Criminal

Distinction between further investigation and re-investigation

CODE OF CRIMINAL PROCEDURE

‘Investigation’, it may be noted, has been defined in section 2 (h) of the code. The Supreme Court, in H.N. Rishbud v. State of Delhi, AIR 1955 SC 196, dealt with the definition of ‘investigation’ under the Code of Criminal Procedure, 1898, which is same as under section 2 (h) of the new code, and, upon analyzing the provisions of Chapter IV of the that Code (which corresponds to Chapter XII of the new Code) described ‘investigation’, thus:

“……………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.”

Before proceeding further, what needs to be noted is that on completion of ‘investigation’, when police submits report, in terms of section 173(2)(i), informing the Magistrate that no incriminating material has been found against the person named as an accused in the FIR or that the materials, unearthed during ‘investigation’, are inadequate to warrant prosecution of the person named as accused in the FIR, such a report is popularly known as ‘final report’; whereas a report, which the police submits, in terms of the provisions of section 173(2)(i), stating to the effect that materials, warranting prosecution of all or of some of the persons, named in the FIR, have been unearthed on ‘investigation’, such a report, suggesting prosecution of any person, as an accused, is commonly known as ‘charge sheet’.

On completion of ‘investigation’, conducted by police or any other agency, when either no incriminating material is found against a person or the ‘investigation’, so conducted, is unsatisfactory or improper and, in such a case, when an ‘investigation’ is directed or commenced by an agency, which is not only distinct and different from the agency, which had conducted the earlier ‘investigation’, but is also an agency, which is under the control of an authority, other than the one, which had control over the agency, which had conducted the earlier ‘investigation’, it becomes a case of ‘re-investigation’. Say, for instance, when an ‘investigation’, conducted by the local police, has resulted into submission of final report or charge sheet and some allegations are made that the ‘investigation’ conducted was not proper or mala fide and when, in such a situation, the State Government entrusts the case for ‘investigation’ to its any other or superior agency, such as. Criminal Investigation Department (‘the CID’), such an ‘investigation’ can be regarded as ‘further investigation’ and not ‘re-investigation’, for, the police and the CID come under one and the same Government. However, on completion of ‘investigation’ by the local police or the CID or without completion thereof, an ‘investigation’ is commenced by an agency, say for instance by the Central Bureau of Investigation (i.e., CBI), which comes under an authority, which is distinct and different from the State Government, it becomes a case of ‘re-investigation’ [See State of Andhra Pradesh v. A.S. Peter, (2008) 2 SCC 383].

What is also important to bear in mind is that a ‘further investigation’ is neither ‘fresh investigation’ nor it is ‘re-investigation’. A ‘further investigation’ really means an additional ‘investigation’, for, it is a continuation of the earlier ‘investigation’ and not a ‘fresh’ or ‘re-investigation’, which starts ab initio, though the materials, which may have surfaced and unearthed during earlier ‘investigation’ may be taken into account by the officer or the investigating agency conducting ‘re-investigation’. Distinction between ‘fresh investigation’ and ‘re-investigation’, on the one hand, and ‘further investigation’, on the other, has been dealt with, and succinctly described, in K. Chandrasekhar (supra), wherein an ‘investigation’ was conducted by the CBI, but the State withdrew its consent given earlier for ‘investigation’ of the case by the CBI. The question arose as to whether withdrawal of consent by the State is permissible? This question was answered in the negative. While holding that the ‘investigation’ must be directed to be completed by the CBI, the Supreme Court drew the distinction between ‘re-investigation’ and fresh ‘investigation’ in the following words:

“24. From a plain reading of the above section it is evident that even after submission of police report under sub-section (2) on completion of ‘investigation’, the police has a right of “further” ‘investigation’ under sub-section (8) but not “fresh ‘investigation'” or “‘re-investigation'”. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27-6-1996 (quoted earlier) that the consent was being withdrawn in public interest to order a “‘re-investigation'” of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a “‘further investigation’ of the case” instead of “‘re-investigation’ of the case”. 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 ‘re-investigation’ 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’. Once it is accepted and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji that an ‘investigation’ undertaken by CBI pursuant to a consent granted under section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that ‘further ‘investigation’ is a continuation of such ‘investigation’ which culminates in a further police report under sub-section (8) of section 173, it necessarily means that withdrawal of consent in the instant, case would not entitle the Slate Police, to further investigate into the case. To put it differently, if any ‘further investigation’ is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether section 21 of the general clauses act applies to the consent given under section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala.” (emphasis added).

 In State of Andhra Pradesh v. A.S. Peter, (2008) 2 SCC 383 , it was pointed out that it was not correct to contend that ‘investigation’, when handed over to the CID, was an ‘investigation’ by a different agency, for, points out the Supreme Court, in A.S. Peter (supra), the CID is a part of the investigating authorities of the same State and it was, therefore, permissible for the higher authority of the State to direct ‘further investigation’ by the CID. Reliance, in this regard, has been placed by the Supreme Court, in A.S. Peter (supra) at para 13, on the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554. The relevant observations, at para 13, in A.S. Peter (supra), read:

“13. This aspect of the matter is covered by a decision of this court in State of Bihar v. J.A.C. Saldanha wherein it was held:

‘19…….This provision does not in any way effect the power of the Investigating Officer to further investigate the case even after submission of the report as provided in section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under section 3 of the Act lacked the power to direct ‘further investigation’ into the case. In reaching this conclusion we have kept out of consideration the provision contained in section 156 (2) that an ‘investigation’ by an Officer-in-Charge of a police station, which expression includes police officer superior in rank to each officer, cannot be questioned on the ground that such Investigating Officer had no jurisdiction to carry on the ‘investigation’; otherwise that provision would have been a short answer to the contention raised on behalf of the respondent No. 1.”

What emerges from the above discussion is that a ‘further investigation’ is nothing but continuation of the earlier investigation; whereas, a ‘re-investigation’ or a ‘fresh investigation’ would be an investigation, which would be ab initio in nature wiping out the earlier investigation altogether. In other words, a ‘further investigation’ is the continuation of the earlier investigation, which commences by virtue of the provisions of section 173(8), cr.p.c. and culminates into such further ‘police report(s)’as the police or the investigating agency may submit. In short while ‘further investigation’ results into filing of further or additional ‘police report’ under section 173(8), ‘re-investigation’ or ‘fresh investigation’ results into ‘police report(s)’as envisaged by section 173(2), Cr.P.C.

Considering the fact that this present writ appeal arises out of the present appellant’s application, made in the learned trial court, seeking a direction for ‘further investigation’ to be issued to the police, it is necessary to trace out, in brief, how the law on the concept of ‘further investigation’ has developed in India. This is, to our mind, necessary for the purpose of determining as to how far the judicial pronouncements, rendered on this aspect of law, has developed and taken shape.