Calcutta High Court (Appellete Side)
Chittaranjan Jana vs The State Of West Bengal & Ors on 19 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 878 of 2019
With
CRAN 2598 of 2019
Chittaranjan Jana
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Topojit Dey.
For the State : Ms. Puspita Saha.
For the Opposite Party : Mr. Suman Chakraborty.
Heard on : 03.01.2023
Judgment on : 19.01.2023
2
Shampa Dutt (Paul), J.:
The present revision has been preferred praying for setting aside
of the order dated 15th January, 2019 passed by the Court of the
Learned Additional Chief Judicial Magistrate, Arambagh, District-
Hooghly in GR Case No. 198 of 2018.
The Petitioner/Complainant's case is that he filed a petition of
complaint in M.P. Case No. 15 of 2018 before the Learned Additional
Chief Judicial Magistrate, Arambagh praying for forwarding the same to
the Officer-in-charge Goghat Police Station for initiating investigation as
per provisions under Section156(3) of Code of Criminal Procedure for
offences under Sections 147,148,148,32,379,307,376/511,427,506,34
of the Indian Penal Code and under Section 3 and 4 of E.S. Act.
By an order dated 20th January, 2018 the Learned Additional
Chief Judicial Magistrate (hereinafter called Learned A.C.J.M.),
Arambagh, was pleased to pass the following direction:-
"Hence, let the petition of complaint be
forwarded to O.C. Goghat Police Station for initiating
investigation by treating the petition of complaint as
F.I.R., if any specific case in respect of the same incident
has not been started already.
In the event of a specific case has already been
started in respect of the same incident as alleged in the
petition of complaint, it must be incorporated in the case
diary of the specific case."
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To 21.02.2018 for report."
On the basis of the said direction, F.I.R. was recorded on 20th
February, 2018.
Subsequently the petitioner had filed an application praying for
further investigation and fresh enquiry by the C.I.D.
By an order dated 5th June, 2018, the Learned Court was
pleased to observe that there was great anomaly in the case diary which
indicates that Investigating Officer did not investigate the case properly,
The Learned Court further observed that dates in same pages were
interpolated which was not desirable and definitely casts shadow of
doubt regarding truthfulness of investigation.
Ultimately by an order dated 12th June, 2018 the Learned
A.C.J.M. had come the conclusion that investigation of the case was not
properly done and the final report submitted by the I.O. was not
accepted. The Learned Court was pleased to direct the Officer-in-Charge
Goghat Police Station to make further investigation.
By an order dated 15th January, 2019, the Learned Additional
Chief Magistrate has accepted the final report submitted by the I.O.
inspite of objection from the petitioner.
Mr. Topojit Dey, Learned Counsel for the
petitioner/complainant submits that from the final reports dated 2nd
4
May, 2018 it appears that the I.O. has failed to explain the reason of not
contacting the petitioner and the victim and not visiting the place of
occurrence promptly.
Mr. Dey has further submitted that after three months from the
date of occurrence, the police personnel came to find out the explosive
articles, the possibilities of not getting the same could not be ruled out.
It is further submitted that the final report dated 10th January,
2019 is mere reiteration of the final report filed by the erstwhile I.O.
dated 2nd May, 2018 and though there is sufficient materials available
as per statements of the victim for the offences under Section
379/307/376/511 of Indian Penal Code but the police authorities with
unknown preconceived notion have deleted those charges against the
accused persons.
Inspite of seeing the inconsistencies in the final report, the
Learned Trial Court has accepted the report and fixed the matter for
trial.
The Counsel for the petitioner has further submitted that as the
investigation carried out by the local police station is not satisfactory
and an inconsistent one, a further investigation be directed upon the
C.I.D. for getting proper justice.
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It is further submitted that the investigation by the local police
authority has been done in a very casual and mechanical manner and
this is an abuse of process of law.
Hence, the order under revision being otherwise bad in law is
liable to be set aside/quashed and direction for further investigation by
an independent investigating agency be given.
Mr. Suman Chakraborty, Learned Counsel for the private
opposite parties submits that initially the charge sheet dated
02.05.2018 was filed in respect of offences under Section
147/148/149/323/427/506/34 IPC.
And on further investigation, charge sheet dated 10.01.2019 has
been filed for offences under Sections
147/148/149/323/354/427/506/34 IPC. Section 354 IPC has been
added.
The Charge Sheet was accepted and cognizance taken by the
learned Magistrate. The revision is thus liable to be dismissed.
Ms. Puspita Saha Learned Counsel for the state has produced
the case diary and submits that the investigation and further
investigation is in accordance with law and charge sheet has been filed
on finding of a prima facie case on the basis of evidence and being in
accordance with law, cognizance has been taken by the Learned
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Magistrate. The trial is being delayed due to the conduct of the
petitioner/complainant, whose conduct is an abuse of the process of
Court and Law.
On considering the material on record including the case
diary, in the present case, it is seen that the case was initially registered
under Sections 147/148/149/323/379/307/376/511/427/506/34 & 3
& 4 E.S. Act, on the basis of an application under Section 156(3) Cr.P.C.
Interestingly from the petition under Section 156(3) Cr.P.C. (M.P.
Case no. 15/2018) it is seen that:-
i) The date and time of occurrence is given as
27.10.2017, around 11pm.
ii) The petition under Section 156(3) Cr.P.C. is dated
20.01.2018, though the compliance under Section
154(3) Cr.P.C.is on 06.11.2017.
iii) That is after almost three months of the alleged
incident
iv) The Case was registered on 20.02.2018.
As such the case of the petitioner that due to delay caused
by police, the evidence of offence under Sections 3 and 4 of the
E.S. Act would not be available is only to find fault with the
investigating agency and this conduct itself is an abuse of process
of Court and law.
7
The compliance under Section 154(3) Cr.P.C. is on 06.11.2017
after about nine days from the date of alleged incident. From the case
diary it is seen that police could not trace the complainant as his house
was under lock and key and no one could provide his contact number.
Mita Jana is the wife of the complainant. The ingredients of the
offences for which the first charge sheet was filed is prima facie
present as seen from her statement recorded under Section 161 Cr.P.C..
There is no such statement nor any evidence/ingredients for
which any other sections relating to other offences as alleged could
be added and if done would result in abuse of process of the
Court/law leading to serious miscarriage of justice.
There are statements where it has been stated that there
was no attempt to rape Mita Jana nor did they hear any theft or
sound of Bombs.
On further investigation a further statement of Mita Jana was
recorded where she has stated about the attempt to rape, being armed
with guns, rod, bamboo and bombs, the accused persons attacked them
and their house threatening to burn their house.
She has also stated that she had filed a case of outrage of
modesty against the accused, which they allegedly pressurized to
withdraw.
8
Second charge sheet was then filed with added Section 354
IPC and cognizance was taken by the Learned Magistrate.
The Supreme Court (Majority decision) in Romila Thapar & Ors.
Vs Union of India & Ors., Writ Petition (Criminal) No. 260 of 2018
on 28th Sept, 2018 held :-
"19. After the high-pitched and at times emotional
arguments concluded, each side presenting his case
with equal vehemence, we as Judges have had to sit
back and ponder over as to who is right or whether
there is a third side to the case. The petitioners have
raised the issue of credibility of Pune Police
investigating the crime and for attempting to stifle
the dissenting voice of the human rights activists.
The other side with equal vehemence argued that
the action taken by Pune Police was in discharge of
their statutory duty and was completely objective
and independent. It was based on hard facts
unraveled during the investigation of the crime in
question, pointing towards the sinister ploy to
destabilize the State and was not because of
difference in ideologies, as is claimed by the so
called human rights activists.
20. After having given our anxious consideration
to the rival submission and upon perusing the
pleadings and documents produced by both the
sides, coupled with the fact that now four named
accused have approached this Court and have
asked for being transposed as writ petitioners, the
following broad points may arise for our
consideration:-
(i) Should the Investigating Agency be changed at
the behest of the named five accused?
(ii) If the answer to point (i) is in the negative, can
a prayer of the same nature be entertained at the
9
behest of the next friend of the accused or in the
garb of PIL?
(iii) If the answer to question Nos.(i) and/or (ii)
above, is in the affirmative, have the petitioners
made out a case for the relief of appointing Special
Investigating Team or directing the Court monitored
investigation by an independent Investigating
Agency?
(iv) Can the accused person be released merely on
the basis of the perception of his next friend (writ
petitioners) that he is an innocent and law abiding
person?
21. Turning to the first point, we are of the
considered opinion that the issue is no more res
integra. In Narmada Bai Vs. State of Gujarat and
Ors.1, in paragraph 64, this Court restated that it is
trite law that the accused persons do not have a say
in the matter of appointment of Investigating 1
(2011) 5 SCC 79 Agency. Further, the accused
persons cannot choose as to which Investigating
Agency must investigate the offence committed by
them. Paragraph 64 of this decision reads thus:-
"64. ..... It is trite law that accused persons do not
have a say in the matter of appointment of an
investigation agency. The accused persons cannot
choose as to which investigation agency must
investigate the alleged offence committed by them."
(emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt Vs. Union of
India and Ors.2, the Court restated that the accused
had no right with reference to the manner of
investigation or mode of prosecution. Paragraph 68
of this judgment reads thus:
"68. The accused has no right with reference to
the manner of investigation or mode of prosecution.
Similar is the law laid down by this Court in Union
of India v. W.N. Chadha3, Mayawati v. Union of
10
India4, Dinubhai Boghabhai Solanki v. State of
Gujarat5, CBI v. Rajesh Gandhi6, Competition
Commission of India v. SAIL7 and Janta Dal v.
H.S. Choudhary.8" (emphasis supplied) 2 (2016) 1
SCC 1 1993 Supp. (4) SCC 260 4 (2012) 8 SCC 106
5 (2014) 4 SCC 626 6 (1996) 11 SCC 253 7 (2010)
10 SCC 344 8 (1991) 3 SCC 756
23. Recently, a three-Judge Bench of this Court in
E. Sivakumar Vs. Union of India and Ors.9, while
dealing with the appeal preferred by the "accused"
challenging the order of the High Court directing
investigation by CBI, in paragraph 10 observed:
"10. As regards the second ground urged by the
petitioner, we find that even this aspect has been
duly considered in the impugned judgment. In
paragraph 129 of the impugned judgment, reliance
has been placed on Dinubhai Boghabhai Solanki Vs.
State of Gujarat10, wherein it has been held that in
a writ petition seeking impartial investigation, the
accused was not entitled to opportunity of hearing
as a matter of course. Reliance has also been placed
in Narender G. Goel Vs. State of Maharashtra11, in
particular, paragraph 11 of the reported decision
wherein the Court observed that it is well settled
that the accused has no right to be heard at the
stage of investigation. By entrusting the
investigation to CBI which, as aforesaid, was
imperative in the peculiar facts of the present case,
the fact that the petitioner was not impleaded as a
party in the writ petition or for that matter, was not
heard, in our opinion, will be of no avail. That per se
cannot be the basis to label the impugned judgment
as a nullity."
24. This Court in the case of Divine Retreat
Centre Vs. State of Kerala and Ors.12, has
enunciated that the High 9 (2018) 7 SCC 365
10 Supra @ Footnote 5 11 (2009) 6 SCC 65 12
(2008) 3 SCC 542 Court in exercise of its
11
inherent jurisdiction cannot change the
investigating officer in the midstream and
appoint an investigating officer of its own choice
to investigate into a crime on whatsoever basis. The
Court made it amply clear that neither the
accused nor the complainant or informant are
entitled to choose their own Investigating
Agency to investigate the crime in which they
are interested. The Court then went on to clarify
that the High Court in exercise of its power
under Article 226 of the Constitution can always
issue appropriate directions at the instance of the
aggrieved person if the High Court is convinced that
the power of investigation has been exercised by the
investigating officer mala fide.
25. Be that as it may, it will be useful to advert to
the exposition in State of West Bengal and Ors. Vs.
Committee for Protection of Democratic Rights, West
Bengal and Ors.13 In paragraph 70 of the said
decision, the Constitution Bench observed thus:
"70. Before parting with the case, we deem it
necessary to emphasise that despite wide powers
conferred by Articles 32 13 (2010) 3 SCC 571 and
226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed
limitations on the exercise of these Constitutional
powers. The very plenitude of the power under the
said articles requires great caution in its exercise.
Insofar as the question of issuing a direction to the
CBI to conduct investigation in a case is concerned,
although no inflexible guidelines can be laid down to
decide whether or not such power should be
exercised but time and again it has been reiterated
that such an order is not to be passed as a matter of
routine or merely because a party has levelled some
allegations against the local police. This
extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil
confidence in investigations or where the incident
may have national and international ramifications or
where such an order may be necessary for doing
complete justice and enforcing the fundamental
rights. Otherwise the CBI would be flooded with a
12
large number of cases and with limited resources,
may find it difficult to properly investigate even
serious cases and in the process lose its credibility
and purpose with unsatisfactory investigations."
27. In view of the above, it is clear that the
consistent view of this Court is that the accused
cannot ask for changing the Investigating Agency or
to do investigation in a particular manner including
for Court monitored investigation. The first two
modified reliefs claimed in the writ petition, if they
were to be made by the accused themselves, the
same would end up in being rejected. In the present
case, the original writ petition was filed by the
persons claiming to be the next friends of
the concerned accused (A16 to A20). Amongst them,
Sudha Bhardwaj (A19), Varvara Rao (A16), Arun
Ferreira (A18) and Vernon Gonsalves (A17) have
filed signed statements praying that the reliefs
claimed in the subject writ petition be treated as
their writ petition. That application deserves to be
allowed as the accused themselves have chosen to
approach this Court and also in the backdrop of the
preliminary objection raised by the State that the
writ petitioners were completely strangers to the
offence under investigation and the writ petition at
their instance was not maintainable. We would,
therefore, assume that the writ petition is now
pursued by the accused themselves and once they
have become petitioners themselves, the question of
next friend pursuing the remedy to espouse their
cause cannot be countenanced. The next friend can
continue to espouse the cause of the affected
accused as long as the concerned accused is not in a
position or incapacitated to take recourse to legal
remedy and not otherwise.
30. We find force in the argument of the State that
the prayer for changing the Investigating Agency
cannot be dealt with lightly and the Court must
exercise that power with circumspection. As a result,
we have no hesitation in taking a view that the writ
petition at the instance of the next friend of the
accused for transfer of investigation to independent
Investigating Agency or for Court monitored
13
investigation cannot be countenanced, much less as
public interest litigation."
The said judgment was referred to by the Supreme Court in
Vinubhai Haribhai Malaviya Vs The State of Gujarat on 16.10.2019
in Original Appeal 478-479 of 2017, wherein a Three Judge Bench
held:-
"9. The question of law that therefore arises in this
case is whether, after a charge-sheet is filed by the
police, the Magistrate has the power to order further
investigation, and if so, up to what stage of a
criminal proceeding.
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
[Bhagwant Singh v. Commr. of Police, (1985) 2 SCC
537 : 1985 SCC (Cri) 267] has, in no uncertain
terms, stated that principle, as aforenoticed.
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:
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 [Bhagwant Singh v. Commr. of
14
Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] 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.
40.6. It has been a procedure of propriety that the
police has to seek permission of the court to continue
"further investigation" and file supplementary
charge- sheet. This approach has been approved by
this Court in a number of judgments. This as such
would support the view that we are taking in the
present case."
xxx xxx xxx
48. What ultimately is the aim or significance of the
expression "fair and proper investigation" in criminal
jurisprudence? It has a twin purpose: Firstly, the
investigation must be unbiased, honest, just and in
accordance with law; secondly, the entire emphasis
on a fair investigation has to be to bring out the truth
of the case before the court of competent jurisdiction.
Once these twin paradigms of fair investigation are
satisfied, there will be the least requirement for the
court of law to interfere with the investigation, much
less quash the same, or transfer it to another
agency. Bringing out the truth by fair and
investigative means in accordance with law would
15
essentially repel the very basis of an unfair, tainted
investigation or cases of false implication. Thus, it is
inevitable for a court of law to pass a specific order
as to the fate of the investigation, which in its
opinion is unfair, tainted and in violation of the
settled principles of investigative canons.
49. Now, we may examine another significant
aspect which is how the provisions of Section
173(8) have been understood and applied by the
courts and investigating agencies. It is true that
though there is no specific requirement in the
provisions of Section 173(8) of the Code to conduct
"further investigation" or file supplementary report
with the leave of the court, the investigating agencies
have not only understood but also adopted it as a
legal practice to seek permission of the courts to
conduct "further investigation" and file
"supplementary report" with the leave of the court.
The courts, in some of the decisions, have also taken
a similar view. The requirement of seeking prior
leave of the court to conduct "further investigation"
and/or to file a "supplementary report" will have to
be read into, and is a necessary implication of the
provisions of Section 173(8) of the Code. The doctrine
of contemporanea expositio will fully come to the aid
of such interpretation as the matters which are
understood and implemented for a long time, and
such practice that is supported by law should be
accepted as part of the interpretative process.
50. Such a view can be supported from two different
points of view: firstly, through the doctrine of
precedent, as aforenoticed, since quite often the
courts have taken such a view, and, secondly, the
investigating agencies which have also so
understood and applied the principle. The matters
which are understood and implemented as a legal
practice and are not opposed to the basic rule of law
would be good practice and such interpretation
would be permissible with the aid of doctrine of
contemporanea expositio. Even otherwise, to seek
such leave of the court would meet the ends
of justice and also provide adequate safeguard
against a suspect/accused.
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51. We have already noticed that there is no specific
embargo upon the power of the learned Magistrate to
direct "further investigation" on presentation of a
report in terms of Section 173(2) of the Code. Any
other approach or interpretation would be in
contradiction to the very language of Section
173(8) and the scheme of the Code for giving
precedence to proper administration of criminal
justice. The settled principles of criminal
jurisprudence would support such approach,
particularly when in terms of Section 190 of the
Code, the Magistrate is the competent authority to
take cognizance of an offence. It is the Magistrate
who has to decide whether on the basis of the record
and documents produced, an offence is made out or
not, and if made out, what course of law should be
adopted in relation to committal of the case to the
court of competent jurisdiction or to proceed with the
trial himself. In other words, it is the judicial
conscience of the Magistrate which has to be
satisfied with reference to the record and the
documents placed before him by the investigating
agency, in coming to the appropriate conclusion in
consonance with the principles of law. It will be a
travesty of justice, if the court cannot be permitted to
direct "further investigation" to clear its doubt and to
order the investigating agency to further
substantiate its charge-sheet. The satisfaction of the
learned Magistrate is a condition precedent to
commencement of further proceedings before the
court of competent jurisdiction. 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. In this regard, we may refer
to the observations made by this Court
in Sivanmoorthy v. State [(2010) 12 SCC 29: (2011) 1
SCC (Cri) 295]."
17
34. A Bench of 5 learned Judges of this Court
in Hardeep Singh v. State of Punjab and Ors.
(2014) 3 SCC 92 was faced with a question
regarding the circumstances under which the
power under Section 319 of the Code could be
exercised to add a person as being accused of
a criminal offence. In the course of a learned
judgment answering the aforesaid question,
this Court first adverted to the constitutional
mandate under Article 21 of the Constitution
as follows:
"8. The constitutional mandate under
Articles 20 and 21 of the Constitution
of India provides a protective
umbrella for the smooth
administration of justice making
adequate provisions to ensure a fair
and efficacious trial so that the
accused does not get prejudiced after
the law has been put into motion to
try him for the offence but at the
same time also gives equal protection
to victims and to society at large to
ensure that the guilty does not get
away from the clutches of law. For
the empowerment of the courts to
ensure that the criminal
administration of justice works
properly, the law was appropriately
codified and modified by the
legislature under CrPC indicating as
to how the courts should proceed in
order to ultimately find out the truth
so that an innocent does not get
punished but at the same time, the
guilty are brought to book under the
law. It is these ideals as enshrined
under the Constitution and our laws
that have led to several decisions,
whereby innovating methods and
progressive tools have been forged to
find out the real truth and to ensure
that the guilty does not go
unpunished." In paragraph 34, this
Court adverted to Common Cause v.
18
Union of India (1996) 6 SCC 775, and dealt
with when trials before the Sessions Court;
trials of warrant-cases; and trials of
summons-cases by Magistrates can be said to
commence, as follows:
"34. In Common Cause v. Union of
India [(1996) 6 SCC 775 : 1997 SCC
(Cri) 42 : AIR 1997 SC 1539] , this
Court while dealing with the issue
held: (SCC p. 776, para 1) "1. II (i) In
cases of trials before the Sessions
Court the trials shall be treated to
have commenced when charges are
framed under Section 228 of the Code
of Criminal Procedure, 1973 in the
cases concerned.
(ii) In cases of trials of warrant cases
by Magistrates if the cases are
instituted upon police reports the
trials shall be treated to have
commenced when charges are framed
under Section 240 of the Code of
Criminal Procedure, 1973 while in
trials of warrant cases by Magistrates
when cases are instituted otherwise
than on police report such trials shall
be treated to have commenced when
charges are framed against the
accused concerned under Section
246 of the Code of Criminal
Procedure, 1973.
(iii) In cases of trials of summons
cases by Magistrates the trials would
be considered to have commenced
when the accused who appear or are
brought before the Magistrate are
asked under Section 251 whether
they plead guilty or have any defence
to make." (emphasis supplied) The
Court then concluded:
"38. In view of the above, the law can
be summarised to the effect that as
"trial" means determination of issues
19
adjudging the guilt or the innocence of
a person, the person has to be aware
of what is the case against him and it
is only at the stage of framing of the
charges that the court informs him of
the same, the "trial" commences only
on charges being framed. Thus, we
do not approve the view taken by the
courts that in a criminal case, trial
commences on cognizance being
taken."
35. Paragraph 39 of the judgment then
referred to the "inquiry" stage of a criminal
case as follows:
"39. Section 2(g) CrPC and the case
laws referred to above, therefore,
clearly envisage inquiry before the
actual commencement of the trial, and
is an act conducted under CrPC by
the Magistrate or the court.
The word "inquiry" is, therefore, not any
inquiry relating to the investigation of the case
by the investigating agency but is an inquiry
after the case is brought to the notice of the
court on the filing of the charge-sheet. The
court can thereafter proceed to make inquiries
and it is for this reason that an inquiry has
been given to mean something other than the
actual trial." A clear distinction between
"inquiry" and "trial" was thereafter set out in
paragraph 54 as follows:
"54. In our opinion, the stage of
inquiry does not contemplate any
evidence in its strict legal sense, nor
could the legislature have
contemplated this inasmuch as the
stage for evidence has not yet
arrived. The only material that the
court has before it is the material
collected by the prosecution and the
court at this stage prima facie can
apply its mind to find out as to
whether a person, who can be an
20
accused, has been erroneously
omitted from being arraigned or has
been deliberately excluded by the
prosecuting agencies. This is all the
more necessary in order to ensure
that the investigating and the
prosecuting agencies have acted
fairly in bringing before the court
those persons who deserve to be tried
and to prevent any person from being
deliberately shielded when they
ought to have been tried. This is
necessary to usher faith in the
judicial system whereby the court
should be empowered to exercise
such powers even at the stage of
inquiry and it is for this reason that
the legislature has consciously used
separate terms, namely, inquiry or
trial in Section 319 CrPC."
36. Despite the aforesaid judgments, some
discordant notes were sounded in three recent
judgments. In Amrutbhai Shambubhai Patel v.
Sumanbhai Kantibai Patel (2017) 4 SCC 177,
on the facts in that case, the
Appellant/Informant therein sought a direction
under Section 173(8) from the Trial Court for
further investigation by the police long after
charges were framed against the Respondents
at the culminating stages of the trial.
The Court in its ultimate conclusion was
correct, in that, once the trial begins with the
framing of charges, the stage of investigation
or inquiry into the offence is over, as a result
of which no further investigation into the
offence should be ordered. But instead of
resting its judgment on this simple fact, this
Court from paragraphs 29 to 34 resuscitated
some of the earlier judgments of this Court, in
which a view was taken that no further
investigation could be ordered by the
Magistrate in cases where, after cognizance is
taken, the accused had appeared in
pursuance of process being issued. In
particular, Devarapalli Lakshminarayana
Reddy (supra) was strongly relied upon by the
Court. We have already seen how this
judgment was rendered without adverting to
the definition of "investigation" in Section
2(h) of the CrPC, and cannot therefore be
relied upon as laying down the law on this
aspect correctly. The Court therefore
concluded:
"49. On an overall survey of the
pronouncements of this Court on the
scope and purport of Section 173(8) of
the Code and the consistent trend of
explication thereof, we are thus
disposed to hold that though the
investigating agency concerned has
been invested with the power to
undertake further investigation
desirably after informing the court
thereof, before which it had submitted
its report and obtaining its approval,
no such power is available therefor to
the learned Magistrate after
cognizance has been taken on the
basis of the earlier report, process
has been issued and the accused has
entered appearance in response
thereto. At that stage, neither the
learned Magistrate suo motu nor on
an application filed by the
complainant/informant can direct
further investigation. Such a course
would be open only on the request of
the investigating agency and that too,
in circumstances warranting further
investigation on the detection of
material evidence only to secure fair
investigation and trial, the life
purpose of the adjudication in hand.
50. The unamended and the amended sub-section
(8) of Section 173 of the Code if read in juxtaposition,
would overwhelmingly attest that by the latter, the
investigating agency/officer alone has been
authorised to conduct further investigation without
limiting the stage of the proceedings relatable
thereto. This power qua the investigating
agency/officer is thus legislatively intended to be
available at any stage of the proceedings. The
recommendation of the Law Commission in its 41st
Report which manifestly heralded the amendment,
significantly had limited its proposal to the
empowerment of the investigating agency alone.
51. In contradistinction, Sections
156, 190, 200, 202 and 204 CrPC clearly outline the
powers of the Magistrate and the courses open for
him to chart in the matter of directing investigation,
taking of cognizance, framing of charge, etc. Though
the Magistrate has the power to direct investigation
under Section 156(3) at the pre-cognizance stage
even after a charge-sheet or a closure report is
submitted, once cognizance is taken and the
accused person appears pursuant thereto, he would
be bereft of any competence to direct further
investigation either suo motu or acting on the request
or prayer of the complainant/informant. The
direction for investigation by the Magistrate
under Section 202, while dealing with a complaint,
though is at a post-cognizance stage, it is in the
nature of an inquiry to derive satisfaction as to
whether the proceedings initiated ought to be
furthered or not. Such a direction for investigation is
not in the nature of further investigation, as
contemplated under Section 173(8) of the Code. If the
power of the Magistrate, in such a scheme envisaged
by CrPC to order further investigation even after the
cognizance is taken, the accused persons appear
and charge is framed, is acknowledged or approved,
the same would be discordant with the state of law,
as enunciated by this Court and also the relevant
layout of CrPC adumbrated hereinabove.
Additionally had it been the intention of the
legislature to invest such a power, in our
estimate, Section 173(8) CrPC would have been
worded accordingly to accommodate and ordain the
same having regard to the backdrop of the
incorporation thereof. In a way, in view of the three
options open to the Magistrate, after a report is
submitted by the police on completion of the
investigation, as has been amongst authoritatively
enumerated in Bhagwant Singh [Bhagwant Singh v.
Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri)
267] , the Magistrate, in both the contingencies,
namely; when he takes cognizance of the offence or
discharges the accused, would be committed to a
course, whereafter though the investigating agency
may for good reasons inform him and seek his
permission to conduct further investigation, he suo
motu cannot embark upon such a step or take that
initiative on the request or prayer made by the
complainant/informant. Not only such power to the
Magistrate to direct further investigation suo motu or
on the request or prayer of the
complainant/informant after cognizance is taken
and the accused person appears, pursuant to the
process, issued or is discharged is incompatible with
the statutory design and dispensation, it would even
otherwise render the provisions of Sections
311 and 319 CrPC, whereunder any witness can be
summoned by a court and a person can be issued
notice to stand trial at any stage, in a way
redundant. Axiomatically, thus the impugned
decision annulling the direction of the learned
Magistrate for further investigation is unexceptional
and does not merit any interference. Even otherwise
on facts, having regard to the progression of the
developments in the trial, and more particularly, the
delay on the part of the informant in making the
request for further investigation, it was otherwise
not entertainable as has been rightly held by the
High Court."
37. This judgment was followed in a recent Division
Bench judgment of this Court in Athul Rao v. State of
Karnataka and Anr. (2018) 14 SCC 298 at
paragraph 8. In Bikash Ranjan Rout v. State through
the Secretary (Home), Government of NCT of Delhi
(2019) 5 SCC 542, after referring to a number of
decisions this Court concluded as follows:
"7. Considering the law laid down by
this Court in the aforesaid decisions
and even considering the relevant
provisions of CrPC, namely, Sections
167(2), 173, 227 and 228 CrPC, what
is emerging is that after the
investigation is concluded and the
report is forwarded by the police to
the Magistrate under Section
173(2)(i) CrPC, the learned Magistrate
may either (1) accept the report and
take cognizance of the offence and
issue process, or (2) may disagree
with the report and drop the
proceedings, or (3) may direct further
investigation under Section
156(3) and require the police to make
a further report. If the Magistrate
disagrees with the report and drops
the proceedings, the informant is
required to be given an opportunity to
submit the protest application and
thereafter, after giving an opportunity
to the informant, the Magistrate may
take a further decision whether to
drop the proceedings against the
accused or not. If the learned
Magistrate accepts the objections, in
that case, he may issue process
and/or even frame the charges
against the accused. As observed
hereinabove, having not been
satisfied with the investigation on
considering the report forwarded by
the police under Section
173(2)(i) CrPC, the Magistrate may, at
that stage, direct further investigation
and require the police to make a
further report. However, it is required
to be noted that all the aforesaid is
required to be done at the pre-
cognizance stage. Once the learned
Magistrate takes the cognizance and,
considering the materials on record
submitted along with the report
forwarded by the police under Section
173(2)(i) CrPC, the learned Magistrate
in exercise of the powers
under Section 227 CrPC discharges
the accused, thereafter, it will not be
open for the Magistrate to suo motu
order for further investigation and
direct the investigating officer to
submit the report.
Such an order after discharging the accused can be
said to be made at the post-cognizance stage. There
is a distinction and/or difference between the pre-
cognizance stage and post-cognizance stage and the
powers to be exercised by the Magistrate for further
investigation at the pre-cognizance stage and post-
cognizance stage. The power to order further
investigation which may be available to the
Magistrate at the pre-cognizance stage may not be
available to the Magistrate at the post-cognizance
stage, more particularly, when the accused is
discharged by him. As observed hereinabove, if the
Magistrate was not satisfied with the investigation
carried out by the investigating officer and the report
submitted by the investigating officer under Section
173(2)(i) CrPC, as observed by this Court in a catena
of decisions and as observed hereinabove, it was
always open/permissible for the Magistrate to direct
the investigating agency for further investigation and
may postpone even the framing of the charge and/or
taking any final decision on the report at that stage.
However, once the learned Magistrate, on the basis
of the report and the materials placed along with the
report, discharges the accused, we are afraid that
thereafter the Magistrate can suo motu order further
investigation by the investigating agency. Once the
order of discharge is passed, thereafter the
Magistrate has no jurisdiction to suo motu direct the
investigating officer for further investigation and
submit the report. In such a situation, only two
remedies are available: (i) a revision application can
be filed against the discharge or (ii) the Court has to
wait till the stage of Section 319 CrPC. However, at
the same time, considering the provisions of Section
173(8) CrPC, it is always open for the investigating
agency to file an application for further investigation
and thereafter to submit the fresh report and the
Court may, on the application submitted by the
investigating agency, permit further investigation
and permit the investigating officer to file a fresh
report and the same may be considered by the
learned Magistrate thereafter in accordance with
law. The Magistrate cannot suo motu direct for
further investigation under Section 173(8) CrPC or
direct reinvestigation into a case at the post-
cognizance stage, more particularly when, in
exercise of powers under Section 227 CrPC, the
Magistrate discharges the accused.
However, Section 173(8) CrPC confers power upon
the officer in charge of the police station to further
investigate and submit evidence, oral or
documentary, after forwarding the report under sub-
section (2) of Section 173 CrPC. Therefore, it is
always open for the investigating officer to apply for
further investigation, even after forwarding the
report under sub-section (2) of Section 173 and even
after the discharge of the accused. However, the
aforesaid shall be at the instance of the investigating
officer/police officer in charge and the Magistrate
has no jurisdiction to suo motu pass an order for
further investigation/reinvestigation after he
discharges the accused." Realising the difficulty in
concluding thus, the Court went on to hold:
"10. However, considering the
observations made by the learned
Magistrate and the deficiency in the
investigation pointed out by the
learned Magistrate and the ultimate
goal is to book and/or punish the real
culprit, it will be open for the
investigating officer to submit a
proper application before the learned
Magistrate for further investigation
and conduct fresh investigation and
submit the further report in exercise of
powers under Section 173(8) CrPC
and thereafter the learned Magistrate
to consider the same in accordance
with law and on its own merits."
38. There is no good reason given by the Court in
these decisions as to why a Magistrate's powers to
order further investigation would suddenly cease
upon process being issued, and an accused
appearing before the Magistrate, while
concomitantly, the power of the police to further
investigate the offence continues right till the stage
the trial commences. Such a view would not accord
with the earlier judgments of this Court, in
particular, Sakiri (supra), Samaj Parivartan
Samudaya (supra), Vinay Tyagi (supra), and
Hardeep Singh (supra); Hardeep Singh (supra)
having clearly held that a criminal trial does not
begin after cognizance is taken, but only after
charges are framed. What is not given any
importance at all in the recent judgments of this
Court is Article 21 of the Constitution and the fact
that the Article demands no less than a fair and just
investigation. To say that a fair and just
investigation would lead to the conclusion that the
police retain the power, subject, of course, to the
Magistrate's nod under Section 173(8) to further
investigate an offence till charges are framed, but
that the supervisory jurisdiction of the Magistrate
suddenly ceases mid-
way through the pre-trial proceedings, would
amount to a travesty of justice, as certain cases may
cry out for further investigation so that an innocent
person is not wrongly arraigned as an accused or
that a prima facie guilty person is not so left out.
There is no warrant for such a narrow and
restrictive view of the powers of the Magistrate,
particularly when such powers are traceable
to Section 156(3) read with Section 156(1), Section
2(h), and Section 173(8) of the CrPC, as has been
noticed hereinabove, and would be available at all
stages of the progress of a criminal case before the
trial actually commences. It would also be in the
interest of justice that this power be exercised suo
motu by the Magistrate himself, depending on the
facts of each case. Whether further investigation
should or should not be ordered is within the
discretion of the learned Magistrate who will
exercise such discretion on the facts of each case
and in accordance with law. If, for example, fresh
facts come to light which would lead to inculpating
or exculpating certain persons, arriving at the truth
and doing substantial justice in a criminal case are
more important than avoiding further delay being
caused in concluding the criminal proceeding, as
was held in Hasanbhai Valibhai Qureshi (supra).
Therefore, to the extent that the judgments in
Amrutbhai Shambubhai Patel (supra), Athul Rao
(supra) and Bikash Ranjan Rout (supra) have held to
the contrary, they stand overruled. Needless to
add, Randhir Singh Rana v. State (Delhi
Administration) (1997) 1 SCC 361 and Reeta Nag v.
State of West Bengal and Ors. (2009) 9 SCC 129
also stand overruled."
By a Judgment dated 12.10.2022 the Supreme Court in
Criminal Appeal No. 1768 of 2022 (Devendra Nath Singh Vs State of
Bihar & Ors) relying upon several precedents including Vinubhai, Hari
bhai, Malaviya (Supra) held:-
"12.5. The case of Divine Retreat Centre (supra)
has had the peculiarity of its own. Therein, the
Criminal Case bearing No. 381 of 2005 had been
registered at Koratty Police Station on the
allegations made by a female remand prisoner
that while taking shelter in the appellant-Centre,
she was subjected to molestation and exploitation
and she became pregnant; and thereafter, when
she came out of the Centre to attend her sister's
marriage, she was implicated in a false theft case
and lodged in jail. Parallel to these proceedings,
an anonymous petition as also other petitions
were received in the High Court, which were
registered as a suo motu criminal case. In that
case, the High Court, while exercising powers
under Section 482 CrPC, directed that the said
Criminal Case No. 381 of 2005 be taken away
from the investigating officer and be entrusted to
the Special Investigating Team ('SIT'). The High
Court also directed the said SIT to
investigate/inquire into other allegations levelled
in the anonymous petition filed against the
appellant-Centre. However, this Court did not
approve the order so passed by the High Court
and in that context, while observing that no
unlimited and arbitrary jurisdiction was conferred
on the High Court under Section 482 CrPC,
explained the circumstances under which the
inherent jurisdiction may be exercised as also the
responsibilities of the investigating officers, inter
alia, in the following words: -
"27. In our view, there is nothing like unlimited
arbitrary jurisdiction conferred on the High Court
under Section 482 of the Code. The power has to
be exercised sparingly, carefully and with caution
only where such exercise is justified by the tests
laid down in the section itself. It is well settled
that Section 482 does not confer any new power
on the High Court but only saves the inherent
power which the Court possessed before the
enactment of the Code. There are three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order 29 under the Code, ( ii ) to
prevent abuse of the process of court, and ( iii) to
otherwise secure the ends of justice.
*** *** ***
39. The sum and substance of the above
deliberation and analysis of the law cited leads
us to an irresistible conclusion that the
investigation of an offence is the field exclusively
reserved for the police officers whose powers in
that field are unfettered so long as the power to
investigate into the cognizable offences is
legitimately exercised in strict compliance with the
provisions under Chapter XII of the Code.
However, we may hasten to add that unfettered
discretion does not mean any unaccountable or
unlimited discretion and act according to one's
own choice. The power to investigate must be
exercised strictly on the condition of which that
power is granted by the Code itself.
40. In our view, the High Court in exercise of
its inherent jurisdiction cannot change the
investigating officer in the midstream and
appoint any agency of its own choice to
investigate into a crime on whatsoever basis
and more particularly on the basis of
complaints or anonymous petitions
addressed to a named Judge. Such
communications cannot be converted into suo
motu proceedings for setting the law in motion.
Neither are the accused nor the complainant or
informant entitled to choose their own
investigating agency to investigate a crime in
which they may be interested.
41. It is altogether a different matter that the High
Court in exercise of its power under Article 226 of
the Constitution of India can always issue
appropriate directions at the instance of an
aggrieved person if the High Court is convinced
that the power of investigation has been exercised
by an investigating officer mala fide. That power
is to be exercised in the rarest of the rare case
where a clear case of abuse of power and
noncompliance with the provisions falling under
Chapter XII of the Code is clearly made out
requiring the interference of the High Court. But
even in such cases, the High Court cannot direct
the police as to how the investigation is to be
conducted but can always insist for the
observance of process as provided for in the
Code."
(emphasis supplied)
12.6. In the case of Madan Mohan (supra), this
Court, of course, reiterated the settled principles
that no superior Court could issue a
direction/mandamus to any subordinate Court
commanding them to pass a particular order but,
the questioned directions had been as regards
dealing with a bail application, which were not
approved by this Court while observing, inter alia,
as under: -
"15. In our considered opinion, the High Court
had no jurisdiction to direct the Sessions Judge to
"allow" the application for grant of bail. Indeed,
once such direction had been issued by the High
Court then what was left for the Sessions Judge
to decide except to follow the directions of the
High Court and grant bail to Respondents 2 and
3. In other words, in compliance to the mandatory
directions issued by the High Court, the Sessions
Judge had no jurisdiction to reject the bail
application but to allow it.
16. No superior court in hierarchical jurisdiction
can issue such direction/mandamus to any
subordinate court commanding them to pass a
particular order on any application filed by any
party. The judicial independence of every court in
passing the orders in cases is well settled. It
cannot be interfered with by any court including
superior court."
12.7. In the case of Neetu Kumar Nagaich
(supra), this Court issued directions for de novo
investigation in regard to the unnatural death of a
law student. We need not elaborate on the said
decision for the fact that such directions were
issued under the writ jurisdiction of this Court."
Thus keeping with the view of the Supreme Court in Romila
Thapar Vs Union of India (Supra), Vinubhai Haribhai Malaviya Vs
The State of Gujarat (Supra), Devendra Nath Singh Vs State of Bihar
& Ors. (Supra), the prayer for changing the investigating agency for the
Second time or for transfer of investigation to an independent
Investigating Agency or for court monitored Investigation cannot be
allowed.
In view of the judgment relied upon, the view of the Supreme
Court is that neither the accused nor the complainant is entitled to
choose their own investigating agency to investigate a crime in which
they may be interested.
In the present case this court finds that the materials on record
vis a vis the charge sheet proves that the investigation has been
conducted in a fair manner and is prima facie not malafide and thus
the charge sheet filed is in accordance with law. Accordingly cognizance
taken is also in accordance with law.
There is thus no scope for interference in respect of the order
under revision. Any further indulgence shown to the
petitioner/complainant would clearly amount to an abuse of the
process of court and law and also be against the interest of justice.
Accordingly, CRR 878 of 2019 along with CRAN 2598 of
2019 are dismissed.
There will be no order as to costs.
All connected Application stand disposed of.
Interim order if any stands vacated.
Let a copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
