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(2018) 1 SCC Cri J-1

Different Aspects of Section 173(8) CrPC

DIFFERENT ASPECTS OF SECTION 173(8) CRPC

by
Animesh Ghosh†
Section 173(8) CrPC deals with further investigation and supplementary report. In
the old Code of Criminal Procedure, there was no identical provision to that of Section
173(8) of the Code of Criminal Procedure, 1973. The same is a newly added provision
in the Code of Criminal Procedure, 1973. It was added on the recommendation of the
Law Commission in its 41st Report that the right of the police to make further
investigation should be statutorily affirmed.
Section 173(8) of the Code of Criminal Procedure, 1973 provides:
173. (8) Nothing in this section shall be deemed to preclude further investigation
in respect of an offence after a report under sub-section (2) 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
prescribed and the provisions of sub-sections (2) to (6) 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 (2).
Breaking the said provision it can be jolted down as under:
1. Further investigation can be done in respect of an offence wherein report under
Section 173(2) has been forwarded to the Magistrate; and
2. During further investigation, the officer in charge has power
(a) to obtain further evidence, oral or documentary,
(b) to forward to the Magistrate, a further report or reports regarding such
evidence in the form prescribed,
3. The provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation
to such further report or reports.
Sub-section (1) of Section 173 CrPC provides that every investigation by the police
shall be completed without unnecessary delay and sub-section (2) of Section 173
provides that as soon as such investigation is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the State Government.
Under sub-section (2) of Section 173, a police report (charge-sheet or challan) is filed
by the police after investigation is complete. Sub-section (8) of Section 173, states
that nothing in the section shall be deemed to preclude any further investigation in
respect of an offence after a report under sub-section (2) has been forwarded to the
Magistrate. Thus, even where charge-sheet or challan has been filed by the police
under sub-section (2) of Section 173,

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the police can undertake further investigation in respect of an offence under sub-
section (8) of Section 173 CrPC.
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1. Meaning of “further investigation”
Further investigation within the meaning of provision of Section 173(8) CrPC is
additional; more; or supplemental. “Further investigation”, therefore, is the
continuation of the earlier investigation and not a fresh investigation or reinvestigation
to be started ab initio wiping out the earlier investigation altogether.1
2. Alternatives before Magistrate in a final report
Wherever a final report forwarded by case investigating police to a Magistrate under
Section 173(2)(i) is placed before him, several situations may arise. The report may
conclude that an offence appears to have been committed by a particular person and
persons, and in such a case Magistrate may either:
(1) accept the report and take cognizance of offence and issue process,
(2) may disagree with the report and drop the proceeding or to take cognizance on
the basis of report/material submitted by the investigation officer,
(3) may direct further investigation under Section 156(3) and require police to
make a report as per Section 173(8) of the Code.
(4) may treat the protest complaint as a complaint, and proceed under Sections
200 and 202 CrPC.
3. Prime consideration
As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat2 the prime
consideration for further investigation is to arrive at the truth and do real and
substantial justice. The hands of investigating agency for further investigation should
not be tied down on the ground of mere delay. In other words, the mere fact that
there may be further delay in concluding the trial should not stand in the way of
further investigation if that would help the court in arriving at the truth and do real
and substantial and effective justice.
4. Whether further investigation can be ordered during or after trial?
On this question the pertinent case is J. Prabhavathiamma v. State of Kerala3 ,
wherein even though the trial had reached its fag end, it was held that further
investigation under Section 173(8) CrPC can be conducted even at the post
cognizance stage. So if further investigation can be conducted even after cognizance
has been taken, there is no reason why it cannot be ordered during or after trial.
In Gudalure M.J. Cherian v. Union of India4 the Supreme Court directed CBI to take
up the investigation of the case in Gajraula Nun's rape case. There the investigation
was conducted by the State Police which had filed a charge-sheet also. In order to do
justice between parties and to instill confidence in the public mind, the Supreme Court
directed CBI to conduct the investigation.

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In Kashmeri Devi v. Delhi Admn.5 on being convinced that the investigation by the
Delhi Police against the accused police officers on a charge of murder by torture in
police custody was partisan and was to shield the guilty policemen, the Supreme Court
directed the trial court before which the charge-sheet had already been submitted, to
exercise his powers under Section 173(8) CrPC to direct CBI to conduct a proper
investigation in the matter.
In CBI v. Rajesh Gandhi6 , even though a final report was filed before the Chief
Judicial Magistrate, Dhanbad, the Central Government issued a notification under
Section 5(1) read with Section 6 of the DSPE Act enabling CBI to conduct the
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investigation in the case. Though the action of the Central Government was
successfully challenged before the Patna High Court, the Supreme Court taking note of
the fact that the investigation by the local police was not satisfactory directed CBI to
further investigate the offences in accordance with law.
It was also held that after the Magistrate has taken cognizance, reinvestigation by
the police is not barred.7 Moreover the trial court can order further investigation under
Section 173(8) CrPC on the basis of application preferred in this regard by the de facto
complainant at any stage irrespective of the stage of pre-cognizance or post-
cognizance stage, even after the commencement of the trial. Therefore, the contention
raised by the respondents against the powers of the learned Magistrate in ordering
further investigation after framing of charge is not sustainable.8
In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v.
State of A.P.9 the Hon'ble Supreme Court held that even after the court took
cognizance of any offence on the strength of the police report first submitted, it is
open to the police to conduct further investigation.
5. Whether further investigation be done on the prayer of de facto
complainant in his/her protest petition?
In this connection, the ratio of the Hon'ble Kolkata High Court in the leading case of
Sumanta Sinha v. State of W.B.10 , should be mentioned. In the abovementioned case,
the Hon'ble High Court, Kolkata relying on the three-Judge Bench decision of the
Hon'ble Supreme Court in Bhagwant Singh v. Commr. of Police11 observed that:
7. … no illegality has been committed by the learned Magistrate in passing a
direction for further investigation on the protest petition filed by the de facto
complainant, since there is no bar in entertaining protest petition to pass order for
further investigation.12

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6. By which agency further investigation be done

In this connection, decision of the Supreme Court in K. Chandrasekhar v. State of
Kerala13 is relied upon which corresponds to Mariam Rasheeda v. State of Kerala14 . In
that case the Hon'ble Supreme Court was disposing of a batch of appeals by the six
accused persons, namely, Mariam Rasheeda and Fausia Hasan (two Mali Nationals),
Nambi Narayanan and Sasi Kumar (two senior scientists working with the Indian
Space Research Organisation), S.K. Sharma (a labour contractor) and K.
Chandrasekhar (an authorised representative of a Russian firm in India). That case is
popularly known as “ISRO Espionage case”. A close reading of the judgment of the
Supreme Court in ISRO Espionage case13 will show that the Government of Kerala
which had given consent under Section 6 of the Delhi Special Police Establishment Act,
1944 (“the DSPE Act”, for short) resulting in CBI investigating the case and filing the
final report, thereafter withdrew the consent and ordered reinvestigation by issuing a
notification. Subsequently, the explanatory note to the said notification was amended
to substitute the word “reinvestigation” with “further investigation”. It was in that
context that the Supreme Court in para 25 of the decision considered the scope and
ambit of “further investigation” occurring in Section 173(8) CrPC. It was accordingly
held that further investigation was a continuation of the earlier investigation and not a
“fresh investigation” or “reinvestigation” or “de novo investigation” to be started ab
initio wiping out the earlier investigation altogether. The Supreme Court also held that
once the consent is granted under Section 6 of the DSPE Act, an investigation
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undertaken by CBI pursuant to such consent is to be completed notwithstanding the
withdrawal of the consent and that withdrawal of such consent by the State
Government would not entitle the State Police to further investigate the case. In other
words, what the Supreme Court held was that such further investigation could be
conducted only by CBI which alone was granted consent under Section 6 of the DSPE
Act. The following observation in para 24 of the judgment makes the position very
clear:
24. … Once it is accepted—and it has got to be accepted in view of the judgment
in Kazi Lhendup Dorji15 —that an investigation undertaken by CBI pursuant to a
consent granted under Section 6 of the Act is to be completed, notwithstanding
withdrawal of the consent, and that “further investigation” is a continuation of such
investigation which culminates in a further police report under sub-section (8) of
Section 173, it necessarily means that withdrawal of consent in the instant case
would not entitle the State police, to further investigate into the case. To put it
differently, if any further investigation is to be made it is CBI alone which can do so,
for it was entrusted to investigate into the case by the State Government.16
(emphasis supplied)
There is nothing in Section 173(8) CrPC to indicate that further investigation can be
conducted only by the same agency which conducted the earlier investigation. There is
no observation by the Supreme Court in ISRO Espionage case13 also to the effect that
the very same agency which conducted the earlier investigation

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should conduct the further investigation. Accordingly, there is no warrant for taking
the view that further investigation under Section 173(8) CrPC has to be conducted by
the very same agency which conducted the earlier investigation.

7. Use of word “evidence” in Section 173(8) of the Code

The word “evidence” in Section 173(8) of the Code has been used in generic sense
of additional material into the crime regarding which charge-sheet has already been
filed in the Court and not as evidence recorded before the Court17 .
8. Difference between “further investigation” and “reinvestigation”
It is, however, beyond any cavil that “further investigation” and “reinvestigation”
stand on different footing. Direction of a reinvestigation, however, being forbidden in
law, no superior court like the Hon'ble Supreme Court and/or the High Court
could/would ordinarily issue such a direction.
Pasayat, J. in Ramachandran v. R. Udhayakumar18 , opined as under:
7. At this juncture it would be necessary to take note of Section 173 of the Code.
From a plain reading of the above section it is evident that even after completion of
investigation under sub-section (2) of Section 173 of the Code, the police has right
to further investigate under sub-section (8), but not fresh investigation or
reinvestigation.19
A distinction, therefore, exists between a reinvestigation and further
investigation and same is observed in Mithabhai Pashabhai Patel v. State of
Gujarat20 .
The Supreme Court in para 24 of the decision considered the scope and ambit of
“further investigation” occurring in Section 173(8) CrPC. It was accordingly held
that further investigation was a continuation of the earlier investigation and not a
“fresh investigation” or “reinvestigation” or “de novo investigation” to be started ab
initio wiping out the earlier investigation altogether14 .
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9. Whether the Public Prosecutor himself has the right or authority to file a
petition under Section 173(8) CrPC seeking further investigation, on the basis
of the materials on record without the request of the investigating officer?
There is nothing wrong on the part of the Public Prosecutor to file a petition under
Section 173(8) CrPC before the court, seeking an order directing the investigating
officer to conduct further investigation under Section 173(8) CrPC. The court can
exercise the power to order further investigation under Section 173(8) CrPC and such
petition filed by the Public Prosecutor can only be treated as an application seeking to
invite the attention of the court regarding the necessity to invoke the power of the
court under Section 173(8) CrPC. If any such petition is filed by the Public Prosecutor
under Section 173(8) CrPC, the court has to apply its mind on it and to satisfy itself
with regard to the necessity, if any, to invoke the power of the court under Section
173(8) CrPC.

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On a satisfaction that such power has to be invoked, the court has to do it, and if it
feels that there is no such necessity, the court can ignore such petition filed by the
Public Prosecutor, and to reject the same.21

10. Can the court on its own motion trigger a further investigation under
Section 173(8) CrPC to be done by the investigating officer?
In Randhir Singh Rana v. State (Delhi Admn.)22 , the Hon'ble Supreme Court, posed
a question that “if for further investigation, the police should ordinarily take the formal
permission of the court, can the court on its own not ask for further investigation, if
the same be thought necessary to arrive at a just decision of the case?” In that case,
the Supreme Court held that within the gray area to which their Lordships have
referred, the Magistrate on his own cannot order for further investigation.
In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v.
State of A.P.9 , it was held in paras 10 and 11:
10. Power of the police to conduct further investigation, after laying final report,
is recognised under Section 173(8) of the Code of Criminal Procedure. Even after
the court took cognizance of any offence on the strength of the police report first
submitted, it is open to the police to conduct further investigation. This has been so
stated by this Court in Ram Lal Narang v. State (Delhi Admn.)23 . The only rider
provided by the aforesaid decision is that it would be desirable that the police
should inform the court and seek formal permission to make further investigation.
11. In such a situation the power of the court to direct the police to conduct
further investigation cannot have any inhibition. There is nothing in Section 173(8)
to suggest that the court is obliged to hear the accused before any such direction is
made. Casting of any such obligation on the court would only result in encumbering
the court with the burden of searching for all the potential accused to be afforded
with the opportunity of being heard. As the law does not require it, we would not
burden the Magistrate with such an obligation.24
(emphasis supplied)
There, it was held that the court has power to direct the police to conduct further
investigation and such power cannot have any inhibition at all. In ordering such a
further investigation under Section 173(8) CrPC, the court is not obliged to hear the
accused before any such direction is made.
In Hemant Dhasmana v. CBI25 , it was held:
15. When the report is filed under sub-section 173(2) of the Code the Magistrate
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(in this case the Special Judge) has to deal with it by bestowing his judicial
consideration. If the report is to the effect that the allegations in the original
complaint were found true in the investigation, or that some other accused and/or
some other offences were also detected, the court has to decide whether cognizance
of the offences should be taken or not on the strength of that report. We do not
think that it is necessary for us to vex our mind, in this case,

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regarding that aspect when the report points to the offences committed by some
persons. But when the report is against the allegations contained in the complaint and
concluded that no offence has been committed by any person, it is open to the court
to accept the report after hearing the complainant at whose behest the investigation
had commenced. If the court feels, on a perusal of such a report that the alleged
offences have in fact been committed by some persons the court has the power to
ignore the contrary conclusions made by the investigating officer in the final report.
Then it is open to the court to independently apply its mind to the facts emerging
therefrom and can even take cognizance of the offences which appear to it to have
been committed, in exercise of its power under Section 190(1)(b) of the Code. The
third option is the one adumbrated in Section 173(8) of the Code.26

It was further held in Hemant Dhasmana25 :

16. Although the said sub-section does not, in specific terms, mention about the
powers of the court to order further investigation, the power of the police to conduct
further investigation envisaged therein can be triggered into motion at the instance
of the court. When any such order is passed by a court which has the jurisdiction to
do so, it would not be a proper exercise of revisional powers to interfere therewith
because the further investigation would only be for the ends of justice.27 (emphasis
supplied)
Therefore, the court, on its own motion also, can trigger a further investigation for
the ends of justice, by assuming the power under Section 173(8) CrPC.
In UPSC v. S. Papaiah28 , it was held in para 13:
The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC
direct CBI to “further investigate” the case and collect further evidence keeping in
view the objection raised by the appellant to the investigation and the “new” report
to be submitted by the investigating officer would be governed by sub-sections (2)
to (6) of Section 173 CrPC.29
In Vinay Tyagi v. Irshad Ali30 , it was held that “further investigation” in terms of
Section 173(8) CrPC can be made in a situation where the investigating officer obtains
further oral or documentary evidence after the final report has been filed before the
court. The report on such further investigation under Section 173(8) CrPC can be
termed as a supplementary report. In Vinay Tyagi30 , the Supreme Court has relied on
the decision in Hemant Dhasmana25 .
In Vinay Tyagi30 , it was held:
40.2. A Magistrate has the power to direct “further investigation” after filing of a
police report in terms of Section 173(6) of the Code.
* * *
40.4. Neither the scheme of the Code nor any specific provision therein bars
exercise of such jurisdiction by the Magistrate. The language of Section 173(2)
cannot be construed so restrictively as to deprive the Magistrate of such powers
particularly in face of the provisions of Section 156(3) and the language of Section
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173(8) itself. In fact, such power would have to be read into the language of

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Section 173(8).

40.5. The Code is a procedural document, thus, it must receive a construction

which would advance the cause of justice and legislative object sought to be
achieved. It does not stand to reason that the legislature provided power of further
investigation to the police even after filing a report, but intended to curtail the
power of the court to the extent that even where the facts of the case and the ends
of justice demand, the court can still not direct the investigating agency to conduct
further investigation which it could do on its own.
40.6. It has been a procedure of proprietary that the police has to seek
permission of the Court to continue “further investigation” and file supplementary
charge-sheet.31
From all the above, it is evident that when a final report has been filed under
Section 173(2) CrPC by the investigating officer, if the court on applying its mind is
satisfied that there is lapse or defects in the investigation or if it is satisfied that a
further investigation has to be conducted, the Court on its own motion can trigger a
further investigation under Section 173(8) CrPC to be done by the investigating
officer.
11. Power to take suo motu cases by superior courts
In State of Punjab v. CBI32 , the Supreme Court held, where charge-sheet has been
filed, and the High Court held that the same cannot limit or affect the inherent power
of the High Court to pass an order under Section 482 CrPC for fresh investigation or
reinvestigation is necessary to serve the ends of justice. This was a case where senior
functionaries of the State Police and political leaders were involved, and justice would
not be done if local police investigated, and thereby the High Court given direction
under Section 482 CrPC for fresh investigation by CBI.
These are the different aspects of Section 173(8) CrPC.
———
†
Judicial Magistrate (Ist Class), IIIrd Court, Tamluk, Purba Midnapur, West Bengal.

1 Rama Chaudhary v. State of Bihar, (2009) 6 SCC 346.

2 (2004) 5 SCC 347.
3 2007 SCC OnLine Ker 105 : (2008) 1 KLJ 9.
4 (1992) 1 SCC 397.
5
1988 Supp SCC 482.
6 (1996) 11 SCC 253.

7 Gobardhan Das v. State of Orissa, 1999 SCC OnLine Ori 250 : 2000 Cri LJ 1641.
8 Siby Paul v. State, 2011 SCC OnLine Ker 4273.
9 (1999) 5 SCC 740.
10 2013 SCC OnLine Cal 23010.
11 (1985) 2 SCC 537.
12 2013 SCC OnLine Cal 23010, para 7.
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13 (1998) 5 SCC 223.
14
Sub nom K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223.
15 Kazi Lhendup Dorgi v. CBI, 1994 Supp (2) SCC 116.
16
(1998) 5 SCC 223, 237.
17
Suresh v. State of U.P., 2006 SCC Online All 1456 : 2006 Cri LJ 4814 at p. 4815.
18 (2008) 5 SCC 413.

19 Id, 415, para 7.

20 (2009) 6 SCC 332.
21 Abdul Latheef v. State of Kerala, 2014 SCC Online Ker 28597.
22
(1997) 1 SCC 361.
23 (1979) 2 SCC 322.
24 (1999) 5 SCC 740, 742-43.
25
(2001) 7 SCC 536.
26 Id, 542, para 15.
27 Id, 543, para 16.
28
(1997) 7 SCC 614.
29 Id, 620-21.
30 (2013) 5 SCC 762.
31
Id, 790, para 40.
32 (2011) 9 SCC 182.
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