08 May 2021
Section 173(8) came to be introduced in the Cr.P.C. by the 41st Law Commission Report to fill in the lacunae felt in the Old Code of 1898 After recognition of the right of the police to make repeated investigations under the old Code in the Diwakar Case(supra), a 3-judge bench of the Hon’ble Supreme Court in H.N. Rishbud v. State of Delhi, held that:- “It does not follow, however, that the invalidity of the investigation is to be completely ignored by the 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 reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.” Accordingly, in the Criminal Procedure Code of 1973, Section 173(8), came to be introduced, which statutorily accoutered the police to undertake further investigation after submission of the final report under Section 173(2) of the Cr.P.C. Conspicuously, it still did not confer such powers on the Magistrate to direct further and/or fresh investigation after submission of the final report by the Police.
Since Section 173(8) only envisages a further investigation, and not fresh investigation, it becomes essential to distinguish between the two expressions.