Criminal

Whether a subordinate court can direct further investigation to arrive at a just decision of a case?

CODE OF CRIMINAL PROCEDURE

Whether a subordinate court can, as held in Mehar Sing’s case (supra), direct, in the name of advancing the cause of justice, ‘further investigation’?

In answer to this volcanic question and disagreeing with the views expressed, in Mehar Sing’s case , that court can, in order to advance the cause of justice, direct ‘further investigation’, the Supreme Court clearly pointed out, in Randhir Singh Rana’s case (supra), that be it section 561 a of the old code, or section 482 of the new code, both these sections have saved the inherent power of the High Courts only and it is doubtful if such a power can be said to inherent in subordinate criminal courts too.

152. Thus, the clear answer given by the Supreme Court, in Randhir Singh Rana’s case (supra), was that though the courts, in general, including courts exercising criminal jurisdiction, exist for advancing the cause of justice, every criminal court does not have inherent power and cannot, therefore, unless the legislative provisions so make it possible, direct, on its own, ‘further investigation’ to be conducted by the police in order to advance cause of justice or ‘to arrive at a just decision of the case’. To put it a little differently, what has been held, in Randhir Singh Rana’s case (supra), is that after cognizance has been taken, the accused has appeared and the stage for consideration of framing of charge, or explaining the particulars of offence, as the case may be, is reached, a trial court cannot, on its own, in the name of advancing the cause of justice, or to prevent miscarriage of justice, or to arrive at a ‘just decision of the case’, direct ‘further investigation’ to be conducted by the police in order to remove some defects, which may have come to the notice of the court inasmuch as such a power can be exercised by the High Courts only by taking resort to its inherent powers saved in section 482. The relevant observations, made in this regard, in Randhir Singh Rana’s case (supra), read, thus;

“6. Question posed by us was if for further investigation, the police should ordinarily take formal permission of the court on its own not ask for further investigation, if the same be thought necessary to arrive at a just decision of the case ? That the courts are meant to advance the cause of justice cannot be doubted. It is really this need of a court of law which had led a Full Bench of the Punjab and Haryana High Court in State v. Mehar Singh 1974 Criminal Law Journal 970, to take the view that even after cognizance has been taken, court can order further investigation in exercise of inherent power, which was read in section 561A of the old Code whose parallel provision in the new code is section 482. As to this decision, it has to be pointed out that in terms both these sections have saved the inherent power of the High Court only; it is doubtful whether the said power can be said to inhere in subordinate criminal court also.”

(emphasis added)

153. In Randhir Singh Rana’s case (supra), it was contended by Mr. Vasdev, learned counsel for the appellant, Randhir Singh Rana, that the Code has compartmentalized the powers to be exercised at different stages of a case, namely, at the time of cognizance, after cognizance is taken, after appearance of the accused, and after commencement of trial on charge being framed. It was argued by Mr. Vasdev that the power of ‘further investigation’, undoubtedly, exists in the first stage, may exist at the second stage and section 311 permits the court to examine any witness during the course of trial. But at the third (intermediate) stage, this power has not been conferred on a court. All that has to be done, at that stage, is to look into the materials already on record and either frame charge, if a prima facie case is made out, or discharge the accused bearing in mind the provisions relating to the same. Of course, the discharge would not prevent ‘further investigation’ by police and submission of charge sheet also thereafter if a case for the same is made out.

154. Agreeing with Shri Vasdev’s contention, that at the post-cognizance stage, a Magistrate cannot, of his own, order ‘further investigation’, the Supreme Court observed:

“………… we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate of his own cannot order for further investigation. As in the present case, the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge sheet.”

(emphasis added)

Whether a Magistrate can direct further investigation, at the instance of the complainant, victim or aggrieved person, after cognizance has been taken?

155. In the light of what has been observed above, one can have no option but to conclude and, in fact, it is not even disputed that Ranbir Singh Rana (supra) lays down that a Magistrate cannot, of his own, direct further investigation to be conducted by the police if cognizance has already taken and the accused has entered appearance. Ranbir Singh Rana (supra) also clearly lays down that a Magistrate cannot, in the name of advancing the cause of justice, or to arrive at a just decision of the case, direct further investigation to be conducted by the police if he does not, otherwise, have the power to direct such further investigation meaning thereby that since a Magistrate does not have the power to direct, on his own, further investigation after cognizance has already been taken and the accused has entered appearance, he cannot direct such further investigation of his own for the purpose of advancing the cause of justice or even to arrive at a just decision of the case.

156. No way, therefore, a Magistrate can direct further investigation of his own and if he cannot direct further investigation of his own, it is not possible to hold that he can direct such an investigation on the basis of any petition filed by the informant, de facto complainant, aggrieved person or the victim.

157. We have already pointed out above, that in the decisions, which have been rendered subsequent to Randhir Singh Rana’s case (supra), the Supreme Court has not deviated from the position of law laid down in Randhir Singh Rana’s case (supra), namely, that a Magistrate cannot, of his own, order ‘further investigation’ after cognizance has been taken and the accused has appeared. So long as Randhir Singh Rana (supra) holds the field, as it does, indeed, even today, we are of the view that there can be no escape from the conclusion that a Magistrate cannot, on his own, direct ‘further investigation’ on a defect or deficiency having come to his notice. Naturally, therefore, the mere fact that such a defect or deficiency has been brought to the notice of the Magistrate by the informant, or the de facto complainant, or the aggrieved person, or the victim, would not, and cannot, clothe the Magistrate with the power to order ‘further investigation’ so as to advance the cause of justice or to prevent miscarriage of justice or to arrive at a just decision of the case. The remedy, in such a case, lies in making appropriate application under section 482 of the code inasmuch as section 482 preserves the inherent power of the High Court. It is in this context that the following observations were made, in Rosendra Chandra Das (supra), which we fully agree with:

“46. What surfaces from the discussion, held as a whole, is that in a case, where an accused appears, pursuant to process issued by the court upon taking cognizance of offences, following submission of ‘police report’ under section 172(3)(i), neither the court, on its own, direct ‘further investigation’ nor has the informant or aggrieved party any right to obtain a direction for ‘further investigation’, for, the prosecution agency, in such a case, remains the State and if any ‘further investigation’ has to be conducted, if has to be at the instance of the State and, in fact, in an appropriate case, even the State must seek formal permission from the court to re-start investigation if the investigation, conducted earlier, was improper or perfunctory. The remedy of the informant, therefore, lies in making application, under section 482, cr.p.c., to the High Court seeking appropriate direction in the matter. What, indeed, a court can do, when a petition, as in the present case, is made seeking proper or ‘further investigation’ after the accused has already entered appearance, is that the court can and, in a befitting case, must, direct the State, i.e., the Public Prosecutor, to look into the grievances of the informant or the aggrieved party, as the case may be, and do the needful in accordance with law. If, in such a case, the Public Prosecutor, on a dispassionate and legally permissible examination, takes the view that the matter needs to be further investigated, the State can commence ‘further investigation’; but, ordinarily, it would be in the fitness of the things if the State obtains formal permission from the court, where the trial is being conducted.”

(emphasis added)

158. Coupled with the above, one must also bear in mind that the High Court, in an appropriate case, may invoke its extraordinary jurisdiction under article 226 of the constitution of india to direct either ‘further investigation’ or ‘re-investigation’ in a case. [See State of Haryana v. Bhajanlal and Ors., 1992 Supp (1) SCC 335]