Recall of cognisance order before seeking further investigation

Whether recall of cognisance order is mandatory before seeking further investigation? The investigating officer has committed grave error in the charge sheet. He has saved the accused from main offence. Instead of it he is submitted charge sheet in lesser offence. The offence was committed by the accused along with his friend MMM but the investigating officer completely saved the MMM from the alleged offence and also submitted charge sheet for sexual harassment instead of rape. The victim suffered several injuries on her private part. But the investigating officer ignored that medical report and filed charge sheet in sexual offence only. I approach the superior officer but he said that cognisance order should be recalled before further investigation. Judicial magistrate has taken cognisance of the offence. In this situation whether recall of cognisance order is mandatory? I want further investigation in this case. 

Asked from: Uttar Pradesh

The recall of a cognizance order is not mandatory. It is within the prerogative of the investigating agency to decide whether to conduct further investigation into a matter. Further investigation can be conducted even after the submission of a final report under Section 173(2) of the Criminal Procedure Code (CrPC) [Section 193 BNSS].

Upon receiving a final report under Section 173(2) of the CrPC, the Magistrate has the authority to order further investigation under Section 156(3) of the CrPC. Section 173(8) of the CrPC specifically addresses further investigation and supplementary reports. In State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023 SCC OnLine SC 515 the Supreme Court has held that

In the light of the aforesaid decision of the Supreme Court, it appears that though the order passed by the learned Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC.

Subsection (8) of Section 173 clarifies that nothing in this section precludes further investigation into an offence after a report under subsection (2) has been submitted to the Magistrate. Thus, even after the filing of a chargesheet or challan under Section 173(2), the police may conduct further investigation under Section 173(8).

In Rama Chaudhary v. State of Bihar [(2009) 6 SCC 346], the Supreme Court held that further investigation under Section 173(8) CrPC is supplemental, additional, and a continuation of the earlier investigation, rather than a fresh or de novo investigation that nullifies the previous one.

When a final report is forwarded by the Investigating Officer to the Magistrate under Section 173(2)(i) of the CrPC, several possibilities arise:

1. The Magistrate may accept the report, take cognizance of the offence, and issue process.
2. The Magistrate may disagree with the report, drop the proceedings, or take cognizance based on the material submitted by the Investigating Officer.
3. The Magistrate may direct further investigation under Section 156(3) and require the police to submit a report as per Section 173(8).
4. The Magistrate may treat a protest complaint as a complaint and proceed under Sections 200 and 202 of the CrPC.

You said that the victim of rape has suffered several injuries on her private part. It prima facie constitutes the offence of rape. Therefore, submitting charge sheet for sexual harassment is unjust and renders the final report faulty. It is not a justice for the victim of rape. In Hasanbhai Valibhai Qureshi v. State of Gujarat [(2004) 5 SCC 347], the Supreme Court emphasized that

The prime consideration for further investigation is to ascertain the truth and ensure justice. Further investigation should not be hindered solely due to potential delays in concluding the trial if it aids in uncovering the truth and delivering substantial justice.

In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740], the Court observed:

1. The police’s power to conduct further investigation after submitting a final report is recognized under Section 173(8) of the CrPC. Even after the court takes cognizance of an offence based on the initial police report, the police may carry out further investigation. However, it is desirable for the police to inform the court and seek formal permission to proceed.
2. The court also holds the authority to direct the police to conduct further investigation. There is no statutory obligation for the court to hear the accused before issuing such a direction. Imposing such an obligation would unnecessarily burden the Magistrate, as the law does not mandate this requirement.

In King-Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA 203], the Privy Council highlighted the importance of maintaining the separation of functions between the judiciary and the police. It was stated that the judiciary should not interfere with police investigations, which are within the statutory domain of the police. The police have a statutory right to investigate cognizable offences without requiring judicial approval, although courts retain the right to intervene in appropriate cases, such as habeas corpus petitions under Section 491 of the CrPC.

If the investigating agency deems it necessary to conduct further investigation to gather additional evidence related to the alleged offence or to address any lacunae in the current investigation, there is no requirement to recall the Magistrate’s cognisance order.

Also read: What to do if investigating officer submits biased final report?