An application for further investigation in terms of Section 173(8) of Cr.PC was allowed by the Session judge.
The question that arises for consideration is as to whether the Sessions Judge or even the Magistrate, without any petition either by the complainant or by the investigating agency, could order for further investigation.
It further observed that when defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted.
The proceedings in respect of commission of a criminal offence are conducted in three stages. Firstly, “investigation” as defined under Section 2(h) of the Code includes all the proceedings under the Code for collection of evidence to be conducted by a Police Officer or by any person other than the Magistrate, who is authorised by a Magistrate in this behalf. The process of investigation includes an order passed by the Magistrate under Section 156(3) of the Code. Secondly, the “inquiry” as defined under Section 2(g) of the Code means every inquiry other than a trial, conducted under the Code by a Magistrate or Court. Such an inquiry is after the report under Section 173 of the Code is submitted and the Court is ceased of the proceedings before framing of charges. The third stage is that of trial. It takes places in respect of commission of an offence after the court takes cognizance of offence and consequently proceeds to frame charges and collect evidence as provided in Section 4 of the Code.
It is well settled that the Police has absolute right of investigation and in such right of investigation, the court cannot direct filing of charge sheet in a particular manner against any specific accused. Such an enunciation of law was made by the Honourable Supreme Court in AIR-1968-SC-117 (Abhinandan Jha and others Vs. Dinesh Mishra). It has been observed that the scheme of Chapter XIV of the Code shows that the formation of an opinion as to whether or not there is case to place the accused on trial, has been left to the Officer in charge of the Police Station. It was observed that the Magistrate, after report under Section 173 of the Code is submitted, is not bound to accept the opinion of the Police. It is open to the Magistrate to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. The Magistrate can take cognizance under Section 190(1)(c) of the Code, if he does not agree with the opinion of the Police. Such provision is intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute or the Police, either wantonly or through bona fide error, fail to submit a report setting out the facts constituting the offence.
The Honourable Supreme Court in 1979-SCC-Cri-479) Ram Lal Narang and State (Delhi Administration) found that the procedure of ‘suspending cognizance’ does not appear to be warranted by the provisions of the Code. The Honourable Supreme Court has observed as under:-
“In State Vs. Mehar Singh (ILR-1973-2-P&H-561) a Full Bench of the High court of Punjab and Haryana held that the police became functus officio once the court took cognizance of an offence on the filing of a charge sheet by the police and thereafter, further investigation by the Police was not permissible. The police, it was said, could not ‘tinker’ with the proceedings pending in the Court. It was, however, observed that it would be open to the Magistrate to ‘suspend cognizance’ and direct the police to make further investigation into the case and submit a report. The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge sheets, but was of the view that such practice was not sanctioned by the Code. Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering further investigation. The procedure of ‘suspending cognizance’ suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Cr.PC.”
The court recognised the fact that it is in the interests of both the Prosecution and the defence that the police should have power to investigate and in either case, it is for the Magistrate to decide upon further course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the inquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single inquiry or trial. If a case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case.
In Bhagwant Singh Vs. Commissioner of Police and another (1985- 2-SCC-537), a three Judges’ Bench of the Honourable Supreme Court was considering the consequences of a report submitted to the Magistrate under Section 173(2) of the Code. It was held that if, on consideration of report made by the Officer in charge of police station under Section sub section 2(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard, so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.
In Randhir Singh Rana Vs. State (Delhi Administration) (AIR- 1997-SC-639) the Honourable Supreme Court has recognised that the Magistrate has power to order further investigation, but such power cannot be exercised on his own. The Honourable Supreme Court has observed as under:- “11. The aforesaid being the legal position as discernible from the various decisions of this court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred to 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.”
In the aforesaid case, the Magistrate ordered further investigation after the accused put his appearance and the case was at the stage for considering the question as to whether the charge should be framed or the Appellant should be discharged.
In 2009-3-SCC-Cri-1051 (Reeta Nag Vs. State of West Bengal and others) the investigating agency sent for trial sixteen accused in its report under Section 173 of the Code. The charges were framed against those accused, whereas 10 other co-accused were discharged. The complainant prayed for reinvestigation. The said application was allowed. Such order was challenged before the High Court. The Honourable Supreme Court held that after having passed a final order framing charge against six persons and discharge of the remaining accused, it was no longer within the Magistrate’s jurisdiction to direct a reinvestigation into the case. It was observed as under:- “19. As has been rightly held by the High Court, having regard to the decisions of this Court in Master Construction Co. (P) Limited Vs. State of Orissa (AIR- 1966-SC-1047) and Sankatha Singh Vs. State of UP (AIR-1962-SC-1208) which were reflected in Soora Devi Vs. Pyare Lal (1981-1-SCC-500) having passed a final order framing charge against six persons and discharging the remaining accused persons, it was no longer within the Magistrate’s jurisdiction to direct a reinvestigation into the case.
It was noticed that the Judicial Magistrate cannot on his own direct the investigating agency to conduct fresh enquiry, though such an order could be passed on the application of the investigating authorities. It was held to the following effect:-
“21. In addition to the above, the decision of this court in Randhir Singh Rana Vs. State (Delhi Administration) (AIR-1997-SC-639) also makes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities.”
What emerges from the above mentioned decisions of the Honourable Supreme Court is that once charge sheet is filed under Section 173(2) of Cr.PC and either charge is framed or the accused are discharged, the Magistrate, may on the basis of a protest petition, take cognizance of the offence complained off or on the application made by the investigating authorities, permit further investigation under Section 173(8) of the Code. The Magistrate cannot suo-motu direct a further investigation under Section 173(8) of Cr.PC or direct a reinvestigation into a case on account of bar of Section 167(2) of the Code.
The decisions of the Honourable Supreme Court reported in Randhir Singh Rana Vs. State (Delhi Administration) (AIR-1997-SC-639) and 2009- 3-SCC-Cri-1051 (Reeta Nag Vs. State of West Bengal and others) are only decisions that had dealt with the question of power of the Magistrate under Section 173(8) of the Code to order further investigation. The ratio of the case that the Magistrate lacks powers to order further investigation on his own after the filing of the charge sheet has therefore to be taken as the authoritative law on this issue.
Even in the decision cited by the learned Government Advocate reported in Hasanbhai valibha Qureshi Vs. State of Gujarat and others (2004-SCC- Cri-1603) it has been held that 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. It further observed that 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 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 investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts.
At this juncture, it is needless to say that there is definite course of action open to the court under Section 216 of Cr.PC for addition of a charge or alteration of a charge or for addition of accused, Section 319 of Cr.PC can be invoked.
Therefore, in view of the above said legal position of law, I am of the considered view that there is patent error committed by the learned Principal Sessions Judge in directing further investigation under Section 173(8) of Cr.PC merely on the ground that there are some lapses in the investigation. It is seen that the impugned order has been passed based on a wrong understanding of the scope of Section 173(8) of Cr.PC contrary to the law laid down by the Honourable Supreme Court in the decisions cited supra. Therefore, this criminal revision petition has to be allowed and the impugned order is liable to be set aside, as not legally sustainable. [ Madras High Court Subramanian vs State By Inspector Of Police, Dated 27 February 2013 Crl.RC(MD)No.440 of 2012 MP(MD)No.1 of 2013 ]