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Powers Of The Magistrate To Order Further Investigation After Discharging The Accused

By Sunil Garodia

About the Author

Sunil Garodia Editor-in-Chief of Current Affairs analyst and political commentator. Writes for a number of publications.

The Supreme Court has ruled that once a magistrate accepts the police report and discharges the accused, he does not have the powers to suo moto order further investigation in the case. In the case Bikash Ranjan Rout vs State through Secretary (Home), Government of NCT of Delhi, New Delhi, the appellant Bikash Ranjan Rout was accused for offences under sections 420, 468 and 471 of the IPC. The charge-sheet was filed by the investigating officer and the Magistrate discharged the accused at the time of considering the charge-sheet and the framing of the charges. But, curiously, in the same order, the Magistrate observed that the case needed further investigation to reach a logical conclusion and directed the police to carry out the same. On appeal, the High Court confirmed the order of the trial court. Aggrieved by this, the appellant approached the apex court.

Now, the question before the apex court was whether it was permissible for the Magistrate to order a further investigation by the police in the case in which he had already discharged the accused. The bench observed that when a case comes up before the trial court, the police report may either say that an offence has been committed or not been committed. The court cited the case Bhagwant Singh vs Commissioner of Police to quote that “when the report forwarded by the officer­in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation 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 been committed and where such a report has been made, the 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 there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub­section (3) of Section 156.”

In the instant case, the court said that “if the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. As observed hereinabove, having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the pre-cognizance stage. Once the learned Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) of the CrPC, learned Magistrate in exercise of the powers under Section 227 of the CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the accused can be said to be made at the post­cognizance stage. There is a distinction and/or difference between the pre­cognizance stage and post­cognizance stage and the powers to be exercised by the Magistrate for further investigation at the pre­cognizance stage and post­cognizance stage.

The court further said that "If the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2) (i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate cannot suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report.”