Holding

After cognizance and bail, police remand cannot be ordered under Section 167(2); the appropriate provision is Section 309(2), and the High Court’s remand order is set aside.

Summary

The appellants were charged with multiple offences arising from an incident in August 2002 and were initially remanded to police custody under Section 167(2) of the Cr.P.C. After a charge‑sheet was filed, the Sessions Court took cognizance and the High Court granted them bail. A Special Investigation Team (SIT) was later constituted and sought further police remand of the accused despite the bail, invoking Section 167(2). The High Court ordered the remand, but the Supreme Court held that once cognizance is taken, the power to remand under Section 167(2) ceases and only Section 309(2) may be invoked, and that bail cannot be overridden without proper grounds. The Court distinguished ‘further investigation’ from ‘re‑investigation’, emphasized that the statutory power of remand is limited to the pre‑cognizance stage, and set aside the High Court’s order, allowing the appeal.

Issues considered

Whether police remand can be ordered under Section 167(2) of the Cr.P.C. after cognizance of the offence has been taken and bail has been granted.
Whether a change of investigating agency (to a Special Investigation Team) permits further police custody of the accused.
Distinction between ‘further investigation’ and ‘re‑investigation’ under Section 173 of the Cr.P.C.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 173(8), s. 309(2), s. 437(5), s. 439(2)
Constitution of Indias. Article 142, s. Article 226, s. Article 32

Subjects

police remandSection 167Section 309bailcognizancefurther investigationSpecial Investigation Teamconstitutional article 142criminal procedure

Judgment

[2009] 7 S.C.R. 1126

A MITHABHAI PASHABHAI PATEL AND OTHERS
V.
STATE OF GUJARAT
Criminal Appeal No. 941 of 2009
MAY 06, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Code of Criminal Procedure, 1973:
-f '
ss. 167, 309 - Power of remand - Held: The Court can
c exercise power of remand u/s. 167(2) when investigation is
not complete - Once chargesheet is filed and cognizance of
offence is taken, Court cannot exercise its power uls. 167(2)
and then s.309(2) is attracted - On facts, appellant were
granted bail - They could not be taken into custody ordinarily
unless their bail was cancelled - High Court was not correct in
D
holding that as further investigation was required, s.167(2)
gives ample power for grant of police remand - Constitution
of India, 1950 - Article 142.
The question which arose for consideration in the
E present appeal is whether with the change- of an
investigating authority, police custody of the accused on
remand can be sought for, although cognizance of the
offence had already been taken.
r
Allowing the appeal, the Court
F '
HELD: 1. Indisputably the investigating agency in
terms of sub-section (8) of Section 173 Cr.P.C. can pray
before the Court and may be granted permission to
investigate into the matter further. There are, however,
G certain situations, where such a formal request may not
be insisted upon. It is beyond any cavil that 'further
investigation' and 're-investigation' stand on different
footing. It may be that in a given situation a superior court
in exercise of its _constitutional power, namely under
H 1126
MITHABHAI PASHABHAI PATEL AND OTHERS V 1127
STATE OF GUJARAT

Articles 226 and 32 of the Constitution of India could direct A
a 'State' to get an offence investigated and/or further
investigated by a different agency. Direction of a re-
investigation, however, being forbidden in law, no
superior court would ordinarily issue such a direction.
[Paras 16, 17] [1133-E-H] B
Ramachandran v. .R. Udhayakumar (2008) 5 SCC 413;
Nirmal Singh Kah/on v. State of Punjab (2009) 1 SCC 441 -
retied on.
2. The investigating agency and/or a court exercise c
their jurisdiction conferred on them only in terms of the
provisions of the Code. The courtS subordinate to the High
Court even do not have any inherent power under Section
482 Cr.P.C. or otherwise. The pre-cognizance jurisdiction
to remand vested in the subordinate courts, therefore,
must be exercised within the four-corners of the Code. D
[Para 21] [1134-F-H]
3. The power of remand in terms of the Section 167
is to be exercised when investigation is not complete.
Once charge-sheet is filed and cognizance of the offence E
is taken, the court cannot exercise its power under sub-
section (2) of Section 167 of the Code. Its power of remand
can then be exercised in terms of sub-section (2) of
Section 309. [Para 22] [1136-D-G] ·
4. Appellants were granted bail. They were not in F
custody of the court. They could not be taken in custody
ordinarily unless their bail was cancelled. The High Court
was not correct in holding that as further investigation
was required, sub-section (2) of Section 167 of the Code
gives ample power for grant of police remand. The G
distinction between the power of remand in terms of sub-
section (2) of Section 167 and sub-section (2) of Section
309 of the Code is apparent. [Paras 23, 24] [1137-E-G]
Raghubir Singh and oth.ers v. State of Bihar (1986) 4 H
1128 SUPREME COURT REPORTS [2009] 7 S.C.R.

A SCC 481; CBI v. Anupam J. Kulkarni (1992) 3 SCC 141; State
v. Dawood Ibrahim Kaskar
AIR (1997) SC 2494; Dinesh Oalmia v. CBI, (2007) 8
SCC 770; Rama Chaudhary v. State of Bihar (2009) 5 SCC
366 - relied on.
8
5. The Special Investigating Team already submitted
its report to this Court. Nothing was pointed out as to why
even the bail granted to the appellants should be cancelled
so as to consider that question independently. No ~

sufficient or cogent material was placed on record by the f
c
State or the Special Investigating Team in this behalf.
..
[Paras 26, 27] [1141-C-F]
6. In the peculiar facts and circumstances of the case,
in exercise of jurisdiction under Article 142 of the
D Constitution of India, the interim direction is made
absolute subject to any other or further orders that may
be passed by the Sessions Judge till an additional charge
sheet, if any, is filed by the Special Investigating Agency
before the Sessions Judge. [Para 29] [1141-F•G]
E Case Law Reference
(2008) s sec 413 relied on Para 17
(2009) 1 sec 441 relied on Para 20

F (1986) 4 sec 481 relied on Para 20 • ''
(1992) 3 sec 141 relied on Para 20
AIR (1997) SC 2494 relied cm Para 20
(2007) 8 sec 110 relied on Para 20
G
(2009) s sec 366 relied on Para 20
,._
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 941 of 2009
From the Judgment and Order dated 05.09.2008 passed
H
MITHABHAI PASHABHAI PATEL AND OTHERS V 1129
STATE OF GUJARAT

by the Hon'ble High Court of Gujarat atAhmedabad in Criminal A
Revision Application No. 482 of 2008.
__,,.-. Nikhil Goel, Sayid M. Bakli, Sheela Goel, for the Appellant.
K. Enatoli Serna, Hemantika Wahi, for the Respondent.
The Judgment of the Court was delivered by B

S, B. SINHA, J.
Leave granted.

- 1. Whether with the change of an investigating authority,
police custody of the accused on remand can be sought for,
although cognizance of the offence had already been taken, is
c

the question involved herein.
1
2. It arises out of a judgment and order dated 5 h
September, 2009 passed by the High Court of Gujarat at D
Ahmedabad in •
Criminal Revision
. rd
Application No.482 of 2008
Setting aside an order dated 23 May, 2008 passed by the
learned Second Additional Sessions Judge, Himatnagar in
Sessions Case No.70 of 2002.
3. Shorn of all unnecessary details the fact of the matter is E
as under:-
Appellants had been prosecuted for commission of an
offence under Sections 302/307/395/396/397/201/435/324/ ·
143/147/148/149/153-A/341/ 337/427 and 120-8 of the Indian F
Penal Code as also under Section 135 of the Bombay Police
Act.
4. The occurrence in which the appellant is involved is said
to have taken place on 20th August, 2002 at Vadvasa Patia
Village near Prantij. A first information report was lodged on the G
~ same date. During course of investigation all the six appellants
were arrested.
5. Indisputably, they were remanded to police custody in
terms of sub-section (2) of Section 167 of the Code of Criminal H
1130 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Procedure, 1973 (hereinafter referred to as 'the Code'). Upon
completion of investigation, a charge sheet was submitted. The r
matter was committed to the Sessions Court. Cognizance of
the offence was taken by the Sessions Judge. They were granted ·~
bail by the High Court by an order dated 30th August, 2003.
B 6. The matter, however, came up before this Court. A Bench
of this Court by an order dated 26th March, 2008 passed by in
Writ Petition (Crl.) No. 109 of 2003 appointed a Special
Investigation Team. Pursuant to or in furtherance of the said
'(
direction the State of Gujarat issued a Notification on 1st April,
c 2008 constituting a Special Investigation Team to investigate
into cases arising out of Godhra incident and communal riots
erupted thereafter in the year 2002.
-
In terms of the said Notification the SIT could work out the
modalities and the norms required to be followed for the purpose
D
of inquiry/investigation including further investigation.
7. An application was filed on or about 22"d May, 2008 by
one Himanshu Shukla, Assistant Superintendent of Police,
"
seeking remand of the accused for a period of 14 days. The
E reasons assigned therefor were that that offences under some
provisions were added and investigation with respect to the said
offences from the accused could not be carried out therefor in
respect of certain points mentioned therein.
8. By reason of a judgment and order dated 23ro May, 2008
F the said application was rejected by the learned Sessions Judge,
,..
·-
relevant portion whereof which reads as under:-
".... However at present, this Court cannot entrust the
physical custody of accused to the Special Investigation
Team for custodial interrogation because in the presence
G
offence, the Hon'ble Gujarat High Court had granted regular
bail vide Criminal Miscellaneous Application No.4115/ \.

2002 dated 30/08/2002 and in that bail order imposed
certain conditions. Hence without getting cancelled the
said regular bail granted by the Hon'ble High Court, this
H
MITHABHAI PASHABHAI PATEL AND OTHERS V 1131
STATE OF GUJARAT [S.B. SINHA, J.]

court cannot grant Police remand as the present accused A
are on bail, hence first of all Special Investigation Team is
required to resort the Hon'ble High Court for cancellation
of said bail order for Police custody for the purpose of
further investigation as directed by the Hon'ble Highest
Court of our Land. B
14. Therefore, applicant-member of Special Investigation
Team directed to approach the Hon'ble High Court to set aside/
,' cancel the said regular bail order passed by the Hon'ble High
i Court.
c
15. It is pertinent to note that Police remand can be granted
only by the committal court. Therefore, after getting cancellation
of bail order, applicant-member of Special Investigation Team
is also directed to first of all approach the learned Judicial
Magistrate First Class Prantij-committal court for Police custody
D
in the present case because this court is a Sessions Court not
) competent to grant remand order unless and until that prayer is
rejected by Magistrate."

9. Respondent preferred a revision application
thereagainst before the High Court. By reason of the impugned E
judgment the High Court reversed the decision of the Sessions
Judge and directed that the appellants be remanded to custody.
'

10. Mr. Nikhil Goel, learned counsel appearing on behalf
of the appellants would contend that having regard to the
provisions contained in Section 167(2) as well Section 309(2) F
of the Code the impugned judgment cannot be sustained.
11. Ms. K. Enatoli Serna, learned coun.sel appearing on
behalf of the respondent-State, on the other hand, urged that ·
keeping in view the special facts and circumstances of this case,
G
the order of the High Court should not be interfered with ....
~

12. The short question which arises for consideration is
whether in the facts and circumstances of the case the High
Court was correct in directing custodial remand of the
appellants. ' H
1132 SUPREME COURT REPORTS [2009) 7 S.C.R.

A 13. The High Court in support of its order opined :
"'
a) Having regard to the constitution of the Special
Investigating Team, further investigation is required
to be made and Section 167(2) of the Code gives
ample power for further investigation.
-
8
b) Further investigation is required to be made in the
facts and circumstances of the case as earlier
investigation was carried out in a most perfunctory
manner.
...
c c) Since new sections are added, further enquiry/
investigation would be required to be conducted in
the matter and the investigating agency cannot be
denied such a right and to have the custody of the
appellants. For the said purpose, the fact that the
D appellants had been granted bail would be of no
relevance.

d) Section 167 (2) and not the proviso appended to
•
Section 309 (2) of the Code would be applicable in
a case of this nature.
E
e) As the Special Investigating Team has the power to
reinvestigate, it is not necessary to seek for
cancellation of bail.
,...
f) The committal order having been passed, the
F Sessions Judge should have exercised its jurisdiction
·under Section 397 of the Code.
14. By an order. dated 22"d September, 2008 this Court
directed as under :-
G "Application for exempting from filing O.T. is allowed.

Issue notice.
Till further orders, further investigation by Special
Investigation Team may proceed. However, the petitioner
H may be summoned by the Special Investigation Team
MITHABHAI PASHABHAI PATEL AND OTHERS V 1133
STATE OF GUJARAT [S.B. SINHA, J.]

•appointed by this Court on the days fixed by it without A
-1 taking the petitioners into custody and their interrogation

.
.... shall be done only during day time. One or more members
of the Special Investigation Team only would interrogate
the petitioners and nobody else."

15. It is stated at the Bar that pursuant to the said order B
appellants had appeared before the concerned Sessions Judge
as also the Special Investigating Team. They had visited Police
1
Station, Prantij on 13 hSeptember, 2008 and submitted a written
,~

1 representation expressing their willingness to cooperate with
the further investigation by the Special Investigating Team but c
they were not examined. Their presence, however, was required
th th
on 14 September, 2008 wherefor a letter dated 12
th
September, 2008 was sent by fax on 13 September, 2008.
Ap~ellants appeared before the Sessions Judge and the on
14t September, 2008 and the matter was adjourned to 22"d D
September, 2008. They visited the police station also on 14th
th
i and 15 September, 2008.
16. This Court while passing the order in exercise of its
jurisdiction under Article 32 of Constitution of India did not direct
re-investigation. This court exercised its jurisdiction which was E
within the realm of the Code. Indisputably the investigating
agency in terms of sub-section (8) of Section 173 of the Code
can pray before the Court and may be granted permission to
·": investigate into the matter further. There are, however, certain
situations, where such a formal request may not be insisted F
upon.
17. It is, however, beyond any cavil that 'further investigation'
and 're-investigation' stand on different footing. It may be that in
a given situation a superior court in exercise of its constitutional
G
power, namely under Articles 226 and 32 of the Constitution of
~· India could direct a 'State' to get an offence investigated and/or
further investigated by a different agency. Direction of a re-
investigation, however, being forbidden in law, no superior could
would ordinarily issue such a direction.
H
1134 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Pasayat, J. in Ramachandran v. R. Udhayakumar, [(2008)
5 sec 413], opined as under :- )-

"7. At this juncture it would be necessary to take note of
Section 173 of the Code. From a plain reading of the
...
above section it is evident that even after completion of
B investigation under sub-section (2) of Section 173 of the
Code, the police has right to further investigate under sub-

...
section (8), but not fresh investigation or reinvestigation ... "

18. A distinction, therefore, exists between a re-
c investigation and further investigation.

19. If the investigating authority, in terms of the provisions
of the Code, could not ask for re-investigation, we would have
to proceed on the basis that this Court in its order dated 26th
March, 2008 only directed further investigation.
D
20. We may notice that this aspect of the matter has also
been considered by this Court in Nirmal Singh Kah/on v. State
of Punjab, [ (2009) 1 SCC 441 ], wherein it has been opined:-
"63. The High Court in this case was not monitoring any
E investigation. It only desired that the investigation should
be carried out by an independent agency. Its anxiety, as is
evident from the order dated 3-4-2002, was to see that
the officers of the State do not get away. If that be so, the
submission of Mr. Rao that the monitoring of an
F investigation comes to an end and after the charge-sheet -,.~

is filed, as has been held by this Court in Vineet Narain
and M. C. Mehta (Taj Corridor Scam) v. Union of India,
loses all significance."
21. The investigating agency and/or a court exercise their
G jurisdiction conferred on them only in terms of the provisions of
the Code. The courts subordinate to the High Court even do not ...
have any inherent power under Section 482 of the Code of
Criminal Procedure or otherwise. The pre-cognizance
jurisdiction to remand vested in the subordinate courts,
H therefore, must be exercised within the four-corners of the Code.
MITHABHAI PASHABHAI PATEL AND OTHERS V 1135
STATE OF GUJARAT [S.B. SINHA, J.]

The power to remand, indisputably, is vested in a Magistrate in A
terms of sub-section (2) of Section 167 of the Code which reads
as under:-
"167. Procedure when investigation cannot be completed
in twenty-four hours.
B
(1) ....
(2) The Magistrate to whom all accused person is

- f
forwarded under this section may, whether he has or not
jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such C
Magistrate thinks fit, a term not exceeding fifteen days in
the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded
to a Magistrate having such jurisdiction: D
Provided that-
(a) The Magistrate may authorize the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is satisfied E
that adequate grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused person in
custody under this paragraph for a total period exceeding-
"' (i) Ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or F
imprisonment for a term of not less than ten years;
(ii) Sixty days, where the investigation relates to any other
offence,
And, on the expiry of the said period of ninety days, or G
-,.: sixty days, as the case may be, the accused person shall
be released on bail if he is prepared to and does furnish
bail, and every person released on bail under this sub-
section shall be deemed to be to released under the
provisions of Chapter XXXlll for the purposes of that Chapter; H
1136 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (b) No Magistrate shall authorize detention in any custody
under this section unless the accused is produced before
him;

(c) No Magistrate of the second class, not specially
empowered in this behalf by the high Court, shall authorize
B detention in the custody of the police.

Explanation I. For the avoidance of doubts, it is hereby

c
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained
in Custody so long as he does not furnish bail.
-
Explanation II. If any question arises whether an accused
person was produced before the Magistrate as required
under paragraph (b), the production of the accused person
D may be proved by his signature on the order authorizing
detention."

22. The power of remand in terms of the aforementioned
provision is to be exercised when investigation is not complete.
Once charge-sheet is filed and cognizance of the offence is
E taken, the court cannot exercise its power under sub-section
(2) of Section 167 of the Code. Its power of remand can then be
exercised in terms of sub-section (2) of Section 309 which reads
as under:-

F "309. Power to postpone or adjourn proceedings.
(1) ....
(2) If the court after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
G postpone the commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on such terms
as it thinks fit, for such time as it considers reasonable,
and may by a warrant remand the accused if in custody:

H Provided that no Magistrate shall remand an accused
MITHABHAI PASHABHAI PATEL AND OTHERS V 1137
STATE OF GUJARAT [S.B. SINHA, J.]

person to custody under this section for a term exceeding A
fifteen days at a time:
Provided further that when witnesses are in attendance
no adjournment or postponement shall be granted, without
examining them, except for, special reasons to be
recorded in writing: B
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show
cause against the sentence proposed to be imposed on
him. c
Explanation-1. If sufficient evidence has been obtained to
raise a suspicion that the accused may have committed
an offence, and it appears likely that further evidence may
be obtained by a remand, this is a reasonable cause for
aremand. D
Explanation 2. The terms on which an adjournment or
postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the
accused."
E-
23. Appellants had been granted bail. They are not in
custody of the court. They could not be taken in custody ordinarily
unless their bail was cancelled. The High Court, in our opinion,
was not correct in holding that as further investigation was
required, sub-section (2) of Section 167 of the Code gives ample F
power for grant of police remand.
24. The distinction between the power of remand in terms
of sub-section (2) of Section 167 and sub-section (2) of Section
309 of the Code is apparent.
G
25. We may notice a few precedents in this behalf:-
' In Raghubir Singh and others v. State of Bihar, [(1986) 4
SCC 481], this Court held :-
"22. The result of our discussion and the case-law is this: H
1138 SUPREME COURT REPORTS [2009) 7 S.C.R.

A An order for release on bail made under the proviso to
Section 167(2) is not defeated by lapse of time, the filing
of the charge-sheet or by remand to custody under Section
309(2). The order for release on bail may however be
cancelled under Sect_ion 437(5) or Section 439(2).
B Generally the grounds for cancellation of bail, broadly, are,
interference or attempt to interfere with the due course of
administration of justice, or evasion or attempt to evade
the course of justice, or abuse of the liberty granted to
him. The due administration of justice may be interfered
c with by intimidating or suborning witnesses, by interfering
with investigation, by creating or causing disappearance
of evidence etc. The course of justice may be evaded or
attempted to be evaded by leaving the country or going
underground or otherwise placing himself beyond the
reach of the sureties. He may abuse the liberty granted to
D
him by indulging in similar or other unlawful acts. Where
bail has been granted under the proviso to Section 167(2)
for the default of the prosecution in not completing the
investigation in 60 days, after the defect is cured by the
filing of a charge-sheet, the prosecution may seek to have
E the bail cancelled on the ground that there are reasonable
grounds to believe that the accused has committed a non-
bailable offence and that it is necessary to arrest him and
commit him to custody. In the last mentioned case, one
would expect very strong grounds indeed."
F
Yet again in CBI v. Anupam J. Kulkarni, [ (1992) 3 SCC
141], K. Jayachandra Reddy, J. speaking forthe Bench held as
under:-
"We may, however, like to make it explicit that such re-
G arrest or second arrest and seeking police custody after
the expiry of the period of first fifteen days should be with ,.
regard to the investigation of a different case other than
the specific one in respect of which the accused is already
in custody. A literal construction of Section 167(2) to the
H effect that a fresh_ remand for poli·ce custody of a person
MITHABHAI PASHABHAI PATEL AND OTHERS V 1139
STATE OF GUJARAT [S.B. SINHA, J.)

already in judicial custody during investigation of a specific A
'I case cannot under any circumstances be issued, would
seriously hamper the very investigation of the other case
the importance of which needs no special emphasis. The
procedural law is meant to further the ends of justice and
not to frustrate the same. It is an accepted rule that an B
interpretation which furthers the ends of justice should be
preferred. It is true that the police custody is not the be-all
and end-all of the whole investigation but yet it is one of its
primary requisites particularly in the investigation of serious
-1 and heinous crimes. The legislature also noticed this and c
permitted limited police custody. The period of first fifteen
days should naturally apply in respect of the investigation
of that specific case for which the accused is held in
custody. But such custody cannot further held to be a bar
for invoking a fresh remand to such custody like 12olice
D
custody in res12ect of an altogether different case involving
the same accused.
' [Emphasis supplied]
We may also notice that.in State v. Dawood Ibrahim Kaskar,
[AIR 1997 SC 2494 ], a Three Judge Bench held as under:- E

"The manner in which a p.erson arrested during
investigation has to be dealt with by the Investigating
Agency, and by the Magistrate on his production before
him, is provided in Section 167 of the Code. The said F
section contemplates that when the investigation cannot
be completed within 24 hours fixed by Section 57 and
there are grounds to believe that the charge levelled against
the person arrested is well founded it is obligatory on the
part of the Investigation Officer to produce the accused G
before the nearest Magistrate. On such production the
'¥ . Magistrate may authorise the detention of the accused
initially for a term not exceeding 15 days either in police
•
custody, or in judicial custody. On expiry of the said period
of 15 days the Magistrate may also authorise his further

-
H
1140 SUPREME COURT REPORTS [2009] 7 S.C.R. •

A detention otherwise than in police custody if he is satisfied
that adequate grounds exist for such detention."

This Court in Dinesh Dalmia v. CBI, [ (2007) 8 SCC 770],
opined:-

B "38. It is a well-settled principle of interpretation of statute
that it is to be read in its entirety. Construction of a statute
should be made in a manner so as to give effect to all the
provisions thereof. Remand of an accused is contemplated
by Parliament at two stages; pre-cognizance and post-
c cognizance. Even in the same case, depending upon the r·
nature of charge-sheet filed by the investigating officer in
terms of Section 173 of the Code, a cognizance may be
taken as against the person against whom an offence is
said to have been made out and against whom no such
offence has been made out even when investigation is
D
pending. So long a charge-sheet is not filed within the
meaning of sub-section (2) of Section 173 of the Code,
· investigation remains pending. It, however, does not
preclude an investigating officer, as noticed hereinbefore,
to carry on further investigation despite filing of a police
E report, in terms of sub-section (8) of Section 173 of the
Code."

In Rama Chaudhary v. State of Bihar, [2009 (5) SCC 366],
it was held:
F "9. The above said provision also makes it clear that further
investigation is permissible, however, reinvestigation is
prohibited. The law does not mandate taking of prior
permission from the Magistrate for further investigation.
Carrying out a further investigation even after filing of the
G charge-sheet is a statutory right of the police.
Reinvestigation without prior permission is prohibited. On'.
the other hand, further investigation is permissible.
10. From a plain reading of Sub-section (2) and Sub-
section (8) of Section 173, it is evident that even after
H
MITHABHAI PASHABHAI PATEL AND OTHERS V. 1141
STATE OF GUJARAT [S.B. SINHA, J.]

submission of police report under Sub-section (2) on A
completion of investigation, the police has a right to "further"
investigation under Sub-section (8) of Section 173 but not
"fresh investigation" or "reinvestigation". The meaning of
"Further" is additional; more; or supplemental. "Further"
investigation, therefore, is the continuation of the earlier B
investigation and not a fresh investigation or reinvestigation
to be started ab initio wiping ou't the earlier investigation
altogether. Sub-section (8) of Section 173 clearly
envisages that on completion of further investigation, the
investigating agency has to forward to the Magistrate a C
"further" report and not fresh report regarding the "further''
evidence obtained during such investigation.

26. Furthermore in this case the Special Investigating Team
has already submitted its report to this Court. Nothing has been
pointed out before us as to why even the bail granted to the D
appellants should be cancelled so as to enable us to consider
that question independently.
27. No sufficient or cogent material has been placed on
record by the State or the Special Investigating Team in this
be halt E

28. For the reasons aforementioned the impugned
judgment cannot be sustained which is set aside accordingly.
, The appeal is allowed.

29. We, however, in the peculiar facts and circumstances F
of this case, in exercise of our jurisdiction under Article 142 of
the Constitution of India, make the interim direction absolute
subject to any other or further orders that may be passed ~y the
Sessions Judge till an additional charge sheet, if any, is filed by

-
-; the Special Investigating Agency before the learned Sessions G
Judge.

D.G. Appeal allowed.