Facts

In Criminal Appeal No. 218 of 1966, the respondent Dinesh Mishra, lodged a first information report, on June 3, 1965, at the Rajoun Police Station, that he saw a thatched house, of one Uma Kant Misra, situated on the northern side of his house, burning, and the petitioners herein, running away from the scene. The notice made an investigation and submitted what is called a 'final report', under s. 173 (1) of the Code, to the effect that the offence complained of, was false. The Sub - Divisional Magistrate received this report on July 13, 1965, but, in the meanwhile, the respondent had filed what is termed 'a protest petition', challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary and, after hearing the counsel for the respondent and the public prosecutor, passed an order on October 27, 1965, directing the police to submit a charge - sheet, against the petitioners, herein. The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court.

Issue
Whether a magistrate can direct the police to submit a charge-sheet, when the police, after investigating the commission of a cognizable offence have submitted a final report under section 173 of CrPC, 1973.

Rules Application
The Supreme Court observed that, in order to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XII of the Criminal Procedure Code. These provisions have been made for securing that an investigation does take place in a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the manner and method of conducting investigating has been left entirely to the police, and the Magistrate has no power under any of these provisions, to interfere with the same. The formation of an opinion as to whether or not there is a case to place the accused on trial has been left to the officer in charge of a police station. The Code as such does not use the expression Charge Sheet or Final Report. But it is understood in the Police Manual containing Rules and Regulations that a report by the police, filed under section 170 of CrPC is referred to as Charge Sheet. But in respect of the report under section 169, it is termed variously, in different States as either deferred charge, final report or summary. The investigation, under the Code, takes several aspects, and stages ending ultimately with the formation of an opinion by the police as to

whether, on the material discovered and collected, a case is made out to place the accused on trial before a magistrate. The submission of a charge sheet or final report is dependent upon the nature of the opinion formed. The formation of the opinion is the final step in the investigation and that final step is to be taken only by the police and not by another authority. If the report is of the action taken under Section 169, then the magistrate may agree with the report and close the proceeding. If he disagrees with the report he can give directions to the police under Section 156(3) to make a further investigation. If the police, after further investigation submit a charge-sheet, the magistrate may follow the procedure where the charge-sheet under Section 170 is filed; but if the police are still of the opinion that there was not sufficient evidence against the accused, the magistrate may agree or disagree with it. Where he agrees, the case against the accused is closed. Where the magistrate disagrees and forms the opinion that the facts set out in the report constitute an offence, he .can take cognizance under Section 190(1)(c). The provision in Section 169 enabling the Police to take a bond for the appearance of the accused before a magistrate if so required is to meet such a contingency of the magistrate taking cognizance of the offence notwithstanding the contrary opinion of the police. The power under Section 190(1)(c) was intended to Secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or he police either wantonly or through a bona, fide error do not submit a charge-sheet. But the magistrate cannot direct the Police to submit a charge- sheet, because the submission of the report depends entirely upon the opinion formed by the police and not on the opinion of the magistrate. The magistrate, if he disagrees with the report of the police, can himself take cognizance of the offence under Section 190(1)(a) or (c), but, be cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. Thus, there is no power expressly or impliedly conferred under the Code, on a magistrate to call upon the police to submit a charge sheet, when they have sent a report under section 169 of the Code. Therefore, there is no case made out for sending up the accused for trial.

Conclusion
Presentation of police report in terms of Section 173 CrPC, it does not take away the power of investigation agency to further investigate into the case concerned and to present further report after such further investigation. The question whether Section 173(8) of the Code authorises the magistrate before whom such report is produced, to direct further investigation or reinvestigation of the case. It remains debatable that 173(8) does not in clear terms provide the jurisdictional competence to the magistrate to direct further investigation. In Reeta Nag vs State of West Bengal.

The question whether Section 173(8) of the Code authorises the magistrate before whom such report is produced, to direct further investigation or reinvestigation of the case. It remains debatable that 173(8) does not in clear terms provide the jurisdictional competence to the magistrate to direct further investigation. In Reeta Nag vs State of West Bengal1, the Supreme Court has negated the existence of such power after the cognizance is taken by the magistrate. In the present case i.e Abhinandan Jhas case, the power to direct further investigation by exercising powers under 156(3) was recognized for the first time and it has been quoted authoritatively in subsequent judgments. It is observed that a fine line of distinction is reflected in the applicability between these two judgments. Whereas, In Abhinandan Jha case, this power has been recognized while in the case discussed above i.e Reeta Nag vs State of West Bengal, the existence of any such power of the Magistrate under Section 178(3) after he has taken cognizance in the matter has been categorically ruled out.
The scope of interference at the stage of investigation is no more res integra as it has been considered by the Hon'ble Supreme Court time and again. In Emperor Vs. Khwaja Nazir Ahmad2, the Privy Council made the following observations:"So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry, it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, the Court's functions begin when a charge is preferred before it and not until then...." (Emphasis added). Similarly, in Abhinandan Jha & Ors. Vs. Dinesh Mishra, , the Hon'ble Apex Court considered the same provision of Cr.P.C. and held that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agency over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation. In State of Bihar & Anr. Vs. J.A.C. Saldanna & Ors3, the Hon'ble Apex Court while dealing with the powers of investigation of a police officer under Cr.P.C. observed that "There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is

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(2009) 9 SCC 129 AIR 1945 PC 18 3 AIR 1980 SC 326

completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end." Thus, in view of the above, it is evident that generally investigation falls within the exclusive domain of the Executive and scope of judicial review is very limited in exceptional cases.