Calcutta High Court (Appellete Side)Najimul Haque vs The State Of West Bengal & Ors on 28 November, 2023IN THE HIGH COURT AT CALCUTTA\n\n                     (Criminal Revisional Jurisdiction)\n\n                             APPELLATE SIDE\n\n\n\nPresent:\n\nThe Hon'ble Justice Shampa Dutt (Paul)\n\n                            CRR 1054 of 2019\n\n                              Najimul Haque\n\n                                    Vs\n\n                      The State of West Bengal & Ors.\n\n\n\nFor the Petitioner                       : Mr. Ashis Kr. Chowdhury,\n                                           Mr. Rajib Ghosh,\n                                           Mr. Babhru Bahan Bera.\n\nFor the Opposite Party Nos. 2 & 3        : Ms. Chandreyi Alam,\n                                           Ms. Dishari Mukherjee.\n\n\n\nFor the State                            : Mr. P.K. Datta,\n                                           Ms. Rita Datta.\n\n\n\n\nHearing Concluded on                     : 20.11.2023\n\nJudgment on                              : 28.11.2023\n                                        2\n\n\nShampa Dutt (Paul), J.:1.   The present revision has been preferred Challenging the impugned order\n\n     dated 18.02.2019 G.R. case being no. 4570 of 2018 passed by the\n\n     Learned Chief Judicial Magistrate, Malda by not considering the prayer\n\n     of the petitioner for investigation through other investigating agency and\n\n     not considering the suspicious death of the deceased daughter of the\n\n     petitioner.2.   The petitioner/complainant's case is that petitioner's deceased daughter\n\n     Najni Khatun aged about 16 years and his son Sk. Miraj age about 13\n\n     years were studying in Kaliyachak Abasik Mission. During his deceased\n\n     daughter Najni Khatun's stay in Kaliyachak Abasik Mission the\n\n     authorities of the Mission did not give an opportunity to the children of\n\n     the petitioner to contact with him and the petitioner was also not\n\n     permitted to visit his children to collect information regarding their\n\n     progress in study.3.   On 28.10.2018 the Assistant Teacher of Kaliyachak Abasik Mission\n\n     named Ataur Rahaman told the petitioner over phone to take his son Sk.Miraj to his house as his son was permitted to take leave due to holidays\n\n     and after that the father of the petitioner Faizuddin met the petitioner's\n\n     deceased daughter Najni Khatun on 28.10.2018 and Sk. Miraj (brother of\n\n     the deceased) was brought to his house by the petitioner's father at\n\n     about 7 p.m.34.   On 30.10.2018 at about 7 p.m. the petitioner received a call from an\n\n     unknown mobile number and the person introduced himself as a teacher\n\n     of Kaliyachak Abasik Mission. The person told the petitioner to come to\n\n     Kaliyachak Abasik Mission on 31.10.2018.5.   On 30.10.2018, the petitioner received another call from a student\n\n     named Arun Ghosh and he told the petitioner that his daughter Najni\n\n     Khatun fell from the rooftop of Kaliyachak Abasik Mission and was\n\n     admitted in Malda Medical College. The petitioner sent one Mister Sk, the\n\n     resident of Sultanganj and the friend of the petitioner's brother-in-law to\n\n     Kaliyachak Abasik Mission to inquire about his deceased daughter Najni\n\n     Khatun. The Headmaster of Kaliyachak Abasik Mission Mr. Amirul Islam\n\n     told Mister Sk that he made guardian call of Najni Khatun on 30.10.2018\n\n     but as her guardian was absent on 30.10.2018, again on 31.10.2018 he\n\n     made guardian call of Najni Khatun but on the night of 30.10.2018 he\n\n     was informed that Najni Khatun fell from the rooftop of Kaliyachak\n\n     Abasik Mission.6.   The petitioner then rushed to the Hospital and found his daughter in\n\n     serious condition. She died at Malda Medical College at 10.30 p.m. on\n\n     31.10.2018.7.   The complaint was lodged with Kaliachak Police Station, Malda and at\n\n     first was received as a General Diary being no. 1414 dated 31.10.2018\n\n     letter which was then registered as a F.I.R. being no. 796/18 dated431.10.2018. On completion of investigation charge sheet was submitted\n\n     for offence punishable underSections 306/34of the Indian Penal Code.8.   The   petitioner   states   that   during   investigation,   the   concerned\n\n     Investigation Officer prepared the case Diary in a collusive manner, by\n\n     showing the case as suicidal in nature. It is stated that if the daughter of\n\n     the petitioner would have fallen from the terrace of a five storied building,\n\n     the nature of factures, trauma and injuries all over the body and vital\n\n     organs of the body would definitely supports medical science, but the\n\n     same violates the principle of medical jurisprudence.9.   It is submitted that the Investigating Officer did not take any legal course\n\n     by inviting a Ld. Magistrate to record the dying declaration of the\n\n     deceased and the post mortem was conducted by the medical officer\n\n     without informing a Magistrate. Even the inquest report was prepared\n\n     without the presence of Magistrate.10. The petitioner along with other witnesses approached the investigating\n\n     officer to record their statements underSection 164Cr.P.C. before the\n\n     Magistrate but the investigating officer refused to record their statement\n\n     before the Magistrate. The investigating officer did not record his\n\n     statement underSection 161Cr.P.C. Even the investigating officer of the\n\n     Kaliachak P.S., Malda neither seized any article nor send any sample of\n\n     visera for chemical analysis as well as did not hold any investigation in\n\n     presence of a Magistrate and as such the petitioner apprehends that the\n\n     mode of action done by the investigating officer of Kaliachak P.S., Malda5is such that the accused persons may be free. The total mode of action\n\n    and investigation towards the death of the daughter of the petitioner was\n\n    not proper and fair. Even the charge sheet was not submitted within the\n\n    prescribed time limit which opened the door of enlarging bail to the\n\n    accused persons due to investigating officer's collusive mode of action.11. That there are sufficient materials as well testimonial evidences of the\n\n    eye witnesses to prove the actual offence committed by the accused\n\n    persons. The student of the Kaliachak Abasik Mission are the eye\n\n    witnesses of the incident whose statements were not taken by the\n\n    investigating officer.12. The petitioner states that due to malicious and vitiated investigation by\n\n    the investigating officer the petitioner apprehends that his daughter has\n\n    not committed suicide, but she has been murdered by the accused\n\n    persons after committing rape upon her and all these aspects have been\n\n    suppressed by the investigating officer and the IO of Kaliachak P.S.,\n\n    Malda tried to save the accused person by way of ignoring the\n\n    circumstantial evidence.13. Being dissatisfied with the acts and action of the Investigating Officer,\n\n    the petitioner filed an application for further reinvestigation. After\n\n    hearing, the Learned Chief Judicial Magistrate again directed the\n\n    Inspector-in-Charge Kaliachak Police Station to depute a competent\n\n    police officer not below the rank of a Sub-Inspector other than the\n\n    previous Investigating Officer to do further investigation of the case and6further report without considering the further investigation by any other\n\n    agency.14. Being aggrieved, the present revision has been filed.15. Written notes of Argument has been filed on behalf of the petitioner,\n\n    stating there in that despite the deceased being initially admitted to\n\n    Kaliyachak Hospital and later transferred to Malda Medical College, the\n\n    investigating agency made no effort to examine the doctors or staff of\n\n    either hospital during the course of the investigation.16. The doctor who examined the victim girl on the very first instance, his\n\n    statement has not been recorded by the Investigating Officer and even no\n\n    step has been taken by the hospitals authorities where the treatment of\n\n    the victim girl was done for recording the dying declaration of the victim\n\n    girl, because the incident was not initially informed to the police\n\n    authority and the Investigating Officer intentionally neglected to record\n\n    the statement of Dr. Tapash Sarkar who examined the victim girl at the\n\n    first instance in Kaliachak Hospital.17. Critical witnesses, including the petitioner and his father, were not\n\n    examined by the Investigating Agency. In fact the investigating agency\n\n    did not even make an endeavour to record their statements either underSection 161of the Code of Criminal Procedure or underSection 164of\n\n    the Code of Criminal Procedure.18. The investigation appears to have been carried out in a manner that aims\n\n    to shield the accused individuals involved, as evident from the failure to7interrogate the school staff, students, and roommates present during the\n\n    incident.19. The post-mortem of the deceased's body was not video graphed, in\n\n    violation of directions of the Hon'ble Supreme Court and this Hon'ble\n\n    Court. The post-mortem report, which indicates injuries, appears\n\n    dubious, as it paradoxically describes the deceased's scalp as healthy\n\n    despite the alleged fatal fall from the rooftop (5th floor).20. The investigating agency failed to obtain the viscera report, a vital piece\n\n    of evidence, which could have helped determine the actual cause of Najni\n\n    Khatun's death, especially considering the doubts raised about the\n\n    accuracy and adequacy of the post-mortem report.21. It appears from the facts narrated hereinbefore that the present\n\n    investigating agency, right from the beginning, has made overt attempts\n\n    to shield the accused persons, who happen to hold considerable\n\n    influence and clout. Despite the gravity of the case, the investigation\n\n    conducted by the Investigating Agency has been lackluster and\n\n    inadequate. This approach has resulted in the failure to collect vital\n\n    evidence and uncover the true facts surrounding the incident. It thus\n\n    appears from the fact narrated herein before that the present\n\n    investigating agency from the very beginning tried to shield the accused\n\n    persons.22. That the investigating officer has not done the investigation in a free, fair\n\n    and impartial manner.823. Mr. Ashis Kumar Chowdhury has relied upon the following Judgments\n\n    on behalf of the petition:-Vinay Tyagi vs Irshad Alialias Deepak and Ors., (2013) 5\n\n            SCC 762."43. At this stage, we may also state another well-\n                  settled canon of the criminal jurisprudence that the\n                  superior courts have the jurisdiction underSection 482of the Code or evenArticle 226of the Constitution of\n                  India to direct "further investigation", "fresh" or "de\n                  novo" and even "reinvestigation". "Fresh", "de novo"and "reinvestigation" are synonymous expressions and\n                  their result in law would be the same. The superior\n                  courts are even vested with the power of transferring\n                  investigation from one agency to another, provided the\n                  ends of justice so demand such action. Of course, it is\n                  also a settled principle that this power has to be\n                  exercised by the superior courts very sparingly and\n                  with great circumspection.45. The power to order/direct "reinvestigation" or "de\n                  novo" investigation falls in the domain of higher courts,\n                  that too in exceptional cases. If one examines the\n                  provisions of the Code, there is no specific provision for\n                  cancellation of the reports, except that the investigating\n                  agency can file a closure report (where according to the\n                  investigating agency, no offence is made out). Even\n                  such a report is subject to acceptance by the learned\n                  Magistrate who, in his wisdom, may or may not accept\n                  such a report. For valid reasons, the court may, by\n                  declining to accept such a report, direct "further\n                  investigation", or even on the basis of the record of the\n                  case and the documents annexed thereto, summon the\n                  accused."Rubabbuddin Sheikh vs State of Gujarat and Ors., (2010) 2\n\n            SCC 200.9"60. Therefore, in view of our discussions made\n                hereinabove, it is difficult to accept the contentions of\n                Mr Rohatgi, learned Senior Counsel appearing for the\n                State of Gujarat that after the charge-sheet is\n                submitted in the court in the criminal proceeding it was\n                not open for this Court or even for the High Court to\n                direct investigation of the case to be handed over to\n                CBI or to any independent agency. Therefore, it can\n                safely be concluded that in an appropriate case when\n                the court feels that the investigation by the police\n                authorities is not in the proper direction and in order to\n                do complete justice in the case and as the high police\n                officials are involved in the said crime, it was always\n                open to the court to hand over the investigation to the\n                independent agency like CBI. It cannot be said that\n                after the charge-sheet is submitted, the court is not\n                empowered, in an appropriate case, to hand over the\n                investigation to an independent agency like CBI.61. Keeping this discussion in mind, that is to say, in\n                an appropriate case, the court is empowered to hand\n                over the investigation to an independent agency like\n                CBI even when the charge-sheet has been submitted,\n                we now deal with the facts of this case whether such\n                investigation should be transferred to the CBI\n                Authorities or any other independent agency in spite of\n                the fact that the charge-sheet has been submitted in\n                court. On this ground, we have carefully examined the\n                eight action taken reports submitted by the State police\n                authorities before us and also the various materials\n                produced and the submissions of the learned counsel\n                for both the parties."24. Learned counsel for State Mr. P.K. Datta has submitted on placing\n\n    the case diary and a written notes of Argument that the Hostel in-charge, Manjur Basak in her Statement underSection 161Cr.P.C.has stated that for the last few days the victim remained very silent\n\n    and she was given a guardian call and since the guardian did not\n\n    come, Head Sir Amirul Islam, Habibur Rahaman, Ataur Rahaman, Md10Badiruddin, Akbar Hossain verbally abused her for which she\n\n    committed suicide.25. Sehanaz Parveen, Roommate of the Victim Stated that the victim for\n\n    the last few days remained silent, as she was given a guardian call.Since no guardian came, she was verbally abused by Habibur, Amirul,\n\n    Ataur, Badiruddin, Akbar Hossain. On 30/10/2018 evening when\n\n    Sehanaz went to take food with others, she did not see Najni and later\n\n    on heard that Najni jumped from the terrace.26. The State has further submitted that no one complained that the\n\n    victim was murdered or there were any allegations of sexual assault\n\n    upon her.27. It is further state that injuries noted, mainly Hyoid/Thyroid bone\n\n    intact rules out any manual strangulation. It is seen from the PM\n\n    report that tear of 3rd to 5th ribs of victim, tear of pleura, lungs, spleen\n\n    and clotted blood in peritoneal cavity and multiple displace fracture\n\n    over them are injuries ante mortem in nature and they show that the\n\n    victim jumped herself and committed suicide. Mere transverse\n\n    scratches over thighs are not sufficient to infer sexual assault. No\n\n    foreign body was also detected. The factum of scalp/vertebrae being\n\n    intact would depend in which posture the body fell and thus the\n\n    injuries found do not prima facie give rise to the presumption of\n\n    commission of murder and not suicide.1128. It is also submitted that Medical evidence rules out sexual assault and\n\n    all witnesses have stated that as the victim was verbally assaulted, she\n\n    committed suicide.29. Finally, the Learned Prosecutor has submitted that the case records do\n\n    not show that there has been a mala fide investigation and by no\n\n    means the said investigation can be said to be unfair, tainted and in\n\n    violation of principles of investigative canons. The expert evidence\n\n    ruling out any suggestion of sexual assault combined with the factum\n\n    that circumstances emanating from evidence would bring the case in\n\n    the realm of homicidal/suicidal in nature, the same cannot warrant\n\n    that the case be handed over to a different       investigating agency\n\n    namely Central Bureau of Investigation in light of Judgment of the\n\n    Hon'ble Supreme Court in Criminal Appeal No. 624/2023 (ROYDEN\n\n    HAROLD BUTHELLO and Another Vs STATE OF CHATTISGARH) as\n\n    neither the accused nor the complainant or informant is entitled to\n\n    choose their own investigating agency.30. From the materials on record including the case diary, it appears\n\n    that:-i)   Through the brother of the deceased was allowed to go\n\n                  home on 28.10.2018 during holidays, the deceased was not\n\n                  allowed to go home. There is no investigation on the point that, when the\n\n                    brother and sister were students of the same school,12why was the sister not allowed to go home with her\n\n          brother on 28.10.2018 during the holidays. She died on\n\n          30.10.2018 (After two days) in the school hostel.ii)   The Head master of the School told Mister Sk (the person\n\n       sent immediately by the victim's father on being informed\n\n       over phone) that he made guardian call of Najni Khatun\n\n       (Victim) on 30.10.2018 but as her guardian was absent on\n\n       30.10.2018, again on 31.10.2018, he made guardian call of\n\n       the victim but in the night of 30.10.2018, he was informed\n\n       that the victim fell from the rooftop of the School. In the total length and breath of the case diary there is\n\n          not ever a whisper as to why there was a guardian call.There is thus no investigation to find out the reason for\n\n          the guardian call, as stated.The said part of investigation is vital as allegedly,\n\nimmediately after that the victim fell to her death, who was aged\n\nonly 16 years.These indicate severe laches on the part of the\n\ninvestigating officer and thus in the investigation.The reason for scolding the victim on the date of incident\n\nallegedly by the Headmaster and the teachers has also not been\n\nbrought on record.13No response, by the victim's parents to a guardian call, is\n\n         not a cogent ground to abuse and rebuke the victim as alleged. So\n\n         this was also important to be investigated.More so as this is the only ground put forward by the\n\n         investigating agency, for the victim to commit suicide.iii)   The Complainant has stated in his statement underSection\n\n                161Cr.P.C. that his father and victim's grandfather.Faijuddin had met the victim in the school on 28.10.18.Faijuddin is one of the closest relative, the\n\n                victim last met before her death, but he has not been\n\n                examined.iv)    The Height of the five storied building from where the victim\n\n                fell is 60 feet.The postmortem report show's:-a) The scalp as healthy and intact.b) Hyoid/thyroid intact.c) Several injuries including fractures.d) No examination was conducted to rule out sexual\n\n                       assault.e) The (SEVERE) injuries are confined to the chest\n\n                       area.31. No opinion as to the nature, extent and location of the injuries has\n\n    been taken nor investigated.1432. A girl aged 16 years has died in her own boarding school.33. The investigation has not been fair nor thorough.34. The points noted above have not been addressed not investigated\n\n    to rule out any foul play.35. These are required to be investigated.36. The trial court has directed further investigation by the same agency\n\n    as it does not have the power to order further investigation/or\n\n    reinvestigation by a different agency (Chandrababu Vs @ Moses vs\n\n    State through Inspector of Police & Ors. (2015) 8 SCC 774).37. In Anant Thanur Karmuse vs. State of Maharashtra, Criminal\n\n    Appeal No. 13 of 2023, on 24 February, 2023, the Supreme Court\n\n    held:-"8. Now, so far as the power of the Constitutional Courts to\n             order further investigation / re-investigation / de novo\n             investigation even after the chargesheet is filed and charges\n             are framed is concerned, the following decisions are\n             required to be referred to:- 8.1 In the case of Bharati Tamang\n             (supra), after taking into consideration the decisions of this\n             Court in the case ofBabubhai Vs. State of Gujarat, (2010) 12\n             SCC 254 (paras 40 and 42) and the subsequent decision of\n             this Court in the case ofRam Jethmalani Vs. Union of India(2011) 8 SCC 1 and other decision on the point, ultimately\n             the principles, which are culled out are as under:-"41. From the various decisions relied upon by the petitioner\n             counsel as well as by respondents' counsel, the following\n             principles can be culled out.41.1. The test of admissibility of evidence lies in its\n             relevancy.1541.2. Unless there is an express or implied constitutional\nprohibition or other law, evidence placed as a result of even\nan illegal search or seizure is not liable to be shut out.41.3. If deficiency in investigation or prosecution is visible or\ncan be perceived by lifting the veil which try to hide the\nrealities or covering the obvious deficiency, Courts have to\ndeal with the same with an iron hand appropriately within\nthe framework of law.41.4. It is as much the duty of the prosecutor as of the Court\nto ensure that full and material facts are brought on record\nso that there might not be miscarriage of justice.41.5. In order to ensure that the criminal prosecution is\ncarried on without any deficiency, in appropriate cases this\nCourt can even constitute Special Investigation Team and\nalso give appropriate directions to the Central and State\nGovernments and other authorities to give all required\nassistance to such specially constituted investigating team\nin order to book the real culprits and for effective conduct of\nthe prosecution.41.6. While entrusting the criminal prosecution with other\ninstrumentalities of State or by constituting a Special\nInvestigation Team, the High Court or this Court can also\nmonitor such investigation in order to ensure proper conduct\nof the prosecution.41.7. In appropriate cases even if the charge-sheet is filed it\nis open for this Court or even for the High Court to direct\ninvestigation of the case to be handed over to CBI or to any\nother independent agency in order to do complete justice.41.8. In exceptional circumstances the Court in order to\nprevent miscarriage of criminal justice and if considers\nnecessary may direct for investigation de novo." 8.2 In the\ncase of Dharam Pal (supra), after taking into consideration\nthe catena of decisions on the point, it is observed and held\nthat the constitutional courts can direct for further\ninvestigation or investigation by some other investigating\nagency. It is observed that the purpose is, there has to be a\nfair investigation and a fair trial. It is observed that the fair\ntrial may be quite difficult unless there is a fair investigation.\nIt is further observed and held that the power to order fresh,\nde novo or re- investigation being vested with the16constitutional courts, the commencement of a trial and\nexamination of some witnesses cannot be an absolute\nimpediment for exercising the said constitutional power\nwhich is meant to ensure a fair and just investigation. While\nobserving and holding so, in paragraphs 24 and 25, it is\nobserved and held s under:-"24. Be it noted here that the constitutional courts can direct\nfor further investigation or investigation by some other\ninvestigating agency. The purpose is, there has to be a fair\ninvestigation and a fair trial. The fair trial may be quite\ndifficult unless there is a fair investigation. We are\nabsolutely conscious that direction for further investigation\nby another agency has to be very sparingly issued but the\nfacts depicted in this case compel us to exercise the said\npower. We are disposed to think that purpose of justice\ncommands that the cause of the victim, the husband of the\ndeceased, deserves to be answered so that miscarriage of\njustice is avoided. Therefore, in this case the stage of the\ncase cannot be the governing factor.25. We may further elucidate. The power to order fresh, de\nnovo or reinvestigation being vested with the constitutional\ncourts, the commencement of a trial and examination of\nsome witnesses cannot be an absolute impediment for\nexercising the said constitutional power which is meant to\nensure a fair and just investigation. It can never be forgotten\nthat as the great ocean has only one test, the test of salt, so\ndoes justice has one flavour, the flavour of answering to the\ndistress of the people without any discrimination. We may\nhasten to add that the democratic set-up has the potentiality\nof ruination if a citizen feels, the truth uttered by a poor man\nis seldom listened to. Not for nothing it has been said that\nsun rises and sun sets, light and darkness, winter and\nspring come and go, even the course of time is playful but\ntruth remains and sparkles when justice is done. It is the\nbounden duty of a court of law to uphold the truth and truth\nmeans absence of deceit, absence of fraud and in a criminal\ninvestigation a real and fair investigation, not an\ninvestigation that reveals itself as a sham one. It is not\nacceptable. It has to be kept uppermost in mind that\nimpartial and truthful investigation is imperative. If there is\nindentation or concavity in the investigation, can the "faith"in investigation be regarded as the gospel truth? Will it have\nthe sanctity or the purity of a genuine investigation? If a\ngrave suspicion arises with regard to the investigation,17should a constitutional court close its hands and accept the\n         proposition that as the trial has commenced, the matter is\n         beyond it? That is the "tour de force" of the prosecution and\n         if we allow ourselves to say so it has become "idée fixe" but\n         in our view the imperium of the constitutional courts cannot\n         be stifled or smothered by bon mot or polemic. Of course, the\n         suspicion must have some sort of base and foundation and\n         not a figment of one's wild imagination. One may think an\n         impartial investigation would be a nostrum but not doing so\n         would be like playing possum. As has been stated earlier,\n         facts are self-evident and the grieved protagonist, a person\n         belonging to the lower strata. He should not harbour the\n         feeling that he is an "orphan under law"."38. In State through Central Bureau of Investigation vs. Hemendhra\n\n    Reddy etc. etc., in Criminal Appeal Nos. ............. Of 2023 (arising\n\n    out of SLP (Crl.) Nos. 7628-7630 of 2017), on 28 April, 2023, held:-"Difference between "Further Investigation" and "Re-\n         investigation"51. There is no doubt that "further investigation" and "re-\n         investigation" stand altogether on a different footing.In\n         Ramchandran v. R. Udhayakumar and Others reported in\n         (2008) 5 SCC 413, this Court has explained the fine\n         distinction between the two relying on its earlier decision\n         inK. Chandrasekhar v. State of Kerala and Othersreported\n         in (1998) 5 SCC 223. We quote paras 7 and 8 as under:"7. At this juncture it would be necessary to take note\n         ofSection 173of the Code. From a plain reading of the\n         above section it is evident that even after completion of\n         investigation under sub-section (2) ofSection 173of the\n         Code, the police has right to further investigate under sub-\n         section (8), but not fresh investigation or reinvestigation. This\n         was highlighted by this Court inK. Chandrasekhar v. State\n         of Kerala[(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] . It was,\n         inter alia, observed as follows : (SCC p. 237, para 24) "24.\n         The dictionary meaning of „further‟ (when used as an\n         adjective) is „additional; more; supplemental‟. „Further‟\n         investigation therefore is the continuation of the earlier\n         investigation and not a fresh investigation or reinvestigation\n         to be started ab initio wiping out the earlier investigation\n         altogether. In drawing this conclusion we have also drawn\n         inspiration from the fact that sub-section (8) clearly\n         envisages that on completion of further investigation the18investigating agency has to forward to the Magistrate a\n„further‟ report or reports--and not fresh report or reports--\nregarding the „further‟ evidence obtained during such\ninvestigation."8. In view of the position of law as indicated above, the\ndirections of the High Court for reinvestigation or fresh\ninvestigation are clearly indefensible. We, therefore, direct\nthat instead of fresh investigation there can be further\ninvestigation if required underSection 173(8)of the Code.\nThe same can be done by CB CID as directed by the High\nCourt." Position of Law on the subject of "Further\nInvestigation"77. We may summarise our final conclusion as under:(i) Even after the final report is laid before the Magistrate\nand is accepted, it is permissible for the investigating\nagency to carry out further investigation in the case. In other\nwords, there is no bar against conducting further\ninvestigation underSection 173(8)of the CrPC after the final\nreport submitted underSection 173(2)of the CrPC has been\naccepted.(ii) Prior to carrying out further investigation underSection\n173(8)of the CrPC it is not necessary that the order\naccepting the final report should be reviewed, recalled or\nquashed.(iv) Further investigation is merely a continuation of the\nearlier investigation, hence it cannot be said that the\naccused are being subjected to investigation twice over.Moreover, investigation cannot be put at par with\nprosecution and punishment so as to fall within the ambit of\nClause (2) ofArticle 20of the Constitution. The principle of\ndouble jeopardy would, therefore, not be applicable to\nfurther investigation.(v) There is nothing in theCrPCto suggest that the court is\nobliged to hear the accused while considering an application\nfor further investigation underSection 173(8)of the CrPC.84. In the aforesaid context, we may only say that the\ngeneral rule of criminal justice is that "a crime never dies".\nThe principle is reflected in the well-known maxim nullum\ntempus aut locus occurrit regi (lapse of time is no bar to\nCrown in proceeding against offenders). It is settled law that19the criminal offence is considered as a wrong against the\nState and the Society even though it has been committed\nagainst an individual. Normally, in serious offences,\nprosecution is launched by the State and a Court of law has\nno power to throw away prosecution solely on the ground of\ndelay. Mere delay in approaching a Court of law would not\nby itself afford a ground for dismissing the case. Though it\nmay be a relevant circumstance in reaching a final verdict.\n(See:Japani Sahoo v. Chandra Sekhar Mohantyreported in\n(2007) 7 SCC 394.)85. The following observations in Hasanbhai (supra), have\nbeen made by this Court in reference to further investigation:"13. ....if there is necessity for further investigation, the\nsame can certainly be done as prescribed by law. The mere\nfact that there may be further delay in concluding the trial\nshould not stand in the way of further investigation if that\nwould help the court in arriving at the truth and do real and\nsubstantial as well as effective justice. ..."86. Thus, the assurance of a fair trial is to be the first\nimperative     in     the    dispensation     of     justice.[Reference:Commissioner of Police, Delhi and Another v.\nRegistrar, Delhi HighCourt, New Delhi reported in (1996) 6\nSCC 323].The need for fair investigation has also been\nemphasized inVinay Tyagi(supra) where it was observed\nas under:"48. What ultimately is the aim or significance of the\nexpression "fair and proper investigation" in criminal\njurisprudence? It has a twin purpose: Firstly, the\ninvestigation must be unbiased, honest, just and in\naccordance with law; secondly, the entire emphasis on a fair\ninvestigation has to be to bring out the truth of the case\nbefore the court of competent jurisdiction. ...."87. Reference may also be placed on the decision inPooja\nPal v. Union of India and Othersreported in (2016) 3 SCC\n135, where the fundamental rights enshrined underArticle\n21of the Constitution of India were discussed in the context\nof "speedy trial" juxtaposed to "fair trial" in the following\nmanner:"83. A "speedy trial", albeit the essence of the fundamental\nright to life entrenched inArticle 21of the Constitution of20India has a companion in concept in "fair trial", both being\n          inalienable constituents of an adjudicative process, to\n          culminate in a judicial decision by a court of law as the final\n          arbiter. There is indeed a qualitative difference between\n          right to speedy trial and fair trial so much so that denial of\n          the former by itself would not be prejudicial to the accused,\n          when pitted against the imperative of fair trial. As\n          fundamentally, justice not only has to be done but also must\n          appear to have been done, the residuary jurisdiction of a\n          court to direct further investigation or reinvestigation by any\n          impartial agency, probe by the State Police notwithstanding,\n          has to be essentially invoked if the statutory agency already\n          in charge of the investigation appears to have been\n          ineffective or is presumed or inferred to be not being able to\n          discharge its functions fairly, meaningfully and fructuously.\n          As the cause of justice has to reign supreme, a court of law\n          cannot reduce itself to be a resigned and a helpless\n          spectator and with the foreseen consequences apparently\n          unjust, in the face of a faulty investigation, meekly complete\n          the formalities to record a foregone conclusion. Justice then\n          would become a casualty. Though a court's satisfaction of\n          want of proper, fair, impartial and effective investigation\n          eroding its credence and reliability is the precondition for a\n          direction for further investigation or reinvestigation,\n          submission of the charge-sheet ipso facto or the pendency of\n          the trial can by no means be a prohibitive impediment. The\n          contextual facts and the attendant circumstances have to be\n          singularly evaluated and analysed to decide the\n          needfulness of further investigation or reinvestigation to\n          unravel the truth and mete out justice to the parties. The\n          prime concern and the endeavour of the court of law is to\n          secure justice on the basis of true facts which ought to be\n          unearthed through a committed, resolved and a competent\n          investigating agency.".(Emphasis supplied)"39. Further investigation leads to collection of further evidence to unveil\n\n    the truth.40. Re-investigation in addition to collection of further evidence, also has a\n\n    second look and fresh assessment of the evidence already on record(case21diary), while submitting a report in final form which in cases of this\n\n    nature, is required for a fair and just investigation.41. The Supreme Court (Majority decision) in Romila Thapar & Ors. Vs\n\n    Union of India & Ors., Writ Petition (Criminal) No. 260 of 2018 on\n\n    28th September, 2018, held :-"19. After the high-pitched and at times emotional\n          arguments concluded, each side presenting his case with\n          equal vehemence, we as Judges have had to sit back and\n          ponder over as to who is right or whether there is a third\n          side to the case. The petitioners have raised the issue of\n          credibility of Pune Police investigating the crime and for\n          attempting to stifle the dissenting voice of the human rights\n          activists. The other side with equal vehemence argued that\n          the action taken by Pune Police was in discharge of their\n          statutory duty and was completely objective and\n          independent. It was based on hard facts unraveled during\n          the investigation of the crime in question, pointing towards\n          the sinister ploy to destabilize the State and was not\n          because of difference in ideologies, as is claimed by the so\n          called human rights activists.20. After having given our anxious consideration to the rival\n          submission and upon perusing the pleadings and\n          documents produced by both the sides, coupled with the fact\n          that now four named accused have approached this Court\n          and have asked for being transposed as writ petitioners, the\n          following broad points may arise for our consideration:-(i) Should the Investigating Agency be changed at the behest\n          of the named five accused?(ii) If the answer to point (i) is in the negative, can a prayer of\n          the same nature be entertained at the behest of the next\n          friend of the accused or in the garb of PIL?(iii) If the answer to question Nos.(i) and/or (ii) above, is in\n          the affirmative, have the petitioners made out a case for the\n          relief of appointing Special Investigating Team or directing22the Court monitored investigation by an independent\nInvestigating Agency?(iv) Can the accused person be released merely on the basis\nof the perception of his next friend (writ petitioners) that he\nis an innocent and law abiding person?21. Turning to the first point, we are of the considered\nopinion that the issue is no more res integra.InNarmada\nBai Vs. State of Gujarat and Ors.1, in paragraph 64, this\nCourt restated that it is trite law that the accused persons\ndo not have a say in the matter of appointment of\nInvestigating 1 (2011) 5 SCC 79 Agency. Further, the\naccused persons cannot choose as to which Investigating\nAgency must investigate the offence committed by them.Paragraph 64 of this decision reads thus:-"64. ..... It is trite law that accused persons do not have a\nsay in the matter of appointment of an investigation agency.\nThe accused persons cannot choose as to which\ninvestigation agency must investigate the alleged offence\ncommitted by them." (emphasis supplied)22. Again inSanjiv Rajendra Bhatt Vs. Union of India and\nOrs.2, the Court restated that the accused had no right with\nreference to the manner of investigation or mode of\nprosecution. Paragraph 68 of this judgment reads thus:"68. The accused has no right with reference to the manner\nof investigation or mode of prosecution. Similar is the lawlaid down bythis Court inUnion of India v. W.N.\nChadha3,Mayawati v. Union of India4,Dinubhai\nBoghabhai Solanki v. State of Gujarat5,CBI v. Rajesh\nGandhi6, Competition Commission of India v. SAIL7 andJanta Dal v. H.S. Choudhary.8"(emphasis supplied)23. Recently, a three-Judge Bench of this Court inE.\nSivakumar Vs. Union of India and Ors.9, while dealing with\nthe appeal preferred by the "accused" challenging the order\nof the High Court directing investigation by CBI, in\nparagraph 10 observed:23"10. As regards the second ground urged by the petitioner,\nwe find that even this aspect has been duly considered in\nthe impugned judgment.In paragraph 129 of the impugned\njudgment, reliance has been placed onDinubhai Boghabhai\nSolanki Vs. State of Gujarat10, wherein it has been held\nthat in a writ petition seeking impartial investigation, the\naccused was not entitled to opportunity of hearing as a\nmatter of course.Reliance has also been placed inNarender\nG. Goel Vs. State of Maharashtra11, in particular, paragraph\n11 of the reported decision wherein the Court observed that\nit is well settled that the accused has no right to be heard at\nthe stage of investigation. By entrusting the investigation to\nCBI which, as aforesaid, was imperative in the peculiar\nfacts of the present case, the fact that the petitioner was not\nimpleaded as a party in the writ petition or for that matter,\nwas not heard, in our opinion, will be of no avail. That per se\ncannot be the basis to label the impugned judgment as a\nnullity."24. This Court in the case ofDivine Retreat Centre Vs.\nState of Kerala and Ors.12, has enunciated that theHigh 9 (2018) 7 SCC365 10 Supra @ Footnote 5 11\n(2009) 6 SCC 65 12 (2008) 3 SCC 542 Court in exercise\nof its inherent jurisdiction cannot change the\ninvestigating officer in the midstream and appoint an\ninvestigating officer of its own choice to investigate into a\ncrime on whatsoever basis. The Court made it amply\nclear that neither the accused nor the complainant or\ninformant are entitled to choose their own\nInvestigating Agency to investigate the crime in which\nthey are interested. The Court then went on to clarify that\nthe High Court in exercise of its power underArticle 226of\nthe Constitution can always issue appropriate directions at\nthe instance of the aggrieved person if the High Court is\nconvinced that the power of investigation has been exercised\nby the investigating officer mala fide.25. Be that as it may, it will be useful to advert to the\nexposition inState of West Bengal and Ors. Vs. Committeefor Protection of Democratic Rights, West Bengal and Ors.13\nIn paragraph 70 ofthe said decision, the Constitution Bench\nobserved thus:24"70. Before parting with the case, we deem it necessary to\nemphasise that despite wide powers conferred byArticles\n32 13 (2010) 3SCC 571 and 226 of the Constitution, while\npassing any order, the Courts must bear in mind certain\nself-imposed limitations on the exercise of these\nConstitutional powers. The very plenitude of the power\nunder the said articles requires great caution in its exercise.\nInsofar as the question of issuing a direction to the CBI to\nconduct investigation in a case is concerned, although no\ninflexible guidelines can be laid down to decide whether or\nnot such power should be exercised but time and again it\nhas been reiterated that such an order is not to be passed\nas a matter of routine or merely because a party has levelled\nsome allegations against the local police. This extraordinary\npower must be exercised sparingly, cautiously and in\nexceptional situations where it becomes necessary to\nprovide credibility and instil confidence in investigations or\nwhere the incident may have national and international\nramifications or where such an order may be necessary for\ndoing complete justice and enforcing the fundamental rights.\nOtherwise the CBI would be flooded with a large number of\ncases and with limited resources, may find it difficult to\nproperly investigate even serious cases and in the process\nlose its credibility and purpose with unsatisfactory\ninvestigations."27. In view of the above, it is clear that the consistent view\nof this Court is that the accused cannot ask for changing the\nInvestigating Agency or to do investigation in a particular\nmanner including for Court monitored investigation. The first\ntwo modified reliefs claimed in the writ petition, if they were\nto be made by the accused themselves, the same would end\nup in being rejected. In the present case, the original writ\npetition was filed by the persons claiming to be the next\nfriends of the concerned accused (A16 to A20). Amongst\nthem, Sudha Bhardwaj (A19), Varvara Rao (A16), Arun\nFerreira (A18) and Vernon Gonsalves (A17) have filed signed\nstatements praying that the reliefs claimed in the subject\nwrit petition be treated as their writ petition. That\napplication deserves to be allowed as the accused\nthemselves have chosen to approach this Court and also in\nthe backdrop of the preliminary objection raised by the State\nthat the writ petitioners were completely strangers to the\noffence under investigation and the writ petition at their\ninstance was not maintainable. We would, therefore,\nassume that the writ petition is now pursued by the accused25themselves and once they have become petitioners\n             themselves, the question of next friend pursuing the remedy\n             to espouse their cause cannot be countenanced. The next\n             friend can continue to espouse the cause of the affected\n             accused as long as the concerned accused is not in a\n             position or incapacitated to take recourse to legal remedy\n             and not otherwise.30. We find force in the argument of the State that the\n             prayer for changing the Investigating Agency cannot be dealt\n             with lightly and the Court must exercise that power with\n             circumspection. As a result, we have no hesitation in taking\n             a view that the writ petition at the instance of the next friend\n             of the accused for transfer of investigation to independent\n             Investigating Agency or for Court monitored investigation\n             cannot be countenanced, much less as public interest\n             litigation."42. The said judgment was referred to by the Supreme Court inVinubhai\n\n    Haribhai Malaviya Vs The State of Gujaraton 16.10.2019 in\n\n    Original Appeal 478-479 of 2017, wherein a Three Judge Bench\n\n    held:-"9. The question of law that therefore arises in this case is\n             whether, after a charge-sheet is filed by the police, the\n             Magistrate has the power to order further investigation, and\n             if so, up to what stage of a criminal proceeding.38. However, having given our considered thought to the\n             principles stated in these judgments, we are of the view that\n             the Magistrate before whom a report underSection 173(2)of\n             the Code is filed, is empowered in law to direct "further\n             investigation" and require the police to submit a further or a\n             supplementary report. A three-Judge Bench of this Court\n             inBhagwant Singh [Bhagwant Singh v. Commr. of Police,\n             (1985) 2 SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain\n             terms, stated that principle, as aforenoticed.40. Having analysed the provisions of the Code and the\n             various judgments as aforeindicated, we would state the\n             following conclusions in regard to the powers of a Magistrate26in     terms     ofSection     173(2)read         withSection\n173(8)andSection 156(3)of the Code:40.1. The Magistrate has no power to direct\n"reinvestigation" or "fresh investigation" (de novo) in the\ncase initiated on the basis of a police report.40.2. A Magistrate has the power to direct "further\ninvestigation" after filing of a police report in terms ofSection\n173(6)of the Code.40.3. The view expressed in Sub-para 40.2 above is in\nconformity with the principle of law stated inBhagwant\nSinghcase [Bhagwant Singh v. Commr. of Police, (1985) 2\nSCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and\nthus in conformity with the doctrine of precedent.40.4. Neither the scheme of the Code nor any specific\nprovision therein bars exercise of such jurisdiction by the\nMagistrate. The language ofSection 173(2)cannot be\nconstrued so restrictively as to deprive the Magistrate of\nsuch powers particularly in face of the provisions ofSection\n156(3)and the language ofSection 173(8)itself. In fact, such\npower would have to be read into the language ofSection\n173(8).40.5. The Code is a procedural document, thus, it must\nreceive a construction which would advance the cause of\njustice and legislative object sought to be achieved. It does\nnot stand to reason that the legislature provided power of\nfurther investigation to the police even after filing a report,\nbut intended to curtail the power of the court to the extent\nthat even where the facts of the case and the ends of justice\ndemand, the court can still not direct the investigating\nagency to conduct further investigation which it could do on\nits own.40.6. It has been a procedure of propriety that the police\nhas to seek permission of the court to continue "further\ninvestigation" and file supplementary charge- sheet. This\napproach has been approved by this Court in a number of\njudgments. This as such would support the view that we are\ntaking in the present case."xxx xxx xxx2748. What ultimately is the aim or significance of the\nexpression "fair and proper investigation" in criminal\njurisprudence? It has a twin purpose: Firstly, the\ninvestigation must be unbiased, honest, just and in\naccordance with law; secondly, the entire emphasis on a fair\ninvestigation has to be to bring out the truth of the case\nbefore the court of competent jurisdiction. Once these twin\nparadigms of fair investigation are satisfied, there will be\nthe least requirement for the court of law to interfere with the\ninvestigation, much less quash the same, or transfer it to\nanother agency. Bringing out the truth by fair and\ninvestigative means in accordance with law would\nessentially repel the very basis of an unfair, tainted\ninvestigation or cases of false implication. Thus, it is\ninevitable for a court of law to pass a specific order as to the\nfate of the investigation, which in its opinion is unfair,\ntainted and in violation of the settled principles of\ninvestigative canons.49. Now, we may examine another significant aspect which\nis how the provisions ofSection 173(8)have been\nunderstood and applied by the courts and investigating\nagencies. It is true that though there is no specific\nrequirement in the provisions ofSection 173(8)of the Code to\nconduct "further investigation" or file supplementary report\nwith the leave of the court, the investigating agencies have\nnot only understood but also adopted it as a legal practice to\nseek permission of the courts to conduct "further\ninvestigation" and file "supplementary report" with the leave\nof the court. The courts, in some of the decisions, have also\ntaken a similar view. The requirement of seeking prior leave\nof the court to conduct "further investigation" and/or to file a\n"supplementary report" will have to be read into, and is a\nnecessary implication of the provisions ofSection 173(8)of\nthe Code. The doctrine of contemporanea expositio will fully\ncome to the aid of such interpretation as the matters which\nare understood and implemented for a long time, and such\npractice that is supported by law should be accepted as part\nof the interpretative process.50. Such a view can be supported from two different points\nof view: firstly, through the doctrine of precedent, as\naforenoticed, since quite often the courts have taken such a\nview, and, secondly, the investigating agencies which have\nalso so understood and applied the principle. The matters\nwhich are understood and implemented as a legal practice28and are not opposed to the basic rule of law would be good\npractice and such interpretation would be permissible with\nthe aid of doctrine of contemporanea expositio. Even\notherwise, to seek such leave of the court would meet the\nends of justice and also provide adequate safeguard against\na suspect/accused.51. We have already noticed that there is no specific\nembargo upon the power of the learned Magistrate to direct\n"further investigation" on presentation of a report in terms\nofSection 173(2)of the Code. Any other approach or\ninterpretation would be in contradiction to the very language\nofSection 173(8)and the scheme of the Code for giving\nprecedence to proper administration of criminal justice. The\nsettled principles of criminal jurisprudence would support\nsuch approach, particularly when in terms ofSection 190of\nthe Code, the Magistrate is the competent authority to take\ncognizance of an offence. It is the Magistrate who has to\ndecide whether on the basis of the record and documents\nproduced, an offence is made out or not, and if made out,\nwhat course of law should be adopted in relation to\ncommittal of the case to the court of competent jurisdiction or\nto proceed with the trial himself. In other words, it is the\njudicial conscience of the Magistrate which has to be\nsatisfied with reference to the record and the documents\nplaced before him by the investigating agency, in coming to\nthe appropriate conclusion in consonance with the principles\nof law. It will be a travesty of justice, if the court cannot be\npermitted to direct "further investigation" to clear its doubt\nand to order the investigating agency to further substantiate\nits charge-sheet. The satisfaction of the learned Magistrate\nis a condition precedent to commencement of further\nproceedings before the court of competent jurisdiction.\nWhether the Magistrate should direct "further investigation"or not is again a matter which will depend upon the facts of\na given case. The learned Magistrate or the higher court of\ncompetent jurisdiction would direct "further investigation" or\n"reinvestigation" as the case may be, on the facts of a given\ncase. Where the Magistrate can only direct further\ninvestigation, the courts of higher jurisdiction can direct\nfurther, reinvestigation or even investigation de novo\ndepending on the facts of a given case. It will be the specific\norder of the court that would determine the nature of\ninvestigation.In this regard, we may refer to the\nobservations made by this Court inSivanmoorthy v.\nState[(2010) 12 SCC 29: (2011) 1 SCC (Cri) 295]."2934. A Bench of 5 learned Judges of this Court inHardeep\nSingh v. State of Punjab and Ors.(2014) 3 SCC 92 was\nfaced with a question regarding the circumstances under\nwhich the power underSection 319of the Code could be\nexercised to add a person as being accused of a criminal\noffence. In the course of a learned judgment answering the\naforesaid question, this Court first adverted to the\nconstitutional mandate underArticle 21of the Constitution\nas follows:"8. The constitutional mandate underArticles 20and21of\nthe Constitution of India provides a protective umbrella for\nthe smooth administration of justice making adequate\nprovisions to ensure a fair and efficacious trial so that the\naccused does not get prejudiced after the law has been put\ninto motion to try him for the offence but at the same time\nalso gives equal protection to victims and to society at large\nto ensure that the guilty does not get away from the clutches\nof law. For the empowerment of the courts to ensure that the\ncriminal administration of justice works properly, the law\nwas appropriately codified and modified by the legislature\nunderCrPCindicating as to how the courts should proceed\nin order to ultimately find out the truth so that an innocent\ndoes not get punished but at the same time, the guilty are\nbrought to book under the law. It is these ideals as\nenshrined under the Constitution and our laws that have led\nto several decisions, whereby innovating methods and\nprogressive tools have been forged to find out the real truth\nand to ensure that the guilty does not go unpunished." In\nparagraph 34, this Court adverted to Common Cause v.Union\nof India (1996) 6 SCC 775, and dealt with when trials before the\nSessions Court; trials of warrant-cases; and trials of summons-\ncases by Magistrates can be said to commence, as follows:"34.InCommon Cause v. Union of India[(1996) 6 SCC 775 :\n1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this Court while\ndealing with the issue held: (SCC p. 776, para 1) "1. II (i) In\ncases of trials before the Sessions Court the trials shall be\ntreated to have commenced when charges are framed\nunderSection 228of the Code of Criminal Procedure, 1973\nin the cases concerned.(ii) In cases of trials of warrant cases by Magistrates if the\ncases are instituted upon police reports the trials shall be\ntreated to have commenced when charges are framed\nunderSection 240of the Code of Criminal Procedure, 197330while in trials of warrant cases by Magistrates when cases\nare instituted otherwise than on police report such trials\nshall be treated to have commenced when charges are\nframed against the accused concerned underSection 246of\nthe Code of Criminal Procedure, 1973.(iii) In cases of trials of summons cases by Magistrates the\ntrials would be considered to have commenced when the\naccused who appear or are brought before the Magistrate\nare asked underSection 251whether they plead guilty or\nhave any defence to make." (emphasis supplied) The Court\nthen concluded:"38. In view of the above, the law can be summarised to the\neffect that as "trial" means determination of issues\nadjudging the guilt or the innocence of a person, the person\nhas to be aware of what is the case against him and it is\nonly at the stage of framing of the charges that the court\ninforms him of the same, the "trial" commences only on\ncharges being framed. Thus, we do not approve the view\ntaken by the courts that in a criminal case, trial commences\non cognizance being taken."35. Paragraph 39 of the judgment then referred to the\n"inquiry" stage of a criminal case as follows:"39.Section 2(g)CrPC and the case lawsreferred to above,\ntherefore, clearly envisage inquiry before the actual\ncommencement of the trial, and is an act conducted\nunderCrPCby the Magistrate or the court.The word "inquiry" is, therefore, not any inquiry relating to\nthe investigation of the case by the investigating agency but\nis an inquiry after the case is brought to the notice of the\ncourt on the filing of the charge-sheet. The court can\nthereafter proceed to make inquiries and it is for this reason\nthat an inquiry has been given to mean something other\nthan the actual trial." A clear distinction between "inquiry"and "trial" was thereafter set out in paragraph 54 as\nfollows:"54. In our opinion, the stage of inquiry does not contemplate\nany evidence in its strict legal sense, nor could the\nlegislature have contemplated this inasmuch as the stage for\nevidence has not yet arrived. The only material that the\ncourt has before it is the material collected by the31prosecution and the court at this stage prima facie can apply\nits mind to find out as to whether a person, who can be an\naccused, has been erroneously omitted from being arraigned\nor has been deliberately excluded by the prosecuting\nagencies. This is all the more necessary in order to ensure\nthat the investigating and the prosecuting agencies have\nacted fairly in bringing before the court those persons who\ndeserve to be tried and to prevent any person from being\ndeliberately shielded when they ought to have been tried.\nThis is necessary to usher faith in the judicial system\nwhereby the court should be empowered to exercise such\npowers even at the stage of inquiry and it is for this reason\nthat the legislature has consciously used separate terms,\nnamely, inquiry or trial inSection 319CrPC."36. Despite the aforesaid judgments, some discordant notes\nwere sounded in three recent judgments.InAmrutbhai\nShambubhai Patel v. Sumanbhai Kantibai Patel(2017) 4\nSCC 177, on the factsin that case, the Appellant/Informant\ntherein sought a direction underSection 173(8)from the Trial\nCourt for further investigation by the police long after\ncharges were framed against the Respondents at the\nculminating stages of the trial.The Court in its ultimate conclusion was correct, in that, once\nthe trial begins with the framing of charges, the stage of\ninvestigation or inquiry into the offence is over, as a result of\nwhich no further investigation into the offence should be\nordered. But instead of resting its judgment on this simple\nfact, this Court from paragraphs 29 to 34 resuscitated some\nof the earlier judgments of this Court, in which a view was\ntaken that no further investigation could be ordered by the\nMagistrate in cases where, after cognizance is taken, the\naccused had appeared in pursuance of process being\nissued. In particular, Devarapalli Lakshminarayana Reddy\n(supra) was strongly relied upon by the Court. We have\nalready seen how this judgment was rendered without\nadverting to the definition of "investigation" inSection 2(h)of\nthe CrPC, and cannot therefore be relied upon as laying\ndown the law on this aspect correctly. The Court therefore\nconcluded:"49. On an overall survey of the pronouncements of this\nCourt on the scope and purport ofSection 173(8)of the Code\nand the consistent trend of explication thereof, we are thus\ndisposed to hold that though the investigating agency32concerned has been invested with the power to undertake\nfurther investigation desirably after informing the court\nthereof, before which it had submitted its report and\nobtaining its approval, no such power is available therefor to\nthe learned Magistrate after cognizance has been taken on\nthe basis of the earlier report, process has been issued and\nthe accused has entered appearance in response thereto. At\nthat stage, neither the learned Magistrate suo motu nor on\nan application filed by the complainant/informant can direct\nfurther investigation. Such a course would be open only on\nthe request of the investigating agency and that too, in\ncircumstances warranting further investigation on the\ndetection of material evidence only to secure fair\ninvestigation and trial, the life purpose of the adjudication in\nhand.50. The unamended and the amended sub-section (8)\nofSection 173of the Code if read in juxtaposition, would\noverwhelmingly attest that by the latter, the investigating\nagency/officer alone has been authorised to conduct further\ninvestigation without limiting the stage of the proceedings\nrelatable thereto. This power qua the investigating\nagency/officer is thus legislatively intended to be available\nat any stage of the proceedings. The recommendation of the\nLaw Commission in its 41st Report which manifestly\nheralded the amendment, significantly had limited its\nproposal to the empowerment of the investigating agency\nalone.51.               In                contradistinction,Sections\n156,190,200,202and204CrPC clearly outline the powers\nof the Magistrate and the courses open for him to chart in\nthe matter of directing investigation, taking of cognizance,\nframing of charge, etc. Though the Magistrate has the power\nto direct investigation underSection 156(3)at the pre-\ncognizance stage even after a charge-sheet or a closure\nreport is submitted, once cognizance is taken and the\naccused person appears pursuant thereto, he would be\nbereft of any competence to direct further investigation either\nsuo motu or acting on the request or prayer of the\ncomplainant/informant. The direction for investigation by\nthe Magistrate underSection 202, while dealing with a\ncomplaint, though is at a post-cognizance stage, it is in the\nnature of an inquiry to derive satisfaction as to whether the\nproceedings initiated ought to be furthered or not. Such a\ndirection for investigation is not in the nature of further33investigation, as contemplated underSection 173(8)of the\nCode. If the power of the Magistrate, in such a scheme\nenvisaged byCrPCto order further investigation even after\nthe cognizance is taken, the accused persons appear and\ncharge is framed, is acknowledged or approved, the same\nwould be discordant with the state of law, as enunciated by\nthis Court and also the relevant layout ofCrPCadumbrated\nhereinabove. Additionally had it been the intention of the\nlegislature to invest such a power, in our estimate,Section\n173(8)CrPC would have been worded accordingly to\naccommodate and ordain the same having regard to the\nbackdrop of the incorporation thereof.In a way, in view of\nthe three options open to the Magistrate, after a report is\nsubmitted by the police on completion of the investigation, as\nhas been amongst authoritatively enumerated inBhagwant\nSingh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC\n537 : 1985 SCC (Cri) 267] , the Magistrate, in both the\ncontingencies, namely; when he takes cognizance of the\noffence or discharges the accused, would be committed to a\ncourse, whereafter though the investigating agency may for\ngood reasons inform him and seek his permission to conduct\nfurther investigation, he suo motu cannot embark upon such\na step or take that initiative on the request or prayer made\nby the complainant/informant. Not only such power to the\nMagistrate to direct further investigation suo motu or on the\nrequest or prayer of the complainant/informant after\ncognizance is taken and the accused person appears,\npursuant to the process, issued or is discharged is\nincompatible with the statutory design and dispensation, it\nwould even otherwise render the provisions ofSections\n311and319CrPC, whereunder any witness can be\nsummoned by a court and a person can be issued notice to\nstand trial at any stage, in a way redundant. Axiomatically,\nthus the impugned decision annulling the direction of the\nlearned Magistrate for further investigation is unexceptional\nand does not merit any interference. Even otherwise on\nfacts, having regard to the progression of the developments\nin the trial, and more particularly, the delay on the part of\nthe informant in making the request for further investigation,\nit was otherwise not entertainable as has been rightly held\nby the High Court."37. This judgment was followed in a recent Division Bench\njudgment of this Court inAthul Rao v. State of Karnataka\nand Anr.(2018) 14 SCC 298 at paragraph 8.InBikash\nRanjan Rout v. Statethrough the Secretary (Home),34Government of NCT of Delhi (2019) 5 SCC 542, after\nreferring to a number of decisions this Court concluded as\nfollows:"7. Considering the lawlaid down bythis Court in the\naforesaid decisions and even considering the relevant\nprovisions               ofCrPC,             namely,Sections\n167(2),173,227and228CrPC, what is emerging is that\nafter the investigation is concluded and the report is\nforwarded by the police to the Magistrate underSection\n173(2)(i)CrPC, the learned Magistrate may either (1) accept\nthe report and take cognizance of the offence and issue\nprocess, or (2) may disagree with the report and drop the\nproceedings, or (3) may direct further investigation\nunderSection 156(3)and require the police to make a further\nreport. If the Magistrate disagrees with the report and drops\nthe proceedings, the informant is required to be given an\nopportunity to submit the protest application and thereafter,\nafter giving an opportunity to the informant, the Magistrate\nmay take a further decision whether to drop the proceedings\nagainst the accused or not. If the learned Magistrate accepts\nthe objections,in that case, he may issue process and/or\neven frame the charges against the accused. As observed\nhereinabove, having not been satisfied with the investigation\non considering the report forwarded by the police\nunderSection 173(2)(i)CrPC, the Magistrate may, at that\nstage, direct further investigation and require the police to\nmake a further report. However, it is required to be noted\nthat all the aforesaid is required to be done at the pre-\ncognizance stage. Once the learned Magistrate takes the\ncognizance and, considering the materials on record\nsubmitted along with the report forwarded by the police\nunderSection 173(2)(i)CrPC, the learned Magistrate in\nexercise of the powers underSection 227CrPC discharges\nthe accused, thereafter, it will not be open for the Magistrate\nto suo motu order for further investigation and direct the\ninvestigating officer to submit the report. Such an order after\ndischarging the accused can be said to be made at the post-\ncognizance stage. There is a distinction and/or difference\nbetween the pre- cognizance stage and post-cognizance\nstage and the powers to be exercised by the Magistrate for\nfurther investigation at the pre-cognizance stage and post-\ncognizance stage. The power to order further investigation\nwhich may be available to the Magistrate at the pre-\ncognizance stage may not be available to the Magistrate at\nthe post-cognizance stage, more particularly, when the35accused is discharged by him. As observed hereinabove, if\nthe Magistrate was not satisfied with the investigation\ncarried out by the investigating officer and the report\nsubmitted by the investigating officer underSection\n173(2)(i)CrPC, as observed by this Court in a catena of\ndecisions and as observed hereinabove, it was always\nopen/permissible for the Magistrate to direct the\ninvestigating agency for further investigation and may\npostpone even the framing of the charge and/or taking any\nfinal decision on the report at that stage. However, once the\nlearned Magistrate, on the basis of the report and the\nmaterials placed along with the report, discharges the\naccused, we are afraid that thereafter the Magistrate can\nsuo motu order further investigation by the investigating\nagency. Once the order of discharge is passed, thereafter\nthe Magistrate has no jurisdiction to suo motu direct the\ninvestigating officer for further investigation and submit the\nreport. In such a situation, only two remedies are available:(i) a revision application can be filed against the discharge or(ii) the Court has to wait till the stage ofSection 319CrPC.However, at the same time, considering the provisions\nofSection 173(8)CrPC, it is always open for the\ninvestigating agency to file an application for further\ninvestigation and thereafter to submit the fresh report and\nthe Court may, on the application submitted by the\ninvestigating agency, permit further investigation and permit\nthe investigating officer to file a fresh report and the same\nmay be considered by the learned Magistrate thereafter in\naccordance with law. The Magistrate cannot suo motu direct\nfor further investigation underSection 173(8)CrPC or direct\nreinvestigation into a case at the post-cognizance stage,\nmore particularly when, in exercise of powers underSection\n227CrPC, the Magistrate discharges the accused.\nHowever,Section 173(8)CrPC confers power upon the officer\nin charge of the police station to further investigate and\nsubmit evidence, oral or documentary, after forwarding the\nreport under sub-section (2) ofSection 173CrPC. Therefore,\nit is always open for the investigating officer to apply for\nfurther investigation, even after forwarding the report under\nsub-section (2) ofSection 173and even after the discharge\nof the accused. However, the aforesaid shall be at the\ninstance of the investigating officer/police officer in charge\nand the Magistrate has no jurisdiction to suo motu pass an\norder for further investigation/reinvestigation after he\ndischarges the accused." Realising the difficulty in\nconcluding thus, the Court went on to hold:36"10. However, considering the observations made by the\nlearned Magistrate and the deficiency in the investigation\npointed out by the learned Magistrate and the ultimate goal\nis to book and/or punish the real culprit, it will be open for\nthe investigating officer to submit a proper application before\nthe learned Magistrate for further investigation and conduct\nfresh investigation and submit the further report in exercise\nof powers underSection 173(8)CrPC and thereafter the\nlearned Magistrate to consider the same in accordance with\nlaw and on its own merits."38. There is no good reason given by the Court in these\ndecisions as to why a Magistrate‟s powers to order\nfurther investigation would suddenly cease upon process\nbeing issued, and an accused appearing before the\nMagistrate, while concomitantly, the power of the police to\nfurther investigate the offence continues right till the stage\nthe trial commences. Such a view would not accord with the\nearlier judgments of this Court, in particular, Sakiri (supra),\nSamaj Parivartan Samudaya (supra),Vinay Tyagi(supra),\nandHardeep Singh(supra);Hardeep Singh(supra) having\nclearly held that a criminal trial does not begin after\ncognizance is taken, but only after charges are framed.\nWhat is not given any importance at all in the recent\njudgments of this Court isArticle 21of the Constitution and\nthe fact that the Article demands no less than a fair and just\ninvestigation. To say that a fair and just investigation would\nlead to the conclusion that the police retain the power,\nsubject, of course, to the Magistrate‟s nod underSection\n173(8)to further investigate an offence till charges are\nframed, but that the supervisory jurisdiction of the\nMagistrate suddenly ceases mid-way through the pre-trial\nproceedings, would amount to a travesty of justice, as\ncertain cases may cry out for further investigation so that an\ninnocent person is not wrongly arraigned as an accused or\nthat a prima facie guilty person is not so left out. There is no\nwarrant for such a narrow and restrictive view of the\npowers of the Magistrate, particularly when such powers\nare     traceable     toSection   156(3)read     withSection\n156(1),Section 2(h), andSection 173(8)of the CrPC, as has\nbeen noticed hereinabove, and would be available at all\nstages of the progress of a criminal case before the trial\nactually commences. It would also be in the interest of\njustice that this power be exercised suo motu by the\nMagistrate himself, depending on the facts of each case.\nWhether further investigation should or should not be37ordered is within the discretion of the learned Magistrate\n        who will exercise such discretion on the facts of each case\n        and in accordance with law.If, for example, fresh facts come\n        to light which would lead to inculpating or exculpating\n        certain persons, arriving at the truth and doing substantial\n        justice in a criminal case are more important than avoiding\n        further delay being caused in concluding the criminal\n        proceeding, as was held in Hasanbhai Valibhai Qureshi\n        (supra).Therefore, to the extent that the judgments inAmrutbhai Shambubhai Patel(supra),Athul Rao(supra) andBikash Ranjan Rout(supra) have held to the contrary, they\n        stand overruled.Needless to add,Randhir Singh Rana v.\n        State (Delhi Administration) (1997) 1 SCC 361 and Reeta\n        Nag v. State of West Bengal and Ors.(2009) 9 SCC 129 also\n        stand overruled."43. By a Judgment dated 12.10.2022 the Supreme Court in Criminal\n\n   Appeal No. 1768 of 2022 (Devendra Nath Singh Vs State of Bihar &\n\n   Ors) relying upon several precedents including Vinubhai Haribhai\n\n   Malaviya Vs The State of Gujarat (Supra) held:-"12.5. The case ofDivine Retreat Centre(supra) has had\n        the peculiarity of its own.Therein, the Criminal Case bearing\n        No. 381 of 2005 had been registered at Koratty Police\n        Station on the allegations made by a female remand\n        prisoner that while taking shelter in the appellant-Centre,\n        she was subjected to molestation and exploitation and she\n        became pregnant; and thereafter, when she came out of the\n        Centre to attend her sister‟s marriage, she was implicated\n        in a false theft case and lodged in jail. Parallel to these\n        proceedings, an anonymous petition as also other petitions\n        were received in the High Court, which were registered as a\n        suo motu criminal case. In that case, the High Court, while\n        exercising powers underSection 482CrPC, directed that the\n        said Criminal Case No. 381 of 2005 be taken away from the\n        investigating officer and be entrusted to the Special\n        Investigating Team („SIT‟). The High Court also directed the\n        said SIT to investigate/inquire into other allegations levelled\n        in the anonymous petition filed against the appellant-Centre.\n        However, this Court did not approve the order so passed by\n        the High Court and in that context, while observing that no\n        unlimited and arbitrary jurisdiction was conferred on the38High Court underSection 482CrPC, explained the\n          circumstances under which the inherent jurisdiction may be\n          exercised as also the responsibilities of the investigating\n          officers, inter alia, in the following words: -"27. In our view, there is nothing like unlimited arbitrary\n          jurisdiction conferred on the High Court underSection 482of\n          the Code. The power has to be exercised sparingly, carefully\n          and with caution only where such exercise is justified by the\n          tests laid down in the section itself. It is well settled thatSection 482does not confer any new power on the High\n          Court but only saves the inherent power which the Court\n          possessed before the enactment of the Code. There are three\n          circumstances under which the inherent jurisdiction may be\n          exercised, namely, (i) to give effect to an order 29 under the\n          Code, ( ii ) to prevent abuse of the process of court, and ( iii)\n          to otherwise secure the ends of justice."44. The Supreme Court in Anant Thanur Karmuse vs. State of\n\n    Maharashtra (Supra) has held that further Investigation can be\n\n    directed even after filing of charge sheet.45. CRR 1054 of 2019 is thus allowed.46. The learned Chief Judicial Magistrate, Malda shall through the\n\n    Officer-in-Charge,    Kaliachak      Police   Station     hand    over    the\n\n    investigation ofKaliachak P.S.Case No.796/18 dated 31.10.2018\n\n    underSections 306/34IPC corresponding to G.R. No. 4570 of 2018\n\n    pending before the Court of the learned Chief Judicial Magistrate,\n\n    Malda for Re-investigation to the CID, WEST BENGAL, within 7\n\n    days from the date of receipt of this order. The CID shall submit a\n\n    report on reinvestigation keeping in mind the observations made39in this judgment before the learned Chief Judicial Magistrate,\n\n    Malda within six months of taking up the reinvestigation.47. All connected applications, if any, stand disposed of.48. Interim order, if any, stands vacated.49. Copy of this judgment be sent to the learned Trial Court for necessary\n\n    compliance.50. Urgent certified website copy of this judgment, if applied for, be\n\n    supplied expeditiously after complying with all, necessary legal\n\n    formalities.(Shampa Dutt (Paul), J.)