Allahabad HC Quashes Joint Commissioner's Order Directing Further Investigation Without Trial Court's Leave

A Division Bench of the Allahabad High Court held that no police officer, however senior, can direct further investigation in a pending trial without first obtaining the Trial Court's permission under Section 173(8) CrPC or Section 193(9) BNSS.

The Allahabad High Court, on 3 August 2026, quashed an order passed by the Joint Commissioner of Police, Crime and Headquarters, Kanpur Nagar, which had directed further investigation in a Sessions trial arising from a 2021 murder case, without first seeking the permission of the Trial Court. Delivering the judgment for a Division Bench, Justice J.J. Munir held that the legal requirement of obtaining prior court leave before conducting further investigation — long treated as a matter of practice under Section 173(8) of the Code of Criminal Procedure, 1973 — is now a firm statutory embargo under the proviso to Section 193(9) of the Bharatiya Nagarik Suraksha Sanhita, 2023. Any investigation conducted pursuant to the impugned order was declared non est and struck off the record.

The Murder, the Trial, and the Attempt to Re-open Investigation

The facts arise from Case Crime No. 0254 of 2021, registered at Police Station Nawabganj, District West, Commissionerate Kanpur Nagar, under Sections 302 and 120-B of the Indian Penal Code, 1860. The FIR was lodged by respondent No. 5, Narendra Dev, on 23 December 2021, concerning the killing of his father, Rajaraj Verma, the previous evening. According to the FIR, the deceased had stepped out of his house after receiving a phone call, whereupon two unidentified men fired a shot at him and fled on a motorcycle. An autopsy confirmed death from an ante-mortem firearm wound to the head.

The police investigation led to the arrest of two shooters, Dilanyaz @ Rehan and Rohit Yadav, with a country-made pistol recovered from Dilanyaz. Electronic evidence, including call records and audio recordings from the accused's mobile phone, linked co-accused Ankit Yadav and Ram Khelawan to the conspiracy. A charge-sheet was filed on 22 March 2022 against these four accused. The FIR had initially named Raj Bahadur and the owners of N.R.I. City as suspected conspirators, but by June 2022 no evidence had been found against Raj Bahadur and his name was deleted from the investigation. The case was committed to sessions and numbered Sessions Trial No. 452 of 2022. Charges were framed against Dilanyaz, Ram Khelawan, Rohit Yadav, and Ankit Yadav on 7 September 2022 by the Sessions Judge, Kanpur Nagar.

After the informant Narendra Dev was examined as PW-1 on 27 July 2023, an application under Section 319 of the CrPC was moved on 6 May 2024, seeking to summon Raj Bahadur and Rekha Verma as additional accused. That application was withdrawn on 31 August 2024 and a fresh one filed on 19 September 2024, which remained pending. While the Section 319 application was still before the Trial Court, the informant also moved an application for further investigation on 25 April 2025, presented again on 18 November 2025.

Despite these applications being before the Trial Court, the Joint Commissioner of Police, Crime and Headquarters, Kanpur Nagar, passed an order dated 5 December 2025 directing further investigation under Section 173(8) CrPC / Section 193(9) BNSS. The officer in charge of P.S. Moolganj then wrote to the Trial Court on 17 December 2025 — not as a judicial application seeking permission, but as a report informing the Court that the Joint Commissioner had already ordered further investigation and that a new Investigating Officer had been appointed. The application requested access to the case diary and related documents to enable the new Investigating Officer to proceed.

The Central Legal Question

The three writ petitioners — Rakesh Kumar Tiwari (the leading writ petition), Rekha Verma, and Raj Bahadur, all either accused or persons likely to be arrayed as accused — challenged the order dated 5 December 2025 before the High Court. Rakesh Kumar Tiwari, himself an advocate, alleged that the move was an attempt to falsely implicate him because he had appeared as counsel for Raj Bahadur in the trial. The bench did not enter into those personal allegations, confining itself to the sole question of law: whether a police officer can direct further investigation while a trial is pending, without obtaining the leave of the Court.

How the Bench Reasoned

Justice Munir, writing for the bench, began with what he described as a position that is “crystal clear”: no police officer, of however high a rank, can direct further investigation in a pending case without first obtaining the Court's permission. Under the CrPC, this requirement had evolved through judicial practice rather than express statutory text. The proviso to Section 193(9) of the BNSS has now converted that practice into a hard legislative mandate: further investigation during trial may be conducted only with the permission of the Court trying the case, and must be completed within ninety days, extendable by the Court.

The bench traced the judicial development through Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, where the Supreme Court held that seeking leave of the Court before conducting further investigation and filing a supplementary charge-sheet was a “procedure of propriety” that had to be read into Section 173(8) CrPC. That position was affirmed by a three-judge bench in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1. In Peethambaran v. State of Kerala, (2024) 16 SCC 65, the Supreme Court quashed an order passed by the District Police Chief directing further investigation, holding that the power to order further investigation rests with the Magistrate concerned or a higher court, not with the investigating agency.

The bench then applied the most recent synthesis of these principles from Pramod Kumar and Others v. State of Uttar Pradesh and Others, (2026) 5 SCC 308, where the Supreme Court reaffirmed that the power to direct further investigation rests solely with the Magistrate or Court concerned. If the police believe further investigation is necessary, they must file an appropriate application before the Court, which then applies its judicial mind to the facts and circumstances before deciding whether to grant permission.

The State's Additional Advocate General argued that the application dated 17 December 2025, filed by the newly appointed Investigating Officer before the Trial Court, amounted to a prayer for permission to further investigate and that it was effectively allowed by the Court's direction to the Sessions Clerk to take steps according to law. The bench rejected that argument plainly. A careful reading of the application showed that it was not a prayer for permission at all. It informed the Court that the Joint Commissioner had already passed orders under Section 173(8) CrPC / Section 193(9) BNSS and that in compliance with those orders a new Investigating Officer had been appointed. The prayer was only for access to the case diary to enable that officer to carry out his already-ordered duties. The Court's consequential direction to the Sessions Clerk was, therefore, not a grant of permission to further investigate.

The bench characterised the 17 December 2025 application as “a very arrogantly worded application” that conveyed the Joint Commissioner's order to the Court as a fait accompli rather than seeking judicial sanction. The distinction mattered: a proper application for further investigation requires the police to approach the Court humbly, disclose the new information that has come to light, and invite the Court to exercise its judicial discretion. What the Investigating Officer filed did none of that.

The Additional Advocate General also relied on Dharam Pal v. State of Haryana, (2016) 4 SCC 160, to suggest that the investigating agency has unrestricted powers to conduct further investigation and need only inform the Court. The bench found that reliance misplaced. Dharam Pal concerned a transfer of investigation to the CBI at the instance of the complainant; it dealt with the power of constitutional courts to order fresh or de novo investigation, not the power of a police officer to do so unilaterally.

The Significance of the BNSS Proviso

The bench drew attention to the fact that the transition from a judicially-implied requirement to an express statutory condition is itself significant. Under the CrPC, courts had read the permission requirement into Section 173(8) through the doctrine of contemporanea expositio and a long line of practice. The proviso to Section 193(9) of the BNSS removes any lingering ambiguity: permission of the Court trying the case is now a prerequisite written into the statute. The ninety-day outer limit for completing such investigation, subject to court-granted extension, further reinforces the legislative intent to keep further investigation within judicial oversight once trial has commenced.

Order

All three writ petitions were allowed. The order dated 5 December 2025 passed by the Joint Commissioner of Police, Crime and Headquarters, Kanpur Nagar, directing further investigation in Case Crime No. 0254 of 2021, was quashed. Any investigation conducted pursuant to that order was declared non est and struck off the record.

The bench clarified that the police remain free to make a proper application to the learned Trial Judge seeking permission to further investigate under Section 173(8) CrPC or Section 193(9) BNSS, whichever provision applies. Further investigation may proceed only if and after the Trial Judge grants such permission.

The judgment was directed to be communicated by the Registrar (Compliance) to the learned Sessions Judge, Kanpur Nagar, the Commissioner of Police, Kanpur Nagar, and the Joint Commissioner of Police, Crime and Headquarters, Kanpur Nagar.