1 2025:CGHC:8845-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 238 of 2025 1 - Union Of India Through National Investigation Agency, Sector 24, Atal Nagar, Naya Raipur, Raipur, C.G. ... Appellant(s) versus 1 - Santosh Gupta S/o Ram Kumar Gupta Aged About 36 Years R/o Sanjay Para, Bhairamgarh, Bijapur, Chhattisgarh. 2 - Prince Sharma S/o Ram Gopal Sharma Aged About 35 Years R/o Bijapur, Chhattisgarh. 3 - Vijay Sahu S/o Umakant Sahu Aged About 34 Years R/o Amaguda, Lalbaag, Jagdalpur, Chhattisgarh. 4 - Prabhat Mishra S/o Anil Mishra Aged About 19 Years R/o Village Padiwar, District Rewa, Madhya Pradesh. 5 - Rahul Manjhi S/o Inderlal Manjhi Aged About 23 Years R/o Village Tok, District Rewa, Madhya Pradesh. ... Respondent(s) For Appellant(s) : Mr. B. Gopa Kumar, Advocate. For Respondent(s) : None 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 20/02/2025 1. Heard Mr. B. Gopa Kumar, learned counsel for the appellant. None appears on behalf of the respondents. 2. The present criminal appeal has been filed by the Union of India under Section 21(1) of the National Investigation Agency Act, 2008 against the impugned order dated 17.12.2024 passed by learned Special Judge NIA Act/Scheduled Offence) Baster Place Jagdalpur in NIA Case No. 07/2024 whereby the application filed by the appellant under Section 167 of the Cr.P.C. in alternative Section 187 in Bharatiya Nagarik Suraksha Sanhita, 2023 has been rejected. 3. Brief facts of the case are that the respondent Nos. 1 to 5 are the accused persons in the offence of Crime No. 01/2023 registered at Police Station Bhairamgarh District Bijapur for the offence under Section 34 of IPC, Section 25 of the Arms Act and Section 13(1), 38(2) & 39(2) of the Unlawful Activities (Prevention) Act, 1967. 4. The allegation against the present respondent Nos. 1 to 5 in the said offence are that on being suspicion, the Bhairamgarh police has arrested the respondent No. 1 Santosh Gupta and during the personal search, 03 live cartridges were seized from his possession. During the interrogation he disclosed his contract with one Hunga Madkami who is a cadre of Proscribed Terrorist Organization CPI (Maosit) and engaged in arranging arms and ammunitions with the help of present respondent Nos. 2 to 5. From the respondent No. 2, a revolver was seized from his possession and in the investigation it was found that they are engaged in unlawful activities and associated with the Proscribed Terrorist Organization and they 3 extended their support for furthering of activities of the above said banned terrorist organization. The connection of the respondent Nos. 4 and 5 were also found and they have also been arrested and after investigation charge-sheet was filed against all the 5 accused persons on 07.07.2023 before the learned Second Additional Sessions Judge, Dantewada with a prayer to continue further investigation under Section 173(8) of the Cr.P.C. 5. Considering the gravity of the offence and security ramifications, the Central Government had issued an order on 23.08.2023 while exercising its powers under Section 6 (5) read with Section 8 of the NIA Act and the NIA had re-registered the said FIR as RC No. 01/2023/NIA/RPR on 24.08.2023. The National Investigation Agency had filed a transfer petition before this Court vide TPCR No. 08/2024 and the case was transferred to the NIA Special Court at Jagdalpur Court from learned Second Additional Sessions Judge, Dantewada. 6. During the further investigation, two more accused persons namely Sudhir Kumar Tripathi and Suraj Nisad were arrested by NIA on 11.10.2024 and they have also disclosed certain incriminating facts. Therefore, further interrogation of the accused persons, who are in judicial custody, is required in order to bring the necessary information on record against the accused persons to unveil the whole conspiracy in the case. 7. During the course of investigation, the present petitioner/Union of India had filed an application before the learned trial Court under Section 187 of BNSS (167 of Cr.P.C.) for grant of permission to interrogate the present respondent Nos. 1 to 5 /accused persons who are presently in judicial custody. After hearing the parties the learned trial Court, vide its order dated 17.12.2024 rejected the application filed by the petitioner on the ground that permitting the petitioner to interrogate the accused persons would tantamount to re-investigate the case which is not falling under the category of further investigation under Section 173(8) of Cr.P.C. It has also been observed by the learned trial Court in its order that accused persons have already 4 been interrogated and their statement under Section 27 of the Indian Evidence Act have already been recorded, therefore, there is no need to further interrogation of the accused persons and further that the application is filed highly belated and no sufficient explanation for delay have been given by the petitioner. The said order dated 17.12.2024 is under challenge in the present petition. 8. Learned counsel for the petitioner would submit that the learned trial Court has passed the order by recording the finding which are contrary to the law applicable to the case. 9. He would further submits that the respondent Nos. 1 to 5 are required to be re-interrogated with respect to the other co-accused persons who subsequently arrested in the case. From the document annexed with the charge-sheet against the respondent Nos. 1 to 5, it appears that they are hardcore criminals and involved in the Terrorist and Anti National Activities. Two more accused persons have been arrested in the case and further evidence is required against the other accused persons. He would further submits that further investigation within the meaning of the provisions of Section 173(8) of Cr.P.C. is additional, more or supplemental. Further investigation is the continuation of the earlier investigation and not the fresh investigation or re-investigation. The learned trial Court has erred in appreciating the material available in the charge-sheet and also the requirement of further investigation with respect to the other accused persons, therefore, the petitioner may be permitted to interrogate the respondent Nos. 1 to 5 in the process of further investigation. 10. None appears for the respondent Nos. 1 to 5. Vide order dated 04.02.2025 and 13.02.2025, twice the time was granted to the respondent Nos. 1 to 5 / accused persons to engaged a counsel after the notice issued to them and the service report dated 14.02.2025 reveals that the accused persons /respondent Nos. 1 to 5 have been served with the notice and they have been informed about the pendency of the present appeal. Despite that they have not made their appearance and none 5 appears on their behalf to contest the matter. 11. We have heard learned counsel for the appellant and perused the material annexed with the appeal. 12. In the matter of Mithabhai Pashabhai Patel and Others vs. State of Gujarat reported in 2009 (6) SCC 332 in Para 23 the Hon'ble Supreme Court has considered the scope and ambit of further investigation in view of the provisions of Section 173(8) of Cr.P.C. which read as under: 23. In Rama Chaudhary v. State of Bihar, [2009 (5) SCC 366], it was held: "15..... The above said provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. 16.....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 charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. 17.....From a plain reading of Sub-section (2) and Sub-section (8) of Section 173, it is evident that even after submission of police report under Sub- section (2) on 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 investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. 18.......Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further" report and not fresh report regarding the "further" evidence obtained during such investigation." 13. In the matter of Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others reported in 2004 (5) SCC 347 has held in Para 12 and 13 as under: 6 "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 cognizance 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.) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance 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 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 mater 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 on 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." 14. In the present case, the respondent Nos. 1 to 5 are being prosecuted since 07.07.2023 and two other accused persons have been arrested on 11.10.2024. Till that time, the present respondent Nos. 1 to 5 are remained in judicial custody and they cannot be interrogated without permission from the Court. The appellant has filed the application for permission to interrogate the respondent Nos. 1 to 5 in the form of further investigation as the matter requires the same. 15. Considering the facts and circumstances of the case, further considering the nature of allegation and the material produced in the appeal and also considering the aforesaid law laid down by Hon'ble Supreme Court, this Court is of the opinion that there is a scope to permit the appellant to further investigate the matter and 7 interrogate the accused persons within the parameter of the law applicable for the same. 16. The facts and circumstances warrants the further investigation and the Investigating Agency should not be tied down on the ground that the statement of the accused persons under Section 27 of the Indian Evidence Act has already been recorded and the application has been filed after a long delay as the ultimate object is to arrived at the truth and to unveil truth behind the criminal offence. 17. In view of the above, the appeal filed by the appellant is allowed. The impugned order dated 17.12.2024 passed by learned trial Court is hereby set aside. The application filed by the appellant under Section 187 of BNSS for grant of permission to further investigate and to interrogate the accused persons/respondent Nos. 1 to 5 are allowed. 18. The appellant is permitted to interrogate the accused persons /respondent Nos. 1 to 5 with respect to the additional accused persons who have been arrested in the present case. 19. In view of the facts and circumstances of the NIA Case No. 07/2024 and the nature of offence, the learned trial Court is directed to expedite the trial of the case in accordance with law. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.02.25 17:01:47 +0530