Karnataka High Court
Xxxxxx vs State Of Karnataka on 28 June, 2023
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.1351 OF 2023 (GM - RES)
BETWEEN:
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... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE FOR
SRI SAMPREETH V., ADVOCATE)
AND:
STATE OF KARNATAKA
BY KORAMANGALA POLICE STATION
BENGALURU - 560 095
REPRESENTED BY
STATE PUBLIC PROSECUTOR / HCGP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
... RESPONDENT
(BY SMT.K.P.YASHODHA, HCGP)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO ISSUE A WRIT OF CERITIORARI AND SET
ASIDE THE ORDER DATED 07.01.2023 IN SPL C NO. 2261/22,
PASSED BY THE FTSC-1, ADDL. CITY CIVIL AND SESSIONS JUDGE,
AT BENGALURU, THEREBY DISMISSING THE APPLICATION FILED
BY THE PETITIONER UNDER SECTION 173 (8) OF CR. P.C SEEKING
DIRECTION TO THE RESPONDENT POLICE TO CONDUCT FURTHER
INVESTIGATION IN CRIME NO. 185/2022 OF THE RESPONDENT
POLICE AND FILE FINAL REPORT, VIDE ANNEXURE-A AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.06.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question order
dated 07-01-2023 passed by the Additional City Civil and Sessions
Judge, FTSC-I, Bengaluru in Special C.C. No.2261 of 2022 rejecting
the application filed by the petitioner under Section 173(8) of the
CrPC and seeks a direction for conduct of further investigation of
the crime.
2. The facts adumbrated are as follows:-
The petitioner is the wife of one Abhinav Lal, accused in
Special C.C. No.2261 of 2022. Accused and the petitioner are
husband and wife. The crime comes to be registered by the de-
facto complainant against the petitioner on 24-08-2022 bringing out
certain grave allegations. It is the case of the complainant that the
accused/husband being sexually perverted was addicted to watch
pornography involving children - 'father daughter and mother-son'.
It is the allegation that in the month of September - October 2020
he would make his four year old daughter stand naked and he
would himself stand naked and bath by touching private parts of
the minor child. It is the allegation that the accused used to insist
the petitioner for sexual intercourse in the presence of the minor
child and when the petitioner opposes, she would be hurled with
blows or abuses between 23-02-2022 and 27-02-2022. It is alleged
that the accused takes the minor daughter to Mangalore for a trip
and again does the same acts there that he was indulging in the
house and appears to have clicked some pictures of the minor child.
3. It is the case of the petitioner that after return from the
trip, the child started behaving differently like the child starts to
stare at the private parts of others including the petitioner and
would insist that the petitioner takes photos of her when she was
bathing. It is averred that it is on the practice developed by the
father/ accused. It appears, the accused gets access to iPad which
the minor daughter was using for her entertainment and used to
load child displaying pornography into it and compelled her to
watch them. It is on these allegations, the wife registers the crime
on 24-08-2022 for offences punishable under Sections 8, 10 & 12 of
the Protection of Children from Sexual Offences Act, 2012 ('the Act'
for short). The Police after investigation filed charge sheet and the
matter stood adjourned to a stage of hearing before charge.
4. The charge sheet was laid before the concerned Court on
22-10-2022 and the concerned Court takes cognizance of the
offence based upon the charge sheet and issued summons. On
12-12-2022 the petitioner makes an application before the
concerned Court under Section 173(8) of the Cr.P.C., seeking a
direction to the respondent/Police - Investigating Officer for further
investigation. The learned Sessions Judge dismisses the application
seeking further investigation. It is the dismissal of the said
application filed by the petitioner is what drives the petitioner to
this Court in the subject writ petition.
5. Heard Sri Sandesh J.Chouta, learned senior counsel
appearing for the petitioner and Smt. K.P. Yashodha, learned High
Court Government Pleader appearing for the respondent.
6. The learned senior counsel would take this Court through
the contents of the charge sheet to demonstrate the lacunae in
investigation. To buttress his submission that it is a shoddy
investigation conducted by the Investigating Officer, he has quoted
several instances which ought to have been part of the charge
sheet but are deliberately missing and, therefore, the case requires
further investigation. Though the pleading is only with regard to
further investigation, the learned senior counsel emphasizes on the
fact that it should be by a different Investigating Officer.
7. On the other hand, the learned High Court Government
Pleader would, though seek to support the investigation conducted
and the charge sheet so filed by the Police before the concerned
Court, submit that if this Court would direct further investigation,
the same would be carried out in accordance with law.
8. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
9. The afore-narrated facts are not in dispute and they would
not require any reiteration. The learned senior counsel has sought
to quote several instances as to why the case would require further
investigation into the matter. Certain dates need reiteration. On
24-08-2022 a crime comes to be registered by the wife against the
husband for offences punishable under Sections 8, 10 and 12 of the
Act. The accused was arrested on 23-09-2022 at 10.15 a.m. and
was produced before the concerned Court at 4.30 p.m. The Police
never sought custodial interrogation of the husband
notwithstanding the heinous offences narrated. After about three
weeks, charge sheet is also filed by the Police. On the ground that
the charge sheet is filed, the accused was enlarged on bail. The
aforesaid dates would indicate that investigation is conducted in a
mortal hurry only to file a charge sheet before the concerned Court.
The aforesaid is not the only circumstance that would merit
consideration of the plea of the petitioner for further investigation.
The summary of the charge sheet as filed against the accused reads
as follows:
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At the stage of hearing before the charge, the petitioner files an
application before the concerned Court under Section 173(8) of the
Cr.P.C. seeking further investigation. The application narrates
minute details which have gone missing in the charge sheet or the
documents appended to the charge sheet. The concerned Court
rejects the application filed by the petitioner seeking further
investigation under Section 173(8). The reason for rejection reads
as follows:
".... .... ....
10. No doubt it is true that, this court being a
Special Court if power of Magistrate and also a Sessions
Judge also has a power to direct further investigation in
any criminal case under Sec.173(8) of Cr.P.C but, if we
peruse the grounds urged in the application filed by the
complainant, many grounds urged by the de-facto
complainant seeking further investigation are time barred
one. De-facto complainant has alleged that, when the
accused was produced before the court Investigating
Officer ought to have taken him for police custody which
he did not done. In my opinion to take the accused for
police custody or not is a prerogative right and discretion
of the Investigating Officer and no other person has got
any right to force the Investigating Officer to take the
accused for police custody in a criminal case. In a
criminal case, Investigating Officer is the competent
person to decide whether to take the accused for police
custody to hold any further in investigation in the
presence of the accused. Hence, this ground taken by the
de-facto complainant cannot be considered by this court.
Secondly, complainant has alleged that, accused being
her husband was having 2 mobile phones and a laptop
through which he used to access porn websites and was
also making the child to see the same and those mobile
phones and laptops have not been seized by the police.
As I said earlier, investigation is the prerogative of the
Investigating Officer and he is the competitive person
either to seize the articles or to decide whether they are
not necessary for his investigation. Apart from this, it is
only a statement of the complainant that, accused was
having 2 other mobile phones and a laptop through which
he was accessing to porn websites and merely on her
statements no Investigating Officer can go through
further investigation to seize the articles in respect of
which there are no proofs. Coming to the other aspects
regarding production of incomplete statement of Victim
recorded under Sec.161 Cr.P.C., again I would like to say
Investigating Officer is the competent authority to record
the statement of the Victim under Sec.161 Cr.P.C. in the
manner prescribed under law and not according to whims
and fancies of either Victim or the de-facto complainant.
Any how, during the course of trial, court will observe
these facts and also regarding the video recording done
while recording the statement of the Victim. Further,
regarding production of incomplete medical record of the
Victim, I would like to say that, in every case registered
under POCSO Act, 2012 the Doctor who examines the
Victim shall conduct medical examination of the child in
accordance with the guidelines issued by the Central
Government and no Doctors shall be expected to give
report as per the whims and fancies of Victim and her
parents. Coming to the question of report of psychologist
which according to complainant is an incomplete one,
during the trial court will have every power to venture
into that and it is for he prosecution to prove those
documents during the trial.
11. In view of the above discussions and also upon
considering the provisions of Sec.40 of POCSO Act, 2012 and
Sec.301 of Cr.P.C., I am of the opinion that, no doubt Victim
has got every right to participate in each stage of the trial but,
at the same time, neither the Victim nor her parents have got
prerogative rights over the Public Prosecutor. It may be true
that, Sec.40 of the POCSO Act, 2012 provides right to Victim to
appoint a counsel on her behalf who can act only in accordance
with proviso to Sec.301 Cr.P.C. and it should not be forgotten
that, a person who files an application under Sec.301 Cr.P.C.
can himself or herself act as an another Public Prosecutor as in
any case court cannot entertain 2 Public Prosecutors in a case.
In the present case also, the counsel who appearing for Victim
by filing the present application superseding the Public
Prosecutor seems to be acting like a Public Prosecutor himself
which is not permissible under Sec.301 Cr.P.C. He may have
every right to appear and participate in the trial and can file his
written arguments after the evidence of prosecution is closed
but, under Sec.301 Cr.P.C. neither the Victim nor her counsel
will get right to file any application in a trial or enquiry.
Accordingly, I answer Point No.1 in the "Negative."
(Emphasis added)
Afore-quoted is the reason rendered by the concerned Court to
reject the application. The reason is that the petitioner has no right
to file an application superseding the Public Prosecutor for further
investigation. According to the Court, it was the victim who is
superseding the Public Prosecutor and acting like a Public
Prosecutor which is not permissible under Section 301 of the
Cr.P.C., It is, therefore, this Court has sought to consider the
grounds on which the petitioner is now seeking further
investigation. According to the petitioner several incriminating
material circumstances against the accused are not forthcoming in
the charge sheet filed on 17-10-2022. A perusal of the narration
would indicate nine rungs of lacunae in the investigation. I deem it
appropriate to succinctly narrate them.
10. A statement of the victim was video recorded as obtaining
under Section 26(4) of the Act. The statement of the victim clearly
named the accused. This very statement which forms the fulcrum of
the allegation is not part of the charge sheet. The video was
recorded on 24-08-2022. This is the first rung of lacuna in the
charge sheet. A statement of the child under Section 161 Cr.P.C.,
was recorded on 25-08-2022. It contains only a brief account of
what was stated by the child. The Investigating Officer has
deliberately ignored incriminating material against the accused as a
truncated statement under Section 161 Cr.P.C., forms part of the
charge sheet. This is the second rung of lacuna. The investigating
Officer though collects a report of medical examination of the victim
from St. John's Hospital it is not made a part of the charge sheet.
The report was in the nature of questions put by the Doctor and
answers given by the child. It is the case of the petitioner that the
child has categorically stated before the Doctor that her
father/accused would touch her in the private parts and behaved
inappropriately with her. This is not a part of the charge sheet. This
is the third rung of lacuna. The Investigating Officer has not
recorded or conducted enquiry with the petitioner as to whether
there was any proof to substantiate the allegations made in the
complaint which became a crime. This ought to have been done, as
it was the duty of the petitioner to substantiate the allegations
made in the complaint. The further statement of the complainant
was not even recorded. This is the fourth rung of lacuna.
11. The Investigating Officer was made aware that child
pornography and nude photos of the child were in the laptop of the
accused and he was using two mobile phones for the said purpose.
Neither the laptop nor the mobile phones are even seized by the
Investigating Officer. Though the complaint contained minute
details as to the laptop and the mobile phones, no inquiry is made
by the Investigating Officer with regard to those electronic devices.
This is the fifth rung. The petitioner had handed over iPad of the
child to the Investigating Officer containing incriminating materials
including browsing history and log in access which was riddled by
the accused. The iPad had contained all sensitive information
pertaining to the victim and clearly against the accused. The iPad is
not produced before the trial Court nor is a part of the charge
sheet. What is to be observed is, the Investigating Officer has sent
the iPad to the FSL and the FSL report is yet to come about, but the
charge sheet is filed. This is the sixth rung.
12. In the teeth of the aforesaid allegations, it was the duty
of the Investigating Officer to have sought the locations of laptop
and the mobiles from where the accused had access to child
pornography and sensitive materials pertaining to the victim. This
is not a part of the charge sheet. This is the seventh rung. The
Investigating Officer has neither conducted any inquiry nor
recorded the statement of any other witnesses who are important,
like the maternal grandparents and other relatives who were aware
of the pervert attitude of the husband. This ought to have been
done by the Investigating Officer, as it was the allegation in the
complaint that all of them knew about it. This is the eighth rung.
The Psychologist one Ms. Poorvasha Mathur who had given a
detailed report about the case details of how the child was
tormented is not made a part of the charge sheet, which would
answer vital questions of child's psychological impact of such
incidences. This is the ninth rung.
13. The aforesaid nine rungs of lacunae are the emphatic
submissions of the learned senior counsel about the shoddy
investigation conducted by the Investigating Officer only to help the
accused, they are not made in thin air, but on incriminating
documents. On a perusal at the charge sheet and the documents
appended to the charge sheet, all the aforesaid lacunae, prima facie
are correct. All the nine rungs which are in the considered view of
the Court vital piece of evidence have been deliberately let off by
the Investigating Officer. If this would not form the ingredients of a
shoddy investigation, I fail to understand as to what would. The
concerned Court ought to have looked into the material that was
brought before it and not reject the application on the ground that
the petitioner wants to become a Public Prosecutor by filing an
application for further investigation under Section 173(8) of the
Cr.P.C. In the teeth of the aforesaid facts and on a deeper delving
into the matter, the Court having suo motu powers ought to have
borne in mind that a fair trial required further investigation and
allowed the application. The order passed by the concerned Court
is, thus unsustainable and requires to be obliterated.
14. In the aforesaid facts, I deem it appropriate to notice the
law laid by the Apex Court in cases which would require further
investigation in the teeth of contents of a shoddy investigation. The
Apex Court in the case of DAYAL SINGH AND OTHERS v. STATE
OF UTTARANCHAL1 has held as follows:
".... .... ....
21. The investigating officer, as well as the doctor who
are dealing with the investigation of a criminal case, are obliged
to act in accordance with the Police Manual and the known
canons of medical practice, respectively. They are both obliged
to be diligent, truthful and fair in their approach and
investigation. A default or breach of duty, intentionally or
otherwise, can sometimes prove fatal to the case of the
prosecution. An investigating officer is completely responsible
and answerable for the manner and methodology adopted in
completing his investigation. Where the default and omission is
so flagrant that it speaks volumes of a deliberate act or such
irresponsible attitude of investigation, no court can afford to
overlook it, whether it did or did not cause prejudice to the case
of the prosecution. It is possible that despite such
default/omission, the prosecution may still prove its case
beyond reasonable doubt and the court can so return its
finding. But, at the same time, the default and omission
would have a reasonable chance of defeating the case of
the prosecution in some events and the guilty could go
(2012) 8 SCC 263
scot-free. We may illustrate such kind of investigation
with an example where a huge recovery of opium or
poppy husk is made from a vehicle and the investigating
officer does not even investigate or make an attempt to
find out as to who is the registered owner of the vehicle
and whether such owner was involved in the commission
of the crime or not. Instead, he merely apprehends a
cleaner and projects him as the principal offender
without even reference to the registered owner.
Apparently, it would prima facie be difficult to believe
that a cleaner of a truck would have the capacity to buy
and be the owner, in possession of such a huge quantity
i.e. hundreds of bags of poppy husk. The investigation
projects the poor cleaner as the principal offender in the
case without even reference to the registered owner.
.... .... ....
39. The Indian law on expert evidence does not proceed
on any significantly different footing. The skill and experience of
an expert is the ethos of his opinion, which itself should be
reasoned and convincing. Not to say that no other view would
be possible, but if the view of the expert has to find due
weightage in the mind of the court, it has to be well authored
and convincing. Dr C.N. Tewari was expected to prepare the
post-mortem report with appropriate reasoning and not leave
everything to the imagination of the Court. He created a serious
doubt as to the very cause of death of the deceased. His report
apparently shows an absence of skill and experience and was, in
fact, a deliberate attempt to disguise the investigation.
40. We really need not reiterate various judgments which
have taken the view that the purpose of an expert opinion is
primarily to assist the court in arriving at a final conclusion.
Such report is not binding upon the court. The court is expected
to analyse the report, read it in conjunction with the other
evidence on record and then form its final opinion as to whether
such report is worthy of reliance or not. Just to illustrate this
point of view, in a given case, there may be two diametrically
contradictory opinions of handwriting experts and both the
opinions may be well reasoned. In such case, the court has to
critically examine the basis, reasoning, approach and experience
of the expert to come to a conclusion as to which of the two
reports can be safely relied upon by the court. The assistance
and value of expert opinion is indisputable, but there can be
reports which are, ex facie, incorrect or deliberately so distorted
as to render the entire prosecution case unbelievable. But if
such eyewitnesses and other prosecution evidence are
trustworthy, have credence and are consistent with the eye-
version given by the eyewitnesses, the court will be well within
its jurisdiction to discard the expert opinion. An expert report,
duly proved, has its evidentiary value but such appreciation has
to be within the limitations prescribed and with careful
examination by the court. A complete contradiction or
inconsistency between the medical evidence and the ocular
evidence on the one hand and the statement of the prosecution
witnesses between themselves on the other, may result in
seriously denting the case of the prosecution in its entirety but
not otherwise."
(Emphasis supplied)
Later, the Apex Court in the case of POOJA PAL v. UNION OF
INDIA AND OTEHRS2 has held as follows:
"..........."
"24. Be that as it may, the High Court eventually by the
impugned judgment and order [Pooja Pal v. Union of India, 2014
SCC OnLine All 6350] has dismissed the writ petition. It held the
view that if the appellant was not satisfied with the charge-sheet
submitted by the Civil Police as well as CB-CID and the materials
collected by these two agencies in course of their separate and
independent investigation, and is also of the view that further
investigation was required, or that some additional evidence was to
be collected, she was at liberty to file an application before the
Magistrate concerned to that effect so as to enable the trial court to
pass appropriate orders thereon. It further held that so far as the
adduction of additional evidence was concerned, the appellant
would have every opportunity to produce the same or ask there for
also by making an appropriate application at the time of trial.
(2016) 3 SCC 135
... ... ... ...
64. The content and scope of the power under Article 226 of
the Constitution of India to direct investigation by CBI in a
cognizable offence, alleged to have taken place within the territorial
jurisdiction of the State, without the consent of the State
Government fell for scrutiny of this Court in Committee for
Protection of Democratic Rights [State of W.B. v. Committee for
Protection of Democratic Rights, (2010) 3 SCC 571: (2010) 2 SCC
(Cri) 401]. While examining the issue in the context of the power of
judicial review as embedded in the constitutional scheme, it was
held that no Act of Parliament could exclude or curtail the powers of
the constitutional courts in that regard. Reiterating, that the power
of judicial review is an integral part of the basic structure of the
Constitution, it was underlined that the same was essential to give
a pragmatic content to the objectives of the Constitution embodied
in Part III and other parts thereof. In elaboration, it was held that
Article 21 of the Constitution not only takes within its fold, the
enforcement of the rights of the accused but also the rights of the
deceased. It was predicated that the State has a duty to enforce
the human rights of the citizens providing for fair and impartial
investigation, against any person accused of commission of any
cognizable offence.
... ... ... ...
67. In Bharati Tamang case [Bharati Tamang v. Union of
India, (2013) 15 SCC 578: (2014) 6 SCC (Cri) 566] on behalf of
the appellant, accusation of tardy prosecution of the case, and free
and open movement of the key accused persons in the city
avoiding arrest were made as well. The plea of the impleaded
accused persons that the appellant after the demise of her husband
had initiated the writ proceedings for political gain was rejected.
Their contention based on Section 319 of the Code that in course of
the trial, on availability of sufficient evidence, any person not being
an accused could be ordered to be tried, was also negated. The
propositions expounded in Zahira Habibulla H. Sheikh [Zahira
Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004
SCC (Cri) 999] qua the duty of the court to ensure fair investigation
by remedying the deficiencies and defaults therein so as to bring
forth full and material facts to prevent miscarriage of justice were
reiterated. It was concluded that when the courts find
extraordinary or exceptional circumstances rendering
reinvestigation imperative, in such eventualities even de
novo investigation can be ordered. While ruling that in case
of discernible deficiency in investigation or prosecution, the
courts have to deal with the same with iron hand
appropriately within the framework of law, it was underlined
that in appropriate cases, even if charge-sheet was filed, it
was open for the High Court and also this Court to direct
investigation of the case to be handed over to CBI or to any
other agency or to direct investigation de novo in order to
do complete justice, in the facts of the case.
... ... ... ...
69. This Court in Babubhai [Babubhai v. State of Gujarat,
(2010) 12 SCC 254: (2011) 1 SCC (Cri) 336] while examining the
scope of Section 173(8) of the Code, did recall its observations
in Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State
(NCT of Delhi), (2010) 6 SCC 1: (2010) 2 SCC (Cri) 1385] that it is
not only the responsibility of the investigating agency but as well as
of the courts to ensure that investigation is fair and does not in any
way hamper the freedom of an individual except in accordance with
law. It underlined that the equally enforceable canon of criminal
law is that high responsibility lies upon the investigating agency,
not to conduct an investigation in a tainted and unfair manner and
that such a drill should not, prima facie, be indicative of a biased
mind and every effort should be made to bring the guilty to law
dehors his position and influence in the society as nobody stands
above law. It propounded that the word "ordinarily" applied
under Section 173(8) of the Code, did attest that if the
investigation is unfair and deliberately incomplete and has
been done in a manner with an object of helping a party, the
court may direct normally for further investigation, and not
for reinvestigation. It was, however, added as a sequitur
that in exceptional circumstances, the court in order to
prevent the miscarriage of criminal justice, and if it is
considered necessary, may direct for de novo investigation
as well. It was observed that if an investigation has not
been conducted fairly, the resultant charge-sheet would be
invalid. It was held as well that such investigation would
ultimately prove to be a precursor of miscarriage of criminal
justice and the court in such a contingency would be left to
guess or conjecture, as the whole truth would not be
forthcoming to it. It was held that fair investigation is a part
of the constitutional rights guaranteed under Articles 20 and
21 of the Constitution of India and thus, the investigating
agency cannot be permitted to conduct an investigation in a
tainted or biased manner. It was emphasised that where non-
interference of the court would ultimately result in failure of justice,
the court must interfere and in the interest of justice choose an
independent agency to make a fresh investigation.
... ... ... ...
87. Any criminal offence is one against the society at large
casting an onerous responsibility on the State, as the guardian and
purveyor of human rights and protector of law to discharge its
sacrosanct role responsibly and committedly, always accountable to
the law-abiding citizenry for any lapse. The power of the
constitutional courts to direct further investigation or
reinvestigation is a dynamic component of its jurisdiction to
exercise judicial review, a basic feature of the Constitution and
though has to be exercised with due care and caution and informed
with self-imposed restraint, the plenitude and content thereof can
neither be enervated nor moderated by any legislation.
88. The expression "fair and proper investigation" in criminal
jurisprudence was held by this Court in Vinay Tyagi v. Irshad
Ali [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762:(2013) 4 SCC (Cri)
557] to encompass two imperatives; firstly, the investigation must
be unbiased, honest, just and in accordance with law; and
secondly, the entire emphasis has to be to bring out the truth of
the case before the court of competent jurisdiction."
(Emphasis supplied)
The Apex Court following the aforesaid judgments, in the case of
ANANT THANUR KARMUSE v. STATE OF MAHARASHTRA AND
OTHERS3 has held as follows:
".... .... ....
2023 SCC OnLine SC 180
36. Now, so far as the power of the constitutional
courts to order further investigation/reinvestigation/de
novo investigation even after the charge-sheet is filed
and charges are framed is concerned, the following
decisions are required to be referred to.
37. In Bharati Tamang [Bharati Tamang v. Union of
India, (2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] , after
taking into consideration the decisions of this Court in Babubhai
v. State of Gujarat [Babubhai v. State of Gujarat, (2010) 12
SCC 254 : (2011) 1 SCC (Cri) 336] , paras 40 and 42 and the
subsequent decision of this Court in Ram Jethmalani v. Union of
India [Ram Jethmalani v. Union of India, (2011) 8 SCC 1 :
(2011) 3 SCC (Cri) 310] and other decision on the point,
ultimately the principles, which are culled out are as under :
(Bharati Tamang case [Bharati Tamang v. Union of India,
(2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] , SCC p. 597,
para 41)
"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."
".... .... ....
39. While observing and holding so in Dharam Pal
[Dharam Pal v. State of Haryana, (2016) 4 SCC 160 : (2016) 2
SCC (Cri) 259] , in paras 24 and 25, it is observed and held as
under : (SCC pp. 170-71)
"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 taste, the taste of salt, so does justice have 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"."
.... .... ....
41. Now, so far as the reliance placed upon the
decision of this Court in Rama Chaudhary [Rama
Chaudhary v. State of Bihar, (2009) 6 SCC 346 : (2009) 2
SCC (Cri) 1059] relied upon on behalf of the respondent-
accused is concerned, it is required to be noted that in
the said decision, this Court was considering the scope of
Sections 173(8) and 173(8)(2)CrPC and the right of the
police to "further investigation". It is observed that the
police has no right for "fresh investigation" or
"reinvestigation". However, this Court had no occasion to
consider the powers of the constitutional courts, which
are dealt with and considered in Bharati Tamang [Bharati
Tamang v. Union of India, (2013) 15 SCC 578 : (2014) 6
SCC (Cri) 566] and Dharam Pal [Dharam Pal v. State of
Haryana, (2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259] .
.... .... ....
43. Applying the law laid down by this Court in the
aforesaid decisions and the principle of law laid down
hereinabove, it is required to be considered whether a
case is made out for further investigation/fresh
investigation/reinvestigation/de novo investigation or
not.
44. It is required to be noted that in the present case, the
allegations in the FIR, right from very beginning, were against
Accused 13, who at the relevant time was the sitting Cabinet
Minister occupying the high position. Even at the relevant time,
when the State Police investigated the FIR bearing No. 120 of
2020, in the first charge-sheet and the second charge-sheet did
not name Accused 13. Even the investigation was also
conducted in a perfunctory manner. The real investigation
started only after the intervention of the High Court and after
passing various orders in the present proceedings by the High
Court. The allegations in the FIR were very serious including the
misuse of powers by the sitting Cabinet Minister and of
abducting, kidnapping and beating the complainant.
.... .... ....
48. Be that as it may, even according to the State
investigating agency, the further investigation is required. As
observed and held by this Court in the aforesaid decisions, the
victim has a fundamental right of fair investigation and fair trial.
Therefore, mere filing of the charge-sheet and framing of the
charges cannot be an impediment in ordering further
investigation/reinvestigation/de novo investigation, if the facts
so warrant.
49. Now, so far as the submission on behalf of the
accused that earlier the State through the learned AG opposed
the writ petition and submitted that there was a fair
investigation and now with the change in power, the State
agency has changed its stand is concerned, the courts are not
concerned with the stand taken by the State at the relevant
time and now. Suffice it to say that at the relevant time when
the State Police agency took a particular stand, Accused 13 was
in power and sitting Minister. The facts narrated hereinabove
would suggest the manner in which the earlier investigation was
caried out and that Accused 13 was only charge-sheeted in the
second supplementary charge-sheet in the month of March 2022
and not prior to that when the first charge-sheet was filed, the
supplementary charge-sheet was filed and even when the
charges against the other accused were framed. The endeavour
of the Court should be to have the fair investigation and fair trial
only. Therefore, in the facts and circumstances of the case
narrated hereinabove, we are of the opinion that a case is
made out for further investigation and the State agency
may be permitted to conduct a further investigation and
to bring on record the further material, which may be in
the furtherance of fair investigation and fair trial. The
High Court has committed a very serious error in not
ordering and/or permitting the State Police agency to
further investigate into the FIRs bearing Nos. 119 and
120 of 2020. The High Court has not considered the
relevant aspects narrated hereinabove and therefore
interference of this Court is warranted.
50. In view of the above and for the reasons stated
above, the present appeal succeeds in part. The
impugned judgment and order [Anant Thanur Karmuse v.
State of Maharashtra, 2022 SCC OnLine Bom 9405]
passed by the High Court refusing to transfer the
investigation of FIR No. 120 of 2020 to CBI is hereby
confirmed. The impugned judgment and order [Anant
Thanur Karmuse v. State of Maharashtra, 2022 SCC
OnLine Bom 9405] passed by the High Court refusing to
order further investigation/reinvestigation is hereby
quashed and set aside and we direct/permit the State
investigating agency to further investigate into the FIR
bearing No. 120 of 2020 and on what aspects the further
investigation shall be caried out is left to the wisdom of
the State investigating agency. Further investigation be
carried out and completed as early as possible, preferably
within a period of three months from the date of receipt
of the present order and the further supplementary
report be placed before the learned Magistrate in the
trial/before the trial court concerned thereafter
forthwith, which may be considered by the trial court in
accordance with law and on its own merits and the
accused be tried accordingly and in accordance with law
and on merits."
(Emphasis supplied)
Later, the Apex Court in the case of STATE THROUGH CBI v.
HEMENDHRA REDDY AND ANOTHER4 has held as follows:
".... .... ....
52. Thus, even where chargesheet or Challan has been
filed by the police under sub section (2) of Section 173 of the
2023 SCC OnLine SC 515
CrPC, the police can undertake further investigation in respect
of an offence under sub section (8) of Section 173 of the CrPC.
(Reference : Article titled "Different Aspects of Section 173(8) of
the CrPC" by D. Nageswara Rao, Prl. JCJ, Manthani.)
What is the meaning of the term "Further Investigation"?
53. In Rama Chaudhary v. State of Bihar reported in
(2009) 6 SCC 346, this Court held that, "further investigation
within the meaning of provision of Section 173(8) CrPC is
additional; more; or 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."
.... .... ....
83. 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.
ONE DISTURBING PART OF THE PRESENT
LITIGATION
84. While recording the facts in the earlier part of our
judgment, we have made reference of the order passed by a
Co-ordinate Bench of the High Court dated 11.09.2014 in Crl.
O.P. No. 6371 of 2014. All legal issues which we have discussed
in the present judgment were looked into by the High Court and
by a reasoned order, the High Court took the view that it was
permissible for the CBI to undertake further investigation and
the objections raised on behalf of the accused were not
sustainable in law. We quote some of the relevant observations
made by the High Court in its order dated 11.09.2014:
"5. In my opinion, on the facts and circumstances of the
instant case, the above said decisions are of no help to the
petitioner. In the aforesaid decisions, the well settled
principle is restated that Section 173(8) of Cr. P.C. enables
an officer in charge of a Police Station/CBI to carry on
further investigation even after a report under Section
173(2) of Cr. P.C. is submitted to the court. The power to
further investigation, after filing of final report in court and
even after the Magistrate has taken cognizance, is available
to the Police in view of the Section 173(8) of Cr. P.C.
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. This is well settled in the decision
of the Hon'ble Supreme Court reported in (2013) 5 SCC
762 (Tyagi v. Irshad Ali). The only rider is provided is that
it would be desirable that the Police should inform the
Court and seek formal permission to make further
investigation as observed in Bhagwan Samardha Sreepada
Vallabha Venkata Vishwadaha Maharaj v. State of AP
((1999) 5 SCC 740 : AIR 1999 SC 2332).
6. Although sub section (8) of Section 173 of Cr.
P.C. does not, in specific terms, mention about the
powers of the court to order further investigation,
the power of the police to conduct further
investigation envisaged therein can be triggered into
motion at the instance of the court. Therefore,
acceptance of final report by Magistrate does not
debar him from taking cognizance of the offence if no
further investigation fresh materials come to light. In
such a situation, the power of the court to direct the
police to conduct further investigation cannot have
any inhibition. There is nothing in Section 173(8) of
Cr. P.C. to suggest that the court is obliged to hear
the accused before any such direction is made.
7. In the instant case, in the counter filed by the
Respondent/CBI, it is specifically stated that in the year
2013, CBI received certain information/materials
warranting reopening of the investigation. Accordingly, the
Inspector of Police, CBI/ACB has filed a petition in Crl. M.P.
No. 3833/2013 in respect of the same First Information
Report, stating that the prosecution is in possession of new
evidence to substantiate the allegation of possession of
disproportionate assets to the known sources of income
against the accused persons. The said petition has been
allowed by the learned Principal Special Judge for CBI
Cases, permitting further investigation.
8. In so far as the power of the Magistrate to
direct further investigation is concerned, I may point
out her that the power of the Magistrate under
Section 156(3) of the code to direct further
investigation is clearly an independent power and
does not stand in conflict with the power of the
Police Officer. The power conferred upon the
Magistrate under Section 156(3) of the code can be
exercised by the Magistrate even after submission of
a report by the Investigating Officer, which would
mean that it would be open to the Magistrate not to
accept the conclusion of the Investigating Officer and
direct further investigation. This provision does not,
in any way, affect the power of the Investigating
Officer to further investigate the case even after
submission of the report as provided in sub section
(8) of Section 173 of the Code. Therefore,
considering all these provisions, in my view, the
Magistrate can order reopening of the investigation
even after acceptance of the final report "making
closure report".
9. In the instant case, the learned Principal
Special Judge for CBI Cases has passed the impugned
order on the petition filed by the Investigating
Officer, Inspector, CBI/ACB. It is now clear that sub
section (8) of section 173 of Cr. P.C. gives power to
the Investigating Officer to reopen the investigation
in the case in which final report had been submitted
earlier and after completing the investigation fresh
report has to be submitted before the learned Special
Judge under sub section (2) of Section 173 of the
Code. Of course, this can be done only on such fresh
materials which did not come to the knowledge of
the Investigating Officer, while he was conducting
the investigation and in my view, exactly the same
situation prevailed in this case.
11. The same view has also been taken in the decision
of the Hon'ble Supreme Court in State of Rajasthan v.
Aruna Devi (1995 SCC (Cri) 1) wherein it was held that
acceptance of final report by Magistrate does not debar him
from taking cognizance of the offence if on further
investigation fresh materials come to light.
12. Mr. N. Chandrasekaran, the learned Special Public
Prosecutor has contended that there is no legal bar to the
reopening of the investigation of any case in which closure
report has been submitted if there are sufficient, cogent
fresh materials to proceed against the accused persons. I
find all force in his submissions. Having considered the rival
contentions of both the parties, I am of the opinion that in
view of the facts that the Inspector CBI/ACB has collected
some fresh materials connected with this case, which were
not available to the Investigating Officer earlier, it cannot
be said that the learned Principal Special Judge for CBI
cases had acted beyond its jurisdiction by ordering
reopening of the investigation of the case.
13. For the reasons stated above, I find full force in the
contentions raised by the learned Special Public Prosecutor
for CBI Cases. I, therefore, do not find any illegality in the
impugned order which warrants any interference by this
court."
(Emphasis supplied)"
In the light of the aforesaid judgments of the Apex Court what is
required to be noticed is, whether fair trial would require further
investigation. The Apex Court has clearly deduced certain
conclusions for grant of permission to further investigation in the
case of HEMENDHRA REDDY (supra) where the Apex Court holds
that 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; prior to carrying out further
investigation it is not necessary that the order accepting the final
report should be reviewed, recalled or quashed. Further
investigation is only a continuation of the earlier investigation and
the accused in such case need not be heard.
15. On the bedrock of the principles laid down by the Apex
Court in the aforesaid judgments and the lacunae that is projected
by the petitioner and accepted in the course of the order, it would
lead to an unmistakable conclusion that the case at hand requires
further investigation. At whose hands is the question? The
Investigating Officer right from the beginning, as is projected by the
petitioner, appears to have been partisan towards the accused.
Therefore, it would not be safe for this Court to direct further
investigation to be conducted by the very Investigating Officer.
Hence, further investigation shall be conducted by a different
Investigating Officer to be nominated by the Commissioner of Police
or any Competent Authority empowered to appoint the
Investigating Officer and the Investigating Officer shall conclude
further investigation within three months from the date of
entrustment of such investigation, while further investigating, the
Investigating Officer shall bear in mind the observations made in
the course of the order.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ petition is allowed and the order dated 07-01-2023
passed by the Additional City Civil and Sessions Judge,
FTSC-I, Bengaluru in Special Case No.2261 of 2022
stands quashed.
(ii) A mandamus issues to the respondent for conduct of
further investigation as obtaining under Section 173(8)
of the Cr.P.C., Such further investigation shall be
entrusted to a different Investigating Officer other than
the one who has now investigated into the crime and
filed the charge sheet.
(iii) Such Investigating Officer shall be nominated/
appointed by the Commissioner of Police/Competent
Authority within 15 days from the date of receipt of a
copy of this order.
(iv) The Investigating Officer, so appointed, shall conclude
further investigation under Section 173(8) of the
Cr.P.C., within 10 weeks thereafter and file a report of
the same before the concerned Court.
(v) Till the filing of the report of further investigation, the
concerned Court shall not proceed further with the
present charge sheet that is filed before it. On further
investigation report being filed before the Court, the
concerned Court is at liberty to regulate its procedure
and proceed further in accordance with law.
(vi) All other contentions remain open.
Sd/-
JUDGE
bkp
CT:MJ
