1.0 Investigation of cases by
Police Officer
When a complaint was lodged or referred to Police, and
the First Information Report (FIR) was sent to Court, in the course of the
Investigation and interrogation of the accused, if it was revealed commission
of the several offences, on the basis of such information itself, the
investigating officer shall proceed with the investigation and file charge-sheet
with the jurisdictional Magistrate.
2.0 Final Report / Challan &
Charge-Sheet
The Criminal Procedure Code, 1973, Sec173 (2) refers to the Final Report (
Challan) or Charge- Sheet of Police
Officer on completion of InvestigationThe Report forwarded by the Investigation Officer is either a Final Report ( Challan),
where no case has been made out or is a
Charge-Sheet where a prima facie case has been made out. In Sec 173(2) (e), Criminal Procedural Code (Cr.P C) the
only requirement is to furnish information to the Court concerned by the
officer –in-charge of the Police station whether the accused had been arrested
or not. It does not mean that it is necessary to arrest the accused before
submission of charge-sheet in every case. Arrest of the accused is justified or
necessary only if a prima facie case is made out, according to the Supreme
Court in Lalji Yadav V. State of UP, 1998 Cri. L J 2366.
3.0 Alternatives before
Magistrate in a Final Report.
Wherever a Final Report is forwarded by case
investigating Police to a Magistrate u/s 173(2) (i) is placed before him,
several situations may arise. The Report may conclude that an offence appears
to have been committed by a particular person and persons, and in such a case
Magistrate may either:-
1) accept
Report and take cognizance of offence and issue process,
2) may disagree
with the report and drop the proceeding
or to take cognizance on the basis of report / material submitted by the
Investigation Officer,
3) may
direct further investigation under Sec 156(3) and require Police to make report
as per Sec 173(8)-(AIR 1968 SC 117 ; AIR
1980 SC 1883 / AIR 1955 SC 196).
4) may
treat the Protest Complaint as a complaint , and proceed u/s 200 & 202 of
Cr. P.C.
On completion of Investigation, Statement of Final Report u/s 173 (2) (ii), is mandatorily to be
given to the complainant, and the Magistrate must give notice to the informant
and provide him an opportunity to be heard at the time of consideration of the
report ( R. Rathinasabapathy V. State , 2004 Cri. L J 2735 (Mad).
4.0 Further Investigation Order
U/s 173(8) Cr. P.C
Further
investigation is not altogether ruled out merely because
cognizance has been taken by the Court. When defective investigation comes into
light during course of trial, it may be cured by further investigation if
circumstances so permitted. It would be ordinarily be desirable that 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. The right of Police ,
even after submission of a report u/s (173(2) Cr. P.C , is not exhausted , and
the Police can exercise such right as often as necessary when fresh information
comes into light( Ram Lal Narang V. State of
Delhi AIR 1979 SC 1791; Hasanbai Valibhai Quresi V. State of Gujarat , AIR 2004
SC 2078; Satish Tandurang Jagtap V. Statae of Maharastra 1995 Cr. LJ 1509 AT
1510 Bom).
5.0 To proceed against a person
who is not charge-sheeted.
Sec.
319 of Criminal Procedural Code: - The discretion of the trail
court to proceed against the person who is not an accused at the trail if it
appears from the circumstances of the case, that such person, other than the
accused, is involved in the crime is quintessence of Sec 319 Cr. P.C (Girish
Yadav & Others, appellants, V. State of MP, respondent, AIR 1996 SC 3098). Thus,
the trail court in India is vested with ample powers to proceed against an
accused any time during the trail, if a person is not charge-sheeted by the
investigating Police Officer. In
Ranjit
Singh V. State of Punjab, 1998 (7) SCC 149, it was envisaged that the
evidence tendered during trail of the case if the offence is to be tried by a
Court of Session, and it was held :- Material placed before committal Court
cannot be treated as evidence. Sessions Court, however, is competent to issue
process against a person who is not charge-sheeted U/s 319 after the trail is
begun and recorded some evidence of the prosecution (Tek Narayn Prasad Yadav V. State
of Bihar 1999 SCC ( Cri) 356).
6.0 Re-investigation of the
Case.
Re-
investigation:-After the order for further investigation,
then for the second time the Magistrate cannot compel the police to take a
particular view in the matter and submit the challan in the case. if the
Magistrate does not agree with the opinion formed by the Police and still
suspects that an offence has been committed, he is entitled, notwithstanding
the opinion of the Police, to take cognizance under Sec 190 (1) (c) of the Cr.
P.C, but he cannot direct the Police to re-investigate the matter for the third
time (
Harinder Pal Singh v. State of Punjab, 2004
Cri. L J 2648 P&H).
The case for re-investigation is altogether a subject
matter and discretion of the concerned High Court or Supreme Court under
Article 226 and Article 32 of the constitution ,respectively or under 482 of
Cr.P.C ; or may be considered by the
Supreme Court of India , the ultimate appellate forum. In Kashmiri Devi v. Delhi ( Admn)
AIR 1988 SC 1323, the case for
re-investigation was considered. In this case the Act of Police in shielding
the guilty members of Delhi Police was apparent and with that design the
investigating agency had committed a different story neglecting the eye-witness
account. In Pannalal v. Veer Bhan 1992
Jab L J 327, the discretion for a re-investigation was denied, since
the facts and stage of the case was entirely different, and held that for
re-investigation of the case unless some fresh facts have come to light or an
additional evidence has been discovered or there exit compelling fresh grounds,
the Court would be slow in directing re-investigation.
7.0 Inherent Powers of High
Court U/s 482 of Cr. P. C
The provision u/s 482 Criminal Procedure Code states that
nothing in Cr. P.C shall be deemed to limit or affect the Inherent Powers of
High Court to make such orders as necessary to effect of any order under Cr.
P.C to prevent the abuse of the process of any of the Court or otherwise to
secure the ends of justice. Thus the
High Court U/s 482 Cr. P.C is having ample powers to order for fresh
investigation or re-investigation (State of Punjab V. Central Bureau of
Investigation & Others (2011) 11 SCR 281).
Limitation for further investigation u/s 173 (8) of Cr
.P.C, for further investigation by Sub-Ordinate Courts , where charge sheet has
filed will not apply to the powers u/s 482 Cr.P.C by the High Court ( State of West Bengal &
Others V. Committee for Protection of Democratic Rights, West Bengal &
Others ( 2010) SC 2 SC 571).
However, only in cases where the High Court finds that
there has been failure of justice or misuse of Judicial mechanism or procedure,
sentence or order was not correct, the High Court, in its discretion, prevent
the abuse of the process or miscarriage of justice by exercise of jurisdiction
under Sec 482 ( Rajinder Prasad V. Bashir & Ors., J T 2001 97) SC 652.
8.0 Powers of High Courts and
Supreme Court of India.
Powers
of Superior Courts:- Though there are fundamental differences as
to “ further investigation’ and “re-investigation” , it may be noted that , in
a given situation, a superior Court , High Court or Supreme Court, can exercise
the constitutional powers under section 226 and 32 respectively of the
Constitution of India , and could direct a “State” to get an offence
investigated and / or further investigated by a different agency(
Mithabhai Pashbahi Patel V. State of
Gujarat ( 2009 6 SCC 332). In Rameshchandra Nandlal Parikh V.
Satae of Gujarat and Anr. ( AIR 2006 sc 915 / Cr. LJ 964), Supreme
Court had considered the its extraordinary power under Article 136 of the
Indian Constitution, wherein which, the Gujarat High Court declined to exercise
its power under Sec 482 Cr.P.C . Considering the nature of allegations involved
and the facts and circumstances of the case, Supreme Court was also of the view
of the Gujarat High Court.
A Bench consisting of Justices Markandey Katju
and R.M. Lodha, quoting various judgments, pointed out that Article 136 was
never meant to be an ordinary forum of appeal at all. “It has become a practice
of filing SLPs against all kinds of orders of the High Court or other
authorities without realising the scope of Article 136.”
9.0 Investigation by Special
Agency
Investigation
by CBI: - Subject to the fact and situation of each case the
superior courts, at any time, can direct instigation by the superior agency of
the country. In Uma Shankar Sitani v. Commissioner of Police, Delhi, 1995 Cri. L J 3612 P. 3613 9 SC), the Supreme
Court was of the opinion that the matter was to be investigated by an
Independent Agency. Further, in Nirmal Singh Kahlon V. State of Pujab &
Others ( 2009 1 SCC 441 ), the Supreme Court has sustained the order
of High Court , directing investigation by the CBI even after the filing of
charge –sheet by the State Police. In P&H High Court Bar Association v. State
of Punjab, 1994 Cr. L.J 1368, A.I.R 1994 SC 1023 it was held that the
facts and circumstances of the case on hand, and to do complete justice in the
matter and further to instill confidence in the public mind it is necessary to
have fresh investigation in the case through a specialized agency like the
Central Bureau of Investigation (CBI).
10.
Power to take suo moto cases by
Superior Courts. High
Court can take suo motu cases: - In State of Punjab V. Central Bureau of
Investigation & Others, SLP Criminal No. 792 / 2008,
(2011) 11 SCR 281, the Supreme Court held, where charge sheet has been filed,
and High Court held that the same cannot limit or affect the inherent power of
High Court to pass an Order u/s 482 for fresh investigation or re-investigation
is necessary to serve the ends of justice. This was a case where senior
functionaries of the State Police and political leaders were involved, and
justice would not be done if local police investigated, and thereby the High
Court given direction u/s 482 Cr.P.C for fresh investigation by CBI.
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