N Criminal Appeal Nos
373 374 of 1978
Appeals by Special Leave from the Judgment and Orders dated 10 1 1978 and 14 9 1978 of the Delhi High Court in Criminal Misc
M No 323 and 32277 and Criminal Misc
1083 1149 of 1978 in Special Misc
M No 32277
Ram Jethmalani In Crl A373 A K Sen In Crl A374 and Harjinder Singh for the Appellants
U R Lalit and R N Sachthey for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
On the intervening night of 31st March 1967 and Ist April 1967 two sandstone pillars of great antiquity beauty and value were stolen from Suraj Kund temple in Village Amin District Karnal Haryana
They were of the Sunga period 2nd Century BC and their present estimated value in the International Art Treasures  Market is said to be around five hundred thousand American dollars
A first information report FIR No 72 of 1967 was registered by the Police of Butana District Karnal
The pillars were recovered on 2nd May 1967
On completion of investigation a charge sheet was filed on 3rd October 1967 in the Court of the Ilaqa Magistrate at Karnal against one Bali Ram Sharma and two others
3 119 SCI79 928 The case ended in their acquittal on 16th July 1968
During the pendency of the case one Narinder Nath Malik N N Malik filed an application before the Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study
At the instance of H L Mehra the then Chief Judicial Magistrate Karnal and a friend of N N Malik the learned Ilaqa Magistrate gave custody of the two pillars to N N Malik on his executing a personal bond in a sum of Rs 20000 
The order was written by H L Mehra himself and signed by the Ilaqa Magistrate
The pillars remained in the custody of N N Malik from Ist March 1968 to 27th May 1968 when N N Malik purported to return them to the Court of the Ilaqa Magistrate Karnal
After the acquittal of Bali Ram Sharma and others the pillars were handed over to the Lambardar of village Amin
Later it came to light that the pillars returned by N N Malik were not the original pillars but fakes
Thereupon First Information Report No RC271 CIASPECBI was registered at Delhi against N N Malik and H L Mehra under Section 120 B read with Sections 406 and 420 Indian Penal Code
After completing the investigation the CBI filed a charge sheet No RC 2 of 1971 in the Court of Special Magistrate Ambala against N N Malik and H L Mehra for alleged offences under Section 120 B read with Sections 406 and 420 Indian Penal Code
The charge sheet was filed on 30th December 1972
On 17th May 1976 the learned Special Magistrate Ambala passed an order directing the framing of charges against N N Malik and H L Mehra
But no charges were actually framed as the accused were not present in the Court
On 17th April 1977 the Public Prosecutor filed an application under Section 494 Criminal Procedure Code for permission to withdraw the case against Malik and Mehra
The learned Special Magistrate Ambala by his order dated 16th May 1977 permitted the withdrawal of the case and discharged the accused
Between May 1976 and May 1977 several other things happened and the Narang brothers the appellants in the two appeals made their appearance on the scene
It may be mentioned here that of the three Narang brothers Om Prakash alias Omi Narang had been living in London since 1970 Manohar Lal alias Manu Narang had been similarly living in London since July 1974 and Ram Lal Narang alone had been living in India
Ram Lal Narang was detained first under the MISA from September 1974 till he was released under orders of the High Court and later under the COFEPOSA from 1st July 1975 till after the revocation of the internal Emergency in March 1977
929 The two genuine pillars which had been removed from Suraj Kund temple were traced and found in London in the warehouse of Messrs Spink  Co It was suspected that Manoharlal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London
A First Information Report RC 476 CIUASPE was registered by the Superintendent of Police CIU Antiquities SPECBI New Delhi against Manohar Lal Narang and others for alleged offences under Section 120 B Indian Penal Code read with Section 411 Indian Penal Code and Section 251 of the  On 26th June 1976 N N Malik made and application before the Chief Metropolitan Magistrate Delhi in case RC No 476 CIUASPE New Delhi purporting to be under Section 306 of the Code of Criminal Procedure 1973 praying that he might be granted pardon
The application mentioned Sections 411 406 and 420 Indian Penal Code read with Section 120 B and Section 251 of the  as the offences involved
The application was supported by the reply filed by the Superintendent of Police CBI On 3rd July 1976 the Chief Metropolitan Magistrate Delhi granted pardon to N N Malik
Before the grant of pardon the confessional statement of N N Malik was got recorded by the Metropolitan Magistrate Delhi
Thereafter on 19th July 1976 a charge sheet RC 41976 was filed in the Court of Chief Judicial Magistrate Delhi for offences under Section 120 B Indian Penal Code read with Sections 420 411 and 406 Indian Penal Code and Section 25 of the 
The case was transferred to the Court of the Additional Chief Metropolitan Magistrate
On 20th July 1976 the Additional Metropolitan Magistrate issued process for the appearance of the three Narang brothers
The learned Magistrate also issued warrants for the extradition of Omi Narang and Manu Narang who were in London
Extradition proceedings were initiated in Britain at the instance of the Government of India
The Metropolitan Magistrate Bow Street London ordered the detention of Omi Narang and Manu Narang pending the issue of warrants by the Secretary of State under Section 5 of the Fugitive Offenders Act
A petition for the issue of Writ of Habeas Corpus Ad Subjiciendum was filed in the High Court of Justice Queen s Bench Division London
The Divisional Court directed the release of Omi Narang and Manu Narang
The Government of India filed an appeal to the House of Lords and on 24th March 1977 the appeal was allowed
Omi Narang and Manu Narang were finally extradited and brought to India on 27th July 1977
930 Meanwhile internal emergency was lifted in India in March 1977 and Ram Lal Narang was released
Almost immediately he filed a petition before the Additional Metropolitan Magistrate to drop the proceedings against him to cancel the extradition warrants and to discharge the accused
The contention was that the entire investigation in First Information Report No RC 476 was illegal as a case on the same facts was already pending before the Ambala Court and that the Delhi Court acted without jurisdiction in taking cognizance of the case pursuant to a report of police based upon such illegal investigation
The learned Magistrate held that he was not competent to sit in judgment as it were over the order of his predecessor taking cognizance of the case
He however found that the conspiracy which was the subject matter of the case before the Court at Ambala and the conspiracy which was the subject matter of the case before himself were one and the same but he held that the question as to which Court should proceed with the case was not for him to decide it was a matter for the High Court to decide under Section 186 Criminal Procedure Code
The learned Magistrate also noticed an application filed before him after the conclusion of arguments informing him that the case in the Court at Ambala against Malik and Mehra had since been withdrawn on 16th May 1977
On 21st June 1977 two applications were filed in the Delhi High Court under Section 482 Criminal Procedure Code one by Ramlal Narang and the other on behalf of Omi Narang and Manu Narang who were still in England awaiting extradition
The applicants sought quashing of the orders of the learned Metropolitan Magistrate issuing process to them and warrants for the extradition of Omi Narang and Manu Narang
It was also sought to be declared that the entire investigation in RC 4 of 1976 was illegal and the orders of the Chief Metropolitan Magistrate and the Additional Metropolitan Magistrate taking cognizance of RC 4 of 1976 were illegal
The grant of pardon to N N Malik was questioned
It was also prayed that the proceedings before the Metropolitan Magistrate might be quashed
The petitions were admitted by the Delhi High Court on 22nd June 1977 but ultimately dismissed on 10th January 1978 by a common judgment
Ramlal Narang having obtained special leave from this Court has filed Criminal Appeal No 373 of 1978 and Omi and Manu Narang have preferred Criminal Appeal No 374 of 1978
We may mention here that on 1st August 1977 a supplemental charge sheet was filed making Mehra an accused in the Delhi case the case in the Ambala Court having been withdrawn on 16th May 1977 as mentioned earlier
Malik we may add died sometime during August 1977
931 We are given to understand that Mehra also was subsequently granted pardon
Shri Harjinder Singh learned Counsel for the appellant in Criminal Appeal No 373 of 1978 and Shri Ashok Sen learned Counsel for the appellants in Criminal Appeal No 374 of 1978 argued that the conspiracy and the overt acts which were the subject matter of the two First Information Reports and the two charge sheets were the same and therefore there was an implied bar to the power of the Police to investigate into First Information Report No RC 4 of 1976 and the power of the Court at Delhi to take cognizance of the case upon the report of such information
It was submitted that the mere circumstance that some more persons were mentioned as involved or the mere circumstance that the property was said to have been recovered later would not affect the legal position
It was submitted that gist of the conspiracy in both the cases was to obtain possession of the pillars
The offence of conspiracy relating to the obtaining of the pillars having been investigated and a charge sheet having been filed in the Ambala Court the Police had no authority in law to start a fresh investigation under the Criminal Procedure Code by registering another First Information Report and to submit a charge sheet in the Delhi Court for the very same offence
That was an unwarranted interference by the Police with the proceedings pending in the Court
The whole of the investigation subsequent to the filing of the charge sheet in the Ambala Court was without jurisdiction and no material or fact gathered during the course of such illegal investigation could be used to found further proceedings
The Delhi Court was therefore in error in taking cognizance of offences which had already been investigated and which were the subject matter of proceedings in another Court
It was also argued that the subsequent withdrawal of the case from the Ambala Court did not and could not confer jurisdiction on the Delhi Court
The withdrawal itself was an abuse of the process of the Court
Shri Lalit learned Counsel for the respondents urged that the conspiracy which was the subject matter of the charge sheet filed in the Delhi Court was not the same as the conspiracy which was the subject matter of the charge sheet filed in the Ambala Court
The circumstance that some of the conspirators were common and part of the case was the same did not make the two conspiracies identical with each other
There was therefore no question of any bar against the Delhi Court from taking cognizance of the case based upon the wider conspiracy merely because the Ambala Court had taken cognizance of the case based upon the narrower conspiracy
Shri Lalit also urged that the statutory right of the Police to investigate into cognizable 932 offences was not fettered and did not end with the submission of a charge sheet to the Court
He submitted that the Police had the right and indeed the duty to investigate into fresh facts coming to light and to appraise the Court of the same
The basic submission on behalf of the appellants was that the two conspiracies alleged in the two cases were but one
The sequitur was that the investigation into and the taking of cognizance of the second case were without jurisdiction
We will first examine the question whether the conspiracy which was investigated by the Police and which investigation led to the filing of the charge sheet in the Ambala case can be said to be the same as the conspiracy which was later investigated and which led to the filing of the charge sheet in the Delhi Court
For this purpose it is necessary to compare the First Information Report and the charge sheet in the two cases
The First Information Report relating to the case in the Ambala Court was registered against N N Malik and others for alleged offences under Section 120 B Indian Penal Code read with Section 420 and Section 406 Indian Penal Code
 It was stated therein that N N Malik applied to the Court of the Judicial Magistrate 1st Class Karnal and obtained possession of the two stone pillars and dishonestly substituted two fake pillars in their place and returned them to the Court
The charge sheet which was filed on 30th December 1972 mentioned N N Malik and H L Mehra as the two accused in the case and recited that N N Malik was introduced by Mehra to the Magistrate as an eminent archaeologist and that he obtained possession of the pillars on the pretext that he wanted to make some research
The actual order granting custody of the pillars to Malik was written by Mehra but signed by the Magistrate R K Sen
It was further recited that sometime after the pillars were returned by Malik to the Court it was discovered that the pillars so returned were fakes and that N N Malik was not an archaeologist
It was finally said that Malik and Mehra had thus dishonestly made misrepresentation of fact and got the delivery of the two statues which were subsequently substituted by them and they had thus committed the offence under Section 120 B read with Section 420 Indian Penal Code and Section 406 Indian Penal Code
 It is therefore seen from the allegations in the charge sheet filed in the Ambala Court that the conspirators involved in the conspiracy which was its subject matter were two namely Malik and Mehra that the object of the conspiracy was to dishonestly obtain possession of the pillars by making false representation to the Magistrate and to substitute the pillars by fakes after 933 obtaining possession of the same and that the offences committed were under Section 120 B read with Section 420 and 406 Indian Penal Code
The First Information Report in the Delhi case was registered on 13th May 1976 and the offences mentioned were Section 120 B Indian Penal Code read with Section 411 Indian Penal Code and Section 251 of the 
The accused mentioned in the report were Manu Narang and Ramlal Narang
After reciting that the pillars had been taken from the Court by N N Malik and had been substituted by fake pillars the First Information Report went on to recite that the genuine pillars which were stolen from Suraj Kund temple as mentioned above were found to be in the possession and control of Manohar Lal alias Manu Narang in London
It was further recited that Manu Narang was negotiating the sale of the pillars through some London brokers and the price expected to be fetched was approximately five hundred American dollars
It was recited further that Manu Narang and his brother Ramlal Narang had commissioned two well known sculptors of Delhi to make three sets of fake pillars
The two brothers and others acting in conspiracy had dishonestly received and exported the two stone pillars
The charge sheet which followed the investigation was filed on 19th July 1976 in the Delhi Court
The charge sheet mentioned the three Narang brothers Ramlal Narang Manoharlal Narang and Om Parkash Narang as the three accused persons sent up for trial and H L Mehra as a person not sent up for trial as he was already facing trial before the Special Magistrate Ambala
The charge sheet recited among other facts that the Narang brothers had come to know in or about the month of February 1978 about the invaluable nature of the pillars and devised a stratagem to get the custody of the pillars
They discussed their stratagem with their family friend N N Malik informing him that the pillars were worth a fortune
Ramlal Narang and Malik met Mehra and it was decided that Malik should file an application for temporary custody of the pillars and that Mehra should wield his influence over the Magistrate to help N N Malik to get such temporary custody
That was done
Temporary custody of the pillars was obtained and they were removed to Delhi in a truck at the instance of the Narang brothers to a place in Defence Colony New Delhi
Replicas of the pillars were made by Balkrishan Rawal and Natwarlal two eminent sculptors of Delhi under the supervision of Ramlal Narang and Omi Narang
Manu Narang also used to visit Delhi and check the progress made
The original pillars were transported to Bombay by Manu Narang and smuggled out of the country
934 Fake pillars were substituted and returned by N N Malik to the Court
Later on suspicion was created by the discovery of two fake pillars which were also attempted to be smuggled out of the country
The two pillars returned by N N Malik were then got examined by experts and were found to be fakes
Malik was presented by the Narang brothers with a Fiat car a revolving brass bed and a sum of Rs 70000 
They also paid for two pleasure trips made by Malik and his wife to Bombay
It was recited in the charge sheet that the facts disclosed the commission of offences under Section 406 criminal breach of trust Section 411 receiving and retaining stolen property Section 420 cheating Indian Penal Code and Section 251 of the  all read with Section 120 B Indian Penal Code in pursuance of criminal conspiracy to which Manoharlal Narang Ramlal Narang and Om Prakash Narang H L Mehra and N N Malik already granted pardon were parties
 It was further recited Manoharlal Narang Ramlal Narang and Omi Narang also abetted the commission of offences under Section 420 and Section 406 Indian Penal Code by N N Malik approver and these three accused were therefore liable for prosecution under Section 406 and Section 420 Indian Penal Code read with Section 109 Indian Penal Code and they had also committed other offences under Section 411 Indian Penal Code
 It was further mentioned in the charge sheet that Manoharlal Narang and Omi Narang were in London and that proceedings for their extradition were under way
It was also mentioned that H L Mehra was facing trial before the Special Magistrate Ambala for the offences committed by him and therefore he was nor being sent up for trial in this case
It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge sheet was filed in the Ambala Court were the Narang brothers known to be in the picture
The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court
The First Information Report and the charge sheet were concerned primarily with the offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra
At that stage the investigating agency was not aware of any conspiracy to send the pillars out of the country
It was not known that the Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court
It was much later that the pillars surfaced in London and were discovered to be in the constructive possession of Narang brothers
Even then the precise connection between Malik and Mehra on the one side and 935 Narang brothers on the other was not known
All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London
On the discovery of the genuine pillars in the possession of Narang brothers without anything further to connect Narang brothers with Malik and Mehra the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers
That was what was done
No fault could therefore be found with the police for registering a First Information Report against the Narang brothers for the offence of conspiracy to commit an offence under Section 411 Indian Penal Code
In the course of the investigation into this offence it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating
Facts came to light which indicated that the conspiracy which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy
The fresh facts which came to light resulted in the filing of the second charge sheet
The several facts and circumstances mentioned by us earlier and a comparison of the two First Information Reports and the two charge sheets show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case
The conspirators were different
Malik and Mehra alone were stated to be the conspirators in the first case while the three Narang brothers were alleged to be the principal conspirators in the second case
The objects of the two conspiracies were different
The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them
The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London
The offences alleged in the first case was Section 120 B read with Section 420 and Section 406 Indian Penal Code while the offences alleged in the second case were Section 120 B read with Section 411 Indian Penal Code and Section 25 of the 
It is true that the had not yet come into force on the date when the First Information Report was registered
It is also true that Omi Narang and Manu Narang were not extradited for the offence under the and therefore they could not be tried for that offence in India
But the question whether any of the accused may be tried for a contravention of the or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two 936 conspiracies are one and the same
The trite argument that a Court takes cognizance of offences and not offenders was also advanced
This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance
The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy
The question is whether the two conspiracies are in substance and truth the same
Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions
We are clear in the present case that the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case may perhaps be said to have turned out to be part of the conspiracy which is the subject matter of the second case
As we mentioned earlier when investigation commenced in First Information Report No RC 4 of 1976 apart from the circumstance that the property involved was the same the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known
The further connected questions arising for consideration are what was the duty of the police on discovering that the conspiracy which was the subject matter of the earlier case was part of a larger conspiracy whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case  In order to answer these questions it is necessary to refer to the relevant provisions of the Criminal Procedure Code
Counsel on both sides argued the questions on the basis that the Old Criminal Procedure Code governed the situation
We proceed on that assumption without deciding whether the trial in the Delhi Court will be governed by the old Code or the new one
Under the Criminal Procedure Code 1898 whenever an officer in charge of the Police Station received information relating to the commission of a cognizable offence he was required to enter the substance thereof in a book kept by him for that purpose in the prescribed form Section 154 Criminal Procdure Code
Section 156 Criminal Procedure Code invested the Police with the power to investigate into 937 cognizable offences without the order of a Court
If from the information received or otherwise the officer in charge of a Police Station suspected the commission of a cognizable offence he was required to send forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and than to proceed in person or depute one of his subordinate officers to proceed to the spot to investigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender Section 157 Criminal Procedure Code
He was required to complete the investigation without unnecessary delay and as soon as it was completed to forward to a Magistrate empowered to take cognizance of the offence upon a police report a report in the prescribed form setting forth the names of the parties the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case Section 1731 Criminal Procedure Code
He was also required to state whether the accused had been forwarded in custody or had been released on bail
Upon receipt of the report submitted under Section 1731 Criminal Procedure Code by the officer incharge of the Police Station the Magistrate empowered to take cognizance of an offence upon a police report might take cognizance of the offence Section 1901 b Criminal Procedure Code
Thereafter if in the opinion of the Magistrate taking cognizance of the offence there was sufficient ground for proceeding the Magistrate was required to issue the necessary process to secure the attendance of the accused Section 204 Criminal Procedure Code
The scheme of the Code thus was that the First Information Report was followed by investigation the investigation led to the submission of a report to the Magistrate the Magistrate took cognizance of the offence on receipt of the police report and finally the Magistrate taking cognizance issued process to the accused
The police thus had the statutory right and duty to register  every information relating to the commission of a cognizable offence
The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report
These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate nor was any sanction required from a Magistrate to empower the Police to investigate into a cognizable offence
This position in law was well established
In King Emperor 938 vs Khwaja Nazir Ahmed1 the Privy Council observed as follows Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged 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 on them the duty of inquiry
In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would as their Lordships think be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court
The functions of the judiciary and the police are complementary 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 always of course subject to the right of the Courts to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus
In such a case as the present however the Court s function begin when a charge is preferred before it and not until then 
In the present case the police have under Sections 154 and 156 of the Criminal Procedure Code a statutory right to investigate a cognizable offence without requiring the sanction of the Court 
Ordinarily the right and duty of the police would end with the submission of a report under Section 1731 Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence
There was no provision in the 1898 Code prescribing the procedure to be followed by the police where after the submission of a report under Section 1731 Criminal Procedure Code and after the Magistrate had taken cognizance of the offence fresh facts came to light which required further investigation
There was of course no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 1731 or after the Magistrate had taken cognizance of the offence
As we shall presently point out it was generally thought by many High 939 Courts though doubted by a few that the police were not barred from further investigation by the circumstance that a report under Section 1731 had already been submitted and a Magistrate had already taken cognizance of the offence
The Law Commission in its 41st report recognized the position and recommended that the right of the police to make further investigation should be statutorily affirmed
The Law Commission said  1423
A report under Section 173 is normally the end of the investigation
Sometimes however the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused
We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned
It appears however that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent the police cannot touch the case again and cannot re open the investigation
This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and for that matter even to the accused
It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate
Copies concerning the fresh material must of course be furnished to the accused
Accordingly in the Criminal Procedure Code 1973 a new provision Section 1738 was introduced and it says 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
The right of the police to make repeated investigations under the old Code was recognised by the Madras High Court as early as in 1919 in Divakar Singh vs A Ramamurthi Naidu 1 where Phillips and Krishnan JJ observed as follows 940 Another contention is put forward that when a report of investigation has been sent in under Section 173 Criminal PC the police has no further powers of investigation but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received
In re
Palaniswami Goundan1 the Madras High Court held that notwithstanding the filing of a final charge sheet a police officer could still investigate and lay further charge sheets if he got information and that there was no finality either to the investigation or to the laying of charge sheets
In Md Niwaz vs The Crown2 a Bench of the Lahore High Court consisting of Din Mohammad and Cornelius JJ cited with approval the decision of the Division Bench of the Madras High Court in Divakar Singh vs A Ramamurthi Naidu3 already referred to by us
In Prosecuting Inspector vs Minaketan Mahato4 the High Court of Orissa held that the police had the right to reopen investigation even after the submission of the charge sheet under Section 173 Criminal Procedure Code if fresh facts came to light
In Rama Shanker vs State of UP5 a Division Bench of Allahabad High Court took the view that the submission of a charge sheet not being a judicial act the submission of a fresh charge sheet after submission of a report under Section 173 Criminal Procedure Code was not illegal
In re
State of Kerala vs State Prosecutor6 a Division Bench of the Kerala High Court thought it was well settled law that the police had the right to reopen the investigation even after the submission of a charge sheet under Section 173 Criminal Procedure Code and that there was no bar for further investigation or for filing of supplementary report
In H N Rishbud vs The State of Delhi7this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case
While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance
941 It was held that where cognizance of the case had in fact been taken and the case had proceeded to termination the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby
It was said that a defect or illegality in investigation however serious had no direct bearing on the competence of the procedure relating to cognizance or trial
However it was observed It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage the Court while not declining cognizance will have to take the necessary steps to get the illegality cured and the defect rectified by ordering such re investigation as the circumstances of an individual case may call for
This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court defective investigation coming to light during the course of a trial may be cured by a further investigation if circumstances permit it
In Tara Singh vs State1 the police first submitted a report styled as an incomplete challan which however contained all the particulars prescribed by Section 1731
Later two supplemental challans were submitted containing the names of certain formal witnesses
The Magistrate had taken cognizance of the case when the incomplete challan was submitted
It was urged that the Magistrate had taken cognizance of the case illegally and the statements of witneses examined before submission of the supplemental challans should be excluded from the record
This Court held that the so called incomplete challan was in fact a complete report of the kind contemplated by Section 1731 a and therefore the Magistrate had properly taken cognizance of the case
The Court declined to express any opinion on the question whether the police could be permitted to send incomplete reports under Section 1731 Criminal Procedure Code
This case while neither approving nor disapproving the practice of submitting incomplete challans in the first instance certainly notices the existence of such practice
Some High Courts took the view that with the submission of a charge sheet under Section 173 the power of the police to investigate came to an end and the Magistrate s cognizance of the offence started
942 It was said that any further investigation by the police would trench upon the magisterial cognizance
Vide Ram Gopal Neotia vs State of West Bengal1
In Hanuman  Anr
vs Raj2 it was held that when a case was pending before a Magistrate the action of the police in resuming investigation and putting up a new challan against a person not originally an accused as a result of the further investigation was unauthorised and unlawful
In State vs Mehar Singh  Ors3 a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge sheet by the police and thereafter further investigation by the police was not permissible
The police it was said could not tinker  with the proceedings pending in the Court
It was however observed that it would be open to the Magistrate to suspend cognizance  and direct the police to make further investigation into the case and submit a report
The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge sheets but was of the view that such practice was not sanctioned by the Code
Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation
The procedure of suspending cognizance  suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code
Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report
It is in the interests of both the prosecution and the defence that the police should have such power
It is easy to visualise 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 quiet and refuse to investigate the fresh information
It is their duty 943 to investigate and submit a report to the Magistrate upon the involvement of the 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
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
The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance since whatever the police may do the final discretion in regard to further action is with the Magistrate
That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation
We should not however be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence
We think that in the interests of the independence of the magistracy and the judiciary in the interests of the 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
As observed by us earlier there was no provision in the Code of Criminal Procedure 1898 which expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate
Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence
Practice convenience and preponderance of authority permitted repeated investigations on discovery of fresh facts
In our view notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light
Where the police desi 944 ed to make a further investigation the police could express their regard and respect for the Court by seeking its formal permission to make further investigation
As in the present case occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation
Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together
The Magistrates themselves may take action suo motu
In the present case there is no problem since the earlier case has since been withdrawn by the prosecuting agency
It was submitted to us that the submission of a charge sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court
We do not think that the prosecution acted with any oblique motive
In the charge sheet filed in the Delhi Court it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was therefore not being sent for trial
In the application made to the Ambala Court under Section 494 Criminal Procedure Code it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and therefore it was not necessary to prosecute Mehra in the Ambala Court
The Court granted its permission for the withdrawal of the case
Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation we are satisfied that the investigating agency did not act out of any malice
We are also satisfied that there has been no illegality
Both the appeals are therefore dismissed
MR Appeals dismissed


Summary:
A criminal case arising out of FIR 72 of 1967 against one Sri Bali Ram Sharma and two others for the offence of the theft of two sandstone pillars of great antiquity beauty and value from the Suraj Kund Temple in village Amin Dist
Karnal ended in the acquittal of the accused
During the pendency of this case on an application made by him one Narinder Nath Malik N N Malik an alleged research scholar and a friend of H L Mehta the then Chief Judicial Magistrate was given the custody of these two sandstone pillars which had been recovered from the accused
The pillars remained in the custody of N N Malik from 1 3 1968 to 27 5 1968 and on the acquittal of the accused on 16 7 1968 they were handed over to the Lambardar of Village Amin
Later it came to light that the pillars returned by Malik were not the original pillars but fakes
Thereupon FIR RC 2 71 CIASPECBI was registered at Delhi against Malik and H L Mehta under Section 120 B read with Sections 406 and 420 IPC
After completing the investigation a charge sheet No RC 2 of 1971 was filed on 30 12 1972 in the Court of Special Magistrate Ambala against Malik and H L Mehra for the aforesaid offences noted in the FIR Though an order was passed on 17 5 1976 directing the framing of charges no charges were actually framed
However on 16 5 77 on an application dated 17 4 77 filed by the Public Prosecutor under Section 494 of the Criminal Procedure Code 1973 the Special Magistrate permitted the withdrawal of the case and discharged the accused
During the pendency of the case the two genuine pillars were traced and found in London in the ware house of Spink  Co It was suspected that Manohar Lal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London
This resulted in the registering of FIR RC 476 CIUASPE by the Superintendent of Police CIV Antiquities SPECBI New Delhi against Manohar Lal Narang and others for alleged offences under Section 120B read with Section 411 IPC and Section 25 1 of the 
An application under section 306 Cr
PC filed by N N Malik on 26 6 1976 before the Chief Metropolitan Magistrate New Delhi with reference to this FIR RC 476 was accepted on 3 7 1976 and Malik was granted pardon after confessional statement was recorded
On 19 7 1976 a charge sheet was filed RC 4 of 1976 before the same Court for offences under Sections 120B IPC read with Section 420 411 and 406 IPC and Section 25 of the 
The case was transferred to the Court of Additional Chief Metropolitan Magistrate
On 20 7 1976 the Magistrate issued process for the appearance of the accused including the three Narang brothers out of whom the appellant in Crl
Appeal 373 of 1978 was already under detention under MISA and COFEPOSA
The other two who were in London were extradited and brought 924 to India on 27 7 1977
An application filed by Ramlal Narang in March 1977 immediately after his release from detention to drop the proceedings against him to cancel the extradition warrants against his two brothers and to discharge all the accused on the ground of illegality of the Delhi case in view of the fact that a case on the same facts was already pending in the Ambala Court failed
Thereafter two applications filed by the three Narang brothers on 21 6 1977 in the Delhi High Court under Section 482 Crl
PC once again challenging the legality of the proceedings arising out of charge sheet RC4 of 1974 were admitted on 22 6 1977 but dismissed on 10 1 1978
During the pendency of these two appeals Malik died sometime during May 1977 and Mehra was made a co accused in the Delhi case on 1 8 1977 in view of the withdrawal of the Ambala case on 16 5 1977
Dismissing the appeals by special leave the Court  HELD 1
The police have the statutory right and duty to register  every information relating to the commission of a cognizable offence
The police also have the statutory right and duty to investigate the facts and circmstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report
These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate nor was any sanction required from a Magistrate to empower the police to investigate into a cognizable offence
937 F H a The scheme of the 1898 Code of Criminal Procedure was that the First Information Report was followed by investigation the investigation led to the submission of a report to the Magistrate the Magistrate took cognizance of the offence on receipt of the police report and finally the Magistrate taking cognizance issued process to the accused
As such ordinarily the right and duty of the police would end with the submission of a report under Section 1731 Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence
937 E F 938 F b There was no provision in the 1898 Code prescribing the procedure to be followed by the police where after the submission of a report under Section 1731 Criminal Procedure Code and after the Magistrate had taken cognizance of the offence fresh facts came to light which required further investigation
Similarly there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 1731 or after the Magistrate had taken cognizance of the offence
Therefore further investigation was permissible and was not altogether ruled out merely because cognizance of the case has been taken by the Court defective investigation coming to light during the course of a trial could also be cured by a further investigation if circumstances permitted it
938 F H 941 C D King Emperor vs Khwaja Wazir Ahmed 71 Indian Appeals PC 203 followed
Diwakar Singh vs A Ramamurthy Naidu AIR 1919 Madras 751
In re
Palaniswami Goundan AIR 1946 Madras 502 Mohd Niwaj vs The Crown Lahore Prosecuting Inspector vs Minaketan 925 Monato AIR 1952 Orissa 350 Ramashankar vs State of UP AIR 1956 All
525 In re
State of Kerala vs State Prosecutor p 1288 Kerala DB approved
H N Rishbud vs State of Delhi   Tara Singh vs State  referred to
a Neither Section 173 nor section 190 lead to the conclusion that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence
Practice convenience and preponderance of authority permitted repeated investigations and discovery of fresh facts
Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light
Where the police desired to make a further investigation the police could express their regard and respect for the Court by seeking its formal permission to make further investigation
943 G H 944 A b When it comes to the notice of the investigating agency that a person already an accused of an offence has a good alibi or where the involvement of persons who are not already accused comes to the notice of the investigating agency the investigating agency cannot keep quiet and refuse to investigate the fresh information
It is their duty to investigate and submit a report to the Magistrate upon the innocence or involvement of the persons concerned
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
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
A further investigation by the police cannot be considered as trenching upon the proceedings before the Court because whatever the police may do the final discretion in regard to further action is with the Magistrate
That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation
942 F H 943 A D Ram Gopal Neotia vs State of West Bengal AIR 1969 Cal
316 Hanuman and Anr
vs Raj
AIR  State vs Mehr Singh and Ors ILR 2 Cal
LJ 970 over ruled
c Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together
The Magistrate themselves may take action suo motu
944 B 926 In the instant case the prosecution did not act with any oblique motive or out of any malice by submitting a charge sheet to the Delhi Court and by withdrawing the case in the Ambala Court
In the charge sheet filed in the Delhi Court it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and therefore it was not necessary to prosecute Mehra in the Ambala Court
The Court granted its permission for the withdrawal of the case
944 C E 3
Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimentions
936 B C In the present case a the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case may perhaps be said to have turned out to be part of the conspiracy which is the subject matter of the second case
When investigation commenced in First Information Report No RC4 of 1976 apart from the circumstance that the property involved was the same the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known
936 C D b A comparison of the two First Information Report coupled with the several facts and circumstances show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case
The conspirators were different
Malik and Mehra alone were stated to be the conspirators in the first case while the three Narang brothers were alleged to be the principal conspirators in the second case
The objects of the two conspiracies were different
The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them
The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London
The offences alleged in the first case were Section 120B read with Section 420 and 406 Indian Penal Code while the offences alleged in the second case were section 120B read with section 411 IPC and Section 25 of the 
935 D F c No fault could be found with the police for registering a first information Report against the Narang brothers for the offence of conspiracy to commit an offence under section 411 Indian Penal Code
In the course of the investigation into this offence it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating Facts came to light which indicated that the conspiracy which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy
The fresh facts which came to light resulted in the filing of the second charge sheet
935 C D d Neither at the time when the First Information Report pertaining to the Ambala Case was registered nor at the time when the Charge sheet was filed in the Ambala Court were the Narang brothers known to be in the picture
The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court
The First Information Report and the charge sheet were concerned primarily with the 927 offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra
At that stage the investigating agency was not aware of any conspiracy to send the pillars out of the country
It was not known that Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court
It was much later that the pillars surfaced in London were discovered to be in the constructive possession of Narang brothers
Even then the precise connection between Malik and Mehra on the one side and Narang brothers on the other was not known
All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London
On the discovery of the genuine pillars in the possession of Narang brothers without anything further to connect Narang brothers with Malik and Mehra the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers
That was what was done
934 F H 935 A B Observation In the interests of the independence of the magistracy and the judiciary in the interests of the 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
943 E