Section 173 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!

(1) A preliminary report when an officer-in-charge of the police station sends to the Magistrate under Section 157.

(2) A report from the subordinate police officer to the officer-in-charge of the police station under Section 168, and

(3) A final report of the police officer after the completion of investigation to be sent to the Magistrate under Section 173. This report is commonly called as ‘chargesheet’ or “challan”.

The filing of final report on completion of investigation is absolutely necessary and it should be sent to the Magistrate without delay. The report is to be sent in the prescribed form, and should contain all details as specified in Section 173 (2) (i) (a) to (g). However, the final report need not contain findings of facts as recorded by the Investigation Officer, nor he is expected to give clear chit to the accused by exercising power of a Court or judicial authority.

The Magistrate has the jurisdiction to differ with the conclusions arrived at by the investigating police officer in his final report and may direct that the accused person be summoned and tried or committed to the Court of Session for trial, as the case may be.50

The Supreme Court in Satya Narayan v. State of Bihar, held that a report under Section 173 (2) has to be accompanied by all the relevant documents and statements of the witnesses mentioned therein as required by sub-section (5) of this section. The whole of it is to be submitted as a final report to the Court.

The Supreme Court in Dinesh Dalmia v. CBI observed that a charge sheet is a final report within the meaning of Section 173 (2), Cr. P.C. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not.

Charge sheet must state the offence or offences committed and who committed them. In case the accused is absconding, the Investigation Officer need not wait for filing the charge sheet till the accused is arrested, provided he finds sufficient evidence against the accused.

The Court in this case held that non-filing of all documents with final report by the Investigating Officer does not render the charge sheet (final report) vitiated in law in terms of Section 173 (5) of Cr. P.C.

The Court further made it clear that the statutory right of the accused to be released on bail remains available to him till investigation remains pending. But the right is lost once charge sheet has been filed by the Investigation Officer. This right (to bail) does not get revived only because further investigation is pending in terms of sub-section (8) of Section 173, Cr. P.C.

In the case of Rupan Deal Bajaj v. K.P.S. Gill, the accused, a top-most police officer slapped a senior lady IAS officer on her posterior at a dinner party in the presence of an elite gathering and the Magistrate accepted the final report submitted by the police in the case initiated by the lady officer under Sections 354/509, IPC without giving reasons therefore, despite the objections raised by the complainant lady. The Supreme Court set aside the order and restored the case directing the Magistrate to proceed with the case in accordance with Section 210 of Cr. P.C.

In a case where the wife had complained against her husband for misappropriating her Stridhan and subsequently on a letter from her to the police that the matter has been settled amicably, further investigation was dropped and no final report was sent to the Magistrate. The Court held that a final report was required to be submitted to the Court in which FIR was still pending.

Sub-section (4) empowers the Magistrate to discharge the accused where the police officer has released him on his own bond under Section 169 and has reported that there is no sufficient evidence or reasonable suspicion against him. If the Magistrate agrees with the final report, he may accept it and close the proceedings.

But where the Magistrate has reason to disagree with the final report submitted by the police officer, he may take cognizance of the offence and in that case, the accused shall not be discharged.

It must, however, be noted that submission of final report by the investigating agency under Section 173 (2) does not preclude further investigation in the case and supplementary reports can be submitted by the Investigating Officer to the Magistrate notwithstanding that the Magistrate has taken cognizance of the offence on the basis of final report submitted earlier.

In this context, the Supreme Court in Ramlal Narang v. Delhi Administration, has held that the right of police to investigate further is not exhausted by submission of the final report under Section 173 (2) CrPC.

The High Court of Madras in Rangnathan v. State, held that in a case in which the complainant and the accused, both filed complaints against each other, but the police in its final report to the Magistrate did not refer to the complaint filed by the accused and his statement . Held that cognizance could not be taken on such a one-sided report and the accused was liable to be set at liberty because he was deprived of his right of proper projection of his defence.

The Magistrate cannot refuse to accept the charge-sheet submitted by the police on the ground that it did not accompany the Forensic Science Laboratory Report, or it was not submitted within the stipulated period of time fixed for particular police station.

But where the final report submitted by the police under Section 173(2) does not accompany all the documents as required under sub-clause (5), the Magistrate will not be justified in taking cognizance of offence on the basis of such an incomplete report and if h^ does so, his order would be liable to be quashed.

The High Court of Bombay in Punjaram v. State of Maharashtra,^ held that an accused could claim indefeasable right to be released on bail under Section 167 (2) Cr. P.C. in case police fails to file a police report or charge-sheet within 90 days. In the instant case, submission of a proforma as envisaged in Section 173 (2) by police without any accompaniments as envisaged in Section 173 (5) did not indicate complete of investigation.

Therefore, filing of report under Section 173 (2) in proforma as prescribed by statute without there being any accompaniments or the investigation papers indicating completion of investigation had entitled the accused to claim his indefeasable right to be released on bail under Section 167 (2) of Cr. P.C.

In all proceedings instituted on a police report, the Magistrate is required to furnish to the accused copies of documents mentioned in Section 207 including those mentioned in Section 173(5) also. Therefore, these documents are to be sent by the Police officer investigating the case along with his final report to the Magistrate and also copies thereof be supplied to the accused. But sub-section (5) does not confer a right on the accused to insist on supply of the original record.

It may be reiterated that the final report i.e. charge-sheet is to be forwarded to the Magistrate by the officer-in-charge of the police station. Where a report was sent to the Court by Additional sub-inspector of police who was officer-in-charge of police station at that time, it was held that he was competent to file the final report because he was empowered to do so by a government order.

Sub-section (8) provides that the submission of the final report by the officer-in- charge of the police station to the Court under Section 173(2) does not preclude further investigation of the case by the investigating agency where deemed necessary.

However, before making further investigation, the police should seek formal permission from the Court mentioning the fresh facts which have necessitated such investigation. Thus where the charge-sheet against the accused was submitted under TADA on one day and a few days later an additional charge-sheet under Section 120B and some other offences under IPC was filed against the same accused, the Court held that the act of the Investigating Officer in filing two charge-sheets could not be said to be mala fide in view of the circumstances of the case.

Though sub-section (8) permits further investigation in respect of an offence after a final report under Section 173 (2) has been forwarded to the Magistrate, but the provision is only permissive and therefore neither the informant nor the accused can demand further investigation as a matter of right, after the submission of report by the police to the Court.

Thus in a case, of rape committed on a girl of five years who complained to her mother and the mother in turn lodged an FIR. The statement of mother was recorded in course of investigation but she died during the trial of the case. The prosecution prayed for recording the statement of the victim (girl) herself which the trial Court permitted.

The accused challenged the validity of the order of the trial Court under Section 173 (8) but the High Court refused to interfere in exercise of its revisional powers and held the order legal in view of the circumstances of the case.

In Narendra Kumar Agarwal v. State of Uttar Pradesh, the final report was submitted and before the order was passed on such report, protest petition was filed by the informant and permission for further investigation of case was sought by Anti-corruption Department as per Government decision.

The Allahabad High Court held that since allegations of corruption were against police officer, Government was fully justified in entrusting further investigation and the petitioner accused had no locus standi to raise objection.

Where the Magistrate passed an order for further investigation without indicating as to in what respect the investigation was deficient or what remained unearthed in the investigation, such an order was liable to be set aside particularly, where investigation was carried out by two different agencies and responsible police officers. There was also no evidence to show that the Investigation Officer was in any way biased towards the complainant.

It must be stated that even prior to enforcement of the Code of Criminal Procedure, 1973, number of Courts including the Supreme Court have held that submission of charge-sheet itself would not bring an end to the power of the investigating agency because the investigating agency is entitled to make further investigation and bring further better material before the Court to connect the accused with the alleged crime.

The Court have already found that the prosecution agency can make further investigation to find whether the accused against whom a charge-sheet has already been filed can be booked for other offences and some other accused persons can also be brought to the books of rules.

In M.C. Mehta v. Union of India the entire investigation and law officer’s team of CBI was ad idem in its opinion or filing of charge-sheet. Only the Director of Prosecution had dissenting opinion on the basis of interpretation of legal evidence though that stage had not arrived. The Director referred the matter for opinion to Attorney-General of India. Held, this was not in accordance with law being not permissible.

Once a charge-sheet has been filed by the investigating agency under Section 173 (2) a subsequent charge-sheet in the same case cannot be filed without further investigation and without obtaining evidence. So also the Magistrate cannot order further investigation after taking cognizance of the offence on police report and appearance of the accused in pursuance of the process issued against him.

However, where the collected materials were misunderstood by the investigating officer and new light was thrown by the superiors, the I.O. could certainly file an additional charge-sheet in the light of guidance obtained from his superior officials.

The Supreme Court in State of West Bengal v. Sampat Lai has categorically ruled that the judiciary can get a case investigated by special agencies such as CBI. The appointment of such agencies or Special officers with the direction to inquire into the commission of an offence can be permissible when it has been shown that there has not been proper investigation in a particular case.

The provisions of Section 173 (8) of the Code make it abundantly clear that the Court may require the investigating machinery to produce further evidence if it comes to the light of the Court that the investigation appears to be incomplete.

Therefore, merely because the additional statements which are recorded subsequent to the filing of the charge-sheet were allowed by the Additional Sessions Judge and that too before framing of the charges cannot be said to be arbitrary or improper exercise of jurisdiction by the learned A.D.J.

The Kerala High Court in Sathy M. Pillai v. Sarma, held that further investigation under Section 173 (8) may be ordered in case of criminal negligence. In the instant case, there was death of a patient in hospital run by the accused. The accused had raised plea that she was not afforded sufficient opportunity of being heard by the Government.

The Court found that the circumstances of the case required further investigation in the matter. Therefore, directions were given to the investigating officer to conduct further investigation and submit the final report under Section 173 (8).

Adopting the procedure laid down under Section 210, Cr. P.C., the Court directed to stay the proceedings initiated by accused for quashing of complaint on basis of private complaint and ordered further investigation in the case.

In Ladu Devi v. State of Rajasthan, the question of applicability of bar of res judicata/issue estoppel on summoning of additional accused [under further investigation under Section 173 (8)] came up for consideration before the High Court of Rajasthan.

Answering in the affirmative the Court held that where the Trial Court on earlier occasion in application under Section 319, Cr. P.C. had declined to summon petitioners as additional accused and the revision against that order was dismissed, the order thereby had attained finality. Therefore, the petitioners could not be added as additional accused on the basis of supplementary charge-sheet submitted by the police under Section 173.

The Supreme Court in State of Andhra Pradesh v. A.S. Peter observed that carrying out of further investigation even after filing of charge sheet is a statutory right of police and therefore law does not mandate taking of prior permission of the Court for further investigation in the case.

However, a distinction has to be made between further investigation and re-investigation in the context of Section 173, Cr. P.C. whereas re­investigation without prior permission is necessarily forbidden, further investigation is not.