In respect of an offence, after a report under section 173(2) Criminal Procedure Code, 1973 has been forwarded to the Magistrate, further investigation is envisaged under section 173(8) Criminal Procedure Code, 1973. However, in Sessions triable cases, the questions that often arise before the criminal courts are that upon committal of a case, before whom should the supplementary chargesheet after further investigation be filed, whether the area Magistrate or a Court of Sessions qua the trial court and who is the repository of power to order further investigation after committal of the case, the area Magistrate or a Court of Sessions qua the trial court.


Order of further investigation is in exercise of supervisory power.


There exists a distinction in the supervisory and judicial powers of a Magistrate. In Kamlapati Trivedi v. State of West Bengal[1], the Supreme Court observed that the power to order further investigation by a Magistrate would fall under the supervisory powers of the Magistrate in contradistinction to the Magistrate’s judicial powers.


When a report u/s 173 Cr.P.C. is submitted to a Magistrate, he may,

(1) agree with the report of the police and file the proceedings; or

(2) not agree with the police report and

(a) order further investigation, or

(b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of [Abhinandan Jha v. Dinesh Mishra[2]].


The appropriate course has to be decided upon after a consideration of the report and the application of the mind by the Magistrate to the contents thereof. But then the problem to be resolved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In opinion of the Supreme Court, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2(a). The order passed by the Magistrate in each of the other two courses, that is, (1) and (2)(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on the one hand and the accused on the other) after the application of his mind.


Power of Court to order further investigation and desirability of investigating agency to seek leave.


Although sub-section (8) to section 173 Cr.P.C. does not, in specific terms, mention about powers of the Court to order further investigation as it states where upon such (further) investigation, the office in charge of the police station obtains further evidence, it is no longer res integra that the Court has the power to order further investigation even after filing of the charge sheet [Ram Lal Narang vs State (Delhi Administration)[3]]. Once charge sheet stands filed, the desirability of seeking prior leave of the Court to conduct further investigation is to be read in the provision 173(8) CrPC [Vinay Tyagi vs Irshad Ali[4]]  


Interplay between sections 2(h), 156 and 173 CrPC


It has been held in Vinubhai Haribhai Malaviya v. State of Gujarat[5], that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation, which would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Even textually, the “investigation” referred to in Section 156(1) Cr.P.C. would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would include proceedings by way of further investigation under Section 173(8) Cr.P.C.


It is however, pertinent to note that the offences involved in Vinubhai (supra) were all Magistrate triable offences, hence the questions raised in this article were not considered by the Apex Court in the said decision. Section 156(3) remained unchanged even after the 1973 Code was brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. Section 2(h) of the 1973 Criminal Procedure Code defines “investigation” in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference — that “investigation” after the 1973 Code has come into force will now include all the proceedings under Cr.P.C. for collection of evidence conducted by a police officer. It has been held that “all” would clearly include proceedings under Section 173(8) as well. Thus, when section 156(3) states that a Magistrate empowered under Section 190 may order “such an investigation”, such Magistrate may also order further investigation contemplated under Section 173(8), regard being had to the definition of “investigation” contained in Section 2(h). The powers of Magistrate in this regard are traceable to sections 156(3) read with S. 156(1), S, 2(h) and S. 173(8) CrPC.


Cognizance by Court of Sessions as Court of original jurisdiction


Section 193 CrPC deals with cognizance of offences by Court of Session. While section 193 of 1898 Code provided for “committal of the accused” to the Sessions, the corresponding section in the Code of 1973 contemplates “committal of the case” to the Sessions. The provision as it stands now, entails that a case must, first of all, be committed to the Court of Sessions by the Magistrate. The second condition is that only after the case has been committed to it, could the Court of Sessions take cognizance of an offence exercising original jurisdiction. It is no longer res integra that cognizance of an offence can be taken only once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of Session Court taking cognizance again does not arise. Reference in this regard be made to Constitution Bench decision in Dharam Pal & Ors vs. State of Haryana[6]. The language of section 193 of the Code clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction.


Role of Magistrate in a Sessions triable case and committal proceedings


As regard the nature of function exercised by the Magistrate Court in a Sessions triable case, under the earlier Code of Criminal Procedure, 1898, a full-fledged magisterial enquiry was postulated in the committal proceeding and the prosecution was then required to examine all the witnesses at that stage itself. In 1955, Parliament, by Act 26 of 1955, curtailed the said procedure and brought in Section 207-A to the old Code. Later on, the Law Commission of India in its 41st Report, recommended abolition of committal proceedings as it were considered a waste of time and effort and do not contribute appreciably to the efficiency of the trial before the Court of Session. Though the committal proceedings have not been totally abolished, but in the present incarnation in the Code of 1973, it has really been metamorphosed and the role of the Magistrate has been constricted.


Section 209 Cr.P.C. is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is to be seen prominently that preliminary inquiries then known as “committal proceedings” have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of offence, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus, manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. After taking cognizance, the role of the Magistrate thus, is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure.


In Gangula Ashok v. State of Andhra Pradesh[7], while discerning the hierarchical settings of criminal courts and stating that court of Session is given a superior status, it was observed that legislature would have thoughtfully relieved the court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the court of Session.


The jurisdiction of a committal Magistrate in a Sessions trial case was subject matter in the case of Sanjay Gandhi v. UOI[8]. It was held therein that it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that the Magistrate can go into the merits even for a prima facie satisfaction is to frustrate the Parliament’s purpose in re-moulding Section 207-A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully if a dress rehearsal of a trial before the Magistrate is to be held. The narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is triable by the Court of Sessions, the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect.


In Ajay Kumar Parmar v. State of Rajasthan[9], it was held that when an offence is cognizable by the Sessions Court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court and do nothing else. The scheme of the Code, particularly, the provisions of Sections 207 to 209 CrPC, mandate the Magistrate to commit the case to the Court of Session, when the charge-sheet is filed. A conjoint reading of these provisions makes it clear that the committal of a case exclusively triable by the Court of Session, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively by the Court of Session. Once he reaches the conclusion that the facts alleged in the report make out an offence triable exclusively by the Court of Session, he must commit the case to the Sessions Court.


Conclusions


Based on the above discussion, the answer to the questions posed in the beginning of the article are answered below.


Upon committal of the case, the supplementary charge sheet upon further investigation ought to be filed before the area Magistrate. The reasons for the same are given hereunder:

• A reading of section 173(8) CrPC shows that further report or reports regarding evidence collected during further investigation are to be forwarded to “the Magistrate”. The use of the word “Magistrate” in section 173(8) has to be read as a Magistrate contemplated in sub-sections (2) to (6) of section 173 CrPC i.e. Magistrate empowered to take cognizance of the offence. In view of the unequivocal language of sub-section 8 of section 173, the legislature never intended to bypass the committing magistrate in case the police filed a report after further investigation.

• Further, since the initial report u/s 173(2) CrPC is filed before a magistrate, a subsequent report which is in furtherance of the investigation and in continuation of the earlier report also would as sequitur, be required to be filed before the Magistrate concerned. The filing of further report or supplementary charge sheet is in the nature of an incidental proceeding to the filing of the main charge sheet and its filing process is expected to be in conformity with the earlier process for consistency.

• In terms of Section 207 and 209 CrPC, the role of the Magistrate in a Session trial case has been defined and as the Magistrate performs the ministerial task such as issuing process to the accused, notifying the public prosecutor, furnishing the accused with copies etc., the legislature would have thoughtfully relieved the Court of Session from the work of performing all preliminary formalities which the Magistrates have to do until the case is committed to the Court of Session. For these reasons too, the proper forum to file further investigation report or supplementary charge sheet should be the Magistrate Court.

• In the event, further investigation report discloses new offences, filing of the supplementary chargesheet before the Magistrate would enable the Magistrate to take cognizance of the fresh offence(s) before forwarding the supplementary charge sheet to the Court of Session. Though it is true that the Sessions Court can also take cognizance of such new offence(s) after committal proceedings in view of S. 193 CrPC, but the observations of the Constitution Bench in Dharam Pal (supra) to the effect that there can be no question of part cognizance being taken by Magistrate and part cognizance by the Learned Sessions Judge, settle the position that if cognizance of the earlier offence(s) was taken by Magistrate, then cognizance of the latter offences, if any, found during further investigation should also be taken by the Magistrate only and not by the Sessions Court. Where, however, the Magistrate has played a passive role in committing the case to the Sessions on finding from the police report that the case was triable by the Court of Sessions, the situation may be different.

• The Magistrate, after performance of the ministerial tasks, is required forward the supplementary charge sheet to the Court of Session where the case has been committed. It would then be the discretion of the Session court, who is in seisin of the matter, to decide as to what further action needs to be taken on the nature of material received on further investigation.


The repository power to order further investigation upon committal of a case, would be the court of Sessions qua the trial. The reasons for the same are given hereunder:


• After committal of the case, it is the Session court which is in seisin of the case. The records of the case after committal get transferred to the Session Court. The progress of the case is controlled and determined by the Session court. Being in seisin of the case and in control and in charge of the case, the Session court is in a better position to decide whether or not to exercise power to order further investigation in the facts of the case.

• In case such power to decide upon further investigation is vested with the Magistrate, the order of Magistrate may be in conflict with views of the Session Court which is seized of the trial.

• In terms of section 193 CrPC, after the case is committed to the Court of Session, it can take cognizance of the offence as a Court of original jurisdiction. Once the Court of Sessions assumes jurisdiction as Court of original jurisdiction, it also gets all that goes with the assumption of such jurisdiction. Clearly, the power to order further investigation would be included in assumption such original jurisdiction by the Sessions Court.

• Likewise, the conferment of original jurisdiction to the Session Court would also confer supervisory powers over investigation to the said court which is the power exercised while ordering further investigation.

• Since it is desirable to take leave of the court for further investigation, the Session Court, where the case is pending, would certainly be in a better position to adjudicate as to whether leave for further investigation is warranted or not in the facts of case pending before it.

• The constricted role of a Magistrate after he commits the case to the Sessions Court u/s 209 and the narrow inspection hole available to such committing Magistrate would also place the Sessions Court in a better position to order further investigation as compared to a committing Magistrate.

• The status of the Magistrate after he has committed the case to the Court of Session u/s 209 CrPC is that he becomes functus officio after the act of commitment. As such, on this reasoning too, the Magistrate Court cannot be repository of power to order further investigation.

• Before concluding, it is pertinent to mention here that in Vinubhai (supra), the Apex Court held that the power to order further investigation can be exercised only till the stage of commencement of trial only, that is, till such time the charges are framed. But what happens if some further material surfaces after commencement of trial, which may call for further investigation? The Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023, has addressed this situation. In section 193(9) of BNSS, while retaining the earlier version pertaining to further investigation as contained in the Code of 1973, a new incorporation has been made by way of a proviso to the effect that further investigation during trial may be permitted with the permission of the Court trying the case. This provision, gives such power to order further investigation to the Court trying the case, which in Sessions triable cases would be the Sessions Court. The proviso, thus, also supports the reasoning that repository of power to order further investigation upon committal of a case, would be the court of Session where trial is pending.


[1] 1980 (2) SCC 91

[2] 1967 (3) SCR 668

[3] (1979) 2 SCC 322

[4] (2013) 5 SCC 762

[5] 2019 (17) SCC 1

[6] 2014 (3) SCC 306

[7] 2000 (2) SCC 504

[8] 1978 SCC (Cri) 172

[9] 2012 (12) SCC 406