SUPREME COURT OF INDIA

Before:- D.M. Dharmadhikari and B.N. Srikrishna, JJ.

Criminal Appeal Nos. 317-318 of 2005 (Arising out of SLP(Crl.) Nos. 3086-3087 of 2004). D/d. 18.2.2005.

Ranveer Singh - Appellants

Versus

State of U.P. & Ors. - Respondent

Criminal Procedure Code, 1973 Sections 173(8) Further investigation - FIR under sections 504, 506, 342 ad 376 Indian Penal Code - Police, submitting report for only non-cognizable offences under Sections 323/504 and seeking time for further investigation - Time granted by Magistrate is justified - High Court was clearly in error in holding that the Magistrate ought to have followed the procedure for complaint - Section 173(8) does not preclude but only enables police to investigate further.

[Paras 8 and 7]

ORDER

D.M. Dharmadhikari and B.N. Srikrishna, JJ. - Leave granted.

2. The counsel for the parties are finally heard. A complaint was filed by the present appellant against the respondent-accused alleging offences both cognizable and non-cognizable under Section 504, 506, 342 and 376 I.P.C. at Police Station Gonda, Distt. Aligarh. When the matter was brought before the Additional Chief Judicial Magistrate, Court No.1, Aligarh, the police stated that only non-cognizable offence under section 323/504 IPC was found but it made a request to the Magistrate seeking time to make further investigations.

3. Such a request was made under Section Sub-section (8) of Section 173 of Cr.P.C. which reads as under :-

"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)."

4. The learned Magistrate by his order passed on 24.7.2003, allowed the police to investigate in accordance with Section 173 (8) of Cr.P.C. The relevant part of his order reads:-

" After hearing both the parties and after considering the charge sheet in the opinion of court at this stage it will be expedient in the interest of justice to take the cognizance of the presented charge sheet by the police station Gonda. The Investigation Officer is free to conduct the investigation as per the provisions of Section 173(8) of Cr.P.C. The objection on behalf of the complainant being without merit is dismissed. The cognizance is taken in reference to charge sheet filed in criminal case No.77/03. On the application of surrender the learned counsel for the accused persons has stated that the accused person is not present today, therefore, another date may kindly be given."

5. The accused challenged the order of the Magistrate before the High Court. The learned Single-Judge by the impugned order has set aside the order of the Magistrate taking a view that as the initial report of the police disclosed only non-cogniazble offence, the report has to be treated to be a complaint and only procedure for investigating the complaint ought to have been followed by the Magistrate.

6. The relevant para of the impugned order of the High Court reads thus :-

" It may further be mentioned that a Police report of a non-cognizable offence would be deemed to be a complaint. The explanation does not speak of authorised or unauthorized investigation. All it refers to is a Police report made after investigation. Therefore, a report made by the Police on an unauthorized or authorised offence will be complaint under Section 190(1)(a) of the Code and the procedure of the complaint case has to be adopted as provided under Chapter. Here in this case directions for further investigation and also for recording the statement under Section 164 of the Code has been given by the learned Magistrate treating the Police report under Section 190(1)(b) of the Code which was not permissible once the nature of the police report has the connotation of complaint.

In view of the aforesaid discussions, the impugned order is not sustainable. In the result it is quashed."

Holding in the manner aforesaid, the High Court set aside the order of the Magistrate.

7. After hearing the learned counsel for the complainant who is the appellant before us and the counsel for the respondents representing the accused, we find that the High Court has totally misconstrued the provisions of Section 173(8) of Cr.P.C. and has mis-directed itself in holding that only a procedure for a complaint case ought to have been followed by the Magistrate in the circumstances mentioned above. It is clear from the provision of Sub-section (8) of Section 173 of Cr.P.C. that it enables the police to further investigate. It is merely an enabling provision which in clear terms states that it shall not `preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate.' It is true that in the initial report, the police stated that only non-cognizable offence is disclosed to have been committed by the accused. But it desired to make further investigation and that was not precluded by the provisions of Sub-section (8) of Section 173 of Cr.P.C.

8. In these circumstances, the High Court was clearly in error in holding that the Magistrate ought to have followed the procedure for complaint.

9. The appeals are allowed. The impugned order of the High Court is set aside and the order of the Magistrate is restored.

Appeals allowed.