Miscellaneous Part 3
Summary of Question- Article 226 in contractual matters
Question – Whether Article 226 of the Constitution of India is fit to be invoked in contractual matters.
Answer- Ordinarily, Not. But High court does not lack jurisdiction under Article 226 against any state action which is Arbitrary , unreasonable or falls foul of the Constitution of India.
1. The Hon’ble Supreme Court in the case reported in Karnataka State Forest Industries (2009) 1 SCC 150 observed and held :
"Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable."
" There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the Writ Petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless."
2. In CIVIL APPEAL NO. 2610 OF 2019 (M/S SURYA CONSTRUCTIONS vs. THE STATE OF UTTAR PRADESH), decided on 8th . March 2019, observed and held :
“It is clear, therefore, from the aforesaid order dated 22.03.2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No 25216/2014, the impugned judgment dated 02.05.2014 dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India [ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and Others’ (2004 (3) SCC 553)].”
Summary of Question- Application of Article 226 when civil / criminal remedy available
Question – Whether Article 226 can be available for deciding a dispute for which civil / criminal remedies are vailable.
Answer- Ordinarily , Not.
The Hon’ble supreme Court in CIVIL APPEAL NO.11759 of 2018 decided on 3rd. December 2018 observed and held :
"It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant…….”
Summary of Question- Adjudication of facts under Article 226
Question – Whether High Court sits as a court of Appeal under Article 226 to adjudicate disputed questions of fact.
Answer- No. Hon'ble High Court does not adjudicate, upon affidavits, disputed questions of fact nor sit as a Court of Appeal over the findings recorded by a competent administrative authority ; only in the rarest of cases, error is rectifiable by the Court itself ; the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. High Court under can entertain writ petition if it involves disputed question of fact only in as case which does not involve elaborate evidence.Further, if any provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court.
1. The Hon’ble Supreme Court in the case reported in (2019) 2 SCC 499 , observed and held:
"It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed questions of fact."
"It is well settled that proceedings under Article 226 of the Constitution of India, the High Court cannot reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case. Even assuming that there had been any error in the computation of marks in respect of fixed and movable assets, the High Court could, at best, have remitted the case of respondent Prakash Chandra Chaudhary to the concerned authorities for reconsideration."
" In exercise of discretionary power of judicial review under Article 226 of the Constitution, the High Court might interfere with administrative matters only if the decision is violative of fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. It is true that the High Court might rectify, in exercise of its power of judicial review, an error of law or even an error of fact, for sufficient reasons, if the error breaches fundamental or basic principles of justice or fair play or if the error is patent and/or flagrant, but not otherwise. However, even in cases where the High Court finds an apparent factual error which goes to the root of the decision, the appropriate course of action would be to give the opportunity to the authority concerned to rectify the error. It is only in the rarest of cases, where the factual error is so obvious that it is rectifiable by the Court itself, that the Court might, to prevent delay and consequential denial and/or miscarriage of justice, rectify the error."
2. In CIVIL APPEAL NO.5824 OF 2019 , decided on 24th. July 2019, the Hon’ble Supreme Court observed and held:
"It is well settled that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention under Article 226 of the Constitution of India. "
" In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC 137. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari. "
" The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse."
" However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect."
3. A three judge bench of the Hon'ble Supreme Court in Civil Appeal No. 1600 of 2020 (POPATRAO VYANKATRAO PATIL vs. THE STATE OF MAHARASHTRA), decided on 14th. February 2020, observed and held :
"It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India......."
Summary of Question- Article 226 and Judicial Order
Question – Whether Judicial Order passed by a subordinate Court can be examined by High Court under Article 226 of the Constitution of India.
Answer- No. Judicial Order passed by a subordinate Court cannot be examined by High Court under Article 226 of the Constitution of India. But it can be done under Article 227.
1. A three Judge Bench of the Hon’ble Supreme Court in CIVIL APPEAL NO. 2548 OF 2009 , decided on 15th. April 2009, observed and held
"Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power,however, is not to be exercised to correct a mistake of fact and of law.The essential distinctions in the exercise of power between Article 226 and 227 are well known and pointed out in Surya Dev Rai (supra) and with that we have no disagreement."
" But we are unable to agree with the legal proposition laid down in Surya Dev Rai* (supra) that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court underArticle 226 in exercise of its power under a writ of certiorari."
*2003 (6) SCC 675
2.The Hon'ble Supreme Court in the CIVIL APPEAL NO. 21 OF 2019 , decided on 03.1.2019, reiterated the legal position which was settled by the said three Judge bench of the Hon’ble Supreme Court.
Summary of Question- ‘Dispose of the Representation’ mantra
Question – Whether Hon’ble High Courts / Tribunals should dispose of an application with just direction to the applicant to make representation to the opposite party and direction to the opposite party to dispose of the representation.
Answer- No. The Hon’bler Supreme Court does not favour that High Courts / Tribunals should use “Dispose of the representation” mantra.
In CIVIL APPEAL NO.2425 of 2019 (THE GOVT. OF INDIA Vs. P. VENKATESH), decided on 1st.March 2019, a case related to compassionate appointment, the Hon’ble Supreme Court observed :
"The Tribunal, unfortunately, passed a succession of orders calling upon the appellants to consider and then re-consider the representations for compassionate appointment. After the Union Ministry of Information and Broadcasting rejected the representation on 13 November 2007, it was only in 2010 that the Tribunal was moved again, with the same result. These successive orders of Tribunal for re-consideration of the representation cannot obliterate the effect of the initial delay in moving the Tribunal for compassionate appointment over a decade after the death of the deceased employee. This ‘dispose of the representation’ mantra is increasingly permeating the judicial process in the High Courts and the Tribunals. Such orders may make for a quick or easy disposal of cases in overburdened adjudicatory institutions. But, they do no service to the cause of justice. The litigant is back again before the Court, as this case shows, having incurred attendant costs and suffered delays of the legal process. This would have been obviated by calling for a counter in the first instance, thereby resulting in finality to the dispute. By the time, the High Court issued its direction on 9 August 2016, nearly twenty one years had elapsed since the date of the death of the employee."
Summary of Question- Second Appeal under CPC ; No re-appreciation of evidence.
Question – Whether Evidence can be re-appreciated in Second Appeal.
Answer- No. In Second Appeal under section 100 CPC, High Court cannot re-appreciate evidence like First Appeal under section 96 CPC.
In CIVIL APPEAL NO.6567 OF 2014, decided on 13th March 2019, the Hon’ble Supreme Court observed and held :
“….However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugnd judgment and order, it appears that High Cout has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC."
“Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an Appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re- appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.
Therefore, we are constrained to observe as above and remind the High Courts the limitations under Section 100 of the CPC and again hope that High Courts would keep in mind the legal position before interfering in Second Appeal under Section 100 of the Code of Civil Procedure."
Summary of Question- Deferment of cross examination in a Criminal Trial
Question – Whether Cross-examination in a criminal Trial can be deferred .
Answer- Yes. Section 231 Cr. P.C (which is applicable in case of trial before court of sessions) and section 242 Cr. P.C (which applies to trial by Magistrate in warrant cases instituted on a Police report) are relevant in the context, under which the trial Judge is given judicial discretion to defer the cross- examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross-examination. But this deferment cannot be claimed as a matter of right by the party seeking deferral. The Hon’ble Supreme Court has laid down certain points to be taken into consideration in the matter of deferment.
1. At first , I quote below Sections 231 and 242 of CrPC :
" Evidence for prosecution.
(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination"
"Evidence for prosecution.
(1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused under section 241, the Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross- examination."
2. The Hon'ble Supreme Court in CRIMINAL APPEAL No. 1321 OF 2018 in the case of State of Kerala vs. Rasheed, decided on October 30, 2018, observed and held:
"The statutory framework governing the order of production and examination of witnesses is contained inter alia in Sections 135 and 138 of the Indian Evidence Act, 1872. A conjoint reading of Sections 135 and 138 would indicate that the usual practice in any trial, be it civil or criminal, is for the examination-in-chief of a witness to be carried out first; followed by his cross-examination (if so desired by the adverse party), and then re-examination (if so desired by the party calling the witness)."
"Section 231 of the Cr.P.C. indicates that the Judge is given the discretion to defer cross-examination of a witness, until any other witness or witnesses have been examined."
"The phraseology of Section 231(2) mirrors Section 242(3) of the Cr.P.C. which provides for a similar discretion to a Magistrate in the trial of a Warrant Case under Chapter XIX of the Cr.P.C."
"What follows from the discussion is that the norm in any criminal trial is for the examination -in -chief of witnesses to be carried out first, followed by cross- examination, and re- examination if required, in accordance with Section 138 of the Indian Evidence Act, 1872. Section 231(2) of the Cr.P.C., however, confers a discretion on the Judge to defer the cross- examination of any witness until any other witness or witnesses have been examined, or recall any witness for further cross-examination, in appropriate cases. Judicial discretion has to be exercised in consonance with the statutory framework and context while being aware of reasonably foreseeable consequences."
" The party seeking deferral under Section 231(2) of the Cr.P.C. must give sufficient reasons to invoke the exercise of discretion by the Judge, and deferral cannot be asserted as a matter of right"
"Several High Courts have held that the discretion under Section 231(2) of the Cr.P.C. should be exercised only in “exceptional circumstances” , or when “a very strong case” has been made out. However, while it is for the parties to decide the order of production and examination of witnesses in accordance with the statutory scheme, a Judge has the latitude to exercise discretion under Section 231(2) of the Cr.P.C. if sufficient reasons are made out for deviating from the norm."
"While deciding an Application under Section 231(2) of the Cr.P.C., a balance must be struck between the rights of the accused, and the prerogative of the prosecution to lead evidence. The following factors must be kept in consideration:
possibility of undue influence on witness(es);
possibility of threats to witness(es);
possibility that non-deferral would enable subsequent witnesses giving evidence on similar facts to tailor their testimony to circumvent the defence strategy;
possibility of loss of memory of the witness (es) whose examination-in-chief has been completed;
occurrence of delay in the trial, and the non-availability of witnesses, if deferral is allowed, in view of Section 309(1) of the Cr.P.C.
These factors are illustrative for guiding the exercise of discretion by a Judge under Section 231(2) of the Cr.P.C."
Summary of Question- Plea of Maintainability
Question – Whether a plea of maintainability can be allowed for the First time in Appeal/ Revision/ Writ proceeding.
Answer- No. A plea of maintainability cannot be allowed for the first time in Appeal / Revision or Writ petition under Article 227 if such plea is not just a pure Jurisdictional Legal issue rather a mixed question of fact and law, and such plea of mixed question of fact and law as to maintainability has not been raised in the pleadings.
The Hon'ble Supreme Court in CIVIL APPEAL No. 15371538 of 2019 (Deepak Tandon vs. Rajesh Kumar Gupta), decided on the 7th Feb 2019, observed and held :
"21....... it is a settled law that if the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding was recorded either way by the Trial Court or the First Appellate Court, such plea cannot be allowed to be raised by the party for the first time in third Court whether in appeal, revision or writ, as the case may be, for want of any factual foundation and finding.
22. ..... it is more so when such plea is founded on factual pleadings and requires evidence to prove, i.e., it is a mixed question of law and fact and not pure jurisdictional legal issue requiring no facts to probe. "
Summary of Question- Power of Magistrate under section 173 Cr.P.C
Question – Whether a Magistrate, under section 173(2) Cr.P.C, is empowered to order the Police to file charge sheet if the Police has submitted Final Report, and whether a Magistrate can suo moto order further investigation after the order of discharge.
Answer- No. A Magistrate under section 173(2) Cr.P.C is not empowered to order the Police to file charge sheet if the Police has submitted Final Report ; the Magistrate is empowered to do the followings only :
(a) The Magistrate may accept the Final report report in which case the proceedings would stand closed.
(b) He may not accept the report and may take cognizance in the matter on the basis of such final report.
(c) If he is not satisfied by the investigation undertaken by the police, he may direct further investigation in the matter.
Further , once a Magistrate, on the basis of the Police report and the materials placed along with the report, discharges the accused, the Magistrate cannot suo moto order further investigation ; after the order of discharge is passed, the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation. The power of Magistrate to order further investigation is available at pre cognizance stage under section 173(2) Cr. P. C; the Magistrate cannot exercise this power at the post cognizance stage, more particularly, when the accused is discharged . Section 173(8) of the CrPC, however, confers power upon the officer in charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under subsection (2) of Section 173 of the CrPC ; it is open for the investigating officer to apply for further investigation, even after forwarding the report under subsection (2) of Section 173 and even after the discharge of the accused but the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation Section 173(8) of the CrPC after he discharges the accused.
1. The Hon'ble Supreme Court in CRIMINAL APPEAL NO.614 of 2019, decided on the 8th April 2019, observed and held :
"The law is well-settled that in case a final report is filed under Section 173(2) Cr.P.C. stating that no offence is made out against the accused, any of the following courses can be adopted by the Magistrate:
(a) He may accept the report which was filed by the police in which case the proceedings would stand closed.
(b) He may not accept the report and may take cognizance in the matter on the basis of such final report which was presented by the police.
(c) If he is not satisfied by the investigation so undertaken by the police, he may direct further investigation in the matter.
The law is further well-settled that the judicial discretion to be used by the Magistrate at such stage has to fall in either of the three aforesaid categories.
In the present matter, the magistrate has issued directions directing the police to file charge-sheet under Section 326 and 294 IPC and also the provision of Section 3(1) and 10 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Such a direction is wholly unsustainable."
2. The Hon'ble Supreme Court in CRIMINAL APPEAL NO. 687 OF 2019 , decided on the 16th. April 2019, observed and held:
“6. Heard learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the challenge in the present appeal is to the order passed by the High Court, confirming the order passed by the learned Magistrate of further investigation passed at the time/after the accused was discharged by the learned Magistrate. It is required to be noted that, in the present case, the investigating officer after concluding the investigation, submitted the report/chargesheet before the learned Magistrate. Thereafter, the matter before the learned Magistrate was at the stage of framing of the charge, as provided under Sections 227 and 228 of the CrPC. After considering the material on record submitted along with the chargesheet, the learned Magistrate at the first instance discharged the accused. However, simultaneously, while discharging the accused, learned Magistrate also passed an order for further investigation and directed the investigating officer to further investigate in the matter and submit the report. That part of the order, by which the learned Magistrate ordered further investigation is the subject matter of dispute. Therefore, the short question which is posed for consideration by this Court is whether once the learned Magistrate passes an order of discharge of the accused, whether thereafter is it permissible for the Magistrate to order further investigation and direct the investigating officer to submit the report?
6.1. While considering the aforesaid issue/question, few decisions of this Court on the procedure to be followed by the learned Magistrate when the investigating officer submits the report under Section 173(2) of the CrPC and what are the powers of the learned Magistrate and/or what are the options available to the learned Magistrate at a time when the investigating officer after concluding the investigation submits the report/challan/chargesheet before the learned Magistrate, are required to be referred to and considered.
7. Considering the law laid down by this Court in the aforesaid decisions and even considering the relevant provisions of the CrPC, namely Sections 167(2), 173, 227 and 228 of the CrPC, what is emerging is that after the investigation is concluded and the report is forwarded by the police to the Magistrate under Section 173(2)(i) of the CrPC, the learned Magistrate may either
(1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. If the Magistrate disagrees with the report and drops the proceedings, the informant is required to be given an opportunity to submit the protest application and thereafter, after giving an opportunity to the informant, the Magistrate may take a further decision whether to drop the proceedings against the accused or not. If the learned Magistrate accepts the objections, in that case, he may issue process and/or even frame the charges against the accused. As observed hereinabove, having not satisfied with the investigation on considering the report forwarded by the police under Section 173(2)(i) of the CrPC, the Magistrate may, at that stage, direct further investigation and require the police to make a further report. However, it is required to be noted that all the aforesaid is required to be done at the precognizance stage. Once the learned Magistrate takes the cognizance and, considering the materials on record submitted along with the report forwarded by the police under Section 173(2)(i) of the CrPC, learned Magistrate in exercise of the powers under Section 227 of the CrPC discharges the accused, thereafter, it will not be open for the Magistrate to suo moto order for further investigation and direct the investigating officer to submit the report. Such an order after discharging the accused can be said to be made at the post cognizance stage. There is a distinction and/or difference between the precognizance stage and postcognizance stage and the powers to be exercised by the Magistrate for further investigation at the precognizance stage and post cognizance stage. The power to order further investigation which may be available to the Magistrate at the pre cognizance stage may not be available to the Magistrate at the post cognizance stage, more particularly, when the accused is discharged by him. As observed hereinabove, if the Magistrate was not satisfied with the investigation carried out by the investigating officer and the report submitted by the investigating officer under Section 173(2) (i) of the CrPC, as observed by this Court in catena of decisions and as observed hereinabove, it was always open/permissible for the Magistrate to direct the investigating agency for further investigation and may postpone even the framing of the charge and/or taking any final decision on the report at that stage. However, once the learned Magistrate, on the basis of the report and the materials placed along with the report, discharges the accused, we are afraid that thereafter the Magistrate can suo moto order the further investigation by the investigating agency. Once the order of discharge is passed, thereafter the Magistrate has no jurisdiction to suo moto direct the investigating officer for further investigation and submit the report. In such a situation, only two remedies are available: (i) a revision application can be filed against the discharge or (ii) the Court has to wait till the stage of Section 319 of the CrPC. However, at the same time, considering the provisions of Section 173(8) of the CrPC, it is always open for the investigating agency to file an application for further investigation and thereafter to submit the fresh report and the Court may, on the application submitted by the investigating agency, permit further investigation and permit the investigating officer to file a fresh report and the same may be considered by the learned Magistrate thereafter in accordance with law. The Magistrate cannot suo moto direct for further investigation under Section 173(8) of the CrPC or direct the re- investigation into a case at the postcognizance stage, more particularly when, in exercise of powers under Section 227 of the CrPC, the Magistrate discharges the accused. However, Section 173(8) of the CrPC confers power upon the officer in charge of the police station to further investigate and submit evidence, oral or documentary, after forwarding the report under subsection (2) of Section 173 of the CrPC. Therefore, it is always open for the investigating officer to apply for further investigation, even after forwarding the report under subsection (2) of Section 173 and even after the discharge of the accused. However, the aforesaid shall be at the instance of the investigating officer/police officer- incharge and the Magistrate has no jurisdiction to suo moto pass an order for further investigation/reinvestigation after he discharges the accused.
7.1. In the instant case, the investigating authority did not apply for further investigation and that the learned Magistrate suo moto passed an order for further investigation and directed the investigating officer to further investigate and submit the report, which is impermissible under the law. Such a course of action is beyond the jurisdictional competence of the Magistrate…”