The Supreme Court of India in Chandra Babu @ Moses Vs. State through Inspector of Police judgment dated July 7, 2015 held that “Magistrate has basically directed for further investigation, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency”.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.866 OF 2015
[Arising out of SLP (Crl.) No. 5702 of 2012]
CHANDRA BABU @ MOSES
... Appellant
Versus
STATE THROUGH INSPECTOR OF POLICE
& ORS.
... Respondents
Dated;July 7, 2015
Dipak Misra, J.
Leave granted.
2.
In
this
appeal,
by
special
leave,
the
informant-appellant calls in question the defensibility of the
order dated 13.12.2011 passed by the learned Single Judge
of the High Court of Judicature of Madras at Madurai in
Criminal Revision No. 790/2011 whereby he has annulled
the order dated 2.9.2010 passed by the learned Chief
2
Judicial Magistrate, Nagercoil directing further investigation
in exercise of power under Section 173(8) of the Code of
Criminal
Procedure
(CrPC)
and
also
directing
the
investigation to be carried out by C.B.C.I.D.; on the
foundation that in the obtaining fact situation there are no
exceptional circumstances for ordering re-investigation.
3.
As the facts would unfurl, the appellant filed an FIR
with the Sub-Inspector of Police, Kulasekaram Police
Station, upon which Crime No. 119/2007 was registered
u/s 147, 148, 341, 324, 323 and 307 of Indian Penal Code
(IPC). The informant had alleged that on 05.06.2007 about 2
p.m., Manikandan,
Jegan, Murugan, Vijayan, Sunil and
some others attacked him with ‘Vettu Kathi’, knife and iron
rod and in the said attack he sustained multiple injuries.
The motive behind the assault, as per the FIR, was due to
business rivalry that existed between the appellant and
Manikandan, as both are contractors. The Inspector of
Police, Kulasekaram Police Station conducted the initial
investigation and subsequently the case was transferred to
the
District
Crime
Branch
Police,
Kanyakumari
and
thereafter, the Inspector of Police, District Crime Branch
3
filed a final report before the learned Judicial Magistrate,
Padmanabhapuram stating that the case was a mistake of
fact. The learned Judicial Magistrate on intimation to the
informant accepted the final report.
4.
In the meantime, the appellant had filed a protest
petition dated 5.1.2009 forming the subject matter of Crl.
M.P. no. 1974/2009 on the file of the learned Judicial
Magistrate praying therein to direct CBCID to re-open the
case and file a fresh report. However, as the final report had
already been accepted before disposing the protest petition,
the appellant preferred Crl. O.P. no. 1727/2009 before the
Madurai Bench of the Madras High Court. The High Court
called for the report from the Magistrate’s Court and,
thereafter, set aside the order accepting the final report and
directed the Magistrate to consider the final report along
with the protest petition.
5.
The learned Magistrate vide order dated 29.07.2009
dismissed the protest petition. It took note of the decisions
in Hasanbhai Valibhai Quareshi vs State of Gujarat
and Ors.1 and Hemant Dhasmana vs CBI and Anr.2, and
1
2
(2004) 5 SCC 347
(2001) 7 SCC536
4
held that as the investigation officer had examined all the
witnesses as averred by the informant and received the
evidence and as no new witnesses were cited to be
examined,
there
was
no
reinvestigation of the case.
justification
for
directing
It further directed that the
protest petition to be treated as a separate private
complaint.
6.
Being aggrieved by the said order, the appellant
preferred Criminal Revision Petition, i.e., Crl. R.C. No. 458
of 2009 in the High Court.
Before the High Court, the
appellant contended that the order of the Magistrate was
based on the acceptance of the final report submitted by the
police and the order did not reflect any application of mind
on his part. It was further urged that the order was bereft of
discussion of the evidence gathered by the Investigating
Officer, and that apart there was total non-application of
mind either for acceptance or rejection of the statements of
the witnesses filed along with the final report. The High
Court while setting aside the order of learned Magistrate
observed that the lower court fell into error by neither
discussing the material available, nor clearly spelling out
5
the reasons and shirked its duty by merely permitting the
petitioner, therein, to pursue his cause by way of private
complaint. The learned Single Judge, accordingly, allowed
the revision and concluded thus:-
“This Court has resisted from entering upon a
discussion on the merits of the case or on the
materials before it so as to avoid prejudice to
either side. With the aim is to avoid prejudice
and alleged bias, as rightly submitted by the
learned senior counsel, it would be better that
the reconsideration of the final report and also
the materials towards arriving at a finding of
whether the case is one calling for further
proceedings against the accused or otherwise, be
left to the judicial discretion of another Court.
Accordingly,
the
Judicial
Magistrate,
Padmanabhapuram, is directed to forward all
records pertaining to Crime no. 119 of 2007 on
the file of the respondent police to the Court of
the Chief Judicial Magistrate, Nagercoil within a
period of two weeks from the date of receipt of a
copy of this order. The Chief Judicial Magistrate,
Nagercoil is in turn directed to consider the 173
report as also the materials, hear both the public
prosecutor and the de-facto complainant who has
filed the protest petition and pass orders in
accordance of law.”
7.
After the remit, the Chief Judicial Magistrate,
Nagercoil, took up the case for further enquiry. The Court
after hearing both the appellant and the Assistant Public
Prosecutor came to the conclusion that the investigation by
the Inspector of Police, District Crime Branch had been
6
conducted in a biased manner and the said authority had
laboured hard to save the accused persons and hence, the
final report submitted by the investigating officer was not
acceptable. Thereafter, it took note of the judgments in
Hemant Dhasmana (supra), Sonalai Soni vs State of
Chattisgarh
and
Ors.3,
and
Hasanbhai
Valibhai
Quareshi (supra), and came to hold that in terms of the
said judgments there is power under S. 173 (8) of CrPC to
forward
the
resultantly
complaint
by
order
for
dated
further
investigation
02.09.2010
directed
and
the
Additional Director General of Police, CBCID to confer the
power on the Inspector, CBCID, Nagercoil to investigate the
case in Crime no. 119/2007 and file a report.
8.
Being aggrieved by the said order, one of the
accused, Jegan, filed Criminal Revision No. 790 of 2011.
The High Court, vide the impugned order, after discussing
the evidence on record, came to hold that there were
material discrepancies in the evidence brought on record
and, therefore, in the present fact situation there were no
exceptional circumstances for ordering re-investigation, and
3
2005 Crl.L.J. 4461 (Chattishgarh)
7
that apart, the scheme of Section 173(8) CrPC only enables
the investigating officer to request for further investigation.
The High Court, accordingly, set aside the order of the Chief
Judicial Magistrate and further observed that as the learned
Judicial Magistrate in his order dated 13.07.2009 had
directed that the protest petition was to be treated as a
private complaint, the de-facto complainant still had an
opportunity for presenting the case before the Court and no
prejudice was caused to him.
9.
We have heard Mr. K.V. Vishwanathan, learned
senior counsel for the appellant and Mr. M. Yogesh Kanna,
learned counsel for the State and Mr. S. Thananjayan,
learned counsel for the respondent no.3.
10.
It is submitted by Mr. Vishwanathan, learned senior
counsel that the High Court has absolutely flawed by
entering into the merits of the case when the learned Chief
Judicial Magistrate had only directed for reinvestigation by
different investigating agency. It is urged by him that if the
order passed by the Chief Judicial Magistrate is read in
entirety, it would convey that he in actuality has directed for
further
investigation,
but
has
used
the
expression
8
“reinvestigation” as it was directing investigation to be
carried out by another agency. It is his further submission
that in view of the earlier order passed by the High Court,
the order impugned in this appeal is wholly unsustainable.
11.
Learned counsel for the private respondent no.3 in
support of the decision of the High Court has submitted
that the learned Magistrate has no power for directing
reinvestigation, and hence, the order passed by the High
Court is absolutely impregnable. It is also his submission
that when a protest petition is filed and it has been directed
to be treated as a private complaint, the appellant, in no
manner, is prejudiced and, therefore, there is no warrant for
interference in this appeal.
12.
First, we shall dwell upon the issue whether the
High Court, in exercise of the revisional jurisdiction, should
have adverted to the merits of the case in extenso. As the
factual matrix would reveal, the learned Single Judge has
dwelled upon in great detail on the statements of the
witnesses to arrive at the conclusion that there are
remarkable discrepancies with regard to the facts and there
is nothing wrong with the investigation.
In fact, he has
9
noted certain facts and deduced certain conclusions, which,
as we find, are beyond the exercise of revisional jurisdiction.
It is well settled in law that inherent as well as revisional
jurisdiction should be exercised cautiously.
Normally, a
revisional jurisdiction should be exercised on a question of
law. However, when factual appreciation is involved, then it
must find place in the class of cases resulting in a perverse
finding. Basically, the power is required to be exercised so
that justice is done and there is no abuse of power by the
Court. (see Amit Kapoor v. Ramesh Chander4).
13.
Judging on the aforesaid premises, we have no
shadow of doubt that the High Court has adverted to the
facts not to see the perversity of approach, or to see that
justice is done, but analysed it from an angle as if it is
exercising the appellate jurisdiction.
Therefore, the High
Court’s conclusion with regard to the factual score is
unsustainable.
14.
Presently
to
the
thrust
of
the
matter,
the
controversy before the learned Single Judge was basically
two-fold, namely, whether the learned Chief Judicial
4
(2012) 9 SCC 460
10
Magistrate could have directed for reinvestigation and
secondly, whether it could have directed for reinvestigation
by another investigating agency.
To appreciate the said
issues, it is necessary to analyse the scheme of Section 190
of the CrPC. The said provision reads as follows:-
“190.
Cognizance
of
offences
by
Magistrates. – (1) Subject to the provisions of
this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially
empowered in this behalf under sub-section (2),
may take cognizance of any offence_
(a) upon receiving a complaint of facts which
constitute such offence.
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower
any Magistrate of the second class to take
cognizance under sub-section (1) of such offences
as are within his competence to inquire into or
try.”
In Uma Shankar Singh v. State of Bihar5, a
two-Judge Bench was considering the issue pertaining to
the power of the Magistrate under Section 190(1)(b) of CrPC.
The Court, scanning the anatomy of the provision, opined
that the Magistrate is not bound to accept the final report
5
(2010) 9 SCC 479
11
filed by the investigating agency under Section 173(2) of the
Code and is entitled to issue process against an accused
even though exonerated by the said authorities.
The
principle stated by the two-Judge Bench reads as follows:-
“19. ... even if the investigating authority is of the
view that no case has been made out against an
accused, the Magistrate can apply his mind
independently to the materials contained in the
police report and take cognizance thereupon in
exercise of his powers under Section 190(1)(b)
CrPC.”
The said principle was followed by another two-Judge
Bench in Moti Lal Songara v. Prem Prakash6.
15.
In
Dharam
Pal
v.
State
of
Haryana7,
the
Constitution Bench, while accepting the view in Kishun
Singh v. State of Bihar8, has held thus:-
“35. In our view, the Magistrate has a role to
play while committing the case to the Court of
Session upon taking cognizance on the police
report submitted before him under Section 173(2)
CrPC. In the event the Magistrate disagrees with
the police report, he has two choices. He may act
on the basis of a protest petition that may be
filed, or he may, while disagreeing with the police
report, issue process and summon the accused.
Thereafter, if on being satisfied that a case had
been made out to proceed against the persons
named in column 2 of the report, proceed to try
6
7
8
(2013) 9 SCC 199
(2014) 3 SCC 306
(1993) 2 SCC 16
12
the said persons or if he was satisfied that a case
had been made out which was triable by the
Court of Session, he may commit the case to the
Court of Session to proceed further in the matter.
36. This brings us to the third question as to
the procedure to be followed by the Magistrate if
he was satisfied that a prima facie case had been
made out to go to trial despite the final report
submitted by the police. In such an event, if the
Magistrate decided to proceed against the
persons accused, he would have to proceed on
the basis of the police report itself and either
inquire into the matter or commit it to the Court
of Session if the same was found to be triable by
the Sessions Court.”
16. We have referred to the aforesaid authorities to
reiterate the legal position that a Magistrate can disagree
with the police report and take cognizance and issue
process and summons to the accused. Thus, the Magistrate
has the jurisdiction to ignore the opinion expressed by the
investigating officer and independently apply his mind to
the facts that have emerged from the investigation.
17.
Having stated thus, we may presently proceed to deal
with the facet of law where the Magistrate disagrees with the
report and on applying his independent mind feels there has
to be a further investigation and under that circumstance
what he is precisely required to do. In this regard, we may
13
usefully refer to a notable passage from a three-Judge
Bench decision in Bhagwant Singh v. Commr. of Police9,
which is to the following effect:-
“4. Now, when the report forwarded by the officer
in charge of a police station to the Magistrate
under sub-section (2)(i) of Section 173 comes up
for consideration by the Magistrate, one of two
different situations may 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: (1) he may accept the report and
take cognizance of the offence and issue process,
or (2) he may disagree with the report and drop
the proceeding, or (3) he may direct further
investigation under sub-section (3) of Section 156
and require the police to make a further report.
The report may on the other hand state that, in
the opinion of the police, no offence appears to
have been committed and where such a report
has been made, the Magistrate again has an
option to adopt one of three courses: (1) he may
accept the report and drop the proceeding, or (2)
he may disagree with the report and taking the
view that there is sufficient ground for proceeding
further, take cognizance of the offence and issue
process, or (3) he may direct further investigation
to be made by the police under sub-section (3) of
Section 156. Where, in either of these two
situations, the Magistrate decides to take
cognizance of the offence and to issue process,
the informant is not prejudicially affected nor is
the injured or in case of death, any relative of the
deceased aggrieved, because cognizance of the
offence is taken by the Magistrate and it is
decided by the Magistrate that the case shall
proceed. But if the Magistrate decides that there
9
(1985) 2 SCC 537
14
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, there is no sufficient ground for
proceeding against others mentioned in the first
information report, the informant would certainly
be prejudiced because the first information report
lodged by him would have failed of 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 recognised 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 and issues process, because that would
be culmination of the first information report
lodged by him. There can, therefore, be no doubt
that when, on a consideration of the report made
by the officer in charge of a police station under
sub-section (2)(i) of Section 173, the Magistrate is
not inclined to take cognizance of the offence and
issue process, the informant must be given an
opportunity of being heard so that he can make
his submissions to persuade the Magistrate to
take cognizance of the offence and issue process.
We are accordingly of the view 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. It was urged before
us on behalf of the respondents that if in such a
case notice is required to be given to the
15
informant, it might result in unnecessary delay
on account of the difficulty of effecting service of
the notice on the informant. But we do not think
this can be regarded as a valid objection against
the view we are taking, because in any case the
action taken by the police on the first information
report has to be communicated to the informant
and a copy of the report has to be supplied to
him under sub-section (2)(i) of Section 173 and if
that be so, we do not see any reason why it
should be difficult to serve notice of the
consideration of the report on the informant.
Moreover, in any event, the difficulty of service of
notice on the informant cannot possibly provide
any justification for depriving the informant of
the opportunity of being heard at the time when
the report is considered by the Magistrate.”
18.
Relying on the said paragraph, a two-Judge Bench in
Vinay Tyagi v. Irshad Ali10, has opined thus:-
“37. In some judgments of this Court, a view has
been advanced, [amongst others in Reeta Nag v.
State of W.B11, Ram Naresh Prasad v. State of
Jharkhand12 and Randhir Singh Rana v. State
(Delhi Admn.)13] that a Magistrate cannot suo
motu direct further investigation under Section
173(8) of the Code or direct reinvestigation into a
case on account of the bar contained in Section
167(2) of the Code, and that a Magistrate could
direct filing of a charge-sheet where the police
submits a report that no case had been made out
for sending up an accused for trial. The gist of
the view taken in these cases is that a Magistrate
cannot direct reinvestigation and cannot suo
motu direct further investigation.
10
11
12
13
(2013) 5 SCC 762
(2009) 9 SCC 129
(2009) 11 SCC 299
(1997) 1 SCC 361
16
38. However, having given our considered
thought to the principles stated in these
judgments, we are of the view that the Magistrate
before whom a report under Section 173(2) of the
Code is filed, is empowered in law to direct
“further investigation” and require the police to
submit a further or a supplementary report. A
three-Judge Bench of this Court in Bhagwant
Singh has, in no uncertain terms, stated that
principle, as aforenoticed.
39. The contrary view taken by the Court in
Reeta Nag and Randhir Singh do not consider the
view of this Court expressed in Bhagwant Singh.
The decision of the Court in Bhagwant Singh in
regard to the issue in hand cannot be termed as
an obiter. The ambit and scope of the power of a
Magistrate in terms of Section 173 of the Code
was squarely debated before that Court and the
three-Judge Bench concluded as aforenoticed.
Similar views having been taken by different
Benches of this Court while following Bhagwant
Singh, are thus squarely in line with the doctrine
of precedent. To some extent, the view expressed
in Reeta Nag, Ram Naresh and Randhir Singh,
besides being different on facts, would have to be
examined in light of the principle of stare
decisis.”
And eventually the Division Bench ruled:-
“40. Having analysed the provisions of the Code
and the various judgments as aforeindicated, we
would state the following conclusions in regard to
the powers of a Magistrate in terms of Section
173(2) read with Section 173(8) and Section
156(3) of the Code:
17
40.1. The Magistrate has no power to direct
“reinvestigation” or “fresh investigation” (de novo)
in the case initiated on the basis of a police
report.
40.2. A Magistrate has the power to direct
“further investigation” after filing of a police
report in terms of Section 173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above
is in conformity with the principle of law stated in
Bhagwant Singh case by a three-Judge Bench
and thus in conformity with the doctrine of
precedent.
40.4. Neither the scheme of the Code nor any
specific provision therein bars exercise of such
jurisdiction by the Magistrate. The language of
Section 173(2) cannot be construed so
restrictively as to deprive the Magistrate of such
powers particularly in face of the provisions of
Section 156(3) and the language of Section 173(8)
itself. In fact, such power would have to be read
into the language of Section 173(8).
40.5. The Code is a procedural document, thus, it
must receive a construction which would advance
the cause of justice and legislative object sought
to be achieved. It does not stand to reason that
the legislature provided power of further
investigation to the police even after filing a
report, but intended to curtail the power of the
court to the extent that even where the facts of
the case and the ends of justice demand, the
court can still not direct the investigating agency
to conduct further investigation which it could do
on its own.”
18
19.
We have reproduced the conclusion in extenso as we
are disposed to think that the High Court has fallen into
error in its appreciation of the order passed by the learned
Chief Judicial Magistrate. It has to be construed in the light
of the eventual direction. The order, in fact, as we perceive,
presents that the learned Chief Judicial Magistrate was
really inclined to direct further investigation but because he
had chosen another agency, he has used the word
“reinvestigation”.
Needless to say, the power of the
Magistrate to direct for further investigation has to be
cautiously used. In Vinay Tyagi (supra) it has been held:
“The power of the Magistrate to direct “further
investigation” is a significant power which has to
be exercised sparingly, in exceptional cases and
to achieve the ends of justice. To provide fair,
proper and unquestionable investigation is the
obligation of the investigating agency and the
court in its supervisory capacity is required to
ensure
the
same.
Further
investigation
conducted under the orders of the court,
including that of the Magistrate or by the police
of its own accord and, for valid reasons, would
lead to the filing of a supplementary report. Such
supplementary report shall be dealt with as part
of the primary report. This is clear from the fact
that the provisions of Sections 173(3) to 173(6)
would be applicable to such reports in terms of
Section 173(8) of the Code.”
19
20.
In the said case, the question arose, whether the
Magistrate can direct for reinvestigation. The Court, while
dealing with the said issue, has ruled that:-
“At this stage, we may also state another
well-settled canon of the criminal jurisprudence
that the superior courts have the jurisdiction
under Section 482 of the Code or even Article 226
of the Constitution of India to direct “further
investigation”, “fresh” or “de novo” and even
“reinvestigation”.
“Fresh”,
“de
novo”
and
“reinvestigation” are synonymous expressions
and their result in law would be the same. The
superior courts are even vested with the power of
transferring investigation from one agency to
another, provided the ends of justice so demand
such action. Of course, it is also a settled
principle that this power has to be exercised by
the superior courts very sparingly and with great
circumspection.”
And again:-
“Whether the Magistrate should direct “further
investigation” or not is again a matter which will
depend upon the facts of a given case. The
learned Magistrate or the higher court of
competent jurisdiction would direct “further
investigation” or “reinvestigation” as the case may
be, on the facts of a given case. Where the
Magistrate can only direct further investigation,
the courts of higher jurisdiction can direct
further, reinvestigation or even investigation de
novo depending on the facts of a given case. It
will be the specific order of the court that would
determine the nature of investigation.”
20
21.
We respectfully concur with the said view. As we have
already indicated, the learned Chief Judicial Magistrate has
basically directed for further investigation. The said part of
the order cannot be found fault with, but an eloquent one,
he could not have directed another investigating agency to
investigate as that would not be within the sphere of further
investigation and, in any case, he does not have the
jurisdiction to direct reinvestigation by another agency.
Therefore, that part of the order deserves to be lancinated
and accordingly it is directed that the investigating agency
that had investigated shall carry on the further investigation
and such investigation shall be supervised by the concerned
Superintendent of Police. After the further investigation, the
report shall be submitted before the learned Chief Judicial
Magistrate who shall deal with the same in accordance with
law. We may hasten to add that we have not expressed any
opinion relating to any of the factual aspects of the case.
22.
In view of the aforesaid analysis and conclusion, the
order passed by the High Court is set aside except where it
has held that the learned Magistrate could not have allowed
21
another agency to investigate. We have clarified the position
in the preceding paragraph.
23.
The appeal stands disposed of accordingly.
............................J.
[Dipak Misra]
............................J.
[V. Gopala Gowda]
New Delhi
July 7, 2015
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