Sri Rana Sinha @ Sujit Sinha vs The State Of Tripura & Ors

-versus- Respondents: 1. The State of Tripura, Represented by the Secretary to the Government of Tripura, Home Department, Agartala.

2. The Director General of Police, Government of Tripura, Agartala,

3. Sri Dipangshu Ranjan Mazumder The then Officer-in-Charge of Baikhora P.S., Government of Tripura, Agartala.

4. Sri Tapan @ Parah Tapan Mazumder, Son of Late Satish Majumder, Resident of Debdaru, P.S. Baikhora, Belonia, District - South Tripura.

By Advocates: Mr. R. C. Debnath, Spl. Public Prosecutor, Mr. A. C. Bhowmik, Mr. D. C. Roy, Mr. A. Bhowmik, Advocates.

Amicus Curiae: Mr. D. Kabir, Advocate Page No. 2

BEFORE THE HON'BLE MR. JUSTICE I. A. ANSARI THE HON'BLE MR. JUSTICE A. C. UPADHYAY

Dates of hearing : 10.12.2010 & 03.02.2011

Date of delivery of Judgment : 28.04.2011

JUDGMENT & ORDER (Ansari, J)

Article 21 guarantees fair trial. A fair trial is impossible if there is no

fair investigation. In order to be a fair investigation, the investigation must

be conducted thoroughly, without bias or prejudice, without any ulterior

motive and every fact, surfacing during the course of investigation, which

may have a bearing on the outcome of the investigation and, eventually,

on the trial, must be recorded contemporaneously by the Investigating

Officer at the time of investigation. A manipulated investigation or an

investigation, which is motivated, cannot lead to a fair trial. Necessary,

therefore, it is that the Courts are vigilant, for, it is as much the duty of the

Court commencing from the level of the Judicial Magistrate to ensure

that an investigation conducted is proper and fair as it is the duty of the

Investigating Officer to ensure that an investigation conducted is proper

and fair. A fair investigation would include a complete investigation. A

complete investigation would mean an investigation, which looks into all

aspects of an accusation, be it in favour of the accused or against him.

2. Article 21, undoubtedly, vests in every accused the right to demand

a fair trial. This right, which is fundamental in nature, casts a corresponding

duty, on the part of the State, to ensure a fair trial. If the State is to ensure

a fair trial, it must ensure a fair investigation. Logically extended, this would

mean that every victim of offence has the right to demand a fair trial

meaning thereby that he or she has the right to demand that the State

discharges its Constitutional obligation to conduct a fair investigation so

Writ Appeal No. 20 of 2010 Page No. 3

that the investigation culminates into fair trial. The State has, therefore, the

duty to ensure that every investigation, conducted by its chosen agency,

is not motivated, reckless and that the Investigating Officer acts in due

obedience to law. It is only when when the State ensures that the

investigation is fair, can it (the State) be able to say, when questioned,

that the trial conducted was a fair trial. Article 21, therefore, does not vest

in only an accused the right to demand fair trial, but it also vests an

equally important right, fundamental in nature, in the victim, to demand a

fair trial. Article 21 does not, thus, confer fundamental right on the

accused alone, but it also confers, on the victim of an offence, the right,

fundamental in nature, to demand fair trial.

3. The alleged violation of the above-stated principles is at the heart

of the controversy in the present appeal, wherein the appellant is the

unfortunate son, whose parents were put to death at the time, when the

appellant was barely 5/6 years old and claims to have helplessly

witnessed his parents being killed.

BACKGROUND FACTS :

4. Claiming to have completed investigation, the police submitted the

police report under Section 173(2) Cr.P.C., the learned Magistrate, who

received the report, commonly called charge-sheet, did not issue any

notice to informant as to whether he had any comment to offer on the

charge-sheet, which named only one person, i.e. the respondent herein,

as accused. The informant, thus, received no notice and the present

appellant, being a child, had no idea as to what was happening. The

woman, whose son was killed, i.e., the grand mother of the present

appellant, was said to be a witness to the acts of the killing of her son and

the daughter-in-law; but she is no longer alive. Two other persons, who are

claimed to be eye witnesses to the alleged acts of killing of the parents of

Writ Appeal No. 20 of 2010 Page No. 4

the appellant, were, according to the appellant, not, initially, examined

deliberately by the investigating officer and, on protests being raised, the

statements of the said two eye-witnesses were recorded in the presence

of the Superintendent of Police of the district concerned; but, for no

assigned reasons, they were not cited by the police, as witnesses, in the

charge-sheet, though these witnesses had named some other persons too

as assailants.

5. The respondent herein, who was the sole accused facing the trial,

fled away after the charges were framed. On his being apprehended,

when the accused-respondent was brought to face the trial, two petitions

were filed in the learned trial Court, one of the petitions being by the

learned Additional Public Prosecutor, who was responsible for conducting

the trial, and the other by the present appellant, who is the son of the said

deceased couple, both the applications seeking 'further investigation‟.

Both the petitions were rejected by the learned trial Court, the present

appellant's petition being rejected on the ground that the prosecution is

free to examine any witness, who might not have been examined by the

investigating officer or might have been examined, but has not been

cited as a witness in the charge-sheet. As far as the Additional Public

Prosecutor's petition seeking order for 'further investigation‟ was

concerned, the same was rejected on the ground that no fresh facts had

surfaced and the petition, seeking permission for further investigation

ought to have been made by the police and not the Public Prosecutor

and, hence, the petition was not tenable in law.

6. Aggrieved by the refusal of the learned trial Court to direct the

police to conduct „further investigation‟ the appellant herein filed a writ

petition under Articles 226 and 227 of the Constitution of India. As the writ

Writ Appeal No. 20 of 2010 Page No. 5

petition has been dismissed, the son of the deceased, is, now, before us

as appellant.

7. Before we enter into the constitutional and legal issues, which the

present writ appeal has raised, a little more detailed narration of the facts

giving rise to the present appeal is necessary.

8. On 30.08.1990, at about 10/11 PM, according to the prosecution,

the accused-respondent, accompanied by three more persons, entered

into the house of Rajeswar Sinha (since deceased), who was the father of

the present appellant, and killed both Rajeswar Sinha and his wife, Sumita

Sinha, by assaulting them with sharp cutting weapons. The accused-

respondent was seen and recognized, in the electric light, by Smt.

Gyananda Sinha, mother of the deceased Rajeswar Sinha. An oral

information with regard to the occurrence was lodged with Baikhora

Police Station by Anil Sinha, brother of deceased Rajeswar. Based on the

information so received, a first information report was drawn and Baikhora

Police Station Case No. 6(8)90 under Sections 448/302/34 IPC was

registered against the present accused-respondent and 'three unknown

persons‟. The accused-respondent was arrested on 5.10.1990 and was

ordered to be enlarged on bail by order, dated 21.11.1990, passed by the

learned Additional Sessions Judge, Belonia, South Tripura, in Criminal Misc.

Case No.74(3)90.

9. On completion of investigation, police submitted charge-sheet

under Sections 457/302 IPC against the present respondent as accused

and against no other. In course of time, the case, on being committed to

the Sessions Judge by the learned Sub-Divisional Judicial Magistrate,

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Belonia, came to be registered as a sessions case bearing No.S.T. 02(ST/B)

92.

10. In course of time, the accused-respondent appeared, in the Court

of the learned Additional Sessions Judge, Belonia and, on 31.8.1992,

charges, under Sections 452 and 302 IPC, were framed. To the charges so

framed, the accused-respondent pleaded not guilty. Before, however,

the evidence of the prosecution witnesses could be recorded, the

accused-respondent absconded inasmuch as it was submitted before the

learned trial Court, on 17.8.1993, by the learned counsel for the accused-

respondent that the accused had left his place of residence and his

whereabouts were not known to anyone. Eventually, the accused-

respondent was declared as an absconder on 14.11.1994. The accused-

respondent remained absconding until the time he was re-arrested and

produced before the Court. After about 15 years, and to be precise on

27.10.2009, the accused-respondent was, on being re-apprehended,

produced before the Court and remanded to custody. When the case

was pending for recording of evidence, a petition was filed, on

24.11.2009, by the learned Additional Public Prosecutor, who was

conducting the prosecution, seeking permission for further investigation by

alleging and submitting as under :

"With due respect, I would like to inform you that presently I am the Addl. Public Prosecutor of this instant case. The earlier Addl. Public Prosecutor had perhaps intentionally concealed and misplaced the file of this concerned case. It took 7/10 days on my part to trace out this file. After tracing out this file I found lots of controversies and irregularities in the file which are quite unnatural and manmade. Moreover when I tested the prosecution witnesses, they had categorically stated that what they had stated to the I.O. where intentionally omitted and some of the eye witnesses were never been examined by the I.O. for the cause and interest of the defence. The I.O. even did not make out the accurate map with index neither of the P.O. nor the surrounding factors has not been at all taken into account; rather he tried to mislead the investigation for saving and screening the offender. The main purpose of

Writ Appeal No. 20 of 2010 Page No. 7

investigation is to lift the veil from the truth but here in this case it appears that the I.O. has veiled the truth which has resulted into a gross injustice. Impartiality of investigating officer is an essential part of investigation and violation of which is against the principles of settled law, equity and natural justice. It would be a mockery of the law of jurisprudence to continue this case in this condition without further investigation of this case.

Under such a circumstance it is hoped and prayed that your honour will be kind enough to allow and permit further investigation in this matter or else the prosecution will be severely prejudiced."

(Emphasis is added)

11. Closely following the above petition, which was filed by the learned

Additional Public Prosecutor, the present appellant, too, who is, as

already indicated above, son of the said deceased couple, filed a

petition seeking 'further investigation‟. His grievances being, in brief, thus:

"It is submitted most respectfully that at the time of occurrence that is on 30.08.90, the petitioner was present at the place of offence but then the petitioner was a boy of only 5/6 years. On that very night four miscreants suddenly broke into their house and started to assault his father Rajyeshwar Sinha and his mother Sumita Sinha. Those miscreants gave blows to his father and mother. As a result of which both of them succumbed to their injuries at that spot. The grandmother of the petitioner could identify one of those miscreants as Tapan Mazumder with the help of electric light. On that very night two more persons had witnessed the whose incident as they were our guests and were sleeping in our guest room which is adjacent to our room. They are namely Sri Dayal Guha S/o Sri Dhirendra Guha of Debdaru and Sri Nimai Banik S/o Sri Hemchandra Banik. But after seeing the whole incident they fled away out of fear. Later on the next morning the grandmother asked to have their whereabouts, as the situation was very tense. Both the guests used to come and stay in our hut often and on. On that very night it was not an exception. The grandmother told this to the I.O. but the I.O. was very reluctant to record their statements. They had been to the Belonia P.S. but the I.O. told them their statements are not required. But later on their statements were recorded u/s 161 Cr.P.C. by the I.O. in presence of S.P. South Tripura. But ultimately they were not included as PWs but the I.O. obviously for oblique reasons. So for proper ends of justice and to prevent the miscarriage of justice, further investigation in the case is necessary.

It is prayed to direct the police to conduct further investigation to unearth the truth."

(Emphasis is added)

12. Having heard the learned Additional Public Prosecutor, the learned

Additional Sessions Judge, Belonia, passed an order, on 26.11.2009, turning

down the prayer for 'further investigation‟ holding to the effect, inter alia,

Writ Appeal No. 20 of 2010 Page No. 8

as already indicated above, that it is for the police to obtain permission

for further investigation of a case and not the Public Prosecutor and since

there was no petition from the end of the police authority/ investigating

agency seeking orders/ permission for 'further investigation‟ under Section

173(8) Cr.P.C., the petition, filed by the learned Additional Public

Prosecutor, was not tenable in law, particularly, when no fresh facts had

come on record, and that a 'further investigation‟ cannot be ordered to

overcome the controversies and irregularities in investigation.

13. As far as the petition, seeking further investigation, filed by the

present appellant was concerned, the learned trial Court, in its said order,

dated 26.11.2009, observed that he was a witness and as such, no

prejudice would be caused to him if no 'further investigation‟ was

directed and as far as the two other persons, namely, Dayal Guha and

Nemai Banik, were concerned and who were claimed to be witnesses to

the occurrence, but whose statements had not been, initially, recorded

by the investigating officer and whose statements were subsequently

recorded by the investigating officer in the presence of the S.P., South

Tripura, in his office, and yet not cited as witnesses in the charge sheet,

the prosecution can examine them as prosecution witnesses. Yet another

reason, assigned by the learned trial Court, for rejecting the prayer of the

present appellant was that even the present appellant was not the police

authority or investigating agency and, hence, he too had no locus standi

to make any prayer for 'further investigation‟ in terms of Section 173(8)

Cr.P.C. This apart, according to the learned Additional Sessions Judge, the

present appellant was a mere witness and no prejudice would be caused

to him, if „further investigation‟ was not conducted. The relevant

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observations made by the learned trial Court on the appellant's petition

seeking 'further investigation‟ read as under :

"Further another petition was filed by Shri Rana Sinha, son of the deceased that he witnessed the incident and could personally identify the miscreants. He further stated that two witnesses namely, Dayal Guha and Nemai Banik also had witnessed the occurrence, but recording of their statement was denied by the investigating officer and subsequently statement was recorded by the investigating officer in presence of the S.P. South Tripura District, Udaipur, in his office. But these two witnesses are not cited as witness in this case and hence prayed for further investigation.

From the record I find that the petitioner Shri Rana Sinha is the witness of this case and as such nothing prejudice is caused to him. So far as other two witnesses are concerned the prosecution is at liberty to examine them as prosecution witnesses since their 161 Cr.P.C. statement was recorded by the Investigating officer. Further the petitioner though is the son of the deceased, but he is not the police authority or investigating agency and hence he has no locus standi to file a prayer u/s 173(8) of Cr.P.C."

14. Aggrieved by the order, dated 26.11.2009, aforementioned passed

by the learned trial Court, the present appellant filed a writ petition, under

Articles 226 and 227 of the Constitution of India, impugning the said order

and praying for a direction to be issued for further investigation. This writ

petition gave rise to WP (CRL) 03 of 2009. Having heard the learned

counsel for the present appellant, the learned Public Prosecutor and also

the learned counsel for the accused-respondent, the writ petition was

dismissed, on 10.02.2010, by a learned Single Judge of this Court. In the

order, dated 10.02.2010, aforementioned, the learned Single Judge has

pointed out that the prayer for further investigation had been made on

two grounds, namely, two witnesses, whose statements had been

recorded by the I.O. in the presence of the S.P., South Tripura, during

investigation, were not cited as witnesses in the charge sheet for oblique

reasons and that the investigation was also not conducted properly and

legally to find out the truth and as far as the present appellant was

concerned, he claimed to have witnessed the occurrence, when he was

5/6 years old. The learned Single Judge also noted that in the opinion of

Writ Appeal No. 20 of 2010 Page No. 10

the learned Additional Sessions Judge, an application for further

investigation, under Section 173(8) Cr.P.C., could be filed only by the

police authority/investigating agency and, hence, neither the learned

Additional Public Prosecutor nor the present appellant had any locus

standi to file any petition seeking further investigation and that the case

was an old pending one. The learned Single Judge further pointed out

that there is no reason to interfere with the impugned order inasmuch as

Section 173(8) recognizes the power of the police to conduct 'further

investigation‟ and that it is entirely for the police to decide, in a given

case, if there exists sufficient and valid ground(s) for further investigation

and the Court cannot give any direction restraining investigating officer

from conducting further investigation and as the investigating authority

had not applied for further investigation, the learned Additional Sessions

Judge was justified in rejecting the petition filed by the learned Additional

Public Prosecutor. A reference, in this regard, in support of the conclusions

so reached, was made by the learned Single Judge to the case of Reeta

Nag vs. State of West Bengal, reported in (2009) 9 SCC 129. The learned

Single Judge further noted that the case had been pending for the last

about 21 years and a direction for further investigation, at such a belated

stage, would not serve the interest of justice and, if required, the Court

can exercise its powers under Section 311 read with Section 165 of the

Evidence Act and even Court's power under Section 319 Cr.P.C. may, if

necessary, be invoked at the trial.

15. In the order, dated 10.02.2010, aforementioned, the learned Single

Judge observed that a fair trial demands a delicate judicial balancing of

competing interest of the accused, the public and of the victim and that

the Presiding Judge, prosecutor and the defence will have to exercise

Writ Appeal No. 20 of 2010 Page No. 11

their respective roles for discovery, vindication and establishment of the

truth and that non-citing of two witnesses and/or the alleged irregularities

and illegalities in the investigation of the case should not be considered as

a stumbling block for establishing the truth. The learned Single Judge has,

therefore, noted as follows :

"It is as much the duty of the Prosecutor as of the Court to ensure that full material facts are brought on record so that there might not be miscarriage of justice. When the fact of two eye witnesses, whose statements had already been recorded by the I.O., having not been listed for examination is brought to the notice of trial court, the Presiding Judge of the trial court is expected to proceed so as to serve the interest of justice by exercising the powers given by law for the purpose. Section 311 of the Cr.P.C. confers a power to the court not to be merely exercised at the bidding of any one party but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of the society, public interest and miscarriage of justice. It is well settled that recourse may be had by courts to power under Section 311 of the Cr.PC for the purpose of discovering the relevant facts and obtaining proper proof of such facts as are necessary to arrive at a just decision of the case. Powers under Section 311 of the Cr.P.C. read with Section 165 of the Indian Evidence Act and Section 319 of the Cr.P.C. can be invoked by the trial court, as and when situations demand for the purpose of establishing truth and doing justice in the case."

16. Aggrieved by the disposal of the writ petition, the son of the

deceased, as already indicated above, is, now, before us as appellant.

ISSUES:

17. In the backdrop of the narration of facts and the various orders,

which have been passed by the Courts leading to the present appeal,

two questions of great constitutional and legal significance have arisen

for determination. These two questions are:

i) Whether a trial court can, after commencement of trial, direct, in exercise of its power under Section 173(8) CrPC, further investigation to be made, in a case, at the behest of a person, who may be complainant or victim or aggrieved person?

ii) If so, whether a Sessions Judge has the power to direct „further investigation‟ by taking recourse to the provisions embodied in

Writ Appeal No. 20 of 2010 Page No. 12 Section 173(8) CrPC, or, whether such a power can be exercised by taking recourse to Section 482 CrPC only, or, in an appropriate case, under Article 226 and/or 227 of the Constitution of India?

18. In the context of the facts of the present case, four other important

questions, which this appeal has given rise to, are as under:

(a) Whether, after framing of charge, an application, under Section 173(8), would at all lie, when a trial Court has the power, under Section 311 Cr.P.C., to call or re-call any person as a witness, at any stage, if his evidence appears to it to be essential for a just decision of the case and when the trial Court also has the power to add, in exercise of its powers under Section 319 Cr.P.C., a person as accused if it appears from the evidence that he, though not an accused facing trial, had committed any offence for which he could be tried along with the accused, who is facing trial ?

(b) Scope of „further investigation‟ vis-à-vis „fresh investigation‟ and/or „re-investigation‟?

(c) Scope of powers under Articles 226 and 227 of the Constitution of India vis-à-vis Section 482 Cr.P.C.?

(d) Distinction between a situation, where the aggrieved person considers that „further investigation‟ is required, and a situation, where the aggrieved person alleges mala fide and/or unfairness and/or illegality in investigation and prays for an investigation by an independent agency?

19. Having noticed the nature of issues, which this appeal has raised,

this Court appointed Mr. D. Kabir, learned counsel, as Amicus Curiae.

20. We have accordingly heard Mr. S. Talapatra, learned Senior

Counsel, appearing on behalf of the writ petitioner-appellant, Mr. A.

Bhowmik, learned counsel for the accused-respondent. We have also

heard Mr. R. C. Deb Nath, learned Special Public Prosecutor, and Mr. D.

Kabir, learned Amicus Curiae.

SUBMISSIONS ON BEHAL OF THE APPELLANT :

21. Presenting the case, on behalf of the appellant, Mr. Talapatra,

learned Senior Counsel, submits that the appellant is not a complete

Writ Appeal No. 20 of 2010 Page No. 13

stranger to the trial, which the accused-respondent has been called upon

to face, inasmuch as the appellant is the son of the deceased and he,

being the aggrieved person, has the right to demand a fair trial and no

fair trial is feasible unless there is fair investigation; whereas the

investigation, in the present case, was wholly manipulated and cannot

inspire confidence of the Court. In support of this submission, Mr. Talapatra

points out that the statements of the two persons, namely, Sri Dayal Guha

and Sri Nimai Banik, who were witnesses to the occurrence, but whose

statements were deliberately not recorded by the Investigating Officer,

had to be, admittedly, recorded in the presence of the Superintendent of

Police. Had the examination of the said two witnesses by the Investigating

Officer been in the routine course of investigation, there was, points out

Mr. Talapatra, no necessity of the said two witnesses' statements being

recorded in the presence of the Superintendent of Police. This, by itself,

shows, according to Mr. Talapatra, that the investigation was not being

carried out by the Investigating Officer in a fair manner and such an unfair

investigation ought not to be allowed to become basis of a trial, because

the trial, if held, would not be fair and the learned trial Court ought to

have, therefore, ordered „further investigation‟ so that a manipulated

investigation does not become a ground for denial of justice.

22. It is also submitted by Mr. Talapatra that the fact that the

Investigating Officer was not acting impartially and in obedience to law is

clear from the fact that the Investigating Officer, even after examining, as

witnesses, Sri Dayal Guha and Sri Nimai Banik, in the presence of the

Superintendent of Police did not cite them as witnesses in the charge-

sheet. An officer, who can go to the extent of withholding names of the

eye witnesses, cannot, and could not have been, regarded as an

Writ Appeal No. 20 of 2010 Page No. 14

impartial and law abiding Investigating Officer, particularly, in the manner

in which the investigation, in the present case, was conducted and such

unfair and tainted investigation ought to have been rectified by giving

direction for a further investigation, if not re-investigation, so that the

complete truth could be brought out before the Court. In this regard, it is

further pointed out by Mr. Talapatra that even proper sketch map had not

been prepared by the Investigating Officer.

23. The rejection of the present appellant's prayer for a suitable

direction for further investigation was, contends Mr. Talapatra, turned

down by the learned trial Court on a wholly misconceived appreciation of

the powers given to a trial Court under Section 173(8) Cr.P.C. and the

learned Single Judge also failed to realize that in the facts and attending

circumstances of the present case, since the investigation was not fair, the

trial, if held, could not have been described as a fair trial. It is, in this

regard, also pointed out by Mr. Talapatra that the power, conferred on a

Court under Section 311 Cr.P.C., cannot be treated as a substitute for a

fair investigation, but the learned trial court as well as the learned Single

Judge seriously erred in treating as if the Court's power under Section 311

Cr.P.C. read with Section 165 of the Evidence Act can be a good and

effective substitute for a fair investigation.

SUBMISSIONS OF THE ACCUSED-RESPONDENT :

24. Controverting the submissions, made on behalf of the appellant, Mr.

A. Bhowmik, learned counsel for the accused-respondent, submits that

this writ appeal is not maintainable inasmuch as the writ petition, filed

before the learned Single Judge, though labelled as a petition under

Articles 226 and 227 of the Constitution of India, was, in substance, a writ

petition under Article 227 and this Letters Patent Appeal is not

Writ Appeal No. 20 of 2010 Page No. 15

maintainable. Mr. Bhowmik also submits that what the appellant had

sought for, in the writ petition, was setting aside the order, dated

26.11.2009, passed by the learned Additional Sessions Judge turning down

the appellant's prayer for further investigation. This order was, contends

Mr. Bhowmik, a judicial order and even if this order was illegal, the remedy

lied in approaching the High Court to exercise its supervisory jurisdiction

and if, in this light, the impugned order passed by the learned Single

Judge, in the writ petition, is looked into, it becomes clear that the order,

passed by the learned Single Judge, was an order in exercise of the High

Court's power under Article 227 and this appeal is, therefore, not

maintainable inasmuch the High Court rules do not permit any appeal

against an order passed in exercise of the High Court's supervisory

jurisdiction under Article 227.

25. Mr. Bhowmik further submits that a Letters Patent Appeal lies only

against an order passed in original jurisdiction. In the case at hand,

according to Mr. Bhowmik, the learned Single Judge had not exercised

original jurisdiction, because the original jurisdiction, contends Mr.

Bhowmik, had been exercised by the learned Additional Sessions Judge

and the High Court's exercise of power was in the realm of supervisory

jurisdiction and, hence, this appeal is not maintainable. Explaining the

accused-respondent's stand in this appeal, Mr. Bhowmik submits that

Article 226 pertains to original jurisdiction and Article 227 pertains to

supervisory jurisdiction and not original jurisdiction and, hence, the writ

petition, filed by the appellant, was not a petition under Article 226.

26. Resisting the appeal, Mr. Bhowmik also contends that the right to

further investigate a case after filing of charge-sheet is a statutory right of

the police/investigating agency and no such right can be invoked at the

Writ Appeal No. 20 of 2010 Page No. 16

instance of a private party. Mr. Bhowmik also contends that once a

charge-sheet has been filed, cognizance has been taken on the basis of

the charge-sheet, the accused has entered appearance and the

charges have been framed, neither the Court, on its own motion nor at

the instance of the informant or de facto complainant, give a direction

for further investigation. Reliance, in support of this submission, is placed by

Mr. Bhowmik on Reeta Nag vs. State of West Bengal & Ors., reported in

(2009) 9 SCC 129 and Rosendra Chandra Das vs. State of Assam, reported

in (2008) 4 GLT 155.

27. Even on merit, according to Mr. Bhowmik, the appellant has no

case inasmuch as the two persons, namely, Sri Dayal Guha and Sri Nimai

Banik, who have not been cited in the charge-sheet as witnesses, can be

examined, at the trial, by taking recourse to the Court's power under

Section 311 Cr.P.C. This apart, if the evidence comes on record as

regards any other offender, the Court has, points out Mr. Bhowmik, ample

power to add the offender as an accused, in the trial, in exercise of its

power under Section 319 Cr.P.C. The present appeal is, according to Mr.

Bhowmik, aimed at dragging further the process of law and to keep the

accused-respondent in custody without trial. Otherwise also, submits Mr.

Bhowmik, there is no purpose in directing further investigation, when more

than 20 years have already passed.

28. It is submitted by Mr. Bhowmik that an Additional Public Prosecutor is

not a State within the meaning of the Rules of Executive Business of the

Government of Tripura and an Additional Public Prosecutor, not being a

police officer or an investigating agency, could not have sought for a

direction to be issued for further investigation.

Writ Appeal No. 20 of 2010 Page No. 17

SPECIAL PUBLIC PROSECUTOR'S SUBMISSION :

29. As far as the learned Special Public Prosecutor is concerned, his

submission is that the investigation had palpably not been carried out in a

fair manner and there were clear indications of manipulation of

investigation and also suppression of materials, which could prove

incriminating against the accused-respondent, who is facing the trial, and

against those, who are still at large, and, hence, a direction for further

investigation to the police was an absolute necessity and the learned trial

Court incorrectly held that a Public Prosecutor cannot seek a direction for

further investigation in any given case.

SUBMISSION BY THE AMICUS CURIAE :

30. Though Mr. Kabir, learned Amicus Curiae, starts with the submission

that Section 173(8) Cr.P.C., which relates to further investigation, does not

deal with judicial authority and empowers the investigating agency to

investigate further into a case even after a report, in the form of either a

charge sheet or a final report, has been laid before the Court, contends,

eventually, that though it was laid down, in Randhir Singh Rana vs. State of

Delhi, (AIR 1997 SC 639), that the Magistrate cannot suo motu direct

further investigation to be conducted and this decision has been followed

in Reeta Nag (supra) and though it has been held in Reeta Nag (supra)

that a Magistrate cannot direct, on his own, further investigation into a

case after cognizance has already been taken by him on the basis of the

police report, it appears, points out Mr. Kabir, that the Court, in Reeta Nag

(supra), did not take notice of those decisions, which have been rendered

subsequent to the Supreme Court's decision in Randhir Singh Rana (supra)

inasmuch as, according to Mr. Kabir, a noticeable change in the judicial

opinion of the Supreme Court, as regards Court's role and power in

Writ Appeal No. 20 of 2010 Page No. 18

matters relating to further investigation, is clearly discernible since after the

decision in Randhir Singh Rana (supra) was pronounced.

31. Though a trial Court may not have the power, submits Mr. Kabir, to

direct re-investigation in a case, the power to direct further investigation

at the instance of the Court or at the instance of the de facto

complainant would not be impermissible in law inasmuch as it is the duty

of the Magistrate or Court to ensure a fair investigation so that a fair trial

can take place.

32. Appearing as Amicus Curiae, Mr. D. Kabir, learned counsel, points

out, in the light of the decision in Abhinandan Jha vs. Dinesh Mishra,

reported in (1968 Cr.L.J. 1997), that though there was a time, when the

Supreme Court was of the view that a Magistrate is functus officio during

investigation, there is a paradigm shift through subsequent decisions

including Kashmeri Devi vs. Delhi Administration (AIR 1998 SC 1323).

33. Referring to the decision in Kashmeri Devi (supra), Mr. Kabir submits

that this case clearly takes the view that in an appropriate case, even

after charge-sheet has been filed, the Magistrate can direct, in exercise

of its power under Section 173(8), proper and thorough investigation of

the case.

34. Referring to Babulal Jamnadas Patel vs. State of Gujrat, reported in

(2009) 9 SCC 610, Mr. Kabir, learned Amicus Curiae, submits that this case

holds that when it is brought to the notice of the Court that investigation

into an offence was not being carried out in the manner in which it ought

to have been carried out, directions can be given by the Courts to

investigating agencies to conduct investigation, according to certain

guidelines, or else, the very purpose of investigation would become

Writ Appeal No. 20 of 2010 Page No. 19

fruitless. The Court has gone even to the extent of observing, in Babulal

Jamnadas Patel (supra), points out Mr. Kabir, that in appropriate cases,

the Courts may monitor an investigation, when it is satisfied that the

investigation is not being properly proceeded with or is being influenced

by interested persons.

35. It is contended by Mr. Kabir that though the police, in an

appropriate case, can exercise its power to conduct further investigation

without permission of the Magistrate, yet from the pronouncements of the

various decisions of the Supreme Court and the High Courts, it can be

safely gathered to have been recognized that the Courts do have the

power to direct, further investigation not only on its own, but also when an

unfair investigation is brought to its notice by an informant or victim or

aggrieved person.

36. Referring to the case of Hasanbhai Valibhai Qureshi vs. State of

Gujarat (AIR 2004 SC 2078), Mr. Kabir points out that it was a case, wherein

a writ petition, filed under Article 226, seeking re-investigation by an

independent agency, on the ground that the local police had

succumbed to political pressure, was rejected by the High Court, but the

Supreme Court issued direction for further investigation to be carried out

under the supervision of the trial Court. Relying on the case of Hasanbhai

Valibhai Qureshi (supra), the learned Amicus Curiae also points out that

this decision recognizes the position of law that even de hors any direction

from the Court, it is open to the police to conduct further investigation

even after the Court has taken cognizance of offence on the strength of

a police report. In fact, in the case of Hasanbhai Valibhai Qureshi (supra),

further points out Mr. Kabir, it was the Head of the Police Department, who

was himself not satisfied with the propriety, manner and nature of the

Writ Appeal No. 20 of 2010 Page No. 20

investigation, which had been conducted, and had, therefore, got further

investigation conducted despite the fact that the Magistrate had already

accepted the final report and the investigation, so conducted by the

police after acceptance of the police report, was sustained by the

Supreme Court.

37. Referring to the case of Rosendra Chandra Das vs. State of Assam,

reported in 2008 (4) GLT 155, Mr. Kabir points out that this Court has taken

the view that 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, can

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, it 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 and that the remedy of the informant,

therefore, lies in making an application, under Section 482 Cr.P.C., to the

High Court seeking appropriate direction in the matter and that a 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

and 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. Writ Appeal No. 20 of 2010 Page No. 21

38. The above position of law, according to Mr. Kabir, has been further

watered down by the Supreme Court's decision in Reeta Nag vs. State of

West Bengal, reported in (2009) SCC 129, wherein it has been held that

once a charge-sheet is filed under Section 173(2)(i) Cr.P.C. and charge

has been framed, or the accused has been discharged, the Magistrate

may, on the basis of a protest petition, take cognizance of the offence(s)

complained of and, on the application of the investigating authorities, the

Magistrate may even permit further investigation under Section 173(8), but

the Magistrate cannot direct suo motu further investigation nor can the

Magistrate direct re-investigation.

39. Placing reliance on Kishan Lal v. Dharmendra Bafna (AIR 2009 SC

2932), Mr. Kabir, learned Amicus Curiae, contends that this decision

widens the scope of Section 173(8) CrPC by laying down that that an

order for further investigation can be made at various stages including the

stage of the trial, that is, after taking cognizance of the offence, but

added that it is, however, beyond any cavil that `further investigation‟

and `re-investigation‟ stand on different footing and that, in a given

situation, a superior court, in exercise of its constitutional power, namely,

under Articles 226 or 32 of the Constitution of India, could direct a `State'

to get an offence investigated and/or further investigated by a different

agency, but direction for a re-investigation being forbidden in law, no

superior court would, ordinarily, issue such a direction.

40. Placing reliance on Hemant Dhasmane v. Central Bureau of

Investigation (AIR 2001 SC 2721), the learned Amicus Curiae points out

that in this case, a Special Judge had directed the CBI to re-investigate

the case and the Supreme Court took the view that though Section 173(8)

Writ Appeal No. 20 of 2010 Page No. 22

does not, in specific terms, mention about the powers of the Court to

order further investigation, yet a further investigation can be triggered into

motion at the instance of the Court and when any such order is passed by

a Court, which has the jurisdiction to do so, it would not be a proper

exercise of revisional power to interfere therewith if further investigation

would be in the interest of justice.

41. In order to show that an informant or an aggrieved person or a de

facto complainant has a role to play in criminal law and at his instance,

further investigation can be triggered by a trial Court, Mr. Kabir has also

referred to Bhagwant Singh v. Commissioner of Police (AIR 1985 SC 1285)

and pointed out that this decision has recognized the role of the

informant, an aggrieved or de facto complainant by making it

mandatory to give a notice to the informant if a police officer, on

completion of investigation, lays a police report under Section 173(2) in

the form of final report or charge-sheet. When a notice to the informant or

aggrieved person is possible to be given, contends Mr. Kabir, it would,

perhaps, not be proper, on the part of the Courts, to take the view that at

the instance of the informant or the aggrieved person, further

investigation cannot be directed by a trial court.

42. In support of his view that the Courts have been, gradually,

recognizing, notwithstanding the decisions in Randhir Singh Rana (supra)

and Reeta Nag (supra), the Magistrate's or the trial Court's power to

direct further investigation, Mr. Kabir, referring to the case of Union Public

Service Commission v. S. Papaih and Ors (AIR 1997 SC 3876), points out

that the Supreme Court has recognized the importance, which is required

to be given to an informant and the necessity of a Magistrate having

power to direct further investigation inasmuch as it was held in S. Papaih &

Writ Appeal No. 20 of 2010 Page No. 23

others (supra) that the Magistrate could and should have, in exercise of

the powers under Section 173(8), directed the CBI to 'further investigate‟

the case and collect further evidence keeping in view the objections

raised by the appellant to the investigation and the 'new' report to be

submitted by the investigating officer would be governed by sub-section

(2) to sub-Section (6) of Section 173 Cr.P.C.

43. Drawing distinction between further investigation and re-

investigation, Mr. Kabir, referring to the case of K. Chandrasekahr vs. State

of Kerala, (AIR 1998 SC 2001), points out that the police has the right to

further investigate a case, but not to conduct fresh investigation or re-

investigation and that further investigation is merely continuation of the

earlier investigation, whereas re-investigation is a fresh investigation. In this

regard, reference has also been made by Mr. Kabir to the case of

Ramachandran v. R. Udhayakumar (AIR 2008 SC 3102), where it was

observed that from a plain reading of Section 173(8) CrPC, it is evident

that even after completion of investigation under Sub-section (2) of

Section 173 Cr.P.C., the police has the right to conduct „further

investigation‟ under Sub-section (8), but not fresh investigation or re-

investigation.

44. Referring also to the case of Babubhai vs. State of Gujarat, reported

in (2010) 12 SCC 254, Mr. Kabir points out that this was a case, where

investigation was found to be not fair and, having noticed serious

irregularities in the investigation conducted, the Court directed further

investigation, under Section 173(8), by transferring the investigation to an

independent agency making it, however, clear that a direction for re-

investigation being forbidden in law, no superior court should, ordinarily,

issue such a direction.

Writ Appeal No. 20 of 2010 Page No. 24

45. Concentrating on the scope of Article 226 of the Constitution of

India, Mr. Kabir, referring to the case of State of Maharashtra vs. Farook

Mohammad Kasim Mapkar (AIR 2010 SC 2971), points out that this case

clearly shows that in an appropriate case, a High Court can, in exercise of

its power under Article 226, direct an investigation to be carried out by an

independent agency like CBI, though such an exercise of power must be,

submits Mr. Kabir, in exceptional cases and this power has to be,

therefore, used sparingly and cautiously.

46. Drawing our attention to the case of Sashikant vs. CBI (AIR 2007 SC

351), Mr. Kabir points out that though it is not, ordinarily, within the

province of a High Court to direct an investigating agency to carry out

investigation in a particular manner, it is not wholly impermissible for the

High Court to direct investigation in a particular manner. The Court would

not, ordinarily, interfere with the functioning of an investigating agency

unless such an interference is warranted.

47. Turning to Article 227 of the Constitution of India, Mr. Kabir, relying

on State vs. Navjot Sandhu @ Afshan Guru, reported in (2003) 6 SCC 641,

points out that in para 22 of the this decision, the Supreme Court has held

that the High Court can exercise its power of judicial review in criminal

matters and that Article 227 does not only confer power of

superintendence of administrative nature on the High Court, but also

power of superintendence of judicial nature, although this power of

judicial superintendence, under Article 227, has to be exercised sparingly

and only to keep subordinate Courts and Tribunals within the bounds of

their authority and not to correct their mere errors and when the exercise

of power could be possible under Article 227 or Section 482 of the Cr.P.C.,

it may not always be necessary to invoke Article 226.

Writ Appeal No. 20 of 2010 Page No. 25

48. As regards the scope of the power of a High Court under Section

482 Cr.P.C., Mr. Kabir points out that Section 482 CrPC does not confer

any new power, but only declares that the High Court possesses inherent

power and recognizes what already exists for the purposes specified in

the Section, though this power, according to Mr. Kabir, has to be

exercised in extraordinary cases. The power, under Section 482, further

points out Mr. Kabir, is given to the High Courts, because there may be

lacunae in the procedural law and such lacunae may need to be

appropriately met by exercise of inherent jurisdiction as contained in

Section 482. This position of law, submits Mr. Kabir, has been clearly laid

down in Dinesh Dutt Joshi vs. State of Rajasthan, reported in (2001) 8 SCC

570.

49. Pointing out to the decision in Pepsi Foods Ltd. Vs. Special Judicial

Magistrate (AIR 1998 SC 128), Mr. Kabir submits that this is the case, where

the Supreme Court has clarified that nomenclature under which a petition

is filed is not quite relevant and nomenclature does not debar the court

from exercising its jurisdiction, which it, otherwise, possesses unless there is

special procedure prescribed and the procedure prescribed is

mandatory.

50. If, therefore, in a case like the present one, Court finds, submits the

learned Amicus Curiae, that the appellants could not have invoked its

jurisdiction under Article 226, the Court could have certainly treated the

petition as one under Article 227 or Section 482 Cr.P.C.. It may not,

however, be lost sight of, contends the learned Amicus Curiae, that

though provisions for revision and appeal exist in the Code of Criminal

Procedure, yet, sometimes, for immediate relief, Section 482 Cr.P.C. or

Writ Appeal No. 20 of 2010 Page No. 26

Article 227 may have to be resorted to for correcting some grave errors

that might be committed by the subordinate courts and the present

petition, though filed in the High Court as one under Articles 226 and 227,

could well be treated as an application under Article 227 of the

Constitution or even as a petition under Section 482 Cr.P.C. The learned

Amicus Curiae points out that the Supreme Court has, in fact, made it

clear that the provisions , such as, Articles 226 and 227 of the Constitution

of India and Section 482 of the Code of Criminal Procedure are devised

to advance justice and not to frustrate it.

51. In the case at hand, contends Mr. Kabir, if the learned Sessions

Judge's order was an order, where he had, despite having jurisdiction,

failed to exercise his jurisdiction by not directing further investigation if the

investigation was, otherwise, so warranted, then, the remedy against

such failure of exercise of jurisdiction lies either under Section 482 or under

Article 227; hence, according to Mr. Kabir, Article 226 was not the

appropriate power to be taken recourse to. Mr. Kabir, however, maintains

that whether the learned Single Judge could have interfered, if so

required, with the impugned order under Article 227 or Section 482, the

fact remains that if this appeal becomes meaningless, Article 226 can

nevertheless be invoked by this Court read with the inherent power of this

Court if this Court is, otherwise, convinced that present one is a case,

wherein (a) further investigation is actually necessary on the basis of the

materials and allegations on record and that (b) the materials, sought to

be addressed, cannot be dealt with by Section 311 or Section 319 and

the (c) the writ jurisdiction is necessary to be exercised if this Court is of the

view that interference, in the interests of justice, is warranted.

Writ Appeal No. 20 of 2010 Page No. 27

52. Bringing out the distinction between Sections 311 and 319 Cr.P.C.,

Mr. Kabir points out that an investigation is quite different from the power

given to the Court under Section 311 inasmuch as there are many steps,

which are required to be taken in the case of investigation, such as, DNA

test, soil analysis, forensic test, etc., which cannot be appropriately done,

while exercising power under Section 311, and, hence, the requirement

of fair investigation cannot be met by taking recourse to Section 311

Cr.P.C. and/or Section 165 of the Evidence Act nor can the lacunae, in an

investigation, can always be met effectively by taking recourse to Section

319 Cr.P.C.

53. Mr. Kabir has also presented before us the view that even while

exercising appellate or revisional jurisdiction, it is possible for the Court to

exercise power under Section 482 Cr.P.C. and he, therefore, contends

that in the case of present nature, if this Court is of the view that further

investigation ought to have been directed or needs to be directed, it is

permissible for the Court, even now, to exercise its power under Section

482, even while dealing with this appeal. Support for this submission is

sought to be derived by Mr. Kabir from Popular Muthiah vs. State, reported

in (2006) 7 SCC 296 and West Bengal Electricity Regulatory Commission vs.

CESC (AIR 2002 SC 3588).

54. The controversy, which this appeal raises, calls for a patient and

serene analysis of the scheme of the Code of Criminal Procedure

(hereinafter referred to as 'the Code') with regard to a police officer's

power to investigate an offence under the Code, the rights, if any, of the

informant or of the victim in the matter of investigation, the Magistrate's

power to take „cognizance‟, direct 'investigation‟, „further investigation‟

Writ Appeal No. 20 of 2010 Page No. 28

and „re-investigation‟, particularly, „further investigation‟ at the instance of

the victim and/or de facto complainant.

55. It is Chapter XII of the Code, which deals with „information‟ to the

police and the power of the police to conduct „investigation‟. Ordinarily,

it is the First Information Report, which sets the machinery of law in motion.

Let us, therefore, consider, first, the provisions contained in Section 154 of

the Code.

WHEN CAN A POLICE OFFICER INVESTIGATE AND WHEN CAN HE DECLINE TO INVESTIGATE :

56. Sub-section (1) of Section 154 provides that every information,

relating to the commission of a cognizable offence, if given orally to an

officer-in-charge of a police station, shall be reduced to writing by him or

under his direction and be read over to the informant and every such

information, whether given in writing or reduced to writing, shall be signed

by the person giving it and Sub-section (2) of Section 154 requires that a

copy of such information shall be given, forthwith, free of cost, to the

informant. Sub-section (1) of Section 156 vests, in the officer-in-charge of

every police station, the power to investigate any cognizable case

without the order of a magistrate and sub-Section (3) of that Section

authorizes the magistrate, empowered under Section 190, to order an

„investigation‟ as mentioned in sub-section (1) of that section.

57. Before proceeding further, we may also hasten to add that we

would, a little later, deal with the occasion(s), when a Magistrate cannot,

in exercise of his powers under Section 156(3), direct an „investigation‟ by

the police.

Writ Appeal No. 20 of 2010 Page No. 29

58. Leaving, aside, momentarily, the question as to when a Magistrate

cannot direct, in exercise of his powers under Section 156(3), an

„investigation‟, it is apposite to point out that Sub-Section (1) of Section

156 makes it clear that a police officer's power to investigate, without the

order of a Magistrate, in a cognizable case, is co-extensive with the

territorial jurisdiction of the Court, which has the jurisdiction over the local

area within the limits of such police station. Thus, sub-Section (1) of Section

156 shows that a police officer cannot investigate even a cognizable

case beyond the territory of the Court, which has the jurisdiction over the

local area within which the police station falls. In other words, an Officer-

in-Charge of a police station may, without the order of a Magistrate,

investigate any cognizable case, which a Court, having jurisdiction over

the local area within the local limits of such a police station, would have

power to inquire into or try under the provisions of Chapter XII. The fall out

of these provisions is that the Officer-in-Charge of a police station, which

comes within the territorial jurisdiction of a Magistrate, „X‟, cannot

investigate a cognizable case, which falls within the territorial jurisdiction

of another Magistrate, say 'Y'.

59. Coming to the information, given to an Officer-in-Charge of a

police station, about the commission of a non- cognizable offence, it is to

be noted that it is the duty of such an officer to enter, or cause to be

entered, the substance of the information in a book to be kept by such an

officer, in such form as the State Government may prescribe in this behalf,

and refer the informant to the Magistrate, but he cannot, in the light of

Section 155(2), investigate into such a case without the order of a

Magistrate, who has the power to try such a case or commit the case for

trial. When, however, a police officer receives an order from a Magistrate

Writ Appeal No. 20 of 2010 Page No. 30

to investigate a non- cognizable case, his powers, according to Section

155(3), to carry out „investigation‟ will be the same as in the case of a

cognizable case.

60. Coupled with what is indicated above, one should also bear in

mind that sub-section (1) of Section 157 lays down that if, from the

information received or otherwise, an officer-in-charge of a police station

has reason to suspect the commission of an offence, which he is

empowered, under Section 156, to investigate, he shall, forthwith, send a

report of the same to a Magistrate empowered to take „cognizance‟ of

such an offence upon a police report and shall proceed to the spot to

investigate the facts and circumstances of the case and, if necessary, to

take measures for the discovery and arrest of the offender. But there are

two provisos to this sub-section. Proviso (b) states that if it appears to the

officer-in-charge of a police station that there is no sufficient ground for

entering on an „investigation‟, he shall not investigate the case. However,

in such a case, sub-section (2) of Section 157 requires that the officer shall,

forthwith, notify to the informant the fact that he will not investigate the

case or cause it to be investigated.

61. Thus, in a given case, in the light of the proviso to sub-Section (1) of

Section 157, the police officer has the option of not investigating a case if

an information, as to the commission of any offence, is given against any

person by name provided that the case is not of a serious nature or if it

appears to the Officer-in-Charge of the police station that there is no

sufficient ground for entering on an „investigation‟ into the case. Section

158 contemplates sending to the Magistrate a report, as envisaged in

Section 157, through such superior police officer as the State Government

Writ Appeal No. 20 of 2010 Page No. 31

may, by general or special order, appoint in that behalf, and such

superior police officer has the power to give such instruction as he thinks fit

and such instruction shall also be transmitted to the Magistrate along with

the report.

62. Notwithstanding, however, the fact that Section 157 empowers the

police not to investigate a case, the Magistrate, on receiving the report,

as contemplated in Section 157 read with Section 158, has the power to

direct „investigation‟ or, if he thinks fit, at once, proceed or depute any

Magistrate, subordinate to him, to hold preliminary inquiry or, otherwise, to

dispose of the case in the manner as provided in the Code.

63. What the officer-in-charge of a police station is required to do, on

completion of the „investigation‟, is set out in Section 173. Sub-section

(2)(i) of Section 173 provides that as soon as an „investigation‟ is

completed, the officer-in-charge of the police station shall forward to the

Magistrate, empowered to take „cognizance‟ of the offence on a police

report, a report, in the form prescribed by the State Government, setting

out various particulars including whether, in the opinion of the officer, any

offence appears to have been committed and, if so, by whom.

64. What is, now, of utmost importance to note is that Sub-section (2)(ii)

of Section 173 states that the officer shall also communicate, in such

manner as may be prescribed by the State Government, to the person, if

any, by whom the information, relating to the commission of the offence

was first given, as to what action had been taken by him. Sub-Section (1)

of Section 190, then, proceeds to enact that any Magistrate of the First

Class and any Magistrate of the Second Class, specially empowered in

this behalf under sub-section (2) of Section 190, may take „cognizance‟ of

Writ Appeal No. 20 of 2010 Page No. 32

any offence: (a) upon receiving a „complaint‟ of facts, which constitute

such offence, or (b) upon a „police report‟ of such facts, or (c) upon

„information‟ received from any person, other than a police officer, or

upon his „own knowledge‟, that such offence has been committed. We

are concerned, in this case, only with clause (b), because the question,

which we are required to examine and determine, before we proceed

further, is: whether a Magistrate is bound to issue notice to the first informant or

to the injured or to any relative of the deceased or de facto complainant, when

the Magistrate is considering the police report submitted under Section 173(2).

IS A MAGISTRATE BOUND TO ISSUE NOTICE TO THE FIRST INFORMANT OR TO THE INJURED OR TO ANY RELATIVE OF THE DECEASED OR DE FACTO COMPLAINANT, WHEN THE MAGISTRATE IS CONSIDERING THE POLICE REPORT SUBMITTED UNDER SECTION 173(2)

65. While considering the above aspect of the case, it needs to be

recalled that the Supreme Court in, Bhagwant Singh v. Commr. of Police,

reported in (1985) 2 SCC 537, has pointed out that when an informant

lodges first information report with the officer-in-charge of a police station,

he does not fade away with the lodging of the first information report;

rather, he is very much concerned with what action is initiated by the

officer-in-charge of the police station on the basis of the first information

report lodged by him. No sooner he lodges the first information report, a

copy thereof has to be supplied to him, free of cost, under sub-section (2)

of Section 154. If, notwithstanding the first information report, the officer-in-

charge of a police station decides not to investigate the case on the

ground that there is no sufficient ground for entering on an „investigation‟,

he is required, under sub-section (2) of Section 157, to notify to the

informant the fact that he is not going to investigate the case or cause it

to be investigated. This apart, the officer-in-charge of a police station is

obligated, under Sub-Section (2)(ii) of Section 173, to communicate to the

Writ Appeal No. 20 of 2010 Page No. 33

informant as to what the „investigation‟, conducted by the police, has

revealed. Furthermore, the officer-in-charge of the police station is also

required to supply to the informant a copy of the report, which he has

forwarded to the Magistrate under Section 173 (2)(i).

66. The question, therefore, is as to why action taken by the officer-in-

charge of a police station, on the first information report, is required to be

communicated to the informant along with the report, which is forwarded

to the Magistrate under Sub-Section (2)(i) of Section 173. The reason is

obvious and the reason, as pointed out in Bhagwant Singh (supra), is that

the informant, who sets the machinery of „investigation‟ into motion by

filing the first information report, must know what is the result of the

„investigation‟ initiated on the basis of the first information report, which he

had lodged. The informant having taken the initiative of lodging the first

information report with a view to initiating „investigation‟ by the police for

the purpose of ascertaining whether any offence has been committed

and, if so, by whom, he becomes vitally interested in the result of the

„investigation‟ and, hence, the law requires that the action, taken by the

officer-in-charge of a police station, on the first information, report should

be communicated to the informant. More importantly, even the report,

forwarded by such an officer to the Magistrate under Clause (i) of Sub-

Section (2) of Section 173, is required to be supplied, under the provisions

of Clause (ii) of Sub-Section (2) of Section 173, to the informant by the

officer concerned. [See Bhagwant Singh v. Commr. of Police, (1985) 2

SCC 537, at page 542].

67. Now, when the report, forwarded, under Clause (i) of Sub-Section

(2) of Section 173, by the officer-in-charge of a police station to the

Magistrate, comes up for consideration by the Magistrate, one of two

Writ Appeal No. 20 of 2010 Page No. 34

different situations may, as pointed out in Bhagwant Singh (supra), arise.

The report may conclude that an offence appears to have been

committed by a particular person or persons and, in such a case, the

Magistrate may do one of three things: (i) he may accept the report and

take „cognizance‟ of the offence or offences, as the case may be, and

issue process or (ii) he may disagree with the report and drop the

proceeding or (iii) he may direct „further investigation‟ under sub-section

(3) of Section 156 and require the police to submit a further report. The

report, submitted under Section 173(2)(i), may, on the other hand, state

that, in the opinion of the police, no offence appears to have been

committed and when such a report is made, the Magistrate, according to

the Supreme Court, in Bhagwant Singh (supra), has, once again, the

option to adopt one of three courses: (i) he may accept the report and

drop the proceeding, or (ii) he may disagree with the report and, taking

the view that there is sufficient ground for proceeding further, take

„cognizance‟ of the offence or offences, as the case may be, and issue

process, or (iii) he may direct „further investigation‟ to be made by the

police under sub-section (3) of Section 156.

68. Where, in either of the two situations, as described above, the

Magistrate decides to take „cognizance‟ of offence(s) and to issue

process(es), the informant is not, ordinarily, prejudicially affected nor can

the injured or, in case of death, any relative of the deceased, may really

feel aggrieved, because cognizance of the offence is taken by the

Magistrate and it is decided by the Magistrate that the case shall

proceed. If, however, the Magistrate decides that there is no sufficient

ground for proceeding further and drops the proceeding or takes the

view that though there is sufficient ground for proceeding against some,

Writ Appeal No. 20 of 2010 Page No. 35

but there is no sufficient ground for proceeding against others named and

mentioned in the first information report, the informant, as noted in

Bhagwant Singh (supra), would certainly be prejudiced, because the first

information report, lodged by him, would have failed in its purpose, wholly

or in part. Moreover, when the interest of the informant, in prompt and

effective action being taken on the first information report lodged by him,

is clearly recognized by the provisions contained in sub-section (2) of

Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of

Section 173, it must be presumed that the informant would equally be

interested in seeing that the Magistrate takes „cognizance‟ of the offence

(s) and issues process(es) against all those, who may have been named

by him in the first information report, because that would be culmination

of the first information report lodged by him. The case of Rosendra

Chandra Das (supra), which Mr. Bhowmik has relied upon, throws some

light on this aspect of law inasmuch as it was a case, wherein the

informant had named, in the FIR, as many as four persons as accused

involved in the commission of offences under Sections

120(B)/304(B)/436/34 IPC and when the police, upon investigation,

submitted report (that is, charge-sheet), under Section 173(2)(i), against

one of the persons named as accused in the FIR, the High Court held that

the learned Sub-Divisional Judicial Magistrate ought not to have

accepted such a charge sheet without giving the informant a notice to

have his say as to why the report, so submitted by police, be not

accepted.

69. There can, therefore, be no doubt, as held in Bhagwant Singh

(supra), that when, on a consideration of the report made by the officer-

in-charge of a police station under sub-section (2)(i) of Section 173, the

Writ Appeal No. 20 of 2010 Page No. 36

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 or the offences, as the case may be, and

issue process or processes.

70. It has been further clarified and authoritatively held, in Bhagwant

Singh (supra), that in a case, where the Magistrate, to whom a report is

forwarded under sub-section (2)(i) of Section 173, decides not to take

„cognizance‟ of the offence and to drop the proceeding or takes the

view that there is no sufficient ground for proceeding against some of the

persons mentioned in the first information report, the Magistrate must give

notice to the informant and provide him an opportunity to be heard at

the time of consideration of the report as to why the Magistrate shall take

cognizance of offence and proceed against only some of the persons,

but not against all those, who may have been named as offenders in the

first information report.

71. What logically follows from the above discussion is that if there is a

first information report, which does not disclose the name of the offender,

even then the informant must be informed by the police of the result of

the „investigation‟ and it is the duty of the Magistrate to ensure that a

copy of the report, which a police officer submits to the Magistrate, on

completion of „investigation‟, is given to the informant so that he may

have his say in the matter.

DISTINCTION BETWEEN INVESTIGATION DIRECTED UNDER SECTION 156(3) VIS-À-VIS SECTION 202 :

72. It is appropriate, at this stage, to dilate upon the Magistrate's power

to direct „investigation‟ under Section 156(3) vis-a-vis his power to direct

Writ Appeal No. 20 of 2010 Page No. 37

„investigation‟ under Section 202. This, in turn, brings us to the question as

to what taking of „cognizance‟, within the scheme of the Code, means,

when a Magistrate can take „cognizance‟ of an offence, or, when can a

Magistrate be said to have taken „cognizance‟ of an offence? While

considering these aspects of law, it is necessary to bear in mind that

„cognizance‟ has not been defined under the Code. The word

„cognizance‟ really indicates the point, when a Magistrate or a Judge first

takes judicial notice of an offence. It also deserves to be borne in mind

that „cognizance‟ is taken of offence(s) and not of person(s) accused of

such offences.

73. A patient reading of Sub-Section (1) of Section 190 of the Code

clearly shows, as already indicated above, that a Magistrate can take

„cognizance‟ of an offence in three different modes, namely, (a) upon

receipt of a „complaint‟ of facts, which constitute such offence, (b) upon

a „police report‟ of such facts and (c) upon „information‟ received from

any person other than a police officer or, upon his own „knowledge‟ that

such offence has been committed.

74. A careful reading of Section 200 of the Code makes it clear that a

Magistrate, taking „cognizance‟ of an offence on a complaint, shall

examine, upon oath, the complainant and the witnesses present, if any,

and the substance of such examination shall be reduced to writing and

shall be signed by the complainant and the witnesses and also by the

Magistrate. Such examination can be dispensed with under two

contingencies, namely, (a) if a public servant, acting or purporting to act

in the discharge of his official duties, or a Court has made the complaint,

or (b) if the Magistrate makes over the case for inquiry or trial to another

Magistrate under Section 192.

Writ Appeal No. 20 of 2010 Page No. 38

75. A careful analysis of the provisions of Section 190 of the Code read

with Section 200 thereof clearly reveals that what Section 200 of the Code

really lays down is the procedure as to what a Magistrate shall do, when

he takes „cognizance‟ of an offence on receiving a complaint of the

facts, which constitute such offence. This, in turn, clearly reveals that

taking of „cognizance‟ must precede examination of the complainant

under Section 200 of the Code. [See Pradyut Kr. Das -vs- Ajit Borah,

reported in 2006 (2) GLT 574 ].

76. Broadly speaking, when, on receiving a complaint, the Magistrate

applies his mind for the purpose of proceeding under Section 200 and the

succeeding Sections in Chapter XV of the Code, he is said to have taken

„cognizance‟ of the offence within the meaning of Section 190(1)(a). If,

instead of proceeding under Chapter XV, he has, in the judicial exercise

of his discretion, taken action of some other kind, such as, issued a search

warrant for the purpose of „investigation‟, or ordered „investigation‟ by the

police under Section 156(3), he cannot be said to have taken

„cognizance‟ of any offence. (See Devarapalli Lakshminarayana Reddy

and others v. Narayana Reddy and others, reported in AIR 1976 SC 1672).

77. Thus, whether the Magistrate has or has not taken „cognizance‟ of

an offence will depend on the circumstances of the particular case

including the mode in which the case is sought to be instituted and the

nature of the preliminary action, if any, taken by the Magistrate.

78. In short, in the light of the decision in Superintendent &

Remembrancer of Legal Affairs, West Bengal Vs Abani Kumar Banerji (AIR

1950 Cal 437) approved in RR Chari Vs, The State of Uttar Pradesh,

reported in (1951) SCR 312, and in view of what Devarapalli

Writ Appeal No. 20 of 2010 Page No. 39

Lakshminarayana Reddy (supra) lays down, it is abundantly clear that

when a Magistrate applies his mind to the contents of a complaint for the

purpose of proceeding in accordance with the subsequent provisions of

the Code, particularly, Section 200 thereof, he can be said to have taken

„cognizance‟. When, however, the Magistrate applies his mind not for the

purpose of proceeding under Chapter XV of the Code, but for taking

action of some other kind, such as, ordering „investigation‟ under Section

156(3) or directing issuance of search warrant, he cannot be said to have

taken „cognizance‟ of the offence.

79. What surfaces from the discussions held above is that the scheme of

the Code is that when a complaint is presented before a Magistrate, he

can either direct an „investigation‟, in terms of Sub-Section (3) of Section

156 of the Code, or he may decide to proceed with the complaint. If he

decides to proceed with the complaint by taking „cognizance‟ of the

offence(s), which the complaint discloses, he shall, for this purpose, take

steps in terms of Section 200 of the Code by examining the complainant. If

the Magistrate, on receipt of the complaint, takes no steps to indicate

that the Magistrate wanted to proceed in terms of Section 200 of the

Code and sends the complaint to the police for „investigation‟, it will be

indicative of the fact that the Magistrate has not taken „cognizance‟.

Thus, in the later case, there will be no impediment, on the part of the

Magistrate, to take „cognizance‟ of the offence if and when the police,

on „investigation‟ carried out, submit a report, in this regard, in terms of

Section 190(b). The act of sending of the „complaint‟ to police for

„investigation‟ is really at a „pre-cognizance‟ stage.

80. When, however, a Magistrate, instead of sending the „complaint‟

for „investigation‟ to the police, decides to proceed or proceeds under

Writ Appeal No. 20 of 2010 Page No. 40

Section 200 of the Code, the Magistrate shall be deemed to have, unless

shown otherwise, taken „cognizance‟ of the offence, for, the Magistrate

cannot proceed to record the complainant's statement under Section

200 without taking „cognizance‟. The act of proceeding with the

examination of the complainant under Section 200 will, thus, be indicative

of the fact that the Magistrate has taken „cognizance‟ of the offence and

has decided to proceed accordingly. It is for this reason that when the

Magistrate, after recording statement of the complainant and his

witnesses, if any, present, decides to hold inquiry under Section 202 of the

Code, he cannot, thereafter, send, for „investigation‟, a complaint, which

discloses commission of offence, which is exclusively triable by Court of

Session. The act of sending the complaint for „investigation‟ after

recording of statement of the complainant and/or the witness and/or

after holding inquiry under Section 202 of the Code is a stage, which may

be called the „post-cognizance‟ stage. If the distinction between „pre-

cognizance‟ stage and „post-cognizance‟ stage is borne in mind, there

will be no difficulty in appreciating that when a Magistrate, instead of

sending the complaint for „investigation‟, decides to proceed under

Section 200 and records the statement of the complainant and his

witnesses, the Magistrate shall be treated to have taken „cognizance‟ of

the offence disclosed by the complaint, for, as already indicated above,

he cannot proceed to record the statement of the complainant under

Section 200 without taking „cognizance‟.

81. What may, thus, be summarized is that when a Magistrate applies

his mind to the contents of the complaint and decides to proceed in the

manner as indicated in the subsequent provisions of the Code, namely,

Chapter XV and, particularly, Section 200 of the Code, he can be said to

Writ Appeal No. 20 of 2010 Page No. 41

have taken „cognizance‟. In other words, it is only upon taking of

„cognizance‟ of an offence that it is open to Magistrate to examine the

complainant on oath under Sub-Section (1) of Section 200 and also

complainant's witnesses present, if any. The proviso to Section 200 makes

it abundantly clear that the examination of the complainant and his

witnesses is not necessary, when the complaint is made, in writing, by a

public servant or the Magistrate makes over the case for inquiry and trial

by another Magistrate under Section 192 of the Code. If a Magistrate

takes „cognizance‟ of an offence, he must (i) examine, on oath, the

complainant, though the complaint may be in writing, and the witnesses

present, if any, and (ii) reduce the substance of such examination to

writing. By examining the complainant and the witnesses present, if any,

what the Magistrate essentially does is to determine as to whether there

are sufficient grounds for proceeding against the accused. If the

Magistrate is of the opinion, on examining the complainant and his

witnesses under Section 200, that there are sufficient grounds for

proceeding against the accused, he can issue process in terms of Section

204 of the Code. If, on examining the complainant and his witnesses

under Section 200, the Magistrate is of the view that the allegations made

against the accused need to be inquired into or investigated, he may, in

terms of Section 202, either inquire into the case himself or direct an

„investigation‟ to be made by a police officer or by such other persons as

he thinks fit.

82. What is, now, important to note is that the 'inquiry‟ or „investigation‟,

which a Magistrate directs, in exercise of power under Section 200, is really

for the purpose of determining as to whether there is sufficient grounds for

proceeding or not. If the Magistrate chooses to hold the inquiry himself

Writ Appeal No. 20 of 2010 Page No. 42

under Section 202 of the Code, this inquiry may result either, as already

mentioned above, issuance of processes against the accused under

Section 204 or dismissal thereof under Section 203, for, Section 203 makes

it clear that if, upon considering the statements on oath, if any, of the

complainant and his witnesses and the result of the inquiry or

„investigation‟, if any, under Section 202, the Magistrate is of the opinion

that sufficient grounds do not exist for proceeding further, it is obligatory

on him to dismiss the complaint, though while dismissing the complaint,

the Magistrate is duty bound to record reasons for so doing.

83. One may reiterate that when, after examining the complainant and

the witnesses, if present, in terms of Section 200, the Magistrate finds that

there exists some materials against the accused, but the same are

insufficient for issuance of process, the appropriate statutory mechanism is

engrafted under Section 202, which empowers the Magistrate to either

direct „investigation‟ or inquire into the case himself to decide if the

process deserves to be issued against the accused.

84. Imperative it is to point out that the power conferred on a

Magistrate to direct „investigation‟ under Section 156(3) is quite different

from the power given to him to direct „investigation‟ under Section 202(1).

The power, so conferred, is resorted to in two distinct and different spheres

at two different stages envisaged under the Code. The Code, it is

pertinent to reiterate, has made distinction between „pre-cognizance‟

and „post-cognizance‟ stage. While Section 156(3) deals with Magistrate's

powers to direct „investigation‟ at „pre-cognizance‟ stage, Section 202

empowers the Magistrate to direct „investigation‟ by police at „post-

cognizance‟ stage.

Writ Appeal No. 20 of 2010 Page No. 43

85. What is, now, necessary to note is that an „investigation‟, which is

directed, under Section 202(1), is really aimed at helping a Magistrate,

determine if process needs to be issued or not. The „investigation‟, which

Section 202(1) conceives, is, therefore, materially different from the

„investigation‟, which is ordered under Section 156(3). Thus, it is clear that

when an order is passed under Section 156(3), a police officer has all the

powers of „investigation‟, which he, otherwise, has in a cognizable case

and the report, which he submits on completion of such an „investigation‟,

is a 'police report' within the meaning of the provisions of Section 173(2)(i)

read with Section 2 (r); but when an „investigation‟ is directed under

Section 202(1), the report of the „investigation‟, which the police officer

may submit, is merely to enable the Magistrate to make up his mind

whether the complaint needs to be dismissed or process needs to be

issued. If the Magistrate dismisses the complaint, it is in exercise of his

powers under Section 203. If he issues process, it is in exercise of his powers

under Section 204.

86. The proviso to sub-Section (1) of Section 202 contemplates, again,

two situations, where a Magistrate cannot direct „investigation‟, even for

the limited purpose of enabling him to make up his mind if the complaint

needs to be dismissed or process needs to be issued. These two

exceptions are : (i) when the Magistrate, on taking „cognizance‟ of an

offence and having examined the complainant and the witnesses, if any,

present, finds that the offence, complained of, is in respect of an offence,

which is triable exclusively by a Court of Session or (ii) where the

complainant and the witnesses, if any, have not been examined unless

the complaint is one, which has been made by a Court. I may also point

out that by virtue of the Act of 25 of 2005, which has introduced some

Writ Appeal No. 20 of 2010 Page No. 44

amendments to Section 202, an inquiry, under Section 202(1), is, with

effect from 23-06-2006, necessary if the accused is residing at a place

beyond the area in which the Magistrate exercises his jurisdiction. This

amendment has been made in order to enable the Magistrate determine

if the complaint against a person, who resides outside the territorial

jurisdiction of the Magistrate, is not one, which is frivolous.

87. Having clarified the nature of „investigation‟, which a Magistrate

may direct, in exercise of his power under Section 156(3) vis-à-vis Section

202(1), it is also imperative to point out that the report, which a police

officer, on completion of „investigation‟, submits in terms of the provisions

of Section 173(2) and which is defined by Section 2(r) as the police report,

the Magistrate may, in terms of Clause (b) of Section 190(1) of the Code,

take „cognizance‟ if the police report discloses commission of an offence.

The Magistrate, in such a case, may also, instead of taking „cognizance‟,

direct, in the light of what has been held in Bhagwant Singh (supra),

„further investigation‟. To put it a little differently, it is within the powers of

the Magistrate not to accept a police report furnished to him in terms of

Section 173(2) and it is open to him to direct the police to carry out

„further investigation‟ in the matter. „Further investigation‟ can, therefore,

be directed not necessarily after the police report has been accepted

and 'cognizance‟ taken, but even before 'cognizance‟ is taken, it is

permissible in law for the Magistrate to direct „further investigation‟ if he,

for reasons to be recorded, in writing, does not accept the police report,

which, on completion of „investigation‟, is submitted by the police to the

Magistrate.

88. Notwithstanding the fact that we have already indicated above

that it is possible for a Magistrate to accept a police report submitted to

Writ Appeal No. 20 of 2010 Page No. 45

him on completion of „investigation‟ by police in terms of the provisions of

Section 173(2) and direct, in the light of the decision in Bhagwant Singh

(supra), further „investigation‟, we may, now, turn to examine the other

situations or circumstances, when the Code recognizes the Magistrate's

power to direct further „investigation‟. In other words, apart from having

power to direct „further investigation‟ under Section 156(3), i.e., at pre-

cognizance stage, we are, now, required to determine as to whether a

Magistrate has the power to direct „further investigation‟ after he has

accepted the police report given to him under Section 173(2) and if it is

so, what may be the circumstances, whereunder such „further

investigation‟ may be directed.

WHEN CAN A MAGISTRATE DIRECT FURTHER INVESTIGATION AND LIMITATION ON SUCH POWER :

89. The questions, raised above, bring us, in turn, to the most

elementary question as to what is an „investigation‟? The pivotal question,

however, remains as to what a „further investigation‟ is? The quest for an

answer to this question brings us to yet another crucial question and the

crucial question is: What is 're-investigation‟ and how does „re-

investigation‟ differ from 'further „investigation‟?

DISTINCTION BETWEEN FURTHER INVESTIGATION AND RE- INVESTIGATION :

90. 'Investigation', it may be noted, has been defined in Section 2(h) of

the Code. The Supreme Court, in H.N. Rishbud Vs. 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:

Writ Appeal No. 20 of 2010 Page No. 46

"...............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."

91. 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‟.

92. 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

Writ Appeal No. 20 of 2010 Page No. 47

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

(in short, '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 Vs.

A.S. Peter, reported in (2008) 2 SCC 383).

93. 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 A. Chandrasekhar Vs.

State of Kerala, reported in (1998) 5 SCC 223, wherein an „investigation‟

was conducted by the CBI, but the State withdrew its consent given

Writ Appeal No. 20 of 2010 Page No. 48

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 State 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].

Writ Appeal No. 20 of 2010 Page No. 49

94. In State of Andhra Pradesh Vs. A.S. Peter, reported in (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 Vs. J.A.C. Saldanha, reported in (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 Vs. JAC 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."

95. 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) CrPC 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

Writ Appeal No. 20 of 2010 Page No. 50

„police report‟ under Section 173(8), „re-investigation‟ or „fresh

investigation‟ results into „police report(s)‟ as envisaged by Section 173(2)

CrPC.

96. 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.

WHEN CAN FURTHER INVESTIGATION BE CONDUCTED BY POLICE AND CONSTRAINTS, IF ANY, ON THE POWER OF THE POLICE TO CONDUCT FURTHER INVESTIGATION :

97. While considering the above aspect of this appeal, it needs to be

noted that before coming into force of the Code of Criminal Procedure,

1973, there was no specific provision in the Code of Criminal Procedure,

1898, authorizing or empowering the police to conduct 'further

investigation'. There was, therefore, difference of opinion on this aspect

of law in the pronouncements of various High Courts. On the suggestion of

the Law Commission, provisions have been made in the Code of Criminal

Procedure, 1973, empowering statutorily the police to conduct „further

investigation‟ by incorporating Section 173(8), which reads:

"Nothing in this section shall be deemed to preclude „further investigation‟ in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such „investigation‟, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

Writ Appeal No. 20 of 2010 Page No. 51 98. Though there was no express provision -- like Sub-Section(8) of

Section 173 of the new Code -- statutorily empowering the police to

conduct „further investigation‟ into an offence in respect whereof, a

charge-sheet had already been filed and „cognizance‟ had already

been taken under Section 190(1)(b), existence of such a power was

recognized, in respect of cases covered by the old Code, in Ram Lal

Narang Vs. State, Delhi Administration (AIR 1979 SC 1791), wherein the

Supreme Court, observed, at para 22, as follows:

"22. As observed by us earlier, there was no provision in the Cr.PC., 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated „investigation‟s on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further „investigation‟, the police could express their regard and respect for the court by seeking its formal permission to make further „investigation‟."

[Emphasis is supplied]

99. Illustrating the situations, which may warrant „further investigation‟

by police, and the procedure, which the Court may have to follow on

receipt of supplemental report of such „further investigation‟, the Supreme

Court, in Ram Lal Narang (supra), observed, at para 21, as follows:

"21. Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make „further investigation‟ and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate? After all the investigating agency has greater resources at its command than a private individual.

Writ Appeal No. 20 of 2010 Page No. 52 Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future 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 enquiry 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 enquiry or trial. If the 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. What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate."

[Emphasis is added]

100. In the light of what have been observed and held in Ram Lal

Narang (supra), it becomes crystal clear that a „further investigation‟ is not

necessarily aimed at finding out materials against the accused. A „further

investigation‟ may subserve the interest of the prosecution and, at times,

even of the defence. There may be fresh materials, which may, on

coming to light, necessitate „further investigation‟ either for strengthening

the case against the accused or for exonerating him.

101. Coupled with the above, what also needs to be noted is that in

Ram Lal Narang (supra), the Court had observed that "............it would,

ordinarily, be desirable that the police should inform the court and seek

formal permission to make „further investigation‟ when fresh facts come

into light."

102. The word 'ordinarily', appearing in the observations, made in Ram

Lal Narang (supra), clearly indicates that in all cases and in all

circumstances, it is not necessary for the police to obtain formal

permission from the Magistrate to conduct 'further investigation', for, Sub-

Writ Appeal No. 20 of 2010 Page No. 53

Section (8) of Section 173 gives statutory power to the police to conduct

'further investigation'.

103. Exceedingly important, therefore, it is to recognize and bear it in

mind, while considering the scope of „further investigation‟ in the realm of

Section 173(8), is that long before Section 173(8) came to be introduced

by way of amendment of the Code, the right and duty of the police to

register every information relating to the commission of a cognizable

offence and also their statutory right and duty to investigate into such

information were recognized to be not circumscribed by any power of

superintendence or interference by the Magistrate so far as the

cognizable offences are concerned. A reference, in this regard, may be

made to the case of King Emperor v. Khwaja Nazir Ahmed, (AIR 1945 PC

18), wherein the Privy Council observed as follows:

"Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Courts, to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus. In such a case as the present, however, the Court's function begin when a charge is preferred before it and not until then....... In the present case, the police have under Sections 154 and 156 of the Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court.........."

Writ Appeal No. 20 of 2010 Page No. 54 104. Correctly, therefore, points out Mr. Kabir, that as far back as in

Abhinandan Jha and others vs. Dinesh Mishra (AIR 1968 SC 117), the

Supreme Court had held that the Magistrate could not direct the course

of 'investigation‟ and had no power to direct the police to submit a

charge sheet, when the police had submitted a „final report‟ stating that

no case was made out for sending the accused to trial. In such

circumstances, the Magistrate's role remained, if so required, to take

„cognizance‟ of the offence. The relevant observations, made in

Abhinandan Jha and others (supra), read as under:

"19. ......The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. Impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial."

105. No wonder, therefore, that the Supreme Court held, in Ramlal

Narang v. State (Delhi Admn.), reported in (1979) 2 SCC 322, that the right

and duty of the police is, ordinarily, to submit a report under Section

173(1) of the 1989 Code and it was, then, up to the Magistrate to take or

not to take „cognizance‟ of the offence, because there was no provision,

in the 1989 Code, allowing the police to conduct „further investigation‟ on

fresh facts coming into light. There was, thus, as observed in Ramlal

Narang (supra), no express provision prohibiting the police from launching

investigation into the fresh facts coming into light after submission of

police report or after the Magistrate had taken „cognizance‟ of the

offence. The Supreme Court also observed, in Ramlal Narang (supra),

that there were differences in the judicial opinion, as regards power of the

Writ Appeal No. 20 of 2010 Page No. 55

police to conduct „further investigation‟, and the Law Commission,

accordingly, in its 41st report, recommended that the police shall be given

the right to make „further investigation‟ and it is this recommendation,

which has come to be embodied in the form of sub-Section (8) of Section

173, which empowers, now, the police to conduct „further investigation‟,

but 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.

106. It may, however, be noted that, in the light of the decision, in

Ramlal Narang (supra), although the police is free to conduct „further

investigation‟ on fresh facts coming to light, the police is, ordinarily,

required to obtain formal permission from the Court for the purpose of

conducting such „further investigation‟.

107. The word, 'ordinarily', appearing in the observations, made in Ram

Lal Narang (supra), clearly indicate, if we may repeat, that in all cases

and in all circumstances, it is not necessary for the police to obtain formal

permission from the Magistrate to conduct „further investigation‟, for, sub-

Section (8) of Section 173 gives statutory power to the police to conduct

„further investigation‟.

WHETHER FURTHER INVESTIGATION CAN BE CONDUCTED BY POLICE WITHOUT PERMISSION OF COURT :

108. While dealing with the question as to whether prior permission from

the Magistrate for 'further investigation' is always, and in every case or

circumstances, necessary, it may be pointed out that in State of Andhra

Pradesh Vs. A.S. Peter, reported in (2008) 2 SCC 383, the Supreme Court

has made it clear, at para 9, that the law does not mandate taking of

prior permission from the Magistrate for „further investigation‟ inasmuch as

Writ Appeal No. 20 of 2010 Page No. 56

conducting a 'further investigation', even after filing of charge-sheet, is a

statutory right of the police. The Supreme Court has also pointed out, in

A.S. Peter (supra), that in a case, where 're-investigation' and not 'further

investigation' is required to be conducted by police or any other

investigating agency, it would require prior permission of the Court.

Meaning thereby a further investigation, may be conducted by the police

without formally obtaining permission from the Court, no re-investigation is

permissible by any investing agency without being formally permitted by

the Court. The observations, made, in this regard, in A.S. Peter (supra),

read as under:

"9. Indisputably, the law does not mandate taking of prior permission from Magistrate for further investigation. Carrying out of a „further investigation‟ even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between „further investigation‟ and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, „further investigation‟ is not."

109. Further explaining the circumstances in which it had been

observed, in Ram Lal Narang's case (supra), that it would be, ordinarily,

desirable that the police should inform the Court and seek formal

permission to make 'further investigation', when fresh facts come to light,

the Supreme Court has pointed out and explained, in State of Andhra

Pradesh Vs. A.S. Peter, reported in (2008) 2 SCC 383, that Ram Lal Narang

(supra) was a case, where two conspiracies were alleged and two

investigations were carried out and it is in such circumstances that the

Supreme Court, while taking the view that 'further investigation' was

permissible in law, held that the Magistrate had the discretion in the

matter to direct 'further investigation' even when he had taken

„cognizance‟ of the offence. The relevant observations, appearing in this

regard, in A. S. Peter (supra), read as under:

Writ Appeal No. 20 of 2010 Page No. 57

"14. In Ram Lal Narang, this Court was concerned with a case where two conspiracies were alleged; one being part of a larger conspiracy. Two investigations were carried out. This Court, while opining that „further investigation‟ is permissible in law, held that the Magistrate has a discretion in the matter to direct further investigation, even if he had taken „cognizance‟ of the offence, stating:

*** *** *** *** *** ***

21.............The criticism that a „further investigation‟ by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no „cognizance‟ had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, 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."

110. What surfaces from the above discussion is that the Supreme Court,

in Ramlal Narang (supra), recognized the police's power to conduct

„further investigation‟ and though such power is, ordinarily, not to be

exercised under the superintendence and control of the Magistrate, it was

held desirable that the police should inform the Court and seek its formal

permission before conducting „further investigation‟. It is also correct, as

indicated by Mr. Kabir, that in Bhagwan Samardha Sreepada Vallabha v.

Venkata Vishwanandha Maharaj, reported in (1999) CriLJ 3661, the

Supreme Court has, once again, made it clear that Section 173(8)

recognizes the power of the police to conduct „further investigation‟ and

in exercise of this powers, the police can conduct „further investigation‟

even after the Court has taken „cognizance‟ on the basis of the report

already submitted to the police, but it would be desirable that the police

should inform the Court and seek formal permission to conduct further

Writ Appeal No. 20 of 2010 Page No. 58

investigation. Even before the decision, in Bhagwan Samardha Sreepada

Vallabha (supra), was rendered, the Supreme Court, in its decision, in

State of Rajasthan v. Aruna Devi, reported in (1995) 1 SCC 1 had

recognized that 'further investigation‟ has legal sanction and it is open to

the Magistrate to take „cognizance‟ if a fresh report is submitted. In fact,

in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others, reported in

(2004) 5 SCC 347, the Supreme Court goes a step further and clarifies that

police has the power to conduct „further investigation‟ de hors any

direction from the Court even after the Court has already taken

„cognizance‟. The relevant observations made by the Supreme Court, in

Hasanbhai Valibhai Qureshi (supra), read as under:

"12. Sub-section (8) of Section 173 of the Code permits further investigation and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted."

111. Though there is no difficulty in concluding, in the light of the

discussions held above, that police can conduct „further investigation‟ on

the basis of information received by them and, in this regard, no formal

permission from the Magistrate is always and in every case imperative, the

question, however, which we, now, need to decide, is : Whether a Court,

having taken „cognizance‟ of an offence and upon appearance of the

accused, can suo motu direct „further investigation‟?

112. The question, posed above, was pointedly raised and specifically

answered in Randhir Singh Rana vs. The State of Delhi, reported in (1997) 1

SCC 361.

113. In Randhir Singh Rana (supra), the Court took note of the fact that

the Code has compartmentalized the powers to be exercised at different

Writ Appeal No. 20 of 2010 Page No. 59

stages of a case, namely, (i) at the time of taking „cognizance‟ , (ii) after

„cognizance‟ is taken, (iii) after appearance of the accused and (iv)

after commencement of trial on the charges being framed. It was urged,

in Randhir Singh Rana (supra), that the power of the Court to direct

„further investigation‟, undoubtedly, exists at the first stage (i.e., at the time

of taking „cognizance‟), it may exists at the second stage (i.e., after the

„cognizance‟ is taken), but no such power exist in the intermediate (i.e.,

third stage). After taking of „cognizance‟ , when an accused has

appeared, pursuant to the process issued against him, what the Court is

required to do, at that stage, is to look into the materials, already on

record, and either frame charge or discharge the accused depending

upon the nature and adequacy of the materials on record and also the

relevant provisions of the Code and that at the third stage, it is the power

given to the Court, under Section 311, which permits it, on

commencement of the trial, to examine any witness, at any stage, before

the judgment is pronounced. This contention was upheld by the Court in

Randhir Singh Rana (supra) and it was held that a Magistrate, of his own,

cannot order „further investigation‟, after an accused, pursuant to the

process issued against him, has already appeared in the case. This aspect

of the law becomes abundantly clear if one takes note of the

observations of the Supreme Court in Randhir Singh Rana (supra). The

relevant observations, made by the Supreme Court, in this regard, in

Randhir Singh Rana (supra), read 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 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

Writ Appeal No. 20 of 2010 Page No. 60

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]

114. Turning to Reeta Nag (supra), which, we find, is a decision of

paramount importance in the present case and which, according to the

learned Amicus Curiae, has not taken the subsequent developments,

which have taken place as a result of later decisions of the Supreme

Court as regards a Magistrate's power to direct 'further investigation‟ on

its own motion or at the instance of an informant, de facto complainant

or the aggrieved person.

115. Let us, therefore, ascertain as to what Reeta Nag (supra) lays down

and whether the law laid down in Reeta Nag (supra) shall be treated as a

binding precedent on the question of the Court's power to direct „further

investigation‟ on its own motion.

116. While considering Reeta Nag's case (supra), it needs to be noted

that in Reeta Nag (supra), on the basis of a „charge-sheet‟ filed, the Sub-

Divisional Judicial Magistrate took „cognizance‟ and framed charges

against six of the accused persons and discharged ten of them, the

„charge-sheet‟ having been filed altogether against sixteen persons.

Subsequent thereto, an application was made by de facto complainant,

under Section 173(8) CrPC, praying for 're-investigation‟ of the case.

Based on this application, the learned Magistrate directed the police to

„re-investigate‟ the case and submit a report. This was put to challenge

by filing an application under 482 CrPC and the High Court set aside and

quashed the learned Magistrate's order, whereby „re-investigation‟ had

been directed to be conducted by the police. The order, passed by the

High Court, was put to challenge by way of a Special Leave Petition. Writ Appeal No. 20 of 2010 Page No. 61

117. In the fact situation, as mentioned above, it was contended, on

behalf of the de facto complainant, that his application, made under

Section 173(8), was an application for „further investigation‟, though it was

styled as an application for „re-investigation‟. The Supreme Court

disagreed with the submission, so made, and held that the application

was really an application for „re-investigation‟ and the Magistrate had no

power to direct „re-investigation‟. While taking this view, the Supreme

Court took notice of a number of decisions including the decision, in

Randhir Singh Rana (supra), and pointed out that Randhir Singh Rana's

case (supra) makes it clear that upon taking of „cognizance‟ of offence

on the basis of „police report‟ when accused appears, a Magistrate

cannot, on his own, order „further investigation‟ in the case, though an

order for „further investigation‟ can be made on the application of the

investigating authorities. The relevant observations, appearing at

paragraph 21, reads as under:

"21. In addition to the above, the decision of this Court in Randhir Singh Rana case also mekes 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. "

118. What is, however, crucial to note is that in Reeta Nag's case (supra),

the Court has concluded that once charge-sheet is filed under Section

173(2) CrPC, either a charge has to be framed or the accused has to be

discharged. The Supreme Court has also pointed out, in Reeta Nag's case

(supra), that on the basis of a protest petition, made by a complainant,

the Court can take cognizance of offence on complained of or, on the

application made by the investigating authorities, the Magistrate may

Writ Appeal No. 20 of 2010 Page No. 62

direct „further investigation‟, but the Magistrate cannot, suo motu, direct a

„further investigation‟ or direct a „re-investigation‟ into a case.

119. In Reeta Nag's case (supra), since the investigating authorities had

not applied for „further investigation‟, and it was only upon the

application, made by the de facto complainant under Section 173(8),

that the direction for „re-investigation‟ had been ordered by the

Magistrate, the Supreme Court held that the course of action, which the

Magistrate had adopted, was beyond his jurisdictional competence. The

Court has further pointed out, in Reeta Nag's case (supra), that since the

investigating authorities had not made any application seeking permission

for „further investigation‟ under Section 173(8), the other course of action,

open to the Magistrate, was to take recourse to the provisions of Section

319 of the Code, at the stage of trial, if any material surfaced during

examination of the witnesses at the trial warranting exercise of power

under Section 319. The Supreme Court observed, in Reeta Nag's case

(supra), that not only was the Magistrate wrong in directing a „re-

investigation‟ on the application made by the de facto complainant, the

Magistrate had also exceeded his jurisdiction in entertaining the said

application filed by the de facto complainant. The relevant observations,

appearing at paragraph 25, 26 and 27 of Reeta Nag (supra), read as

under:

"25. What emerges from the abovementioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) CrPC 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 of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) CrPC or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code.

26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by

Writ Appeal No. 20 of 2010 Page No. 63

the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.

27. Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) CrPC, the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial."

[Emphasis added]

120. Having reiterated, in tune, with Randhir Singh Rana's case (supra),

that Magistrate cannot, suo motu, or on his own motion, direct 'further

investigation‟ under Section 173(8), the Supreme Court, in clear terms, has

held, at para 20, that since it was the de facto complainant and not the

investigating authority, who had applied for „further investigation‟ under

Section 173(8), the Magistrate could not have directed re-investigation,

because such a course of action is beyond jurisdictional competence of

the Magistrate. The conclusions, appearing in para 26 of Reeta Nag

(supra), read as under:

"26. In the instant case, the investigating authorities did not apply for „further investigation‟ and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant."

121. We may pause here to point out that though in Reeta Nag (supra),

it was, in effect, in the guise of „further investigation‟, an re-investigation,

which had been sought for by the de facto complainant, the fact of the

Writ Appeal No. 20 of 2010 Page No. 64

matter remains that the Supreme Court laid down, in no uncertain words,

in Reeta Nag (supra), that a Magistrate cannot, on its own, direct further

investigation nor can he direct „re-investigation‟ on the basis of any

application made, in this regard, by a de facto complainant.

122. The son of a deceased, as in the present case, stands on no better

footing than a de facto complainant.

123. Taking cue from the decision in Reeta Nag (supra), we should not

have any difficulty in taking the view that irrespective of the fact as to

there was any genuine reason, for the present appellant, for expressing his

dissatisfaction with the investigation, which had become the basis for trial

of the present accused-respondent, the present appellant had no right to

seek „further investigation‟ and/ or „re-investigation‟ in terms of Section

173(8); but, considering the fact that it has been, in the light of the

submissions made by the learned counsel for the parties and in the light of

what has been contended, specifically, by the learned Amicus Curiae,

we are required to decide if Reeta Nag (supra) lays down a binding

precedent in the matter of a Court's power to direct „further investigation‟

at the instance of an informant, a de facto complainant, an injured or a

person aggrieved?

124. As clearly reflected above, it is the submission made by the learned

Amicus Curiae and, perhaps, with some traces of justification, that Reeta

Nag (supra) does not take into account various other decisions, which

deal with fresh investigation. Let us, therefore, now, deal, in the

chronological order, with those cases, which, according to the learned

Amicus Curiae, make a paradigm shift in the law, which was laid down in Writ Appeal No. 20 of 2010 Page No. 65 Randhir Singh Rana (supra), but have not been noticed and followed in

Reeta Nag (supra).

DOES THE RATIO OF RANDHIR SINGH RANA'S CASE (SUPRA) STILL HOLD THE FIELD :

125. We would, however, show, as we proceed, that the principle, laid

down in Randhir Singh Rana (supra), has not been specifically deviated

from in any of the pronouncements of the Supreme Court and the law,

laid down in Randhir Singh Rana (supra), has not only been followed, but

also developed in Reeta Nag (supra).

126. While considering the case of Union Public Service Commission v. S.

Papaiah, reported in (1997) 7 SCC 614, it needs to be noted that on

completion of investigation, the CBI, which was the investigating agency,

filed a „final report‟ under Section 173(2)(i). The CBI, in spite of request

made by the UPSC, did not inform the UPSC about the filing of the „final

report‟. The Magistrate returned the „final report‟, because copy of the

notice, required to be issued to the complainant by the CBI, had not

been filed along with the „final report‟. However, „final report‟ was, again,

submitted by the CBI to the Court along with a copy of the notice sent by

the CBI to the appellant-complainant, i.e., the UPSC. Once again, the

Magistrate returned the „final report‟ to the CBI asking for proof of service

of notice on the de facto complainant i.e. UPSC. In the notice, which was

given to the UPSC, the UPSC had not been informed that it could file

objection to the closure report made by the CBI, though such an

information had been directed by the Magistrate to be given to the de

facto complainant. The CBI, for reasons best known to it, did not comply

with the directions so issued. The Magistrate, however, in course of time,

accepted the „final report‟; but the UPSC remained unaware of the

Writ Appeal No. 20 of 2010 Page No. 66

closure of the case, because it retained the impression that since it had

made a request for „further investigation‟ in the case, the CBI must be

conducting „further investigation‟. However, when the UPSC sent a

reminder to the Director, CBI, the UPSC was informed by the CBI that the

„closure report‟ had already been filed, the same had been accepted by

the Court and the case stood closed. The UPSC, then, filed a

miscellaneous petition, in the Magistrate's Court, seeking direction for

„further investigation‟ by the CBI. This was not allowed. The Magistrate's

order was upheld by the revisional Court. It is in these facts that the

decision, in S. Papaiah (supra), was rendered.

127. From the narration of facts of the case of S. Papaiah (supra), it

becomes more than abundantly clear that as the „final report‟ had been

accepted, no „cognizance‟ was obviously taken by the Magistrate. As a

necessary corollary, therefore, S. Papaiah (supra) is not a case, where the

question had arisen as to whether, at the instance of the de facto

complainant, „further investigation‟ can be directed by a Magistrate after

he has already taken „cognizance‟ . In order to be a binding precedent,

an issue has to be raised, it has to be heard and decided. In S. Papaiah

(supra), there was no issue, as in the case at hand, namely, whether a

Magistrate, at the instance of the de facto complainant or victim, has the

power to direct „further investigation‟ after „cognizance‟ has been taken. The relevant observations, made in S. Papaiah (supra), read as under :

"16. Thus, for what we have said above we are of the opinion that the learned Magistrate was not justified in accepting the „final report‟ of the CBI and closing the case without any notice to the appellant and behind its back. The order of the learned Magistrate dated 16-3-1995 closing the case and of 4-11- 1995 dismissing the petition filed by the appellant as well as the order of the learned Sessions Judge dated 8-3-1996 dismissing the revision petition are set aside. The matter is remitted to the learned Metropolitan Magistrate for its disposal in accordance with law. The learned Metropolitan Magistrate shall, in the larger public

Writ Appeal No. 20 of 2010 Page No. 67

interest to ensure the purity of the examination conducted by the UPSC for All India Services, to select the best talent, issue directions under Section 173(8) CrPC to the CBI to further investigate the case and collect further evidence keeping in view the points raised by the appellant in its communication addressed to the Director, CBI dated 23-1-1995 (supra) (treating it as a "protest petition") and then proceed further in the matter. It would be appropriate that „further investigation‟ to be carried out by the CBI under Section 173(8) CrPC is directed to be carried out by an officer, other than the officer who had earlier investigated the case and filed the „final report‟ seeking closure of the case. The learned Metropolitan Magistrate shall issue directions to that effect also to the investigating agency when calling upon them to undertake „further investigation‟ under Section 173(8) CrPC. The CBI shall be directed to complete the investigation expeditiously and proceed in the matter in accordance with law in the light of the observations made by us above."

[Emphasis added]

128. While considering the case of S. Papaiah (supra), it needs to be

borne in mind that on submission of a „police report‟ under Section

173(2), a Magistrate may not accept the report and may send the same

for „further investigation‟. In such a case too, there is, indeed, an exercise

of power under Section 173(8), because „further investigation‟,

subsequent to the filing of the „police report‟ - whether a „final report‟ or

„charge sheet‟ - is an exercise of power under Section 173(8) and it is this

power, which was directed to be exercised by the learned Metropolitan

Magistrate in S. Papaiah's case (supra). To put it a little differently, what

the Supreme Court directed the learned Metropolitan Magistrate to do, in

S. Papaiah's case (supra), was that the learned Magistrate shall issue

direction, under Section 173(8), to the CBI to „further investigate‟ the case.

This exercise of power was, however, before „cognizance‟ of the offence

was taken. Clearly, therefore, S. Papaiah's case (supra), relates to a case,

which is relevant for the purpose of a case of „pre-cognizance‟ stage

and not „post-cognizance‟ stage as is the case at hand.

129. The case of Sri Bhagwan Samardha Sreepada Vallabha Venkata

Vishwanandha Maharaj vs. State of A.P. and Others, reported in (1999) 5

Writ Appeal No. 20 of 2010 Page No. 68

SCC 740, which Mr. Kabir has referred to, is, again, a case, where

„cognizance‟ had not been taken inasmuch as the police, on conducting

„investigation‟, laid „final report‟ before the Magistrate concerned

branding the case as a mistake of fact. The Magistrate, however, directed

the police to „re-investigate‟ the case. Pursuant to the direction so issued,

police „re-investigated‟ and, once again, submitted a „final report'. The

Magistrate did not, however, accept the „final report‟ and took

„cognizance‟ of the offences on the basis of the said 'police report‟ and

issued warrant against the appellant.

130. As the appellant's challenge to the Magistrate's order, in Sri

Bhagwan Samardha (supra), was not upheld by the High Court, the

appellant carried the matter to the Supreme Court. Dealing with such a

fact situation, the Supreme Court observed at that the police's power to

conduct „further investigation‟, after a „charge-sheet‟ stands laid, is

recognized under Section 173(8). The Court further observed, in the light of

Ram Lal Narang (supra), that even after the Court had taken

„cognizance‟, on the basis of the „police report‟, it is open to the police to

conduct „further investigation‟, the only rider being that it would be

desirable that the police should inform the Court and seek its formal

permission to make „further investigation‟. The Court further went on to

hold, in Bhagwan Samardha (supra), that the Court is not obliged to hear

an accused before „further investigation‟ is directed by the Court. The

relevant observations, appearing in para 10 and 11, in this regard, read as

under:

"10. Power of the police to conduct further investigation, after laying final report, is recognized under Section 173(8) of the Code of Criminal Procedure. Even after the court took „cognizance‟ of any offence on the strength of the „police report‟ first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram

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Lal Narang v. State (Delhi Admn.). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.

11. In such a situation the power of the court to direct the police to conduct „further investigation‟ cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation."

[Emphasis added]

131. Thus, Bhagwan Samardha (supra) is, as noted above, not a case,

where „cognizance‟ had already been taken and, then, the question of

either directing „further investigation‟, or the police, on their own,

conducting „further investigation‟, had arisen. Hence, the question, which

has arisen in the present case and the question, which had been raised

and considered in Randhir Singh Rana v. State (Delhi Admn.), reported in

(1997) 1 SCC 361, and Reeta Nag v. State of W.B., reported in (2009) 9 SCC

129, had not even arisen in the fact situation of the case in Bhagwan

Samardha (supra) and S. Papaiah (supra).

132. Logically, therefore, neither S. Papaiah's case (supra) nor Bhagwan

Samardha (supra) can be treated to have held that at a „post-

cognizance‟ stage, a Magistrate can, either on his own or at the instance

of the informant or de facto complainant or victim, direct „further

investigation‟.

133. We, now, come to the case of Hemant Dhasmane v. CBI, reported

in (2001) 7 SCC 536. In Hemant Dhasmane (supra), the CBI, having

concluded investigation, submitted a „final report‟ to the Special Judge.

The Special Judge issued notice to the appellant informing the appellant

about the „final report‟ and having heard the appellant, the Special

Writ Appeal No. 20 of 2010 Page No. 70

Judge passed an order directing an investigation to be conducted afresh

by an officer of the rank of DIG. This order was challenged before the High

Court. The High Court deprecated the direction given by the Special

Judge for specifying an officer of the rank of DIG to conduct the

investigation and cancelled the order of the Special Judge. The High

Court's order was put to challenge in the Supreme Court.

134. Having taken note of the provisions of Section 173(8), the Court

pointed out, in Hemant Dhasmane (supra), that though sub-section (8) of

Section 173 does not, in specific terms, mention about the power of the

Court to order „further investigation‟ after the „police report‟ has been

laid, there can be no doubt that a „further investigation‟ can be

„triggered into motion‟ at the instance of the Court meaning thereby that

a Court can, on its own motion, direct „further investigation‟ by taking

recourse to Section 173(8). The fact, however, remains that this expression

of law, in Hemant Dhasmane (supra), is in a fact situation, where

„cognizance‟ had not been taken and instead of taking „cognizance‟,

the Special Judge had directed „further investigation‟ or a „fresh

investigation‟.

135. The case of Hemant Dhasmane (supra) is also, therefore, not a

case, which dilutes the decision of, or deviates from the decision of,

Randhir Singh Rana (supra) and it does not take a view contrary to what

has been taken and developed in Reeta Nag (supra).

136. It is worth mentioning that in Hemant Dhasmane (supra), the

Supreme Court pointed out that it is open to a Court to accept a „police

report‟, submitted under Section 173(2), after hearing the complainant, at

whose behest, the investigation had been commenced and if the Court

Writ Appeal No. 20 of 2010 Page No. 71

feels, on perusal of the „police report‟, that the alleged offences had

been committed, then, the Court can ignore the „final report‟ and take

„cognizance‟. The third course of action open to the Court, according to

what Hemant Dhasmane (supra), observed, is the one adumbrated in

Section 173(8) and, although Section 173(8) does not, in specific terms,

mention that „further investigation‟ can be conducted at the instance of

the Court, it is open to a Court, in exercise of its power under Section

173(8), to direct further investigation. In other words, „further investigation‟

can be „triggered into motion‟ at the instance of the Court. The relevant

observations, appearing, in this regard, in Hemant Dhasmane (supra), at

Para 15 and 16, read as under:

"15. When the report is filed under the sub-section the Magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person, it is open to the court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the court has the power to ignore the contrary conclusions made by the investigating officer in the final report. Then it is open to the court to independently apply its mind to the facts emerging therefrom and it can even take cognizance of the offences which appear to it to have been committed, in exercise of its power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. That sub-section reads thus:

„173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).‟

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16. Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigations the power of the police to conduct further investigation envisaged there in can be triggered into motion at the instance of the Court. ......."

[Emphasis added]

137. It is of immense importance to note that Randhir Singh Rana (supra)

is a case, where the law laid down was that a Court cannot, on its own

motion, direct „further investigation‟ after „cognizance‟ has been taken. Reeta Nag (supra) clearly accepts this position of law.

138. While considering the case of Hemant Dhasmane (supra), it may be

borne in mind that the Supreme Court did take into account, while

rendering the decision, in Hemant Dhasmane's case (supra), its earlier

decisions in Bhagwant Singh(supra) and S. Papaiah (supra).

139. As far as the case of Kashmeri Devi v. Delhi Admn., 1988 Supp SCC

482, is concerned, it is a case, where the fairness of police investigation

was questioned, while the investigation was still pending. During

pendency of the case before the Supreme Court, a charge sheet was

claimed to have been submitted. This case too was not a case of „post-

cognizance‟ stage and no question, of directing „further investigation‟,

suo motu, by the Court or at the instance of the informant or de facto

complainant, after taking of „cognizance‟, had arisen. The Supreme

Court, therefore, ordered, in Kashmeri Devi (supra), the Magistrate to

exercise his power under Section 173(8) in „pre-cognizance‟ stage and

direct the CBI to conduct an appropriate and thorough investigation of

the case and submit an additional charge sheet, if any, in accordance

with law. Thus, the decision, in Kashmeri Devi (supra), too, does not come

in conflict with the decisions in Randhir Singh Rana (supra) and Reeta Nag

(supra).

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140. Suffice it to point out and reiterate here that Kashmeri Devi (supra)

too, relates to a case of „pre-cognizance‟ stage and not „post-

cognizance‟ stage.

141. Coming to Babubhai Jamnadas Patel v. State of Gujarat, reported

in (2009) 9 SCC 610, it needs to be pointed out that this is a case, wherein

the Supreme Court has recognized the High Court's power to direct

„further investigation‟ and „monitor‟ such investigation inasmuch as the

Supreme Court has laid down that in an appropriate case, Court can

direct „further investigation‟ if a proper investigation has not been done. Describing the High Courts and the Supreme Court as sentinels of justice,

the Supreme Court, in Babubhai Jamnadas Patel (supra), has held that

these Courts have been vested with extraordinary powers of judicial

review and supervision to ensure that the rights of the citizen are duly

protected. It is in this light that the Court held, in Babubhai Jamnadas

Patel (supra), that in an appropriate case, the High Court has the power

to not only direct „further investigation‟, but even „monitor‟ the progress

thereof. The case of Babubhai Jamnadas Patel (supra) recognizes the

High Court's power to direct investigation de novo too. Babubhai

Jamnadas Patel's case (supra), is not a case relating to Court's power to

direct further investigation at post cognizance stage. The relevant

observations, appearing, in para 37, 38 and 39, in Babubhai Jamnadas

Patel (supra) read as under :

"37. The courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities

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performed at least such duties as they were required to perform under the various statutes and orders passed by the administration. As for example, in the instant case, the High Court had to repeatedly intervene and pass orders to ensure that the investigation was being conducted diligently. Periodical status reports were required in that regard. In fact, the High Court had to direct the Additional Public Prosecutor to ask the investigating officer to incorporate the details of the action taken by him from the date of receipt of the letter (sic order) dated 5-12-2008. There is little doubt that only after the High Court began monitoring the progress of the investigation that the investigating authorities began to deal with the matter with some amount of seriousness.

38. We are unable to agree with Mr. Nariman that the High Court in the name of investigation directed both the manner and mode in which the investigation was to be conducted or the direction in which the investigation was to proceed. It is because of the tardy progress of the investigation that the High Court had to step in at the inistance of the respondents herein. It was at the instance of the State of Gujrat, which filed Special Criminal Application No. 1061 of 2008 on 2nd June, 2008, before the High Court, that a direction was issued to the Investigating Authorities to register the complaint on 11th August, 2008, by way of FIR No. 187 of 2008.

39. The various decisions cited by Mr Dave endorse the view that when required not only could the High Court or this Court direct the investigating agencies to conduct the investigation in a fair and unbiased manner, but that in exercise of its powers under Article

142 of the Constitution, the Supreme Court could also issue directions for enforcement of fundamental rights and to ensure that complete justice was done to the parties. In fact, in Kashmeri Devi case4 this Court had directed the Magistrate to exercise powers under Section 173(8) CrPC to direct CBI to make a proper and thorough investigation in an independent and objective manner and to submit an additional charge-sheet, if circumstances so required, in accordance with law."

142. State of Rajasthan v. Aruna Devi, reported in (1995) 1 SCC 1, is a

case, wherein the Magistrate, on perusal of the complaint, had directed

an investigation to be made as contemplated by Section 156(3). A case

was accordingly registered and in course of time, police submitted „final

report‟ stating that the complaint was false. The report came to be

accepted by the Magistrate. However, independent of what the „police

report‟ had indicated and the fact that the „police report‟ had been

accepted by the Magistrate closing the case, the Superintendent of

Police concerned had ordered „further investigation‟ and on a charge-

sheet being filed on completion of such an investigation, the Magistrate

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took „cognizance‟ of the offences disclosed by the subsequent „police

report‟ . This acceptance came to be challenged before the High Court.

The High Court set aside the order of the Magistrate by taking the view

that the „cognizance‟, which the Magistrate had taken on the second

„police report‟, amounted to entertaining a second complaint. The

Supreme Court, however, interfered with the order of the High Court and

upheld the order of the Magistrate.

WHETHER POLICE, ON ITS OWN, CONDUCT FURTHER INVESTIGATION AFTER FILING FINAL REPORT :

143. The decision, in Aruna Devi (supra), has, thus, two important

aspects, namely, even after acceptance of the „final report‟, „further

investigation‟, at the instance of the police, is permissible even if no

permission has been formally obtained from the Magistrate and, if on

completion of such an investigation too, a „police report‟ is filed disclosing

commission of offence, there is no bar, in law, in the Magistrate taking

„cognizance‟ of the offence, which such a police report may disclose. It

needs to be carefully noted that Aruna Devi (supra) was a case, wherein

„cognizance‟ had not been taken and „further investigation‟ had been

carried out without any formal order from the Magistrate and when the

Magistrate took „cognizance‟ on the basis of such a police report, the

Supreme Court upheld the Magistrate's decision. The case of Aruna Devi

(supra) has also no application to the issue at hand inasmuch as even

Aruna Devi (supra) does not relate to Court's power to direct further

investigation after cognizance has already been taken and accused has

entered appearance.

144. The case of Kishan Lal v. Dharmendra Bafna, reported in (2009) 7

SCC 685, makes it clear that „further investigation‟ can be directed at

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various stages of a trial, i.e., even after congnizance has been taken. Kishan Lal (supra) also takes note of its earlier decision, in Mithabhai

Pashabhai Patel and Ors. V. State of Gujarat (MANU/SC/0858/2009),

wherein, drawing the distinction between „further investigation‟ and „re-

investigation‟, the Court took the view that „re-investigation' being

forbidden, no superior Court should, ordinarily, direct „re-investigation'.

The relevant observations, appearing in para 15 and 16, are as under:

"15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel v. State of Gujarat in the following terms:

(SCC pp.336-37, paras 12-13) „12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.

13. It is, however, beyond any cavil that „further investigation‟ and „reinvestigation‟ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a „State‟ to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar, opined as under: (SCC p. 415, para 7) „7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation."

We have referred to the aforementioned decision only because Mr Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the investigating officer inadvertently.

16. 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

Writ Appeal No. 20 of 2010 Page No. 77

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. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary."

[Emphasis is added]

145. Kishan Lal (supra) is also not a case, wherein the question arose as

to whether „further investigation‟ can be directed by Magistrate at the

instance of the informant or de facto complainant after cognizance had

been taken. What Kishan Lal (supra), indeed, decides is that the police

can seek permission for further investigation at any stage and, in certain

situations, formal request from the police may not be insisted upon

meaning thereby that it is permissible, in tune with what had happened in

Aruna Devi (supra), for the police to conduct „further investigation‟

without formal permission from the Magistrate and such a further

investigation would not be interfered with if, otherwise, justified and was

warranted by the fact situation of a given case.

146. In the case of Ramachandran v. R. Udhayakumar, reported in

(2008) 5 SCC 413, the Supreme Court has, in no uncertain words, laid

down that even after completion of investigation and submission of

„police report‟ under sub-Section (2) of Section 173, police has the 'right'

to further investigate the case under sub-section (8) of Section 173,

though not „fresh investigation‟ or „re-investigation‟ can be conducted by

the police. The relevant observations, appearing at para 6 and 7, read as

under:

"6. Learned counsel for Respondent 1 supported the order of the High Court.

7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation

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or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala1. It was, inter alia, observed as follows: (SCC p. 237, para 24) "24. 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 reinvestigation 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."

[Emphasis added]

147. In Ramachandran (supra), though the High Court had directed for

„further investigation‟, the Supreme Court held the said direction to be

indefensible and directed, instead of a „fresh investigation‟, „further

investigation‟, if required.

148. Before proceeding further and in order to resolve the controversy,

which this writ appeal has raised, namely, as to whether the law laid

down, in Randhir Singh Rana (supra), is, in the light of the decision, in

Reeta Nag (supra), still holds good or not, appropriate it is that we pause

here and point out as to what was the question, which Randhir Singh Rana

(supra), was required to answer, because, without clearly understanding

the question, which had been raised in Randhir Singh Rana's case (supra),

it would not be proper, on our part, to, finally, decide the issues of law

raised in this appeal.

149. The question, raised in Randhir Singh Rana's case (supra), was

described by Hansaria, J, speaking for the Court, at paragraph 6, in the

following words, "Question posed by us was if for further investigation, the

police should ordinarily take formal permission of the court, can 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?

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[Emphasis added]

150. In the backdrop of the question, posed above, namely, whether a

court can, on its own, ask the police to conduct „further investigation‟ if

the same was found necessary by the court to arrive at a „just decision of

the case‟, the Court observed, in Randhir Singh Rana (supra), that the

contention, that the courts are meant to advance the cause of justice,

cannot be doubted and it is this principle, namely, that the courts are

meant to advance the cause of justice, that led a Full Bench of the

Punjab and Haryana High Court, in State v. Mehar Singh, reported in 1974

Crl. LJ 970, to take the view that even after cognizance has been taken,

court can order 'further investigation‟ in exercise of inherent power. What

was held, in Mehar Singh (supra), is really what is contended, even now, in

this appeal, by the learned Amicus Curiae to be the reason for existence

of courts.

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

151. The question, therefore, raised in Randhir Singh Rana's case (supra),

was: 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 (supra), 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 561A 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.

Writ Appeal No. 20 of 2010 Page No. 80

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,

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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

Writ Appeal No. 20 of 2010 Page No. 82

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),

Writ Appeal No. 20 of 2010 Page No. 83

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, it 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 CrPC, to the High Court seeking appropriate direction in the matter. What, indeed, a Court can do,

Writ Appeal No. 20 of 2010 Page No. 84

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 extra-ordinary jurisdiction

under Article 226 of the Constitution of India to direct either „further

investigation‟ or „re-investigation‟ in a case. [See State of Haryana vs.

Bhajanlal and ors., reported in 1992 Supp (1) SCC 335]

Summary on the concept of further investigation

159. The position of law may, in the light of the discussions held above,

be summarized 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

Writ Appeal No. 20 of 2010 Page No. 85

trial and if so, taking the necessary steps for the same by the filing of

charge-sheet under Section 173 [See H. N. Rishbad (supra)].

160. „Further investigation‟ is nothing, but continuation of an earlier

investigation. In „further investigation‟, thus, the investigation, which might

have been conducted in the past, would be resumed and conducted

further.

161. As against „further investigation‟, a „re-investigation‟ is an

investigation, which is a new and fresh investigation wiping out the earlier

investigation and „re-investigation‟ is conducted by an agency, which is

not only different from the earlier investigating agency, but also must be

one, which falls under the control, supervision or jurisdiction of an authority

not only different from, but also independent of, the authority, which had

the control, supervision or jurisdiction over the earlier investigating agency.

In this sense, an investigation conducted by an investigating agency, such

as, Criminal Investigation Department of a State, is not different from the

ordinary police machinery of the State concerned, because both of them

are under the jurisdiction of the same State; whereas Central Bureau of

Investigation (C.B.I) is an authority, which is different from the normal

police investigation of the State or its Criminal Investigation Department.

As has been pointed out in clear terms, in A.S. Peter (supra), what Section

173(8) permits is a „further investigation‟ and not a „re-investigation‟. What

is, however, extremely important to bear in mind is that a reinvestigation

being prohibited by law, it would not, ordinarily, be ordered by a superior

court. It, thus, becomes clear that a „reinvestigation‟ would be ordered in

the situations, which are extra-ordinary, rare and cannot be met by a

„further investigation‟. [See Kishan Lal (supra).

Writ Appeal No. 20 of 2010 Page No. 86

162. Section 173(8) can give rise to, broadly speaking, four distinct

situations, where the question of „further investigation‟ may arise. The

police report, which does not suggest prosecution of an accused and

which is, ordinarily, called „final report‟, may not be accepted by the

court on its own examination or, if, upon notice received, the informant, or

de facto complainant, or the aggrieved person, or the victim, raises

objection, or points out some omission, deliberate or otherwise, defect or

deficiency in the investigation. In a case, therefore, either of his own, on

noticing a defect or deficiency in an investigation, or when such a defect

or deficiency is brought to the notice of the Magistrate by the informant,

de facto complainant, aggrieved person or victim, the Magistrate can

direct further investigation if he has not already taken cognizance and if

the defect, deficiency or omission warrants „further investigation‟. One

must, of course, bear in mind, that in both the cases aforementioned, a

direction for „further investigation‟ is given without really taking

cognizance of any offence.

163. A situation may arise, where the police submit a „police report‟, in

the form of a charge-sheet, suggesting prosecution of an accused, but

the same may not be accepted by the court either on its own or on the

protest raised by the informant, de facto complainant, aggrieved person

or victim. The case of Rosendra Das (supra) is a case, which falls in this

category, because what had happened in Rosendra's case (supra) was

that the informant had made allegation of assault against four persons,

who were named by the informant in the First Information Report (FIR), but

the police, on completion of investigation, laid charge-sheet against one

person only out of the four persons named in the FIR. In such a situation, as

has been held in Rosendra's case (supra), which we fully agree, the

Writ Appeal No. 20 of 2010 Page No. 87

Magistrate ought not to have accepted the charge-sheet in its entirety

without giving notice to the informant. On receiving the notice, if the

informant had raised objection, the Magistrate was bound to consider if it

was appropriate and justified, on the part of the police, to submit charge-

sheet against only one of the four accused persons named in the FIR. If

the Magistrate would have formed the opinion, sustainable in law, that

further investigation was necessary, there was no impediment, on the part

of the Magistrate, to order „further investigation‟. The directions for such a

further investigation would, once again, be without taking cognizance of

any offence.

164. There is, of course, a distinction between the two situations

described hereinbefore. While in the former case, the „further

investigation‟ was directed by not accepting a final report, the latter

direction for „further investigation‟ was given despite the fact that there

was a charge-sheet filed by the police on completing their investigation,

but the charge-sheet is not accepted by the Magistrate for reasons, such

as, the reason that the police report does not disclose as to why all the

persons, named by the informant in his FIR, have not been made accused

in the case. The common threat, however, running between the two

situations aforementioned is the fact that in both the situations

aforementioned, no cognizance was taken by the Magistrate.

165. As against the situation, which we have visualized above, relating to

„pre-cognizance‟ stage, we may, now, turn to the 'third‟ situation, where

„further investigation‟, at the „post-cognizance‟ stage, may be needed.

After a court takes cognizance, a defect or deficiency in the investigation

may come to the notice of the court, or such a defect or deficiency may

be brought to the notice of the court by an informant, de facto

Writ Appeal No. 20 of 2010 Page No. 88

complainant, aggrieved person or the victim. In neither case, in the face

of the clearly laid down position of law, in Randhir Singh Rana's case

(supra), that a court cannot, on its own, direct „further investigation‟,

when the trial has commenced, it becomes clear that even on the

request of an informant, de facto complainant, or the aggrieved person,

the court would have no power to direct „further investigation‟.

166. In fact, it is difficult to conceive of a situation, where the court, on

noticing a defect or deficiency, on its own, cannot, in the name of

advancing cause of justice or to arrive at a 'just decision‟ of a case or to

prevent miscarriage of justice, direct „further investigation‟, but it can, at

the same time and on the same defect or deficiency being brought to its

notice by the informant, or the de facto complainant, or the aggrieved

person, or the victim, would have the power to direct „further

investigation‟.

167. Necessary, therefore, one has to hold that so long as the law, laid

down in Randhir Sing Rana (supra), is not overruled, neither on its own nor

on the request of the informant, or the de facto complainant, or the

aggrieved person, or the victim, a court can direct „further investigation‟,

when the accused has already entered appearance and the stage for

framing of charge has been reached.

168. The „fourth‟ situation can be a situation, when the police seeks

permission of the court to conduct „further investigation‟, or a situation,

when the court finds that there is a defect or deficiency in the

investigation, which warrants „further investigation‟. In such a situation,

there can be legal impediment, on the part of the court, to direct the

Public Prosecutor to decide, as a State, as to what it shall do. In such a

situation, the State, having assumed the responsibility of conducting the

Writ Appeal No. 20 of 2010 Page No. 89

prosecution, cannot leave the prosecution half-done or defective. The

State would have, in such a situation, no justification for not conducting

„further investigation‟. For instance, there may be a case, where a

weapon has been relied upon by the prosecution as the weapon of

offence, but the weapon, having not been serologically examined, may

require confirmation by a serological examination. Such a defect or

deficiency, in investigation, may be noticed by the court on its own, or

may be brought to its notice by the informant, or by the victim, or by the

Public Prosecutor himself. In such a case, when the Public Prosecutor

makes application seeking „further-investigation‟, such a request would

be treated to be a request made by the investigating agency, because it

is the Public Prosecutor, who represents a State in the trial in a court.

169. Though the Public Prosecutor does not form part of the investigating

agency, he does speak for the State, which assumes the responsibility, in

the criminal trial, to prosecute an accused, particularly, in a case of

murder and, that is why, none other than a Public Prosecutor can

conduct a sessions trial and the court has no power to allow, as in the

case of Shiv Kumar vs. Hukam Chand and Anr., reported in (1999) 7 SCC

467, a private counsel to conduct prosecution in a sessions case even if

the Public Prosecutor agrees to allow an informant's or a victim's counsel

to conduct the prosecution. When the request comes, in such a case,

from the Public Prosecutor for granting permission for „further

investigation‟, it would be very difficult for a court to not to permit „further

investigation‟. At any rate, the court will not have the power to refuse

permission for „further investigation‟ merely on the ground that the

application has been made seeking „further investigation‟ by the Public

Writ Appeal No. 20 of 2010 Page No. 90

Prosecutor or by the Additional Public Prosecutor in charge of the case

and not by the police if the permission, sought for, is, otherwise, necessary.

Distinction between the role of Public Prosecutor in a Session Trial vis-à-vis trial in Magisterial Courts

170. We may pause here to point out that under the scheme of the

Code, a sessions trial is required to be conducted by a Public Prosecutor

and not by a counsel engaged by the aggrieved party.

171. In Shiv Kumar vs. Hukam Chand and Anr. , reported in (1999) 7 SCC

467, the appellant, who carried the matter to the Supreme Court, was

aggrieved, because the counsel, engaged by him, was not allowed by

the High Court to conduct prosecution despite having obtained a

consent, in this regard, from the Public Prosecutor concerned. In fact, in

Shiv Kumar (supra), the Court had allowed the prosecution to be

conducted by the complainant's counsel. The accused, however, was

not prepared to have his case prosecuted by the complainant's counsel.

The accused, therefore, filed a revision in the High Court. The High Court

allowed the revision and directed the lawyer, appointed by the

complainant/private person, to act under the direction of the Public

Prosecutor making it clear that the lawyer for the complainant/private

party may, with the permission of the Court, submit written argument,

when the evidence is closed. The High Court further specifically directed

the Public Prosecutor, who was in charge of the case, to conduct the

prosecution.

172. By the time the aggrieved party challenged the High Court's order,

disallowing the aggrieved party's counsel to conduct the prosecution, the

trial was already over. Considering, however, the importance of the issue

involved, in Shiv Kumar (supra), the Supreme Court decided the issue of

Writ Appeal No. 20 of 2010 Page No. 91

law, namely, whether a counsel, engaged by a complainant/aggrieved

party, can conduct prosecution, in a sessions trial, if the Public Prosecutor

consents thereto ?

173. Having taken note of the provisions of Section 301 and Section 302

of the Code, the Court pointed out that the scheme of the Code is that

while it is the Public Prosecutor-in-charge of the case, who must conduct

the prosecution, sub-Section (2) of Section 302 permits the prosecution to

be conducted by any person. The Supreme Court, therefore, pointed out

that the latter provision, allowing any person to conduct prosecution, is

meant for Magisterial courts and the Magistrate may, therefore, permit

any person to conduct prosecution, the only rider being that the

Magistrate cannot give such permission to a police officer below the rank

of Inspector, but such a person need not necessarily be a Public

Prosecutor. However, such a laxity is not extended to other courts

inasmuch as Section 225 of the Code states that in any trial, before a

Court of Session, the prosecution shall be conducted by a Public

Prosecutor. The Code permits Public Prosecutor to plead in the court

without any written authority provided he is in charge of the case, but any

counsel, engaged by an aggrieved party, has to act under the direction

of the Public Prosecutor in charge of the case.

174. In no uncertain words, the Supreme Court made it clear, in Shiv

Kumar (supra), thus: "From the scheme of the Code the legislative

intention is manifestly clear that prosecution in a sessions court cannot be

conducted by any one other than the Public Prosecutor. The legislature

reminds the State that the policy must strictly conform to fairness in the trial

of an accused in a sessions court. A Public Prosecutor is not expected to

show a thirst to reach the case in the conviction of the accused somehow

Writ Appeal No. 20 of 2010 Page No. 92

or the other irrespective of the true facts involved in the case. The

expected attitude of the Public Prosecutor while conducting prosecution

must be couched in fairness not only to the court and to the investigating

agencies but to the accused as well. If an accused is entitled to any

legitimate benefit during trial the Public Prosecutor should not

scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor

to winch it to the fore and make it available to the accused. Even if the

defence counsel overlooked it, Public Prosecutor has the added

responsibility to bring it to the notice of the court if it comes to his

knowledge. A private counsel, if allowed free hand to conduct

prosecution would focus on bringing the case to conviction even if it is not

a fit case to be so convicted. That is the reason why Parliament applied a

bridle on him and subjected his role strictly to the instructions given by the

Public Prosecutor." (Emphasis is added)

175. The Supreme Court further clarified that, "It is not merely an overall

supervision which the Public Prosecutor is expected to perform in such

cases when a privately engaged counsel is permitted to act on his behalf.

The role which a private counsel in such a situation can play is, perhaps,

comparable with that of a junior advocate conducting the case of his

senior in a court. The private counsel is to act on behalf of the Public

Prosecutor albeit the fact he is engaged in the case by a private party. If

the role of the Public Prosecutor is allowed to shrink to a mere supervisory

role the trial would become a combat between the private party and the

accused which would render the legislative mandate in Section 225 of the

Code a dead letter.

An early decision of a Full Bench of the Allahabad High Court in

Queen-Empress v. Durga (ILR 1894 Allahabad 84) has pinpointed the role

Writ Appeal No. 20 of 2010 Page No. 93

of a Public Prosecutor as follows: It is the duty of a Public Prosecutor to

conduct the case for the Crown fairly. His object should be, not to obtain

an unrighteous conviction, but, as representing the Crown, to see that

justice is vindicated: and, in exercising his discretion as to the witnesses

whom he should or should not call, he should bear that in mind. In our

opinion, a Public Prosecutor should not refuse to call or put into the

witness-box for cross-examination a truthful witness returned in the

calendar as a witness for the Crown, merely because the evidence of

such witness might in some respects be favourable to the defence. If a

Public Prosecutor is of opinion that a witness is a false witness or is likely to

give false testimony if put into the witness-box, he is not bound, in our

opinion, to call that witness or to tender him for cross- examination."

(Emphasis is added)

Can prosecution in Session Trial be conducted by the counsel of a victim or an aggrieved person?

176. From the statement of law, as made in Shiv Kumar (supra), the

legislative intention becomes manifestly clear that prosecution, in a

sessions court, cannot, under the scheme of the Code, be conducted by

any one other than the Public Prosecutor. The legislature reminds the State

that the prosecution of every accused must strictly conform to fairness of

a criminal trial.

177. As indicated above, a Public Prosecutor's role is not ensure

conviction of an accused, irrespective of the facts involved in the case.

The attitude of the Public Prosecutor, who conducts prosecution, shall be

fair not only to the court and to the investigating agencies, but to the

accused as well. If an accused is entitled to any legitimate benefit during

trial, the Public Prosecutor should not scuttle or conceal it. On the

Writ Appeal No. 20 of 2010 Page No. 94

contrary, it is the duty of the Public Prosecutor to help the Court reach the

truth.

178. As mentioned above, even when a defence counsel overlooks a

material aspect of a case, which may help in uncovering the truth and in

arriving at a just decision of the case, the Public Prosecutor has the added

obligation to bring to the notice of the Court such an aspect of the case.

179. Agreed the Supreme Court with the observations of a Division

Bench of the High Court of Andhra Pradesh, in Medicheetty Ramakistiah &

ors. V. The State of Andhra Pradesh (AIR 1959 AP 659), which read, "A

prosecution, to use a familiar phrase, ought not to be a persecution. The

principle that the Public Prosecutor should be scrupulously fair to the

accused and present his case with detachment and without evincing any

anxiety to secure a conviction, is based upon high policy and as such

courts should be astute to suffer no inroad upon its integrity. Otherwise

there will be no guarantee that the trial will be as fair to the accused as a

criminal trial ought to be. The State and the Public Prosecutor acting for it

are only supposed to be putting all the facts of the case before the Court

to obtain its decision thereon and not to obtain a conviction by any

means fair or foul. Therefore, it is right and proper that courts should be

zealous to see that the prosecution of an offender is not handed over

completely to a professional gentleman instructed by a private party.

(Emphasis is added)

180. From the observations made above, it becomes clear that a Public

Prosecutor is required to deal with a case with utmost detachment and

should not exhibit the intention to secure, by hook or crook, conviction of

Writ Appeal No. 20 of 2010 Page No. 95

the accused. Under our criminal jurisprudence, this is one of the essential

features of a fair trial.

181. Agreed the Supreme Court with yet another decision of the Andhra

Pradesh High Court, in re Bhupalli Malliah & ors. (AIR 1959 AP 477), wherein

the Court has deprecated the practice of the Public Prosecutor sitting

back and permitting private counsel to conduct prosecution. The High

Court, in Bhupalli Malliah & ors (supra), made clear the position of law, in

this regard, in the following words: "We would like to make it very clear

that it is extremely undesirable and quite improper that a Public

Prosecutor should be allowed to sit back, handing over the conduct of the

case to a counsel, however eminent he may be, briefed by the

complainant in the case." (Emphasis is added)

182. Thus, from the scheme of the Code, as delineated above, it

becomes clear that once an accused appears in the Court, pursuant to

the summons issued to him, it is the State, which assumes the role of the

prosecutor and conducts the prosecution. A private party, ordinarily, has

got no role to play in a case instituted by the State. In all such cases, more

particularly, in sessions cases, the prosecution is conducted by the State

and a private party, howsoever interested may be in such prosecution,

has to act under the directions of the Public Prosecutor, for, there cannot

be a situation, where prosecution of a person can be allowed to be

conducted by two persons or agencies having two different or conflicting

interests. The State, in the case of prosecution of an accused, however

grave the charge may be, has to be impartial and it is no part or the duty

of the Public Prosecutor to obtain conviction of an accused facing trial;

rather, the solemn role of a Public Prosecutor is to lay bare before the

Court all such materials, which the State may be capable of producing, in

Writ Appeal No. 20 of 2010 Page No. 96

terms of the provisions of law and relevant in the context of the facts of a

given case, in order to ensure that justice is done in the case, no matter as

to whether the case ends in conviction or acquittal; whereas an informant

or a complainant is an interested party. Hence, a prosecution, launched

by the State, cannot be allowed to be derailed at the instance of an

informant, de facto complainant, aggrieved person or victim.

183. The observations made by the Punjab and Haryana High Court,

while dealing with the provisions of Section 301, in Kuldip Singh v. State of

Haryana, reported in 1980 Crl. L.J. 1159, throw some light in the above

direction. In Kuldip Singh (supra), the Court has, at Para-4, observed, as

under:

"Sub Section (1) of Section 301, deals with the Public Prosecutor and the Assistant Public Prosecutor in charge of a case. Under sub-section (2), a private person can instruct a pleader to prosecute any person in any Court, but such pleader can only act under the directions of the Public Prosecutor or the Assistant Public Prosecutor. The Court comes in the picture only if the pleader so engaged wishes to submit written arguments after the evidence is closed. It is thus clear that the Court is unconcerned in the matter of the engagement of a pleader by a private party and of the conduct of the trial by such pleader under the direction of the Public Prosecutor. This matter is exclusively between the party, pleader and the Public Prosecutor. ... The application filed by the petitioner to the learned Additional Sessions Judge for permission to allow his counsel to conduct the trial or to participate therein was misplaced."

184. In Thakur Ram and others v. State of Bihar [AIR 1966 SC 911], the

Supreme Court has made it clear, at Para-9, that in a case, which

proceeds on a 'police report‟, a private party has no locus standi and

that the criminal law cannot be allowed to be used as an instrument of

wrecking private vengeance by an aggrieved party against the person,

who, according to such a party, had caused injury to the party, who feels

Writ Appeal No. 20 of 2010 Page No. 97

aggrieved. The Court has made it clear, in Thakur Ram (supra), that

barring few exceptions, it is the State, which is the custodian of social

interests of the community at large, and so, it is the State, which has to

take all steps, which may be necessary, to bring to book the person, who

has acted against the social interest of the community, and it is for this

reason that in criminal matters, the party, who is treated as aggrieved

party, is the State. The relevant observations, in Thakur Ram (supra), read

as under :

"In case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of S. 435, are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book...." (Emphasis is added)

185. There can be no doubt that investigation and prosecution are two

different facets in the administration of criminal justice. While the Public

Prosecutor's role is inside the court, investigation is carried out outside the

court. Normally, Public Prosecutor's role commences on completion of

investigation except, perhaps, when the question of consideration of bail

arises. There is, however, no impediment, on the part of the investigating

agency, to discuss with the Public Prosecutor any aspect of law. In fact,

even a police officer is independent, while investigating an offence and

his investigation cannot be controlled by, and be subjected to, executive

discretion or executive decision. It is the police officer's duty to enforce

law of the land and his obedience is to the law and none else. Lord

Denning had observed, in R. vs. Metropolitan Police Commissioner [1968

Writ Appeal No. 20 of 2010 Page No. 98

(1) All. E.R. 763], thus: "I have no hesitation, however, in holding that, like

every constable in the land, he should, and is, independent of the

executive. He is not subject to the orders of the Secretary of

State...................... I hold it to be the duty of the Commissioner of Police,

as it is of every chief constable, to enforce the law of the land. He must

take steps so to post his men that crimes may be detected; and that

honest citizens may go about their affairs in peace. He must decide

whether or not suspected persons are to be prosecuted; and, if need be,

bring the prosecution or see that it is brought; but in all these things he is

not the servant of anyone, save of the law itself. No minister of the Crown

can tell him that he must, or must not, keep observation on this place or

that; or that he must, or must not, prosecute this man or that one. Nor can

any police authority tell him so. The responsibility for law enforcement lies

on him. He is answerable to the law and to the law alone."

(Emphasis is added)

Co-relation between fair investigation and fair trial

186. Having pointed out the role, which a Public Prosecutor is required to

play, particularly, in a sessions trial, it may also be, at the cost of repetition,

emphasized that a defective, biased or mala fide investigation or a

tainted investigation cannot give rise to a valid charge-sheet, because

such an investigation would, ultimately, prove to be precursor of

miscarriage of criminal justice. Not only, therefore, „fair trial‟, but „fair

investigation‟ too form part of the Constitutional rights guaranteed under

Articles 20 and 21 of the Constitution of India. The investigation, therefore,

must be fair, transparent and judicious. In fact, fairness in investigation

and, consequently, 'fairness in trial‟ form the basic minimum requirement

of the „rule of law‟. When non-interference by the Court with an

Writ Appeal No. 20 of 2010 Page No. 99

investigation would, ultimately, result in failure of justice, the Court must

interfere. A reference, in this regard, may be made to the case of Babu

Bhai vs. State of Gujarat and Ors., (MANU/SC/0643/2010) wherein the

Supreme Court observed thus:

"34. ................ If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor of miscarriage of criminal justice. 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 wherein three persons died and so many persons including the complainant and accused got injured. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere."

[Emphasis is added]

187. However, unless an extra-ordinary case of gross misuse of power by

those, who are in charge of an investigation, is made out, the court should

be quite loathe to interfere with the investigation, which is, ordinarily, a

field of activity reserved for the police and the executives. Commenting

on this aspect of law, the Supreme Court observed, in Babu Bhai (supra),

thus:

"21. ..........The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this Court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue.

Writ Appeal No. 20 of 2010 Page No. 100 *** *** ***

31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. ......." (Emphasis is added)

188. At any rate, there is no difficulty in the State seeking permission for

„further investigation‟, because Section 173(8) permits the State to

conduct „further investigation‟. As expected, the Supreme Court, as a

visionary, had observed, in the case of Ramlal Narang (supra), that,

ordinarily, it is desirable that the police should take formal permission from

the court for „further investigation‟. The word „ordinarily‟ would, therefore,

imply, as already discussed above, that in all cases and in every situation,

the police need not take formal permission from the Court before

conducting „further investigation‟. It is not difficult to visualize situations,

where, on information received by the police, the police may justifiably

form the opinion that „further investigation‟ is warranted. In such a case,

there may be a situation, where the police may be required to conduct

„further investigation‟ without the accused person(s) being informed of

such „further investigation‟. After the trial starts, the police cannot obtain

permission for „further investigation‟ at the back of the accused person or

without informing the accused person. If the accused person is informed

that police is seeking permission for „further investigation‟, the police

would be obviously required to disclose, if not to the accused person, at

least, to the court as to what has surfaced, which warrants „further

investigation‟. Disclosure of the fact, which may have given rise to the

requirement of „further investigation,‟ may not be disclosed by the police,

because, in a given case, such a disclosure may cause prejudice to

„further investigation‟ if the accused becomes aware of an aspect of the

Writ Appeal No. 20 of 2010 Page No. 101

case which the police wants to examine by „further investigation‟. No

wonder, therefore, that it has been laid down, in A.S. Peter (supra), that in

every case, the police need not take formal permission from the court for

conducting „further investigation‟ and, in the case of Hasanbhai Valibhai

Qureshi (supra), the Supreme Court has clearly held that „further

investigation‟ may be conducted by the police de hors any permission

from the court.

189. In the light of the position of law, as discussed above, when we turn

to the facts of the case at hand, it needs to be noted that there were two

petitions filed in the learned trial Court, one by the Additional Public

Prosecutor, who was conducting the prosecution, and the other, by the

son of the deceased couple, who stood in the position of the victim.

190. The learned trial Court has rejected the appellant's application,

seeking direction for further investigation on two grounds, namely, that the

appellant is a mere witness and no prejudice would, therefore, be caused

to him and, secondly, the appellant has no locus standi to ask for further

investigation inasmuch as it is only the police, who is competent to seek

orders for further investigation.

191. As far as the learned Public Prosecutor's application is concerned,

the same was rejected by the learned trial Court on the ground that it is

not the Public Prosecutor, but only the police, who have the right to seek

direction for further investigation and, secondly, that the two persons, who

had not been cited as witnesses in the charge sheet, can be examined

under Section 311 of the Code.

192. In substance, therefore, there were four grounds, assigned by the

learned trial Court, for rejecting the two applications aforementioned,

Writ Appeal No. 20 of 2010 Page No. 102

whereby directions for further investigation were sought for. These four

grounds are: (i) the appellant is a mere witness and no prejudice would

be caused to him if his prayer for further investigation is not allowed; (ii) it is

only the police, which can seek direction for further investigation and,

hence, the appellant has no locus standi; (iii) even a Public Prosecutor

cannot seek direction for further investigation inasmuch as the right to

seek such a direction vests only in the police and not in any one else

including Public Prosecutor and (iv) the power given to a trial Court, under

Section 311 of the Code, is sufficient to meet the deficiencies, if any, of

the investigation in the present case inasmuch as the two persons, who

have not been cited as witnesses, can be examined by the Court in

exercise of its power under Section 311.

193. While dismissing the writ petition, the learned Single Judge added

one more ground, namely, that the power, under Section 319 Cr.P.C., can

be also invoked by the Court if the evidence on record, which may be

adduced by the prosecution, reveals involvement of some other persons

too, as assailants, along with the accused-respondent herein.

Whether the Court's power under Section 311 and Section 319 can be effective substitute for 'further investigation'?

194. Before proceeding further, it needs to be noted that Section 311 of

the Code, cannot 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. 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

Writ Appeal No. 20 of 2010 Page No. 103

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.

Writ Appeal No. 20 of 2010 Page No. 104

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 extra-

ordinary 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.

Writ Appeal No. 20 of 2010 Page No. 105

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 CrPC nor did the

State file any writ application under Article 226 or 227 of the Constitution

of India.

Scope of High Court's power to direct 'further investigation' under Articles 226, 227 and Section 482 of the Code

203. 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

Writ Appeal No. 20 of 2010 Page No. 106

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 an 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 extra-ordinary jurisdiction under

Article 226 of the Constitution of India if the facts of a given case so

warrant.

204. 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

Writ Appeal No. 20 of 2010 Page No. 107

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]

205. 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.

208. 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

Writ Appeal No. 20 of 2010 Page No. 108

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.

209. 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.

210. 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

Writ Appeal No. 20 of 2010 Page No. 109

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.

211. 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.

212. 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.

Writ Appeal No. 20 of 2010 Page No. 110

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 India

and, 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 an

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.

213. 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.

214. As already indicated above, re-investigation cannot be ordered by

subordinate courts and the High Court would not, ordinarily, direct re-

investigation.

215. The question, therefore, is: whether the learned Single Judge ought

to have directed further investigation or re-investigation,, when the

investigation, which had been carried out, was apparently tainted, but

present appellant's application, made in the learned Court, was not,

otherwise, maintainable in law inasmuch as the learned trial Court, having

taken cognizance, in the light of the decision in Randhir Singh Rana

(supra), had no power to direct further investigation or re-investigation at

the instance of the present appellant.

Writ Appeal No. 20 of 2010 Page No. 111

216. Inasmuch as the learned trial Court did not have, as we have

already mentioned above, the power to direct further investigation on the

basis of the present appellant's application, the learned trial Court's order

was within the bounds of law. When the learned trial Court's order

declining to direct further investigation was correct in law, the question of

the High Court interfering with the said order, in exercise of its supervisory

jurisdiction under Article 227, did not arise. Did this disempower or disable

the High Court from either exercising its inherent power, which has been

saved by Section 482, or from invoking its extra-ordinary jurisdiction under

Article 226 if passing such a direction for further investigation or re-

investigation could have prevented miscarriage of justice and ensured a

fair trial. While considering this aspect, we must remind ourselves that a fair

trial cannot be founded on an unfair, manipulated, biased and motivated

investigation.

217. Strictly speaking, therefore, while the learned Single Judge could

not have exercised the supervisory jurisdiction under Article 227, in the

present case, as against that part of the learned trial Court's order,

whereby the learned trial Court had declined to direct further

investigation at the instance of the appellant, there was no impediment in

directing a further investigation or re-investigation by taking resort to

Section 482 or Article 226 if the facts and circumstances, placed before

the High Court, had so warranted. Whether a direction for further

investigation would have met the ends of law or there ought to have

been a direction for re-investigation is a question, which has to be, now,

answered.

218. While considering the above aspect of the present case, it needs to

be borne in mind that it is the Public Prosecutor, as we have already

Writ Appeal No. 20 of 2010 Page No. 112

discussed above, who is the appropriate authority to seek

direction/permission for „further investigation‟. In the present case,

therefore, what the learned Additional Public Prosecutor had noticed, if

true, required or called for „further investigation‟. Since the State had not

come in revision or by way of any application, under Article 227 of the

Constitution, to the High Court and the present appellant also had not

challenged that part of the impugned order, whereby the learned trial

Court had declined to accept the request of the Additional Public

Prosecutor to direct the police to conduct „further investigation‟, it was

open to the High Court to exercise, suo motu, its revisional jurisdiction

under the Code or its supervisory jurisdiction under Article 227 as against

that part of the order, whereby the learned trial Court had declined to

direct 'further investigation‟ on the learned additional Public Prosecutor's

application by holding that the power to conduct further investigation

belongs to the police, whereas the application, seeking direction for

further investigation had been made by the Additional Public Prosecutor

and not the police.

219. Since the learned Single Judge has opted not to exercise, suo motu

the High Court's revisional jurisdiction under the Code or its supervisory

jurisdiction, under Article 227, as against that part of the impugned order,

passed by the learned trial Court, whereby the learned trial Court had

declined the learned Additional Public Prosecutor's prayer for directing

the police to conduct further investigation in order to overcome

manipulation of the investigation by the earlier investigating officer, this

Court would not, and cannot, now, pass any order in exercise of its either

revisional jurisdiction under the Code or its supervisory jurisdiction under

Article 227 as if this Court is, now, sitting as an appellate or revisional Court

Writ Appeal No. 20 of 2010 Page No. 113

over the refusal to exercise jurisdiction, under Article 227, by the learned

Single Judge.

220. What logically follows from the above discussion is that, though

styled as an application under Article 226 and 227 of the Constitution, the

writ application, which has, eventually, given rise to this writ appeal, was,

in the facts and attending circumstances of the present case, an

application under Article 226 and not 227. Since the learned Single Judge

has not exercised the power under Article 226, this Court is, now, required

to determine if the learned Single Judge, in exercise of extra-ordinary

jurisdiction under Article 226, ought to have directed „further

investigation‟.

221. While considering the above aspect of the case, one has to bear in

mind that a fair investigation is concomitant of a fair trial. Without fair

investigation, there can be no fair trial. It is, therefore, necessary for this

Court to determine if the application, which the writ appellant had made

in the learned Trial Court, deserved a direction for „further investigation‟ or

re-investigation and, similarly, this Court is also required to determine

whether the application, which the Additional Public Prosecutor, had

made was an application, which ought to have been allowed by the

Court. Ordinarily, when a power can be exercised under Article 227, the

court would not take resort to Article 226, because Article 226 would,

generally, be invoked, when there is no other alternative efficacious

remedy. On this principle, where a remedy can be provided under Article

227, the question of taking resort to Article 226 does not legitimately arise.

222. In the fact situation of the present case, it is clear that as far as the

learned Additional Public Prosecutor was concerned, his application

made it clear that the investigating officer had not properly and faithfully

Writ Appeal No. 20 of 2010 Page No. 114

recorded the statements of the witnesses and he had also not taken all

the steps, which were necessary and warranted in conducting effective

investigation. Similarly, as far as the present appellant is concerned, his

application too, if microscopically examined, would reveal his grievances

against unfairness of investigation. When an investigation is manipulated,

it cannot be, ordinarily, met by a „further investigation‟. What is really

required is a re-investigation.

223. In the case at hand, direction for further investigation, if given by

the Court, would have met the ends of justice inasmuch as the new

investigating officer could have further examined the witnesses and

recorded their statements. This would have revealed if the witnesses had

anything to say, which they had not shown to have earlier stated. Section

311, as pointed out above, was not and is not effective substitute for

investigation or further investigation inasmuch as an investigation does not

merely mean examination of witnesses or, in other words, recording of the

statements of the witnesses. An investigation is much more than mere

recording of statements of witnesses inasmuch as acting upon a

statement or otherwise, the Investigating Officer may take further steps to

ascertain the truth including interrogation of an accused, if required,

whereas no power to interrogate an accused vests in a Court under

Section 311 or even under Section 313 of the Code.

224. In the facts and circumstances of the present case, further

investigation by an officer other than the officer, who had conducted the

investigation earlier, could have been, and ought to have been,

therefore, directed, if necessary, under the supervision of the

Superintendent of Police concerned.

Writ Appeal No. 20 of 2010 Page No. 115

225. We may pause here to point out 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.

226. 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.

227. Though there is no formal challenge by the State to the order

passed by the learned trial Court refusing to grant, in terms of the prayer

made by the learned Additional Public Prosecutor, permission or direction

to the police to conduct „further investigation‟, the fact remains that this

aspect of the matter having been brought to the notice of this Court by

the present appellant, in the writ application, which had been made

under Article 226 as well as Article 227, the learned Single Judge could

have, and, in our opinion, ought to have, taken the matter suo motu and

Writ Appeal No. 20 of 2010 Page No. 116

directed, in exercise of the High Court's extra-ordinary jurisdiction under

Article 226, the police to conduct „further investigation‟ expeditiously. This,

however, was not done by the learned Single Judge. This Court, in this

Letter Patent Appeal, may issue such a direction, though this appeal has

been preferred by the son of the deceased couple and not by the State.

Whether High Court can invoke its extra-ordinary jurisdiction under Article 226 if Article 227 is, otherwise, not attracted?

228. Coupled with the above, since the present appellant's application

was made under Article 226 and also 227, and, as we have already

indicated above, Article 227 was not attracted, as against that part of

the order, whereby the learned trial Court had declined to direct further

investigation at the instance of the present appellant, there was no

impediment, on the part of the learned Single Judge, to exercise the High

Court's extra-ordinary jurisdiction under Article 226 of the Constitution of

India even on the writ application made by the present appellant. What

we would like to clarify is that the learned trial Court having no power to

direct further investigation, at the instance of the present appellant, could

not have directed the police to direct further investigation on the prayer

made by the present appellant. This did not, however, in any manner

disable or disempower the High Court from invoking its extra-ordinary

jurisdiction under Article 226 and direct further investigation inasmuch as

the materials surfacing on record did call for exercise of such jurisdiction.

229. One cannot lose sight of the fact that the cause title, in a writ

petition, is merely a matter of formality and not substance. It is not the

prayer alone, which is determinative of the nature of jurisdiction, which is

exercisable in a given case. When a writ application is made by

mentioning both the Articles, namely, Article 226 and 227, it is really for the

court to determine if the facts of the case, as presented before it, warrant

Writ Appeal No. 20 of 2010 Page No. 117

exercise of power under Article 226 or 227 or does not attract jurisdiction

under any of the said two Articles. Though, for right reasons, the learned

trial Court had no power to direct „further investigation‟ or re-investigation

on the prayer made by the son of the deceased couple, and in such

circumstances, the learned Single Judge could not have interfered with

the rejection of the present appellant's application by invoking Article

227, the fact remains that the writ application, made by the appellant,

clearly brought on record that there were grievances, which the writ

petitioner had and these grievances warranted „further investigation‟.

Since the learned trial Court had no power, in the light of Randhir Singh

Rana (supra), to direct „further investigation‟, there was no impediment,

on the part of the High Court, to invoke its jurisdiction under Article 226

and pass appropriate direction for „further investigation‟. The learned

Single Judge, thus, failed to exercise the jurisdiction under Article 226,

which ought to have been exercised in the facts and circumstances of

the present case.

230. The Supreme Court has made it clear, in MMTC Ltd. v. CCT,

reported in (2009) 1 SCC 8, that when the cause title of an application

mentions both Article 226 as well as Article 227, a Single Judge is required

to determine, according to the facts of each particular case, whether the

application ought to be dealt with under Article 226 or under Article 227.

Had the learned Single Judge exercised power under Article 227, the

present letter patent appeal would not have been available. When an

application is made under Article 226 as well as Article 227, the appellate

court may consider whether the facts alleged warranted filing of an

application under Article 226 or 227. [See MMTC Ltd. (supra)]

Writ Appeal No. 20 of 2010 Page No. 118

231. Necessary it is, therefore, that when an application made does not

warrant exercise of power under Article 227, the Court has to nevertheless

decide if Article 226 is required to be invoked. In fact, in the case of Umaji

Keshao Meshram and ors. V. Radhikabai and anr., reported in 1986 (Supp)

SCC 401, the facts justified a party filing application under Article 226 as

well as 227. Dealing with such a fact situation, the Supreme Court took the

view that the High Court, in order not to deprive the applicant of his

valuable right to appeal, ought to treat the application under Article 226.

232. What surfaces from the above discussion, held as a whole, may be

summed up as under:

Scope of Article 226 vis-à-vis Article 227

233. The power of superintendence under Article 227, though wide, is

supervisory in nature. The power under Article 227 cannot, therefore, be

exercised to interfere with an order if the order, made by a subordinate

court or tribunal, is within the bounds of, or in conformity with, law. What is,

however, extremely important to note is that while exercising supervisory

jurisdiction under Article 227, the High Court not only acts as a court of

law, but also as a court of equity.

234. It is, therefore, not only the power, but also the duty of the court to

ensure that the power of superintendence is exercised in order to

advance the cause of justice and uproot injustice. This power cannot,

however, be exercised to interfere with an order of a subordinate court or

tribunal if the order, made by the subordinate court or the tribunal, is,

otherwise, within the bounds of law. If, therefore, a subordinate court or

tribunal does not have a particular power and refuses, therefore, to pass

an order, such an order cannot be interfered with by invoking Article 227,

though such an order, if otherwise unjust, may be interfered with, in an

Writ Appeal No. 20 of 2010 Page No. 119

appropriate case, by the High Court under Article 226. [ Ramesh Chandra

Sankla and others v. Vikram Cement and others, reported in (2008) 14

SCC 58.]

235. Very wide powers have been given to the High Court under Article

226 and 227 to advance the cause of justice and it is, therefore, within the

Constitutional power of the High Court to ensure that no man is subjected

to injustice by violation of law. If, therefore, an investigation is

manipulated and/or unfair, there would be no impediment, on the part of

the High Court, to invoke, in an appropriate case, its extra-ordinary

jurisdiction, under Article 226, at the instance of the informant, de facto

complainant, aggrieved person or the victim. [See Ramesh Chandra

Sankla and others v. Vikram Cement and others, reported in (2008) 14

SCC 58]

236. It is extremely important to bear in mind that sub-Section (8) of

Section 173 confers power on the police to conduct „further investigation‟

and it is by judicial decisions that the police is required to, ordinarily, seek

formal permission from the court before it conducts „further investigation‟.

Conducting of „further investigation‟ without formal permission from the

court cannot, in itself, be sufficient to interfere with „further investigation‟.

This power of „further investigation‟ can be exercised at any stage of trial.

Since the power of „further investigation‟ can be exercised at any stage

of trial, it logically follows that even a Session Judge, while trying a case,

may permit „further investigation‟ if the facts of the case so warrant and

the investigation agency seeks permission for „further investigation‟

237. Petitions are filed, now a days, both under Article 226 and 227 of the

Constitution of India. When the facts of a given case justify filing of an

application either under Article 226 or 227 and the party chooses to file

Writ Appeal No. 20 of 2010 Page No. 120

the application under both the Articles, the High Court shall exercise its

power under Article 226 and not under Article 227 so as not to deny the

right of appeal to the person, whose interest may be affect by such an

order. [See Umaji Keshao Meshram and ors. V. Radhikabai and anr.,

reported in 1986 (Supp) SCC 401]. The decision, in Umaji Keshao Meshram

(supra), has been referred to, and relied upon, in Sushilabai

Laxminarayan Mudliyar and others v. Nihalchand Waghajibhai Shaha and

others [reported in 1993 Supp (1) SCC 11]. The relevant observations,

appearing in this regard at para 4 of Sushilabai Laxminarayan Mudliyar

(supra), read as under:

"4. The Full Bench of the Bombay High Court wrongly

understood the above Umaji Kesho Meshram case. In Umaji

case it was clearly held that where the facts justify a party

in filing an application either under Article 226 or 227 of the

Constitution of India and the party chooses to file his

application under both these articles in fairness of justice to

party and in order not to deprive him of valuable right of

appeal the Court ought to treat the application as being

made under Article 226, and if in deciding the matter, in the

final order the Court gives ancillary directions which may

pertain to Article 227, this ought not to be held to deprive a

party of the right of appeal under clause 15 of the Letters

Patent where the substantial part of the order sought to be

appealed against is under Article 226. Rule 18 of the Bombay

High Court Appellate Side Rules read with Clause 15 of the Letters

Patent provides for appeal to the Division Bench of the High Court

from a judgment of the learned Single Judge passed on a writ

petition under Article 226 of the Constitution. In the present case the

Writ Appeal No. 20 of 2010 Page No. 121

Division Bench was clearly wrong in holding that the appeal was not

maintainable against the order of the learned Single Judge. In these

circumstances we set aside the impugned order of the Division

Bench and direct that the Letters Patent Appeal filed against the

judgment of the learned Single Judge would now be heard and

decided on merits. In view of the fact that it is an old matter we

request the High Court to decide the Letters Patent Appeal within six

months. It is further directed that till the final disposal of the Letters

Patent Appeal the operation of the order of the Single Judge shall

remain stayed. The appeals are allowed in part with no order as to

costs." (Emphasis is added)

238. While considering the case of Umaji Keshao Meshram (supra), it

may, however, be borne in mind that Umaji Keshao Meshram's case

relates to jurisdiction of Bombay High Court under Article 226 and 227,

which was a Chartered High Court and was governed by Clause 15 of the

Letters Patent. In the case of Gauhati High Court, it is debatable, in the

light of the decisions, in Her Majesty the Queen V. Burah, reported in

(1877-78) 5 IA 178, Howrah Insurance Co. Ltd. Vs. Sochindra Mohan Das

Gupta, reported in (1975) 2 SCC 523, M.V. Elisabeth Vs. Hawran Investment

and Trading (P) Ltd, reported in 1993 Supp(2) SCC 433, P.V. Hemlatha Vs.

Kattamkandi Puthiya Maliackal Saheeda, reported in (2002) 5 SCC 548,

and Umaji Keshao Meshram (supra), whether the power, under Clause 15

of the Letters Patent, is available to the Gauhati High Court. Perhaps,

realizing that Letters Patent is not available to Gauhati High Court, the

Rules, made in exercise of this High Court's power under Article 225 of the

Constitution of India read with Article 6 of the Assam High Court Order,

1958, provide for intra-Court appeal against an order passed by a Single

Judge in exercise of power under Article 226; whereas, no such provision

Writ Appeal No. 20 of 2010 Page No. 122

for intra-Court appeal has been provided to an order passed by a Single

Judge in exercise of power under Article 227. At any rate, when the

question has not arisen for determination, in this appeal, as to how an

intra-Court appeal is maintainable against an order passed by a Single

Judge, either in exercise of power under Article 226 or refusing to exercise

power under Article 226, we, though take note of the position of law

governing intra-Court appeals in writ jurisdiction of this Court, leave the

question to be answered on some other appropriate occasion. As far as

the present appeal is concerned, suffice it to point out that if the writ

petition, made by the present appellant, wanted exercise of power under

Article 226 and the learned Single Judge has not exercised the power, this

writ appeal is maintainable and appropriate order, in exercise of power

under Article 226, can be passed in this appeal, particularly, in a case

arising out of the State of Tripura.

239. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR

1998 SC 128), too, the Supreme Court has made it clear that

"..........nomenclature under which petition is filed is not quite relevant and

that does not debar the court from exercising its jurisdiction, which,

otherwise, it possesses unless there is special procedure prescribed, which

procedure is mandatory.

240. If a judgment under appeal falls squarely within the four corners of

Article 227, an „intra-court‟ appeal from such a judgment would not,

under the rules of the High Court, be maintainable. If, on the other hand,

the petitioner has invoked the jurisdiction of the High Court for issuing a

writ under Article 226, although Article 227 too is mentioned, and,

principally, the judgment, appealed against, falls under Article 226, the

appeal would be maintainable. What is important to be ascertained is

Writ Appeal No. 20 of 2010 Page No. 123

the true nature of the order and not what provisions have been

mentioned, while passing the order by a learned Single Judge. [See Ashok

K. Jha and others v. Garden Silk Mills Limited and another, reported in

(2009) 10 SCC 584]. This apart, what must also be borne in mind is that

exercise of power, under Article 226 or even under Article 227, depends

upon what facts have been brought on record or what has surfaced on

record. If the facts, emerging, therefore, on record, warrant or justify

invoking of jurisdiction under Article 226 or 227, the Court must exercise its

appropriate jurisdiction and not deny to a person the relief, which he is,

otherwise, entitled to receive, merely on the ground that the relief, which

the person is entitled to receive, has not been sought for or correct

constitutional provisions have not been mentioned in the application.

241. In fact, in Ramesh Chandra Sankla (supra), it has been held that a

statement, made by a learned Single Judge, that he has exercised power

under Article 227, cannot take away the right of appeal against such an

order if the power is, otherwise, found to have been exercised under, or

traceable to, Article 226. The vital factor for determination of

maintainability of an „intra-court‟ appeal, arising out of a writ proceeding,

is the nature of jurisdiction invoked by the party, the true nature of order

passed by a Single Judge and the nature of relief, which a party may be

entitled to.

242. In view of the fact that in the case at hand, the learned Single

Judge had, as discussed above, the power, under Article 226, to direct

„further investigation‟ and, as we are also of the view that in the facts and

attending circumstances of the present case, the power, under Article

226, ought to have been invoked in order to direct „further investigation‟

so that a fair trial can take place, the present one is a case, where there is

Writ Appeal No. 20 of 2010 Page No. 124

an omission to exercise jurisdiction under Article 226, though exercise of

such a jurisdiction was warranted. In such circumstances, there can be

no escape from the conclusion that this „intra-court‟ appeal must give to

the appellant the relief, which this Court is, even now, capable of granting

and which relief the learned Single Judge ought to have granted, by

invoking the power under Article 226, so that a fair investigation is

conducted, a fair trial can take place and justice is not done, but must

appears to have been done.

243. In fact, it is clear, from the decision in The State of Maharashtra vs

Farook Mohammed Kasim Mapkar and Ors. (AIR 2010 SC 2971), that in

exercise of its power under Article 226, the High Court can direct

investigation by even CBI if such a direction is warranted in the facts of a

given case.

244. It has been submitted by Mr. Bhowmik, learned counsel for the

accused-respondent, that Article 227 is not exercised in original

jurisdiction, whereas Article 226 is exercised in original jurisdiction. In the

case at hand, according to Mr. Bhowmik, as the appellant had filed the

writ petition against a judicial order, the writ application was rightly

treated as an application under Article 227 and the original jurisdiction,

under Article 226, could not have been invoked inasmuch as the

appellant's writ application sought relief from the High Court by invoking

its supervisory jurisdiction under Article 227 against a judicial order. In other

words, what Mr. Bhowmik contends is that when a writ application is

made, challenging the legality of a judicial order, the writ petition must,

invariably, be treated as a writ application under Article 227 and Article

226 would not be attracted inasmuch as the original proceeding, in such

a case, was the proceeding, where the judicial order is made. Suffice it to

Writ Appeal No. 20 of 2010 Page No. 125

point out, with regard to the above, that even if an application is made

under Article 227 and the High Court finds that in the given set of facts

and circumstances of a case, Article 227 is not appropriate constitutional

provisions, but it is the Article 226, which needs to be invoked, there is, as

already indicated above, no constitutional or legal bar in the High Court

invoking its extra-ordinary jurisdiction under Article 226.

245. The jurisdiction under Article 227 is neither original nor appellate;

rather the jurisdiction is supervisory in nature, both administrative as well as

judicial; whereas Article 226 gives rise to an original jurisdiction. In the case

at hand, the writ petition filed by the present appellant was not to invoke

appellate jurisdiction; rather, it might have been to invoke High Court's

supervisory jurisdiction under Article 227, but the mere fact that the

appellant had sought to invoke Article 227 could not have been a ground

to deny to him the benefit of Article 226 if the facts of the case had so

warranted, particularly, when the writ application clearly mentioned not

merely Article 227, but also Article 226, whereunder the said writ petition

had been made.

246. Merely, therefore, on the ground that the present appellant had

filed a writ petition against a judicial order, it cannot be held that the High

Court could have exercised its power only under Article 227 and, in no

circumstances, the learned Single Judge could have invoked jurisdiction

under Article 226 and/or that this Court cannot, now, invoke its extra-

ordinary jurisdiction, under Article 226, even if the facts of the case, as we

have elaborately discussed above, necessitate invoking of High Court's

extra-ordinary jurisdiction under Article 226.

Writ Appeal No. 20 of 2010 Page No. 126

247. As a drowning man catches hold of a straw, it has been, lastly,

submitted, on behalf of the accused-respondent, that in the statement of

the appellant's grand-mother, who had, allegedly, witnessed the

occurrence, there is no mention of the names of the two witnesses,

namely, Dayal Guha and Nimai Banik, as persons, who were present in the

house of the deceased couple on the night of the occurrence. Suffice it

to point out, in this regard, that it is precisely this omission, in the statement

of the present appellant's grand-mother (since deceased), which

furnishes us one more ground to direct further investigation so that truth

surfaces as to whether what is being asserted by the appellant and the

said two witnesses claim, namely, that the said two persons were present

at the house of the deceased couple, on the night of the occurrence,

and had witnessed the occurrence, is or is not true and as to whether the

investigating officer had, truthfully and honestly, not mentioned, in the

statement of the appellant's grand-mother, about the fact that Dayal

Guha and Nimai Banik were present in her house, where the occurrence

had taken place.

248. Yet another reason for not allowing the prayer for further

investigation by the learned Single Judge is that the case has been

pending for the last more than 20 years and the accused-respondent is

presently in custody. Though delay in completion of trial is one of the

factors, which is invariably required to be considered by the Court in

conducting a fair trial, the mere fact, that there would be delay in

completing a trial if „further investigation‟ or „re-investigation‟ is directed,

cannot be the sole consideration, because the ultimate object of any

criminal trial is to arrive at the truth and to do justice. When, therefore, the

facts and circumstances of a given case warrant „further investigation‟, or

Writ Appeal No. 20 of 2010 Page No. 127

're-investigation‟, the Court shall not hesitate to direct such investigation

merely because there is likely to be delay in either commencing the trial

or in concluding the trial. A reference, in this regard, may be made to the

case of Hasanbhai Valibhai Qureshi (supra), wherein, commenting on this

aspect of law, the Supreme Court observed as under:

"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth."

249. In fact, even in the case of Omprakash Narang and Anr. V. State

(Delhi Admn.) (MANU/SC/0216/1979), the Supreme Court pointed out that

when defective investigation comes to light during the course of trial, it

may be cured by „further investigation‟ if the circumstances so permit. The Supreme Court, in Omprakash Narang (supra), observed out that it

would, ordinarily, be desirable that police inform the court and seek

formal permission to make „further investigation‟, when fresh facts come

to light, instead of remaining silent over the matter on the ground that

there is likely to be delay in the trial, for, points out the Supreme Court, in

Omprakash Narang (supra), an effective trial for real or actual offences is

as relevant and necessary as an expeditious trial.

250. The mere fact, therefore, that there may be further delay in

concluding the trial, should not stand on the way of „further investigation‟

if „further investigation‟ would help the Court in arriving at the truth and in

doing substantial and effective justice. The relevant observations, made,

in this regard, in Omprakash Narang (supra), read:

".........further investigation is not altogether ruled out merely because cognisance has been taken by the court. 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 and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts

Writ Appeal No. 20 of 2010 Page No. 128

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. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. 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. We make it clear that we have not expressed any final opinion on the merits of the case."

[Emphasis added]

251. With regard to the question of delay, it appears to have completely

escaped the attention of the learned Single Judge that the accused-

respondent is himself responsible for causing the delay inasmuch as the

trial commenced barely within a period of two years from the date of the

occurrence, but it is due to the fact that the accused-respondent had

absconded that the trial got delayed. The accused-respondent cannot

be allowed to reap the benefit of his own wrong, when it is he (i.e., the

accused-respondent), who has delayed the trial and not the prosecution.

252. As regards the observations made by the learned trial Court that

the present appellant was a mere witness and could not have, therefore,

sought for any direction to the police to conduct further investigation, it

needs to be carefully noted that as the learned trial Court did not have

the power to direct further investigation, at the instance of the present

appellant, the High Court did not suffer from any such limitation if it was,

otherwise, found necessary to direct further investigation in order to

ensure a fair trial.

253. However, what is pertinent to note is that while considering an

application made under Section 482 of the Code or under Article 226, the

High Court must be conscious of the fact that an informant may not be a

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victim. It does not, however, mean that he is not required to be given

notice if final report is submitted by police. In the light of the decision in

Bhagawant Singh (supra), the notice is required to be given, in such a

case, even to the victim. Thus, the Court has to determine the status of a

person vis-à-vis crime and if a witness is an aggrieved person, his petition

cannot be ignored merely on the ground that he is an informant and not

a witness or he is the victim and not the informant. In the present case, the

appellant is the son of the deceased couple and there is no reason for

not treating him as an aggrieved person in the present case.

254. In the present case, the impugned order, passed by the learned

trial Court, to the extent that the same declined to direct 'further

investigation‟ at the instance of the appellant being not an order of

refusal to exercise jurisdiction where such jurisdiction existed in the learned

trial Court, the question of invoking Article 227 did not arise. Nonetheless,

as the materials on record warranted, in the light of the discussions held

above, a direction for 'further investigation‟, the remedy was really

available in the High Court invoking its extra-ordinary jurisdiction under

Article 226. Seen in this light, it becomes clear that though the writ petition,

in the present case, stood styled as a writ petition made under Article 226

as well as 227, the appellant's remedy really lied in making either an

application under Section 482 of the Code or under Article 226. As the

learned Single Judge has declined to exercise the power under Section

482, this Court can still treat the writ petition, which the appellant had

filed, as an original application made under Article 226 and as there has

been refusal by the learned Single Judge to invoke the High Court's extra-

ordinary jurisdiction under Article 226, though such exercise of jurisdiction

was warranted, this appeal is wholly maintainable as an intra court

Writ Appeal No. 20 of 2010 Page No. 130

appeal arising out of a writ application made under Article 226 and there

is no impediment, on the part of this Court, now, to exercise, in the present

appeal, its jurisdiction under Article 226 in order to exclude all possibilities

of justice being denied in consequence of unfair, motivated and

manipulated investigation.

255. While considering the question as to whether this Court can, now,

exercise its extra-ordinary jurisdiction, under Article 226, in order to direct

further investigation, the fundamental difference between a criminal case

vis-à-vis a civil case needs to be borne in mind.

256. A decree binds only the parties to the decree and their successors-

in-interest; whereas a criminal case, particularly, a sessions case, under the

scheme of the Code, is not a private dispute between two parties. The

prosecution of the accused is on behalf of the society, especially, in a

sessions trial.

257. No wonder, therefore, that even when a complaint is made

alleging commission of an exclusively session triable case, the Magistrate is

merely required to record statements of the complainant and his

witnesses and such other witnesses as may be necessary and, then,

commit the case for trial.

258. However, once the case stands committed to the Court of Session

for trial, the trial has to be conducted by the Public Prosecutor and not by

the counsel engaged by the complainant. The responsibility of

conducting trial, in a session case, cannot be waived, ignored or given up

by the Public Prosecutor in favour of the complainant.

259. Naturally, therefore, when one of the parties, out of many others,

comes to the High Court against a decree or order seeking interference

by the High Court under Article 226 and/or 227, the Court will examine the

Writ Appeal No. 20 of 2010 Page No. 131

decree or the order vis-à-vis the person, who claims to be aggrieved by

the decree or the order, as the case may be. If the decree or the order is

found to be correct and tenable in law to the extent that the decree or

the order, as the case may be, covers the party, who has approached

the High Court, the High Court may not entertain the writ petition even if it

finds that another part of the decree or the order is illegal if the illegal part

of the order could not have been challenged by the party, who has

come to the High Court, but could have been challenged only by the

party, who has been adversely effected by such decree or order, but has

opted not to come to the High Court and challenge that part of the

order, which is untenable in law.

260. As against what has been pointed out above, a criminal case,

being a case, wherein the State conducts the prosecution, an order has

to be examined, as a whole, by the High Court under Article 226 as well as

227. If a part of the order, which is under challenge, in a writ petition,

made under Article 226 and/or 227, is tenable in law, but another part of

the order is not tenable in law, the High Court cannot refuse to undo the

wrong, which has been done by that part of the order, which is not under

challenge, merely because of the fact that the part of the order, which is

illegal, has not been challenged by the person, who could have

challenged the illegal part of the order.

261. To put it a little differently, while dealing with a criminal case,

wherein the High Court's jurisdiction under Article 226 as well as 227 is

sought to be invoked, the High Court has the responsibility of looking into

the order from every angle and even if it finds that a part of the order,

which is under challenge by the party approaching the High Court, is

tenable in law, but the other part of the same order, which has been

decided against another party, who has not approached the High Court,

Writ Appeal No. 20 of 2010 Page No. 132

is illegal, the High Court has nevertheless the duty to interfere with that

part of the order, which may not be under challenge if the order is against

the law, because the High Court, while exercising its jurisdiction under

Article 226 as well as 227, examines an order, passed in a criminal case,

not vis-à-vis the party, which has approached the High Court, but as a

whole.

262. In the case at hand, we have already held, that no direction to

conduct further investigation could have been given at the instance of

the present appellant, because trial had already commenced. However,

on the basis of the materials placed before the learned trial Court, we

have also pointed out above, that the learned trial Court could not have

declined to direct further investigation at the instance of the learned

Additional Public Prosecutor. When the State chose not to come in

revision or make an application under Section 482 or not to file any writ

petition either under Article 226 or 227 against that part of the order,

whereby the learned trial Court had declined to direct further

investigation on the application made by the learned Additional Public

Prosecutor, and the present appellant had not challenged that part of

the order, which had been decided against the application seeking

further investigation, which the learned Additional Public Prosecutor had

filed, could the High Court remain a silent spectator if the refusal to pass

an order for further investigation, at the instance of the learned Public

Prosecutor, by the learned trial Court, was untenable in law?

263. The answer to the question, posed above, has to be in the

negative, because if the answer to this question is given in the affirmative,

then, the whole concept and scheme of criminal trials would suffer a

setback. The right of the victim to demand fair trial under Article 21 and,

consequently, fair investigation, is as much fundamental, in nature, as the

Writ Appeal No. 20 of 2010 Page No. 133

right of the accused in this regard. The victim's right to demand fair trial

and, consequently, fair investigation, cannot be left at the mercy of the

State and/or its agencies. The High Court, in such circumstances, could

not have declined to direct a further investigation, when the facts of the

case, otherwise, so warranted.

265. We have also pointed out above that the order of the learned trial

Court was, to the extent that the same concerned the appellant's

petition, was justified and the remedy of the appellant lied in making an

application under Section 482 or an application under Article 226. Since

the learned trial Court's order was correct, the appellant could not have

sought to invoke High Court's revisional jurisdiction or supervisory

jurisdiction. The remedy lied, as already indicated hereinbefore, in making

an application under Section 482 or under Article 226.

266. As the facts of the present case warranted a direction for further

investigation, there was no limitation, on the part of the High Court, to

exercise its power under Article 226; rather, the fact situation of the

present case, the High Court ought to have exercised its extra-ordinary

jurisdiction under Article 226 so that a fair investigation, which was

required, takes place and a fair trial becomes possible. Since the learned

Single Judge has omitted to exercise the jurisdiction under Article 226,

though such an exercise was warranted, this Court, in this intra-Court

appeal, is wholly competent to direct, in exercise of the High Court's

extra-ordinary jurisdiction under Article 226, further investigation.

267. Moreover, the State, having assumed the responsibility of

conducting the prosecution, ought to have come to the High Court by

way of revision or an application under Section 482 or by way of a writ

petition either under Article 226 or 227. The State has, however, not done

so. There was, thus, omission, on the part of the State, in conducting the

Writ Appeal No. 20 of 2010 Page No. 134

prosecution in effective manner. In such circumstances, the High Court

had ample power to undo the wrong by exercising its revisional as well as

supervisory jurisdiction as against that part of the order, whereby the

learned Additional Public Prosecutor's application had been rejected. As

the State had not come forward, the High Court could have, suo motu,

exercised its revisional as well as supervisory jurisdiction. As the learned

Single Judge has not done so, we cannot, now, in exercise of the High

Court's revisional or supervisory jurisdiction, interfere with that part of the

order, whereby the learned trial Court has declined to direct further

investigation at the instance of the learned Additional Public Prosecutor.

268. There was and there is, however, no limitation, on the part of the

High Court, to invoke its extra-ordinary jurisdiction under Article 226, when

the appellant, who stands in the position of a victim, has approached this

Court seeking to invoke its extra-ordinary jurisdiction under Article 226,

because it is this power, which is befittingly available to the High Court to

undo the wrong and take the wholly indispensable step to direct further

investigation in order to ensure that there is no miscarriage of justice and

there is no denial of the victim's right to demand a fair investigation,

which is as much guaranteed under Article 21 as in the case of an

accused.

269. Situated thus, we have no doubt in our mind that in the facts and

circumstances of the present case, there ought to have been a direction

for further investigation and as this jurisdiction has not been exercised, this

intra- Court appeal, now, needs to be allowed.

270. In the result and for the reasons discussed above, this writ appeal

succeeds. The impugned judgment and order, dated 10.02.2010, passed

in WP(Crl.) No.03/2009, shall accordingly stand set aside and the Officer-

Writ Appeal No. 20 of 2010 Page No. 135

in-Charge, Baikhora Police Station, is hereby directed conduct further

investigation in Baikhora PS Case No.6(8)/90 and submit necessary or

additional police report in terms of Section 173(2) of the Code. The

investigation, as directed hereinbefore, shall be completed expeditiously

and shall be supervised and monitored by Superintendent of Police, South

Tripura. Till that time, the further investigation is completed and the police

report, as indicated hereinbefore, is submitted, further proceedings of the

trial, which the accused-respondent faces, shall remain stayed. As the

accused-respondent had absconded, we do not make any order, at this

stage, for his release on bail. The accused-respondent shall, however,

remain at liberty to apply for bail and if such an application is made, the

same shall be disposed of in accordance with law.

271. Before parting with this appeal, we must acknowledge the pain,

which the learned Amicus Curiae has taken, and the assistance, which he

has provided to this Court, in looking into various aspects of law. We,

therefore, place our special words of appreciation on record about the

learned Amicus Curiae for the manner in which he has ably provided his

assistance to this court.

272. With the observations and directions, this appeal shall stand

disposed of.

273. No costs.

JUDGE JUDGE

tuc/paul-rk/dutta

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