Thursday 7 July 2022

Madras HC : Application For Further Investigation Can Be Filed Even After Commencement Of Trial

 Question No.2:-

12. As submitted by the learned Counsel for the petitioner, the

Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347.

“13. In Ram Lal Narang v. State (Delhi Admn.)

[(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791]

it was observed by this Court that 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 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.“

(empahsis supplied)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM :

 MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Crl.R.C.No.654 of 2022

Ganesan  Vs  SHO, District Crime Branch,

Pronounced on : 01.07.2022

This Criminal Revision Case is filed by the petitioner aggrieved

by the order dated 06.04.2022 passed by the learned Judicial Magistrate

No.I, Villupuram, in CMP.No.951 of 2021 in C.C.No.220 of 2020, whereby

the application filed for further investigation on behalf of the prosecution

under Section 173(8) of Cr.P.C., was rejected by the Trial Court.

2.The gist of the allegation in this case against the accused is that

making a false promise to get a job as Assistant Engineer in the TNEB the

accused had obtained money from the defacto complainant and cheated him.

By directing the de-facto complainant to come to various places to hand

over the amount, payments of money in cash were accepted by the accused.

On 28.07.2018, a sum of Rs.10 Lakhs, was given at Woodlands Hotel at

Villupuram. On 29.07.2018, a further sum of Rs.2 Lakhs was given at Elles

Chathram Road corner. Another sum of Rs.3 Lakhs was given on

09.08.2018 at Appollo Medical Shop situated at Trichy to Chennai Road in

Villupuram, a sum of Rs.5 Lakhs was given on 07.09.2018, at Avin Milk

Shop situated at Villupuram District Collector office and a sum of

Rs.2,50,000/- was given on 14.11.2018, near the Central Co-operative

Bank. In the places mentioned in the complaint by the de-facto complainant,

the CCTV footages were not collected by the prosecution during the course

of investigation. This apart the accused had also contacted the defacto

complainant in his mobile No.9443152542 to 9894298278 and the CDR

particulars were not collected during the course of investigation. Further, in

respect to certain documents produced along with the final report

certificates as required under Section 65B of The Indian Evidence Act were

not furnished. Therefore, for conducting further investigation and bringing

all these materials on record and the application was filed on behalf of the

prosecution. The said application was dismissed by the Trial Court by

passing the following order :-

''The petition has been filed by the learned

Additional Publice Prosecutor for ording further

investigation. Accordingly to him the CCTV footage

and CDR details are not collected by the

Investigation Officer. Perused records it is seen that

the trial has already been cammenced hence the

petition filed and the learned APP on his own

instance is not maintanable. Accordingly this

Petition is dismissed.''


3.The learned Counsel appearing on behalf of the revision

petitioner would submit that firstly, the reasoning that the application is

filed by the Additional Public Prosecutor on his own is factually incorrect

and it is filed on the instructions of the respondent/Police. The second

reasoning that the trial has already commenced and the petition need not to

be entertained is fallacious. In support of his contention, he would rely upon

the Judgment of the Hon'ble Supreme Court of India, in Sri Bhagwan

Samardha Sreepada Vs. State of Andhra Pradesh & Ors1, wherein in

paragraph No.2 it was held as follows:-

'' ..... Powers of the police to conduct further

investigation, after laying final report, is recognised

under Section 173(8) of the Code of Criminal

Procedure. Even after the court took cognizance of

any investigation. This has been so stated by this

Court in Ram Lal Narang v. State (Delhi Admn.)

(AIR 1979 SC 1791). 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. In such a

situation the power of the court to direct the police

to conduct further investigation cannot have any

inhibition.....''

4.He would further rely upon the Judgment of the Hon'ble

Supreme Court of India, in Rama Chaudhary v. State of Bihar2, more

1 AIR 1999 SC 2267

2 (2009) 6 SCC 346


specifically mentioned the paragraph Nos.12 & 13, which reads as follows:-

''12.If we consider the above legal

principles, the order dated 19.02.2008 of the trial

Court summoning the witnesses named in the

supplementary charge-sheet cannot be faulted with.

It is true that after enquiry and investigation charges

were framed on 11.03.2004 and thereafter in the

course of trial about 21 witnesses were examined. In

the meantime, Police submitted supplementary

charge-sheet with certain new materials and on the

basis of supplementary charge-sheet, the prosecution

filed an application on 12.01.2008 in a pending

Sessions Trial No.63 of 2004 to the trial Court for

summoning the persons named in the charge-sheet

for their examination as prosecution witnesses. On a

careful perusal of the application, the trial Court, by

order dated 19.02.2008, allowed the same and has

summoned those witnesses named in the

supplementary charge-sheet.

13.The law does not mandate taking prior

permission from the Magistrate for further

investigation. It is settled law that carrying out

further investigation even after filing of the chargesheet

is a statutory right of the Police. [vide

K.Chandrasekar vs. State of Kerala and Others,

(1998) 5 SCC 223.] The material collected in further

investigation cannot be rejected only because it has

been filed at the stage of trial. The facts and

circumstances show that the trial Court is fully

justified to summon witnesses examined in the

course of further investigation. It is also clear from

Section 231 of the Cr.P.C., that the prosecution is

entitled to produce any person as witness even

though such person is not named in the earlier

charge-sheet. All those relevant aspects have been

taken note of by the learned Magistrate while

summoning the witnesses based on supplementary

charge-sheet. This was correctly appreciated by the

High Court by rightly rejecting the revision. We fully

agree with the said conclusion.''

5.The learned Government Advocate (Crl.side) appearing on

behalf of the first respondent/Police would support the petitioner by stating

that in this case, the findings of the learned Magistrate that the learned

Additional Public Prosecutor filed the application on his own is incorrect

and the application was filed on behalf of the prosecution. He would submit

that further investigation is necessary to establish the truth in this case.

6.Mr.A.Arasu Ganesan, learned Counsel appearing on behalf of

the second respondent/accused would submit that the accused resisted the

application before the trial court. He would submit that only the prosecution

is entitled to file the application for further investigation. In this case, it is

the de-facto complainant who filed the revision before this Court and

therefore, the revision is not maintainable. In respect of this proposition, he

would rely upon the Judgment of this Court, in M.Viswanathan vs. State

and Ors3, more specifically mentioned in paragraph No.9, which reads as

follows:-

3 Crl.O.P.No.23943 of 2012 dated 27.07.2017


''As per the order of the Hon'ble Supreme Court in

the above case, the Hon'ble Supreme Court has

clarified the terms re-investigation and further

investigation. As per the interpretation, further

investigation is ordered, based on the additional

material or evidence collected by the

Police/Prosecution. However, re-investigation is

ordered when the earlier investigation improperly

conducted and not sustainable in law, to meet the

ends of justice. Therefore, as per the provision of

Section 173(8) of Cr.P.C., the aggrieved parties

namely, the Police/Prosecution on collection of

additional materials or evidence, the prosecution

can seek for further investigation, but the case in

hand, the defacto-complainant have no right for

furhter investigation through the second respondent

Central Bureau of Investigation.''

7.It is his second contention that after the commencement of the

trial, the application was filed. For the same proposition, he would rely

upon another Judgment of the Hon'ble Supreme Court of India, in Reetha

Nag vs. State of West Bengal & Ors4, more specifically in paragraph No.20

of the said Judgment, which reads as follows:-

''20.In the instant case, the investigating authorities

did not apply for further investigation and it was only upon the

application filed by the defacto 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 re-investigation on the application made

by the de facto complainant, but he also exceeded his

4 (2009) 13 SCR 276

jurisdiction in entertaining the said application filed by the de

facto complainant.''

8.He would further submit that this revision preferred by the defacto

complainant that too belatedly should not be entertained by this Court

and he prayed for dismissal of the revision petition.

9. I have considered the rival submissions made on either side and

perused the material records of this case. The following questions arise for

consideration in the present Revision:-

(i) Whether or not the Revision filed by the de-facto complainant

against the order of the learned Magistrate dismissing the application filed by the prosecution under Section 173(8) of Cr.P.C., is maintainable?

(ii) Whether the learned Magistrate was right in rejecting the

application for further investigation on the ground that the trial is

commenced?

Question No.1:-

10. In this case, the application for further investigation is filed by

the prosecution and not by the de-facto complainant. As far as the

judgments relied upon the learned Counsel for the petitioner in

nd Ors. (cited supra), it may be seen from the

passage extracted above, when the prosecution has filed the Final Report,

the de-facto complainant made a prayer that there should further

investigation by the Central Bureau of Investigation, which was rejected in

that case. As far as the case in Reetha Nag vs. State of West Bengal & Ors.

(cited supra) is concerned, it was again holding that the learned Magistrate

was not competent in directing the re-investigation and the power is given

only to the prosecution under Section 173(8) of Cr.P.C. It is also pertinent

to state here that even in respect of the power of the learned Magistrate, the

judgment in Reetha Nag vs. State of West Bengal & Ors. (cited supra) has

been expressely overruled by the Hon'ble Supreme Court of India in

Vinubhai Haribhai Malaviya Versus the State of Gujarat5. On the other

hand, the application in this case is filed only by the prosecution and if the

learned Magistrate had rejected the same, this Court, in exercise of its power

under Section 397 of Cr.P.C., is entitled to examine the correctness of the

said revisable order.

11. In this connection, the de-facto complainant, by filing the

Revision, is only bringing to the notice of this Court. In this context,it is

5 (2019) 17 SCC 1

relevant to refer to the dictum of the Hon'ble Supreme Court of India in

Rekha Murarka Vs. The State of West Bengal6, which is reproduced

hereunder, reads as follows:-

“12.5. However, even if there is a situation where

the Public Prosecutor fails to highlight some issue of

importance despite it having been suggested by the victim’s

counsel, the victim’s counsel may still not be given the

unbridled mantle of making oral arguments or examining

witnesses. This is because in such cases, he still has a recourse

by channelling his questions or arguments through the Judge

first. For instance, if the victim’s counsel finds that the Public

Prosecutor has not examined a witness properly and not

incorporated his suggestions either, he may bring certain

questions to the notice of the Court. If the Judge finds merit in

them, he may take action accordingly by invoking his powers

under Section 311 of the CrPC or Section 165 of the Indian

Evidence Act, 1872. In this regard, we agree with the

observations made by the Tripura High Court in Smt. Uma

Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the

victim’s counsel has a limited right of assisting the prosecution,

which may extend to suggesting questions to the Court or the

prosecution, but not putting them by himself.”' '

(Emphasis supplied)

Thus, (i) by filing the revision, the defacto complainant is only

brining to the notice of this court of his perception that an erroneous order is

passed which according to him will lead to injustice and therefore, would

not amount to taking over of the prosecution; (ii) second, there is no express

embargo Section 372 of Cr.P.C., for the defacto complainant to invoke the

6 (2020) 2 SCC 474

jurisdiction of this Court and therefore the principle of private lawyer taking

over the prosecution cannot be extrapolated to the situation on hand.

Accordingly, I answer the question that the Revision filed by the de-facto

complainant is maintainable and is in order.

Question No.2:-

12. As submitted by the learned Counsel for the petitioner, the

Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347.

“13. In Ram Lal Narang v. State (Delhi Admn.)

[(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791]

it was observed by this Court that 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 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.“

(empahsis supplied)

13. Similarly, the Hon'ble Supreme Court of Indian in Ram Lal

Narang and Ors. vs. State (Delhi Administration) (1979) 2 SCC 322, held in paragraph

No.21 as follows:-

„21. ………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 supplied)

Therefore, in view of the same, the application for further

investigation is maintainable even after the commencement of trial.

14. As far as the judgment of the Hon'ble Supreme Court of India

in Vinubhai Haribhai Malaviya Versus the State of Gujarat (cited supra),


though in paragraph No.38, it has been mentioned that the power of Police

to further investigate the offence continues till the stage of the trial

commences, but, however, it may be seen that even in the said judgment, the

views expressed in the above two judgments of the Hon'ble Supreme Court

of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (cited supra)

and Ram Lal Narang and Ors. vs. State (Delhi Administration) (cited

supra) were approved. Further, a learned Judge of this Court, already in

Ravi vs. The Inspector of Police, Kothagiri Circle9 , has considered the said

judgment and has held that since the question decided was relating to the

power of the learned Magistrate, the question as to whether the further

investigation can be carried after commencement of the trial or not not

being a question considered in the said judgment, the same cannot be

considered as an authoritative pronouncement of the Hon'ble Supreme Court

in respect of the question on hand and held that the prosecution is entitled

to seek for further investigation even after commencement of trial. It is

useful to extract the paragraph No.32 of the judgment, which reads as

follows:-

“32. In view of the same, this Court holds that the investigating

agency/Police invoking Section 173(8) Cr.P.C., at any stage of

the criminal proceedings cannot be doubted, objected and

faulted with.“

9 2021(4)MLJ(Crl)205

15. Section 173(8) of Cr.P.C., does not place any fetter on the

Police to conduct further investigation in the case after commencement of

trial and whenever they come across any additional information it is just and

necessary that the same be brought to the notice of the Court. It is important

to note that the Hon'ble Supreme Court of India in Vinubhai Haribhai

Malaviya Vs. the State of Gujarat (cited supra) itself has clearly held that

the purpose of further investigation is that any person who has wrongly

been prosecuted cannot suffer the same and any person, who was actually

committed the offence, should not escape punishment. In that view of the

matter, since bringing out the truth is the primordial purpose of

investigation and the present application serves the said purpose, I am of the

view that the application filed by the prosecution even after the

commencement of the trial in this case is maintainable and I answered the

question accordingly.

Result:-

16. In the result,

(i) The order of the learned Judicial Magistrate No.I, Villupuram

in CMP.No.951 of 2021 in C.C.No.220 of 2020 is set aside.

(ii) The application filed in CMP.No.951 of 2021 in C.C.No.220

of 2020 on the file of the Judicial Magistrate No.I, Villupuram is allowed;

(iii) It is made clear that the observations made in this Order are

for the purpose of disposing the application for further investigation alone

and shall not have any bearing on the merits of the case.

01.07.2022


Print Page

No comments:

Post a Comment