Scope of High Court’s power to direct further investigation’ under articles 226, 227 and section 482 of the code

What is, now, extremely important to note is that article 227 vests in the High Court the power of supervisory jurisdiction so as to keep the courts and tribunals within the bounds of law. When a court’s order is correct and in accordance with law, the question of reversing such an order in exercise of power under article 227 does not arise. Same is the situation at hand. Since the learned trial court, in the present case, could not have directed ‘further investigation’ (as already held above) on the request of the de facto complainant or the victim, such as, the present appellant, the impugned order, declining to direct further investigation, cannot be said to amount to refusal to exercise jurisdiction. If the case at hand warranted ‘further investigation’, then, the remedy of the informant, de facto complainant or the victim, such as, the present appellant, lied in approaching the High Court either by making an application under section 482 of the code or by making on application under article 226 inasmuch as the High Court has, in appropriate cases, the power to direct ‘further investigation’ in exercise of its inherent power under section 482 of the code as well as in exercise of its extraordinary jurisdiction under article 226 of the constitution of india if the facts of a given case so warrant.

In fact, recognizing the power of the High Court under article 226 to direct the State to get an offence ‘investigated’ or ‘further investigated’, the Supreme Court has held, in Kishan Lal (supra), that in a given situation, the superior Court, in exercise of its Constitutional power, namely, under articles 226 and 32 of the constitution of india,can direct the State to get an offence ‘investigated’ and/or ‘further investigated’ by a different agency. The relevant observations, made by the Supreme Court, in this regard, read, thus:

“The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice.”

(emphasis added)

 The order impugned, in the writ petition, could not have been said to be an illegal order to the extent that the same declined further investigation on the basis of the present appellant’s petition filed in the learned trial court. Seen in this light, when the impugned order was not illegal, the question of reversing the order, by taking recourse to supervisory jurisdiction of the High Court under article 226, could not have validly arisen.

206. The question as to whether the present appellant’s grievances against alleged unfair and manipulated investigation is justified or not and, if justified, whether the learned Single Judge ought to have, in the facts and attending circumstances of the present case, directed further investigation, is a question, which needs to be, now, answered in this appeal.

207. While considering the above aspect of this appeal, one has to also bear in mind that the prayer made by a party, in any criminal or civil trial, shall not be the sole determining factor as to whether a person is or is not entitled to the relief, which he has sought for. If the law, on the basis of the facts brought on record, requires a relief to be given to a party, such a relief ought not to be disallowed merely because the party has not specifically sought for such a relief unless, of course, the party concerned himself refuses to receive such a relief.-

In the present case, there is no doubt that the prayers, made by the learned Additional Public Prosecutor as well as the present appellant, were for further investigation; but it was the duty of the learned trial court to determine if the prayer was for further investigation or the requirement of the case would be met not by further investigation, but by re-investigation. It was, therefore, necessary for the learned Single Judge too to determine if the facts brought on record necessitated direction for re-investigation or further investigation. The present case was not a simple case of lapses committed by the Investigating Officer; rather, the accusations were of manipulation of investigation. If an Investigating Officer is not faithful, honest or truthful, while recording the statement of witnesses, then, such an investigation cannot give rise to a fair trial.

It needs to be noted that the application made by the present appellant, in the learned trial court, clearly reveal that there were, at least, two witnesses, whose statements were recorded by the Investigating Officer in the presence of the Superintendent of Police of the district concerned and yet, for no logical or discernible reason, none of the said two witnesses was cited by the Investigating Officer, in the charge sheet, as a witness for the prosecution. Similarly, for no disclosed reason, the persons, who had been, admittedly, named as assailants in the statements of the said two witnesses, were cited as accused in the charge sheet.

To put it a little differently, no reason, in the present appeal, could be assigned to show as to why two persons, namely, Dayal Guha and Nimai Banik, were not, initially, examined as witnesses and why they were required to be examined in the presence of the Superintendent of Police concerned. There is also no explanation either offered or discernable from record as to why the two persons aforementioned had not been cited as witnesses and why those, whose names appear, in the statement of the said two witnesses, as assailants along the present respondents (who is facing trial) were not named as accused in the charge sheet. These are not mere lapses or ignorance in conducting investigation; rather, these facts make out a case of foul play and deliberate manipulation of investigation and suppression of material facts. What the said two witnesses have said may or may not be true; but there is no reason as to why they could not be cited as witnesses and why those, whose names appear in the statement of the said two witnesses, as accused, had not been named as accused in the charge sheet. Since the present case was a clear case of unfair investigation, it could have been rectified by further investigation as well as by re-investigation. When further investigation is possible, re-investigation shall not be directed.

Both the above admitted facts, as indicated above, clearly made out a clear case of unfair and manipulated investigation. This apart, the learned Additional Public Prosecutor’s petition also disclosed to the learned trial court that on examining the entire matter, he had found that the Investigating Officer had not, truthfully and faithfully, recorded the statements of the witnesses. In such circumstances, if the trial were to be held on the basis of the investigation, which had been conducted, the same would have been a farce.

A trial, based on such manipulated and unfair investigation, as in the present case, would, if we may borrow the language in Babu Bhai (supra), ultimately, prove to be precursor of miscarriage of criminal justice. It is for such cases that the Supreme Court has pointed out and observed, in Babu Bhai (supra), that if the investigation has not been conducted fairly, such vitiated investigation cannot give rise to a valid charge sheet. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place. In no uncertain words, observed the Supreme Court, in Babu Bhai (supra), that not only fair trial, but fair investigation too forms part of constitutional rights guaranteed under articles 20 and 21 of the constitution of indiaand, hence, investigation must be fair, transparent and judicious inasmuch as a fair investigation is the minimum requirement of ‘rule of law’ and no investigating agency can be permitted to conduct on investigation in tainted and biased manner. Held the Supreme Court, in Babu Bhai (supra), that the court must interfere, where non-interference by the court would, ultimately, result in failure of justice.

What emerges from the above discussion is this: Two petitions were filed in the learned trial court, one by the learned Additional Public Prosecutor, and the other, by the present appellant, and they brought enough material on record to show that the investigation conducted was unfair, biased and manipulated. In such circumstances, there were two courses open to this court. This court could have directed either a further investigation or a re-investigation.


Categories: Criminal

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