Can The Home Secretary order further investigation or reinvestigation of a Criminal case by another agency?

 That thereafter, non-bailable warrant was issued against Respondent No. 8 and only thereafter, mother of Respondent No. 8 - Accused moved an application before the Secretary (Home) for further investigation and he transferred the investigation to CBCID, inter-alia, on the ground that the so-called eye witnesses of the murder were not the eye witnesses. The request of the mother of Accused has been accepted by the Secretary (Home) and the investigation was transferred to another agency, namely, CBCID despite the fact that after the first chargesheet, the investigation was handed over to the District Crime Branch to further investigate the case and they filed the supplementary chargesheet in which Respondent Nos. 8 and 11 were even chargesheeted. Therefore, as such it is not a case of further investigation, but is a case of reinvestigation by another agency. The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the Accused is un- known to law.

7.1. There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report Under Sub-section (2) of Section 173 of Code of Criminal Procedure forwarded to a Magistrate and as observed and held by this Court the prior approval of the Magistrate is not required. However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required. In the present case, the Secretary (Home) has passed an order for further investigation by CBCID and thereafter, the CBCID has sent the intimation to the learned Magistrate. No prior approval/permission as observed by the High Court has been accorded by the learned Magistrate. The High Court in the impugned judgment and order has observed that the further investigation is ordered with the concurrence of the Magistrate, which is factually incorrect. What is on record is only an intimation to the learned Magistrate which in any case cannot be said to be concurrence of the learned Magistrate.

7.2. In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers Under Section 173(8) of the Code of Criminal Procedure Under what authority of law, the Secretary (Home) has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the Accused on the grounds which as such can be said to be the defences of the Accused which are required to be considered at the time of trial. The case on behalf of the Accused that as the Secretary (Home) is the head of the department and the further investigation was ordered by another agency on administrative side and therefore, the Secretary (Home) is justified in ordering further investigation by CBCID cannot be accepted. So far as the investigation is concerned under the scheme of the Code of Criminal Procedure, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police. So far as the Secretary (Home) is concerned, he does not come into picture at all. If such powers are given to the Secretary (Home) in that case any Accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged. If the Accused is aggrieved by the chargesheet in that case, the remedy available to him would be either to file the quashing petition Under Section 482 of Code of Criminal Procedure and/or to move an appropriate application for discharge before the learned Magistrate and it is for the High Court and/or the learned Magistrate as the case may be, to quash criminal proceedings or discharge the Accused. The Secretary (Home) and/or any Accused who is already chargesheeted cannot be permitted to circumvent such provision. It is to be noted that in the present case, Respondent No. 8 - Accused earlier did file the quashing petition, but failed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1294 of 2023 

 Bohatie Devi (Dead) through L.R.  Vs. The State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

M.R. Shah and C.T. Ravikumar, JJ.

Author: M.R. Shah, J.

Decided On: 28.04.2023.

Citation: MANU/SC/0473/2023

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Whether magistrate can direct re-investigation of case by another agency?

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. 
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

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Whether police can reinvestigate an offence without specific order of court?

 The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal :

Question No.1 : Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court? If so, to what effect?

Question No.2 : Whether the Central Bureau of Investigation (for short ‘the CBI’) is empowered to conduct ‘fresh’/’re- investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code?

Answer to Question No. 1

The court of competent jurisdiction is duty bound to consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of Section 173(2) of the Code. This Rule is subject to only the following exceptions;

a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;

b) Where an order is passed by the higher courts in exercise of its extra- ordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on ‘fresh investigation’ or ‘re-investigation’ or any part of it be excluded, struck off the court record and be treated as non est.

Answer to Question No. 2

No investigating agency is empowered to conduct a ‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate.

Supreme Court of India

Vinay Tyagi vs Irshad Ali @ Deepak & Ors. on 13 December, 2012

Bench: A.K. Patnaik, Swatanter Kumar

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What is distinction between further investigation and re-investigation?

‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation.

Supreme Court of India

Vinay Tyagi vs Irshad Ali @ Deepak & Ors. on 13 December, 2012

Bench: A.K. Patnaik, Swatanter Kumar

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