1. Through the medium of this petition under section 561A of the Criminal Procedure Code, the petitioners set quashing of the proceedings
pending before Judicial Magistrate First Class, Tangmarg and his order dated S41987 in the case titled State versus Mohammad Amin Khan and
others.
2 It is not necessary to go into details of the facts of the case. Suffice it to say that a case F. I. R. No. 29/85 was lodged in police station Tangmarg
on 27lL?85. The police after investigating presented the challan before the Judicial Magistrate First Class, Tangmarg. While the case was pending
before the said court, an application came to be filed by the Prosecuting Officer praying, inter alia, to reinvestigation' the case on the grounds
contained in that application. Two of the main grounds mentioned therein were that the previous investigating officer had not effected the recoveries
and that certain other important and salient facts having vital bearing on the case were not brought out. Reliance for these grounds was placed on
the statement of a prosecution witness namely Mr. Baba. The learned Judicial Magistrate noticed the provisions of subsection (8) of Section 173
Cr. P. C. and observed that the investigating agency had the right to conduct further investigation in respect of an offence, even after report under
subsection (2) of Section 173 Cr. P. C. has been forwarded to the Magistrate. He observed that the investigation agency was at liberty to go in for
furtner investigation at their option. It is this order which is sought to be quashed principally on the ground that there is no right with the police to
further investigate the case after the court has taken cognizance and that Magistrate himself can alter the charge under Section 227 of the Code of
Criminal Procedure if the material so justifies. No ground has however, been urged in support of the prayer to quash the proceedings pending
before the trial court in the challan. Therefore, it is only the challenge to the order dated 141987 which survives for consideration.
In my opinion, for what follows, this petition has no merit and must fail.
The police has not only a statutory right but a duty also to investigate the fact and circumstances of a case where the commission of a cognizable
offence is suspected and to submit its report after investigation to the Magistrate having jurisdiction to take congnizance of the offence upon the
police report. This statutory right is not circumscribed by reason of the fact that the Magistrate has already taken cognizance of the offence upon
the police report. This position of law was established by Five Law Lords of the Privy Council in Emperor us. Khwaja Nazir Ahmed, AIR 1945
Privy Council 18 and dealing with the powers of the High court under section 561A to interfere with the investigation by the police under the Code
of Criminal Procedure, the privy Council opined:
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 which 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 upon them the duty of enquiry In India there is a statutory right on the part of the
police under Ss 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the Judicial
authorities and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent
jurisdiction of the court under S 156A The functions of the judiciary and the police are complementary not overlapping and the combination of
individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own funcition, always of course
subject to the right of the court to intervene in an appropriate case when moved under S. 491, Criminal P. C., to give directions in the nature of
habeas corpus. In the case of a cognizable offence, the court's functions begin when a charge is preferred before it is not untilthen and, therefore,
the High court can interfere under S. 561A only when a charge has been preferred and not before. As the police have under Ss. 154 and 156, a
statutory right to investigate a cognizable offence without requiring the sanction of the court, to quash the police investigation on the ground that it
would be an abuse of the powers of the court would be to act on treacherous grounds"".
(Emphasis supplied)
3. The law laid down by the Privy Council has stood the test of time and has been noticed with approval by their Lordships of the Supreme Court
of India in various Judgments, including AIR 1979 S. C. 1791.
There was no provision in the code of Criminal Procedure Samvat 1989, prescribing the procedure to be followed by the police whereafter the
submission of the report under section 173 (1) Cr. P. C. and after the Magistrate had taken cognizance of the offences, fresh facts come to light
which require further investigation. However, most of the High courts in the country held that since there was no express provision prohibiting the
police from launching upon an investigation into the fresh facts coming to light after the submission of the report under section 173 (1) of the Code
of Criminal Procedure, or, after the Magistrate has taken cognizance of the offence, further investigation could not bs denied to ths investigation
agency.
The Law Commission in its 41st report recognized the position and recommended that the right of the police to make further investigation should
be statutorily affirmed. Accordingly, in the Criminal Procedure Code, 1973, (Central) Section 173 (8) was introduced. In this State also, the code
of Criminal Procedure Samvat 1989 was amended in 1978 and a new provision, Saction 173 (8), was introduced. The said section provides as
under:
8) ""Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been
forwarded to the Magistrate and, whereupon such investigation, of the officer incharge 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
subsections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in subsection (2)"".
4. A plain reading of the section shows that a statutory right has now been given to the police to conduct further investigation, notwithstanding, that
a Magistrate has taken cognizance of an offence upon a police report submitted under section 173 (2) of the amended Code ef Criminal
Procedure. The section itself provides that the right of the police to further investigate is not exhausted by the mere submission of the report and the
police can exercise the right of investigation as often as is necessary when fresh information comes to light. As held in Emperor vs. Khwaja Nazir
Ahmad (supra) this statutory right of investigating agency as contained in section 173 (8) Cr. P. C. (as amended) cannot be ordinarily interfered
with in exercise of the powers under 561A Cr. P. C.
5. The Supreme court in, Ram Lal Narang vs. State, AIR 1979 S. C. 1701, had also an occasion to consider the right of the investigation agency
to carry further investigation and submit a supplementary report under the (unamended) Code of Criminal Procedure. Their Lordships held that the
investigation agency has the power not only to investigate and submit the report but also to carry out further investigation and submit supplementary
report if the facts and circumstances so warrant. It would be profitable to notice the following observations of their Lordships:
Any one acquainted with the daytoday working of criminal courts will be alive to the practical necessity of the police possessing the power to
make further investigation and submit a suppemlental report, it is in the interest of both the prosecution and the defence that the police should have
such power. It is easy to visualise a case where fresh material may come to light which would implicate 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 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 prcicess 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 wirh the ""provisions of the Code of Criminal Procedure in such situations is a matter best left to
the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the court is really
not of very great substance, since, whatever the police may do, the final discretion in regard to further action is w.th the Magistrate. That the final
word is with the Magistrate is sufficient safeguard against any excessive use of abuse of the power of the police to make further investigation. We
should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh
fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the
magistracy and the judiciary, in the interest of the purity of the administration of criminal justice and in the interests of the comity of the various
agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the
court and seek to make further investigation when fresh facts come to light"". (Emphasis supplied)
6. The observations of their Lordships are, thus, a complete answer to the submission of Mr. Wani noticed elsewhere in this judgment.
7. Thus, in view of the law laid down by the Privy council and the Supreme Court (supra) and keeping in view the provision of subsection 173 (8)
Cr. P. C. (as amended), I hold jthat further investigation by the police notwithstanding the submission of us report under section 173 (2) Cr. P. C.
and the fact that the Magistrate has already taken cognizance, is its statutory right which cannot be interferred with in exercise of the inherent
powers of this High court under section 561A Cr. P. C. The use of the expression reinvestigation' in the application of the Prosecuting officer
would not change the position because it actually is the prayer for ""further investigation"" for the reasons disclosed in the application. The order of
the learned Judicial Magistrate First Class, Tangmarg, dated 141987 under the circumstances does not merit interference.
8. Before parting with this order I would, however, like to observe that nothing said hereinabove, should be construed as any expression of Mr.
Wani that certain persons are sought to be' implicated, after further investigation, falsely would be a matter to be determined by the Magistrate at
the conclusion of trial after evidence i. e. led. I would not like to express any opinion on that submission at this stage.
