Calcutta High Court (Appellete Side)
Monowara Sardar vs State Of West Bengal & Ors on 24 January, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2536 of 2022
Monowara Sardar
Vs.
State of West Bengal & Ors.
For the Petitioner : Mr. Kaushik Gupta, Adv.
Mr. Arnab Nandi, Adv.
Ms. Simoyee Mukherjee, Adv.
For the State : Mr. Ranabir Roy Chowdhury, Adv.
Mr. Sandip Chakraborty, Adv.
For the O.P. No.9 : Mr. Arkadyuti Pahari, Adv.
Ms. Gargi Maity, Adv.
Hearing concluded on : 14.01.2025
Judgment on : 24.01.2025
Shampa Dutt (Paul), J.:-
1. The present revisional application has been preferred praying for
quashing of the impugned order dated 23.03.2021 passed by the Court of
the Learned Additional Chief Judicial Magistrate at Alipore, South 24
Parganas in connection with Canning Police Station Case No.701/2016
dated 25/10/2016 under Sections 363/365/366/372/34 of the Indian
Penal Code, 1860 corresponding to Case No.BGR-5771 of 2016, pending
2
before the Court of the Learned Additional Chief Judicial Magistrate at
Alipore, South 24 Parganas thereby rejecting the prayer for further
investigation.
2. Vide the order under revision the learned Magistrate held as follows:-
"..........After due perusal of record, it is seen that cognizance
has already been taken. I find that there is no error on the face
of investigation.
If the provision/offence of PIT Act has been attracted, that can
be taken care of by the trial court. This case is fit for trial. I do
not find any reason to interfere in our investigation.
Considering entire aspect, prayer for further investigation is
rejected........."
3. Written notes of argument have been filed by both the parties.
4. Learned counsel for the state by placing the Case Diary has submitted
that the relevant document in the present case is the statement of the
victim recorded under section 164 Cr.P.C. and trial court is sufficiently
empowered to consider the same at the time of trial.
5. Learned counsel for the petitioner has relied upon the following
judgments:-
1. Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat &
Ors. reported in A.I.R. 2019 S.C. 5233.
2. Azija Begum vs. State of Maharashtra & Anr. reported in
2012 (1) Calcutta Cri.L.J. 650.
6. Learned counsel on behalf of the respondent No.9 has also filed his
written notes of argument and relied upon the following judgments:-
1. Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat &
Ors. reported in (2019) 17 SCC 1.
3
2. Amrutbhai Shambhubhai Patel vs. Sumanbhai Kantibhai
Patel & Ors., reported in (2017) 4 SCC 177.
7. In K. Vadivel vs K. Shanthi & Ors., (2024) 10 SCR 1, in Criminal
Appeal No. 4058 of 2024, decided on 30 September, 2024, the
Supreme Court held:-
“32. Ultimately, the contextual facts and the attendant
circumstances have to be singularly evaluated and analyzed
to decide the needfulness of further investigation or
reinvestigation to unravel the truth and mete out justice to the
parties (see Pooja Pal vs. Union of India & Ors. (2016) 3
SCC 135, para 83). As noticed in Ram Lal Narang vs.
State (Delhi Administration) (1979) 2 SCC 322, (para
20) where fresh materials come to light which would
implicate persons not previously accused or absolve persons
already accused or where it comes to the notice of the
investigating agency that a person already accused of an
offence has a good alibi, it may be the duty of the
investigating agency to investigate the genuineness of the
same and submit a report to the court.
33. However, the further investigation cannot be
permitted to do a fishing and roving enquiry when the
police had already filed a charge-sheet and the very
applicant for further investigation, in this case respondent no.
1, has not whispered about anything new in her evidence as
is now sought to be averred in the application. There must
be some reasonable basis which should trigger the
application for further investigation so that the court
is able to arrive at a satisfaction that ends of justice
require the ordering/permitting of further
investigation. In Hasanbhai Valibhai Qureshi vs. State
of Gujarat & Ors., (2004) 5 SCC 347), this Court held as
under:-
“13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2
SCC 322] it was observed by this Court that further
investigation is not altogether ruled out merely because
cognisance has been taken by the court. When defective
investigation comes to light during course of trial, it may be
cured by further investigation, if circumstances so permitted.
It would ordinarily be desirable and all the more so in this
case, that the police should inform the court and seek formal
permission to make further investigation when fresh facts
come to light instead of being silent over the matter keeping
in view only the need for an early trial since an effective trial
for real or actual offences found during course of proper
4investigation is as much relevant, desirable and necessary
as an expeditious disposal of the matter by the courts. In
view of the aforesaid position in law, if there is necessity for
further investigation, the same can certainly be done as
prescribed by law. The mere fact that there may be further
delay in concluding the trial should not stand in the way of
further investigation if that would help the court in arriving at
the truth and do real and substantial as well as effective
justice. We make it clear that we have not expressed any
final opinion on the merits of the case.”
35. It is essential to note that this Court emphasized
that though power to order further investigation is a
significant power it has to be exercised sparingly and
in exceptional cases and to achieve the ends of justice
(see Devendra Nath Singh vs. State of Bihar & Ors.,
(2023) 1 SCC 48, para 45). Whether further
investigation should or should not be ordered is within
the discretion of the Magistrate and the said discretion
is to be exercised on the facts of each case in
accordance with law. This Court also held that in an
appropriate case, where the High Court feels that the
investigation is not in the proper direction and to do complete
justice where the facts of the case so demand, the inherent
powers under Section 482 Cr.P.C. could be exercised to direct
further investigation or even reinvestigation. This Court
reiterated the principle that even under Section 482 Cr.P.C.
the wide powers are to be exercised fairly with
circumspection and in exceptional cases.
37. Applying the above law to the facts of the present case,
we find that for the following reasons the direction for further
investigation is absolutely unwarranted:-
i. The application for further investigation was filed
in January 2020 by respondent no. 1. The charge sheet
under Section 173 Cr.P.C. too had been filed as early
as on 11.07.2013.
ii. On 20th December, 2016, PW-1 Padikasu was examined,
he was recalled and cross-examined on 25.07.2019.
iii. Respondent No. 1 (who is the applicant for further
investigation) herself was examined on 18.03.2017. There is
no whisper in her deposition about what she now seeks to
contend in the application for further investigation. There was
nothing that had prevented her from deposing in the box
about any failure of the investigating officer, to enquire
Kattarimani or any person concerned; about R. Natrajan, M.
Muthu and S. Ramasamy being occurrence witnesses and
about K.Ganesan S/o Late Kumar, P. Karmagan S/o
Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o
Padikasu and C. Audiappan S/o Chinnaiah being eye
witnesses, and about how such failure has caused prejudice.
5
iv. In fact, seeking the examination of these five witnesses
mentioned hereinabove, first respondent filed application
under Section 311 Cr.P.C. which came to be dismissed by the
trial court on 29.11.2019 and was confirmed by the High
Court. The application under Section 311 Cr.P.C. itself was
filed on 22.10.2019, that is after a period of about six years
after the filing of the charge-sheet.
v. It is only when the High Court dismissed her petition
under Section 311 Cr.P.C. stating that she had not made any
prayer for further investigation that she filed the present
application in January, 2020. At the stage when she filed the
application for further investigation, the accused had
concluded oral arguments and had also filed written
arguments.
vi. The trial court dismissed the application stating that the
respondent no. 1 when examined as PW-2 did not speak
anything about what she had mentioned in her application
and that though the final report was filed as early as on
11.07.2013, respondent no. 1 has filed the application for
further investigation only in January, 2020. Though, the trial
court held that no further investigation could be ordered at
the post cognizance stage, we have, as explained above, not
proceeded on that reasoning, since that is clearly erroneous.
vii. The High Court has not recorded any reason whatsoever
and has not set out any legal principle which is relevant and
applicable to the facts. All that is said is the Section 311
petition of the respondent no. 1 has been denied on the
ground that [2024] 10 S.C.R. 15 K. Vadivel v. K. Shanthi &
Ors. she has not filed a petition for further investigation; that
denial of relief would cause prejudice to respondent no. 1;
that PW-1 has turned hostile and that being a murder case, it
is decided to order for further investigation. Not one of the
legal principles adverted to hereinabove has been considered
by the Court.
viii. As pointed out hereinabove, the failure to claim further
investigation at that stage was not the only basis for the
High Court to reject the revision against the dismissal of the
Section 311 application. The High Court had given other
detailed reasons also like PW-1 and PW-2 not whispering
about the additional witnesses, when they deposed in Court.
38. We are convinced that ordering the additional charge
sheet to be taken on record at this stage pursuant to the
further investigation will not be in accordance with law. It
will be contrary to the settled principles as laid down by this
Court. We have also to satisfy ourselves examined the
additional charge sheet placed before us. Primarily, apart
from explaining the motive which is already set out in the
evidence of PW-2, there is a reference to three of these
witnesses named in this application as having come to
rescue of the deceased after hearing the noise raised by the
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deceased. It is now alleged that A-5 tried to prevent the said
two witnesses from approaching Kumar and threatened them
with the sickle. It is also alleged that at that point these
witnesses saw A-1 and A-4 committing overt acts on the
deceased.
43. Soon thereafter in January, 2020, virtually the same
grounds which had been rejected earlier were rehashed in
the form of an application under Section 173(8) Cr.P.C. on
behalf of the respondent no. 1. The State, which had hitherto
opposed all the applications up to the High Court, turned
turtle and stoutly supported the respondent no. 1 in this
Court without offering any tenable justification as to how the
earlier investigation which had arrayed eight accused for
trial lacked credibility.
44. The net result has been that all the stakeholders in the
process have contributed to the delay and in spite of eleven
years having elapsed after the incident, the trial has still not
concluded. No doubt, the High Court allowed the further
investigation which we have today reversed. The judgment of
the High Court also gave no valid justification for ordering a
further investigation.
45. The victims of crime, the accused, and the society at
large have a legitimate expectation that justice will be
available to the parties within a reasonable time. It is beyond
cavil that speedy and timely justice is an important facet of
rule of law. Denial of speedy and timely justice can be
disastrous to rule of law in the long term. Even if the parties
involved in a case themselves, with no valid justification
attempt to delay the proceedings, the courts need to be
vigilant and nip any such attempt in the bud instantly. The
administration of justice feeds on the faith of the citizenry
and nothing should be done to even remotely shake that faith
and confidence.
46. The legal profession has an important role to play in the
process. Any proceeding or application which prima facie
lacks merit should not be instituted in a court. We are
constrained to observe this because of late we notice that
pleadings/petitions with outrageous and ex facie
unbelievable averments are made with no inhibition
whatsoever. This is especially so in some family law
proceedings, both civil and criminal. Reading some of the
averments therein, we are left to wonder whether at all the
deponents were conscious of what has been written
purportedly on their behalf, before appending their
signatures. These misadventures directly impinge on the rule
of law, because they add to the pendency and the
consequential delay in the disposal of other cases which are
crying for justice. It is time that such frivolous and vexatious
proceedings are met with due sanctions in the form of
exemplary costs to dissuade parties from resorting to such
7
tactics. If we have desisted from such a course in this case, it
is only because the High Court allowed the petition and it is
here that we have, reversing the High Court, dismissed the
petition for further investigation.
47. In view of what has been stated hereinabove, we set
aside the judgment of the High Court dated 30.04.2021 in
Criminal RC (MD) No. 533 of 2020. Consequently Cr. M.P. No
40/2020 in S.C. No. 61/2014 filed by the respondent no. 1
before the Court of Additional District and Sessions Judge for
further investigation under Section 173(8) Cr.P.C. would
stand dismissed. We further direct that, in view of the
dismissal of the application, the additional charge sheet
dated 02.12.2021 will not be taken on record. The appeal is,
accordingly, allowed.”
8. In Gudalure M.J. Cherian and Ors. vs Union of India (Uoi) and Ors.,
AIRONLINE 1991 SC 214, on December, 1991, the Supreme Court
held:-
“9. It is not necessary for us to go into various facts and
circumstances mentioned by the petitioners in the writ
petition in support of their apprehensions that the
investigation in the case by the police was not fair and the
victims are not likely to get justice by the authorities in the
State of Uttar Pradesh. Four accused persons have been
arrested in connection with the crime and the trial against
them is likely to commence. The investigation having been
completed by the police and charge-sheet submitted to
the court, it is not for, ordinarily, to re-open the
investigation specially by entrusting the same to a
specialised agency like CBI. We are also conscious that of-
late the demand for CBI-investigation even in police cases is
on the increase. Nevertheless – in a given situation, to do
justice between the parties and to instill confidence in the
public mind it may become necessary to ask the CBI to
investigate a crime. It only shows the efficiency and the
independence of the agency.”
9. 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
8charges 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.
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.
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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
commands 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
10investigation 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”.”
10. In State through Central Bureau of Investigation vs. Hemendhra
Reddy & Anr. etc., in Criminal Appeal Nos. …………. 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
11investigation 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
agency 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
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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
would 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
13in 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. 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)”
11. Further investigation leads to collection of further evidence to unveil the
truth.
12. 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).
13. 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 the action taken by Pune Police was
14in 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
investigation 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
15Gandhi6, 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 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:
16
“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 serious 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
17
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.”
14. 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:-
“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.
18
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,
but 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,
19
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 of 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
20
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 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
21enshrined 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
dealing 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
22investigating 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 “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
23
the CrPC, and cannot 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 dealing 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
24proceedings 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.”
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
25
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 not 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
26open/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:
“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.”
27
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 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.”
28
15. 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: –
“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.”
29
16. It appears that the prayer for further investigation has been made
almost two years after the submission of the charge-sheet.
17. From the materials in the case diary, it appears that the investigation
already conducted in the present case has been thorough, just and fair.
(a) The evidence collected during investigation by the investigating
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 prima facie visible.
(c) Full and material facts have been brought on record.
(d) Prima facie there has been no laches in the investigation which
calls for a direction for re-investigation/further investigation in
this case.
(e) The investigation 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.
18. Considering the materials in the case diary, it appears that the
investigation in the present case as conducted is complete and at this
belated stage does not call for further investigation. The trial Court is
competent to consider all the materials on record at the time of
framing of charge and is also empowered under Section 216 of
Cr.P.C. to alter charge at any time before judgment is pronounced.
19. In view of the observations made above, this Court finds no irregularity in
the order under revision and as such, the revisional application being
CRR 2536 of 2022 is disposed of with the direction that the learned Trial
30
Judge at the relevant time of trial shall consider the prayer of the de
facto complainant in respect of the issues raised before this Court.
20. Thus this is not a fit case where the inherent jurisdiction of this Court
should be exercised directing re-investigation/further investigation.
21. The order under revision requires no interference by this Court.
22. The revisional application being CRR 2536 of 2022 is thus dismissed.
23. Trial Court to proceed in accordance with law expeditiously.
24. All connected applications stand disposed of.
25. Interim order, if any, stands vacated.
26. Copy of this judgment be sent to the learned Trial Court for necessary
compliance.
27. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
[Shampa Dutt (Paul), J.]
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