Judgment The four petitioners herein have filed this writ petition for the issue of a writ of mandamus directing the Deputy Inspector General of Police, Crime Branch, C.I.D., Madras, the third respondent, to make a report under section 173 (8) of the Criminal Procedure Code, in Arachalur Police Station Crime No. 394 of 1981 (now pending enquiry in P.R.C. No. 7 of 1982 on the file of the Court of the Additional Judicial Second Class Magistrate, Erode) to enable the Additional Judicial Second Class Magistrate, Erode, to take further action in the said P.R. No. 7 of 1982. The facts leading to the filing of this writ petition are stated thus. In respect of an incident that is alleged to have taken place on 25th October, 1981 at Kolathur village in Periyar District, in which two persons met with death, the Inspector of Police, Kodumudi, took up investigation. He filed the report under section 173 (2) of the Criminal Procedure Code (the charge-sheet) in which all the petitioners herein and two others have been arraigned as accused in respect of the alleged offences under sections 120-B, 148, 149 and 302, Indian Penal Code, before the Additional Judicial Second Class Magistrate, Erode. Thereupon, the petitioners made representation to the Inspector General of Police (Crime, Law and Order), Madras on 28th January, 1982, stating that they were absolutely innocent and the matter should be investigated further. Thereupon, the Inspector General of Police directed further investigation by the Crime Branch, C.I.D. Consequently, the Inspector of Police, Kodumudi filed a memo, before the Additional Second Class Magistrate, Erode on 26th February, 1982, requesting the Additional Second Class Magistrate to keep the charge-sheet filed by him in abeyance till the result of reinvestigation was known. The case of the petitioners is that accordingly a further investigation has been made by the Crime Branch, C.I.D., but no report as required under section 173 (8) of the Criminal Procedure Code, has yet been filed before the Additional Second Class Judicial Magistrate, Erode. It is, in these circumstances, the writ petition has been filed. 2. A counter-affidavit has been filed by the Superintendent of Police, C.B., C.I.D., Madras. In the counter-affidavit it is admitted that the petitioners submitted petitions to the higher police authorities stating that they were innocent and falsely implicated in the case. It is, in these circumstances, the writ petition has been filed. 2. A counter-affidavit has been filed by the Superintendent of Police, C.B., C.I.D., Madras. In the counter-affidavit it is admitted that the petitioners submitted petitions to the higher police authorities stating that they were innocent and falsely implicated in the case. Since the charge-sheet had already been filed the Crime Branch, C.I.D., did not take up any reinvestigation. However, it is admitted that there was a confidential probe into the conduct of the local police as ordered by the 4th respondent and that was meant for the Director General of Police. The fact that the Inspector of Police, Kodumudi, the first respondent, filed a memo, before the Additional Judicial Second Class Magistrate, Erode, the 6th respondent, on 26th February, 1982 is admitted, but it is stated that the memo, was factually incorrect. A further contention is taken that the petitioners ought to have filed a criminal revision petition before this Court against the order passed by the Magistrate in Crl.M.P. No. 4481 of 1982 and the petition is not maintainable. 3. When the matter was taken up in the first instance, I directed the Government Pleader to find out whether there was any further investigation and whether there was any report by the investigating authority. On the next hearing date, the learned Government Advocate filed a report and two communications. The report is one made by the Deputy Superintendent of Police, Crime Branch C.T.D., Madras, dated 16th February, 1981, for the information of the Deputy Inspector General of Police, Madras. Another document is a letter dated 26th February, 1982 sent by the Deputy Inspector General of Police, Madras to the Collector-cum-Executive Magistrate, Erode and the third one is the letter sent by the Collector-cum-Executive Magistrate, Erode to the Deputy Inspector General of Police on 16th March, 1983. The learned Government Advocate after producing the above records claimed privilege and wanted time to file an affidavit. On the last occasion when the matter was heard, the learned Government Advocate produced a letter addressed to him by the Deputy Inspector General of police. In the said letter, the Deputy Inspector General of Police has not claimed any privilege-in respect of these documents. On the last occasion when the matter was heard, the learned Government Advocate produced a letter addressed to him by the Deputy Inspector General of police. In the said letter, the Deputy Inspector General of Police has not claimed any privilege-in respect of these documents. On the other hand, the Deputy Inspector General of Police has stated that the learned Government Advocate can take the stand that may be required in the interest of justice. In view of this letter, the learned Advocate Mr. Sadanand did not claim any privilege in respect of these documents. However, the learned Counsel argued that the report was not one prepared under section 173 (8) of the Criminal Procedure Code, as a result of further investigation. It was only a confidential report submitted by the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras, as required by the Deputy Inspector General of Police and consequently no order could be passed by this Court directing the respondent to forward the said report to the Magistrate. 4. On the other hand, Mr. N.T. Vanamamalai, the learned Counsel for the petitioners argued that there could be no other investigation in a criminal case except an investigation as provided for under the provisions of the Criminal Procedure Code. The Inspector General of Police on representation made by the petitioners found as a result of enquiries that there were serious flaws in the enquiries conducted by the District Police and therefore, directed that a further investigation should be made by the Crime Branch, C.I.D., Madras. Consequently, in the submission of Mr. N.T. Vanamamalai the report could only be a report as contemplated under section 173 (8) of the Criminal Procedure Code, and therefore, the respondents were under a duty to forward the report to the Magistrate in the form required under section 173 (8) of the Criminal Procedure Code. 5. The report itself has been produced before me by the learned Government Advocate. The only question for consideration therefore, is whether the report of the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras, dated 16th February, 1982, is a report prepared under section 373 (8) of the Criminal Procedure Code, as a result of further investigation. Before we consider this question, it will be useful to refer to the power of the police regarding investigation. 6. Before we consider this question, it will be useful to refer to the power of the police regarding investigation. 6. Chapter XII of the Criminal Procedure Code, deals with information to the Police and their powers to investigate. Section 154, Criminal Procedure Code, confers power on a police officer, whenever he receives information relating to the commission of cognizable offence, to enter the substance thereof in a book kept by him for that purpose in the prescribed form. Section 156, Criminal Procedure Code, confers power on the police officer to investigate into cognizable offences without the order of a Court. Section 157, Criminal Procedure Code, states that if from the information received or otherwise the police officer suspects commission of a cognizable offence he should send forthwith a report of the same to the Magistrate empowered to take cognizance of such offences upon a police report and then to proceed in person or depute one of his subordinate Officers to proceed to the site to investigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender. Section 173, Criminal Procedure Code, enjoins the police officer to complete the investigation without unnecessary delay and as soon as it is completed forward to a Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed form setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case. He is also required to state whether the accused had been forwarded in custody or had been released on bail. Upon receipt of the report submitted under section 173 (2), Criminal Procedure Code, the Magistrate empowered to take cognizance of an offence, upon a police report, might take cognizance of the same under section 190(1)(b), Criminal Procedure Code. Finally, if the Magistrate is satisfied that there is sufficient ground for proceeding further, the Magistrate is required to secure the attendance of the accused. Finally, if the Magistrate is satisfied that there is sufficient ground for proceeding further, the Magistrate is required to secure the attendance of the accused. Thus under the Criminal Procedure Code, investigation consists generally of the following stages: (1) Proceeding to the spot; (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the Commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the Officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to he produced at the trial. (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps, for the same by filing of a charge-sheet under section 173; (6) Taking cognizance of the case by the Magistrate and finally issuing process to the accused. In 1974 section 173 (8) was introduced which is to the following effect: “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).” The effect of the section is that notwithstanding the fact that a report has already been forwarded to the Magistrate under sub-section (2) of section 173, Criminal Procedure Code, it will be open to the Police Officer to make further investigation in respect of an offence if circumstances so warrant. As and when such investigation is made and further evidence, oral or documentary, is obtained, the Police Officer is under a duty to forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. As and when such investigation is made and further evidence, oral or documentary, is obtained, the Police Officer is under a duty to forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. The provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports in the manner they are applicable to a report forwarded under sub-section (2) of section 173. This section is based on the necessity to confer express power on the police to make further investigation and submit supplemental report. 7. To borrow the language of the Supreme Court in Ram Lal Narang v. State1, which was a case which arose prior to the introduction of section 173 (8): “It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve personnel ready accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibis is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigation agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for Magistrate to decide upon his future course of action depending upon the stage at which the case is before him.” In the said case, the Supreme Court has further observed that in the interests of the independence of the Magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. The above, if I may say so with respect, succinctly emphasises the need to clothe the police with the statutory power to make further investigation and file a supplemental report. 8. In this connection, I may also refer to the following recommendations of the Law Commission in its 41st Report, which was also prior to the introduction of section 173 (8), Criminal Procedure Code: “A report under section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the Police Officer can collect the evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under section 173 has been sent the police cannot re-touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigation agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must be of course, furnished to the accused.” It therefore follows that whenever fresh facts occur to the police resulting in further investigation, it is the duty of the police to send a supplemental report based on such materials to the Magistrate in terms of section 173 (8) and this statutory duty cannot be lightly dealt with. 9. In this case, it is not disputed that the petitioners made representations to the Inspector General of Police (Crime, Law and Order), Madras stating that they have been falsely implicated, that they were not present at the scene of occurrence at the time it occurred and that they were innocent. Accordingly, the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras, was asked to make a further investigation. He filed his report on 16th February, 1982. It is this report that has been placed before the Court by the learned Government Advocate. Accordingly, the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras, was asked to make a further investigation. He filed his report on 16th February, 1982. It is this report that has been placed before the Court by the learned Government Advocate. According to the learned Government Advocate this is not a report under section 173 (8), Criminal Procedure Code, but a confidential report submitted by the Deputy Superintendent of Police to the Inspector General of Police and hence it cannot be filed into Court. At this stage, it may also be remembered that on 18th February, 1982, admittedly the Inspector General of Police, Crime, Law and Order, Madras, issued a memorandum to the effect that the enquiry by the Crime Branch, C.I.D., into the investigation done in the case by Periyar District Police had revealed a number of flaws and it had been decided that the case be reinvestigated by the Crime Branch, C.I.D. Accordingly, the Deputy Inspector General of Police, C.I.D., Crime Branch was directed to take up the case at once, have it investigated by a competent Officer and report quickly on his findings. The memorandum further directed the Superintendent of Police, Periyar District to report about the fact of reinvestigation to the Additional Judicial Second Class Magistrate, Erode and request him to keep the charge-sheet already filed by the Inspector of Police, Kodumudi in abeyance till the result of reinvestigation was known. Accordingly, the Inspector of Police, Kodumudi filed a memorandum before the Additional Judicial Second Class Magistrate, Erode, requesting him to keep the charge-sheet filed by him in abeyance till the result of investigation was known. It was returned asking the Inspector of Police to point out the provisions under which it was being filed. The papers were resubmitted with the endorsement that it was being done under section 173 (8), Criminal Procedure Code. However, on 28th June, 1982, the Inspector of Police, Kodumudi, filed a memo, before Additional Judicial Second Class Magistrate, Erode stating that the Director General of Police, Madras, has retransferred the case to the local police with instructions to handle the case till its final disposal in the Court, and therefore, the case might be proceeded with against the accused. However, on 28th June, 1982, the Inspector of Police, Kodumudi, filed a memo, before Additional Judicial Second Class Magistrate, Erode stating that the Director General of Police, Madras, has retransferred the case to the local police with instructions to handle the case till its final disposal in the Court, and therefore, the case might be proceeded with against the accused. Thereafter, the petitioners filed an application to direct the police to file a report in terms of section 173 (8), Criminal Procedure Code, together with section 161 statements of witnesses examined, which was dismissed. According to the learned Government Advocate there is no further report, excepting the one produced in Court. 10. The question for consideration is whether the report; now produced in Court prepared by the Deputy Superintendent of Police, Crime, Branch, C.I.D., Madras, dated 16th February, 1982, can be said to be a report under section 173 (8), Criminal Procedure Code, and the respondents can be compelled to produce the same into Court. At the risk of repetition it might be recalled that the respondents do not now claim any privilege or confidentiality in respect of the said report. It is admitted in the counter-affidavit that the petitioners made a representation to the Inspector General of Police on the basis of which he ordered further investigation into the matter. It is on the basis of such direction that the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras enquired into the matter and submitted his report dated 16th February, 1982. As a matter of fact, the report itself refers to the representation made by petitioners and details the enquiries made by the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras and finally gives ‘the conclusion arrived at by the Deputy Superintendent of Police, Crime Branch, C.I.D. as a result of his enquiry. Investigation is defined in section 2(h), Criminal Procedure Code, as including all proceedings for the collection of evidence conducted by the Police Officer. Section 36, Criminal Procedure Code, confers power upon a superior Police Officer, the power that is conferred on officers in charge of a police station. Investigation is defined in section 2(h), Criminal Procedure Code, as including all proceedings for the collection of evidence conducted by the Police Officer. Section 36, Criminal Procedure Code, confers power upon a superior Police Officer, the power that is conferred on officers in charge of a police station. It states: “Police Officers superior in rank to an officer-in-charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such Officer within the limits of his station.” Thus, an Officer superior in rank to an Officer-in-charge of a police station could as well exercise the power of further investigation under section 173 (8) in view of the provision embodied in section 36 of the Code. The Deputy Superintendent of Police, Crime Branch, C.I.D., was directed by the Inspector General of Police (Crime, Law and Order), Madras to make a further investigation in the case. This is clear from the letter, dated 26th February, 1982 (produced in Court along with the report) written by the Deputy Inspector General of Police, Crime Branch, C.I.D., to the Collector-cum-Executive Magistrate, Periyar District, Paragraph 3 of that letter reads: “further investigation in this case has been taken over by C.B.C.I.D. as per orders of the I.G.P. (C.L.O.), Madras (copy enclosed)”. Paragraph 4 of the letter states that in the interest of justice, the charge-sheet against the petitioners should be dropped and the prosecution against them withdrawn as contemplated under section 321, Criminal Procedure Code. This letter must have been written only on the basis of the report submitted by the Deputy Superintendent of Police, Crime Branch, C.I.D. on 16th February, 1982. When once it is accepted by the Deputy Inspector General of Police, Crime Branch, C.I.D., that the case was further investigated by the Crime Branch C.I.D., and a report has been submitted to the I.G. on 16th February, 1982, such a report could only be a report as contemplated by section 173 (8), Criminal Procedure Code. When once it is accepted by the Deputy Inspector General of Police, Crime Branch, C.I.D., that the case was further investigated by the Crime Branch C.I.D., and a report has been submitted to the I.G. on 16th February, 1982, such a report could only be a report as contemplated by section 173 (8), Criminal Procedure Code. It is not the case of the learned Government Advocate that the Inspector General of Police, Crime, Law and Order, Madras, has no power to order a further investigation of the case and on his direction the Deputy Superintendent of Police, Crime Branch, C.I.D. submits a report, that report can only be a report under section 173 (8), Criminal Procedure Code, I, therefore hold that the report, dated 16th February, 1982, submitted by the Deputy Superintendent of Police, Crime Branch, C.I.D., Madras is a report under section 173 (8), Criminal Procedure Code, consequently, the respondents are obliged to file this report in terms of section 173 (8), Criminal Procedure Code, before the Additional Judicial Second Class Magistrate, Erode. 11. Apart from the mandatory provisions, the fact that the report as produced would have an effect upon the fortunes of the petitioners in the proceeding is itself a compelling reason for its being produced before the Magistrate. On the basis of this report and the communication of the Deputy Inspector General of Police, Crime Branch, C.I.D., dated 20th February, 1982 requesting the Collector-cum-Executive Magistrate, Periyar district to drop the prosecution against the petitioner’s, Mr. Vanamamalai took the stand that the entire proceedings should be quashed. On the other hand, both the learned Government Advocate Mr. Sadanand and Mr. Sengottian, the learned Counsel for respondent No. 7 contended that this Court cannot at this stage quash the proceedings and that it will be open to the Magistrate to take appropriate action once the report is forwarded to the Magistrates directed by this Court. I accept the contention of the learned Government Advocate and Mr. Sengottian. I am of the view that in this writ petition, it is not open to the Court to quash the criminal proceedings. 12. I accept the contention of the learned Government Advocate and Mr. Sengottian. I am of the view that in this writ petition, it is not open to the Court to quash the criminal proceedings. 12. I have already referred to a contention taken in the counter-affidavit filed by the respondents that the writ petition is not maintainable and the remedy of the petitioners would be to file a criminal revision petition against the order passed by the Magistrate dismissing the application filed by the petitioners to direct the Police to file a report in terms of section 176 (8), Criminal Procedure Code, together with section 161 statements of witnesses examined, (sic) on the strength of certain Supreme Court decisions that the application that was filed before the Magistrate was misconceived and that it would not be open to the Criminal Court to interfere with the investigation by the police and that the only remedy of the petitioners would be to approach this Court under Article 226 of the Constitution of India. The question relating to maintainability of the writ petition was not challenged before me by either the learned Government Advocate or Mr. Sengottian In the circumstances, it is unnecessary to refer to the citations made by Mr. Vanamamalai. 13. In the result, the rule is made absolute and the respondents are directed to file the report, dated 16th February, 1982 as required by and in terms of section 173 (8) of the Criminal Procedure Code, before the Additional Judicial Second Class Magistrate, Erode. There will be no order as to costs.