Subramanian and Another vs State by Inspector of Police

Aruna Jagadeesan, J.—This Criminal Revision Case is filed against the order dated 18.7.2012 passed by the learned Principal Sessions

Judge, Trichy in SC. NO. 7/2012, directing the investigating agency to reopen the investigation, conduct further investigation by an Officer superior

to the investigating officer, who conducted the investigation earlier and to file a final report before the learned Judicial Magistrate and for further

direction to the learned Judicial Magistrate to recommit the matter for Sessions, after final report being filed by the investigating agency. The short

facts of the case are as follows:-On 8.12.2004, the first Petitioner''s wife, namely Radha committed suicide and on the complaint made by the

father of the deceased, the Respondent conducted investigation and laid a charge sheet u/s 306 of IPC. The case was committed to the Sessions

Court and was taken on file in SC. No. 7/2012 and was made over to the Mahila Court, Trichy for trial. Before the Mahila Court, Trichy, totally

17 witnesses witnesses were examined and the matter was posted for examination of the Petitioners/A1 and A2 u/s 313 of Cr. P.C. When the

matter stood thus, the Mahila Court found several lapses in the investigation and therefore, felt that further investigation was necessary and

accordingly, sent the records to the Sessions Judge. The learned Principal Sessions Judge struck down the entire trial proceedings, reopened the

investigation and directed the investigating agency to conduct further investigation and to file a report. Accordingly, the matter was remitted back to

the Magistrate Court. The said order has been assailed by the Petitioners, who are arrayed as A1 and A2 before the Trial Court, by way of this

criminal revision petition.

Mr. T. Senthil Kumar, the learned counsel for the Petitioners contended that the Sessions Judge failed to consider that once a charge sheet was

filed, pursuant to which, charges had been framed against the accused, it was no longer open to the Sessions Judge to suo-motu order for further

investigation and remit the matter to the Magistrate. The learned counsel relied upon the decisions of the Honourable Supreme Court reported in

Reeta Nag Vs. State of West Bengal and Others, and Ram Lal Narang Vs. State (Delhi Administration), to contend that only the Police have

power to further investigate even after the report is filed in terms of Section 173(8) of Cr. P.C., but the Magistrate cannot suo-motu exercise

jurisdiction for further investigation. The learned counsel would contend that the Sessions Judge cannot suo-motu exercise jurisdiction and order

further investigation and therefore, the order passed by the learned Principal Sessions Judge is unsustainable. The learned counsel would submit

that the only course of action open to the Sessions Judge was to take recourse to the provisions of Section 319 of the Code, if any of the accused

has to be added or to Section 216 of the Code for altering the charges and to include any of the offence that has been omitted at the time of

framing of charges.

On the other hand, Mrs. S. Prabha, the learned Government Advocate argued that the court has a right to summon other accused and also

order for addition of other evidence against the accused, once the court finds that there is warrant to do it. The learned Government Advocate

would further submit that the Mahila Court has found several lapses in the investigation, which was also affirmed by the Sessions Judge, which

made him to order further investigation in terms of Section 173(8) of Cr. P.C.

This court heard the learned counsel on either side and also perused the materials placed on record.

The question that arises for consideration is as to whether the Sessions Judge or even the Magistrate, without any petition either by the

complainant or by the investigating agency, could order for further investigation. The proceedings in respect of commission of a criminal offence are

conducted in three stages. Firstly, ""investigation"" as defined u/s 2(h) of the Code includes all the proceedings under the Code for collection of

evidence to be conducted by a Police Officer or by any person other than the Magistrate, who is authorised by a Magistrate in this behalf. The

process of investigation includes an order passed by the Magistrate u/s 156(3) of the Code. Secondly, the ""inquiry"" as defined u/s 2(g) of the Code

means every inquiry other than a trial, conducted under the Code by a Magistrate or Court. Such an inquiry is after the report u/s 173 of the Code

is submitted and the Court is ceased of the proceedings before framing of charges. The third stage is that of trial. It takes places in respect of

commission of an offence after the court takes cognizance of offence and consequently proceeds to frame charges and collect evidence as

provided in Section 4 of the Code.

It is well settled that the Police has absolute right of investigation and in such right of investigation, the court cannot direct filing of charge sheet in

a particular manner against any specific accused. Such an enunciation of law was made by the Honourable Supreme Court in Abhinandan Jha and

Others Vs. Dinesh Mishra, . It has been observed that the scheme of Chapter XIV of the Code shows that the formation of an opinion as to

whether or not there is case to place the accused on trial, has been left to the Officer in charge of the Police Station. It was observed that the

Magistrate, after report u/s 173 of the Code is submitted, is not bound to accept the opinion of the Police. It is open to the Magistrate to take the

view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient

evidence to justify an accused being put on trial. The Magistrate can take cognizance u/s 190(1)(c) of the Code, if he does not agree with the

opinion of the Police. Such provision is intended to secure that offences may not go unpunished and justice may be invoked even where persons

individually aggrieved are unwilling or unable to prosecute or the Police, either wantonly or through bona fide error, fail to submit a report setting

out the facts constituting the offence.

The Honourable Supreme Court in Ram Lal Narang Vs. State (Delhi Administration), found that the procedure of ''suspending cognizance''

does not appear to be warranted by the provisions of the Code. The Honourable Supreme Court has observed as under: -

In The State Vs. Mehar Singh and Others, a Full Bench of the High court of Punjab and Haryana held that the police became functus officio once

the court took cognizance of an offence on the filing of a charge sheet by the police and thereafter, further investigation by the Police was not

permissible. The police, it was said, could not ''tinker'' with the proceedings pending in the Court. It was, however, observed that it would be open

to the Magistrate to ''suspend cognizance'' and direct the police to make further investigation into the case and submit a report. The High Court of

Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge sheets, but was of the view that such practice

was not sanctioned by the Code. Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the

Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance and ordering

further investigation. The procedure of ''suspending cognizance'' suggested by the High Court of Punjab and Haryana does not appear to us to be

warranted by the provisions of the Cr. P.C.

The court recognised the fact that it is in the interests of both the Prosecution and the defence that the police should have power to investigate

and in either case, it is for the Magistrate to decide upon further course of action depending upon the stage at which the case is before him. If he

has already taken cognizance of the offence, but has not proceeded with the inquiry or trial, he may direct the issue of process to persons freshly

discovered to be involved and deal with all the accused in a single inquiry or trial. If a case of which he has previously taken cognizance has already

proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as

a separate case.

In Bhagwant Singh Vs. Commissioner of Police and Another, a three Judges'' Bench of the Honourable Supreme Court was considering the

consequences of a report submitted to the Magistrate u/s 173(2) of the Code. It was held that if, on consideration of report made by the Officer in

charge of police station u/s sub section 2(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the

informant must be given an opportunity of being heard, so that he can make his submissions to persuade the Magistrate to take cognizance of the

offence and issue process.

In Randhir Singh Rana Vs. The State Being the Delhi Administration, the Honourable Supreme Court has recognised that the Magistrate has

power to order further investigation, but such power cannot be exercised on his own. The Honourable Supreme Court has observed as under: -

The aforesaid being the legal position as discernible from the various decisions of this court and some of the High Courts, we would agree, as

presently advised, with Shri Vasdev that within the grey area to which we have referred to Magistrate of his own cannot order for further

investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by

framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be

of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge sheet.

In the aforesaid case, the Magistrate ordered further investigation after the accused put his appearance and the case was at the stage for

considering the question as to whether the charge should be framed or the Appellant should be discharged.

In Reeta Nag Vs. State of West Bengal and Others, the investigating agency sent for trial sixteen accused in its report u/s 173 of the Code.

The charges were framed against those accused, whereas 10 other co-accused were discharged. The complainant prayed for reinvestigation. The

said application was allowed. Such order was challenged before the High Court. The Honourable Supreme Court held that after having passed a

final order framing charge against six persons and discharge of the remaining accused, it was no longer within the Magistrate''s jurisdiction to direct

a reinvestigation into the case. It was observed as under: -

As has been rightly held by the High Court, having regard to the decisions of this Court in Master Construction Co. (P) Ltd. Vs. State of

Orissa and Another, and Sankatha Singh Vs. State of UP (AIR-1962-SC-1208) which were reflected in Smt. Sooraj Devi Vs. Pyare Lal and

Another, having passed a final order framing charge against six persons and discharging the remaining accused persons, it was no longer within the

Magistrate''s jurisdiction to direct a reinvestigation into the case.

It was noticed that the Judicial Magistrate cannot on his own direct the investigating agency to conduct fresh enquiry, though such an order could

be passed on the application of the investigating authorities. It was held to the following effect:-

In addition to the above, the decision of this court in Randhir Singh Rana Vs. The State Being the Delhi Administration, ) also makes it clear

that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his

own order further investigation in the case, though such an order could be passed on the application of the investigating authorities.

What emerges from the above mentioned decisions of the Honourable Supreme Court is that once charge sheet is filed u/s 173(2) of Cr. P.C.

and either charge is framed or the accused are discharged, the Magistrate, may on the basis of a protest petition, take cognizance of the offence

complained off or on the application made by the investigating authorities, permit further investigation u/s 173(8) of the Code. The Magistrate

cannot suo-motu direct a further investigation u/s 173(8) of Cr. P.C. or direct a reinvestigation into a case on account of bar of Section 167(2) of

the Code.

The decisions of the Honourable Supreme Court reported in Randhir Singh Rana Vs. The State Being the Delhi Administration, and Reeta

Nag Vs. State of West Bengal and Others, are only decisions that had dealt with the question of power of the Magistrate u/s 173(8) of the Code

to order further investigation. The ratio of the case that the Magistrate lacks powers to order further investigation on his own after the filing of the

charge sheet has therefore to be taken as the authoritative law on this issue.

Even in the decision cited by the learned Government Advocate reported in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, it

has been held that 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. It further observed that when defective

investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be

desirable that the Police should inform the court and seek formal permission to make further investigation, when fresh facts come to light instead of

being silent over the matter, keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of

proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts.

At this juncture, it is needless to say that there is definite course of action open to the court u/s 216 of Cr. P.C. for addition of a charge or

alteration of a charge or for addition of accused, Section 319 of Cr. P.C. can be invoked. Therefore, in view of the above said legal position of

law, I am of the considered view that there is patent error committed by the learned Principal Sessions Judge in directing further investigation u/s

173(8) of Cr. P.C. merely on the ground that there are some lapses in the investigation. It is seen that the impugned order has been passed based

on a wrong understanding of the scope of Section 173(8) of Cr. P.C. contrary to the law laid down by the Honourable Supreme Court in the

decisions cited supra. Therefore, this criminal revision petition has to be allowed and the impugned order is liable to be set aide, as not legally

sustainable. In the result, this criminal revision petition is allowed and the impugned order dated 18.7.2012 passed by the learned Principal

Sessions Judge, Trichy in SC. No. 7/2012 is set aside. The Mahila Court/Sessions Court is directed to proceed with the case according to law on

merits, keeping in mind the aforesaid observations made by this court. No costs. Consequently, the connected MP is closed.