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Judgment
This petition has been preferred by the petitioner under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 482 of the Code of Criminal Procedure, 1973) seeking quashment of the impugned order and subsequent proceedings.
The petitioner is aggrieved by the order dated 09.01.2025 passed by the Special Judge (OAW), Indore, District Indore in Sessions Trial No. 96/2022. By the impugned order, the learned trial court allowed an application filed by the Public Prosecutor under Section 207 BNSS / 173(8) of the Cr.P.C. and permitted additional documents to be taken on record. The petitioner also challenges the supplementary charge-sheet filed on 27.01.2025 pursuant to the said order, on the ground that the procedure adopted is contrary to the law and amounts to an incorrect interpretation of the earlier order passed by this Court on 21.09.2024 in M.Cr.C. No. 46527/2023.
On August 14, 2026, this Court directed the counsel for the State to file a clear affidavit detailing all instances dating back to 2004. Specifically, the State was ordered to specify which applications were filed by the prosecutrix and received by the police authorities, as well as the actions taken by the police from 2004 until the lodging of the FIR in 2021. Furthermore, the State was directed to provide a clear explanation justifying why certain documents were omitted from the initial charge sheet but subsequently filed in the supplementary charge sheet.
In compliance with the order dated August 14, 2026, the counsel for the State filed written submissions on October 5, 2026. The State submitted that the records pertaining to the complaints and applications allegedly made by the complainant between 2004 and 2019 are no longer available. Due to the lapse of time and in accordance with the applicable Standard Operating Procedure (SOP), old records are periodically weeded out and destroyed. The State emphasized that the empowered committee only permits the destruction of records if the relevant complaint or FIR investigation has been officially closed, meaning the earlier complaints were closed at the relevant time. The authorities at Neemuch followed due process, placed the relevant material before the duly constituted committee, and obtained permission to destroy the old records, after which the requisite certificate was issued. Consequently, the original applications allegedly submitted by the complainant during that period are no longer available in the records of the Neemuch police authorities. The State further noted that the existing certificate was prepared solely on the basis of information provided by the complainant to the Indore police, and no record of the complaints remains with the police at Neemuch.
Prosecution Story:
The prosecution case, in brief, is that the prosecutrix lodged an FIR on 17.03.2021 alleging that in the year 2004, the petitioner, posing as one Sanjay Kothari, offered her a job in Indore. On 13.12.2004, he allegedly took her to an office, locked the door, and committed rape, threatening her with dire consequences. It is alleged that out of fear and concern for her social reputation, she did not lodge a complaint immediately, but later filed a written complaint in 2007 against "Sanjay Kothari," which yielded no results. Subsequently, on 02.04.2019, she allegedly found the Facebook ID of the petitioner (Sunil Kothari) who resembled the accused, leading to various complaints from 2019 to 2020, and ultimately the registration of FIR No. 71/2021 for offences punishable under Sections 376 and 506 of the IPC. After investigation, the primary charge-sheet was filed on 25.10.2021.
Submissions on behalf of the Petitioner:
Learned senior counsel for the petitioner submits that the impugned order and the subsequent supplementary charge-sheet are a gross abuse of the process of law. It is submitted that earlier, on 03.07.2023, the prosecutrix herself had moved an application under Section 242 Cr.P.C. to bring 43 additional documents on record, which was allowed by the trial court but subsequently set aside by this Court vide order dated 21.09.2024. To circumvent this Court’s order, the Public Prosecutor filed an application on 12.11.2024 under Section 173(8) Cr.P.C. making a similar prayer, which is not maintainable as the power of further investigation vests solely with the police.
Learned senior counsel for the petitioner further submits that under the garb of the impugned order dated 09.01.2025, the investigating agency acted with undue haste and merely as a "post office" for the complainant. The police prepared a seizure memo on 25.01.2025, simply taking the 43 documents directly from the complainant, recorded her supplementary statements, and filed a supplementary charge-sheet the very next day on 27.01.2025. It is contended that no actual "further investigation" was conducted to verify the genuineness of these documents—which are alleged to be official complaint book registers and letters—by procuring them from the Office of the Superintendent of Police or the concerned police stations. It is further argued that if these 43 documents were genuine and in the complainant's possession, they would have found mention in the initial FIR dated 17.03.2021 or her statements under Sections 161 and 164 Cr.P.C., but they did not. Therefore, the trial court exceeded its jurisdiction by directing/permitting such a colourable exercise long after the framing of charges.
Submissions of the State/Objector
Learned Public Prosecutor appearing for the State and learned senior counsel for the objector opposed the application and submitted that the present petition is not maintainable, as orders by a Magistrate or Sessions Court permitting further investigation under Section 173(8) Cr.P.C. ought not to be interfered with. It is submitted that the impugned order is in strict consonance with the provisions of law and the earlier order of this Court dated 21.09.2024, which did not prohibit the production of additional documents but merely directed that they must be adduced through the proper channel of the investigating agency and the Public Prosecutor.
It is further submitted that relying upon the judgments of the Hon'ble Supreme Court in Central Bureau of Investigation vs R.S. Pai And Another (2002) 5 SCC 82 and Ram Lal Narang v. State (Delhi Admn.) (AIR 1979 SC 1791), there is no embargo on producing relevant documents even after the trial court has taken cognizance, if such documents are germane to meeting the ends of justice. It is for the Public Prosecutor to take a call on which documents are required to prove the charge, and mere delay in filing them cannot be a ground for rejection. The defense's contention regarding the veracity and genuineness of the documents is a subject matter of trial and cannot be evaluated in the present proceedings under Section 528 BNSS / 482 Cr.P.C.
Analysis and conclusion :
Having heard learned counsel for the parties and on perusal of the case diary/record, this Court is of the considered opinion that the fundamental issue involves the correct interpretation and application of Section 173(8) of the Cr.P.C. (now Section 193(9) of the BNSS).
Without commenting upon the merits of the case, it is necessary to examine the previous order of this Court dated 21.09.2024 in M.Cr.C. 46527/2023. While setting aside the trial court's earlier order taking these very documents on record at the behest of the prosecutrix, this Court gave a specific finding:
"18.Needless to say, the additional documents could be produced by following the procedure of further investigation as contemplated under Section 173(8) of Cr.P.C., and they could be produced before the Sessions Court during the trial, only in accordance with law."
Section 173(8) of the Cr.P.C. empowers the officer in charge of the police station to forward a further report if he "obtains further evidence, oral or documentary" upon further investigation. The scope and sanctity of this provision were elaborately laid down by the Hon'ble Supreme Court in the case of Pramod Kumar & Ors. v. State of Uttar Pradesh & Ors. (2026 INSC 120), arising out of SLP (Crl.) No. 350 of 2024 and decided on 04.02.2026, wherein it was categorically observed as under:-
“27.The power of the investigating agency to order further investigation in any criminal case is derived from the aegis of Section 173(8) of CrPC (also refer to Section 193(9) BNSS), which is reproduced as follows:
“(8)Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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 subsections (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).”
28.Thus, the powers of the investigating agency for further investigation are not in dispute herein. However, what catches attention here and which is also the crux of the controversy in the present case, is which authority can pass an order directing investigating agency to undertake further investigation under Section 173(8) of CrPC.
29.The issue regarding the procedure to be followed for directing further investigation in a case has been dealt by this Court in the case of Vinay Tyagi (supra), wherein this Court while dealing with the contours of Section 173(8) of CrPC relating to further investigation, propounded that the police ought to follow the procedure of seeking permission from the Court to conduct “further investigation” and file a supplementary chargesheet. The relevant paragraphs from the judgment are reproduced as under:
“40.Having analysed the provisions of the Code and the various judgments as aforeindicated, 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 Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three-Judge Bench and thus in conformity with the doctrine of precedent.
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……” (Emphasis Supplied)
30.In this very judgment, this Court while noting that although there is no explicit mandate under Section 173(8) of CrPC to seek leave of the Court before conducting further investigation, nevertheless, over the time, a practice has been developed to seek permission of the Court. Therefore, the practice of seeking the leave of the Court will have to be read into the provisions of Section 173(8) of CrPC, and it is essentially a prerequisite for directing further investigation. This Court therein held as follows:
“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: firstly, through the doctrine of precedent, as aforenoticed, 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” (Emphasis Supplied)
31.The proposition of the law laid down in the case of Vinay Tyagi (supra) has been further affirmed by the three Judge Bench of this Court in the case of Vinubhai Haribhai Malviya and Others versus State of Gujarat and Another [reported in (2019) 17 SCC 1]. 32. This Court has dealt with a similar situation in the case of Peethambaran versus State Of Kerala & Another [reported in (2024) 16 SCC 65], wherein the District Police Chief, i.e., Superintendent of Police, ordered further investigation. This Court therein, while quashing the order passed by the District Police Chief, held that the power to order further investigation rests either with the Magistrate concerned or a higher court, but not with the investigating agency. The relevant paragraphs from the judgment are reproduced as follows:
“19.The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the Magistrate concerned. Referring to Vinay Tyagi, this Court in Devendra Nath Singh v. State of Bihar noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but the investigating agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with. 20. In the facts at hand, it is clear that such a permission was never taken, granted or ordered. Consequently, FR-II is without basis. In FR-I it has been stated that in the absence of any documents in respect of the financial transactions, the instant case may be treated as a false case. This, then would necessarily imply that after due investigation conducted by a duly authorised person, the conclusion is that the ingredients of the section mentioned in the FIR have not been met and no case is made out. XXXX 28. In terms of second question, the above discussion makes clear that the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the Magistrate concerned or with a higher court and not with an investigating agency.” (Emphasis Supplied)
33.In light of the legal position as settled by this Court through the above judgments, it is safe to say that the power to direct further investigation in a case rests solely at the discretion of the Magistrate/Court concerned. In the event, the police/ investigating agency is of the opinion that further investigation is necessary in any particular case to cull out complete facts and truth in the case, it is binding upon them to file an appropriate application before the Magistrate/Court, without directing an order for further investigation by themselves. Once such an application is filed by the investigating agency, the Magistrate/Court would apply its judicial mind, in light of the facts and circumstances of the particular case and the reasons demonstrated by the investigating agency, in order to exercise its discretion for exercise of its power to decide whether or not further investigation is to be ordered under the purview of Section 173(8) of CrPC.”
On perusal of the record and the timeline of events subsequent to the impugned order dated 09.01.2025, it is pertinent that the investigating agency seized the documents directly from the complainant on 25.01.2025, recorded her supplementary statement on the same day, and hurriedly filed the supplementary charge-sheet on 27.01.2025. The essence of "further investigation" implies a genuine, independent inquiry by the investigating agency to unearth the truth. In the present case, where the 43 documents are alleged to be official communications and complaints made to police authorities years ago, the investigating agency made no effort to independently seize the official registers or verify the records from the concerned government offices.
Merely receiving documents from the hands of the complainant and forwarding them to the Court through a supplementary charge-sheet within 48 hours does not satisfy the statutory requirements of a "further investigation" under Section 173(8) Cr.P.C. This procedure appears to be a mechanical exercise intended solely to bypass the procedural defect pointed out by this Court in its earlier order dated 21.09.2024. The investigating agency cannot act merely as a post office for the complainant under the garb of statutory powers. Permitting such an exercise at the stage of trial, long after charges have been framed, would cause grave prejudice to the petitioner and amount to an abuse of the process of the Court.
Considering the overall facts and circumstances of the case, without commenting upon the merits of the case, this Court is inclined to allow the petition.
Accordingly, the MCRC is allowed. The impugned order dated 09.01.2025 passed by the Special Judge (OAW), Indore, District Indore in Sessions Trial No. 96/2022, and the supplementary charge-sheet dated 26.01.2025 filed pursuant thereto, are hereby quashed.
A copy of this order be sent to the trial Court concerned for information and necessary compliance.