The Delhi High Court has clarified that further investigation in a pending trial under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) cannot be initiated without prior permission from the trial court, reaffirming the procedural safeguards against arbitrary police action.
Background & Facts
The Dispute
The petitioner, Mr. Rajeev Kansal, challenged the legality of further investigation conducted by the police in FIR No. 320/2024 registered at PS Special Cell (SB), New Delhi, under the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner contended that the investigation violated Section 193(9) of the BNSS, 2023 (corresponding to Section 173(8) CrPC), which mandates prior judicial permission for further investigation after the charge-sheet is filed.
Key Facts
- 17.01.2026: Charge-sheet filed in FIR No. 320/2024
- 09.06.2026: Notice issued to the petitioner under Section 67 of the NDPS Act, 1985
- 09.06.2026: Petitioner arrested in connection with the same FIR
- The petitioner’s son had previously filed W.P.(CRL) 2079/2026, which was disposed of by the High Court on 20.07.2026 with similar directions
- The petitioner had already filed a bail application before the trial court, which was listed for hearing on 24.08.2026
Procedural History
- 27.07.2026: Present writ petition (W.P.(CRL) 2196/2026) filed, along with CRL.M.A. 21908/2026 and CRL.M.A. 21909/2026
- The petitioner pressed only prayer clause (a), seeking a declaration that the further investigation was illegal for want of prior court permission under Section 193(9) BNSS
The Parties' Positions
- Petitioner: Argued that further investigation without court permission under Section 193(9) BNSS is illegal, arbitrary, and unconstitutional. Emphasized that the provision is investigation-centric, not accused-centric.
- Respondents (State): Conceded that prior permission from the trial court is mandatory before initiating further investigation in a pending trial. Admitted that no formal application was filed or judicial mind applied in this case.
Relief Sought
The petitioner sought:
- Declaration that further investigation without court permission is illegal
- Quashing of the notice dated 09.06.2026 under Section 67 NDPS Act
- Declaration that the arrest on 09.06.2026 is illegal and void ab initio
- Quashing of the Arrest Memo, Grounds of Arrest, and all consequential proceedings
- Restraining the respondents from further investigation without court leave
- Compensation for illegal deprivation of liberty
- Costs of the proceedings
The Legal Issue
The core question was whether further investigation after the filing of a charge-sheet under the BNSS, 2023, can be undertaken without obtaining prior permission from the trial court as mandated by Section 193(9) BNSS, which corresponds to Section 173(8) CrPC.
Arguments Presented
For the Petitioner
- Relied on the proviso to Section 193(9) BNSS, arguing it is investigation-centric and not accused-centric
- Contended that the lack of prior judicial permission rendered the further investigation illegal and unconstitutional
- Highlighted that the police had not followed due process, as no formal application was moved before the trial court
For the Respondent
- Conceded that Section 193(9) BNSS requires a formal application to the trial court before initiating further investigation
- Admitted that the investigating agency had not obtained prior permission or applied judicial mind in this case
- Agreed that the petition could be disposed of in line with the order dated 20.07.2026 in W.P.(CRL) 2079/2026
The Court's Analysis
The Court noted the concession by the respondents that further investigation under Section 193(9) BNSS cannot be initiated without prior permission from the trial court. The provision, being investigation-centric, mandates that the investigating agency must file a formal application, which the court must decide after applying judicial mind.
"the investigation agency has to file a formal application, which has to be decided after application of judicial mind, and the same was not done in the present case."
The Court observed that the lack of compliance with this procedural requirement rendered the further investigation legally unsustainable. However, it clarified that this order would not preclude the investigating agency from seeking permission from the trial court in accordance with law for any future further investigation.
The Verdict
The petition was disposed of with the consent of both parties. The Court recorded the statement of the Investigating Officer that no further investigation in FIR No. 320/2024 would be carried out without following due process of law. The accompanying applications were also disposed of. The trial court was requested to prepone the hearing of the petitioner’s bail application, listed for 24.08.2026, and decide it within one week from 27.07.2026 if possible. A copy of the order was directed to be sent to the trial court for compliance.
What This Means For Similar Cases
Due Process for Further Investigation Is Non-Negotiable
- Investigating agencies must file a formal application before the trial court before initiating further investigation under Section 193(9) BNSS
- The trial court must apply judicial mind before granting permission; mere administrative approval is insufficient
Procedural Safeguards Against Arbitrary Police Action
- The provision is investigation-centric, meaning the requirement applies regardless of the accused’s status or stage of the trial
- Non-compliance with Section 193(9) BNSS renders further investigation illegal and vulnerable to judicial interference
Bail Applications to Be Expedited
- Courts may direct expeditious hearing of bail applications where procedural irregularities in investigation are established
- Practitioners should highlight violations of Section 193(9) BNSS to seek relief for clients in similar situations
