Calcutta High Court (Appellete Side)
Jahanara Begum vs The State Of West Bengal & Ors on 9 June, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 2046 of 2019
Jahanara Begum
Vs
The State of West Bengal & Ors.
For the Petitioner : Mr. Satadru Lahiri.
For the State : Mr. S.G. Mukherjee, learned P.P,
Mr. Bidyut Kumar Roy,
Ms. Rita Dutta.
Heard on : 02.05.2023
Judgment on : 09.06.2023
Shampa Dutt (Paul), J.:
1. The present revision has been preferred in respect of S. C Case No.127
of 2018 pending before the learned Assistant Sessions Judge, Bolpur,
corresponding to Bolpur P.S. Case No.67/2018 dated 01.03.2018 and
Charge sheet No.105/2018 there in under Sections 306/34 of the Indian
Penal Code.
2. The petitioner's case is that the petitioner's son Janarul Hasan alias
Intaj was married to the opposite party no.2. Soon after his marriage, the
petitioner found that the opposite party no. 2 used to dislike her son
Janarul Hasan alias Intaj. The opposite party no.2 was also having an illicit
2
relationship with the opposite party no.5, which was the reason for the
marital discord between Janarul Hasan alias Intaj (the victim) and his wife,
the opposite party no.2. Janarul Hasan alias Intaj had a business of selling
fruits in a van. In absence of Janarul Hasan alias Intaj, the opposite party
no.5 used to come to the petitioner's house frequently, despite her objection.
3. That in the evening of February 28, 2018 at about 7.30 O'clock the
opposite party no.2 told the petitioner that her daughter had called her to
Darjipatti. Hearing this, the petitioner came to Bolpur crossing and met
Janarul Hasan alias Intaj and asked him to return home immediately and
after saying so the petitioner went to the house of her daughter at Darjipatti.
4. At about 12 to 12.30 a.m. that night, her elder son's wife Tumpa came
to her daughter's place at Darjipatti and told her that Janarul Hasan alias
Intaj was killed by the opposite party nos. 2 to 5 in a planned manner.
Thereafter the petitioner reached the place of occurrence and found Janarul
Hasan alias Intaj lying on the ground with blood on his neck as well as on
the ground.
5. The Police came to the place of occurrence and took Janarul Hasan
alias Intaj to the Hospital where he was declared, brought dead. The
petitioner then lodged a written complaint with Bolpur Police Station against
the opposite party nos.2 to 5 pursuant to which Bolpur P.S Case
No.67/2018 dated 01.03.2018 under Sections 302/34 of the Indian Penal
Code was started against the opposite party nos. 2 to 5.
6. The Investigating Officer on completion of investigation
submitted charge sheet bearing No.105/2018 dated 29.05.2018 under
Sections 306/34 of the Indian Penal Code against the opposite parties
3
nos. 2 to 5. It is submitted that the aforesaid charge sheet was filed while
the opposite party no.5 was absconding and that the chemical examination
report from the FSL had not even been received by the Investigating Officer
as the same was submitted on October 3, 2018.
7. The petitioner states that the Investigating Agency has not conducted
the investigation in a proper, fair and impartial manner. The investigating
agency has set up a different case against the accused persons in such a
manner that charge against the accused persons are diluted considerably. A
closer look at the charge sheet would show that the investigation has been
done in a motivated manner and no effort has been made to unearth the
truth. The conduct of the police authority and the contents of the said
charge sheet do not instill confidence in the intention and impartiality of the
investigation agency.
8. Mr. Satadru Lahiri, learned counsel for the petitioner has
submitted that it is stated in the charge sheet that the victim Intaj had
committed suicide and whereas the body of the victim was first seen lying on
the ground. The position of the body indicates involvement of other persons
in his death but no investigation has been done on this aspect.
9. There were deep nail marks on the neck of the victim and there was
blood on his body as well as on the ground but no investigation whatsoever
has been done on this aspect.
10. Tumpa Bibi, wife of the petitioner's elder son had seen Pinku Mia
leaving the place of occurrence at around 12O'clock midnight but her
statement was not recorded by the Police authorities.
4
11. The death of the victim was caused at around 12 O'clock in the
midnight and the parents of the accused no.1 i.e. accused nos.2 and 3 were
also present near the place of occurrence as seen by several persons of the
locality. The presence of the accused nos.2 and 3 clearly indicate their
involvement in the death of the victim.
12. Though the investigating officer has stated in the said charge sheet
that final opinion on the actual cause of death was awaited he still observed
that all the accused persons abetted the deceased to commit suicide and
went on to file the said charge sheet under Sections 306/34 of the Indian
Penal Code.
13. In the said charge sheet it is mentioned that Dr. Sudhakar Mondal,
M.O, Bolpur S.D Hospital opined that the death of the victim was caused
due to the effect of hanging but he has not mentioned as to whether the
deceased had hanged himself or was he hanged by somebody else.
14. From the photographs of the deceased taken on that fateful day it can
be ascertained that there was no mark on the neck of the deceased which
would suggest that his death was not caused due to hanging.
15. In the charge sheet there is no mention of the material or thing used
for hanging the deceased.
16. The nylon rope purportedly seized from the place of occurrence was
not sent for forensic examination to ascertain whether the said rope was
used for hanging the deceased or not.
17. The said charge sheet suggests that the investigating officer has
formed his opinion regarding cause of death of the victim being hanging
inasmuch as the police authorities had found a nylon rope at the place of
5
occurrence in rolled up condition under an iron Diwan. The aforesaid fact
clearly indicates that the aforesaid nylon rope was not used for hanging the
deceased or that evidence lying at the place of occurrence had been
tampered with.
18. As per police authorities they had recorded statements of Khaja
Ashmaul Islam, Sk. Jahangir, Chand Sk. And Lal Chand Sk. On March 1,
2018 whereas the truth is that the alleged police officer did not contact the
aforesaid persons/witnesses on March 1, 2018 nor did he record their
statements.
19. As per police authorities and as directed by the Inspector-in-Charge,
Bolpur Police Station they left the police station on March 1, 2018 at 9.15
hours to enquire the case of death of Khaja Janarul Islam after getting
information from Forward Master, Bolpur S.D Hospital and whereas in the
F.I.R it is mentioned that the police authorities had received information
regarding death of Khaja Janarul Islam vide a written complaint filed by the
petitioner on March 1, 2018 at 20.35 hrs and the General Diary entry was
made accordingly which formed the basis of the F.I.R.
20. While submitting the charge sheet it has been stated by the
investigating officer that accused no.4 Pinku Mia was absconding when the
charge sheet was submitted and on receipt of chemical examination report
from FSL, Kolkata a supplementary charge sheet would be submitted. The
accused no.2 Pinku Mia surrendered before the learned Magistrate on July
3, 2018 but he has not been interrogated by the police authorities and no
supplementary charge sheet has been submitted till date.
6
21. It is submitted that the facts and circumstances stated hereinabove
clearly indicate that the investigating agency has been influenced by the
accused persons and the investigating agency has failed to conduct a fair
and complete investigation in the matter. Due to the defective investigation
and consequent charge sheet there is every chance that the accused persons
will not be brought to complete justice.
22. That the investigation agency has failed to conduct a fair and
complete investigation in the matter.
23. That the investigating agency did not get the nylon rope purportedly
seized from the place of occurrence in order to ascertain as to whether the
same had been used for hanging the victim or not.
24. That the investigating agency did not investigate on various aspects of
the case including the real cause of death of the victim, method of causing
death, nail mark on the neck of the victim, blood to name a few.
25. That the said charge sheet is silent on the aspect of conclusiveness of
cause of death of the victim and still the investigating officer opined that the
deceased died by committing suicide.
26. That there is nothing on record to show that the deceased had
committed suicide.
27. That the said charge sheet is outcome of a defective and improper
investigation.
28. That it is expedient in the interest of justice and in order to
unearth the truth the instant case should be investigated by an
independent agency like Central Bureau of Investigation.
7
29. That if the case is not investigated afresh by an independent agency
the culprit who have committed the heinous crime would go scot free due to
defective investigation.
30. The case complained of falls within the ambit of those exceptional
circumstances which warrants further investigation in the case, and from
the record, it is explicit that:-
a) The investigating agency from the inception had made no
endeavour to unearth the truth, rather tried to dilute the offence
and to project the case as an incident of suicide owing to
matrimonial discord.
b) No explanation is forthcoming as to the peculiarities involved in
the subject criminal prosecution.
c) Undue reliance has been placed only on postmortem report,
ignoring inherent anomalies attached to the same.
Cumulative appreciation of all these facts surely makes out a
case of further investigation. The manner in which the investigating
agency expressed its inertia in proceeding with investigation that also
surely makes out a case for transfer of investigation to a speialized
agency like Central Bureau of Investigation.
31. Mr. Lahiri has filed written notes of argument and relied upon the
following judgements in support of the case of the petitioner:-
i. Popular Muthaaih vs State represented by the Inspector of Police,
(2006) 7 SCC 296.
ii. Pooja Pal Vs. Union of India (2016) 3 SCC 135.
8
iii. Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. AIR
2019 SC 5233.
iv. Devendra Nath Singh vs. State of Bihar (2023) 1 SCC (Cri) 270.
v. Debasish Bhattacharjee & Anr. vs. State of West Bengal & Anr.
(2021 SCC Online Kol 2045.
32. Mr. S. G. Mukherjee, learned Public Prosecutor, has placed the
memo of evidence along with the case diary and submitted that the
investigation in this case has been done in accordance with law as it can be
seen from the materials in the case diary. The accuseds have to face trial for
offence under Sections 306/34 of the Indian Penal Code and as such the
present revision is liable to be dismissed.
33. Learned prosecutor has relied upon the following judgments:-
i) Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat &
Anr., reported in (2020) 3 SCC (Cri).
ii) Royden Harold Buthello & Anr. v. State of Chhattisgarh &
Ors. of Supreme Court of India in Criminal Appeal No.634 of 2023
(arising out of SLP (Crl.) No.2454 of 2022).
34. 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
9
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
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
10
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
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)
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.
11
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
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
12
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 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.
13
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 investigation cannot be countenanced,
much less as public interest litigation."
35. The said judgment was referred to by the Supreme Court in
Vinubhai Haribhai Malaviya and Ors. Vs The State of Gujarat and
Anr., 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.
33. ..........................
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.
14
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 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
15
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 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
16
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.
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
17
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]."
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
18
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.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
19
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 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
20
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 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."
36. 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."
37. In the present case, from the materials in the case diary it is seen
that it contains several statements of witnesses, the post mortem report, the
FSL report etc. It is seen from the post mortem report that the injuries on
the deceased prima facie led to the conclusion that the deceased committed
suicide. No poison was also detected in the vicera. The witnesses have all
stated that the victim was unable to take the torture (verbal abuse) by the
accused persons for his poverty and affair of his wife with accused Piku Mia
and that as such he did not want to live.
38. The post mortem report shows that:-
"One oblique non-continue ligature mark high up around
the neck with a gap from left Tiboflux Martoid to angle of the
left mandible. Rope mark present right side."
Charge sheet has been filed for offence under Section 306/34 IPC and
the accuseds shall fall trial for the said charge. Though the petitioner has
prayed for further investigation by another agency on the ground that the
accuseds should face trial for offence under Sections 302/34 IPC there is no
material on record to even prima facie make out on offence punishable
under Section 302/34 IPC against the accused person.
39. 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.
40. 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 further investigation by an independent
Investigating Agency cannot be allowed as the investigation in this case
has been conducted in accordance with law.
41. In view of the judgments 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.
42. 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.
43. Considering the said facts and circumstances allowing the
petitioner's/complainant's prayer for further investigation would clearly
amount to an abuse of the process of court and law and also be against
the interest of justice.
44. CRR 2046 of 2019 is thus dismissed.
45. There will be no order as to costs.
46. All connected Applications stand disposed of.
47. Interim order if any stands vacated.
48. Let a copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
49. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
