Criminal

 Concept of further investigation 

CODE OF CRIMINAL PROCEDURE

Under the Code ‘investigation’ consists, generally, of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the ‘investigation’ and to be produced at the trial, and (5) information of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by the filing of charge sheet under section 173 .

160. ‘Further investigation’ is nothing, but continuation of an earlier investigation. In ‘further investigation’, thus, the investigation, which might have been conducted in the past, would be resumed and conducted further.

161. As against ‘further investigation’, a ‘‘re-investigation’ is an investigation, which is a new and fresh investigation wiping out the earlier investigation and ‘re-investigation’ is conducted by an agency, which is not only different from the earlier investigating agency, but also must be one, which falls under the control, supervision or jurisdiction of an authority not only different from, but also independent of, the authority, which had the control, supervision or jurisdiction over the earlier investigating agency. In this sense, on investigation conducted by an investigating agency, such as, Criminal Investigation Department of a State, is not different from the ordinary police machinery of the State concerned, because both of them are under the jurisdiction of the same State; whereas Central Bureau of Investigation (C.B.I) is an authority, which is different from the normal police investigation of the State or its Criminal Investigation Department. As has been pointed out in clear terms, in A.S. Peter (supra), what section 173(8) permits is a ‘further investigation’ and not a ‘re-investigation’. What is, however, extremely important to bear in mind is that a reinvestigation being prohibited by law, it would not, ordinarily, be ordered by a superior court. It, thus, becomes clear that a ‘reinvestigation’ would be ordered in the situations, which are extraordinary, rare and cannot be met by a ‘further investigation’.

162. Section 173(8) can give rise to, broadly speaking, four distinct situations, where the question of ‘further investigation’ may arise. The police report, which does not suggest prosecution of an accused and which is, ordinarily, called ‘final report’, may not be accepted by the court on its own examination or, if, upon notice received, the informant, or de facto complainant, or the aggrieved person, or the victim, raises objection, or points out some omission, deliberate or otherwise, defect or deficiency in the investigation. In a case, therefore, either of his own, on noticing a defect or deficiency in an investigation, or when such a defect or deficiency is brought to the notice of the Magistrate by the informant, de focto complainant, aggrieved person or victim, the Magistrate can direct further investigation if he has not already taken cognizance and if the defect, deficiency or omission warrants ‘further investigation’. One must, of course, bear in mind, that in both the cases aforementioned, a direction for ‘further investigation’ is given without really taking cognizance of any offence.

163. A situation may arise, where the police submit a ‘police report’, in the form of a charge sheet, suggesting prosecution of an accused, but the some may not be accepted by the court either on its own or on the protest raised by the informant, de facto complainant, aggrieved person or victim. The case of Rosendra Das (supra) is a case, which falls in this category, because what had happened in Rosendra’s case (supra) was that the informant had made allegation of assault against four persons, who were named by the informant in the First Information Report (FIR), but the police, on completion of investigation, laid charge sheet against one person only out of the four persons named in the FIR. In such a situation, as has been held in Rosendra’s case (supra), which we fully agree, the Magistrate ought not to have accepted the charge sheet in its entirety without giving notice to the informant. On receiving the notice, if the informant had raised objection, the Magistrate was bound to consider if it was appropriate and justified, on the part of the police, to submit charge sheet against only one of the four accused persons named in the FIR. If the Magistrate would have formed the opinion, sustainable in law, that further investigation was necessary, there was no impediment, on the part of the Magistrate, to order ‘further investigation’. The directions for such a further investigation would, once again, be without taking cognizance of any offence.

164. There is, of course, a distinction between the two situations described hereinbefore. While in the former case, the ‘further investigation’ was directed by not accepting a final report, the latter direction for ‘further investigation’ was given despite the fact that there was a charge sheet filed by the police on completing their investigation, but the charge sheet is not accepted by the Magistrate for reasons, such as, the reason that the police report does not disclose as to why all the persons, named by the informant in his FIR, have not been made accused in the case. The common threat, however, running between the two situations aforementioned is the fact that in both the situations aforementioned, no cognizance was taken by the Magistrate.

165. As against the situation, which we have visualized above, relating to ‘pre-cognizance’ stage, we may, now, turn to the ‘third’ situation, where ‘further investigation’, at the ‘post-cognizance’ stage, may be needed. After a court takes cognizance, a defect or deficiency in the investigation may come to the notice of the court, or such a defect or deficiency may be brought to the notice of the court by an informant, de facto complainant, aggrieved person or the victim. In neither case, in the face of the clearly laid down position of law, in Randhir Singh Rana’s case (supra), that a court cannot, on its own, direct ‘further investigation’, when the trial has commenced, it becomes clear that even on the request of an informant, de facto complainant, or the aggrieved person, the court would have no power to direct ‘further Investigation’.

166. In fact, it is difficult to conceive of a situation, where the court, on noticing a defect or deficiency, on its own, cannot, in the name of advancing cause of justice or to arrive at a ‘just, decision’ of a case or to prevent miscarriage of justice, direct ‘further investigation’, but it can, at the same time and on the same defect or deficiency being brought to its notice by the informant, or the de facto complainant, or the aggrieved person, or the victim, would have the power to direct ‘further investigation’.

167. Necessary, therefore, one has to hold that so long as the law, laid down in Randhir Sing Rana (supra), is not overruled, neither on its own nor on the request of the informant, or the de facto complainant, or the aggrieved person, or the victim, a court can direct ‘further investigation’, when the accused has already entered appearance and the stage for framing of charge has been reached.

168. The ‘fourth’ situation can be a situation, when the police seeks permission of the court to conduct ‘further investigation’, or a situation, when the court finds that there is a defect or deficiency in the investigation, which warrants ‘further investigation’. In such a situation, there can be legal impediment, on the part of The court, to direct the Public Prosecutor to decide, as a State, as to what it shall do. In such a situation, the State, having assumed the responsibility of conducting the prosecution, cannot leave the prosecution halt-done or defective. The State would have, in such a situation, no justification for not conducting ‘further investigation’. For instance, there may be a case, where a weapon has been relied upon by the prosecution as the weapon of offence, but the weapon, having not been serologically examined, may require confirmation by a serological examination. Such a defect or deficiency, in investigation, may be noticed by the court on its own, or may be brought to its notice by the informant, or by the victim, or by the Public Prosecutor himself. In such a case, when the Public Prosecutor makes application seeking ‘further-investigation’, such a request would be treated to be a request made by the investigating agency, because it is the Public Prosecutor, who represents a State in the trial in a court.

169. Though the Public Prosecutor does not form part of the investigating agency, he does speak for the State, which assumes the responsibility, in the criminal trial, to prosecute an accused, particularly, in a case of murder and, that is why, none other than a Public Prosecutor can conduct a sessions trial and the court has no power to allow, as in the case of Shiv Kumar v. Hukam Chand and Anr., (1999) 7 SCC 467, a private counsel to conduct prosecution in a sessions case even if the Public Prosecutor agrees to allow an informant’s or a victim’s counsel to conduct the prosecution. When the request comes, in such a case, from the Public Prosecutor for granting permission for ‘further investigation’, it would be very difficult for a court to not to permit ‘further investigation’. At any rate, the court will not have the power to refuse permission for ‘further investigation’ merely on the ground that the application has been made seeking ‘further investigation’ by the Public Prosecutor or by the Additional Public Prosecutor in-charge of the case and not by the police if the permission, sought for, is, otherwise, necessary.