Whether the court’s power under section 311 and section 319 can be effective substitute for ‘further investigation’

Section 311 and 319 of Cr.P.C cannot be used for investigation or further investigation inasmuch as investigation.

194. Before proceeding further, it needs to be noted that section 311 of the code, can not be a substitute for investigation or further investigation inasmuch as investigation does not consist of only examination of persons acquainted with the facts of a given case either as witnesses or as accused; rather, investigation involves various other steps, such as, search and seizure. The investigation may also include various forensic examinations.

195. Merely on the ground, therefore, that section 311 empowers the court to examine any witness at any stage in order to enable it to arrive at a just decision of the case, it cannot be said that section 311 would serve the purpose of an effective, unbiased and fair investigation. In every case. Section 311 is not necessarily a remedy for a manipulated and motivated investigation.

196. Similarly, section 319 merely empowers the court to add a person as an accused if the evidence on record reveals involvement of such a person as an accused. Section 319 too cannot become a substitute for an effective investigation so as to determine whether a person is or is not involved in an occurrence and whether he is required to be brought to face trial. Thus, neither section 311 nor section 319 can be treated as a complete substitute for a fair investigation.

197. According to the Additional Public Prosecutor’s application, he had found the investigation defective in the sense that the police had not properly drawn the sketch-map nor had the police officer correctly and faithfully recorded the statements of the witnesses. As far as the application, filed by the son of the deceased couple was concerned, the same was made alleging, similar in tune with the Public Prosecutor’s application, manipulation of investigation by pointing out that two of the important witnesses, namely, Dayal Guha and Nimai Banik, who were present on the night of the occurrence, at the residence of the deceased, had not been examined, initially, by the police, though their names had been disclosed and that the said two witnesses were subsequently examined, on protest raised, in the presence of the Superintendent of Police; but even after their examination, the said two persons were not cited as witnesses in the charge sheet and, consequently, all the persons, who were involved as assailants in the occurrence, had not been included as accused.

198. Both the applications, one made by the Additional Public Prosecutor, and the other, by the son of the deceased couple, sought for directions for ‘further investigation’.

199. Considering the fact that we have already held that a court cannot, on the basis of an application made by the informant, de facto complainant or victim, order ‘further investigation’ to be conducted by the police, when the trial has already commenced, it logically follows that even if the grievances of the son of the deceased couple, in the present case, had any justification, the learned court below had no power to direct ‘further investigation’. The remedy of the present appellant, therefore, lied in making, either an application under section 482 of the code or a writ petition under article 226 of the constitution of india, seeking appropriate direction to be issued by the High Court, in exercise of either its inherent power under section 482 or in exercise of its extraordinary jurisdiction under article 226, for further investigation. Whether the present appellant could have made, in the fact situation of the present case, an application under section 482 or an application under article 226 of the constitution of india and whether such an application could have been allowed, in the context of the facts of the present case, is an aspect of the case, which we would consider shortly.

200. Reverting to the petition, which the learned Additional Public Prosecutor had filed, it needs to be pointed out that the learned court below has rejected the learned Additional Public Prosecutor’s petition seeking direction for further investigation by the police merely on the ground that the application has been made by the Additional Public Prosecutor and not by the police.

201. As we have already indicated above, while conducting prosecution in any sessions trial, it is the Public Prosecutor, who represents the State, which includes the police, and when the Public Prosecutor seeks direction for ‘further investigation’, the court cannot refuse to grant permission merely on the ground that the application has been made by the Public Prosecutor and not by the police. If the facts of the case, otherwise, does not warrant a direction for further investigation or a permission for further investigation, situation may be different. Certainly not, however, a direction for further investigation can be declined if the facts of the case, otherwise, so warrant, but the ground that the application seeking permission for further investigation or direction for further investigation has been made by the Additional Public Prosecutor or the Public Prosecutor and not by the police.

202. As already indicated above, it is the duty of a Public Prosecutor to make the court reach the truth and not to merely obtain conviction of a person, who may be accused of a crime. What is necessary, however, to bear in mind is that against rejection of the Additional Public Prosecutor’s application, the State, in the present case, did not file any application for revision or seeking appropriate order under section 482, cr.p.c. nor did the State file any writ application under articles 226 or 227 of the constitution of India.

Supreme Court in Guriya @ Tabassum Tauquir and others v. State of Bihar and another [AIR 2008 SC 95(1)], it has been held as follows:

’14. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word ”evidence” in Section 319 contemplates evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and another (AIR 2006 SC 1892)).’ Learned counsel submitted that the order of the Court below did not call for interference. Learned counsel also submitted that Court below was empowered to exercise powers u/s.319 Cr.P.C. suo motu. [Murugesan vs Malathi [MHC]-26/07/2017]