Harish D.V. vs State

Subhash B. Adi, J.—These two revision petitions arise out of common order passed in S.C. Nos. 254/ 2006 and 66/2007 dated 18.12.2007.

The Deputy Superintendent of Police had filed two separate applications u/s 173(8) of Cr.P.C. in S.C. No. 254/2006 and 66/2007, inter alia seeking permission of the court to make further investigation in the matter.

It is alleged that case and counter cases were registered in Cr. No. 190/2006 and 191/2006. The allegation of prosecution is that a group clash took place on 22.7.2006 in Vadagur village and as a result of which two persons died. Both the cases were investigated and two charge sheets were filed against the respective accused. The matter was committed to the Sessions court and on committal case were numbered as S.C. No. 254/2006 and S.C. No. 66/2007.

M.L.A from the laid District submitted a representation to the State Government seeking further investigation in the matter, on the ground that the investigation has not been properly conducted by the polios. In this regard the government by its order dated 23.1.2007 authorized C.O.D to conduct further investigation in the case. The accused filed W.P. No. 5238/2007 interalia alleging that, the State Government in exercise of its executive power, cannot interfere with the investigation or direct the police to make further investigation This court by its order dated 26.6.2007 quashed the said permission and gave liberty to the police to take action in accordance with law, if really further investigation is required.

Thereafter on 17.11.2007 COD police filed an application before the learned Sessions Judge interalia seeking permission to make further investigation in the matter. The learned Sessions Judge by his common order granted permission, by observing that, once the matter is committed to the Sessions Judge, the Sessions Judge becomes trial Judge and has power to direct further investigation and permitted the COD to make further investigation.

Sri. Y.R Sadashriva Reddy, learned Counsel appearing for the petitioner submitted that earlier the government had granted permission to the COD to make further investigation and the said permission was quashed by this court in W.P. No. 5238/2007. He submitted that there is no allegation of improper investigation against the Investigating Officer nor there is any allegation of mal-practice. In the absence of any allegation there is no Justification for further investigation. He also submitted the order of the court below is erroneous. He submitted that just because MLA had made representation, government cannot abuse its power. He also submitted that it was only because MLA had made representation COD with malafide intention has filed application seeking the permission of the court to further investigate into the matter and at this stage if the trial is held up on the ground of further investigation it will prejudice the case of the accused and it will unnecessarily delay the proceedings.

He further submitted that ordinarily the further investigation should not be ordered without the consent of the court. He submitted that the court has to exercise said power judiciously based on sound reasons. He submitted that there is no justification for granting permission.

Learned Counsel Sri. C.V. Nagesh Appearing for the respondents submitted that re-investigation and further investigation are two different things, hi so far as further investigation is concerned the power is vested in the police to make further investigation, if it feels necessary and there is need for further investigation. Further investigation is in furtherance with the report already filed and this power cannot be curtailed. Section 173(8) of Cr.P.C. confirms the said power on the investigating agency. The permission of the court is only formal and in this regard he further submitted that even the Apex Court in several cases has observed that even without the consent of the court the investigating agency can make further investigation, he submitted that the object behind the further investigation is to bring the truth before the court and punish the accused. Any further investigation in furtherance of investigation already made cannot be termed as re-investigation or fresh investigation.

In a Judgment reported in AIR 2008 SCW 637 the Apex Court considering the matter at length and relying on the earlier Judgment of the Apex Court has distinguished the right to further investigation, fresh investigation and re-investigation. In so far as the granting of further investigation is concerned, the Apex Court referring to the earlier decision reported in AIR 1998 SCW 1852 has observed that:

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 foot that Sub-section (8) dearly 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. Once it is accepted and it has got to be accepted in view of the Judgment in Kazi Lhendup Dorji that an investigation undertaken by CBI pursuant to a consent granted u/s 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that "further investigation" is a continuation of such investigation which culminates in a further police report under Sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, pr it was entrusted to investigate into the case by 1hm State Government Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law.

Relying on the passage learned Counsel further submitted that the Provisions of Section 173(8) will not curtail the power of the police even for want of permission. He submitted that it is only the police which has investigated, the matter has to make further investigation. He mho submitted that the power u/s 173(8) cannot be look narrowly. He also submitted that ordinarily the police have power to submit further report in furtherance of the report already submitted.

On facts he submitted that, the wife of the deceased has made a representation alleging that the real accused have not been implicated in the offence. If the wife has made complaint, and which warrants further investigation to find out the truth same cannot alleged as mala fide. He further submitted in this case the COD Police have obtained the permission of the court. The court considering the said application has passed an order granting permission. He further submitted after quashing of the earlier permission a fresh notification is issued on 27.9.2007 and thereafter a corrigendum was issued inter alia permitting the COD to make further investigation. The said notification is not called in question by the petitions. The Apex Court consistently has taken a view that the further investigation is a power conferred on police and Section 173(8), which clearly envisages the said power.

The only question that arises in this case is as to

Whether the Provisions of Section 173(8) of Cr.P.C. confers the power to the investigating agency to makes further investigation after the submission of final report?

Looking into the facts and circumstances of the case, what is sought to be done in this case is the further investigation by the COD. It is not a case of re investigation or fresh investigation. Further investigation is in furtherance of the investigation already made and not undoing what is already done, the further investigation is in furtherance of the earlier report. It is ultimately the Magistrate or the Sessions Judge who conduct the trial is required to consider the material collected by the police is sufficient to prove the guilt of the accused or not. The investigating agency win only place the material before the court, it is for the court to accept or not, object behind the further investigation is to search for the truth. The Apex court in the matter reported in AIR 2008 SCW 637 has considered this aspect and has held that the investigating agency which has conducted the earlier investigation can conduct further investigation. In this case there is serious allegation by the wife of deceased that the real culprit is not apprehended.

In furtherance of the same the police feel that the further investigation is necessary to find out the truth and has made an application to the court for permission. The trial court has not found any ma la fide intention on the part of the police. The accused cannot make an objection for further investigation. If not, that material collected in further investigation by itself becomes proof. It is ultimately the court has to consider as to the sufficiency or insufficiency of the evidence in the trial Prosecution is required to prove the charge beyond reasonable doubt by producing necessary evidence.

I do not find any error or illegality in the permission granted by the trial court for further investigation.

Hence in the light of the above, the impugned order does not call for interference. Accordingly, it is dismissed.