Calcutta High Court (Appellete Side)

Najimul Haque vs The State Of West Bengal & Ors on 28 November, 2023

                     IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                             APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)

                            CRR 1054 of 2019

                              Najimul Haque

                                    Vs

                      The State of West Bengal & Ors.



For the Petitioner                       : Mr. Ashis Kr. Chowdhury,
                                           Mr. Rajib Ghosh,
                                           Mr. Babhru Bahan Bera.

For the Opposite Party Nos. 2 & 3        : Ms. Chandreyi Alam,
                                           Ms. Dishari Mukherjee.



For the State                            : Mr. P.K. Datta,
                                           Ms. Rita Datta.




Hearing Concluded on                     : 20.11.2023

Judgment on                              : 28.11.2023
                                        2


Shampa Dutt (Paul), J.:

1. The present revision has been preferred Challenging the impugned order

dated 18.02.2019 G.R. case being no. 4570 of 2018 passed by the

Learned Chief Judicial Magistrate, Malda by not considering the prayer

of the petitioner for investigation through other investigating agency and

not considering the suspicious death of the deceased daughter of the

petitioner.

2. The petitioner/complainant's case is that petitioner's deceased daughter

Najni Khatun aged about 16 years and his son Sk. Miraj age about 13

years were studying in Kaliyachak Abasik Mission. During his deceased

daughter Najni Khatun's stay in Kaliyachak Abasik Mission the

authorities of the Mission did not give an opportunity to the children of

the petitioner to contact with him and the petitioner was also not

permitted to visit his children to collect information regarding their

progress in study.

3. On 28.10.2018 the Assistant Teacher of Kaliyachak Abasik Mission

named Ataur Rahaman told the petitioner over phone to take his son Sk.

Miraj to his house as his son was permitted to take leave due to holidays

and after that the father of the petitioner Faizuddin met the petitioner's

deceased daughter Najni Khatun on 28.10.2018 and Sk. Miraj (brother of

the deceased) was brought to his house by the petitioner's father at

about 7 p.m.

4. On 30.10.2018 at about 7 p.m. the petitioner received a call from an

unknown mobile number and the person introduced himself as a teacher

of Kaliyachak Abasik Mission. The person told the petitioner to come to

Kaliyachak Abasik Mission on 31.10.2018.

5. On 30.10.2018, the petitioner received another call from a student

named Arun Ghosh and he told the petitioner that his daughter Najni

Khatun fell from the rooftop of Kaliyachak Abasik Mission and was

admitted in Malda Medical College. The petitioner sent one Mister Sk, the

resident of Sultanganj and the friend of the petitioner's brother-in-law to

Kaliyachak Abasik Mission to inquire about his deceased daughter Najni

Khatun. The Headmaster of Kaliyachak Abasik Mission Mr. Amirul Islam

told Mister Sk that he made guardian call of Najni Khatun on 30.10.2018

but as her guardian was absent on 30.10.2018, again on 31.10.2018 he

made guardian call of Najni Khatun but on the night of 30.10.2018 he

was informed that Najni Khatun fell from the rooftop of Kaliyachak

Abasik Mission.

6. The petitioner then rushed to the Hospital and found his daughter in

serious condition. She died at Malda Medical College at 10.30 p.m. on

31.10.2018.

7. The complaint was lodged with Kaliachak Police Station, Malda and at

first was received as a General Diary being no. 1414 dated 31.10.2018

letter which was then registered as a F.I.R. being no. 796/18 dated

31.10.2018. On completion of investigation charge sheet was submitted

for offence punishable under Sections 306/34 of the Indian Penal Code.

8. The petitioner states that during investigation, the concerned

Investigation Officer prepared the case Diary in a collusive manner, by

showing the case as suicidal in nature. It is stated that if the daughter of

the petitioner would have fallen from the terrace of a five storied building,

the nature of factures, trauma and injuries all over the body and vital

organs of the body would definitely supports medical science, but the

same violates the principle of medical jurisprudence.

9. It is submitted that the Investigating Officer did not take any legal course

by inviting a Ld. Magistrate to record the dying declaration of the

deceased and the post mortem was conducted by the medical officer

without informing a Magistrate. Even the inquest report was prepared

without the presence of Magistrate.

10. The petitioner along with other witnesses approached the investigating

officer to record their statements under Section 164 Cr.P.C. before the

Magistrate but the investigating officer refused to record their statement

before the Magistrate. The investigating officer did not record his

statement under Section 161 Cr.P.C. Even the investigating officer of the

Kaliachak P.S., Malda neither seized any article nor send any sample of

visera for chemical analysis as well as did not hold any investigation in

presence of a Magistrate and as such the petitioner apprehends that the

mode of action done by the investigating officer of Kaliachak P.S., Malda

is such that the accused persons may be free. The total mode of action

and investigation towards the death of the daughter of the petitioner was

not proper and fair. Even the charge sheet was not submitted within the

prescribed time limit which opened the door of enlarging bail to the

accused persons due to investigating officer's collusive mode of action.

11. That there are sufficient materials as well testimonial evidences of the

eye witnesses to prove the actual offence committed by the accused

persons. The student of the Kaliachak Abasik Mission are the eye

witnesses of the incident whose statements were not taken by the

investigating officer.

12. The petitioner states that due to malicious and vitiated investigation by

the investigating officer the petitioner apprehends that his daughter has

not committed suicide, but she has been murdered by the accused

persons after committing rape upon her and all these aspects have been

suppressed by the investigating officer and the IO of Kaliachak P.S.,

Malda tried to save the accused person by way of ignoring the

circumstantial evidence.

13. Being dissatisfied with the acts and action of the Investigating Officer,

the petitioner filed an application for further reinvestigation. After

hearing, the Learned Chief Judicial Magistrate again directed the

Inspector-in-Charge Kaliachak Police Station to depute a competent

police officer not below the rank of a Sub-Inspector other than the

previous Investigating Officer to do further investigation of the case and

further report without considering the further investigation by any other

agency.

14. Being aggrieved, the present revision has been filed.

15. Written notes of Argument has been filed on behalf of the petitioner,

stating there in that despite the deceased being initially admitted to

Kaliyachak Hospital and later transferred to Malda Medical College, the

investigating agency made no effort to examine the doctors or staff of

either hospital during the course of the investigation.

16. The doctor who examined the victim girl on the very first instance, his

statement has not been recorded by the Investigating Officer and even no

step has been taken by the hospitals authorities where the treatment of

the victim girl was done for recording the dying declaration of the victim

girl, because the incident was not initially informed to the police

authority and the Investigating Officer intentionally neglected to record

the statement of Dr. Tapash Sarkar who examined the victim girl at the

first instance in Kaliachak Hospital.

17. Critical witnesses, including the petitioner and his father, were not

examined by the Investigating Agency. In fact the investigating agency

did not even make an endeavour to record their statements either under

Section 161 of the Code of Criminal Procedure or under Section 164 of

the Code of Criminal Procedure.

18. The investigation appears to have been carried out in a manner that aims

to shield the accused individuals involved, as evident from the failure to

interrogate the school staff, students, and roommates present during the

incident.

19. The post-mortem of the deceased's body was not video graphed, in

violation of directions of the Hon'ble Supreme Court and this Hon'ble

Court. The post-mortem report, which indicates injuries, appears

dubious, as it paradoxically describes the deceased's scalp as healthy

despite the alleged fatal fall from the rooftop (5th floor).

20. The investigating agency failed to obtain the viscera report, a vital piece

of evidence, which could have helped determine the actual cause of Najni

Khatun's death, especially considering the doubts raised about the

accuracy and adequacy of the post-mortem report.

21. It appears from the facts narrated hereinbefore that the present

investigating agency, right from the beginning, has made overt attempts

to shield the accused persons, who happen to hold considerable

influence and clout. Despite the gravity of the case, the investigation

conducted by the Investigating Agency has been lackluster and

inadequate. This approach has resulted in the failure to collect vital

evidence and uncover the true facts surrounding the incident. It thus

appears from the fact narrated herein before that the present

investigating agency from the very beginning tried to shield the accused

persons.

22. That the investigating officer has not done the investigation in a free, fair

and impartial manner.

23. Mr. Ashis Kumar Chowdhury has relied upon the following Judgments

on behalf of the petition:-

 Vinay Tyagi vs Irshad Ali alias Deepak and Ors., (2013) 5

SCC 762.

"43. At this stage, we may also state another well- settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo"

and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

45. The power to order/direct "reinvestigation" or "de novo" investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct "further investigation", or even on the basis of the record of the case and the documents annexed thereto, summon the accused."

 Rubabbuddin Sheikh vs State of Gujarat and Ors., (2010) 2

SCC 200.

"60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge-sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.

61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in court. On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties."

24. Learned counsel for State Mr. P.K. Datta has submitted on placing

the case diary and a written notes of Argument that the Hostel in-

charge, Manjur Basak in her Statement under Section 161 Cr.P.C.

has stated that for the last few days the victim remained very silent

and she was given a guardian call and since the guardian did not

come, Head Sir Amirul Islam, Habibur Rahaman, Ataur Rahaman, Md

Badiruddin, Akbar Hossain verbally abused her for which she

committed suicide.

25. Sehanaz Parveen, Roommate of the Victim Stated that the victim for

the last few days remained silent, as she was given a guardian call.

Since no guardian came, she was verbally abused by Habibur, Amirul,

Ataur, Badiruddin, Akbar Hossain. On 30/10/2018 evening when

Sehanaz went to take food with others, she did not see Najni and later

on heard that Najni jumped from the terrace.

26. The State has further submitted that no one complained that the

victim was murdered or there were any allegations of sexual assault

upon her.

27. It is further state that injuries noted, mainly Hyoid/Thyroid bone

intact rules out any manual strangulation. It is seen from the PM

report that tear of 3rd to 5th ribs of victim, tear of pleura, lungs, spleen

and clotted blood in peritoneal cavity and multiple displace fracture

over them are injuries ante mortem in nature and they show that the

victim jumped herself and committed suicide. Mere transverse

scratches over thighs are not sufficient to infer sexual assault. No

foreign body was also detected. The factum of scalp/vertebrae being

intact would depend in which posture the body fell and thus the

injuries found do not prima facie give rise to the presumption of

commission of murder and not suicide.

28. It is also submitted that Medical evidence rules out sexual assault and

all witnesses have stated that as the victim was verbally assaulted, she

committed suicide.

29. Finally, the Learned Prosecutor has submitted that the case records do

not show that there has been a mala fide investigation and by no

means the said investigation can be said to be unfair, tainted and in

violation of principles of investigative canons. The expert evidence

ruling out any suggestion of sexual assault combined with the factum

that circumstances emanating from evidence would bring the case in

the realm of homicidal/suicidal in nature, the same cannot warrant

that the case be handed over to a different investigating agency

namely Central Bureau of Investigation in light of Judgment of the

Hon'ble Supreme Court in Criminal Appeal No. 624/2023 (ROYDEN

HAROLD BUTHELLO and Another Vs STATE OF CHATTISGARH) as

neither the accused nor the complainant or informant is entitled to

choose their own investigating agency.

30. From the materials on record including the case diary, it appears

that:-

i) Through the brother of the deceased was allowed to go

home on 28.10.2018 during holidays, the deceased was not

allowed to go home.

 There is no investigation on the point that, when the

brother and sister were students of the same school,

why was the sister not allowed to go home with her

brother on 28.10.2018 during the holidays. She died on

30.10.2018 (After two days) in the school hostel.

ii) The Head master of the School told Mister Sk (the person

sent immediately by the victim's father on being informed

over phone) that he made guardian call of Najni Khatun

(Victim) on 30.10.2018 but as her guardian was absent on

30.10.2018, again on 31.10.2018, he made guardian call of

the victim but in the night of 30.10.2018, he was informed

that the victim fell from the rooftop of the School.

 In the total length and breath of the case diary there is

not ever a whisper as to why there was a guardian call.

There is thus no investigation to find out the reason for

the guardian call, as stated.

The said part of investigation is vital as allegedly,

immediately after that the victim fell to her death, who was aged

only 16 years.

These indicate severe laches on the part of the

investigating officer and thus in the investigation.

The reason for scolding the victim on the date of incident

allegedly by the Headmaster and the teachers has also not been

brought on record.

No response, by the victim's parents to a guardian call, is

not a cogent ground to abuse and rebuke the victim as alleged. So

this was also important to be investigated.

More so as this is the only ground put forward by the

investigating agency, for the victim to commit suicide.

iii) The Complainant has stated in his statement under Section

161 Cr.P.C. that his father and victim's grandfather.

Faijuddin had met the victim in the school on 28.10.18.

Faijuddin is one of the closest relative, the

victim last met before her death, but he has not been

examined.

iv) The Height of the five storied building from where the victim

fell is 60 feet.

The postmortem report show's:-

a) The scalp as healthy and intact.

b) Hyoid/thyroid intact.

c) Several injuries including fractures.

d) No examination was conducted to rule out sexual

assault.

e) The (SEVERE) injuries are confined to the chest

area.

31. No opinion as to the nature, extent and location of the injuries has

been taken nor investigated.

32. A girl aged 16 years has died in her own boarding school.

33. The investigation has not been fair nor thorough.

34. The points noted above have not been addressed not investigated

to rule out any foul play.

35. These are required to be investigated.

36. The trial court has directed further investigation by the same agency

as it does not have the power to order further investigation/or

reinvestigation by a different agency (Chandrababu Vs @ Moses vs

State through Inspector of Police & Ors. (2015) 8 SCC 774).

37. In Anant Thanur Karmuse vs. State of Maharashtra, Criminal

Appeal No. 13 of 2023, on 24 February, 2023, the Supreme Court

held:-

"8. Now, so far as the power of the Constitutional Courts to order further investigation / re-investigation / de novo investigation even after the chargesheet is filed and charges are framed is concerned, the following decisions are required to be referred to:- 8.1 In the case of Bharati Tamang (supra), after taking into consideration the decisions of this Court in the case of Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the subsequent decision of this Court in the case of Ram Jethmalani Vs. Union of India (2011) 8 SCC 1 and other decision on the point, ultimately the principles, which are culled out are as under:-

"41. From the various decisions relied upon by the petitioner counsel as well as by respondents' counsel, the following principles can be culled out.

41.1. The test of admissibility of evidence lies in its relevancy.

41.2. Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of even an illegal search or seizure is not liable to be shut out.

41.3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.

41.4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.

41.5. In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution.

41.6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution.

41.7. In appropriate cases even if the charge-sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice.

41.8. In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo." 8.2 In the case of Dharam Pal (supra), after taking into consideration the catena of decisions on the point, it is observed and held that the constitutional courts can direct for further investigation or investigation by some other investigating agency. It is observed that the purpose is, there has to be a fair investigation and a fair trial. It is observed that the fair trial may be quite difficult unless there is a fair investigation. It is further observed and held that the power to order fresh, de novo or re- investigation being vested with the

constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. While observing and holding so, in paragraphs 24 and 25, it is observed and held s under:-

"24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith"

in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation,

should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an "orphan under law"."

38. In State through Central Bureau of Investigation vs. Hemendhra

Reddy etc. etc., in Criminal Appeal Nos. ............. Of 2023 (arising

out of SLP (Crl.) Nos. 7628-7630 of 2017), on 28 April, 2023, held:-

"Difference between "Further Investigation" and "Re- investigation"

51. There is no doubt that "further investigation" and "re- investigation" stand altogether on a different footing. In Ramchandran v. R. Udhayakumar and Others reported in (2008) 5 SCC 413, this Court has explained the fine distinction between the two relying on its earlier decision in K. Chandrasekhar v. State of Kerala and Others reported in (1998) 5 SCC 223. We quote paras 7 and 8 as under:

"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub- section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] . It was, inter alia, observed as follows : (SCC p. 237, para 24) "24. The dictionary meaning of „further‟ (when used as an adjective) is „additional; more; supplemental‟. „Further‟ investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the

investigating agency has to forward to the Magistrate a „further‟ report or reports--and not fresh report or reports-- regarding the „further‟ evidence obtained during such investigation."

8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by CB CID as directed by the High Court." Position of Law on the subject of "Further Investigation"

77. We may summarise our final conclusion as under:

(i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted.

(ii) Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed.

(iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over.

Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.

(v) There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC.

84. In the aforesaid context, we may only say that the general rule of criminal justice is that "a crime never dies". The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi (lapse of time is no bar to Crown in proceeding against offenders). It is settled law that

the criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. (See: Japani Sahoo v. Chandra Sekhar Mohanty reported in (2007) 7 SCC 394.)

85. The following observations in Hasanbhai (supra), have been made by this Court in reference to further investigation:

"13. ....if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. ..."

86. Thus, the assurance of a fair trial is to be the first imperative in the dispensation of justice.

[Reference: Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi reported in (1996) 6 SCC 323]. The need for fair investigation has also been emphasized in Vinay Tyagi (supra) where it was observed as under:

"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. ...."

87. Reference may also be placed on the decision in Pooja Pal v. Union of India and Others reported in (2016) 3 SCC 135, where the fundamental rights enshrined under Article 21 of the Constitution of India were discussed in the context of "speedy trial" juxtaposed to "fair trial" in the following manner:

"83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of

India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.".

(Emphasis supplied)"

39. Further investigation leads to collection of further evidence to unveil

the truth.

40. Re-investigation in addition to collection of further evidence, also has a

second look and fresh assessment of the evidence already on record(case

diary), while submitting a report in final form which in cases of this

nature, is required for a fair and just investigation.

41. The Supreme Court (Majority decision) in Romila Thapar & Ors. Vs

Union of India & Ors., Writ Petition (Criminal) No. 260 of 2018 on

28th September, 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 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 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. 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 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. 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."

42. 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 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 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.

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]."

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.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 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 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."

43. 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 Haribhai

Malaviya Vs The State of Gujarat (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."

44. The Supreme Court in Anant Thanur Karmuse vs. State of

Maharashtra (Supra) has held that further Investigation can be

directed even after filing of charge sheet.

45. CRR 1054 of 2019 is thus allowed.

46. The learned Chief Judicial Magistrate, Malda shall through the

Officer-in-Charge, Kaliachak Police Station hand over the

investigation of Kaliachak P.S. Case No.796/18 dated 31.10.2018

under Sections 306/34 IPC corresponding to G.R. No. 4570 of 2018

pending before the Court of the learned Chief Judicial Magistrate,

Malda for Re-investigation to the CID, WEST BENGAL, within 7

days from the date of receipt of this order. The CID shall submit a

report on reinvestigation keeping in mind the observations made