S.173(8) CrPC | Seeking Permission From Court To Conduct Further Investigation ‘Desirable’ But ‘Not Mandatory’: Orissa High Court

The Orissa High Court has recently held that an order of cognizance cannot be quashed merely because the police conducted ‘further investigation’ under Section 173(8) of the Code of Criminal Procedure without obtaining formal permission from the Court.

While refusing to quash the order of cognizance against the petitioner, the Single Bench of Justice Gourishankar Satapathy observed,

“The order taking cognizance of offences cannot be questioned merely because the Police has not obtained the formal permission to investigate, either by mistake or otherwise and on that score, the order taking cognizance of offence cannot be quashed, when the materials collected by the Investigating Agencies disclose the very ingredients of the offences, under which the cognizance is taken.”

On 01.06.2009, an FIR was lodged against nineteen accused persons by the DSP, STF, Bhubaneswar before the SP, STF, CID, Crime Branch, Bhubaneswar.

Upon completion of investigation, charge-sheet was submitted against nine persons for commission of offences punishable under Sections 379/ 411/ 420/ 467/ 468/ 471/120(B)/34 of IPC r/w Section 25/27 of the Arms Act and Section 3/4/5 of Explosive Substance Act read with Section 51 of OMMC Rule, 2016.

However, the investigation was kept open under Section 173(8) of the CrPC for collection of further evidence and to examine the complicity of other accused persons involved in the case. Subsequently, two more charge-sheets were filed before the Court and forty-five persons were inculcated by the final charge-statement.

The petitioner was also arraigned as an accused following the further investigation and cognizance was also taken against him. Being aggrieved by the same, the petitioner challenged the order and claimed that as no judicial order was passed for keeping the investigation open, the charge-sheet and the order of cognizance against him should be quashed.

Court’s Observations

The Court observed that the petitioner challenged the impugned order taking cognizance merely on the ground that the investigating officer did not obtain permission from the Court for keeping the investigation open.

The Court placed reliance upon the decision of the Supreme Court in Ram Lal Narang v. State (Delhi Admn.) wherein it was held as follows:

“...in the interests of independence of the magistracy and the judiciary, in the interests of 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.”

Similarly, it referred to the finding of the Apex Court in Sri Bhagaban Samardha Sreepada Vallabha Bhenkata Vishwandadha Maharaj v. State of Andhra Pradesh & Ors. wherein it was held that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.

After examining the mandate of the aforesaid precedents, the Court was of the opinion that it is desirable for the police to intimate the Court and obtain formal permission to conduct further investigation, but that is not mandatory.

“A cumulative reading of the provision U/S. 173(8) of the Cr.P.C. and the decisions cited by the learned counsel for the petitioner, would go to reveal that it would be desirable for the Police to inform the Court and seek formal permission to make further investigation, but the same being not mandatory, there cannot be any fetter to the power of Police to further investigate U/S. 173(8) of the Cr.P.C.,” the Court added.

Accordingly, the Court refused to quash the order taking cognizance and the petition was dismissed.

Case Title: Babujan @ Sk. Sabjan v. State of Orissa

Case No: CRLMC No. 1693 of 2021

Date of Judgment: August 23, 2023

Counsel for the Petitioner: Mr. K.A. Guru, Advocate

Counsel for the State: Mr. S.R. Roul, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 97

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