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2019 (4) TMI 2114 - SC - Indian LawsFurther investigation once order of discharge given - whether once the learned Magistrate passes an order of discharge of the Accused, whether thereafter is it permissible for the Magistrate to order further investigation and direct the investigating officer to submit the report? - HELD THAT:- In the celebrated judgment of this Court in the case of BHAGWANT SINGH VERSUS. COMMISSIONER OF POLICE [1985 (4) TMI 327 - SUPREME COURT] which has been subsequently followed consistently, this Court had the occasion to consider the procedure to be followed by the learned Magistrate and/or the options which are available to the learned Magistrate at the time when the report/challan/charge-sheet is filed by the investigating officer before him. In that judgment, this Court in para 4 has observed and held We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded Under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. In the case of MINU KUMARI AND ANR VERSUS THE STATE OF BIHAR AND ORS [2006 (4) TMI 534 - SUPREME COURT], it is observed by this Court that when a report forwarded by the police to the Magistrate Under Section 173(2)(i) is placed before him, several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issued process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation Under Section 156(3) and require the police to make a further report. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of the Code of Criminal Procedure, namely Sections 167(2), 173, 227 and 228 of the Code of Criminal Procedure, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate Under Section 173(2)(i) of the Code of Criminal Procedure, the learned Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation Under Section 156(3) and require the police to make a further report. 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 - Section 173(8) of the Code of Criminal Procedure confers power upon the officer-in-charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report Under Sub-section (2) of Section 173 of the Code of Criminal Procedure. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report Under Sub-section (2) of Section 173 and even after the discharge of the Accused. However, the aforesaid shall be at the instance of the investigating officer/police officer-in-charge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the Accused. In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate. Therefore, that part of the order passed by the learned Magistrate ordering further investigation after he discharges the Accused, cannot be sustained and the same deserves to be quashed and set aside. The impugned judgment as well as that part of the order passed by the learned Magistrate directing the investigating officer for further investigation and submit the report, is hereby quashed and set aside - Appeal allowed.
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