Monthly Archives: June 2013

HC Judge was Accused: The incident occurred almost 30 years ago. The case against Justice Ramana was withdrawn almost 10 years ago.

03. And the Intelligence Bureau report about him stated as under:

“I.B. REPORT:
He enjoys good personal/professional image.
Nothing adverse against his character, reputation and
integrity has come to notice, so far. He has also not come to notice for links with any political party/communal organization.

None of his relatives is either serving or has served
earlier as judge in any High Court or Supreme Court.”

43. In his report to the Chief Justice of India the Chief Justice,
Andhra Pradesh High Court has made the following comment:
“27. The incident occurred almost 30 years ago. The case
against Justice Ramana was withdrawn almost 10 years
ago. That it should be raked up now is a little inexplicable.
The case does not seem to have been sensational in any
manner whatsoever so that someone would be following it
up. Therefore, it is a little odd that it should have suddenly
surfaced now. It is possible that there is some reason
behind digging up this case, but I am unable to fathom the
motive.”

36. We have carefully gone through the record relating to the
appointment of respondent No. 3 as a judge of the Andhra Pradesh
High Court. From the record it is evident that none of the members of
the High Court or the Supreme Court Collegia was aware of the fact.
The State Government was equally unaware of the fact and so was
29the Central Government as is evident from the resume prepared by
the Law Ministry as also the IB Report.

14. In paragraphs 71 and 74 of the judgment again the Court
observed as under:
Justiciability of appointments under Article 217(1)
71. In the present case, we are concerned with the
mechanism for giving effect to the constitutional
justification for judicial review. As stated above, “eligibility”
is a matter of fact whereas “suitability” is a matter of
opinion. In cases involving lack of “eligibility” writ of quo
warranto would certainly lie. One reason being that
“eligibility” is not a matter of subjectivity. However,
“suitability” or “fitness” of a person to be appointed a High
14Court Judge: his character, his integrity, his competence
and the like are matters of opinion.
74. It is important to note that each constitutional
functionary involved in the participatory consultative
process is given the task of discharging a participatory
constitutional function; there is no question of hierarchy
between these constitutional functionaries. Ultimately, the
object of reading such participatory consultative process
into the constitutional scheme is to limit judicial review
restricting it to specified areas by introducing a judicial
process in making of appointment(s) to the higher
judiciary. These are the norms, apart from modalities, laid
down in Supreme Court Advocates-on-Record Assn. and
also in the judgment in Special Reference No. 1 of 1998,
Re. Consequently, judicial review lies only in two
cases, namely, “lack of eligibility” and “lack of
effective consultation”. It will not lie on the content of
consultation.
(emphasis added)
15. In view of the decision in Mahesh Chandra Gupta, the question
arises whether or not the case in hand falls in any of the two
categories that are open to judicial review. Admittedly, the eligibility of
respondent No.3 is not an issue. Then, can the case be said to raise
the issue of “lack of effective consultation”.
16. Mr. Shanti Bhushan strongly argued that the consultation that
led to the appointment of respondent No.3 as the judge of the Andhra
Pradesh High Court was completely deficient for not taking into
consideration that he was accused in a pending criminal case and as
15a result, the appointment of respondent No.3 was wholly vitiated and
it was fit to be quashed by this Court. In support of the submission
Mr. Shanti Bhushan heavily relied upon the decision of this Court in
Centre for PIL and another v. Union of India and another6
(commonly
called as the CVC case). Mr. Shanti Bhushan submitted that in that
case this Court had made institutional integrity as part of eligibility
criteria and had, thus, highly raised the standards of qualification for
appointment to a public office.
17. In the CVC case a three judge Bench of this Court held that the
recommendation for appointment of Shri P.J. Thomas as the Central
Vigilance Commissioner was non-est in law and, consequently,
quashed his appointment to that post. The recommendation for
appointment of Shri P.J. Thomas was made, by a majority of 2:1, by a
committee consisting of (i) the Prime Minister, (ii) the Minister of
Home Affairs and (iii) The Leader of Opposition in the House of the
People (referred to in the judgment as the High-Powered Committee
or the HPC). The Court held that the recommendation was non-est
because the HPC had failed to take into consideration the pendency
of case No. 6 of 2003 (relating to the import of Palmolein oil by the
Kerala Government), in which the Government of Kerala had
6
(2011) 4 SCC 1
16accorded sanction for the prosecution of Shri P.J. Thomas (among
others) for committing offences punishable under Section 120-B of
the Penal Code read with Sections 13 (i) (d) of the Prevention of
Corruption Act and had based its recommendation entirely on the
blanket clearance given to Shri P.J. Thomas by the CVC (then in
office) and the fact that during the pendency of the criminal case Shri
P.J. Thomas was appointed as Chief Secretary of Kerala, then as the
Secretary of Parliamentary Affairs and subsequently as the
Secretary, Telecom.
18. At the first glance the CVC case appears to have some
parallels with the case in hand and in order to apply the decision in
the CVC case to the present case Mr. Shanti Bhushan extensively
cited from the judgment the passages where this Court identified the
CVC as an institution and an “integrity institution”, stressed the
imperative to uphold and preserve the integrity of that institution and
observed that the recommendation for appointment as CVC should
be not only with reference to the candidate but the overarching
consideration should be the institutional integrity of the office. (See
paragraphs 34-37, 42, 43, 47, 59 and 89 of the judgment).
http://supremecourtofindia.nic.in/outtoday/wc17412.pdf

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If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior

Union of India v. Ramesh Gandhi, (2012) 1 SCC 476

If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. Therefore, the conclusion reached by the judgment under appeal that no Court can examine the correctness of the contents of the impugned FIR, is unsustainable and without any basis in law. The very complaint in the FIR is that the judgment of the Calcutta High Court, as affirmed by this Court, is a consequence of a deliberate and dishonest suppression of the relevant facts necessary for adjudicating the rights and obligations of the parties to the said litigation

…………….Crux of Judgment………………….Detailed Judgment below….http://www.stpl-india.in/SCJFiles/2011_STPL(Web)_978_SC.pdf.

we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and 31

inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

 

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

 

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

 

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

 

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

……………………..

 
Supreme Court of India
Union Of India & Ors. vs Ramesh Gandhi on 14 November, 2011
Bench: P. Sathasivam, J. Chelameswar

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1356 OF 2004

Union of India & Ors. …….. Appellants Versus

Ramesh Gandhi ……… Respondent J U D G E M E N T

Chelameswar, J.

 

1. This appeal arises out of a judgment of the High Court of Calcutta dated 23rd November, 2001 in Writ Petition No. 352/2001. The appellants herein were the respondents in the above-mentioned Writ Petition.

 

2. An FIR came to be registered on 15th November, 2000 in the Delhi Special Police Establishment, Ranchi Branch in Crime No. RC 13(A)/2000 (R) under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against nine accused of whom the first 2

accused was the Coal Controller at the relevant point of time. The next five accused were the officers of Central Coalfields Limited (hereinafter `CCL’. for short), which is a subsidiary of Coal India Limited (hereinafter `CIL’, for short). Accused No.9 is a Private Limited Company (hereinafter `private company’, for short) and accused Nos. 7 and 8 are the members of the said private company.

3. The sole respondent, Mr. Ramesh Gandhi, is one of the members of the above-mentioned private company and shown to be the seventh accused in the above-mentioned FIR. He filed writ petition No. 352/2001 on the file of the Calcutta High Court praying that the above-mentioned FIR be quashed. By the judgment under appeal, the Calcutta High Court allowed the writ petition quashing the FIR.

 

4. The substance of the accusation in the FIR is that all the accused entered into a criminal conspiracy to confer an illegal and unjust benefit on the above-mentioned private company. In the process, the accused, "intentionally and dishonestly" suppressed certain relevant and crucial facts (in the various cases filed before the Calcutta High Court and also this Court to which the accused were parties), which resulted in orders being passed both by this Court as well as by the High Court favourable to the private company.

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5. FIR reads as follows:

"DELHI SPECIAL POLICE ESTABLISHMENT, RANCHI BRANCH

FIRST INFORMATION REPORT

Crime No.RC 13(A)/2000(R), Date and time of Report : 15.11.2000 at 1700 Hrs.

Place of occurrence with State : Calcutta (West Bengal), Ranchi (Jharkhand)

Date and time of occurrence : 1990-91 to 2000

Name of complainant or informant with address : Through Source Offence : U/s. 120B r/w 420 IPC and Sec. 13(2) r/w 13(1)(d) of PC Act, 1988.

Name and address of the accused : (1) Shri P.N. Tiwary, the then Coal Controller, Calcutta (retd.)

(2) Shri R.P. Srivastava, the then G.M. Sales, CCL, Ranchi (retd.) (3) Shri S.K. Srivastava, G.M. (Sales), CCL, Ranchi (4) Shri B. Akla, CMD, CCL, Ranchi

(5) Shri K.M. Singh, the then G.M., Argada Area, CCL (6) Shri Sudarshan Singh, the then Area Sales Officer Argada Area, CCL, presently Superintending Engineer (E&M), N.K. Area, CCL

(7) Shri Ramesh Gandhi, Prop. M/s. Continental Transport Constn. Corpn., (CTCC), Dhanbad (Pvt).

(8) Shri Mahesh Gandhi of M/s. CTCC, Dhanbad (Pvt.) (9) M/s. Continental Transport Construction Corpn. (CTCC), Dhanbad (Pvt.)

Action taken : Regular case registered and investigation taken up. Investigation Officer: Shri A. Prasad, DSP, CBI, SPE, Ranchi 4

INFORMATION

A reliable information has been received to the effect that Shri P.N. Tiwary, the then Coal Controller (since retd.), Calcutta, Shri R.P. Srivastava, the then G.M.(Sales), CCL, Ranchi (since retd.), Shri S.K. Srivastava, the then GM.(Sales), CCL, Ranchi, Shri B. Akla, the then Chief of Marketing, Coal India Limited, Calcutta, Director (Technical) and (Projects and Planning), CCL and presently Chairman-cum-Managing Director, Central Coalfields Ltd. (CCL), Ranchi, Shri K.M. Singh, the then G.M., Argada Area, CCL, Shri Sudarshan Singh, the then Area Sales Officer, Argada Area, CCL (presently Superintending Engineer (E&M), N.K. Area, CCL, Shri Ramesh Gandhi of M/s. Continental Transport Construction Corpn., Dhanbad and Shri Mahesh Gandhi of M/s. Continental Transport Construction Corpn., Dhanbad entered into a criminal conspiracy among themselves and in furtherance of the said conspiracy the accused public servants abused their respective official positions, in as much as that they helped the private firm namely M/s. CTCC by way of illegally and unauthorisedly transferring different grades of coal/slurry to the private firm (CTCC) and also by way of intentionally and dishonestly suppressing relevant facts before the Hon’ble Courts and thereby helped M/s.CTCC in getting favourable orders for release of steam coal which was meant to be supplied only to the actual users and not to the traders like M/s. CTCC. As a result of the aforesaid overt acts of the accused public servants as mentioned above, M/s. CTCC, illegally obtained the supply of the Steam Coal at a cheaper rate applicable to the actual users, even after the lapse of the period stipulated by the Hon’ble Supreme Court, causing wrongful loss to the tune of Rs.90,00,000/- approximately to the CCL. It has been alleged that Coal India Limited (CIL), Calcutta vide NIT (Notice Inviting Tender) dated 9/15-1-91 offered sale of existing stock of following categories of coal under "BULK SALE SCHEME" on as is where is basis.

(i) Slurry

(ii) Dirty Slurry

(iii) Middlings

(iv) Rejects

It was also stipulated vide item no.23 of the terms and conditions of the NIT that in case of failure on the part of the buyer to lift 90% of the quantity within 90 days of allocation, security deposit and the Bank Guarantee would be liable to be forfeited by the Company.

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In response to the aforesaid NIT, M/s. CTCC, offered to buy following quantity/quality of coal at the prescribed rate. M/s. CTCC was allotted the entire quantity w.e.f. 25.7.91 which was to be lifted within 90 days after depositing the cost in advance. Name of Product Quantity offered Price by M/s. CTCC

Slurry Grade `D’ 179000 MT Rs.37756/- per MT Dirty Slurry Grade `F’ 45000 MT Rs.238.50 per MT Middlings Grade `F’ 90000 M T Rs.238.50 per MT Rejects 50000 MT Rs. 178.00 per MT It is further alleged that M/s. CTCC deposited the cost only for 1500 MTs of Middlings Grade `F’ and 13276 MT of Slurry Grade `D’ against the offered quantity as mentioned in the foregoing para. M/s. CTCC had lifted this quantity of 1500 MT only and was thus to be penalised by way of forfeiture of security/invoking of Bank Guarantee as per terms and conditions of the NIT. However, the concerned accused public servants in pursuance to a criminal conspiracy, had shown favours to M/s. CTCC by not taking action subsequently as above.

In furtherance of the conspiracy, M/s. CTCC requested the CIL in April 1993 to transfer the remaining quantity of 88500 MT of Middlings Grade `F’ to Dirty Slurry Grade `F’ and the same was approved on 28.5.93 in complete violation of terms and conditions of the NIT.

Accused Ramesh Gandhi of M/s. CTCC in accordance with Shri P.N. Tiwary, the then Coal Controller, Calcutta and the accused officials of the CCL/CIL submitted a representation to accused Shri P.N. Tiwary requesting transfer of the left over quantity of 165724 MT of Slurry Grade `D’ to Dirty Slurry Grade `F’. Shri P.N. Tiwari, in his capacity as Coal Controller, was supposed to allow the transfer of grade of coal after following due procedure, but he, in utter violation of the terms and condition of the NIT, approved the same and intimated to the CMD, CCL, Ranchi, accordingly.

It is further alleged that the Coal India Limited, Calcutta floated another NIT under "LIBERALISED SALES SCHEME II (LSS-II)", with same terms and conditions as of Bulk Sale Scheme, and M/s. CTCC offered to purchase, under this scheme, following quantities of coal from the collieries mentioned against each.

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Grade of Coal Quantity lifted Colliery (i) Steam Coal Grade `B’ 1.35 Lakhs MT Urimari (ii) Steam Coal Washery Grade 1.75 Lakhs MT Jarangdih `D’

It is further alleged that M/s. CTCC was allotted 32,000 MT of Steam Coal Grade `B’ from URIMARI Colliery and 5750 MT of Washery Grade `D’ Coal from Jarangdih Colliery vide letter dated 7.4.93 and 21.4.93 respectively of Coal India Limited, Calcutta. As against the aforesaid allotted quantity M/s.CTCC deposited the amount equal only to the value of 3000 MT each and lifted the same from the respective sources.

In pursuance of criminal conspiracy M/s. CTCC further requested the then General Manager, Argada Area, CCL, Shri K.M. Singh, vide letter dated 7.4.94 to allot Steam Coal from Sirka, Religara and Giddi `C’ Collieries (All high demand collieries), in lieu of left over quantity of Slurry Grade `D’ (165724 MT), Middlings Grade `F’ (88500 MT) and Dirty Slurry Grade’F’ (45000 MT) of the previous scheme, i.e. Bulk Sale Scheme. Steam Coal of the aforesaid three sources namely Sirka, Religara and Giddi `C’ was to be allotted, as per the policy of the CIL/CCL, exclusively to the industrial consumers (Actual users) and not to the traders like M/s. CTCC at all, during the relevant period. Also, the rate of Steam Coal applicable to the industrial Consumers (Actual users) was approximately Rs.200/- per MT less than the rate fixed for the traders and M/s. CTCC being the traders, was not authorised to get the Steam Coal at the rate which was applicable to the industrial consumers (actual users). Following the receipt of letter dated 7.4.94 of M/s. CTCC, accused Shri K.M. Singh, the then General Manager, Argada Area, CCL, in pursuance to the criminal conspiracy falsely intimated the Sales and Marketing Divisions of CCL, Ranchi, on 8.4.94 to the effect that Argada Area was having a huge stock of Steam Coal and that he was ready to supply the same to M/s. CTCC.

It is further alleged that accused Shri K.M. Singh, the then General Manager, Argada Area, CCL also was not competent to entertain such a matter as it was the concern of General Manager (Sales and Marketing), CCL, Ranchi.

Simultaneously, accused Ramesh Gandhi of M/s. CTCC

approached accused P.N. Tiwary, the then Coal Controller, as well, on the same issue, who in turn, in criminal conspiracy with M/s. 7

CTCC and accused public servants wrote a letter dated 12.4.94 to the CMD, CCL, Ranchi, inter alia, directing him to accede to the request of M/s. CTCC, without ascertaining from the CCL, Ranchi, the stock position and the past conduct of M/s. CTCC of not remitting the cost of entire offered quantity of coal in question against both the aforesaid schemes namely `Bulk Sale’ and `LSS-II’ within the stipulated period as prescribed and also the fact that M/s. CTCC was not authorised to get the Steam Coal which was meant for Industrial Units (Actual Users).

Even before the aforesaid letter dated 12.4.94 of accused P.N. Tiwary, was received in the office of the CMD, CCL, Ranchi, accused Ramesh Gandhi of M/s. CTCC moved to the Hon’ble High Court, Calcutta by suppressing the relevant facts of the matter and secured an order dated 18.4.94 vide which CMD, CCL, Ranchi was directed to comply with the directions of the Coal Controller issued vide letter dated 12.4.94. The accused public servants of CIL/CCL also did not place the correct facts before the Hon’ble High Court, Calcutta in the matter.

It is further alleged that it was obligatory on the part of accused R.P. Shrivastava, the then General Manager (Sales), CCL, Ranchi, and Shri Akla, the then Chief of Marketing, CIL, Calcutta to safeguard the interest of the company by way of approaching the Coal Controller to modify his order issued vide letter dated 12.4.94 according to the terms and conditions of the NITs in question and also to recommend to move the Division Bench of Hon’ble High Court Calcutta for modification of the order dated 18.4.94 on following points.

(i) M/s. CTCC did not fulfil the terms and conditions of NITs in question and thus the penalty was to be imposed on them; (ii) Steam Coal of the aforesaid collieries was not meant for traders like M/s. CTCC.

(iii) Traders, if allotted Steam Coal, were to pay @ Rs.200/- approximately (per MT) more than the rate allowed to the Industrial Consumers (Actual users).

However, they, in pursuance to the criminal conspiracy, simply recommended challenging the authority of the Coal Controller for issuing direction vide letter dated 12.4.94, in the Hon’ble High Court, Calcutta since the Coal Controller was authorised to issue such letters, the Hon’ble High Court, Calcutta vide order dated 6.4.95 dismissed the Revision Petition filed by the CIL with direction to implement the order dated 12.4.94 of the Coal Controller.

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M/s. CTCC, however, did not deposit the value of the Coal to be lifted again, on some pretext or the other as they were not in a position to sale such a huge quantity of coal at monopolistic price, those days, since the buyers were getting coal directly from the Coal India Limited and other sources. Also neither the accused Shri B. Akla, the then Chief of Marketing CIL nor Shri R.P. Shrivastava, the then General Manager (Sales and Marketing), CCL, Ranchi asked M/s. CTCC to deposit the coal value and to lift the coal.

Two SLPs vide no. 2004 and 2005 of 1997 were, however, filed in the Hon’ble Supreme Court after a lapse of more than two years by the CIL./CCL challenging the order dated 6.4.95 of the Division Bench of the Hon’ble High Court, Calcutta. At this stage also, the actual facts relating to the failure on the part of M/s. CTCC in lifting the coal after depositing the coal value in advance within the stipulated period as per terms and conditions of the NITs, were not brought to the notice of the Hon’ble Supreme Court and simply the authority of the Coal Controller was challenged.

The Hon’ble Supreme Court after hearing both the accused parties, dismissed both the SLPs on 18.3.97 with an observation that the Coal Controller had got the jurisdiction to pass such orders.

On receipt of the orders of the Hon’ble Supreme Court, it was rightly commented upon by an officer of Sales and Marketing Department of the CCL, Ranchi on 5.4.97 to the effect that merely challenging authority of the Coal Controller had not served any purpose. He opined that all the relevant points regarding failure on the part of M/s. CTCC should be raised by preferring an appeal against the impugned order. Accused Shri B. Akla by that time had joined as Director (Projects and Planning) CCL, Ranchi and had perused the aforesaid noting on 5.4.97 itself, but he had returned the file on 16.4.97 without any comment with an advice to discuss the matter with the Panel Advocate of CCL/CIL.

On 22.4.98, a modification petition was filed in the Hon’ble Supreme Court on behalf of CCL/CIL, mentioning therein the difficulties in implementing the orders dated 12.4.94 fo the Coal Controller, Calcutta. In this petition also, there was no mention about the facts that M/s. CTCC had not deposited the value of the entire quantity of coal and had not lifted the same within the stipulated period. The fact that Steam Coal of the collieries in question was meant specially for the industrial units/Actual users and if sold to the traders was to be costlier by Rs.200/- per MT approximately was also not mentioned in the said modification petition.

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M/s. CTCC also filed a contempt petition simultaneously in the Hon’ble Supreme Court against the then CMD, CCL, Ranchi and others in the matter. Hearing of both the petitions was fixed on 9.5.97 and the Hon’ble Supreme Court issued a show cause notice to the concerned officers of CCL. Hearing on the modification petition as mentioned above could not be taken up.

As per the commitment of the CCL, the Hon’ble Supreme Court vide its order dated 14.7.97, directed the CCL to complete the supply of the entire quantity of coal allotted to M/s. CTCC within 20 months positively at the rate of 10,000 MT per month and at the modified price fixed by the CIL w.e.f. 1.4.97.

On receipt of the aforesaid order, the Dealing Officer of the Sales and Marketing Division of CCL, Ranchi, initiated a proposal suggesting that penalty as per terms and conditions of NIT of "Bulk Sale" and "LSS-II" Schemes should be decided in case M/s. CTCC to notify truck wise allotment on a weekly basis, to ensure timely placement of trucks by the party and to maintain a record to assess the quantity lifted by them within a particular period of time.

It was also decided/recommended during a meeting held jointly by the Director (Finance), CCL, Ranchi, C.G.M., Argada Area, CCL, Sales Officer, Argada Area, CCL, CGM (Sales and Marketing Division), CCL, Ranchi etc. to impose a penalty on M/s. CTCC in case failed to lift 10,000 MT of coal per month as per the orders of the Hon’ble Supreme Court. When this note, duly recommended by the Committee was put up to the accused Shri B. Akla, the then director (Technical) and (Projects and Planning), CCL, Ranchi, he observed in favour of the party to the effect that the party shall have to be made to forego the unlifted quantity after "the stipulated period, and it will in itself, be sufficient and recovery/penalising for unlifted quantity may not be required". This observation of accused Shri B. Akla, which was not in accordance with the recommendation of General Manager (Sales) and the Committee members, including the Director (Finance) shows that he was promoting the interests of M/s. CTCC rather than that of CCL, Ranchi.

Thereafter, on 20.9.97, a meeting was held which was attended to by Shri B. Akla, Director (Technical) and (P&P), Shri A.K. Mitra, Director (Finance), R.R. Menon, G.M.(Sales and Marketing), CCL and Ramesh Gandhi of M/s. CTCC and it was mutually agreed upon that M/s. CTCC would submit a Bank Guarantee at the rate of Rs.30/- per MT for the unlifted quantity of coal, which could not be lifted due to the failure on the part of M/s. CTCC and to allow twenty months time for lifting the entire quantity 10

as per the direction of the Hon’ble Supreme Court. This period was to be calculated from the actual date of commencement of lifting or 1st November, 1997, whichever was earlier. It was also specified that M/s. CTCC would pay @ Rs.896/- per MT for the Steam Coal Grade `B’ at the notified rate w.e.f. 1.4.97.

As per the aforesaid decision M/s. CTCC was to lift the entire quantity of coal by June 1999, but against 2.8 lakh MT of Steam Coal, M/s. CTCC lifted only about 30000 MT of coal from the aforesaid three collieries upto June 1999 and thus the remaininig quantity of 2.5 lakhs MT of coal was not to be allowed to be lifted by M/s. CTCC. However, in violation of the Supreme Court’s order M/s. CTCC was allowed by Shri R.P. Shrivastava, the then General Manager (Sales), CCL, Ranchi to lift another 15000 MT of Steam Coal between June 1999 to October 1999. As per the direction of Hon’ble Supreme Court, the lifting of Coal was to commence from November 1997 but it was delayed by M/s. CTCC in connivance with the officers of CCL, on one pretext or the other upto March 1998, till the peak season started. This was obviously with a view to avoid the lean season.

It is also alleged that Shri Sudarshan Singh the then Area Sales Officer, Argada Area, CCL, was made the nodal officer responsible for regulating supplies of coal to M/s. CTCC and its reconciliation but he intentionally did not make any reconciliation and did not adhere to the norms of NIT/direction of the Hon’ble Supreme Cort. Shri Sudarshan Singh also went to the extent of issuing a letter/certificate favouring the party mentioning therein that due to the non-availability of Coal in the Area, the supplies could not be made to M/s. CTCC. This was done with a view to helping the party in the matter of lifting coal even after the expiry of the stipulated period of 20 months.

After the expiry of 20 months, accused Shri S.K. Shrivastava the then General Manager (Sales), CCL, Ranchi and Shri Mahesh Gandhi of M/s. CTCC entered into an unwarranted agreement (MOU) on 23.3.2000, vide which M./s. CTCC would be allowed to lift coal according to its own will as no time frame was fixed for lifting the same. M/s. CTCC was also given a chance for lifting coal from Bokaro, Barkakana, Sayal and Dhuri Area, in addition to the aforesaid areas was in high demand and was fetching the highest premium. In the MOU, no provision was kept for imposing any penalty for failure on the part of M/s. CTCC in lifting of Coal. This was done with a view of allow M/s. CTCC to lift coal during premium months.

The rate at which M/s. CTCC allowed to lift the coal was applicable to the industrial consumers/actual users and not to the traders like M/s. CTCC. The rate applicable to the trader was Rs.200/- (approximately per MT) more.

11

After the expiry of stipulated period of 20 months, M/s. CTCC was allowed by the accused public servants of CCL to lift extra quantity of 45000 MT of steam coal, at the rate applicable to the actual users and thereby CCL Ranchi was put to a wrongful loss to the tune of Rs.90 lakhs (Rs. Ninty Lakhs) approximately. The aforesaid acts of commissions and omissions on the part of S/Shri P.N. Tiwary, the then Coal Controller, Calcutta (retired), R.P. Shrivastava, the then General Manager (Sales), CCL, Ranchi (retd.), S.K. Srivastava, G.M. (Sales) CCL, Ranchi, B. Akla, CMD, CCL, Ranchi, K.M. Singh, the then G.M. Argada Area, CCL, Sudarshan Singh, the then Area Sales Officer, Argada Area, presently superintending engineer (E&M), NK Area, CCL, Ramesh Gandhi of M/s. Continental Transport Construction Corporation (CTCC) Dhanbad (Pvt.) reveal that the public servants and the private persons alongwith their firm, as mentioned above, entered into a criminal conspiracy and in pursuance of the same violated the terms and conditions of the NITs issued in respect of sale of coal under "Bulk Sale" and "LSS-II" Schemes, wilfully suppressed relevant facts before the Hon’ble High Court, Calcutta and Hon’ble Supreme Court of India and subsequently in violation of Hon’ble Supreme Court’s order allowed the private party namely M/s. CTCC to lift an additional quantity of 45000 MT of coal at the rate applicable to the industrial consumers/actual users and thereby caused huge wrongful loss to the tune of Rs.90 lakhs approximately to the CCL, Ranchi and corresponding wrongful gain to the private party and themselves. Shri P.N. Tiwary, the then Coal Controller, Calcutta also connived with the private party and accused public servants by fraudulently and dishonestly issuing directions to the CMD, CCL, Ranchi in favour of the private party.

This prima facie disclose the commission of offences u/s. 120(B) r/w 420 IPC and Sec. 13(2) r/w sec. 13(1)(d) of P.C. Act, 1988.

This R.C. is therefore registered and investigation is taken up.

Sd/- 15.11.2000

[A. PRASAD]

Dy. Supt. Of Police,

CBI/SPE/Ranchi,

Investigating Officer

Dated 15.11.2000"

12

 

6. According to the FIR, the various acts and omissions narrated therein of the accused caused a huge wrongful loss of approximately rupees ninety lakhs to the CCL and a corresponding wrongful gain to the private company.

 

7. This case has a long and chequered history. It all started with two advertisements issued by CIL in January, 1991 and September, 1991 published in the `Statesman’ newspaper inviting offers for purchase of various grades of coal under two schemes propounded by it named as `Bulk Sale Scheme’ and `Liberalised Sale Scheme-II’. [It is unfortunate that copies of the above advertisements are not placed on record]

 

8. What transpired subsequently is described in detail by this Court in judgment dated 18th March, 1997 in Civil Appeal Nos.2004- 2005/1997 reported in (1997) 9 SCC 258. Both Coal India Ltd. and the private company were parties to the above-mentioned appeals. In paras 5 to 7, this Court recorded as follows:

"5. In Civil Appeal arising out of Special Leave Petition No. 25983 of 1995 we are concerned with the sale of coal under the Liberalised Sales Scheme-II (for short ‘LSS-II) framed by CIL in August 1992 in pursuance of Notifications dated July 24, 1967 and June 4, 1992. In September 1992 CIL published an advertisement in the ‘Statesmen’ inviting offers for purchase in respect of coal offered for sale under LSS-II. In the said advertisement the quantity and quality of coal that was being offered in the various collieries belonging to the subsidiaries of CIL were specified. 13

Among the collieries mentioned in the advertisement were Urimari and Jarangdih collieries of CCL. In respect of Urimari Colliery 1.35 lac tonnes of Grade-B Steam Coal was offered and in respect of Jarangdih Colliery 1.75 lac tonnes of Grade W-III Steam Coal was offered. In response to the said advertisement M/s. Continental Transport and Construction Corporation, respondent No. 1 in both the appeals (hereinafter referred to as ‘the petitioners’), sent a letter dated September 16, 1992 to the General Manager (Sales), CCL, offering to purchase 1.35 lac tonnes of Grade-B Steam Coal from Urimari Colliery and 1.75 lac tonnes of Grade W-III Steam Coal from Jarangdih Colliery. By allotment letter dated April 7, 1993, CCL allotted to the petitioners 32,400 MT Grade-B Steam Coal from Urimari Colliery in Sayal area in response to the offer made by the petitioners on September 16, 1992. By another allotment letter dated April 20/21, 1993, CCL allotted to the petitioners 50,750 MT Grade W-III Steam Coal from Jarangdih Colliery. The validity of the said allotments was up to March 31, 1994, but the period of the said allotments was extended. The case of the petitioners is that Steam Coal at Urimari and Jarangdih Collieries was not matching to the declared Grade-B and W-III respectively and was of lower grades. Sirka Colliery falling in Argada area also belongs to CCL. The petitioners, having come to know that sufficient stocks of Grade-B Steam Coal was available for disposal at Sirka Colliery, wrote a letter dated April 7, 1994 to the General Manager (Argada area) of CCL, wherein it was mentioned that 32,400 MT of Grade-B Steam Coal from Urimari Colliery and 50,750 MT of Grade W-III Steam Coal from Jarangdih Colliery was allotted to them vide allotment letters dated April 7, 1993 and April 20/21, 1993 respectively and that on account of non- availability of Grade-B Steam Coal at Urimari Colliery and Grade W-III grade steam coal at Jarangdih Colliery it would not be possible for them to lift the required quantity of coal. In the said letter it was also stated that the petitioners had learnt that Sirka Colliery had huge stocks of Grade-B Steam Coal to the tune of 4.16 lakh MT and that he (General Manger) was willing to accept the diversion of orders of other areas booked under LSS-II to the tune of 2.00 lakhs MT in addition to other pending commitments and orders/proposed deliveries to others including the petitioners. By the said letter the petitioners expressed their willingness to accept equivalent quantities of Grade-B Steam Coal from Sirka Colliery in case the General Manager was willing to accept the transfer of allotment for Steam Coal of Urimari and Jarangdih Collieries. The General Manager was requested to accept the proposal of the petitioners at his level and intimate to the General Manager (Sales)/CCL Headquarters for obtaining the formal approval in this regard. After receiving the said letter the General Manager (A), Sirka, sent a communication dated April 8, 1994 to the General Manager (S&M), CCL, wherein he enclosed a copy of the aforementioned letter of the petitioners dated April 7, 1994 and, after referring to his wireless message dated April 1, 1994, he 14

stated that in view of the stock position of 4.16 lakhs MT of coal at Sirka Colliery it has been confirmed that in order to liquidate stocks such orders of steam coal, if diverted from other areas, could be accepted. On April 9, 1994 the petitioners submitted a representation to the Coal Controller for transfer of allotments of steam coal from Urimari and Jarangdih Collieries allotted by CCL/Headquarters under LSS-II from these collieries to Sirka Colliery of Argada area. In the said representation the petitioners mentioned that quality of coal being produced at Urimari Colliery was equivalent to Grade-D coal and at Jarangdih Colliery also the quality of coal being produced was equivalent to Grade W-IV. It was stated that at Sirka Colliery of Argada area there were huge stocks of Grade-B Steam Coal to the tune of 4.10 lakhs MT and it was pointed out that the General Manager (Argada area) of CCL, in his letter dated April 8, 1994, had recommended the request of the petitioners for diversion of allotments to Sirka Colliery for favourable consideration and approval of the General Manager (Sales)/CCL. A copy of the said letter of the General Manager, Argada Area, Sirka dated April 8, 1994 was also submitted along with the representation. By the said representation the petitioners requested the Coal Controller to issue a direction to the coal company for transfer of allotments of Steam Coal from Urimari and Jarangdih Collieries to Sirka Colliery for release of equivalent quantity of Steam Coal from Sirka Colliery. On the said representation the Coal Controller, on April 12, 1994, sent a communication to the Chairman-cum-Managing Director, CCL, Ranchi referring to the letter dated April 7, 1994 submitted by the petitioners to the General Manager, Argada area as well as the letter dated April 8, 1994 from the General Manager, Argada addressed to the General Manager (Sales)/CCL wherein he had recommended for acceptance of the transfer in order to liquidate huge stocks of coal at Sirka Colliery. In the said letter the Coal Controller has stated :

Having noted the entire circumstances and facts of the case and the availability of steam coal at Sirka you are advised to forthwith give effect to the transfer of these allotments of steam coal from Urimari/Jarangdih collieries to Sirka Colliery for delivery of equivalent quantity of steam coal Grade B to the party as requested for by them and recommended by the concerned area, at the earliest.

 

6. Civil Appeal arising out of S.L.P. (Civil) No. 26366 of 1995 relates to sale of washery products on the basis of the Notification dated July 24, 1967, before amendment introduced therein by Notification dated June 4, 1992. On January 17, 1991 and advertisement was published in the ‘Statesman’ inviting offers for bulk purchase of rejects, Middlings, Slurry and Dirty Slurry in various washeries of CCL including the Gidi Washery. In response to the said advertisement, the petitioners, on March 2, 1991, 15

submitted offers for purchase of 1,79,000 MT Slurry, 90,000 MT Middlings and 90,000 MT Dirty Slurry. By letters dated May 11/14, 1991 CIL accepted the offer of the petitioners and agreed to supply to the petitioners 1,79,000 MT Slurry Grade-D, 90,000 MT Middlings Grade-F and 45,000 MT Dirty Slurry Grade-F from Gidi Washery. Subsequently by letter dated May 28, 1992 CCL approved the transfer of 88,500 MT of Grade-F Middlings allotted to the petitioners to equivalent quantity of Grade-F Dirty Slurry to be delivered from Gidi Washery. By letter dated September 18, 1993, the General Manager (Argada area) of CCL refused to accede to the request of the petitioners to allow delivery of Grade- D also with Grade-F Dirty Slurry and reiterated that in order to avoid possible malpractices of lifting of Slurry against orders of Dirty Slurry, lifting of both the products concurrently was not possible. On September 20, 1993, the petitioners submitted a representation to the Coal Controller requesting him to direct CCL to transfer their allotment of 1,65,724 MT of Slurry Grade-D to equivalent quantity of Dirty slurry Grade-F which was abundantly available at the Gidi Washery. On January 31, 1994 the Coal Controller gave a direction to the Chairman-cum-Managing Director, CCL, Ranchi, to transfer 1,65,724 MT of Grade-D Slurry to equivalent quantity of Grade-F Slurry in Gidi Washery. Since the direction of the Coal Controller was not implemented by CCL, the petitioners moved the Calcutta High Court by filing a Writ Petition and the High Court, by order dated February 10, 1994, directed the appellants to act in terms of Coal Controller’s letter dated January 31, 1994. Thereupon by letter dated February 28, 1994, CCL confirmed the transfer of 1,65,724 MT of Grade-D Slurry to Grade-F Slurry of Gidi Washery. The case of the petitioners is that with effect from April 1, 1994, CCL changed the grade of Dirty Slurry of Gidi Washery from Grade-F to Grade-E for the year 1994-95 and increased its price by about Rs. 85 per MT. The petitioners submitted a representation to the Coal Controller on April 2, 1994 in that regard. On April 7, 1994, the petitioners wrote a letter to the General Manager (Argada area) of CCL, wherein they stated that in view of the difficulties mentioned in the said letter, it would not be possible for them to lift the Dirty Slurry allotted to them from Gidi Washery and they sought transfer of their allotments of Dirty Slurry to Steam Coal from Sirka/Gidi- C/Religara collieries. By his letter dated April 8, 1994 addressed to the General Manager (S&M), CCL, the General Manager (Argada area), forwarded the said letter of the petitioners for favourable consideration. On April 9, 1994 the petitioners submitted a representation to the Coal Controller requesting him to transfer of then-allotted quantity of Dirty Slurry remaining to be booked and lifted against allotment and the entire quantity of recent allotment of 1,65,724 MT of Dirty Slurry for release of equivalent quantity of Steam Coal by road from Sirka/Gidi-C/Religara collieries. The Coal Controller, sent a communication dated April 12, 1994 to the Chairman-cum-Managing Director, CCL, wherein, after taking 16

note of the representation dated April 7, 1994 submitted by the petitioners to the General Manager (Argada area) and the letter from the General Manager, Argada area to the General Manager (Sales)/CCL dated April 8, 1994, he stated :

Having noted the entire circumstances and facts and the availability of the coal at Sirka/Religara/Gidi-C desired to be lifted by the party, you are advised to forthwith effect to the transfer of allotments of Dirty Slurry and in the party letter dated 2.4.94 and 9.4.94 for release of equivalent quantity of steam coal from Sirka/Religara/Gidi-C collieries as requested for by them and recommended by the concerned area, at the earliest.

 

7. Since the directions contained in both the communications of the Coal Controller dated April 12, 1994 addressed to the Chairman- cum-Managing Director of CCL were not being implemented by CCL, the petitioners on April 18, 1994, filed two Writ Petitions (Matters Nos. 940-941 of 1994) in the Calcutta High Court. Both the Writ Petitions were disposed of by a learned single Judge (Mitra J.) by order dated April 18, 1994 whereby the Chairman- cum-Managing Director of CCL was directed to act in terms of the communications dated April 12, 1994 sent by the Coal Controller within a fortnight from the date. This order was passed by the learned single Judge without issuing notice to the appellants and by directing that a copy of the Writ Petition be served upon Mrs. A. Quraishi, Advocate as she generally appears on behalf of the Chairman-cum-Managing Director of CCL and the Chairman-cum- Managing Director of CCL ‘was directed to regularise her appointment in the matter. The said order of the learned single Judge was, however, set aside in appeal by the Division Bench of the High Court by order June 6, 1994 and the matter was remitted for reconsideration on merits. Thereafter, the matter was considered by Samaresh Banerjee J. who, after issuing notice to the parties, by his judgment dated April 6, 1995, allowed both the Writ Petitions filed by the petitioners and directed the appellants herein, who were respondents in the Writ Petitions, to implement the orders of the Coal Controller dated April 12, 1994 forthwith. Letters Patent Appeals filed by the appellants against the said judgment of the learned single Judge have been dismissed by the Division Bench of the High Court (K.C. Agarwal CJ. and Tarun Chatterjee J.) by the impugned judgment dated October 31, 1995. Hence these appeals. "

It can be seen from the above-extract that the private company entered into two contracts with CIL pursuant to two Notice Inviting Tenders (NITs). Subsequently, the private company sought 17

variation of the original terms of the contracts in so far as they relate to the quality of coal and also the collieries from which the coal could be secured. The same was directed to be given by the Coal Controller (one of the accused) by his communications dated 12.04.1994. Complaining that the CIL and its officers were not honouring the directions given by the Coal Controller, the private company approached the Calcutta High Court by filing two writ petitions, i.e. W.P. Nos. 940 and 941 of 1994. The brief history of the said writ petitions is taken note of by this Court in para 7 of the judgment dated 18th March, 1997, extracted above. Eventually, both the writ petitions were allowed by the judgment of the Calcutta High Court dated 6th April, 1995 and the same was confirmed by the Division Bench in Letters Patent Appeals by a judgment dated 31st October, 1995. Aggrieved by the same, CIL approached this Court by the above-mentioned Civil Appeal Nos. 2004-2005 of 1997. Both the appeals were dismissed.

 

9. The matter did not end there. Complaining that the Coal India Ltd. and its officers failed to comply with the judgment of this Court dated 18th March, 1997 in the above-mentioned Civil Appeal Nos. 2004-2005 of 1997, the private company filed contempt petitions Nos. 261-262 of 1997. The said contempt petitions were disposed of by an order dated 14th July, 1997 by this Court. The operative portion of the said order is as follows:-

18

"We, however, find that in the contempt petitions the prayer of the applicants is that they may be supplied coal at the notified price fixed by the Coal India Ltd. and made effective for sale of coal with effect from April 1, 1997. Having regard to the said prayer made by the applicants themselves in the contempt petitions, we consider it just and appropriate in the interest of justice to direct that the supplies of the coal that are to be made by the respondents as per the directions of the Coal Controller during the period of next 20 months shall be made at Rs.896/- per metric tonne, the notified price fixed by the Coal India Ltd. with effect from April 1, 1977. It is made clear that the respondents are not restricted to supply coal at the rate of 10000 metric tonne per month and that if there is availability of larger quantity of coal the respondents can supply quantity in excess of 10000 metric tonne per month so as to reduce the period of 20 months for the supply but in no event the said period shall be extended. Since the supplies are to be made at the rate of 10000 metric tonne per month, it will be permissible for the applicants to furnish rotating bank guarantee for 10000 metric tonne of coal per month. It is also made clear that the price at which the supply of coal is to be made as directed above, shall be for the entire quantity of coal to be supplied by the respondents and there shall be no variation in the said price. The contempt petitions as well as the interlocutory applications Nos.5-6 are disposed of accordingly."

10. Subsequently, it appears that CIL did, in fact, supply coal to the private company allegedly not only in compliance with the directions of this Court in its order dated 14th March but also in excess of the legal obligations imposed by the orders of this Court.

11. It is in the above-mentioned background, the FIR, which is the subject matter of the dispute in the instant appeal, came to be registered on 15th November 2000.

 

12. The crux of the FIR is that though the supplies by the Coal India Ltd. are pursuant to the directions issued by the Calcutta High Court confirmed and reinforced by the judgment dated 18.3.97 and 19

order dated 14.7.97 of this Court referred to above, such directions from the courts are consequences of the failure on the part of the various accused (mentioned in the FIR) to bring the relevant and crucial facts which in law disentitle the private company from getting any relief either from this Court or from the Calcutta High Court. According to the FIR, the private company failed to comply with the twin obligations arising under the two contracts referred to earlier, i.e. lifting of the coal contracted to be purchased by it in accordance with the schedule agreed upon and making the payment of money towards the sale price of the coal in terms of the schedule of the payment agreed upon. The substance of the FIR is that the failure to bring the above mentioned crucial facts to the notice of the Courts (both the Calcutta High Court and this Court), is deliberate and due to a conspiracy between all the accused of which the respondent is one.

 

13. By the judgment under appeal, the said FIR was quashed. The only reason given is that the supply of coal to the private company had been made in terms of a decision given by the Calcutta High Court as approved by this Court at a price fixed by this Court. Therefore, no Magistrate can examine the allegation that such a supply of coal resulted in an unjust pecuniary advantage to the private company. The operative portion of the judgment reads as under:

20

"It was contended that the object of the First Information Report and the investigation thereon was to unearth criminal misconduct conducted by the accused public servants to obtain for CTCC wrongful pecuniary advantage by corrupt or illegal means or by abusing their position as public servants or while holding office as public servants and accordingly offences said to have been committed includes those mentioned in Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The alleged wrongful pecuniary advantage is obtaining of supply of coal at a less price. As aforesaid supply of coal had been obtained in terms of a decision given by this Court and approved by the Supreme Court and at the price fixed by the Supreme Corut, no magistrate, therefore, in the circumstances can decide that any unjust pecuniary advantage was made available to CTCC by any of the accused public servants.

For the reasons aforesaid I quash the First Information Report impugned in this writ petition, all investigations made pursuant to the said First Information Report and restrain Central Bureau of Investigation from carrying on any further investigation on the basis of the said First Information Report."

 

14. Hence, this appeal.

 

15. Learned Additional Solicitor General, Shri P.P. Malhotra, appearing for the appellant very vehemently submitted that: the only issue considered and decided by the Calcutta High Court and confirmed by this Court was whether the Coal Controller had the necessary legal authority to direct (by his two letters dated 12.4.1994) the variation of the terms of the two contracts entered into by the private company and this Court did find that the Coal Controller had the requisite legal authority to direct such variation. The mere existence of authority in the Coal Controller to order 21

variation in the terms of the contracts does not by itself mean that the authority had been exercised legally and validly. The Coal Controller failed to take note of the fact that the private company had already committed a breach of its contractual obligations to CIL. Having regard to the breach of the contract committed by the private company, the Coal Controller should not have exercised his authority in favour of such a defaulting purchaser. In other words, the Coal Controller did not take all the relevant factors before exercising his authority to grant variation in the terms of the contracts between the private company and the Coal India Ltd. Shri Malhotra further submitted that even in the legal proceedings before the Calcutta High Court and this Court, these factors were not brought to the notice of the Courts by any one of the accused. It is argued that if only the fact that the private company had already defaulted in its obligations arising out of the two contracts entered into by it with the CIL had been brought to the notice of the Courts, Courts would not have intervened in favour of the private company. The gravamen of the charge in the FIR in issue is that the failure to bring such crucial facts, which were most crucial for adjudicating the rights and obligations of the private company and CIL, to the notice of the Courts is the consequence of a criminal conspiracy by all the accused to enable the private company to derive an unjust and illegal benefit at the cost of CIL. Shri Malhotra, therefore, submitted that the judgment under appeal 22

clearly failed to consider this aspect and, therefore, unsustainable in law.

 

16. On the other hand, Shri Gopal Subramanium, learned senior counsel appearing for the respondent submitted that the judgment under appeal does not call for any interference as the conclusion arrived at by the judgment under appeal is a logical corollary to the earlier judgment in Civil Appeal Nos. 2004-2005 of 1997 and order in Contempt Petitions Nos. 261-262 of 1997 of this Court.

17. From the tenor of the impugned FIR, we understand the charge against the accused to be as follows:

(a) The private company committed breach of contractual obligations arising under the two contracts entered into by it with CIL.

(b) The officers of the CIL and CCL(shown accused in the FIR) are obliged in law (as per the terms of the contract) to take penal action against the private company for such breach of the contractual obligations.

(c) The above-mentioned officers/accused failed to take any such penal action.

23

(d) On the other hand, when the private company approached the courts seeking the enforcement of the directions of Coal Controller, all the accused deliberately suppressed the fact that private company had committed a breach of its contractual obligations, thereby enabling the private company to obtain favourable order. (e) The suppression of the crucial fact that the private company committed breach of its contractual obligations was deliberate and intentional on the part of all the accused.

(f) Such suppression is a consequence of a criminal conspiracy between all the accused to enable the private company to secure an illegal monetary gain by manipulating the judicial process.

18. We have meticulously examined the judgment of this Court dated 18.3.1997. The entire controversy in the said judgment revolved only around the authority of the Coal Controller to issue the various directions such as were given by him on 12.04.1994. On an examination of the relevant provisions of law, this Court no doubt held that the Coal Controller was legally competent to issue the said directions. That the private company had already committed breach of contractual obligations arising under the two 24

contracts was not at issue. There is no discussion in that regard in the said judgment.

 

19. Whether the private company failed to comply with the legal obligations arising out of the contracts entered into by it with the Coal India or its subsidiaries, depends on the proof of the facts allegedly constituting the acts or omissions amounting to the breach of the contracts on the part of the private company. To arrive at any conclusion on the above question, it requires a detailed examination of the relevant material. The fact that the supplies of coal were made to the private company pursuant to the orders of the Calcutta High Court and confirmed by this Court by itself does not rule out the possibility of a crime having been committed. It is well known that decisions are rendered by courts on the basis of the facts pleaded before them and the issues arising out of those pleaded facts. As we have already pointed out, the only issue projected on the basis of the facts placed before Calcutta High Court and this Court is the competence of the Coal Controller to give directions which in substance amounted to variation of the terms of the contracts to which the private company and Coal India Ltd. are parties. This court in Civil Appeal Nos.2004-2005 of 1997 declared that the Coal Controller had the requisite legal authority to give such directions but did not examine any other issue. 25

 

20. The exact terms and conditions subject to which the CIL accepted the offer of private company are not available on record in the instant case. But it appears from the FIR (which is the subject matter of dispute) that the private company is required to lift the entire quantity of coal it agreed to purchase within a period of 90 days from the date of allotment. It also appears from the FIR, that the private company is obliged to make the payments of the price in a specified manner and schedule and also make a security deposit, the exact nature of which is not mentioned either in FIR or in the petition or in the judgment under appeal. We are, therefore, to make a conjuncture that deposit of money is some kind of a guarantee for the performance of the contract on the part of the private company.

 

21. Coming to the judgment under appeal, as it is already noticed that the High Court quashed the FIR only on the ground that the supply of coal had been obtained in terms of a decision given by the Calcutta High Court and approved by this Court and for the said reason no magistrate can, therefore, decide whether any unjust pecuniary advantage was made available to the private company. For coming to such a conclusion, the learned Judge made an `elaborate examination’ of the Indian legal system. But, in our opinion, the entire enquiry proceeded on a wrong premise that no 26

examination, as to how a judgment of a superior Court came into existence, is permissible in the system of law which we follow.

22. This Court on more than one occasion held that fraud vitiates everything including judicial acts. In S.P. Chengal Varaya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors., (1994) 1 SCC 1, this Court observed as follows in para 1:-

 

1. "Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and honest in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."

 

23. Again in A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors., AIR 2007 SC 1546, this Court reviewed the law on this position and reiterated the principle. In paras 38 and 39 it was held as follows:

 

38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. 27

 

39. The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as nonest by every Court, superior or inferior.

[emphasis supplied]

If a judgment obtained by playing fraud on the Court is a nullity and is to be treated as non est by every Court superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the Court by not disclosing the necessary facts relevant for the adjudication of the controversy before the Court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. Therefore, the conclusion reached by the judgment under appeal that no Court can examine the correctness of the contents of the impugned FIR, is unsustainable and without any basis in law. The very complaint in the FIR is that the judgment of the Calcutta High Court, as affirmed by this Court, is a consequence of a deliberate and dishonest suppression of the relevant facts necessary for 28

adjudicating the rights and obligations of the parties to the said litigation

 

24. Coming to the question as to what amounts for securing a judgment by playing fraud in the Court- In Chengal Varaya Naidu (supra), this Court categorically held that the non-disclosure of all the necessary facts tantamounts to playing fraud on the Courts. At para 6 of the said judgment, it was held as follows: "…………..If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party."

25. The allegation in the FIR is that the various accused deliberately withheld/suppressed the fact that the private company, by the time it approached the Calcutta High Court in writ petition Nos.940 and 941 of 1994, had already committed breach of its obligations arising of the contracts from out of which the entire litigation arose. A fact which is greatly relevant in deciding the entitlement of the private company to seek various reliefs such as the ones sought by it before the Calcutta High Court. It is further specific allegation in the FIR such a non-disclosure/suppression of the crucial fact was wilful and deliberate pursuant to a conspiracy between all the accused to secure an illegal and wrongful monetary gain to the private company. Therefore, in our opinion the Judgment under appeal cannot be sustained.

29

 

26. Coming to the question of the scope of the jurisdiction to quash an FIR, either in the exercise of statutory jurisdiction under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India, the law is well settled and this Court in a catena of decisions laid down clear principles and indicated parameters which justify the quashing of an FIR. We do not propose to catalogue all the cases where the issue was examined but notice only two of them and indicate the consistent principles laid down by this Court in this regard.

 

27. In R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, this Court at para 6 held:

"……………..It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, 30

do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court’s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, ……………….."

 

28. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 SC 604, this Court after reviewing large number of cases on the question of the quashing the FIR held at paras 108 and 109 as follows:

"108.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and 31

inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

 

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

 

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

 

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

 

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

 

109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

32

 

29. Tested from the point of view of the law laid down in the above mentioned judgments, the impugned FIR does not merit interference, as it is not a case of even the respondent (writ petitioners) that the FIR is required to be quashed on any one of the grounds legally recognised by this Court to be sufficient ground for quashing an FIR.

 

30. For all the above reasons, we are of the opinion that the judgment under appeal cannot be sustained and the same is required to be set aside and we, accordingly, set aside the same. The appeal stands allowed.

…………………………………J.

( P. Sathasivam )

……………………………………J.

( J. Chelameswar )

New Delhi;

Dated: 14th November, 2011.

 

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Duty Of TRIAL Court: Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution

13. The High Court then considered the scope and effect of Section 251-A, Criminal P.C. After adverting to some reported cases and comparing that section with Sections 207-A and 209, Criminal P.C. it took the view that under Section 251-A(2) the accused could only be discharged if, to quote its own words “no reasonable persons could come to the conclusion that there was any ground whatsoever to sustain the charge against the accused” The High Court concluded that the charge against the accused in this case could not be said to be groundless if it took the counsel five days to convince the trial Magistrate that it was so, and it took two and a half days for the counsel to attempt to convince the High Court that the charge was groundless. That Court, however, did not base its decision on this ground alone. In its opinion all the documents referred to in Section 207-A, Criminal P.C. were before the Magistrate who had, after a detailed scrutiny, written a lengthy judgment, but without discussing the statements of witnesses recorded by the Police under Section 161, Criminal P.C. This was considered to be one infirmity which exposed the order of discharge to attack on revision. In the High Court the counsel for the accused did not submit, that the Deviation Order was retrospective in the sense that it condoned the offence: that order was contended to be retrospective because the mill was told that exemption would be granted if certain conditions were satisfied and there was, therefore, no offence committed. Though the High Court did not consider this submission to be frivolous or liable to be lightly brushed aside, that Court was equally unable to hold that no reasonable person could possibly take a contrary view. This was one of the grounds on which the High Court did not agree with the order of discharge. The High Court further observed that the trial Court was not called upon at this initial stage of the proceeding to decide finally whether on a true construction of the notification, the circular letter and the correspondence, there would, on certain conditions being satisfied, be an exemption from the operation of the control order and there would therefore, be no offence at all. This question, according to the High Court, required a full argument at the hearing of the case, after the framing of the charge. In expressing a final opinion at that stage the Magistrate had in the view of the High Court, exceeded his jurisdiction under Section 251-A(2). Similarly, on the question of mens rea also a contrary view was considered by the High Court to be not only possible but highly probable and for this reason it did not agree with the learned Magistrate’s conclusion that the charge was groundless. That Court finally observed that having regard to the documents refer-red to in Section 173, Criminal P.C. there appeared a certain consistency of conduct or even collaboration amongst the accused persons so far as the alleged contravention of the control order is concerned and under the circumstances it could not be said that the charge of conspiracy was groundless. It was on this reasoning that the order of discharge was set aside and the case remanded to the Court of the Chief Presidency Magistrate. These appeals have been presented under Article 136. 14. In this Court we have been taken through the relevant material on the record and it is strongly contended on behalf of the appellants that the High Court has taken an erroneous view of law and has also exceeded its power under revisional jurisdiction and that the judgment under appeal has resulted in failure of justice. 15. We may first dispose of the argument on the meaning and scope of Section 251-A, Criminal P.C. This section reads: (1) When, in any case instituted on a Police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if be finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If, upon such documents being considered: such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (4) The charge shall then be read and explained to the accused and lie shall be asked whether he is guilty or claims to be tried. (5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. (6) If the accused refuses to plead, or does not plead, or claims to be tried, the magistrate shall fix a date for the examination of witnesses. (7) On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination. (8) The accused shall then be called upon to enter upon’ his defence and produce his evidence: and if the accused puts in any written statement, the Magistrate shall file it with the record. (9) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of any documents or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purpose of justice. (10) The Magistrate may, before summoning any witness on such application under Sub-section (9), require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court. (11) If in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty he shall record an order of acquittal. (12) Where in any case under this section, the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon (him) according to law. (13) In a case where a previous conviction is charged under the provisions of Section 221, Sub-section (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under Sub-section (5) or Sub-section (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon. Though at the bar of this Court as also in the High Court considerable arguments and discussion centered round this point, in our opinion, the construction and meaning of this section so far as relevant for our purpose does not present any difficulty. Under Sub-section (2), if upon consideration of all the documents referred to in Section 173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with Sub-section (3), according to which, if after considering the documents and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code with in the Magistrate’s competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together it clearly means that if there is no ground for presuming that (he accused has committed an oftence, the charges must be considered to be groundless, which is the same thing as saving that there is no ground for framing the charges. This necessarily depends on the facts and circumstances of each case and the Magistrate is entitled and indeed has a duty to consider the entire material referred to in Sub-section (2). On the view that we have taken, we do not consider it necessary to refer to the various decided cases cited at the bar of this Court or discussed in the judgment of the High Court. 16. Coming now to the facts of this case, in our view, the question principally depends on the scope and effect of the notification dated September 22, 1949, the circular dated November 2, 1964 and the Deviation Order dated June 25, 1965. If, on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person’s liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it, has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution. – http://www.lawweb.in/2013/06/duty-of-court-while-framing-charge.html

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Judgments:- Failure of justice delivery system

[01]   Present case is a glaring example of inaction on the part of all three instruments in justice delivery system i.e. the Presiding Officer/trial Court, the Public Prosecutor and the Investigating Agency in finding out the real truth which resulted into the acquittal of the respondent accused who was tried for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as IPC). Present case demonstrates how the Presiding Officer who has conducted the trial; the Public Prosecutor and the Investigating Agency failed in performing their respective duties while conducting the trial, resulting into failure of justice delivery system.  http://indiankanoon.org/doc/50861451/?type=print

[02] http://indiankanoon.org/doc/50861451/?type=print

35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson’s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.

39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.

40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.

43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

Thus, as observed by the Honble Supreme Court in the aforesaid decision, the Courts have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of law and to find out the truth and to see that the guilty does not escape and innocent is not punished.

 Role of the Judge

[7.0] It is observed by the Honble Supreme Court in the catena of decisions and more particularly the case of Zahira Habibulla H. Sheikh (Supra) and in the case of National Human Rights Commission vs. State of Gujarat and Ors. reported in AIR 2009 SC (Suppl.) 318 that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. It is further observed that a criminal trial is a judicial examination of issues in the case and its purpose is to arrive at a judgment on the issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. The object is to mete out justice and to convict the guilty and protect the innocent. It is observed that since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. It is further observed that if a criminal court is to act in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine.

Considering the aforesaid important role to be performed by the Presiding Officer in administration of justice and to find out the truth and to mete out the justice and to convict the guilty and protect the innocent, it appears to us that in the present case learned Judge has failed to perform its duty and play his role which is very important in the justice delivery system more particularly dealing with the case against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC. It is also required to be noted that that as observed herein above, while conducting the trial, the only object is to mete out the justice and to convict the guilty and protect the innocent by finding out the truth, the Presiding Officer should not be in haste in concluding the trial which results into failure in criminal justice delivery system by acquitting the accused in haste. Every Presiding Officer shall be sensitive and shall play an active role in the criminal justice delivery system and to arrive at truth.

The prompt disposal of the criminal cases is to be commanded and encouraged but in reaching that result there shall not be any miscarriage of justice and/or failure in justice delivery system and the accused charged with a serious offence shall not be permitted to get the benefit and in reaching that result the valuable right of fair and impartial trial to the victim as well as the society at large must not be stripped off. To do that, establish negotiation of concept of due process of law.

The Judge of seisin of the trial shall not forget that he has an overriding duty to maintain public confidence in the administration of justice and often referred to as the duty to vindicate and uphold the ‘majesty of the law’.

 Role of the Public Prosecutor

[7.1] In the present case similarly even the concerned Public Prosecutor has also failed to perform his duty. It cannot be disputed that in a criminal trial and in criminal justice delivery system the Public Prosecutor plays an important role. The duty of the Public Prosecutor is to find out the truth and to see that innocent person is not convicted but at the same time the real culprit is also punished and they do not escape conviction. In a police case the complainant is the State and not the private individual at whose instance the case has been taken up and in such cases the Public Prosecutor alone is entitled to conduct the prosecution, though it is open to him to take instructions from the complainant or his counsel whenever needed. The Public Prosecutors are really Ministers of Justice whose job is none other than assisting the State in administration of justice. In Indian Criminal Justice System, the role of the Public Prosecutor has always been shrouded in a controversy. One of the main reasons for such controversial image of the Public Prosecutor is the fact that there is much confusion about their duties and responsibilities. Police, accused and victim all have conflicting beliefs about what role the Public Prosecutor is supposed to play. For example, according to the police, the main duty of Public Prosecutor is to get accused convicted. According to the accused, main role of the Public Prosecutor is to make available to the accused any legitimate benefit that he is entitled to during the trial even if the defence counsel has overlooked it. According to the victim, the Public Prosecutor is his/her Avenging Angel and still get him justice at any cost. The Public Prosecutor should discharge its duties fairly and fearlessly and with full sense of responsibility that attaches to his position. He should place before the Court whatever the evidence is in his possession. It is also his duty to ensure that full and material facts are brought on record so that there might not be any miscarriage of justice.

Considering the aforesaid important role of the Public Prosecutor in administration of criminal justice delivery system, in the present case first of all the learned Public Prosecutor ought not to have submitted the dropping/closing pursis by submitting the application for dropping the PW-14 prosecutrix/victim and other witnesses when some of the witnesses turned hostile. It was his duty to see that the prosecutrix/victim is produced before the Court for giving the deposition and all efforts ought to have been made by him to secure the presence of the prosecutrix/victim. It appears that in the present case without properly appreciating and/or considering the consequences of non-examination of prosecutrix/victim, who in the present case for the offences under Sections 363, 366 and 376 of the IPC, was the best witness to prove the case against the accused and without even appreciating the fact that by dropping the said witness prosecutrix/victim and non-examining her, it will be fatal to the case of the prosecution and the benefit of which would be in favour of the accused and he will be acquitted, he submitted the dropping pursis requesting to drop the material witness prosecutrix/victim and submitted the closing pursis resulting into acquittal by the learned Judge by observing that as the prosecution has not examined the prosecutrix/victim who is the best witness, has failed to prove the case against the accused for the aforesaid offences. In the present case it appears that the learned Public Prosecutor has forgotten the fact that he is also part of the criminal justice delivery system and he also plays an important role in administration of justice.

 Role of the Investigating Agency/Police Officer

[7.2] Similarly, even the prosecution/investigating agency/the concerned police officer of the Kalavad Police Station has also failed in performing his duty by not serving the witness summons upon the prosecutrix/victim. When the witness summons was issued upon the prosecutrix/victim by the Court and when the concerned police officer tried to serve the witness summons upon the prosecutrix/victim at the residence of her parents and when the father of the prosecutrix original complainant gave the statement that she is not residing there and her whereabouts are not known, still time and again the concerned police officer tried to serve the witness summons upon the prosecutrix/victim at the residence of her parents and every time the same statement was given by the original complainant that she is not staying there and her whereabouts are not known. It appears that no efforts were made by the concerned investigating agency to find out the whereabouts of the prosecutrix/victim more particularly when she was reported to be missing since last one year and even father of the prosecutrix/victim complainant and/or her family members did not even inform the police about the missing of the prosecutrix and even janva jog entry also was not made by them. The concerned police officer / investigating agency ought to have appreciated that to prove the case against the accused for the offences punishable under Sections 363, 366 and 376 of the IPC, the prosecutrix/victim is a material and star witness and to prove the case against the accused, her deposition was required and by non-examining the prosecutrix/victim straightway the benefit would go to the accused which would result into failure in administration of justice.

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Cr.P.C Sec. 91:- It is, therefore, clear that the accused is entitled to apply under Section 91, Criminal Procedure Code for summoning the documents on which he wants to rely even before charges are framed and the Magistrate is empowered to do so

Peremptory plea = antrefois acquit = Brojendra Nath Koley And Anr. vs The State on 24 February, 1993 ; Equivalent citations: (1994) 2 CALLT 75 HC, 98 CWN 319
In the common law, the peremptory pleas (pleas in bar) are pleas that set out special reasons for which a trial cannot go ahead. They are the plea of autrefois convict, the plea of autrefois acquit, and the plea of pardon.
A plea of autrefois convict (Law French for “previously convicted”) is one in which the defendant claims to have been previously convicted of the same offence and that he or she therefore cannot be tried for it again. A plea of autrefois convict can be combined with a plea of not guilty.
A plea of autrefois acquit (Law French for “previously acquitted”) means the defendant claims to have been previously acquitted of the same offence, on substantially the same evidence, and that he or she therefore cannot be tried for it again. A plea of autrefois acquit can be combined with a plea of not guilty.
Related doctrines include res judicata and, in the criminal context, a plea in bar of double jeopardy. In the plea of pardon, the defendant claims that he or she has been pardoned for the offence and therefore cannot be tried for it.
Under English law, there is an additional peremptory plea, that of special liability to repair a road or bridge. Under English law, local government authorities have the legal obligation to repair roads or bridges; but, in certain circumstances, the responsibility lies with a landowner instead. The local government
authority, charged with a failure to repair a road or bridge, can allege that the responsibility lies with a landowner, at which point the proceedings against them are suspended and those against the landowner they allege to have the responsibility are begun; but, if the landowner is found not to be responsible, then the matter may be recommenced against
the local government authority. (See R. v. Sutton, Court of King’s Bench, 1833)

…… http://en.wikipedia.org/wiki/Autrefois_acquit ….
8. The word ‘whenever’ clearly indicates that even at the stage of consideration of framing of charge the accused may approach the court under Section 91 of the Code of Criminal Procedure for production of a document which is relevant in this connection. It is however needless to mention that it is a matter of discretion of the court whether any summons should be issued under Section 91 for production of any document and this discretion must be exercised judicially only when the court is convinced that the production of such document is necessary or desirable for the ends of justice. It is needless to mention that such production will not be ordered where there is any legal bar against such production, as for example, the bar of sections 123 and 124 of the Evidence Act, etc. Such production also shall not be ordered where it appears to the court that the prayer for production has been made for the purpose of vexation or delay or for defeating the ends of justice. Having regard to the context and the facts and circumstances, in the present case it cannot be said that the accused persons have prayed for production of the seized cheques for the purpose of vexation or delay or for defeating the ends of justice. The seized cheques on the other hand may have a bearing on the matter and it is also not the plea of the prosecution that these cheques are otherwise protected from disclosure under any provision of law. In the circumstances, I am of opinion that the learned court below should have directed under Section 91 Cr. P.C. for production of the remaining 31 seized cheques and should have afforded an opportunity of inspection of the same by or on behalf of the accused persons even at or before the stage of consideration of framing of charge.

…Complete Judgment….http://www.indiankanoon.org/doc/302020/

Calcutta High Court
Brojendra Nath Koley And Anr. vs The State on 24 February, 1993
Equivalent citations: (1994) 2 CALLT 75 HC, 98 CWN 319
Bench: G R Bhattacharjee

JUDGMENT

Gitesh Ranjan Bhattacharjee, J.

1. The short question that arises for decision in this revisional proceeding is whether at the stage of consideration of framing of charge by the Court the accused can demand production, inspection or supply of copies of documents which were seized by the police during the investigation of the case but copies of which were not supplied to the accused under Section 207 Cr. P.C. on the ground that the prosecution would not rely on those documents at the trial of the case. In the present case charge-sheet has been submitted under sections 120B, 199 and 377A I.P.C. The allegation of the prosecution in short is that during a specified period there was withdrawal of a total amount of more than Rs. 4,67,900/- from the banks by cheques out of which there was a defalcation of more than Rs. 55,000/- against false vouchers. The two petitioners who along with others are the accused in the case were the Directors of the Company and the allegation is that three Directors were authorised to sign cheques on behalf of the company severally and out of them one is now dead. During investigation police seized 112 cheques out of which copies of 71 cheques were supplied to the accused persons under Section 207 Cr. P.C. The accused persons made prayer for supply of copies of the remaining 31 cheques which were seized during investigation. The learned Magistrate refused to give direction for supply of copies of those 31 cheques to the accused persons in view of the plea of the prosecution that the prosecution would not rely on those 31 cheques.

2. It is submitted by Mr. Ghosh on behalf of the petitioners that even if it is accepted that strictly speaking under Section Cr. P.C. the Magistrate is required to supply to the accused only copies of such documents as the prosecution proposes to rely upon, yet there is neither any express provision nor anything by implication in the Code of Criminal Procedure that could bar inspection or supply of copies of other documents which may be necessary for the accused persons in connection with their defence even at the stage of consideration of the question of framing of charge. In this connection, Mr. Ghosh has also referred to the decision of the Supreme Court in M.M. Mathew v. State of Kerala, JT 1991(1) SC 464. I however find that this aspect of the matter is not required to be considered in this context because there is some express provision in the Criminal Procedure Code which would pemiit direction even at the stage of framing of charge, for production of document if necessary for a legitimate purpose.

3. At the time of submitting charge-sheet the Investigation Officer is required under Sub-section (5) of Section 173 Cr. P.C. to forward to the Magistrate-

“(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses”.

Sub-section (6) of Section 173 however provides that if the Investigation Officer is of opinion that any part of any such statement as aforesaid is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. Section 207 provides for supply of copies of police report and other documents to the accused in a case where the proceeding has been instituted on a police report. Under that Section the Magistrate is required to furnish to the accused, free of cost, a copy of each of the following :

(i) the police report;

(ii) the first information report recorded under Section 154 ;

(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such egclusion has been made by the police officer under Sub-section (6) of Section 173 ;

(iv) the confessions and statements, if any, recorded under Section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section

171.

4. Where however, any document as referred to in clause (v) above is voluminous the Magistrate’ instead of furnishing a copy thereof will allow inspection of the same by the accused personally or through his pleader. Under Section 238 the Magistrate is required to satisfy himself when an accused appears or is brought before him at the commencement of the trial in a warrant procedure case insttuted on a police report that the copies of the papers have been supplied to the accused in compliance with the provisions of Section 207.

5. Reading sections 173, 207 and 238 together it would however appear that, before the commencement of the trial and even before the question of framing of charge is taken up for consideration, the accused is entitled to copies, free of cost, of such documents on which the prosecution would rely for establishing its case. If the prosecution takes the plea that it would not rely on a particular document in that case the accused is certainly not entitled to demand copy of the same under Section 173 or Section 207. Again, during trial after the prosecution evidence is closed, when the accused is called upon to enter on his defence under Section 243(1) in a warrant procedure case instituted on a police report or under Section 233(1) in sessions trial the; accused may under Sub-section (3) of Section 233, as the case may be, apply to the court for the issue of any process for compelling the production of any document or thing and in that event the court shall issue such process unless the court considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. But this opportunity to call for production of document under Section 243 or Section 233 Cr. PC. is available to the accused only at the stage when, during the trial, the accused is called upon, after the conclusion of the prosecution evidence, to enter on his defence and produce his evidence and not at any earlier stage, say, at the stage of the consideration of framing of charge.

6. Section 227 and Section 228 Cr. P.C. require the court, in a sessions trial case, to consider at the stage of framing of charge the records of the case and the documents submitted therewith and also to hear the submissions of the accused and the prosecution and then to form an opinion whether there is sufficient ground for proceeding against the accused. If the court considers that there is no sufficient ground for proceeding against the accused then the accused shall be discharged, but if-the court is of opinion that there is ground for presuming that the accused has committed an offence in that case charge is required to be framed. Also in a warrant procedure case instituted 6n police report while considering the question of framing of charge under Section 239 and Section 240 the court has to consider the police report and the documents sent with it under Section 173 and to give the prosecution and the accused an opportunity of being heard and even may examine the accused if the court thinks necessary to do so. It is therefore evident that even at the stage of consideration of framing of charge the accused is entitled to a hearing on the question as to whether charge should be framed on the basis of the materials on record and if so, under what Section or sections. Therefore to make the hearing meaningful and purposeful it is only fit and proper that the accused Should have an opportunity to demand production of a document even at that stage if such document has any bearing on the question of framing of charge although the prosecution may not rely on the same. It will be only fair and rather sub-serviant to the cause of justice that the document which may have a bearing on the question of framing of charge in the sense of having a potentiality of explaining any circumstance, document or evidence on which the prosecution wants to rely, should be made available so that the accused can make his submission, in a more meaningful way even at the stage of consideration of framing of charge, particularly where such document, of which copy has not been supplied, is in the custody or control of police but the disclosure of which is not otherwise barred by law. There is no doubt that at the stage of consideration of framing of charge the accused will not be entitled to produce or adduce elaborate evidence which he can do after entering on his defence during the trial but even at the stage of consideration of framing of charge the accused undoubtedly has the right to attract the attention of the court to such document or material as may explain the circumstances projected by the materials on which the prosecution wants to rely so that the court may consider whether any charge is at all required to be framed on the basis of the materials on record and if so, what charge is required, to be framed, although at that stage the court will not embark on a roving inquiry about the credibility of the documents and evidence on which the prosecution proposes to rely.

7. In the present case, as we have seen, the investigating agency seized 112 cheques during the investigation. But they refused to supply copies of 31 of such cheques on the ground that the prosecution would not rely on those cheques. But the accused persons think that those cheques also have a bearing on the matter and that is why those cheques were also seized during investigation and those cheques may throw some light over the actual state of affairs and therefore production or inspection of the same at the stage of framing of charge should not be withheld. It is of course true that if the prosecution does not rely on those cheques then the accused are not entitled to get copies of the same under Section 173 or Section 207; nor can they ask for production of the same under Section 233(3) or Section 243(2), as the case may be, till they enter upon defence after the conclusion of the prosecution evidence. But than there is also a general provision contained in Section 91 of the Criminal Procedure Code which empowers the court to issue summons for | production of any document at any stage of investigation, inquiry or trial if the court considers the production of such, document necessary or desirable in the interest of justice. For proper understanding of the amplitude of Section 91 the same is reproduced below :

“91. Summons to produce document or other thing, :-

(1) Whenever any court or any officer-ncharge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order,

(2) Any person required under this Section merely to produce “a document or other thing shall be deemed to have complied with the requisition, if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this Section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, (3 of 1872), or the Bankers’ Books Evidence Act, (13 of 1891), or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority”.

8. The word ‘whenever’ clearly indicates that even at the stage of consideration of framing of charge the accused may approach the court under Section 91 of the Code of Criminal Procedure for production of a document which is relevant in this connection. It is however needless to mention that it is a matter of discretion of the court whether any summons should be issued under Section 91 for production of any document and this discretion must be exercised judicially only when the court is convinced that the production of such document is necessary or desirable for the ends of justice. It is needless to mention that such production will not be ordered where there is any legal bar against such production, as for example, the bar of sections 123 and 124 of the Evidence Act, etc. Such production also shall not be ordered where it appears to the court that the prayer for production has been made for the purpose of vexation or delay or for defeating the ends of justice. Having regard to the context and the facts and circumstances, in the present case it cannot be said that the accused persons have prayed for production of the seized cheques for the purpose of vexation or delay or for defeating the ends of justice. The seized cheques on the other hand may have a bearing on the matter and it is also not the plea of the prosecution that these cheques are otherwise protected from disclosure under any provision of law. In the circumstances, I am of opinion that the learned court below should have directed under Section 91 Cr. P.C. for production of the remaining 31 seized cheques and should have afforded an opportunity of inspection of the same by or on behalf of the accused persons even at or before the stage of consideration of framing of charge.

9. In this connection, I may point out that the Andhra Pradesh High Court has also taken a similar view in K.V.R.K. Reddy v. State, 1975 Cr. LJ 980. In that decision after elaborate discussion the Andhra Pradesh High Court made the following observation at page-982 (ibid) :

“It is, therefore, clear that the accused is entitled to apply under Section 91, Criminal Procedure Code for summoning the documents on which he wants to rely even before charges are framed and the Magistrate is empowered to do so provided that he deems it necessary or desirable”.

10. On independent consideration of the relevant provisions of the Criminal Procedure Code as discussed earlier above, I am, in full agreement with the above observation of the Andhra Pradesh High Court. Accordingly, I direct that the investigating agency will produce the remaining 31 seized cheques for inspection of the same by the accused persons or their lawyers. If it is felt convenient by the Investigating agency they may, instead of production, supply xerox copies of those cheques to the accused persons. The learned court below is directed to ensure implementation of the order passed above. The revisional application stands disposed of accordingly.

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POLICE AND THE JUDICIAL PROCESS

POLICE AND THE JUDICIAL PROCESS
INTRODUCTORY NOTE
As a key agency of the Criminal Justice administration the Police is
responsible for performing multi-faceted functions such’ as’ the prevention
of crime, maintenance of law and order, conduct of investigation of crimes,
production of undertrials before the Courts and post sentence survillence
over the criminals: etc. In view of the functional’ peculiarities the Police
tends to become the frontal’ formal agency to come in contact, with the raw
realities a/crime including the accused and the victims. All this makes the
Police not only an all pervasive criminal justice agency but also exposes it
to frequent social censures both of formal as well as informal nature, and
makes them the centre of lot of controversies regarding their professional
roles.
In a Rule of Law society the Police, like the other criminal justice agencies,
functions within the legal framework of the Constitutional and the Municipal
Laws that comprise mainly of the Constitution of India, 1950, The Code of
criminal Procedure, 1973, the Indian Evidence Act, 1872, the Protection of
Human Rights Act, 1993 and the Police Act etc. Though the vide range of
statutory laws constitute, the normative basis for the Police functions, but at
the actual functional level, often’ doubts and controversies arise, regarding
the, ambit and interpretations of the statutory rules, thereby calling for
frequent adjudications by the courts. In the tradition of the Theory of
Precedent the judgments of the appellate, courts have a binding or
persuasive value for the later decisions on the point. Particularly the
“judgments of the Supreme Court of India which are accorded the highest precedential value in terms of the Article 141 of the Constitution which
reads : The Law declared by the Supreme Court shall be binding on all
courts within’ the Territory of India”. Thus for all the courts as well as, other
State agencies, the Supreme court, rulings, constitute the binding law,
violation of which can ‘entail contempt proceedings. Similalry, for the
concerned State the judgements of the relevant High Court constitute the
binding law.
All this accords to the large number of Supreme Court and High Court
rulings relating to the various aspects of Police functioning immense
significance not only for the legal professionals, but also for the rank and
file of the Police Force. The present endeavour attempts a compilation of
the significant Supreme Court and High Court rulings of the past decade.
Effort has been made to present the rulings in a systematic and simplified
manner by briefly analysing the facts, main argument and the ruling of the
Court. For the benefit of the non-technical readers each individual case is
classified subject-wise and preceeded by a issue-wise head-note. The
general Case-index also provides an issue-wise analysis of the each case.
The compilation is mainly based on the Supreme Court and the High Court
decisions reported in the Supreme Court Cases (SCC) and the Criminal
Law Journal (Cr. LJ.)
It is bur fond hope that the compilation will prove useful for the widespectrum of the Criminal Justice functionaries, who in turn would be able to
strengthen the overall Rule of ‘Law foundations, of our criminal justice
administration.
POLICE AND JUDICIAL PROCESS
I. Police and Investigation:
1. Territorial Jurisdiction and powers of investigation………………1-4
2. F.I.R: & Registration of F.I.R………………………………………5-13
3. Interrogation……………………………………………………….14-17
4. Arrest and Custody……………………………………………….18-25
5. Handcuffing and Security……………………………………..….26-32
6. Search and Seizure…………………………………………..…..33-38
7. Remand……………………………………………………………39-40
8. Charge-Sheet……………………………………………..………41-48
9. Intervention by the Magistrate or the Executive……………….49-57
II. Police and Evidentiary Issues:
1. Recording of Confessions……………………………………..….58-59
2. Confessions under the Influence……………………………..…60-62
of Police (SS. 25,26,27)
3. Recording of Dying Declaration……………………………….…..63-64
4. Police as Witness-Trap Witness etc……………………………..65-68
5. Use of Case Diary in Trial……………………………………………..69
6. Evidentiary value of Site. Plan……………………………………..…70
III. Police and Human Rights/Fundamental Rights:
1. Right to Life and Personal Liberty…………………………….…71-77
2. Right against Torture and Indignities……………………………….78
IV. Miscellaneous:
1. Externment……….………………………………………………..79-85
2. Power of Police Surveillance…………….………………………86-89
3. Sanction of Route for religious procession…………………………90
4. Permission to organize Public Meeting…………………….…..91-92
5. Licencing places of Public Entertainment………………………93-94
6. Directions for providing Police Security…………………….…..95-96
7. Limitation incompliant/Suit against Police personal………..…97-99
8. Regulating Horse-racing and Gaming……………………….100-101
Case Index:. Supreme Court
……………….
1.2 : F.I.R. AND REGISTRATION OF F.I.R.
Kuldip Singh vs State*
Facts
In the instant case the petitioner was confined in Jail as an undertrial. The information
laid by the petitioner before High Court made an accusation against the Jail Officials
that they gave severe beating to him and thus they committed various cognizable
offences. The petitioner did received injuries. The nature of those injuries and whether
the same were inflicted in the manner alleged by the petitioner or were sustained as
suggested by the Police is a matter which is still to be investigated under the Code of
Criminal Procedure after registration of the case. It is not the case of the authorities that
any investigation or even enquiry was conducted by the Police or any intimation was
sent to the petitioner. A Judicial Officer appointed under the directions of High Court has
found prima facie substance in the allegations of the petitioner. Thus in some
appropriate proceedings it will have to be examined as to how undertrial petitioner
received injuries while in jail custody. Therefore High Court directed that FIR be
registered and the investigation be conducted expeditiously in accordance with law by
the Crime Branch of Police.
Held
On information being laid before the Police about the commission of a cognizable
offence the Police has no option but to register the case and then to proceed with
investigation of the case under the provisions of Chapter XII of the Code. The Police
can also decide not be investigate in terms contemplated by Section 157 (1) of the
Code. The Police has no right to refuse registration of a case on information being laid
before it about commission of cognizable offence and instead proceed with an enquiry
and refuse registration as a result of the said enquiry. If it is left to be determined by the
Police to decide in which cases of disclosure or commission of cognizable offence it
would first hold preliminary enquiry and then decide to register or not to register the
case; it would also lead to delay in registration of the crime and in the meantime the
material evidence may not be available. The conduct, of enquiry itself may entail a long
period. There may be then challenge to the said enquiry.
The conferment of absolute and uncanalised discretion to the Police to register a
cognizable offence or not, would be violative of equality clause enshrined in our
Constitution. The Code vests power in Judiciary to control the discretion of the Police.
*1994 CrLJ.2502 (Delhi)
The judiciary will remain unaware- in absence of recording of first information Report
has a reasonable doubt about the commission of a cognizable offence, he has power
not to proceed with the investigation but that is subject to check by judiciary. There is
rapid increase -of custody deaths and deaths during- encounters with law enforcing
agency. It is the duty of all organs including judiciary to protect human rights and,
therefore, it is necessary to provide safeguards for early recording of the crime
and control of police by judiciary which would be negated if it is left to the Police to
decide in which case to register the crime on disclosure of commission of cognizable
offence and in which defer it pending enquiry.
………….
111.1: RIGHT TO LIFE AND PERSONAL LIBERTY
Joginder Kumar vs State of U.P. and Others*
Facts
The petitioner, a young advocate of 28 years, was called by the SSP Ghaziabad, UP.,
Respondent 4, in his office for makil1g enquiries in some case. It was alleged that on
7.1.1994 at about 10 o’clock he personally along with his brothers appeared before the
SSP. At about 12.55 p.m. the brother of the petitioner sent a telegram, to the Chief
Minister of U.P. apprehending the petitioner” false implication in some criminal case and
his death in fake encounter. In the evening, it came to be known that the petitioner was
detained in the illegal custody of respondent 5 Next days the SHO instead of producing
the petitioner before. Magistrate asked the relatives to approach the SSP. On 9.1.1994
in the evening, relatives of the petitioner came to know that the petitioner had been
taken to some undisclosed destination. Under these circumstances the. writ petition
under Article 32 was preferred for release of the petitioner. The Supreme Court on
11.1.1994 ordered notice to the State of U.P. as well as SSP, Ghaziabad. The SSP
along with the petitioner appeared before the Court on 14.1.1.994 and stated that
petitioner was not in detention at all and that his help Was taken for detecting some
cases relating to abduction and the petitioner Was helpful in cooperating with the police.
Therefore, there was no question of detaining him.
Held
The Supreme Court while directing the District Judge, Ghaziabad, to make a detailed
enquiry and submit his report within four weeks observed as under:
The quality of a nation’s civilization can’ be largely measured by the methods it uses in
the enforcement of criminal law. The horizon of human rights is expending. At the same
time, the crime rate is also increasing. The Court has been receiving complaints about
violation of human rights because of indiscriminate arrests; A realistic approach sh9utd
be made in this direction. The law of arrest is one of balancing individual rights, liberties
and privileges, on the one hand, and individual duties, obligations and responsibilities,
on the other, of weighing and balancing the rights, liberties and privileges of the single
individual and those of individuals collectively; of simply deciding what is wanted and
where to put the weight and the emphasis; of deciding which comes first – the criminal
or society, the law violator or the raw abider.
*1994 Cr.L.J. 1981 / (1994) 4SCC 260
……………………

1.8 : CHARGE-SHEET
K. VEERASWAMI vs UNION OF INDIA*
Held
The Investigating Officer is only required to collect material to find out whether the
offence alleged appears to have been committed. In the course of the investigation, he
may examine the accused. He may seek his clarification and if necessary he may cross
check with him about his known sources of income and assets possessed by him.
Indeed, fair investigation requires that the accused should not be kept in darkness. He
should be taken into confidence if he is willing to cooperate. But to state that after
collection of all material the Investigating Office: must give an opportunity to the
accused and call upon him to account for the excess of the assets over the known
sources of income and then decide whether the accounting is satisfactory or not, would
be elevating the Investigating Officer to the position of an enquiry officer or a judge. The
Investigating Officer is not holding an enquiry against the conduct of the public servant
or determining the disputed issues regarding the, disproportionality between the assets
and the income of the accused. He just collects material from all sides and prepares a
report, which he files in the court as charge-sheet.
The charge-sheet is nothing but a final report of police officer under Section 173(2) of
the Cr.PC. The statutory requirement of the report under Section 173(2) would be
complied with if the various details prescribed therein are included in the report. This
report is intimation to the magistrate that upon investigation into a cognizable offence
the Investigating Office:- has been able to procure sufficient evidence for the court to
inquire, into the offence and the necessary information is being sent to the court. In fact,
the report under Section 173(2) purports to be an opinion of the Investigating Officer
that as far as he is concerned he has been able to procure sufficient material for the trial
of the accused by the Court. The report is complete if it is accompanied with all the
documents and statements of witnesses as required by Section 175(5). ‘Nothing more
need be stated in the report of the Investing Officer. It is also not necessary that all the
details of the offence must be stated. The details of the offence are required to be
proved to bring home the guilt to the accused at a later stage i.e. in the course of the
trial of the case by adducing acceptable evidence.
*(1991) 3 SCC655
………………………………………

 

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Fair Trial Judgments: 001 Assam High Court Judgment

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
(Agartala Bench)
Writ Appeal No. 20 of 2010
Appellant:
Sri Rana Sinha @ Sujit Sinha,
Son of Late Rajeswar Sinha,
Resident of Debdar,
P.S. Baikhora, Belonia,
District – South Tripura.
By Advocates :
Mr. S. Talapatra, Sr. Advocate
Mr. D. Bhattacharjee
Mr. Bhaskar Deb.
-versusRespondents:
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, AdvocateWrit Appeal No. 20 of 2010
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 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 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 accusedrespondent 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, Writ Appeal No. 20 of 2010
Page No. 6
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 accusedrespondent that the accused had left his place of residence and his
whereabouts were not known to anyone. Eventually, the accusedrespondent was declared as an absconder on 14.11.1994. The accusedrespondent 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 Writ Appeal No. 20 of 2010
Page No. 9
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.
I S S U E S :
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 chargesheet. 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 reinvestigation, 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 reinvestigation 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 reinvestigation.
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 reinvestigation 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 Officerin-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-incharge 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-incharge 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 SubSection (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 officerin-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 „precognizance‟ 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 „postcognizance‟ 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 precognizance 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 „reinvestigation‟ differ from ‘further „investigation‟?
DISTINCTION BETWEEN FURTHER INVESTIGATION AND REINVESTIGATION :
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 „reinvestigation‟, 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 „reinvestigation‟. Distinction between ‘fresh investigation‟ and „reinvestigation‟, 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 “„reinvestigation‟”. 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, subSection (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 SubDivisional 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 „reinvestigation‟ 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 Writ Appeal No. 20 of 2010
Page No. 69
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 „postcognizance‟ 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).‟Writ Appeal No. 20 of 2010
Page No. 72
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 „postcognizance‟ 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).Writ Appeal No. 20 of 2010
Page No. 73
140. Suffice it to point out and reiterate here that Kashmeri Devi (supra)
too, relates to a case of „pre-cognizance‟ stage and not „postcognizance‟ 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 Writ Appeal No. 20 of 2010
Page No. 74
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 chargesheet being filed on completion of such an investigation, the Magistrate Writ Appeal No. 20 of 2010
Page No. 75
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 Writ Appeal No. 20 of 2010
Page No. 76
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 „reinvestigation‟, 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 Writ Appeal No. 20 of 2010
Page No. 78
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? Writ Appeal No. 20 of 2010
Page No. 79
[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, Writ Appeal No. 20 of 2010
Page No. 81
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 postcognizance 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 chargesheet.” [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 chargesheet 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 factoWrit 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 extraordinary jurisdiction under Article 226, for further investigation. Whether the
present appellant could have made, in the fact situation of the present
case, an application under Section 482 or an application under Article
226 of the Constitution of India and whether such an application could
have been allowed, in the context of the facts of the present case, is an
aspect of the case, which we would consider shortly.
200. Reverting to the petition, which the learned Additional Public
Prosecutor had filed, it needs to be pointed out that the learned Court
below has rejected the learned Additional Public Prosecutor’s petition
seeking direction for further investigation by the police merely on the
ground that the application has been made by the Additional Public
Prosecutor and not by the police.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 reinvestigation. It was, therefore, necessary for the learned Single Judge too
to determine if the facts brought on record necessitated direction for reinvestigation 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 reinvestigation.
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 reinvestigation 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 reinvestigation. It was, therefore, necessary for the learned Single Judge too
to determine if the facts brought on record necessitated direction for reinvestigation 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 extraordinary 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 accusedrespondent 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 Writ Appeal No. 20 of 2010
Page No. 129
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 extraordinary jurisdiction under Article 226, though such exercise of jurisdiction
was warranted, this appeal is wholly maintainable as an intra courtWrit 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 successorsin-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
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