Competent court is empowered to order further investigation

Section 156(3) of the Code of Criminal Procedure (CrPC) is now Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS). In BNSS, a magistrate can order a police investigation if they are empowered to take cognizance of a private complaint and believe an investigation is necessary. The magistrate must conduct an inquiry and consider the police's submissions before ordering an investigation. 

Section 156(3) of the CrPC allows magistrates to order an investigation before formally taking cognizance of the offense, providing a crucial tool when immediate investigation is needed. BNSS retains this pre-cognizance action.

The BNSS requires magistrates to conduct an inquiry before directing a police investigation. 

The magistrate must also consider the police officer's submissions regarding the complaint before issuing an order for investigation. 

The Supreme Court has emphasized the importance of magistrates applying a judicial mind and not acting as a "mere post office" when deciding whether to order an investigation. It has been underlined in Om Prakash Ambadkar vs. State of Maharashtra. BNSS reinforces the need for a reasoned order. 

BNSS ensures accountability in FIR registrations, addressing concerns about police reluctance to act on complaints. 

Section 173(8) of the Criminal Procedure Code (CrPC) allows for further investigation into an offense after a report has been submitted to the Magistrate. This provision permits the police to conduct additional investigations and submit further reports if new evidence emerges, as outlined in the Code. 

Section 193 (9) in Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 reads:"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3):

Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court."

Section 19 (3) reads: (i) As soon as the investigation is completed, the officer in charge of the police station shall forward, including through electronic communication to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form as the State Government may, by rules provide, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether the accused has been released on his bond or bail bond;

(g) whether the accused has been forwarded in custody under section 190;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 64, 65, 66, 67, 68, 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023;

(i) the sequence of custody in case of electronic device;

(ii) the police officer shall, within a period of ninety days, inform the progress of the investigation by any means including through electronic communication to the informant or the victim;

(iii) the officer shall also communicate, in such manner as the State Government may, by rules, provide, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given." Section 173 of Cr.PC is reproduced ad verbatim but an additional section has been included. 

In Vinubhai Haribhai Malaviya vs The State Of Gujarat, Supreme Court decided on 16 October, 2019 observes:"Thus, CrPC leaves clear scope for conducting of further inquiry and filing of a supplementary charge- sheet, if necessary, with such additional facts and evidence as may be collected by the investigating officer in terms of sub-sections (2) to (6) of Section 173 CrPC to the court. To put it aptly, further investigation by the investigating agency, after presentation of a challan (charge-sheet in terms of Section 173 CrPC) is permissible in any case impliedly but in no event is impermissible."

In the aftermath of the decision in Vinubhai Haribhai Malaviya, further investigation can be ordered under Section 156(3) by a competent court. 

In CBI vs. Hemendhra Reddy, 2023 SCC OnLine SC 515, Supreme Court's division bench of Surya Kant and J.B. Pardiwala has held that there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. Holding that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case, the Court stated that prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed. On the issue as to whether the principle of double jeopardy would apply to further investigation, the Court explained that “further investigation” is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Investigation also cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. It was also observed that there is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC. On the issue that if further investigation is permitted after such a long lapse of time, it would result in delay in trial and that for years to come, the sword of Damocles should not be kept hanging on the neck of the accused persons. 

The judgement reads: “The general rule of criminal justice is that 'a crime never dies'. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict.” The judgment was authored by Justice J.B.Pardiwala and delivered on decided on April 28, 2023. 

Further Investigation can be passed only on the basis of material collected during investigation, he did it on 156(3) itself. The jurisdictional magistrate has all the necessary powers to direct investigation under 156(3).