Calcutta High Court (Appellete Side)
Hira Bhattacharyya vs The State Of West Bengal on 6 January, 2025
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 4155 of 2023
Hira Bhattacharyya
Vs
The State of West Bengal
For the Petitioner : Mr. Sandip Ghose,
Mr. Supratim Bhattacharjee.
For the State : Mr. Debasish Roy, ld.PP
Mr. Arijit Ganguly.
Hearing concluded on : 04.12.2024
Judgment on : 06.01.2025
Shampa Dutt (Paul), J.:
1. The present revisional application has been preferred against the
order dated 17.08.2023 passed by the learned Additional Chief
Judicial Magistrate, Serampore, Hooghly, in G.R. Case No. 1502 of
2019 arising out of Uttarpara P.S. Case No. 394 of 2019 dated
02.08.2019 under Section 302/34 of the Indian Penal Code.
2. The petitioner’s case is that the petitioner is the unfortunate father
of Rik Bhattacharyya, since deceased, who died in a suspicious
2
incident at the age of 12 years (a student to Class VI) on
01.06.2019.
3. That on 01.06.2019 the said son of the petitioner was stated to
have drowned in the River Ganges. As soon as the body of his son
was recovered from the river, he was admitted to Kamala Roy
Hospital by Sourav Mondal (Vicky) and thereafter admitted to
Uttarpara State General Hospital by the petitioner himself, where
he was declared ‘brought dead’. The petitioner has reasons to
believe that two of the friends of the victim, namely, Anuvab Mete
(son of Shib Charan Mete, resident of 96, Radha Gobindo Nagar,
Hind Motor, P.S. Uttarpara) and Emon Banerjee (son of Subrata
Banerjee, resident of 33, Dr. K.K. Ghosh Road, Bhadrakali, P.S.
Uttarpara) played a role in the death of the victim. It is further
stated that the said son of the petitioner had no idea as to
swimming far off to speak about river swimming.
4. Subsequently the petitioner got further information from his wife
that on 01.06.2019 at about 5.15 p.m. the said Anuvab Mete
called the victim at his house and took him out of the house. At
around 6 p.m., one of the labourers of a local cycle repairing shop
informed the petitioner that the victim had falled into the river and
at the time of the incident, he was accompanied by the said
Anuvab Mete. On enquiry, the said Anuvab Mete informed the
petitioner that they were bathing in the river and wondered what
made the victim swim deep into the river. Upon hearing such
concern expressed by the said Anuvab Mete, suspicions flickered
3
in the petitioner’s mind since he knew that his son did not know
how to swim. Thereafter the petitioner rushed to the river side and
came to know that one Sourav Mondal recovered the body of the
victim from the river.
5. The petitioner had requested the Officer-in-Charge of Uttarpara
Police Station for lodging an FIR in respect of Uttarpara Police
Station UD case No. 95 of 2019 dated 1.6.2019, but no step was
taken in that regard by the said police station.
6. The petitioner moved an application under Section 156(3) of the
Code of Criminal Procedure as a result whereof a First Information
Report was lodged by the concerned police station.
7. Pursuant to an application under the Right to Information Act,
2005, the Assistant Commissioner of Police, HQ & SPIO,
Chandannagore Police Commissionerate, by his letter dated
15.11.2019 intimated the petitioner that no magisterial inquest
was conducted with regard to the said Uttarpara P.S. UD Case No.
95/2019 and that no requisition was sent for initiating magisterial
inquest in connection with the unnatural death of the only son of
the petitioner.
8. During the pendency of a writ application filed by the petitioner
before this Hon’ble Court being W.P.A. No. 4312 of 2020
concerning the investigation, the investigating agency
submitted a final report in the case being F.R.M.E. No. 216 of
2020 dated 10.7.2020.
4
9. The petitioner approached the Learned Additional Chief Judicial
Magistrate at Serampore and filed a ‘narazi petition’ challenging
the said final report dated 10.07.2020.
10. By an order dated 03.04.2021 the Learned Magistrate was pleased
to pass an order, inter alia, directing further investigation by
another competent officer of Uttarpara Police Station except the
previous investigating officer.
11. That even after passing of the said order dated 03.4.2021, the
investigating agency failed to make any further investigation in the
case. In such circumstances, as advised, the petitioner obtained a
report from one Dr. Ajay Kumar Gupta, retired professor of
Forensic Medicines, SSKM Hospital and I.P.G.M.&R. in connection
with the unfortunate death of his (victim) son, who inter alia,
opined that “…….It is very much difficult for human being to suffer
self-drowning and more so, the victim did not know how to
swim………..”
12. Having received no satisfactory answer as to the cause of death,
which was absolutely unnatural, petitioner filed another writ
petition being W.P.A. No. 19080 of 2022, praying for
reinvestigation by the Central Bureau of Investigation or Criminal
Investigation Department of the State Government or any other
independent competent agency.
13. By an order dated 27.9.2022, the Court was pleased to direct the
Sr. Superintendent of CID, West Bengal to nominate an
experienced officer from the CID to look into the entire status of
5
the case including the statements, circumstances of death and all
other relevant materials. The concerned police station was directed
to extend all cooperation to the nominated officer of the CID.
14. On 19.01.2023 the CID, West Bengal filed a report before the
Court, signed by the Special Superintendent of Police, (HQ),
CID, West Bengal dated 09.12.2022.
15. Challenging the said final report dated 19.01.2023, the petitioner
preferred a Mandamus Appeal being MAT NO. 286 of 2023 with
CAN 1 of 2023 which was disposed of by an order dated
14.03.2023 observing that the lapse, if any, in the course of
investigation can duly be looked into by the jurisdictional
Magistrate having regard to the material which is available
in the final report, in the light of the objection, if any, filed
by the petitioner.
16. The petitioner states that already purported investigations have
been made by two investigating officers of the concerned police
station as also by CID, West Bengal but the petitioner being the
unfortunate father of the victim and his family, could not yet know
the actual cause of death of the victim even after running from
pillar to post, for more than four years.
17. The petitioner has now prayed for re-investigation by the
Central Bureau of Investigation.
18. On hearing the learned counsel for the petitioner and the
learned counsel for the State who has placed the case dairy, it
appears that:-
6
i. The postmortem in the present case was conducted on
02.06.2019. The doctor did not find any external injury and
his opinion as to the cause of death was asphyxia due to
drowning.
ii. The victim was aged about 13 years. Though, police inquest was
conducted, admittedly Magisterial inquest was not done. The
petitioner then independently took a report from Dr. Ajay Kr.
Gupta, a retired professor of Forensic Science, SSKM Hospital.
iii. Dr. Gupta opined that the height of the victim was to be noted as
178 c.m. considering the length and breadth of the wearing
apparels of the victim. The height of the victim as noted in the
postmortem report was 152 c.m. and weight was 40 kgs. The
child being aged 13 years.
19. The petitioner’s further case is that the report of Dr. Gupta gives a
different picture from that of the postmortem report conducted at
the Government Hospital at Serampore.
20. The petitioner had moved the writ Court and the Court vide order
dated 27.09.2022 in WPA 19080 of 2022 without directing re-
investigation directed as follows :-
“……..Given the fact that there are two
investigations in the matter already, this Court is
desirous that the entire case diary and the post mortem
report and the opinion of the two investigating officers
must be examined by a sufficient experienced officer of
the CID, West Bengal.
The Senior Superintendent of CID, West Bengal
shall nominate an experienced officer from the CID, to
7look into the entire records of the case including the
statements, circumstances of death and all other
relevant materials.
An opinion as regards the investigation already
conducted and the likely cause and circumstances of the
death of the victim shall be placed in a report before this
Court………..”
21. The petitioner filed his exception to the report submitted by
the CID, West Bengal and disagreed with the findings of the
CID. On being granted liberty to move the jurisdictional Magistrate
regarding the said objection the petitioner moved the Court of the
learned ACJM, Serampore, Hooghly.
22. The Court by the order under revision directed further
investigation in the matter in view of the objections raised by the
petitioner therein and on the correct finding that the learned
Magistrate did not have the power to change the investigating
agency.
23. Written notes has been filed on behalf of the petitioner annexing
therein the report dated 09.12.2022 by the CID.
24. On careful perusal of the said report it appears as follows :-
i) On enquiry it was learnt that the victim was recovered from the
river Ganga at ‘Bireswar Banerjee Street Ghat’ located at western
side of the river Ganges which is cemented and some stair
cases are noticed to access the water of the river. Some
concrete structure (now damaged) also have been noticed on
both sides of the staircase The ‘Bireswar Banerjee Street Ghat’
8is under Uttarpara P.S. The CID team visited the place of
occurrence and examined the petitioner and other persons.
ii) The team of officers examined the witnesses. The 1st witness was
the petitioner Hira Bhattacharya, father who stated as follows :-
“……….that on 01.06.2019 (Saturday) at about 05.10 PM
one Anuvab Mete, friend of his son Rik Bhattacharyya
came to his house and called his son for playing. But
the petitioner did not see Anuvab personally at
that time as Anuvab used to come every afternoon
to call Rik with a view to play together, so
petitioner assumed that on that day Rik was called by
Anuvab. Rik left the house with his cycle with Anuvab.
Rik went to “Ujjal Shishu Udyan” along with Anuvab
Mete and Iman Banerjee. Then all three minors went to
“Bireswar Banerjee Street Ganges Ghat”. At about 06.00
PM one Rahul Mondal and Gokul Mondal called at his
house along with Anuvab Mete and informed that Rik fell
into the water of river Ganges. Petitioner immediately
proceeded towards the place but on the way he found
one Sourav Mondal @ Vickey was taking his son on a
motor cycle. His son was taken to Kamala Roy Hospital
and then shifted to Uttarpara State General Hospital
where he (Rik Bhattacharyya) was declared dead.
The petitioner was asked about the
rivalry/previous grudge between Rik Bhattacharyya and
others two FIR named persons Anuvab Mete and Iman
Banerjee but he could not say any specific grounds of
any previous grudge of the FIR named persons against
his son. He also stated that there was no history of
previous enmity between his son and the alleged
persons. On being asked petitioner further stated
that there was no enmity among the families of the
9petitioner and the FIR named persons/children
also………….”
25. Witness no. 2 Smt. Nandita Bhattacharyya, mother states as
follows :-
“…………that on 01.06.19 one Anuvab Mete, friend of her
son Rik called him at about 05.10/5.20 PM for playing.
But she did not see Anuvab at that time. She stated that
Anuvab used to come every afternoon to call Rik
with a view to play together, so she assumed that on
that day Anuvab called Rik for playing. At about 6 PM
she came to know that her son drowned in the water of
river Ganges and then she went to Uttarpara State
General Hospital and found that her son had already
expired. She further stated that at that time Anuvab and
her son Rik were student of Class-VI of Children Own
Home School at Uttarpara and both of them were good
friends. She did not know anything about enmity
between her son and other two FIR named
persons…………..”
26. Witness no. 4 Somnath Paul @ Mutho states that:-
“………on that day he was near G.T. Road. Hearing hue
and cry he rushed towards the Ganges Ghat. Reaching
there he came to know that one child fell into the river. He
got into the river and recovered the body of Rik
Bhattacharyya from the river Ganges. He also stated that
he found the body into the deep water at the right
side (Dakshineswar side) of the staircase and pulled
the body out from the water with the help of other
10persons. He did not know how Rik fell into the
water…….”
27. Witness no. 5 Rajkumar Singh @ Raja states that:-
“………..on that day afternoon, he was present at B.B.
Street Ghat and he was catching fish in the Ganges
facing towards Dakshineswar side. When the child
was drowning he heard someone shouting “the
child is drowning”. Then some people got into the water
and after 20/25 minutes they recovered the body of that
child…………….”
28. Witness no. 13 Sanjay Moyra states that :-
“………..on the day of incident he was not present at B.B.
Street Ghat though he used to go there regularly. He
further stated that later one person came at B.B. Street
Ghat and he was taking photographs of that place. From
him he came to know that one boy died due to drowning
in the river Ganges. He also stated that at the end of
the last staircase of B.B. Street Ghat there was a
big hole inside the water and the place was very
much dangerous for the persons who did not know
swimming…….”
29. Witness no. 23 Chandrika Banerjee states that:-
“…………… one Riya Biswas, a student, informed her
that on the day (01/06/2019) of incident she along with
her friends was present at B.B. Street Ganges Ghat and
11they say 3/4 children were playing into the water.
Suddenly one of them fell into the river and later he
was rescued by the local people. Riya Biswas and her
friends went to Kamala Ray Hospital where they found
that the child expired………”
30. Witness no. 26 Riya Biswas states that:-
“………….she along with her two friends Soumi and
Souvik went to B.B. Street Ghat afternoon. Reaching
there they found some chaos was going on at the right
side of the Ghat near water. Reaching there they came to
know that three children were playing in the water
and one of them fell into the water. As the child
didn’t know swimming he drowned in the river.
Some persons had jumped into the water with a
view to save the child. Later the child was rescued
after 10/15 minutes from the side water of
staircase and shifted to Kamala Ray Hospital. They
went to Kamala Ray Hospital and found that child had
already died and kept inside an ambulance. They also
noticed that froth with mud was coming from the nostrils
of the child……….”
31. Witness no. 27 Soumi Das states that:-
“…………… on that day she and her friend Souvik went
to B.B. Street Ghat after 4:30 PM. Later her friend Riya
Biswas arrived there and joined them. They all were
12sitting left side of the Ghat. Some children were
playing at the right side of the staircase and it’s
slanting inside water. Numbers of persons were
there at that time. Sometime later they came to
know that one child fell into the water after
hearing a shouting. Then some persons got into the
water. Sometime later a child was recovered from the
water and he was shifted to Kamala Ray Hospital. One
of his friends was present there and he was sent to the
house of that child. They went to the hospital……..”
32. Witness no. 28 Souvik Ghosh states that :-
“………….on that day he and his friends went to B.B.
Street Ghat at about 4:30/5 PM and they were sitting at
the left side of said Ghat and talking among themselves.
Numbers of persons were there at the Ghat at time.
Suddenly they heard a crying of a woman uttering
“someone fell into the water, someone drowning in
the river’. They rushed towards the place. 3/4 persons
got into the water and they were searching for the child.
After 10/15 minutes, that boy was recovered from the
water and his body was smeared with mud. Then the
child was shifted to Kamala Ray hospital. He also stated
that at the end of the last staircase of B.B. Street Ghat,
there was a big hole inside the water. He also got
13drowned at that place once as he did not know
swimming but was saved by his cousin brother…………”
33. Witness Iman Banerjee states that:-
“…………… on the day of incident, his brother (cousin)
Anuvab Mete and Rik came at “Sammiloni ground” at
about 4 PM to play foot ball together. Play ended at about
5 PM. They decided to go to Birla factory but Rik said that
they would go to Ganges Ghat. They further stated that
they would not go to Ganges Ghat, they would go Birla
factory. Then Rik said that he would go to Ganges Ghat
alone. Then as per request of Rik, they went to Ganges
Ghat. After reaching they locked their cycles and
sat on staircase keeping their feet into the water.
Then Rik started to move downwards and upwards
on the staircase in the river holding his hands. He
advised him not to do so, but Rik did not listen to
his words. Near about 45 minutes later Anuvab
asked someone about the time and the person told
him that it was 05.45 P.M. Anuvab said he had to
go as he had computer class. Rik asked them to
wait for further 5 minutes. Then he said he would
go also. His brother kept Rik’s key and spectacle
inside his (Rik) shoe and asked Rik to take those
articles when he would go. Rik then further
requested to wait for sometimes but he got up
14leaving his hand and started to wear shoes keeping
Rik at his backside. Suddenly Anuvab started to
shout from the opposite side uttering “Pappu dada
Rik was drowning”. He looked back and saw Rik
was throwing his hands and legs and sinking
down. Rik was ¾ hands away from the river bank
and was floating towards Dakshineswar side. He
tried to hold his hand but failed. Then the persons who
were present there got into water. He didn‟t know those
people. Anuvab took one person to Rik‟s house. He
returned house and told the incident to his parents. His
mother told him that Rik has died…….”
34. Witness Anuvab Mete states that:-
“…………..on that day he and Rik planned at school that
either they went to Deshbandhu Park or Sammiloni Park
at afternoon as they used to go there. He went to
Deshbandhu Park and found Rik was not there. Then he
went to Sammiloni Park where he found Rik was playing.
He also played football with other persons. After playing,
Rik told that “would we go to the river Ganges?” Then he
and his elder brother told that they would go to Birla
factory. On request of Rik, they all went to the B.B. Street
Ghat. Going there they locked their cycles and sat on
staircase keeping their feet submerged into the
water. Then Rik wanted to get into the water but he
15asked him not to go to water. Local people asked
them whether they knew swimming or not. He and
Iman replied “No” but Rik said he knows swimming.
There were 2/3 stairs inside the water. Rik started
to get into the water holding the hands of Iman.
Sometimes later he got up because he had to attend
computer class at 6.30 PM, but Rik was into the
water. Iman was wearing his shoes then. Then he
told Rik that he was keeping keys and spectacle
inside the shoes. When he further looked at him
(Rik) then he found Rik was falling into the water
at his backside. He asked Iman to hold Rik, Iman
tried but couldn’t hold him. Rik disappeared into
the water. He informed the incident to father of
Rik. He further went to Ganges Ghat and found Rik was
being taken to Relief Hospital. Later he came to know
that Rik had expired……”
35. Finally the CID opined:-
“Considering the statements of the persons including eye
witnesses, further report of the M.O. of Walsh (SD)
Hospital, Serampore, Hooghly, case-records and other
relevant documents as well as fact revealed during
enquiry, it could be opined that the chance of
accidental fall into the river Ganges cannot be
16ruled out as there is no evidence of any other sort
of previous enmity.”
36. The prayer of the petitioner is now for re-investigation by the
CBI.
37. In Anant Thanur Karmuse vs. State of Maharashtra, Criminal
Appeal No. 13 of 2023, on 24 February, 2023, the Supreme
Court held:-
“8. Now, so far as the power of the Constitutional Courts to
order further investigation / re-investigation / de novo
investigation even after the chargesheet is filed and
charges are framed is concerned, the following decisions
are required to be referred to:-
8.1 In the case of Bharati Tamang (supra), after taking
into consideration the decisions of this Court in the case of
Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 (paras
40 and 42) and the subsequent decision of this Court in the
case of Ram Jethmalani Vs. Union of India (2011) 8 SCC 1
and other decision on the point, ultimately the principles,
which are culled out are as under:-
“41. From the various decisions relied upon by the
petitioner counsel as well as by respondents’ counsel,
the following principles can be culled out.
41.1. The test of admissibility of evidence lies in its
relevancy.
41.2. Unless there is an express or implied constitutional
prohibition or other law, evidence placed as a result of even
an illegal search or seizure is not liable to be shut out.
41.3. If deficiency in investigation or prosecution is visible
or can be perceived by lifting the veil which try to hide the
realities or covering the obvious deficiency, Courts have to
deal with the same with an iron hand appropriately within
the framework of law.
41.4. It is as much the duty of the prosecutor as of the
Court to ensure that full and material facts are brought on
record so that there might not be miscarriage of justice.
17
41.5. In order to ensure that the criminal prosecution is
carried on without any deficiency, in appropriate cases this
Court can even constitute Special Investigation Team and
also give appropriate directions to the Central and State
Governments and other authorities to give all required
assistance to such specially constituted investigating team
in order to book the real culprits and for effective conduct of
the prosecution.
41.6. While entrusting the criminal prosecution with other
instrumentalities of State or by constituting a Special
Investigation Team, the High Court or this Court can also
monitor such investigation in order to ensure proper
conduct of the prosecution.
41.7. In appropriate cases even if the charge-sheet is filed
it is open for this Court or even for the High Court to direct
investigation of the case to be handed over to CBI or to any
other independent agency in order to do complete justice.
41.8. In exceptional circumstances the Court in order to
prevent miscarriage of criminal justice and if considers
necessary may direct for investigation de novo.”
8.2 In the case of Dharam Pal (supra), after taking into
consideration the catena of decisions on the point, it is
observed and held that the constitutional courts can direct
for further investigation or investigation by some other
investigating agency. It is observed that the purpose is,
there has to be a fair investigation and a fair trial. It is
observed that the fair trial may be quite difficult unless
there is a fair investigation. It is further observed and held
that the power to order fresh, de novo or re- investigation
being vested with the constitutional courts, the
commencement of a trial and examination of some
witnesses cannot be an absolute impediment for exercising
the said constitutional power which is meant to ensure a
fair and just investigation. While observing and holding so,
in paragraphs 24 and 25, it is observed and held s under:-
“24. Be it noted here that the constitutional courts can
direct for further investigation or investigation by some
other investigating agency. The purpose is, there has to be
a fair investigation and a fair trial. The fair trial may be
quite difficult unless there is a fair investigation. We are
absolutely conscious that direction for further investigation
by another agency has to be very sparingly issued but the
facts depicted in this case compel us to exercise the said
power. We are disposed to think that purpose of justice
18commands that the cause of the victim, the husband of the
deceased, deserves to be answered so that miscarriage of
justice is avoided. Therefore, in this case the stage of the
case cannot be the governing factor.
25. We may further elucidate. The power to order fresh, de
novo or reinvestigation being vested with the constitutional
courts, the commencement of a trial and examination of
some witnesses cannot be an absolute impediment for
exercising the said constitutional power which is meant to
ensure a fair and just investigation. It can never be
forgotten that as the great ocean has only one test, the test
of salt, so does justice has one flavour, the flavour of
answering to the distress of the people without any
discrimination. We may hasten to add that the democratic
set-up has the potentiality of ruination if a citizen feels, the
truth uttered by a poor man is seldom listened to. Not for
nothing it has been said that sun rises and sun sets, light
and darkness, winter and spring come and go, even the
course of time is playful but truth remains and sparkles
when justice is done. It is the bounden duty of a court of
law to uphold the truth and truth means absence of deceit,
absence of fraud and in a criminal investigation a real and
fair investigation, not an investigation that reveals itself as
a sham one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful investigation
is imperative. If there is indentation or concavity in the
investigation, can the “faith” in investigation be regarded
as the gospel truth? Will it have the sanctity or the purity of
a genuine investigation? If a grave suspicion arises with
regard to the investigation, should a constitutional court
close its hands and accept the proposition that as the trial
has commenced, the matter is beyond it? That is the “tour
de force” of the prosecution and if we allow ourselves to
say so it has become “idée fixe” but in our view the
imperium of the constitutional courts cannot be stifled or
smothered by bon mot or polemic. Of course, the suspicion
must have some sort of base and foundation and not a
figment of one’s wild imagination. One may think an
impartial investigation would be a nostrum but not doing so
would be like playing possum. As has been stated earlier,
facts are self-evident and the grieved protagonist, a person
belonging to the lower strata. He should not harbour the
feeling that he is an “orphan under law”.”
38. In State through Central Bureau of Investigation vs.
Hemendhra Reddy & Anr. etc., in Criminal Appeal Nos.
19
…………. Of 2023 (arising out of SLP (Crl.) Nos. 7628-7630 of
2017), on 28 April, 2023, held:-
“Difference between “Further Investigation” and “Re-
investigation”
51. There is no doubt that “further investigation” and “re-
investigation” stand altogether on a different footing. In
Ramchandran v. R. Udhayakumar and Others reported in
(2008) 5 SCC 413, this Court has explained the fine
distinction between the two relying on its earlier decision
in K. Chandrasekhar v. State of Kerala and
Others reported in (1998) 5 SCC 223. We quote paras 7
and 8 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
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.
This was highlighted by this Court in K. Chandrasekhar v.
State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] .
It was, inter alia, observed as follows : (SCC p. 237, para
24) “24. The dictionary meaning of „further‟ (when used as
an adjective) is „additional; more; 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. In drawing this conclusion we
have also drawn inspiration from the fact that sub-section
(8) clearly envisages that on completion of further
investigation the investigating agency has to forward to the
Magistrate a „further‟ report or reports–and not fresh
report or reports–regarding the „further‟ evidence obtained
during such investigation.”
8. In view of the position of law as indicated above, the
directions of the High Court for reinvestigation or fresh
investigation are clearly indefensible. We, therefore, direct
that instead of fresh investigation there can be further
investigation if required under Section 173(8) of the Code.
The same can be done by CB CID as directed by the High
Court.” Position of Law on the subject of “Further
Investigation”
77. We may summarise our final conclusion as under:
(i) Even after the final report is laid before the Magistrate
and is accepted, it is permissible for the investigating
20agency to carry out further investigation in the case. In
other words, there is no bar against conducting further
investigation under Section 173(8) of the CrPC after the
final report submitted under Section 173(2) of the CrPC has
been accepted.
(ii) Prior to carrying out further investigation under Section
173(8) of the CrPC it is not necessary that the order
accepting the final report should be reviewed, recalled or
quashed.
(iv) Further investigation is merely a continuation of the
earlier investigation, hence it cannot be said that the
accused are being subjected to investigation twice over.
Moreover, investigation cannot be put at par with
prosecution and punishment so as to fall within the ambit
of Clause (2) of Article 20 of the Constitution. The principle
of double jeopardy would, therefore, not be applicable to
further investigation.
(v) There is nothing in the CrPC to suggest that the court is
obliged to hear the accused while considering an
application for further investigation under Section 173(8) of
the CrPC.
84. In the aforesaid context, we may only say that the
general rule of criminal justice is that “a crime never dies”.
The principle is reflected in the well-known maxim nullum
tempus aut locus occurrit regi (lapse of time is no bar to
Crown in proceeding against offenders). It is settled law
that the criminal offence is considered as a wrong against
the State and the Society even though it has been
committed against an individual. Normally, in serious
offences, prosecution is launched by the State and a Court
of law has no power to throw away prosecution solely on
the ground of delay. Mere delay in approaching a Court of
law would not by itself afford a ground for dismissing the
case. Though it may be a relevant circumstance in reaching
a final verdict. (See: Japani Sahoo v. Chandra Sekhar
Mohanty reported in (2007) 7 SCC 394.)
85. The following observations in Hasanbhai (supra), have
been made by this Court in reference to further
investigation:
“13. ….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 in the way of further investigation if that
21would help the court in arriving at the truth and do real
and substantial as well as effective justice. …”
86. Thus, the assurance of a fair trial is to be the first
imperative in the dispensation of justice.
[Reference: Commissioner of Police, Delhi and Another v.
Registrar, Delhi High Court, New Delhi reported in (1996) 6
SCC 323]. The need for fair investigation has also been
emphasized in Vinay Tyagi (supra) where it was observed
as under:
“48. What ultimately is the aim or significance of the
expression “fair and proper investigation” in criminal
jurisprudence? It has a twin purpose: Firstly, the
investigation must be unbiased, honest, just and in
accordance with law; secondly, the entire emphasis on a
fair investigation has to be to bring out the truth of the case
before the court of competent jurisdiction. ….”
87. Reference may also be placed on the decision in Pooja
Pal v. Union of India and Others reported in (2016) 3 SCC
135, where the fundamental rights enshrined under Article
21 of the Constitution of India were discussed in the
context of “speedy trial” juxtaposed to “fair trial” in the
following manner:
“83. A “speedy trial”, albeit the essence of the fundamental
right to life entrenched in Article 21 of the Constitution of
India has a companion in concept in “fair trial”, both being
inalienable constituents of an adjudicative process, to
culminate in a judicial decision by a court of law as the
final arbiter. There is indeed a qualitative difference
between right to speedy trial and fair trial so much so that
denial of the former by itself would not be prejudicial to the
accused, when pitted against the imperative of fair trial. As
fundamentally, justice not only has to be done but also
must appear to have been done, the residuary jurisdiction
of a court to direct further investigation or reinvestigation
by any impartial agency, probe by the State Police
notwithstanding, has to be essentially invoked if the
statutory agency already in charge of the investigation
appears to have been ineffective or is presumed or inferred
to be not being able to discharge its functions fairly,
meaningfully and fructuously. As the cause of justice has
to reign supreme, a court of law cannot reduce itself to be a
resigned and a helpless spectator and with the foreseen
consequences apparently unjust, in the face of a faulty
investigation, meekly complete the formalities to record a
foregone conclusion. Justice then would become a casualty.
22
Though a court’s satisfaction of want of proper, fair,
impartial and effective investigation eroding its credence
and reliability is the precondition for a direction for further
investigation or reinvestigation, submission of the charge-
sheet ipso facto or the pendency of the trial can by no
means be a prohibitive impediment. The contextual facts
and the attendant circumstances have to be singularly
evaluated and analysed to decide the needfulness of
further investigation or reinvestigation to unravel the truth
and mete out justice to the parties. The prime concern and
the endeavour of the court of law is to secure justice on the
basis of true facts which ought to be unearthed through a
committed, resolved and a competent investigating
agency.”.
(Emphasis supplied)”
39. Further investigation leads to collection of further evidence to
unveil the truth.
40. Re-investigation in addition to collection of further evidence, also
has a second look and fresh assessment of the evidence already on
record (case diary).
41. In the present investigation and further investigation has been
conducted twice. A Court ordered inquiry has also been
conducted by the CID.
42. The Supreme Court (Majority decision) in Romila Thapar & Ors.
Vs Union of India & Ors., Writ Petition (Criminal) No. 260 of
2018 on 28th September, 2018, held :-
“19. After the high-pitched and at times emotional
arguments concluded, each side presenting his case with
equal vehemence, we as Judges have had to sit back and
ponder over as to who is right or whether there is a third
side to the case. The petitioners have raised the issue of
credibility of Pune Police investigating the crime and for
attempting to stifle the dissenting voice of the human rights
activists. The other side with equal vehemence argued that
23the action taken by Pune Police was in discharge of their
statutory duty and was completely objective and
independent. It was based on hard facts unraveled during
the investigation of the crime in question, pointing towards
the sinister ploy to destabilize the State and was not
because of difference in ideologies, as is claimed by the so
called human rights activists.
20. After having given our anxious consideration to the
rival submission and upon perusing the pleadings and
documents produced by both the sides, coupled with the
fact that now four named accused have approached this
Court and have asked for being transposed as writ
petitioners, the following broad points may arise for our
consideration:-
(i) Should the Investigating Agency be changed at the
behest of the named five accused?
(ii) If the answer to point (i) is in the negative, can a prayer
of the same nature be entertained at the behest of the next
friend of the accused or in the garb of PIL?
(iii) If the answer to question Nos.(i) and/or (ii) above, is in
the affirmative, have the petitioners made out a case for
the relief of appointing Special Investigating Team or
directing the Court monitored investigation by an
independent Investigating Agency?
(iv) Can the accused person be released merely on the
basis of the perception of his next friend (writ petitioners)
that he is an innocent and law abiding person?
21. Turning to the first point, we are of the considered
opinion that the issue is no more res integra. In Narmada
Bai Vs. State of Gujarat and Ors.1, in paragraph 64, this
Court restated that it is trite law that the accused persons
do not have a say in the matter of appointment of
Investigating 1 (2011) 5 SCC 79 Agency. Further, the
accused persons cannot choose as to which Investigating
Agency must investigate the offence committed by them.
Paragraph 64 of this decision reads thus:-
“64. ….. It is trite law that accused persons do not have a
say in the matter of appointment of an investigation
agency. The accused persons cannot choose as to which
24investigation agency must investigate the alleged offence
committed by them.” (emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt Vs. Union of India and
Ors.2, the Court restated that the accused had no right
with reference to the manner of investigation or mode of
prosecution. Paragraph 68 of this judgment reads thus:
“68. The accused has no right with reference to the manner
of investigation or mode of prosecution. Similar is the law
laid down by this Court in Union of India v. W.N.
Chadha3, Mayawati v. Union of India4, Dinubhai
Boghabhai Solanki v. State of Gujarat5, CBI v. Rajesh
Gandhi6, Competition Commission of India v. SAIL7 and
Janta Dal v. H.S. Choudhary.8“
(emphasis supplied)
23. Recently, a three-Judge Bench of this Court in E.
Sivakumar Vs. Union of India and Ors.9, while dealing
with the appeal preferred by the “accused” challenging the
order of the High Court directing investigation by CBI, in
paragraph 10 observed:
“10. As regards the second ground urged by the petitioner,
we find that even this aspect has been duly considered in
the impugned judgment. In paragraph 129 of the impugned
judgment, reliance has been placed on Dinubhai
Boghabhai Solanki Vs. State of Gujarat10, wherein it has
been held that in a writ petition seeking impartial
investigation, the accused was not entitled to opportunity
of hearing as a matter of course. Reliance has also been
placed in Narender G. Goel Vs. State of Maharashtra11, in
particular, paragraph 11 of the reported decision wherein
the Court observed that it is well settled that the accused
has no right to be heard at the stage of investigation. By
entrusting the investigation to CBI which, as aforesaid,
was imperative in the peculiar facts of the present case, the
fact that the petitioner was not impleaded as a party in the
writ petition or for that matter, was not heard, in our
opinion, will be of no avail. That per se cannot be the basis
to label the impugned judgment as a nullity.”
24. This Court in the case of Divine Retreat Centre
Vs. State of Kerala and Ors.12, has enunciated that
25
the High 9 (2018) 7 SCC 365 10 Supra @ Footnote 5
11 (2009) 6 SCC 65 12 (2008) 3 SCC 542 Court in
exercise of its inherent jurisdiction cannot change
the investigating officer in the midstream and
appoint an investigating officer of its own choice to
investigate into a crime on whatsoever basis. The Court
made it amply clear that neither the accused nor the
complainant or informant are entitled to choose their
own Investigating Agency to investigate the crime in
which they are interested. The Court then went on to
clarify that the High Court in exercise of its power
under Article 226 of the Constitution can always issue
appropriate directions at the instance of the aggrieved
person if the High Court is convinced that the power of
investigation has been exercised by the investigating officer
mala fide.
25. Be that as it may, it will be useful to advert to the
exposition in State of West Bengal and Ors. Vs. Committee
for Protection of Democratic Rights, West Bengal and
Ors.13 In paragraph 70 of the said decision, the
Constitution Bench observed thus:
“70. Before parting with the case, we deem it
necessary to emphasise that despite wide powers
conferred by Articles 32 13 (2010) 3 SCC 571 and
226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed
limitations on the exercise of these Constitutional
powers. The very plenitude of the power under the
said articles requires great caution in its exercise.
Insofar as the question of issuing a direction to the
CBI to conduct investigation in a case is concerned,
although no inflexible guidelines can be laid down to
decide whether or not such power should be
exercised but time and again it has been reiterated
that such an order is not to be passed as a matter of
routine or merely because a party has levelled some
allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident
may have national and international ramifications
or where such an order may be necessary for doing
complete justice and enforcing the fundamental
rights. Otherwise the CBI would be flooded with a
large number of cases and with limited resources,
may find it difficult to properly investigate even
26serious cases and in the process lose its credibility
and purpose with unsatisfactory investigations.”
27. In view of the above, it is clear that the consistent view
of this Court is that the accused cannot ask for changing
the Investigating Agency or to do investigation in a
particular manner including for Court monitored
investigation. The first two modified reliefs claimed in the
writ petition, if they were to be made by the accused
themselves, the same would end up in being rejected. In
the present case, the original writ petition was filed by the
persons claiming to be the next friends of the concerned
accused (A16 to A20). Amongst them, Sudha Bhardwaj
(A19), Varvara Rao (A16), Arun Ferreira (A18) and Vernon
Gonsalves (A17) have filed signed statements praying that
the reliefs claimed in the subject writ petition be treated as
their writ petition. That application deserves to be allowed
as the accused themselves have chosen to approach this
Court and also in the backdrop of the preliminary objection
raised by the State that the writ petitioners were
completely strangers to the offence under investigation and
the writ petition at their instance was not maintainable. We
would, therefore, assume that the writ petition is now
pursued by the accused themselves and once they have
become petitioners themselves, the question of next friend
pursuing the remedy to espouse their cause cannot be
countenanced. The next friend can continue to espouse the
cause of the affected accused as long as the concerned
accused is not in a position or incapacitated to take
recourse to legal remedy and not otherwise.
30. We find force in the argument of the State that the
prayer for changing the Investigating Agency cannot be
dealt with lightly and the Court must exercise that power
with circumspection. As a result, we have no hesitation in
taking a view that the writ petition at the instance of the
next friend of the accused for transfer of investigation to
independent Investigating Agency or for Court monitored
investigation cannot be countenanced, much less as public
interest litigation.”
43. The said judgment was referred to by the Supreme Court in
Vinubhai Haribhai Malaviya Vs The State of Gujarat on
16.10.2019 in Original Appeal 478-479 of 2017, wherein a
Three Judge Bench held:-
27
“9. The question of law that therefore arises in this case is
whether, after a charge-sheet is filed by the police, the
Magistrate has the power to order further investigation,
and if so, up to what stage of a criminal proceeding.
38. However, having given our considered thought to the
principles stated in these judgments, we are of the view
that the Magistrate before whom a report under Section
173(2) of the Code is filed, is empowered in law to direct
“further investigation” and require the police to submit a
further or a supplementary report. A three-Judge Bench of
this Court in Bhagwant Singh [Bhagwant Singh v. Commr.
of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] has, in no
uncertain terms, stated that principle, as aforenoticed.
40. Having analysed the provisions of the Code and the
various judgments as aforeindicated, we would state the
following conclusions in regard to the powers of a
Magistrate in terms of Section 173(2) read with Section
173(8) and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct
“reinvestigation” or “fresh investigation” (de novo) in the
case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct “further
investigation” after filing of a police report in terms
of Section 173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in
conformity with the principle of law stated in Bhagwant
Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2
SCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench
and thus in conformity with the doctrine of precedent.
40.4. Neither the scheme of the Code nor any specific
provision therein bars exercise of such jurisdiction by the
Magistrate. The language of Section 173(2) cannot be
construed so restrictively as to deprive the Magistrate of
such powers particularly in face of the provisions of Section
156(3) and the language of Section 173(8) itself. In fact,
such power would have to be read into the language
of Section 173(8).
40.5. The Code is a procedural document, thus, it must
receive a construction which would advance the cause of
justice and legislative object sought to be achieved. It does
not stand to reason that the legislature provided power of
further investigation to the police even after filing a report,
28but intended to curtail the power of the court to the extent
that even where the facts of the case and the ends of
justice demand, the court can still not direct the
investigating agency to conduct further investigation which
it could do on its own.
40.6. It has been a procedure of propriety that the police
has to seek permission of the court to continue “further
investigation” and file supplementary charge- sheet. This
approach has been approved by this Court in a number of
judgments. This as such would support the view that we
are taking in the present case.”
xxx xxx xxx
48. What ultimately is the aim or significance of the
expression “fair and proper investigation” in criminal
jurisprudence? It has a twin purpose: Firstly, the
investigation must be unbiased, honest, just and in
accordance with law; secondly, the entire emphasis on a
fair investigation has to be to bring out the truth of the case
before the court of competent jurisdiction. Once these twin
paradigms of fair investigation are satisfied, there will be
the least requirement for the court of law to interfere with
the investigation, much less quash the same, or transfer it
to another agency. Bringing out the truth by fair and
investigative means in accordance with law would
essentially repel the very basis of an unfair, tainted
investigation or cases of false implication. Thus, it is
inevitable for a court of law to pass a specific order as to
the fate of the investigation, which in its opinion is unfair,
tainted and in violation of the settled principles of
investigative canons.
49. Now, we may examine another significant aspect
which is how the provisions of Section 173(8) have been
understood and applied by the courts and investigating
agencies. It is true that though there is no specific
requirement in the provisions of Section 173(8) of the Code
to conduct “further investigation” or file supplementary
report with the leave of the court, the investigating agencies
have not only understood but also adopted it as a legal
practice to seek permission of the courts to conduct “further
investigation” and file “supplementary report” with the
leave of the court. The courts, in some of the decisions,
have also taken a similar view. The requirement of seeking
prior leave of the court to conduct “further investigation”
and/or to file a “supplementary report” will have to be read
into, and is a necessary implication of the provisions
29of Section 173(8) of the Code. The doctrine of
contemporanea expositio will fully come to the aid of such
interpretation as the matters which are understood and
implemented for a long time, and such practice that is
supported by law should be accepted as part of the
interpretative process.
50. Such a view can be supported from two different points
of view: firstly, through the doctrine of precedent, as
aforenoticed, since quite often the courts have taken such a
view, and, secondly, the investigating agencies which have
also so understood and applied the principle. The matters
which are understood and implemented as a legal practice
and are not opposed to the basic rule of law would be good
practice and such interpretation would be permissible with
the aid of doctrine of contemporanea expositio. Even
otherwise, to seek such leave of the court would meet the
ends of justice and also provide adequate safeguard
against a suspect/accused.
51. We have already noticed that there is no specific
embargo upon the power of the learned Magistrate to direct
“further investigation” on presentation of a report in terms
of Section 173(2) of the Code. Any other approach or
interpretation would be in contradiction to the very
language of Section 173(8) and the scheme of the Code for
giving precedence to proper administration of criminal
justice. The settled principles of criminal jurisprudence
would support such approach, particularly when in terms
of Section 190 of the Code, the Magistrate is the competent
authority to take cognizance of an offence. It is the
Magistrate who has to decide whether on the basis of the
record and documents produced, an offence is made out or
not, and if made out, what course of law should be
adopted in relation to committal of the case to the court of
competent jurisdiction or to proceed with the trial himself.
In other words, it is the judicial conscience of the
Magistrate which has to be satisfied with reference to the
record and the documents placed before him by the
investigating agency, in coming to the appropriate
conclusion in consonance with the principles of law. It will
be a travesty of justice, if the court cannot be permitted to
direct “further investigation” to clear its doubt and to order
the investigating agency to further substantiate its charge-
sheet. The satisfaction of the learned Magistrate is a
condition precedent to commencement of further
proceedings before the court of competent jurisdiction.
Whether the Magistrate should direct “further
investigation” or not is again a matter which will depend
30
upon the facts of a given case. The learned Magistrate or
the higher court of competent jurisdiction would direct
“further investigation” or “reinvestigation” as the case may
be, on the facts of a given case. Where the Magistrate can
only direct further investigation, the courts of higher
jurisdiction can direct further, reinvestigation or even
investigation de novo depending on the facts of a given
case. It will be the specific order of the court that would
determine the nature of investigation. In this regard, we
may refer to the observations made by this Court
in Sivanmoorthy v. State [(2010) 12 SCC 29: (2011) 1 SCC
(Cri) 295].”
34. A Bench of 5 learned Judges of this Court in Hardeep
Singh v. State of Punjab and Ors. (2014) 3 SCC 92 was
faced with a question regarding the circumstances under
which the power under Section 319 of the Code could be
exercised to add a person as being accused of a criminal
offence. In the course of a learned judgment answering the
aforesaid question, this Court first adverted to the
constitutional mandate under Article 21 of the Constitution
as follows:
“8. The constitutional mandate under Articles 20 and 21 of
the Constitution of India provides a protective umbrella for
the smooth administration of justice making adequate
provisions to ensure a fair and efficacious trial so that the
accused does not get prejudiced after the law has been put
into motion to try him for the offence but at the same time
also gives equal protection to victims and to society at large
to ensure that the guilty does not get away from the
clutches of law. For the empowerment of the courts to
ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified
by the legislature under CrPC indicating as to how the
courts should proceed in order to ultimately find out the
truth so that an innocent does not get punished but at the
same time, the guilty are brought to book under the law. It
is these ideals as enshrined under the Constitution and our
laws that have led to several decisions, whereby
innovating methods and progressive tools have been
forged to find out the real truth and to ensure that the
guilty does not go unpunished.” In paragraph 34, this
Court adverted to Common Cause v.Union of India (1996) 6
SCC 775, and dealt with when trials before the Sessions Court;
trials of warrant-cases; and trials of summons-cases by
Magistrates can be said to commence, as follows:
“34. In Common Cause v. Union of India [(1996) 6 SCC 775
: 1997 SCC (Cri) 42 : AIR 1997 SC 1539] , this Court while
31dealing with the issue held: (SCC p. 776, para 1) “1. II (i) In
cases of trials before the Sessions Court the trials shall be
treated to have commenced when charges are framed
under Section 228 of the Code of Criminal Procedure, 1973
in the cases concerned.
(ii) In cases of trials of warrant cases by Magistrates if the
cases are instituted upon police reports the trials shall be
treated to have commenced when charges are framed
under Section 240 of the Code of Criminal Procedure, 1973
while in trials of warrant cases by Magistrates when cases
are instituted otherwise than on police report such trials
shall be treated to have commenced when charges are
framed against the accused concerned under Section
246 of the Code of Criminal Procedure, 1973.
(iii) In cases of trials of summons cases by Magistrates the
trials would be considered to have commenced when the
accused who appear or are brought before the Magistrate
are asked under Section 251 whether they plead guilty or
have any defence to make.” (emphasis supplied) The Court
then concluded:
“38. In view of the above, the law can be summarised to
the effect that as “trial” means determination of issues
adjudging the guilt or the innocence of a person, the person
has to be aware of what is the case against him and it is
only at the stage of framing of the charges that the court
informs him of the same, the “trial” commences only on
charges being framed. Thus, we do not approve the view
taken by the courts that in a criminal case, trial commences
on cognizance being taken.”
35. Paragraph 39 of the judgment then referred to the
“inquiry” stage of a criminal case as follows:
“39. Section 2(g) CrPC and the case laws referred to above,
therefore, clearly envisage inquiry before the actual
commencement of the trial, and is an act conducted
under CrPC by the Magistrate or the court.
The word “inquiry” is, therefore, not any inquiry
relating to the investigation of the case by the
investigating agency but is an inquiry after the case
is brought to the notice of the court on the filing of
the charge-sheet. The court can thereafter proceed to
make inquiries and it is for this reason that an
inquiry has been given to mean something other than
the actual trial.” A clear distinction between
32“inquiry” and “trial” was thereafter set out in
paragraph 54 as follows:
“54. In our opinion, the stage of inquiry does not
contemplate any evidence in its strict legal sense, nor could
the legislature have contemplated this inasmuch as the
stage for evidence has not yet arrived. The only material
that the court has before it is the material collected by the
prosecution and the court at this stage prima facie can
apply its mind to find out as to whether a person, who can
be an accused, has been erroneously omitted from being
arraigned or has been deliberately excluded by the
prosecuting agencies. This is all the more necessary in
order to ensure that the investigating and the prosecuting
agencies have acted fairly in bringing before the court
those persons who deserve to be tried and to prevent any
person from being deliberately shielded when they ought to
have been tried. This is necessary to usher faith in the
judicial system whereby the court should be empowered to
exercise such powers even at the stage of inquiry and it is
for this reason that the legislature has consciously used
separate terms, namely, inquiry or trial in Section
319 CrPC.”
36. Despite the aforesaid judgments, some discordant
notes were sounded in three recent judgments. In
Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai
Patel (2017) 4 SCC 177, on the facts in that case, the
Appellant/Informant therein sought a direction
under Section 173(8) from the Trial Court for further
investigation by the police long after charges were framed
against the Respondents at the culminating stages of the
trial.
The Court in its ultimate conclusion was correct, in that,
once the trial begins with the framing of charges, the stage
of investigation or inquiry into the offence is over, as a
result of which no further investigation into the offence
should be ordered. But instead of resting its judgment on
this simple fact, this Court from paragraphs 29 to 34
resuscitated some of the earlier judgments of this Court, in
which a view was taken that no further investigation could
be ordered by the Magistrate in cases where, after
cognizance is taken, the accused had appeared in
pursuance of process being issued. In particular,
Devarapalli Lakshminarayana Reddy (supra) was strongly
relied upon by the Court. We have already seen how this
judgment was rendered without adverting to the definition
of “investigation” in Section 2(h) of the CrPC, and cannot
33
therefore be relied upon as laying down the law on this
aspect correctly. The Court therefore concluded:
“49. On an overall survey of the pronouncements of this
Court on the scope and purport of Section 173(8) of the
Code and the consistent trend of explication thereof, we are
thus disposed to hold that though the investigating agency
concerned has been invested with the power to undertake
further investigation desirably after informing the court
thereof, before which it had submitted its report and
obtaining its approval, no such power is available therefor
to the learned Magistrate after cognizance has been taken
on the basis of the earlier report, process has been issued
and the accused has entered appearance in response
thereto. At that stage, neither the learned Magistrate suo
motu nor on an application filed by the
complainant/informant can direct further investigation.
Such a course would be open only on the request of the
investigating agency and that too, in circumstances
warranting further investigation on the detection of
material evidence only to secure fair investigation and trial,
the life purpose of the adjudication in hand.
50. The unamended and the amended sub-section (8)
of Section 173 of the Code if read in juxtaposition, would
overwhelmingly attest that by the latter, the investigating
agency/officer alone has been authorised to conduct
further investigation without limiting the stage of the
proceedings relatable thereto. This power qua the
investigating agency/officer is thus legislatively intended
to be available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st Report
which manifestly heralded the amendment, significantly
had limited its proposal to the empowerment of the
investigating agency alone.
51. In contradistinction, Sections
156, 190, 200, 202 and 204 CrPC clearly outline the
powers of the Magistrate and the courses open for him to
chart in the matter of directing investigation, taking of
cognizance, framing of charge, etc. Though the Magistrate
has the power to direct investigation under Section
156(3) at the pre-cognizance stage even after a charge-
sheet or a closure report is submitted, once cognizance is
taken and the accused person appears pursuant thereto,
he would be bereft of any competence to direct further
investigation either suo motu or acting on the request or
prayer of the complainant/informant. The direction for
investigation by the Magistrate under Section 202, while
34dealing with a complaint, though is at a post-cognizance
stage, it is in the nature of an inquiry to derive satisfaction
as to whether the proceedings initiated ought to be
furthered or not. Such a direction for investigation is not in
the nature of further investigation, as contemplated
under Section 173(8) of the Code. If the power of the
Magistrate, in such a scheme envisaged by CrPC to order
further investigation even after the cognizance is taken, the
accused persons appear and charge is framed, is
acknowledged or approved, the same would be discordant
with the state of law, as enunciated by this Court and also
the relevant layout of CrPC adumbrated hereinabove.
Additionally had it been the intention of the legislature to
invest such a power, in our estimate, Section 173(8) CrPC
would have been worded accordingly to accommodate and
ordain the same having regard to the backdrop of the
incorporation thereof. In a way, in view of the three options
open to the Magistrate, after a report is submitted by the
police on completion of the investigation, as has been
amongst authoritatively enumerated in Bhagwant Singh
[Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 :
1985 SCC (Cri) 267] , the Magistrate, in both the
contingencies, namely; when he takes cognizance of the
offence or discharges the accused, would be committed to a
course, whereafter though the investigating agency may for
good reasons inform him and seek his permission to
conduct further investigation, he suo motu cannot embark
upon such a step or take that initiative on the request or
prayer made by the complainant/informant. Not only such
power to the Magistrate to direct further investigation suo
motu or on the request or prayer of the
complainant/informant after cognizance is taken and the
accused person appears, pursuant to the process, issued or
is discharged is incompatible with the statutory design and
dispensation, it would even otherwise render the
provisions of Sections 311 and 319 CrPC, whereunder any
witness can be summoned by a court and a person can be
issued notice to stand trial at any stage, in a way
redundant. Axiomatically, thus the impugned decision
annulling the direction of the learned Magistrate for further
investigation is unexceptional and does not merit any
interference. Even otherwise on facts, having regard to the
progression of the developments in the trial, and more
particularly, the delay on the part of the informant in
making the request for further investigation, it was
otherwise not entertainable as has been rightly held by the
High Court.”
35
37. This judgment was followed in a recent Division Bench
judgment of this Court in Athul Rao v. State of Karnataka
and Anr. (2018) 14 SCC 298 at paragraph 8. In Bikash
Ranjan Rout v. State through the Secretary (Home),
Government of NCT of Delhi (2019) 5 SCC 542, after
referring to a number of decisions this Court concluded as
follows:
“7. Considering the law laid down by this Court in the
aforesaid decisions and even considering the relevant
provisions of CrPC, namely, Sections
167(2), 173, 227 and 228 CrPC, what is emerging is that
after the investigation is concluded and the report is
forwarded by the police to the Magistrate under Section
173(2)(i) CrPC, the learned Magistrate may either (1) accept
the report and take cognizance of the offence and issue
process, or (2) may disagree with the report and drop the
proceedings, or (3) may direct further investigation
under Section 156(3) and require the police to make a
further report. If the Magistrate disagrees with the report
and drops the proceedings, the informant is required to be
given an opportunity to submit the protest application and
thereafter, after giving an opportunity to the informant, the
Magistrate may take a further decision whether to drop the
proceedings against the accused or not. If the learned
Magistrate accepts the objections, in that case, he may
issue process and/or even frame the charges against the
accused. As observed hereinabove, having not been
satisfied with the investigation on considering the report
forwarded by the police under Section 173(2)(i) CrPC, the
Magistrate may, at that stage, direct further investigation
and require the police to make a further report. However, it
is required to be noted that all the aforesaid is required to
be done at the pre-cognizance stage. Once the learned
Magistrate takes the cognizance and, considering the
materials on record submitted along with the report
forwarded by the police under Section 173(2)(i) CrPC, the
learned Magistrate in exercise of the powers under Section
227 CrPC discharges the accused, thereafter, it will not be
open for the Magistrate to suo motu order for further
investigation and direct the investigating officer to submit
the report. Such an order after discharging the accused can
be said to be made at the post-cognizance stage. There is a
distinction and/or difference between the pre- cognizance
stage and post-cognizance stage and the powers to be
exercised by the Magistrate for further investigation at the
pre-cognizance stage and post- cognizance stage. The
power to order further investigation which may be
available to the Magistrate at the pre-cognizance stage may
36not be available to the Magistrate at the post-cognizance
stage, more particularly, when the accused is discharged
by him. As observed hereinabove, if the Magistrate was not
satisfied with the investigation carried out by the
investigating officer and the report submitted by the
investigating officer under Section 173(2)(i) CrPC, as
observed by this Court in a catena of decisions and as
observed hereinabove, it was always open/permissible for
the Magistrate to direct the investigating agency for further
investigation and may postpone even the framing of the
charge and/or taking any final decision on the report at
that stage. However, once the learned Magistrate, on the
basis of the report and the materials placed along with the
report, discharges the accused, we are afraid that
thereafter the Magistrate can suo motu order further
investigation by the investigating agency. Once the order of
discharge is passed, thereafter the Magistrate has no
jurisdiction to suo motu direct the investigating officer for
further investigation and submit the report. In such a
situation, only two remedies are available: (i) a revision
application can be filed against the discharge or (ii) the
Court has to wait till the stage of Section 319 CrPC.
However, at the same time, considering the provisions
of Section 173(8) CrPC, it is always open for the
investigating agency to file an application for further
investigation and thereafter to submit the fresh report and
the Court may, on the application submitted by the
investigating agency, permit further investigation and
permit the investigating officer to file a fresh report and the
same may be considered by the learned Magistrate
thereafter in accordance with law. The Magistrate cannot
suo motu direct for further investigation under Section
173(8) CrPC or direct reinvestigation into a case at the post-
cognizance stage, more particularly when, in exercise of
powers under Section 227 CrPC, the Magistrate discharges
the accused. However, Section 173(8) CrPC confers power
upon the officer in charge of the police station to further
investigate and submit evidence, oral or documentary, after
forwarding the report under sub-section (2) of Section
173 CrPC. Therefore, it is always open for the investigating
officer to apply for further investigation, even after
forwarding the report under sub-section (2) of Section
173 and even after the discharge of the accused. However,
the aforesaid shall be at the instance of the investigating
officer/police officer in charge and the Magistrate has no
jurisdiction to suo motu pass an order for further
investigation/reinvestigation after he discharges the
accused.” Realising the difficulty in concluding thus, the
Court went on to hold:
37
“10. However, considering the observations made by the
learned Magistrate and the deficiency in the investigation
pointed out by the learned Magistrate and the ultimate goal
is to book and/or punish the real culprit, it will be open for
the investigating officer to submit a proper application
before the learned Magistrate for further investigation and
conduct fresh investigation and submit the further report in
exercise of powers under Section 173(8) CrPC and
thereafter the learned Magistrate to consider the same in
accordance with law and on its own merits.”
38. There is no good reason given by the Court in these
decisions as to why a Magistrate‟s powers to order
further investigation would suddenly cease upon process
being issued, and an accused appearing before the
Magistrate, while concomitantly, the power of the police to
further investigate the offence continues right till the stage
the trial commences. Such a view would not accord with
the earlier judgments of this Court, in particular, Sakiri
(supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi
(supra), and Hardeep Singh (supra); Hardeep Singh (supra)
having clearly held that a criminal trial does not begin after
cognizance is taken, but only after charges are framed.
What is not given any importance at all in the recent
judgments of this Court is Article 21 of the Constitution and
the fact that the Article demands no less than a fair and
just investigation. To say that a fair and just investigation
would lead to the conclusion that the police retain the
power, subject, of course, to the Magistrate‟s nod
under Section 173(8) to further investigate an offence till
charges are framed, but that the supervisory jurisdiction of
the Magistrate suddenly ceases mid-way through the pre-
trial proceedings, would amount to a travesty of justice, as
certain cases may cry out for further investigation so that
an innocent person is not wrongly arraigned as an accused
or that a prima facie guilty person is not so left out. There is
no warrant for such a narrow and restrictive view of the
powers of the Magistrate, particularly when such powers
are traceable to Section 156(3) read with Section
156(1), Section 2(h), and Section 173(8) of the CrPC, as has
been noticed hereinabove, and would be available at all
stages of the progress of a criminal case before the trial
actually commences. It would also be in the interest of
justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case.
Whether further investigation should or should not be
ordered is within the discretion of the learned Magistrate
who will exercise such discretion on the facts of each case
and in accordance with law. If, for example, fresh facts
38
come to light which would lead to inculpating or
exculpating certain persons, arriving at the truth and doing
substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding the
criminal proceeding, as was held in Hasanbhai Valibhai
Qureshi (supra). Therefore, to the extent that the judgments
in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra)
and Bikash Ranjan Rout (supra) have held to the contrary,
they stand overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Administration) (1997) 1 SCC
361 and Reeta Nag v. State of West Bengal and Ors. (2009)
9 SCC 129 also stand overruled.”
44. By a Judgment dated 12.10.2022 the Supreme Court in Criminal
Appeal No. 1768 of 2022 (Devendra Nath Singh Vs State of
Bihar & Ors) relying upon several precedents including Vinubhai
Haribhai Malaviya Vs The State of Gujarat (Supra) held:-
“12.5. The case of Divine Retreat Centre (supra) has had
the peculiarity of its own. Therein, the Criminal Case
bearing No. 381 of 2005 had been registered at Koratty
Police Station on the allegations made by a female remand
prisoner that while taking shelter in the appellant-Centre,
she was subjected to molestation and exploitation and she
became pregnant; and thereafter, when she came out of
the Centre to attend her sister‟s marriage, she was
implicated in a false theft case and lodged in jail. Parallel
to these proceedings, an anonymous petition as also other
petitions were received in the High Court, which were
registered as a suo motu criminal case. In that case, the
High Court, while exercising powers under Section 482
CrPC, directed that the said Criminal Case No. 381 of 2005
be taken away from the investigating officer and be
entrusted to the Special Investigating Team („SIT‟). The
High Court also directed the said SIT to investigate/inquire
into other allegations levelled in the anonymous petition
filed against the appellant-Centre. However, this Court did
not approve the order so passed by the High Court and in
that context, while observing that no unlimited and
arbitrary jurisdiction was conferred on the High Court
under Section 482 CrPC, explained the circumstances
under which the inherent jurisdiction may be exercised as
also the responsibilities of the investigating officers, inter
alia, in the following words: –
39
“27. In our view, there is nothing like unlimited arbitrary
jurisdiction conferred on the High Court under Section 482
of the Code. The power has to be exercised sparingly,
carefully and with caution only where such exercise is
justified by the tests laid down in the section itself. It is
well settled that Section 482 does not confer any new
power on the High Court but only saves the inherent power
which the Court possessed before the enactment of the
Code. There are three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give
effect to an order 29 under the Code, ( ii ) to prevent abuse
of the process of court, and ( iii) to otherwise secure the
ends of justice.”
45. In the present case, it appears from the evidence collected by
the investigations conducted by the police and the inquiry by
the CID that:-
i) There was no enmity between either the victim and his
friend or their families.
ii) The stairs leading to the river (deep side) were concrete and
steep with a hole by the side of the stairs.
iii) The victim did not know swimming.
iv) Serious efforts were made by the persons present to save
the victim from drowning.
46. Thus the investigations and inquiry (by CID) already conducted in
the present case has been thorough, just and fair.
(a) The evidence collected during investigations and inquiry by
different department and agency corroborate and nothing has
been found to hold otherwise or create doubt about the
investigation, its findings and the evidence collected.
(b) No deficiency in investigation is visible.
40
(c) Full and material facts have been brought on record.
(d) Prima facie there has been no laches in the
investigations/inquiry which calls for a direction for re-
investigation in this case.
(e) The investigations/inquiry in this case has prima facie been
unbiased, honest, just and in accordance with law. All steps
have been taken to bring out the truth of the case.
47. Thus this is not a fit case where the inherent jurisdiction of this
Court should be exercised directing re-investigation.
48. The revisional application being CRR 4155 of 2023 is thus
dismissed.
49. The order under revision requires no interference by this Court.
50. All connected applications stand disposed of.
51. Interim order, if any, stands vacated.
52. Copy of this judgment be sent to the learned Trial Court for
necessary compliance.
53. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)