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2013 DIGILAW 1164 (PAT)

Hare Ram Yadav v. State of Bihar

2013-09-23

SHIVAJI PANDEY

body2013
ORDER Heard learned counsel for the petitioners and learned counsel for the State. 2. This application has been filed for quashing the order of reinvestigation as has been alleged that police has wrongly moved for reinvestigation without authority of law and the Court below has wrongly allowed the reinvestigation without any fresh material though the petitioners were not sent up to face the trial as the case against them was not found to be true, on the basis of the charge-sheet the Court below has taken cognizance and issued notices to other accused persons accepting the final form and later stage the case was in process of commitment for trial in the meantime the police started reinvestigation which is impermissible in law and further a prayer has been made against the order dated 16.7.2013, 19.7.2013 and 24.7.2013 passed by the Additional Chief Judicial Magistrate, Jhanjharpur (Madhubani) in Andhra Math P.S. Case No.3 of 2013 by which the Court below has issued warrant of arrest and subsequently process under Sections 82 and 83 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) has been issued. 3. Brief facts of the case is that one Sanjay Kuamr Yadav lodged a case making allegation that at 9’ O clock in the morning he was approaching to Narendrapur Chowk accompanied by Balbir Yadav, son of Kapildeo Yadav happens to be the cousin brother where all eight accused persons, namely, Hare Ram Yadav, Ram Kalesh Yadav, Bansh Raj Yadav, Shyam Yadav were waiting for him, as they reached at the place of occurrence, Hare Ram Yadav holding with iron rod, with an intention to kill him, gave strong blow at his neck. Ram Kalesh yadav and Bansh Raj Yadav were holding Bhala and Shyam Yadav was holding lathi, they jointly caused him injury and ultimately he had fallen on the ground whereupon his Uncle Kapil Deo Yadav, Khattar Yadav and Pankaj Yadav caught hold the informant and assaulted him brutally. Allegation has been made against Ram Deo Yadav, he snatched away Rs.5,000/- from him. After causing injuries as aforesaid they blocked the movement of informant, later on when the family members of the informant rushed there, they took the informant to Mahadeo Math Hospital for treatment. The cause of this incident has been narrated to be the land dispute. 4. Allegation has been made against Ram Deo Yadav, he snatched away Rs.5,000/- from him. After causing injuries as aforesaid they blocked the movement of informant, later on when the family members of the informant rushed there, they took the informant to Mahadeo Math Hospital for treatment. The cause of this incident has been narrated to be the land dispute. 4. The police investigated the case, submitted the charge sheet vide order dated 31.3.2013 (Annexure-1/A). The police after investigation found that Hare Ram Yadav, Khattar Yadav, Pankaj Yadav, Ram Deo Yadav, Umesh Yadav, Narayan Yadav and Lalit Yadav were not involved in the incident and were found to be innocent and submitted the charge-sheet against rest of the accused persons, namely, Bansh Raj Yadav, Ram Kalesh Yadav, Shyam Yadav and Nand Lal Yadav. The Court below accepted the charge sheet/final form vide order dated 10.6.2013 and took cognizance and for commitment transferred the case to the another Judicial Magistrate. 5. An application dated 12.6.2013 (Annexure-3) was filed in the Court of the Additional Chief Judicial Magistrate, Jhanjharpur informing the Court that Hare Ram Yadav, Khattar Yadav, Pankaj Yadav and Ram Deo Yadav were shown to be innocent but on application filed by relatives of the deceased making an allegation of involvement of the aforesaid persons to the higher authority, the higher authority re-examined the matter, found the involvement of the aforesaid persons gave direction for further investigation and in further investigation the aforesaid persons were found involved in the case and accordingly the police has again started the investigation. The Judicial Magistrate considered the aforesaid application and vide order dated 22.6.2013 (Annexure-4) called for a show-cause from the police under what authority law, without permission of the Court, the police has started further investigation in the case. 6. It appears that the police filed the show-cause on 16.7.2013 (Annexure-5) and the same was accepted on the same date. On 19.7.2013 an application was filed by the police for issuance of warrant of arrest on the ground that the aforesaid accused persons were absconding changing address in quick succession and at the same time information received from different sources of. On 19.7.2013 an application was filed by the police for issuance of warrant of arrest on the ground that the aforesaid accused persons were absconding changing address in quick succession and at the same time information received from different sources of. The Court below passed the order for issuance of warrant of arrest, an another application was filed, prayer was made for issuance of process under Section 82 of the Code on the ground that the accused persons are/were planning to dispose off their immovable property and threatening to the witnesses to withdraws the case. The Court below vide order dated 24.7.213 passed order for issuance of notification under Section 82 of the Code. 7. In course of argument it has been stated that an application dated 5.8.2013 was filed by the police for issuance of process under Section 83 of the Code and the Court below vide order dated 20.8.2013 passed the order for the same. 8. The ground of challenge is that without permission of the Court and without having any fresh/further material the police did not have a jurisdiction to reopen the investigation and to go for fresh investigation on the direction given by the higher authority which shows that the higher authority police has not directed for further investigation rather for fresh investigation which is impermissible in law. He has submitted that though the police has jurisdiction for further investigation as provided under Section 173(8) of the Code in event of any fresh or further materials is collected. Another point has been raised that the Court can not issue warrant of arrest including issuance of process under Sections 82 and 83 of the Code for his production before the police in aid to investigation of police, as the police is empowered and competent as provided under Section 41 of the Code to arrest the accused without being wielded with the order of warrant of arrest in a cognizable offence. The Court below may issue non-bailable warrant under Section 73 of the Code in a case of escape convict, proclaimed offender or any person who is an accused of non-bailable case evading arrest except the aforesaid circumstances the Court below will be acting excess to jurisdiction in issuing the warrant of arrest. The Court below may issue non-bailable warrant under Section 73 of the Code in a case of escape convict, proclaimed offender or any person who is an accused of non-bailable case evading arrest except the aforesaid circumstances the Court below will be acting excess to jurisdiction in issuing the warrant of arrest. In support of his contention he has relied on the following two judgments:— (1) (i) State through C.B.I. vs. Dawood Ibrahim Kaskar and others, reported in A.I.R. 1997 SC 2494, paragraph 20 (2) (ii) Krishna Murari Yadav vs. State of Bihar, reported in 2005(3) P.L.J.R. 746 paragraph nos. 12 to 16. 9. Learned counsel for the State has submitted that in this case the higher authority found that investigation was not conducted in proper manner and as such, direction has been given for further investigation. The word “iqu%” can not mean fresh investigation or reinvestigation but it is further investigation as has been empowered under Section 173 (8) of the Code. In support of contention he has relied on the judgment of the Hon’ble Supreme Court in the case of Babubhai Vs. State of Gujarat and others, reported in 2010 (12) SCC 254, paragraph nos. 41 and 42. He has further submitted that the Court has not acted illegally in passing the order of warrant of arrest as even after all efforts police failed to arrest the accused, so much so, the police from different sources could know petitioners are hurling threat to the witnesses prohibiting them to make statement against them in that circumstances the Court below has rightly exercised the power under Sections 72, 82 and 83 of the Code. He has further submitted that the Hon’ble Supreme Court and this Court has not said, in no situation the Court would not pass order under Section 73 of the Code for issuance of warrant of arrest even though police took all efforts but failed to get fruitful result. 10. He has further submitted that the Hon’ble Supreme Court and this Court has not said, in no situation the Court would not pass order under Section 73 of the Code for issuance of warrant of arrest even though police took all efforts but failed to get fruitful result. 10. In view of aforesaid discussion, this Court is to decide two issued, namely, (i) Can the police go for further investigation without permission of the Court in a case when the Court has taken cognizance and contemplating to commit the case to the Court of session for trial, on the strength of application filed by the near and dear of the victim pointing out involvement of other accused persons to the higher authority and higher authority on consideration of the same, directed for investigation again? (ii) Another point that has been raised, is the Court blow justified in passing the order for issuance of non-bailable warrant, in quick succession, passing order for issuance of process under Sections 82 and 83 of the Code on application filed by the police that the accused persons were threatening the witnesses and evading arrest, so much so intending to dispose of immovable properties. 11. Item No.I:- Chapter XII of the Code deals with information to the police and its power to investigate, Section 154 of the Code deals with cognizable offence, the police on receipt of information is to record the same, is generally called as F.I.R., where as under Section 155 of the Code deals with non-cognizable case, the police will record the same and referred the matter to the Magistrate, on receipt of the direction, the police will proceed for investigation of non cognizable offence. Section 156 of the Code deals with power of police to investigate the cognizable case without the order of Magistrate and Section 173(2) of the Code deals with submission of charge-sheet/final form, sub-section (3) of Section 173 of the Code provides that superior officer may direct for further examination. Section 156 of the Code deals with power of police to investigate the cognizable case without the order of Magistrate and Section 173(2) of the Code deals with submission of charge-sheet/final form, sub-section (3) of Section 173 of the Code provides that superior officer may direct for further examination. Sub-section (8) of Section 173 of the Code provides that nothing in this Section shall be deemed to preclude the police for 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 Police Station obtains further evidence, oral or documentary evidence he shall forward to the Magistrate further report or reports regarding such evidence. 12. The issue of investigation and reinvestigation is no longer res integra as on earlier occasion this issue was raised with regard to the power of police or Court to direct further investigation after submission of final form held, the police or Court has jurisdiction to direct for further investigation. The Hon’ble Supreme Court, after consideration of the provisions of the Code, has held that the police or the Court in exercise of power under Section 173(8) of the Code even after submission of the charge sheet, will have a jurisdiction to direct for continuation of further investigation, if so required, not the reinvestigation. The Court has held that when the defective investigation comes to the light during course of trial, it may be cured by further investigation, if circumstances so permit. But the Court has held that it would ordinarily be desirable that the police should inform the Court and seek formal permission for further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offender found during course of proper investigation is as much relevant, desirable and necessary as expeditious disposal of the matter by the Courts. If there is necessity for further investigation, the same can be done as prescribed by law, there would be delay in concluding the trial, should not stand in way for further investigation, if that would help the Court in arriving at the truth and do real and substantial justice. This issue has been considered in the case of Hasanbhai Valibhgai Qureshgi Vs. This issue has been considered in the case of Hasanbhai Valibhgai Qureshgi Vs. The State of Gujarat and others, reported in (2004) 5 SCC 347 . It will be apt to quote paragraph nos. 12 and 13 of the aforesaid judgment:— “12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Ram Lal Narang vs. State (Delhi Admn.) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.” 13. The Hon‘ble Supreme Court in the case of Daud Ibrahim (supra) examined contour of Section 173 of the New Code and Old Code, has taken note, liker sub-section (8) of Section 173 of the Code, no such provision was there, but has been added in new Code. The Hon‘ble Supreme Court in the case of Daud Ibrahim (supra) examined contour of Section 173 of the New Code and Old Code, has taken note, liker sub-section (8) of Section 173 of the Code, no such provision was there, but has been added in new Code. After addition of sub-section (8) in Section 173 of the Code the Court has taken the view that the police has power for further investigation in respect of which charge sheet has been filed and cognizance under Section 190 of the Code has been taken and this power has been recognized in the case of Ram Lal Narang Vs. State (Delhi Administration), reported in A.I.R. 1979 SC 1791 apt to quote the following in affirmance which is as follows:— “It is easy to visualize a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, 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 investigating 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 quite and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of other persons in either case it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate.” 14. The Hon’ble Supreme Court in the case of Mithabhai Pashabhai Patel and others Vs. State of Gujarat, reported in (2009) 6 SCC 332 and in paragraph 12 of the judgment the Court has held that “Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matte further. There are, however, certain situations, where such a formal request may not be insisted upon.” 15. The Hon’ble Supreme Court in paragraph 23 of the judgment has considered the case of Rama Chaudhary Vs. State of Bihar, reported in (2009) 6 SCC 346 where the Court has considered the view taken prior to permission from the Magistrate for further investigation and has taken the view that the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. The Court has made distinction in the meaning of reinvestigation and further investigation. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation. It will be apt to quote paragraph 15 to 18 of the judgment:— “15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which reads as under:— “173. It will be apt to quote paragraph 15 to 18 of the judgment:— “15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 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).” A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. 16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 17. From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation”. The meaning of “further” is additional, more, or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. 18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not a fresh report regarding the “further” evidence obtained during such investigation.” 16. The Hon’ble Supreme Court in the case of Ramachandran Vs. 18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not a fresh report regarding the “further” evidence obtained during such investigation.” 16. The Hon’ble Supreme Court in the case of Ramachandran Vs. R. Udayakumar and others, reported in A.I.R. 2008 SC 3102-3103. The Hon’ble Supreme Court has considered differences between reinvestigation and further investigation. Further investigation means continuation of earlier investigation. Fresh investigation or reinvestigation, means wipe out earlier investigation and go for fresh, and has held that for further investigation the police is empowered as provided under Section 173 (8) of the Code to proceed for further investigation without taking any permission from the Court. It will be appropriate to quote paragraph 6 of the aforesaid judgment:— “6. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above Section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar Vs. State of Kerala1. It was, inter alia, observed as follows: (SCC p. 237, para 24) “24. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional; more; supplemental’. ‘Further’ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a ‘further’ report or reports—and not fresh report or reports—regarding the ‘further’ evidence obtained during such investigation.” 17. Recently, in the case of Vinay Tyagi Vs. Irshad Ali alias Deepak and others, reported in (2013) 5 SCC 762 has considered the issue of further investigation, reinvestigation or fresh investigation Hon’ble Supreme Court, on analysis of Code and earlier judgments, held, fresh investigation is synonymous to reinvestigation, the Hon’ble Court, power of fresh investigation or reinvestigation does not emanate from power conferred under Section 173(8) of the Code but police or Court below, in necessity, may go for further investigation. A direction for further or fresh investigation can be directed by higher Court in exceptional case, in exercise of power, 32 or 226 of the Constitution of India or under Section 482 of the Code. It will be relevant to quote paragraph nos. 22, 23, 40, 41, 49 and 50:— “22. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation. 23. However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the Court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/‘de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. It is essential that even an order of ‘fresh’/‘de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’. 40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code : 40.1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report. 40.2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code. 40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh’s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence. 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. 40.6. It has been a procedure of propriety that the police has to seek permission of the Court to continue “further investigation” and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case. 41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ‘further investigation’ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173 (3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code. “49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the Courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct ‘further investigation’ or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the Courts to conduct ‘further investigation’ and file ‘supplementary report’ with the leave of the Court. The Courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct ‘further investigation’ and/or to file a ‘supplementary report’ will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process. 50. Such a view can be supported from two different points of view. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process. 50. Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore-noticed, since quite often the Courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the Court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.” 18. In view of the above position it has been clearly laid down by the Hon’ble Supreme Court that the police in exercise of power under Section 173(8) of the Code can proceed for further investigation even after submission of charge-sheet or taking cognizance by the Court. There is no bar to the police will proceed only after taking permission of the Court which has been recognized. 19. When it come to the notice of the police that the investigation has not been conducted in a proper manner or certain facts or certain person involved in the case could not have been brought to the book, in that circumstances, the police will be duty bound to go for a further investigation, not reinvestigation as in reinvestigation it will be deemed to be denovo investigation but in the further investigation the police will collect material supplementing to other material collected during the investigation. 20. In the present case the police has submitted charge sheet on 31.3.2013 the same was accepted and cognizance was taken on 10.6.2013, on the application of near relatives of the deceased, the higher official and after proper consideration found material against them and directed for further investigation. 21. The Court below has issued a show-cause vide order dated 22.6.2013. The police filed the same on 16.7.2013, being satisfied with the explanation mentioned therein the Court accepted the show-cause. 21. The Court below has issued a show-cause vide order dated 22.6.2013. The police filed the same on 16.7.2013, being satisfied with the explanation mentioned therein the Court accepted the show-cause. In this view of the matter the Court below approved the action of police it cannot be said that the police has gone beyond jurisdiction in conducting further investigation when the higher police official found the petitioners being involved in the offence correctly given direction for further investigation. This Court does not find any illegality or impropriety for the police to go for a further investigation. 22. Learned counsel for the petitioners submits that on reading of Annexure-3 of the petition it appears that the higher authority has directed for fresh investigation as word has been used “iqu% vuqlaèkku izkjEHk dh x;h gS” As per counsel for the petitioners the word ^^iqu%** means reinvestigation whereas counsel for the State has submitted that ^^iqu%** means further. In Bhargav Hindi Dictionary the word ^^iqu%** has been translated as ‘again’. From the record it also appears that earlier investigation has not been wiped out rather a supplemental action has been taken by the police for further investigation. This Court feels that though there may be different meaning of word but the action of police is not a fresh investigation or reinvestigation rather further investigation. 23. In view of the aforesaid judgment of the Hon’ble Supreme Court further investigation is permissible even after taking of cognizance of the case as in the present case on the recommendation of the higher authority found that petitioners involved in the incident directed for further investigation. Accordingly this Court finds no illegality has been committed by the police so much so the action has been approved by the Court below for further investigation by subsequent order of acceptance of show-cause dated 16.7.2013. 24. Issue No.II: The second point that has been raised, the Court cannot issue the warrant of arrest under Section 73 of the Code or any further process by the Court as provided under Sections 82 and 83 of the Code for his production before the police in aid of investigation under Section 156 of the Code. 24. Issue No.II: The second point that has been raised, the Court cannot issue the warrant of arrest under Section 73 of the Code or any further process by the Court as provided under Sections 82 and 83 of the Code for his production before the police in aid of investigation under Section 156 of the Code. The Hon’ble Supreme Court has considered above issue, in the case of Dawood Ibrahim Kaskar (supra) where moot question for consideration was framed “as to whether the Court can issue warrant to apprehend a person during investigation for his production before the police in aid of investigating agency. The Court in paragraph 20 of the judgment has held that Section 73 of the Code confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be understood with reference to Section 155 of the Code. As noticed under this Section a Police Officer can investigate into non-cognizable case with the order of a Magistrate and may exercise the same powers in respect of investigation which he may exercise in a cognizable case, except that he can not arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence of the Indian Penal Code even if during investigation the investigating authority intends to arrest the person accused of offence he will have to seek or obtain a warrant of arrest from the Magistrate. If the accused evaded the arrest, the only course left open to the investigating agency to ensure his presence would be to ask the Magistrate to invoke the powers of Section 73 and thereafter relating to proclamation and attachment. In such a situation the Magistrate can exercise his powers under Section 73 of the Code for the person to be apprehended is accused of a non-bailable offence and is evading arrest. Further in paragraph 21 of the aforesaid judgment the Court has consider the another segment of Section 73 of the Code and the Hon?ble Supreme Court has held that Section 73 of the Code gives a power to the Magistrate to issue a warrant of arrest and that too during investigation is evident from the provisions of part ‘C’ of Chapter VI of the Code. The proclamation and attachment as envisaged therein to compel the appearance of persons who is evading arrest. The power of issuing process under Section 82 of the Code can be exercised only in respect of person against whom warrant has been issued. So unless the Court issues a warrant the provisions of Section 82 of the Code and other Sections cannot be invoked, in a situation where in spite of the best efforts the police could not arrest a person. The resultant factor the coercive measures are taken for the apprehension of such a person who is evading the arrest. It will be appropriate to quote paragraph 23 of the aforesaid judgment:— “23. Now that we have found that Section 73 of the Code is of general application and that in course of the investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of a non-bailable offence and is evading arrest, we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorization for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be issued by the Courts solely for the production of the accused before the police in aid of investigation.” 25. Similar issue has been came up for consideration before this Court in the case of Krishna Murari Yadav Vs. State of Bihar, reported in 2005 (3) PLJR 746 . In this case also the issue was raised as to whether the Magistrate can issue warrant of arrest solely for production of the accused before the police in aid of investigation. In this case the brother of Naresh Kumar Yadav was killed in bomb blast on 25.7.2005 while he was participating in the meeting of Board and just after three days on 28.7.2005 the investigating agency filed a petition before the Chief Judicial Magistrate, Patna for issuance of warrant of arrest against all the three accused persons including the petitioner of that case. The Chief Judicial Magistrate passed the order in the margin of the petition itself. Thereafter another petition was filed on 3.8.2005. The Chief Judicial Magistrate again passed the non-speaking order for proclamation under Section 82 of the Code without giving any reason. The Court has considered the aforesaid issues and in paragraph 13 of the judgment the Court weighed with the surrounding facts and found investigating officer acted in haste as three days after the institution of the police case rushed for issuance of warrant of arrest and subsequently order for issuance of process under Section 82 of the Code. The Court has considered the aforesaid issues and in paragraph 13 of the judgment the Court weighed with the surrounding facts and found investigating officer acted in haste as three days after the institution of the police case rushed for issuance of warrant of arrest and subsequently order for issuance of process under Section 82 of the Code. The Court in paragraph 17 has found that the order of the Magistrate was illegal as it appears that the Court has taken the view of non-application of mind as well as without going for proper investigation and having found of evading the arrest just after three days rushed and filed the application for issuance of warrant as aforesaid and the Court has held that while passing the order under Section 82 (1) of the Code where it is sine quo non for the Magistrate to be satisfied with the reason to believe that the accused persons is intending to dispose of the movable and immovable property as there was no satisfaction of the Magistrate for issuance of such proclamation held that the action taken for the same was completely illegal and not sustainable in law. Quashed both the orders i.e. order of warrant of arrest including the process under Sections 82 and 83 of the Code. But the Court has not considered that in the event, the police even after best effort could not arrest the accused though power has been provided under Section 41 of the Code of arresting as accused person was evading arrest, the police cannot approach the Magistrate for issuance of warrant of arrest. But has weighed the consideration on the fact that the police without making proper effort for arrest and without going for a proper investigation filed an application before the Magistrate for issuance of warrant of arrest and the Magistrate without assigning any reason and without applying judicial mind passed the order. 26. But has weighed the consideration on the fact that the police without making proper effort for arrest and without going for a proper investigation filed an application before the Magistrate for issuance of warrant of arrest and the Magistrate without assigning any reason and without applying judicial mind passed the order. 26. On consideration of the judgment of the Hon’ble Supreme Court and this Court, this Court is of the view that if the police during investigation takes all efforts to arrest the accused is evading arrest in that circumstances it is not so that the Magistrate is denude of power under Section 73 of the Code to issue warrant of arrest in the event of application the Magistrate will be at liberty to issue the warrant of arrest and in that circumstance it will not be treated to have issued the warrant of arrest for production of accused before the police in aid of investigation. 27. It will bounden duty for the Court that the Court would not pass an order in mechanical way but it should disclose, the Magistrate is satisfied with the fact even after taking all efforts by the police, the accused could not have been arrested. 28. In the present case it appears that the police informed the Magistrate on 12.6.2013 that the higher authority has asked for further investigation, an application was filed on 16.7.2013 for issuance of warrant of arrest, taking ground that the accused persons are absconding and evading arrest and received information from different sources that they were/are threatening the witnesses. The Court below on that basis has issued the warrant of arrest. It appears from attending facts aforesaid, the police started investigation on 26.6.2013 and the application was given on 19.7.2013. There is gap of about more than a month in between the further investigation and the application for issuance of warrant of arrest with the reason assigned therein that they are not co-operating rather evading arrest at the same time threatening the accused persons. This Court finds that there is no illegality in the order dated 19.7.2013. 29. Thereafter an application was filed for issuance of proclamation under Section 82 of the Code on 24.7.2013 and on the same day, order for proclamation was issued which does not show, how the Court below formed an opinion. This Court finds that there is no illegality in the order dated 19.7.2013. 29. Thereafter an application was filed for issuance of proclamation under Section 82 of the Code on 24.7.2013 and on the same day, order for proclamation was issued which does not show, how the Court below formed an opinion. How he has arrived to reason to believe that the person against whom warrant of arrest has been issued has absconded or is concealing himself so that such warrant can not be executed. This Court feels that this order passed for issuance of proclamation under Section 82 of the Code is a mechanical order without application of mind as the Court has not even applied his judicial mind but mechanically passed order without assigning any reason. The aforesaid conclusion is substantiated from the fact that the order of warrant of arrest was issued on 19.7.2013 and just after five days on the prayer of the police the order of proclamation under Section 82 of the Code has been issued without application of test of reason to believe on conceivable grounds. Accordingly this Court finds that the Court below has not exercised of power properly and legally under Section 82 of the Code but acted illegally in issuing the same. Accordingly the order dated 24.7.2013 is hereby quashed. The order dated 20.8.2013 passed under Section 83 of the Code automatically will not survive in view of the fact that this Court has declared the issuance of process under Section 82 of the Code as illegal. However, prosecution will be at liberty to file a fresh/supplementary petition in support of the earlier petition filed for issuance of proclamation under Sections 82 and 83 of the Code and the Court below will pass a fresh order in terms of Sections 82 and 83 of the Code as provided under the Code. 30. In the result this petition is party allowed as aforesaid.