BOHATIE DEVI (DEAD) THROUGH LR versus THE STATE OF UTTAR PRADESH & ORS

Citation: [2023] 5 S.C.R. 644 · Decided: 28-04-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 5 S.C.R.
644
BOHATIE DEVI (DEAD) THROUGH LR
v.
THE STATE OF UTTAR PRADESH & ORS
(Criminal Appeal No. 1294 of 2023)
APRIL 28, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Code of Criminal Procedure, 1973 – ss.158, 173(3) –
Reinvestigation by another agency – Order passed by Secretary
(Home), State of U.P., Lucknow for reinvestigation by CBCID –
Legality of – Held: s.173(3) r/w s.158 does not permit the Secretary
(Home) to order for further investigation/reinvestigation by another
agency, other than the officer in charge of the concerned Police
Station and/or his superior officer – For reinvestigation, the prior
permission/approval of the Magistrate is required – In the present
case, the Secretary (Home) passed an order for reinvestigation by
CBCID and thereafter, the CBCID sent the intimation to the
Magistrate – Thus, no prior approval/permission was accorded by
the Magistrate – Order passed by the Secretary (Home) ordering
reinvestigation by another agency and that too, on the basis of the
application/complaint submitted by mother of the accused is
unknown to law – Impugned judgment passed by the High Court is
quashed and set aside – Order passed by the Secretary (Home) and
consequently, further investigation/reinvestigation by the CBCID is
also quashed and set aside – Penal code – ss.302, 120B.
Disposing of the appeals, the Court
HELD: 1.1 Respondent Nos. 8 and 11 as such have been
chargesheeted for the offence under Sections 302 and 120B of
the IPC of which the cognizance has been taken by the Magistrate
on 21.12.2016. That thereafter, respondent No. 8 as such moved
the quashing petition before the High Court for quashing the
entire criminal proceedings including the chargesheet/
supplementary chargesheet. The High Court dismissed the
quashing petition. Therefore, the accused must have taken all
the defences which might have been available to him while
considering quashing petition including the ground on which now
further investigation/reinvestigation is ordered by another
   [2023] 5 S.C.R. 644
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agency, namely, CBCID. Thereafter, respondent No. 8
approached this Court and the Special Leave Petition came to be
dismissed by this Court and the interim protection in favour of
respondent No. 8 came to be vacated. That thereafter, non-
bailable warrant was issued against respondent No. 8 and only
thereafter, mother of respondent No. 8 – accused moved an
application before the Secretary (Home) for further investigation
and he transferred the investigation to CBCID, inter-alia, on the
ground that the so-called eye witnesses of the murder were not
the eye witnesses. The request of the mother of accused has
been accepted by the Secretary (Home) and the investigation
was transferred to another agency, namely, CBCID despite the
fact that after the first chargesheet, the investigation was handed
over to the District Crime Branch to further investigate the case
and they filed the supplementary chargesheet in which respondent
Nos. 8 and 11 were even chargesheeted. Therefore, as such it is
not a case of further investigation, but is a case of reinvestigation
by another agency. The order passed by the Secretary (Home)
transferring the investigation/ordering further investigation by
another agency and that too, on the basis of the application/
complaint submitted by mother of the accused is unknown to law.
[Para 7][651-F-H; 652-A-B]
1.2 There cannot be any dispute that even after the
chargesheet is filed, it is the right of the investigating officer to
further investigate in respect of offence even after a report under
sub-section (2) of Section 173 of Cr.PC forwarded to a Magistrate
and as observed and held by this Court the prior approval of the
Magistrate is not required. However, as per the settled position
of law, so far as the reinvestigation is concerned, the prior
permission/approval of the Magistrate is required. In the present
case, the Secretary (Home) has passed an order for further
investigation by CBCID and thereafter, the CBCID has sent the
intimation to the Magistrate. No prior approval/permission as
observed by the High Court has been accorded by the Magistrate.
The High Court in the impugned judgment and order has observed
that the further investigation is ordered with the concurrence of
the Magistrate, which is factually incorrect. In any case, as it is a
case of reinvestigation, the same is not permissible and that too
by another agency without t

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