VINAY TYAGI versus IRSHAD ALI @ DEEPAK & ORS.

22. In the case of Minu Kuman· & Anr. v. State of Bihar & Ors. [(2006) 4 SCC 359], this Court explained the powers that are vested in a Magistrate upon filing of a report in terms of Section 173(2)(i) and the kind of order that the Court can pass. The Court held that when a report is filed before a A Magistrate, he may either (i) accept the report and take cognizance of the offences and issue process; or (ii) may disagree with the report and drop the proceedings; or (iii) may direct further investigation under Section 156(3) and require the police to make a further report.

23. This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation C to Section 173(8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC 536] where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police D to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders E would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant F to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate G can also take cognizance on the basis of the material placed . on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation.

24. In support of these principles reference can be made VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. [SWATANTER KUMAR, J.] to the judgments of this Court in the cases of Union Public SeNice Commission v. S. Papaiah & Ors [(1997) 7 SCC 614], State of Orissa v. Mahima [(2003) 5 SCALE 566], Kishan Lal v. Dharmendra Bhanna & Anr. [(2009) 7 SCC 685], State of Maharashtra v. Sharat Chandra Vinayak Dongre [(1995) 1 sec 42].

25. We may also notice here that in the case of S. Papaiah (supra), the Magistrate had rejected an application for reinvestigation filed by the applicant primarily on the ground that it had no power to review the order passed earlier. This Court held that it was not a case of review of an order, but was a case of further investigation as contemplated under Section 173 of the Code. It permitted further investigation and directed the report to be filed.

26. Interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be noticed that this Court, while pronouncing its judgment in the case of Hemant Dhasmana v. CBI, (supra) has specifically referred to the judgment of S. Papaiah (supra) and Bhagwant Singh v. Commissioner of Police & Anr. [(1985) 2 SCC 537]. While relying upon the three Judge Bench judgment of Bhagwant Singh (supra), which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the Magistrate could drop the proceedings after filing of a report under Section 173(2), without notice to the complainant, but in paragraph 4 of the judgment, the three Judge Bench dealt with the powers of the Magistrate as enshrined in Section 173 of the Code. Usefully, para 4 can be reproduced for ready reference:- "4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The c report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub- section (2)(ii) of Section 173, it must be presumed that the VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. [SWATANTER KUMAR, J.] informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him'. There can. therefore, be no doubt that vvhen, on a consideration of the report made by" the officer-in-charge of a· police station under sub- section (2)(i) ofSectiol'l 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue c process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for 0 proceeding against some of the persons mentioned in the · first information report, the Magistrate must give notice to the informant and provide him an opportunify to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on .the first information report has to · F be communicatedto the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 and if that be so, we do hot see any reason why it should be difficult to serve notice of the consid.eration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."

27. In some judgments of this Court, a view has been advanced, (amongst others in the case of Reeta Nag v State of West Bengal & Ors. [(2009) 9 SCC 129] Ram Naresh Prasad v. State of Jharkhand and Others [(2009) 11 SCC 299] and Randhir Singh Rana v. State (Delhi Administration) B [(1997) 1 sec 361]), that a Magistrate cannot suo moto direct further investigation under Section 173(8) of the Code or direct re-investigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge sheet where the police submits a report that C no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo moto direct further investigation.

28. However, having given our considered thought to the D principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct 'further investigation' and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in E the case of Bhagwant Singh (supra) has, in no uncertain terms, stated that principle, as afore-noticed.

29. The contrary view taken by the Court in the cases of Reeta Nag (supra) and Randhir Singh (supra) do not consider F the view of this Court expressed in Bhagwant Singh (supra). The decision of the Court in Bhagwant Singh (supra) in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a magistrate in terms of Section 173 of the Code was squarely debated before that Court and the G three Judge Bench concluded as afore-noticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh (supra), are thus squarely in line with the doctrine of precedence. To some extent, the view expressed in Reeta Nag (supra), Ram Naresh (supra) and Randhir Singh (supra}, besides being different on facts, would H have to be examined in light of the principle of stare decisis. VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. [SWATANTER KUMAR, J.]

30. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code: 1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report. 2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173(6) of the Code. 3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in o conformity with the doctrine of precedence. 4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. 6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.

31. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the D Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. E It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with F the settled principles of law. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and G the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt H with as part of the primary report. This is clear from the fact VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS. 1039 [SWATANTER KUMAR, J.] that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.

32. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the provisions of C Section 227 of the Code.

33. At this stage, we may also state another well-settled canon of criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo', and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

34. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of Magistrate under Section 228 of the Code. · Wherever a charge sheet has been submitted to the Court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised A agency. These principles have been reiterated with approval in the judgments of this Court in the case of Disha v. State of Gujarat & Ors. [(2011) 13 SCC 337]. Vineet Narain & Ors. v. Union of India & Anr.[(1998) 1 SCC 226], Union of India & Ors. v. Sushi/ Kumar Modi & Ors. [1996 (6) SCC 500] and B Rubabbuddin Sheikh v. State of Gujarat & Ors. [(2010) 2 SCC 200].

35. The power to order/direct 'reinvestigation' or 'de novo' investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, C there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not D accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct 'further investigation', or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

36. The Code does not contain any provision which deals with the court competent to direct 'fresh investigation', the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a 'fresh'/ F 'de nova' investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the G same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon 'further investigation' or a report upon 'fresh investigation', shall have to be construed and read conjointly. Where there is a specific order made by the court H for reasons like the investigation being e'1tirely unfair, tainted, VINAY TYAGI v. IRSHAD ALI@ DEEPAK & ORS. 1041 [SWATANTER KUMAR, J.] undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction.

37. The scheme of Section 173 of the Code even deals with the scheme of exclusion of documents or statements submitted to the Court. In this regard, one can make a reference to the provisions of Section 173(6) of the Code, which empowers the investigating agency to make a request to the Court to exclude that part of the statement or record and from providing the copies thereof to the accused, which are not essential in the interest of justice, and where it will be inexpedient in the public interest to furnish such statement. The framers of the law, in their wisdom, have specifically provided a limited mode of exclusion, the criteria being no injustice to be caused to the accused and greater public interest being served. This itself is indicative of the need for a fair and proper investigation by the concerned agency. What ultimately is the aim or significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms· of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.

38. Now, we may examine another significant aspect which A is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct 'further investigation' or file supplementary report with the leave of the Court, the B investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct 'further investigation' and file 'supplementary report' with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking c prior leave of the Court to conduct 'further investigation' and/or to file a 'supplementary report' will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are 0 understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.

39. Such a view can be supported from two different points of view. Firstly, through the doctrine of precedence, as afore- E noticed, since quite often the courts have taken such a view, and, secondly, the investigating agencies which have also so understood and applied the principle. The matters which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and F such interpretation would be permissible with the aid of doctrine of contemporanea expositio. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.

40. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct 'further investigation' on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of H Section 173(8) and the scheme of the Code for giving VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. [SWATANTER KUMAR, J.] precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words; it is the judicial conscience of the Magistrate which has to be satisfied with reference to the c record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this court in the case of Sivanmoorthy and Others v. State represented by Inspector of Police [(2010) 12 SCC 29]. In light of the above discussion, we answer the questions formulated at the opening of this judgment as follows: Answer to Question No. 1 The court of competent jurisdiction is duty bound to A consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of Section 173(2) of the Code. This Rule is subject to only the following exceptions; c (a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof; (b) Where an order is passed by the higher courts in exercise of its extra-ordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on 'fresh investigation' or 're-investigation' or any part of it be excluded, struck off the court record and be treated as non est. Answer to Question No. 2 No investigating agency is empowered to conduct a 'fresh', 'de novo' or 're-investigation' in relation to the offence E for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation F already conducted and the report so filed before the court of the learned magistrate.

41. Having answered the questions of law as afore-stated, we revert to the facts of the case in hand. As already noticed, G the petitioner had filed the writ petition before the High Court that the investigation of FIR No. 10/2006 dated 9th February, 2006 be transferred to CBI or any other independent investigating agency providing protection to the petitioners, directing initiation of appropriate action against the erring H police officers who have registered the case against the VINAY TYAGI v. IRSHAD ALI @ DEEPAK & ORS. 1045 [SWATANTER KUMAR, J.] petitioner and such other orders that the court may deem fit and proper in the facts and circumstances of the case. This petition was filed under Article 226 of the Constitution read with Section 482 of the Code on 25th February, 2006. The High Court granted no order either staying the further investigation by the agency, or the proceedings before the court of competent jurisdiction. The Delhi Police itself filed a status report before the High Court on 4th April, 2006 and the Special Cell of Delhi Police filed the charge sheet before the trial court on 6th May, 2006. After perusing the status report submitted to the High Court, the High Court vide its Order dated 9th May, 2006 had c noticed that the circumstances of the case had cast a suspicion on the case of the prosecution, in regard to the manner in which the accused were apprehended and recoveries alleged to have been made from them of articles like explosives and detonators. After noticing this, the Court directed that without commenting on the merits of the matter, it was of the opinion 'that this was a case where inquiry by some independent agency is called for, and directed the CBI to undertake an inquiry into the matter and submit its report within four weeks. Obviously, it would have been brought to the notice of the High Court that the Delhi Police had filed a report before the trial court. The status report had also been placed before the High Court itself. Still, the High Court, in its wisdom, did not consider it appropriate to pass any directions staying proceedings before the court of competent jurisdiction. Despite pendency before the High Court for a substantial period of time, the CBI took considerable time to conduct its preliminary inquiry and it is only on 4th July, 2007 that the CBI submitted its preliminary inquiry report before the court. After perusing the report, the Court directed, as per the request of the CBI, to conduct in depth investigation of the case.

42. In the order dated 24th October, 2007, the High Court noticed that despite the fact that the CBI had taken considerable time for completing its investigation, it had still not done so. Noticing that the investigation was handed over to A the CBI on 9th May, 2006 and despite extensions it had not . submitted its report the Court granted to the CBI four weeks' time from the date of the order to submit its findings in respect of the allegations made by the accused in the complaint and directed the matter to come up on 28th November, 2007. The B significant aspect which needs to be noticed is that the Court specifically noticed in this order that 'the trial of the case is not proceeding, further hoping that CBI shall file supplementary report or supplementary material before the trial court and the accused gets an opportunity of case being formally c investigated. However, the pace at which the investigation is done by the CBI shows that CBI may take years together for getting the records …. '

43. This order clearly shows that the High Court contemplated submission of a supplementary report, which D means report in continuation to the report already submitted under Section 173(2) of the Code by the Delhi Police.

44. On 28th November, 2007, the case came up for hearing before the High Court. Then CBI filed its closure report E making a request that both the accused be discharged. The case came up for hearing before the High Court on 4th August, 2008, when the Court noticed that CBI had filed a report in the sealed cover and the Court had perused it. Herein, the Court noticed the entire facts in great detail. The High Court F disposed of the writ petition and while noticing the earlier order dated 4th July, 2007 wherein the accused persons had assured the court that they would not move bail application before the trial court, till CBI investigation was completed, permitted the applicants to move bail applications as well.

45. The application for discharge filed by the accused persons on the strength of the closure report filed by the CBI was rejected by the trial court vide its order dated 13th February, 2009 on the ground that it had to examine the entire record including the report filed by the Delhi Police under H Section 173(2) of the Code. The High Court, however, took VINAY TYAG{ v. IRSHADALI@ DEEPAK & ORS. [SWATANTER KUMAR, J.] the contrary view and stated that it was only the .closure report filed by the CBI which could be taken into consideration, and then the matter shall proceed in accordance with law. In this manner, the writ petition was finally disposed of, directing the parties to appear before the trial court on 14th September, 2009. The High Court had relied upon the judgment of this Court in the case of K. Chandrasekhar v. State of Kera/a and Others (supra) to say that once investigation stands transferred to CBI, it is that agency only which has to proceed with the investigation and not the Special Cell of the Delhi Police.

46. We are unable to accord approval to the view taken by the High Court. The judgment in the case of K. Chandrasekhar (supra), firstly does not state any proposition of law. It is a judgment on peculiar facts of that case. Secondly, it has no application to the present case. In that case, the investigation by the police was pending when the investigation was ordered to be transferred to the CBI. There the Court had directed that further investigation had to be continued by the CBI and not the Special Cell of the Delhi Police.

47. In the present case, report in terms of Section 173(2) had already been filed by the Special Cell of the Delhi Police even before the investigation was handed over to CBI to conduct preliminary inquiry. Furthermore, the final investigation on the basis of the preliminary report submitted by the CBI had also not been handed over to CBI at that stage.

48. Once a Report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report. Furthermore, in the present case, the High Court had passed no order or direction staying further investigation by the Delhi Police or proceedings before the court of competent jurisdiction.

49. On the contrary, the court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a 'supplementary report'.

50. Once the Court has taken this view, there is no question B of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, C in accordance with law. It is also interesting to note that the CBI itself understood the order of the court and conducted only 'further investigation' as is evident from the status report filed by the CBI before the High Court on 28th November, 2007.

51. In our considered view, the trial court has to consider the entire record, including both the Delhi Police Report filed under Section 173(2) of the Code as well as the Closure Report filed by the CBI and the documents filed along with these reports.

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 F considered opinion, it is just, proper and necessary in the interest of justice to direct 'further investigation', it may do so.

53. Ergo, for the reasons recorded above, we modify the order of the High Court impugned in the present appeal to the G · above extent and direct the trial court to proceed with the case further in accordance with law. The appeals are partially allowed. B.B.B. Appeals partly allowed.