with another Bench of coordi nate jurisdiction whether on the basis of ‘different arg uments’ or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rathe r than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the bas is of judicial procedure and it must be respected at all costs .” Xxx xxx xxx

¶90We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the b asics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial in stitution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decad es and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.

¶91We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and re spect its ideals and institutions. Those who have been entrus ted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constituti onal ideals. This principle is required to be observed with gr eater rigour by the members of judicial fraternity who ha ve been bestowed with the power to adjudicate upon importan t constitutional and legal issues and protect and preserve righ ts of the individuals and society as a whole. Discipli ne is sine qua non for effective and efficient functioning of the judic ial system. If the courts command others to act in acco rdance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the consti tutional principle by those who are required to lay down the law.” (Emphasis supplied) We need to add nothing more in this context. DELAY IN TRIAL ON ACCOUNT OF FURTHER INVESTIGATION

¶83It was vehemently submitted on behalf of the accused that further investigation if permitted after such a long lapse of time, would result in delay in trial. For years to come, the sword of Damocles should not be kept hanging on the neck of the accused perso ns. In such circumstances, it was argued before us that keeping in mind tha t this litigation is now almost more than a decade old, it will not be in fitness of things to put the accused persons to trial.

¶84In the aforesaid context, we may only say that the gener al rule of criminal justice is that “ a crime never dies ”. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. (See: Japani Sahoo v. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394.)

¶85The following observations in Hasanbhai (supra), have been made by this Court in reference to further investigation: “13. ….if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mer e fact that there may be further delay in concluding the trial shoul d not stand in the way of further investigation if th at would help the court in arriving at the truth and do real and substantial as well as effective justice. …”

¶86Thus, the assurance of a fair trial is to be the first imperative in the dispensation of justice. [Reference: Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi reported in(1996) 6 SCC 323]. The need for fair investigation has also been emphasized in Vinay Tyagi (supra) where it was observed as under: “48. What ultimately is the aim or significance of the expression “fair and proper investigation” in crimi nal jurisprudence? It has a twin purpose: Firstly, the investi gation must be unbiased, honest, just and in accordance wi th law; secondly, the entire emphasis on a fair investigati on has to be to bring out the truth of the case before the co urt of competent jurisdiction. ….”

¶87Reference may also be placed on the decision in Pooja Pal v. Union of Indiaand Others reported in (2016) 3 SCC 135, where the fundamental rights enshrined under Article 21 of the Constitution of India were discussed in the context of ”speedy trial” juxtaposed to ”fair trial” in the following manner: “83. A “speedy trial”, albeit the essence of the fundamen tal right to life entrenched in Article 21 of the Const itution of India has a companion in concept in “fair trial”, both being inalienable constituents of an adjudicative process , to culminate in a judicial decision by a court of law as the fi nal arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that deni al of the former by itself would not be prejudicial to the accused, w hen pitted against the imperative of fair trial. As fun damentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any imp artial agency, probe by the State Police notwithstanding, ha s to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffecti ve or is presumed or inferred to be not being able to discha rge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot re duce itself to be a resigned and a helpless spectator and w ith the foreseen consequences apparently unjust, in the fac e of a faulty investigation, meekly complete the formalities to r ecord a foregone conclusion. Justice then would become a casualty. Though a court’s satisfaction of want of proper, fair, impar tial and effective investigation eroding its credence and reliabilit y is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ips o facto or the pendency of the trial can by no means be a proh ibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and a nalysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out j ustice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true fa cts which ought to be unearthed through a committed, resolved and a competent investigating agency.”. (Emphasis supplied) NON-COMPLIANCE OF THE SECOND PROVISO TO SECTION 17 OF THE 1988 ACT

¶88The Second proviso to Section 17 of the 1988 Act directs that the offence referred to under clause (e) of sub section (1) of Section 13 of the 1988 Act shall not be investigated without the order of a p olice officer not below the rank of a Superintendent of Police. Thus, from the Second proviso, it is clear that an investigation into the offence referred to in clause (e) of sub section (1) of Section 13 of the 1988 Act even by any police officer enumerated in clauses (a) to (c) or any Police Officer authorized in that behalf by the State Government as per the first proviso, can be undertaken only by an order of the police officer not below the STATE THROUGH CENTRAL BUREAU OF INVESTIGATION v. rank of Superintendent of Police. Thus, the Second proviso is in the nature of additional safe guard for the public servant who a re accused of the offence punishable under Section 13(1)(e) of the 1988 Act against an investigation by a police officer without the knowledge and consent of superior police officer not below the rank of Superintendent of Police. A superior police officer of the rank of Superintendent of Police or any officer higher in rank is required to pass an order before an investigation, if any, for such offence is commenced. It is needless to point -out that, before directing such investigation, the Superintendent of Police or an officer superior to him is required to apply his mind to the information and come to an opinion that the investigation on such allegat ions is necessary. The argument canvassed on behalf of the accused per sons is that there is no such order of the police officer not below the rank of Superintendent of Police in the chargesheet. We do not propose to go into this issue in the present litigation. This issue was no t even raised before the High Court. Even otherwise, this is a question of fact and a matter of record. If it is the case of the accused that the re is no such order on record, the same may be pointed out to the trial co urt in the course of the trial. It is for the trial court to verify the record, look into it and take an appropriate call on this issue in accordance with law.

¶89In view of the aforesaid discussion, all the appeals filed by the CBI succeed and are hereby allowed.

¶90The impugned orders passed by the High Court are hereby set aside.

¶91The Special Court shall now proceed further with the trial of the accused persons in accordance with law.

¶92Pending applications if any shall stand disposed of. Ankit Gyan Appeals allowed. (Assisted by : Mahendra Yadav, LCRA)