Magistrate can order further investigation after police files chargesheet, Calcutta HC

The Calcutta High Court recently clarified that a Magistrate is not barred from directing further investigation in a criminal case after the police has filed a final report/chargesheet under Section 173(2) of the Code of Criminal Procedure (CrPC)..Given the facts of the case before the Court, Justice Shivakant Prasad held,.“…the Magistrate has ample power to direct further investigation after submission of the charge sheet by the police even when cognizance has been taken on the charge sheet.“.This can be inferred from Section 173 (8) of the CrPC, which lays down:.“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).”.In the instant case, the Magistrate had declined to entertain a plea made by the petitioner to order further investigation in relation to a 2016 incident. The petitioner had filed a complaint alleging that he had been attacked by two persons, both of whom he named in the FIR..However, the police only named one of the persons in the final report forwarded to the Magistrate the following year. The petitioner challenged this final report before the Magistrate, contending that the case should also be registered against the second attacker he named..The Magistrate in turn cited the 2017 Supreme Court verdict in Amrut Bhai Patel v. Suman Bhai Kanti Bhai Patel and Ors to hold that the complainant cannot insist for further investigation when cognizance has already been taken in respect of the offence alleged..The High Court however found that the Amrut Bhai case was distinguishable from the instant case, particularly since that case had reached the stage of final arguments when the plea for further investigation was moved..The petitioner’s counsel, Advocate Ayan Bhattacharya, directed the attention of the Court to various other precedents which indicated that the Magistrate could order further investigation if required under Section 173 (8) CrPC..Notably, the Court also observed that the Magistrate’s power to order further investigation is different from ordering a re-investigation or a de novo investigation. Re-investigation and de novo investigation can only be ordered by the Higher Judiciary under Section 482 of the CrPC or Article 226 of the Constitution and not by the Magistrate courts..Ultimately, in the facts of the case at hand, Justice Prasad held that the Magistrate can and should order further investigation in criminal cases under Section 173 (8) where it is required in the larger interest of justice..“Thus, in the larger interest of the justice and for fair trial, it is imperative for the Magistrate to grant further investigation because if the order impugned is allowed to be sustained, it will amount to arming the police with unbridled power to exonerate any person from the periphery of the investigation and it would be playing into the hands of the I.O. who submitted the charge sheet against one accused exonerating another by not sent up him in the charge sheet with an ulterior design.”.However, in line with the Amrut Bhai case, it was also noted,.“…such power may be precluded at the culminating stage of trial after cognisance has been taken on framing of charge against the accused on the basis of the Final Report.“.With these observations, the revision application before the Court was allowed. The Magistrate’s earlier order was set aside and the Additional Chief Judicial Magistrate was directed to examine the police papers in the case diary, before taking cognizance on the final report..Read the Judgment: