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SEWA RAM BAIRWA (Advocate)     20 September 2014

Powers of sessions judge to order further investigation u/s1

I am reviving the previous topic as to whether the Sessions Judge has the power to order further investigation u/s 173(8) Cr.P.C.. Previously the matter has been hotly debated.A judgment of Rajasthan High Court was cited to support that the Sessions Judge has no power to direct further  investigation.


In this context, I invite the attention to Gujrat HIgh Judgment  in Sarlaben virsingh and another vs. State of Gujarat (1989 CRL. L.J. 1211) wherein it has been expressly declared  as under:

"...The only question posed before this Court was as to whether once the case has been committed to the Court of Sessions powers of further investigation given to the Magistrate under sub clause (8) of S. 173 of the Criminal Procedure Code can be exercised by the Sessions Judge. The answer to the question would clearly be in the affirmative." 

The above judgment has not been assailed and settles the issue.

I invite comments of my expert friends.



 2 Replies

Ashok, Advocate (Lawyer at Delhi)     21 September 2014

In connection with the issue raised by you, I may point out that in the case of Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : AIR 2004 SC 2078 : 2004 Cri LJ 2018, the Supreme Court has held that further investigation can be conducted even if the charges had been framed by the Sessions Court and even if the trial of the case was being conducted on day to day basis by the Sessions Court. Though this case is not directly on the issue as to whether the Sessions Court has the power to direct further investigation, but this case settles the issue that even when trial is going on before the Sessions Court, further investigation can be conducted under Section 173(8) of the Cr.P.C. The relevant observations of the Supreme Court are observed in the following paragraphs taken from SCC:


7. By order dated 19-3-2004 direction was given to the Director General of Police, Gujarat to submit a report as to whether the action taken by the investigating officer was proper and whether there was need for further investigation. In the report submitted by the Director General of Police, it has been fairly accepted that the deletion of Section 120-B IPC does not appear to be proper. In any event the Court of Additional Sessions Judge of the 10th Fast Track Court at Veraval has framed charge in Sessions Case No. 64 of 2003 on 22-3-2004 against three of the accused persons under Section 120-B IPC. It has been stated that though retention of Section 120-B IPC was desirable, but nothing more is required to be done in view of the fact that the Sessions Judge has already framed charge under the section. It has been stated that there were a few lapses in investigation and inquiry is being caused against the investigation officer with a view to initiate suitable departmental action. So far as the desirability of further investigation is concerned, it is stated that the case has been fixed for day-to-day hearing from 5-4-2004 to 15-4-2004 and if further investigation is done, it would prove infructuous and would only delay the process of trial unnecessarily.


…        …


11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.


12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.

13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”



It is also pertinent to point out that under the scheme of the Cr.P.C.,  the Sessions Court has all the powers of the trial court in Sessions-triable cases unless some power has been specifically taken away from it.


In view of these reasons, it appears that the Sessions Court would have the power to direct further investigation in deserving cases.



You may also like to see the decision of the Supreme Court in the case of Nupur Talwar  v.  CBI, (2012) 11 SCC 465 : AIR 2012 SC 1921, which may not be directly relevant to the issue raised by you, but yet it may be useful for certain related observations made in this case.

1 Like

SEWA RAM BAIRWA (Advocate)     21 September 2014

Thanks, dear Ashok for your comments.

The issue came up recently in a case which I had argued before the Sessions Judge at Delhi. The case was that one V died in the company of his two friends and they reported it to police as a case of hit and run accident on head on collision by a blue line bus. The Police filed the FIR u/s 279/304. In post mortem no external injuries on the dead body were found and his three ribs on bothside  were found broken and lever punctured. The police filed a closure report of untraced  hit and run accident case.  The family doubted murder. On application u/s 200 CRPC, the Magistrate ordered the addition of Sec. 302 IPC in FIR.  The police again filed the closure report labeling it a untraced accident case. We filed the protest petition and the MM allowed the same. The MM rejected the police report by giving a finding that police had not conducted the proper investigation. The MM passed a detailed order and took cognizance of offence and  ordered committal of case to sessions.

Now   before Sessions Judge, there was only the order of the committal order of MM and the rejected  tainted report of police.  AT this juncture, we had filed the application before Sessions Judge requesting for further investigation by the Crime Branch of Delhi police.  Another application u/s 193 was filed praying the Sessions Judge  that if he has no power to order further investigation, he should remand back the case to Magistrate for proper investigation.

The PP opposed the application. The Sessions Judge was also of the view that he neither had the power to order further investigation nor to remand back the case to magistrate. In my argument, I had cited the law laid down by apex court in Case of:

Vinay Tyagi vs Irshad Ali:


52.  It appears, the trial court may have three options, firstly, it may accept the application of accused for discharge. Secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct `further investigation', it may do so. 

 Hasnabhai Vs State of Gujrat, as cited by you,

 Virendra Prasad Singh vs Rajesh Bhardwaj:

16. It is also extremely surprising that the respondent No. 1/accused should have moved the High Court instead of moving the Sessions Judge before whom the matter was pending after all cognizance was taken by the Magistrate on the basis of the charge sheet. Thereafter he also on 16 August, 2010 proceeded to commit the matter for trial by the Sessions Judge and the matter was pending

before the Sessions Judge. Under such circumstance, we completely fail to understand the propriety of the accused moving the High Court, firstly through his mother and secondly himself, more particularly, under Section 482, Cr.P.C. instead of going before Sessions Judge where the prosecution was pending and claiming further investigation under Section 173(8) Cr.P.C.

I had also cited the above quoted judgment of the Gujrat High Court directly on the issue. Yet the Sessions Judge is not satisfied of his power and is insisting on more direct law.  I discussed  the issue with a few Sessions Judges In Delhi but no one seems to sure of his powers. In this context I seek the opinion of all experts. 

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