Sl. No. S.173, Code of Criminal Procedure Bench Streng TH 11. When A Report Forwarded by The Police To The Magistrate

Sl.
S.173, CODE OF CRIMINAL PROCEDURE
Bench
No.
Streng
th
11. When a report forwarded by the police to the Magistrate
under Section 173(2)(i) is placed before him several
situations arise: the report may conclude that an offence
appears to have been committed by a particular person or
persons and in such a case, the Magistrate may either (1)
accept the report and take cognizance of the offence and
issue process, or (2) may disagree with the report and drop
the proceeding, or (3) may direct further investigation under
Section 156(3) and require the police to make a further
report. The report may on the other hand state that
according to the police, no offence appears to have been
committed. When such a report is placed before the
Magistrate he again has option of adopting one of the three
courses open i.e. (1) he may accept the report and drop the
proceeding; or (2) he may disagree with the report and take
the
view
that
there
is
sufficient
ground
for
further
proceeding, take cognizance of the offence and issue

process; or (3) he may direct further investigation to be
made by the police under Section 156(3). The position is,
therefore, now well settled that upon receipt of a police
report under Section 173(2) a Magistrate is entitled to take
cognizance of an offence under Section 190(1)(b) of the
Code even if the police report is to the effect that no case is
made out against the accused. The Magistrate can take into
account the statements of the witnesses examined by the
police during the investigation and take cognizance of the
offence complained of and order the issue of process to the
accused. Section 190(1)(b) does not lay down that a
Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the investigation
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has made out a case against the accused. The Magistrate

can ignore the conclusion arrived at by the investigating
officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the
case, if he thinks fit, exercise his powers under Section
190(1)(b) and direct the issue of process to the accused. The
Magistrate is not bound in such a situation to follow the
procedure laid down in Sections 200 and 202 of the Code for
taking cognizance of a case under Section 190(1)(a) though
it is open to him to act under Section 200 or Section 202
also. (See India Carat (P) Ltd. v. State of Karnataka2.)
12. The informant is not prejudicially affected when the
Magistrate decides to take cognizance and to proceed with
the case. But where the Magistrate decides that sufficient
ground does not subsist for proceeding further and drops the
proceeding or takes the view that there is material for
proceeding against some and there are insufficient grounds
in respect of others, the informant would certainly be
prejudiced as the first information report lodged becomes
wholly or partially ineffective. This Court in Bhagwant Singh
v. Commr. of Police3 held that where the Magistrate decides
not to take cognizance and to drop the proceeding or takes a
view that there is no sufficient ground for proceeding against
some of the persons mentioned in the first information
report, notice to the informant and grant of opportunity of
being heard in the matter becomes mandatory. As indicated
above, there is no provision in the Code for issue of a notice
in that regard.
13. We may add here that the expressions charge-sheet or
final report are not used in the Code, but it is understood
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in Police Manuals of several States containing the rules and

the regulations to be a report by the police filed under
Section 170 of the Code, described as a charge-sheet. In
case of reports sent under Section 169 i.e. where there is no
sufficiency of evidence to justify forwarding of a case to a
Magistrate, it is termed variously i.e. referred charge, final
report or summary. Section 173 in terms does not refer to
any notice to be given to raise any protest to the report
submitted by the police. Though the notice issued under
some of the Police Manuals states it to be a notice under
Section 173 of the Code, there is nothing in Section 173
specifically providing for such a notice.
14. As decided by this Court in Bhagwant Singh case3 the
Magistrate has to give the notice to the informant and
provide
an opportunity
to be heard at the time of
consideration of the report. It was noted as follows: (SCC p.

542, para 4)
[T]he Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of
consideration of the report.
15. Therefore, the stress is on the issue of notice by the
Magistrate at the time of consideration of the report. If the
informant is not aware as to when the matter is to be
considered, obviously, he cannot be faulted, even if protest
petition in reply to the notice issued by the police has been
filed belatedly. But as indicated in Bhagwant Singh case3 the
right is conferred on the informant and none else.
Minu Kumari v. State of Bihar, (2006) 4 SCC 359
14. Sub-section (1) of Section 173 CrPC makes it clear that
every investigation shall be completed without unnecessary
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Bench
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delay. Sub-section (2) mandates that as soon as the
investigation is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the
form prescribed by the State Government mentioning the
name of the parties, nature of
persons
who
appear
to
information, name of the

be
acquainted
with
the
circumstances of the case and further particulars such as the

name of the offences that have been committed, arrest of
the accused and details about his release with or without
sureties.
15. Among the other sub-sections, we are very much
concerned about sub-section (8) of Section 173 which reads
as under:
173. (8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of
the
police
station
obtains
further
evidence,
oral
or
documentary, he shall forward to the Magistrate a further

report or reports 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 subsection (2).
A mere reading of the above provision makes it clear that
irrespective of the report under sub-section (2) forwarded to
the Magistrate, if the officer in charge of the police station
obtains further evidence, it is incumbent on his part to
forward the same to the Magistrate with a further report with
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Bench
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regard to such evidence in the form prescribed. The
abovesaid
provision
also
makes
it
clear
that
further
investigation is permissible, however, reinvestigation is

prohibited.
16. The law does not mandate taking of prior permission
from the Magistrate for further investigation. Carrying out a
further investigation even after filing of the charge-sheet is a
statutory right of the police. Reinvestigation without prior
permission
is
prohibited.
On
the
other
hand,
further
investigation is permissible.
17. From a plain reading of sub-section (2) and sub-section
(8) of Section 173, it is evident that even after submission of
the police report under sub-section (2) on completion of the
investigation, the police has a right to further investigation
under sub-section (8) of Section 173 but not fresh
investigation or reinvestigation. The meaning of further
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 out the earlier investigation altogether.
18. Sub-section (8) of Section 173 clearly envisages that on
completion of further investigation, the investigating agency
has to forward to the Magistrate a further report and not a
fresh report regarding the further evidence obtained
during such investigation.
19. As observed in Hasanbhai Valibhai Qureshi v. State of
Gujarat1 the prime consideration for further investigation is
to arrive at the truth and do real and substantial justice. The
hands of the investigating agency for further investigation
should not be tied down on the ground of mere delay. In
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other words
[t]he 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 as well as effective justice.
(SCC p. 351, para 13)
22. The law does not mandate taking prior permission from
the Magistrate for further investigation. It is settled law that
carrying out further investigation even after filing of the
charge-sheet is a statutory right of the police (vide K.
Chandrasekhar v. State of Kerala2). The material collected in
further investigation cannot be rejected only because it has
been filed at the stage of the trial. The facts and
circumstances show that the trial court is fully justified to
summon witnesses examined in the course of further
investigation. It is also clear from Section 231 CrPC that the
prosecution is entitled to produce any person as witness
even though such person is not named in the earlier chargesheet.
Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346
9. Though under the old Code there was no express
provision like sub-section (8) of Section 173 of the Code
statutorily empowering the police to further investigate into
an offence in respect of which a charge-sheet has already
been filed and cognizance taken under Section 190(1)(b),
such a power was recognised by this Court in Ram Lal
Narang
v.
State
(Delhi
Admn.)4.
In
exemplifying
the
situations which may prevail upon the police to take up

further investigation and the procedure the Court may have
Sl.
No.
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to follow on receipt of the supplemental report of such

investigation, this Court observed: (SCC p. 337, para 20)
It is easy to visualise a case where fresh material may
come to light which would implicate persons not previously
accused or absolve persons already accused. When it comes
to the notice of the investigating agency that a person
already accused of an offence has a good alibi, is it not the
duty of that agency to investigate the genuineness of the
plea of alibi and submit a report to the Magistrate? After all
the investigating agency has greater resources at its
command than a private individual. Similarly, where the
involvement of persons who are not already accused comes
to the notice of the investigating agency, the investigating
agency cannot keep quiet and refuse to investigate the fresh
information. It is their duty to investigate and submit a
report to the Magistrate upon the involvement of the other
persons. In either case, it is for the Magistrate to decide
upon his future course of action depending upon the stage at
which the case is before him. If he has already taken
cognizance of the offence, but has not proceeded with the
enquiry or trial, he may direct the issue of process to
persons freshly discovered to be involved and deal with all
the accused in a single enquiry or trial. If the case of which
he has previously taken cognizance has already proceeded
to some extent, he may take fresh cognizance of the offence
disclosed against the newly involved accused and proceed
with the case as a separate case. What action a Magistrate is
to take in accordance with the provisions of the Code of
Criminal Procedure in such situations is a matter best left to
the discretion of the Magistrate.
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No.
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State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438
LIST OF JUDGMENTS
1.
2.
3.
4. Minu Kumari v. State of Bihar
(2006) 4 SCC
359
5. Rama Chaudhary v. State of Bihar
(2009) 6 SCC
346
6.
7.
8.
9.
10.
11.
GROUNDS PREVIOUSLY TAKEN BY LITIGANTS
Sl.
No.
Bench
Streng
th
REPLY TO GROUNDS PREVIOUSLY TAKEN BY LITIGANTS

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Sl.

S.173, CODE OF CRIMINAL PROCEDURE

proceeding, take cognizance of the offence and issue

S.173, CODE OF CRIMINAL PROCEDURE

has made out a case against the accused. The Magistrate

S.173, CODE OF CRIMINAL PROCEDURE

in Police Manuals of several States containing the rules and

to be heard at the time of

consideration of the report. It was noted as follows: (SCC p.

S.173, CODE OF CRIMINAL PROCEDURE

information, name of the

circumstances of the case and further particulars such as the

documentary, he shall forward to the Magistrate a further

S.173, CODE OF CRIMINAL PROCEDURE

investigation is permissible, however, reinvestigation is

S.173, CODE OF CRIMINAL PROCEDURE

situations which may prevail upon the police to take up

S.173, CODE OF CRIMINAL PROCEDURE

to follow on receipt of the supplemental report of such

S.173, CODE OF CRIMINAL PROCEDURE

State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438

5. Rama Chaudhary v. State of Bihar

S.173, CODE OF CRIMINAL PROCEDURE

REPLY TO GROUNDS PREVIOUSLY TAKEN BY LITIGANTS

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