The Supreme Court of India while it clarified on the power of Magistrate to direcct further investigation under Section 173 (8) CrPC, quashed police orders for "further investigation" on the basis that the impugned order was issued without the leave of the Magistrate.

The Supreme Court examined whether the "Police can unilaterally initiate further investigation under Section 173(8) CrPC after a final report has been accepted"?

Case Background The case is orginated from a 2013 FIR on the allegtions of gang rape and criminal intimidation under Sections 376D, 352, 504, and 506 of the IPC. A year later, a closure report was filed by the Crime Branch following the investigation in the case, and the closure report was submitted in 2014 before the Magisrtate, citing major contradictions in the complainant's statements and a lack of medical or corroborative evidence.

*-The Judicial Magistrate at Firozabad accepted this closure report in September 2015 after noting that the complainant failed to file any protest petition despite receiving multiple notices.

*-About four years later upon receiving a compalint alleging investigative deficiencies, the National Human Rights Commission (NHRC) directed a fact-finding enquiry and consequently, the State Government and the Superintendent of Police directed the CBCID to conduct a "further investigation" under Section 173(8) of the CrPC. *

*Although the newly appointed Investigating Officer applied to the Magistrate for permission, the police proceeded with the investigation and DNA testing of the appellants before the Magistrate passed any orders.

The appellants challenged these executive directions before the Allahabad High Court, which dismissed the quash petition, and appellant appear before the Supreme Court.

Observing that Section 173(8) does not explicitly mandate seeking the Court's leave, the Supreme Court held that a long-standing "practice of propriety" has developed where seeking such permission is a necessary prerequisite.

Relying on the doctrine of contemporanea expositio and precedents like Vinay Tyagi v. Irshad Ali (Click to Download) and Peethambaran v. State of Kerala(Click to Download, the Apex Court held that the power to direct further investigation rests solely at the discretion of the Magistrate or a higher Court.

Supreme Court further emphasized that when a police agency believes further investigation is necessary, it is legally bound to file an application, allowing the Magistrate to apply a "judicial mind" to the facts before exercising discretion. Expressing a strong disapproval of the Superintendent of Police’s conduct, characterizing the issuance of investigation orders without judicial leave the Apex Court termed it as an act in "complete defiance of the procedure laid down under the law".

The judges remarked that it is "unbecoming" for a high-ranking officer to exercise unfettered powers in excess of their jurisdiction, thereby undermining the authority of the Court. Finally, the Court noted that a DNA test conducted during this unauthorized investigation had already exonerated the appellants, further highlighting the lack of a factual basis for the fresh proceedings.

While quashing the orders for further investigation issued by the State and the SP, the Supreme Court allowed the appeal, setting aside the High Court's judgment and held that once a closure report is judicially accepted, the power to direct further investigation under Section 173(8) CrPC (now Section 193(9) BNSS) rests solely with the Court, prohibiting police or executive authorities from exercising unfettered discretion to reopen cases.

Coram: JUSTICE RAJESH BINDAL AND JUSTICE VIJAY BISHNOI.