This article is written by Upasana Sarkar. This article deals with Section 173 of the Code of Criminal Procedure, 1973, which provides details with respect to the report of an investigation made by an officer in charge of a police station.

It has been published by Rachit Garg.

Table of Contents

Introduction

Section 173 of the Code of Criminal Procedure, 1973, lays down the rules and procedures for the investigating agencies to file a report upon the conclusion of an investigation. It deals with those offences where the Magistrate is empowered to take cognizance of an offence. This provision mandates that the police authorities, after having completed the investigation, make a report on it and submit it to the court. The police report is then sent to the Magistrate to proceed with the case. It should be made in the format prescribed by the State Government. This Section also deals with the powers of the police for further investigation.

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Police report

Section 2(r) of the Code of Criminal Procedure, 1973, states the meaning of a police report. It is defined as a report that is forwarded to the Magistrate by the police officer under Section 173(2). This is the report that includes the final conclusion of an investigation. The charge-sheet that is submitted to the court is considered the End Report. The police report must be made in accordance with the provisions that the State Government has prescribed, which are given under Section 173. This following police report is sent at different stages of investigation-

  • A preliminary report made by the investigating officer or officer-in-charge of a police station that needs to be given to the Magistrate under Section 157.
  • A report that deals with the offence committed by a subordinate officer needs to be sent to the officer-in-charge of the police station concerned under Section 168.
  • A final report, also called a challan, made by the investigating officer after the completion of an investigation needs to be given to the Magistrate under Section 173. This report is also known as a completion report.

The police report will include information relating to the facts of the case and the final conclusion drawn by the investigating officer. It consists of both oral and documentary evidence. The Magistrate, after going through this report, will decide whether to take cognizance of a case or not. The Magistrate is obligated to examine the report thoroughly and see whether it is accompanied by the appropriate documents and materials required for the court to start the trial. 

Scope of Section 173 CrPC

The police start to investigate a case when a complaint is filed at the police station for cognizable offences only. The investigation is assumed to be ongoing unless a police report (also known as a charge sheet) is filed by the police officer. This provision directs the police to investigate without unnecessary delay and then hand over the report to the Magistrate. The police cannot be compelled by the magistrate to submit the charge-sheet within a fixed period. After the filing of the charge-sheet following the completion of an investigation, the trial begins. The Magistrate can, at his own discretion, accept or reject the report filed by the police authorities.

Report made by the police officer on the completion of an investigation

Section 173(1) CrPC

This subsection states that an investigation of a matter must be completed by the police officer without any kind of unnecessary delay. In other words, it means that an investigation in a case under this section should not be delayed without reasonable grounds.

Section 173(1A) CrPC

Section 173(1A) states that the date for any investigation regarding the offences mentioned below shall be counted from the starting day when the police officer or the investigating officer of the police station recorded the information. The phrase “rape of a child may be completed within three months” under this subsection shall be replaced with the words, letters, and figures “an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code shall be completed within two months”. 

Section 173(2) CrPC

(i) It states that the police authorities, after having completed the investigation, should  submit the report to the Magistrate, who has been empowered to take cognizance of the offence. The report must be submitted in a way that is already prescribed by the State Government. It shall contain the following things:

  • The names of all those parties involved in the case;
  • The nature of the information regarding the matter;
  • The names of those persons who are familiar with the facts and circumstances of the case;
  • If an offence seems to have been committed, and if so, then details of those who might have committed the said offence;
  • If the person accused of committing the offence has been arrested;
  • If the accused has been released on bond, with or without sureties;
  • If the accused has been forwarded into custody as per Section 170;
  • If it relates to any offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or Section 376E of the Indian Penal Code, 1860, then whether the medical examination report of the victim has been attached or not;

(ii) This subsection states that the police officer must inform the person, if any, who had initially given the information about the occurrence of an offence, about actions taken by him regarding the information, in such a way that the State Government  may specify. 

Section 173(3) CrPC

As per this section, if a Superior Official of the Police has been appointed for a case under Section 158, the report must be submitted by such official to the Court, if the State Government has directed so by general or special direction. If there is no direction from the State Government, the Investigating Officer may submit the report. The superior officer of police is empowered to direct the Investigating Officer for further investigation, even if such an order is not passed by the Magistrate. 

Section 173(4) CrPC

It states that in case the magistrate finds from the report that the accused has been released on his bond, the Magistrate can make such a discharge order of that bond, if he deems fit. 

Section 173(5) CrPC

It lays down the procedure for preparing reports in cases that come under the purview of Section 170. It is the duty of the police officer to give the following details to the Magistrate along with the report:

  • All other documents or relevant facts and evidence on which the prosecution proposes to rely on apart from all the information that has already been sent to the Magistrate previously at the time of investigation;
  • When the police have recorded statements of people under Section 161 and the prosecution is willing to examine those people. The police must forward those statements to the magistrate.

The types of documents this provision anticipates are usually reports on post-mortem examinations, handwriting experts, chemical examiners, fingerprint experts, etc. The accused is also allowed to ask for the recordings of the statements of those persons from the police officer who were questioned during the investigation and use relevant information as his defence.

Section 173(6) CrPC

It deals with those matters where the police officer does not disclose any part of a statement made by those who are examined during the investigation because it is immaterial to the subject matter of the case or disclosing it to the accused is not necessary in the interests of justice and is detrimental to the public interest. In such a situation, the police officer shall specify the portion and attach a note requesting the Magistrate not to include those portions in the copies to be given to the accused and expressing his reasons for such a request. 

Section 173(7) CrPC

It states that if the police officer, while investigating a case, thinks it appropriate to do so, he can provide the accused with copies of all or any documents that are mentioned in sub-section (5) of Section 173.

Section 173(8) CrPC

This subsection says that if the police submit a police report or a charge-sheet to the Magistrate under sub-section (2) of this Section, it will not prevent them from investigating further into that matter. While investigating further, if the police officer gets any new oral or documentary evidence, he shall make a report on it in the prescribed format and send it to the Magistrate. That report can be stated as a supplementary report or supplementary charge sheet or additional challan.

In the case of Luckose Zachariah v. Joseph Joseph (2022), it was observed by the Supreme Court that the Magistrate, while deciding whether the accused person has committed a particular offence or not for which he was taken into custody, must take into consideration the police report filed before him under Section 173(2) and at the same time go through the supplementary charge-sheet. The supplementary charge-sheet is also known as additional challan. The Magistrate needs to take into account the evidence that was submitted along with or before the charge-sheet (challan) as well as the evidence submitted along with the supplementary report (additional challan) of the further investigation.

In the case of CBI v. Hemendhra Reddy (2023), the Supreme Court observed that nothing bars the conduct of further investigation into a matter under Section 173(8) after the submission of the final report under Section 173(2) that the court has already accepted. It was also made clear that the principle of double jeopardy will not be applicable for further investigation as it is a mere continuation of the initial investigation. Double jeopardy means that a person cannot be prosecuted twice for the same offence. It does not mean that the accused is investigated twice for the same offence. Investigation is totally different from prosecution and punishment. Hence, it is not on par with prosecution. It was further stated that the court has no obligation to hear the accused while taking into consideration the application for further investigation under Section 173(8).

Reasons for the incorporation of Section 173(8)

Sub-section (8) was incorporated to uphold justice and protect innocent people from getting punished. It happens at times that after the submission of the police report, they get new evidence that shows the accused person is not guilty. So to avoid injustice for the innocent accused, this Section is used to reopen an investigation if it seems that the accused is innocent. It gives the police the power to further investigate a matter for the collection of new evidence and then hand it over to the court so as to avoid unfair prosecution. Its copies are furnished to the accused.

This Section deals with the power of the police for further investigation only. No power to a fresh investigation or re-investigation is given to the police officer. Further investigation means the continuation of a previous investigation, not a new or fresh one. It means getting more evidence in addition to the previous ones. After conducting further investigation, a further report is forwarded to the Magistrate, not a new one. The police start to investigate further in case they find something new in connection with the offence that has been committed, on the basis of which a police report was made.

What the Magistrate can do when a chargesheet is submitted

When a charge-sheet is submitted stating a crime has been committed, the Magistrate can proceed in the following three ways-

(i) When the Magistrate accepts the charge-sheet

Criminal litigation

The Magistrate can accept the charge-sheet and take cognizance of the offence. Section 190 of the Code of Criminal Procedure, 1973, states that any first-class Magistrate and only those of the second-class Magistrate who are specially empowered by the Chief Judicial Magistrate to deal with such cases, can take cognizance of any offence under Section 190(2)-

  • Upon personal complaint of facts constituting an offence;
  • Upon a police report of such facts constituting an offence submitted by the police officer;
  • Upon receiving information from a person apart from a police officer, or suo moto upon his own knowledge of the commission of such an offence.

(ii) When the Magistrate rejects the charge-sheet

The Magistrate can reject the charge-sheet and drop the proceeding. In such a situation, the aggrieved party or the complainant may submit a protest petition before the concerned Magistrate if the police report does not seem satisfactory to him. The aggrieved party may do the following things-

  • He may state the reasons in the protest petition why he is dissatisfied with the police report.
  • He may pray for further investigation under the supervision of the Magistrate.
  • He may also pray for further proceedings under Section 200 and Section 202 of the Code of Criminal Procedure, 1973.

(iii) When the Magistrate directs further investigation under Section 156(3)

The Magistrate is given the authority to direct any investigation of a cognizable offence under Section 156(3) after taking cognizance of a matter under Section 190 of the Code of Criminal Procedure, 1973. If a police officer fails to properly investigate a matter, then the Magistrate who has the competency to take cognizance of that case can direct the investigation. The Judicial Magistrates are empowered to take cognizance of cognizable offences, not the Executive Magistrates.

What the Magistrate can do when a final report is submitted

When a final report is submitted stating no offence seems to have been committed, the Magistrate can proceed in the following three ways-

(i) The Magistrate can accept the final report

When the investigating officer submits the final report under Section 173, the Magistrate can accept the final report. If the Magistrate agrees with the final report of the police officer and its  conclusion, he can drop the proceeding.

(ii) The Magistrate can reject the final report

When the investigating officer submits the final report under Section 173, the Magistrate can reject the final report presented to him and take cognizance of the offence under Section 190(1)(b) of the Code of Criminal Procedure. If the Magistrate is not satisfied with the conclusion of the investigation, he is not bound to accept it. If the Magistrate is satisfied with the facts of the case and sees sufficient grounds to take cognizance of the case, he can proceed further to the trial stage.

Discretionary power of the Magistrate

  • It is within the discretionary power of the Magistrate to accept or reject the final report submitted to him by the police officer.
  • The Magistrate, at his discretion, can disagree with the report and reject it and may take cognizance of an offence based on other documents and evidence submitted to him or annexed to the police report.

(iii) The Magistrate can direct further investigation

The Magistrate can direct the investigating officer to further investigate the matter if he is satisfied that the investigation was made in a casual manner and that it needs thorough and proper investigation. The Magistrate may direct further investigation under Section 156(3). The Magistrate is empowered to exercise his power to investigate further into a matter under this section even after the final report is filed by the investigating officer. In short, the Magistrate may not agree with the conclusion made by the investigating officer in the final report and order for further investigation. 

What a Magistrate can do when a protest petition has been filed 

When the protest petition has been filed, the Magistrate can proceed in the following three ways-

(i) The Magistrate can reject the protest petition

The Magistrate may approve the police report submitted by the police officer and may reject the protest petition filed by the aggrieved party. He may agree with the opinion of the investigating officer and accept the final report.

(ii) The Magistrate can accept the protest petition

The Magistrate may approve the protest petition, reject the final report, and take cognizance of the offence in accordance with Section 190 of the Code of Criminal Procedure. He may disagree with the opinion of the investigating officer and at once summon the accused who has committed the offence, as can be concluded from the materials collected during the investigation.  

(iii) The Magistrate can treat the protest petition as a complaint petition

The Magistrate may, before approving the final report, issue a notice to the complainant. If the complainant files a protest petition against the final report, the Magistrate may treat it as a complaint petition and process the protest petition in accordance with the provisions laid down in Chapter XV of the Criminal Procedure Code.

(iv) The Magistrate can direct further investigation after the protest petition is filed

When the complainant is informed, he can file a protest petition with proper justification for why he is filing it. He can bring to notice that the investigation was not done in accordance with the provisions of the law. If the Magistrate is satisfied with the reasons of the complainant, he can direct further investigation into the matter.

Relevant judicial pronouncements with respect to Section 173 CrPC 

  • In the case of Samaj Parivartana Samudaya v. State of Kerala (2012) 7 SCC 407, the Supreme Court of India held that if the police officer who is in charge of an investigation of a case gets further information or evidence, it is obligatory for him to forward it to the Magistrate with a supplementary report in the prescribed format. It was also observed that re-investigation is not permissible, but further investigation is not prohibited. The police officer can investigate further after filing the charge sheet. Further investigation is necessary for discovering the truth and serving effective justice to the public. It won’t be stopped just because it is delaying the process of concluding the trial. The police officer has a statutory right to further investigate a matter under Section 173(8), though it’s up to the Magistrate whether to agree or disagree with the report presented to him.
  • In the case of Vinubhai Haribhai Malviya & Ors v. State of Gujarat & Another (2019) 17 SCC, the High Court’s judgement was set aside by the Supreme Court. An FIR was filed on the ground that the legal heirs of Vinubhai have hatched a conspiracy by forging a power-of-attorney in respect of the land in Surat due to a price hike. The accused had tried to take the land from the legal owners of the land. The Apex Court was of the opinion that the Magistrate can use his power under Section 156(3) of the Code of Criminal Procedure even in the post-cognizance stage of a case. Hence, the Court passed a decree stating that the Magistrate can direct for further investigation in a case before going to the trial stage as per Section 173(8) read with Section 156(3) and Section 2(h) of the Code of Criminal Procedure, 1973, even after having the police report of an investigation.
  • In the case of Sri Desaraju Venugopal v. Central Bureau of Investigation (2021), the Delhi High Court observed that Section 173(8) of the Code of Criminal Procedure gives the investigating agency or police officer who is in charge of a particular case an unfettered power to investigate in a matter even after submission of the charge-sheet or the report without any conditions or restrictions. It is not compulsory for the investigating agency to obtain previous permission from the Magistrate for further investigation. It was also stated that just because any evidence is filed at the trial stage (i.e., after the submission of the police report) does not mean that it can be rejected. The power to further investigation is a statutory right of the officer-in-charge of a case. 
  • In the case of Bhagwant Singh v. Commissioner of Police and another (1985), it was observed that notwithstanding the First Information Report (FIR), in case the police officer decides not to investigate the matter because it seems to him that sufficient grounds are not available for investigating, he is required to inform the complainant under Section 157(2). It is his duty to communicate his actions about the matter to the complainant, and the report that he has submitted to the Magistrate must be given to the complainant. After getting the report from the police officer, where it is concluded that a crime has been committed, the Magistrate can either approve the report and take cognizance of the case, reject the report and drop the proceeding, or order further investigation under Section 156(3) and submit the further report to him. If, on the other hand, the report states no offence has been committed, the Magistrate can either approve the report and drop the proceeding, or may disagree with the report and take cognizance of the matter and proceed further on the availability of sufficient grounds, or order to investigate further under Section 156(3). The Supreme Court stated that the complainant must be given an opportunity to be heard by the Magistrate while considering the report. 
  • In the case of State Of Bihar And Anr v. J.A.C. Saldanha And Ors. (1980), the Supreme Court stated that the Magistrate power to investigate further under Section 156(3) is in no way in conflict with the State Government’s power. It is the independent power of the Magistrate to direct further investigation if any cognizable offence has been committed. This power can be exercised by him even after the investigating officer files the final report. The Magistrate, at his discretion, can either approve the report or order further investigation. 

Conclusion 

Any case begins on the basis of the police report filed under Section 173 CrPC, which deals with all the evidence and information that have been discovered by the police while investigating a matter. It contains all the facts and list of evidence that are forwarded to the Magistrate for a particular proceeding. It also states what the police concluded was the end result of the investigation. The report is transferred to the Magistrate who has the jurisdiction to proceed with the case and discretion to dismiss it after going through the police report. The police officer does not have the authority to decide whether enough evidence is available in a particular case to proceed to the trial stage. 

Frequently asked questions (FAQs)

What is a protest petition?

The protest petition is submitted by the complainant or an aggrieved person when he is not satisfied with the police report that is submitted by the police officer to the Magistrate, and the person may file a petition against the police report. This petition is termed a protest petition. It is nowhere defined in the Code. In short, it is an objection submitted against the final report.

When does the Magistrate order further investigation?

The Magistrate orders further investigation mainly on the basis of the protest petition filed by the informant against the police report that is submitted by the police in court under Section 173(2) of the Code of Criminal Procedure, 1973.

Whether the Magistrate can start an investigation suo moto?

It is not a discretionary power of the Magistrate to suo moto give instructions for further investigation in a criminal case as per Section 173(8) of the Code of Criminal Procedure, 1973.

Who can cancel, stop, or proceed further with the report?

When any report is submitted under Section 173(2), the Magistrate can exercise his power to cancel, stop, or proceed with the report. The police or the investigating authorities are not empowered to do so. Only the competent court with appropriate jurisdiction can deal with the case and can cancel, stop, or proceed further with the matter. 

Does the Investigating Officer need to get formal permission from the Magistrate to carry out further investigation?

It is not mandatory to get formal permission from the Magistrate to carry out further investigation. The law does not make it compulsory to obtain prior permission from the Magistrate for further investigation.

Can the Investigating Officer initiate further investigation without the order of the Court?

The Supreme Court stated that further investigation in any case can be initiated only with the court’s order where the final report has already been submitted. The Investigating Officer has no power to do it. The Supreme Court observed this in the case of Peethambaran v. State of Kerala & Anr. (2023).

References 

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