Question No.2:-
12. As submitted by the learned Counsel for the petitioner, the
Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347.
“13. In Ram Lal Narang v. State (Delhi Admn.)
[(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791]
it was observed by this Court that further investigation is not
altogether ruled out merely because cognisance has been taken
by the court. 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
and all the more so in this case, 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. In view of the aforesaid position in
law, 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. We make it clear that we have not
expressed any final opinion on the merits of the case.“
(empahsis supplied)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM :
MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.654 of 2022
Ganesan Vs SHO, District Crime Branch,
Pronounced on : 01.07.2022
This Criminal Revision Case is filed by the petitioner aggrieved
by the order dated 06.04.2022 passed by the learned Judicial Magistrate
No.I, Villupuram, in CMP.No.951 of 2021 in C.C.No.220 of 2020, whereby
the application filed for further investigation on behalf of the prosecution
under Section 173(8) of Cr.P.C., was rejected by the Trial Court.
2.The gist of the allegation in this case against the accused is that
making a false promise to get a job as Assistant Engineer in the TNEB the
accused had obtained money from the defacto complainant and cheated him.
By directing the de-facto complainant to come to various places to hand
over the amount, payments of money in cash were accepted by the accused.
On 28.07.2018, a sum of Rs.10 Lakhs, was given at Woodlands Hotel at
Villupuram. On 29.07.2018, a further sum of Rs.2 Lakhs was given at Elles
Chathram Road corner. Another sum of Rs.3 Lakhs was given on
09.08.2018 at Appollo Medical Shop situated at Trichy to Chennai Road in
Villupuram, a sum of Rs.5 Lakhs was given on 07.09.2018, at Avin Milk
Shop situated at Villupuram District Collector office and a sum of
Rs.2,50,000/- was given on 14.11.2018, near the Central Co-operative
Bank. In the places mentioned in the complaint by the de-facto complainant,
the CCTV footages were not collected by the prosecution during the course
of investigation. This apart the accused had also contacted the defacto
complainant in his mobile No.9443152542 to 9894298278 and the CDR
particulars were not collected during the course of investigation. Further, in
respect to certain documents produced along with the final report
certificates as required under Section 65B of The Indian Evidence Act were
not furnished. Therefore, for conducting further investigation and bringing
all these materials on record and the application was filed on behalf of the
prosecution. The said application was dismissed by the Trial Court by
passing the following order :-
''The petition has been filed by the learned
Additional Publice Prosecutor for ording further
investigation. Accordingly to him the CCTV footage
and CDR details are not collected by the
Investigation Officer. Perused records it is seen that
the trial has already been cammenced hence the
petition filed and the learned APP on his own
instance is not maintanable. Accordingly this
Petition is dismissed.''
3.The learned Counsel appearing on behalf of the revision
petitioner would submit that firstly, the reasoning that the application is
filed by the Additional Public Prosecutor on his own is factually incorrect
and it is filed on the instructions of the respondent/Police. The second
reasoning that the trial has already commenced and the petition need not to
be entertained is fallacious. In support of his contention, he would rely upon
the Judgment of the Hon'ble Supreme Court of India, in Sri Bhagwan
Samardha Sreepada Vs. State of Andhra Pradesh & Ors1, wherein in
paragraph No.2 it was held as follows:-
'' ..... Powers of the police to conduct further
investigation, after laying final report, is recognised
under Section 173(8) of the Code of Criminal
Procedure. Even after the court took cognizance of
any investigation. This has been so stated by this
Court in Ram Lal Narang v. State (Delhi Admn.)
(AIR 1979 SC 1791). The only rider provided by the
aforesaid decision is that it would be desirable that
the police should inform the court and seek formal
permission to make further investigation. In such a
situation the power of the court to direct the police
to conduct further investigation cannot have any
inhibition.....''
4.He would further rely upon the Judgment of the Hon'ble
Supreme Court of India, in Rama Chaudhary v. State of Bihar2, more
1 AIR 1999 SC 2267
2 (2009) 6 SCC 346
specifically mentioned the paragraph Nos.12 & 13, which reads as follows:-
''12.If we consider the above legal
principles, the order dated 19.02.2008 of the trial
Court summoning the witnesses named in the
supplementary charge-sheet cannot be faulted with.
It is true that after enquiry and investigation charges
were framed on 11.03.2004 and thereafter in the
course of trial about 21 witnesses were examined. In
the meantime, Police submitted supplementary
charge-sheet with certain new materials and on the
basis of supplementary charge-sheet, the prosecution
filed an application on 12.01.2008 in a pending
Sessions Trial No.63 of 2004 to the trial Court for
summoning the persons named in the charge-sheet
for their examination as prosecution witnesses. On a
careful perusal of the application, the trial Court, by
order dated 19.02.2008, allowed the same and has
summoned those witnesses named in the
supplementary charge-sheet.
13.The law does not mandate taking prior
permission from the Magistrate for further
investigation. It is settled law that carrying out
further investigation even after filing of the chargesheet
is a statutory right of the Police. [vide
K.Chandrasekar vs. State of Kerala and Others,
(1998) 5 SCC 223.] The material collected in further
investigation cannot be rejected only because it has
been filed at the stage of trial. The facts and
circumstances show that the trial Court is fully
justified to summon witnesses examined in the
course of further investigation. It is also clear from
Section 231 of the Cr.P.C., that the prosecution is
entitled to produce any person as witness even
though such person is not named in the earlier
charge-sheet. All those relevant aspects have been
taken note of by the learned Magistrate while
summoning the witnesses based on supplementary
charge-sheet. This was correctly appreciated by the
High Court by rightly rejecting the revision. We fully
agree with the said conclusion.''
5.The learned Government Advocate (Crl.side) appearing on
behalf of the first respondent/Police would support the petitioner by stating
that in this case, the findings of the learned Magistrate that the learned
Additional Public Prosecutor filed the application on his own is incorrect
and the application was filed on behalf of the prosecution. He would submit
that further investigation is necessary to establish the truth in this case.
6.Mr.A.Arasu Ganesan, learned Counsel appearing on behalf of
the second respondent/accused would submit that the accused resisted the
application before the trial court. He would submit that only the prosecution
is entitled to file the application for further investigation. In this case, it is
the de-facto complainant who filed the revision before this Court and
therefore, the revision is not maintainable. In respect of this proposition, he
would rely upon the Judgment of this Court, in M.Viswanathan vs. State
and Ors3, more specifically mentioned in paragraph No.9, which reads as
follows:-
3 Crl.O.P.No.23943 of 2012 dated 27.07.2017
''As per the order of the Hon'ble Supreme Court in
the above case, the Hon'ble Supreme Court has
clarified the terms re-investigation and further
investigation. As per the interpretation, further
investigation is ordered, based on the additional
material or evidence collected by the
Police/Prosecution. However, re-investigation is
ordered when the earlier investigation improperly
conducted and not sustainable in law, to meet the
ends of justice. Therefore, as per the provision of
Section 173(8) of Cr.P.C., the aggrieved parties
namely, the Police/Prosecution on collection of
additional materials or evidence, the prosecution
can seek for further investigation, but the case in
hand, the defacto-complainant have no right for
furhter investigation through the second respondent
Central Bureau of Investigation.''
7.It is his second contention that after the commencement of the
trial, the application was filed. For the same proposition, he would rely
upon another Judgment of the Hon'ble Supreme Court of India, in Reetha
Nag vs. State of West Bengal & Ors4, more specifically in paragraph No.20
of the said Judgment, which reads as follows:-
''20.In the instant case, the investigating authorities
did not apply for further investigation and it was only upon the
application filed by the defacto complainant under Section
173(8), was a direction given by the learned Magistrate to reinvestigate
the matter. As we have already indicated above,
such a course of action was beyond the jurisdictional
competence of the Magistrate. Not only was the Magistrate
wrong in directing a re-investigation on the application made
by the de facto complainant, but he also exceeded his
4 (2009) 13 SCR 276
jurisdiction in entertaining the said application filed by the de
facto complainant.''
8.He would further submit that this revision preferred by the defacto
complainant that too belatedly should not be entertained by this Court
and he prayed for dismissal of the revision petition.
9. I have considered the rival submissions made on either side and
perused the material records of this case. The following questions arise for
consideration in the present Revision:-
(i) Whether or not the Revision filed by the de-facto complainant
against the order of the learned Magistrate dismissing the application filed by the prosecution under Section 173(8) of Cr.P.C., is maintainable?
(ii) Whether the learned Magistrate was right in rejecting the
application for further investigation on the ground that the trial is
commenced?
Question No.1:-
10. In this case, the application for further investigation is filed by
the prosecution and not by the de-facto complainant. As far as the
judgments relied upon the learned Counsel for the petitioner in
nd Ors. (cited supra), it may be seen from the
passage extracted above, when the prosecution has filed the Final Report,
the de-facto complainant made a prayer that there should further
investigation by the Central Bureau of Investigation, which was rejected in
that case. As far as the case in Reetha Nag vs. State of West Bengal & Ors.
(cited supra) is concerned, it was again holding that the learned Magistrate
was not competent in directing the re-investigation and the power is given
only to the prosecution under Section 173(8) of Cr.P.C. It is also pertinent
to state here that even in respect of the power of the learned Magistrate, the
judgment in Reetha Nag vs. State of West Bengal & Ors. (cited supra) has
been expressely overruled by the Hon'ble Supreme Court of India in
Vinubhai Haribhai Malaviya Versus the State of Gujarat5. On the other
hand, the application in this case is filed only by the prosecution and if the
learned Magistrate had rejected the same, this Court, in exercise of its power
under Section 397 of Cr.P.C., is entitled to examine the correctness of the
said revisable order.
11. In this connection, the de-facto complainant, by filing the
Revision, is only bringing to the notice of this Court. In this context,it is
5 (2019) 17 SCC 1
relevant to refer to the dictum of the Hon'ble Supreme Court of India in
Rekha Murarka Vs. The State of West Bengal6, which is reproduced
hereunder, reads as follows:-
“12.5. However, even if there is a situation where
the Public Prosecutor fails to highlight some issue of
importance despite it having been suggested by the victim’s
counsel, the victim’s counsel may still not be given the
unbridled mantle of making oral arguments or examining
witnesses. This is because in such cases, he still has a recourse
by channelling his questions or arguments through the Judge
first. For instance, if the victim’s counsel finds that the Public
Prosecutor has not examined a witness properly and not
incorporated his suggestions either, he may bring certain
questions to the notice of the Court. If the Judge finds merit in
them, he may take action accordingly by invoking his powers
under Section 311 of the CrPC or Section 165 of the Indian
Evidence Act, 1872. In this regard, we agree with the
observations made by the Tripura High Court in Smt. Uma
Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the
victim’s counsel has a limited right of assisting the prosecution,
which may extend to suggesting questions to the Court or the
prosecution, but not putting them by himself.”' '
(Emphasis supplied)
Thus, (i) by filing the revision, the defacto complainant is only
brining to the notice of this court of his perception that an erroneous order is
passed which according to him will lead to injustice and therefore, would
not amount to taking over of the prosecution; (ii) second, there is no express
embargo Section 372 of Cr.P.C., for the defacto complainant to invoke the
6 (2020) 2 SCC 474
jurisdiction of this Court and therefore the principle of private lawyer taking
over the prosecution cannot be extrapolated to the situation on hand.
Accordingly, I answer the question that the Revision filed by the de-facto
complainant is maintainable and is in order.
Question No.2:-
12. As submitted by the learned Counsel for the petitioner, the
Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347.
“13. In Ram Lal Narang v. State (Delhi Admn.)
[(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791]
it was observed by this Court that further investigation is not
altogether ruled out merely because cognisance has been taken
by the court. 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
and all the more so in this case, 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. In view of the aforesaid position in
law, 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. We make it clear that we have not
expressed any final opinion on the merits of the case.“
(empahsis supplied)
13. Similarly, the Hon'ble Supreme Court of Indian in Ram Lal
Narang and Ors. vs. State (Delhi Administration) (1979) 2 SCC 322, held in paragraph
No.21 as follows:-
„21. ………In our view, notwithstanding that a
Magistrate had taken cognizance of the offence upon a police
report submitted under Section 173 of the 1898 Code, the right
of the police to further investigate was not exhausted and the
police could exercise such right as often as necessary when
fresh information came to light. Where the police desired to
make a further investigation, the police could express their
regard and respect for the Court by seeking its formal
permission to make further investigation.“
(emphasis supplied)
Therefore, in view of the same, the application for further
investigation is maintainable even after the commencement of trial.
14. As far as the judgment of the Hon'ble Supreme Court of India
in Vinubhai Haribhai Malaviya Versus the State of Gujarat (cited supra),
though in paragraph No.38, it has been mentioned that the power of Police
to further investigate the offence continues till the stage of the trial
commences, but, however, it may be seen that even in the said judgment, the
views expressed in the above two judgments of the Hon'ble Supreme Court
of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (cited supra)
and Ram Lal Narang and Ors. vs. State (Delhi Administration) (cited
supra) were approved. Further, a learned Judge of this Court, already in
Ravi vs. The Inspector of Police, Kothagiri Circle9 , has considered the said
judgment and has held that since the question decided was relating to the
power of the learned Magistrate, the question as to whether the further
investigation can be carried after commencement of the trial or not not
being a question considered in the said judgment, the same cannot be
considered as an authoritative pronouncement of the Hon'ble Supreme Court
in respect of the question on hand and held that the prosecution is entitled
to seek for further investigation even after commencement of trial. It is
useful to extract the paragraph No.32 of the judgment, which reads as
follows:-
“32. In view of the same, this Court holds that the investigating
agency/Police invoking Section 173(8) Cr.P.C., at any stage of
the criminal proceedings cannot be doubted, objected and
faulted with.“
9 2021(4)MLJ(Crl)205
15. Section 173(8) of Cr.P.C., does not place any fetter on the
Police to conduct further investigation in the case after commencement of
trial and whenever they come across any additional information it is just and
necessary that the same be brought to the notice of the Court. It is important
to note that the Hon'ble Supreme Court of India in Vinubhai Haribhai
Malaviya Vs. the State of Gujarat (cited supra) itself has clearly held that
the purpose of further investigation is that any person who has wrongly
been prosecuted cannot suffer the same and any person, who was actually
committed the offence, should not escape punishment. In that view of the
matter, since bringing out the truth is the primordial purpose of
investigation and the present application serves the said purpose, I am of the
view that the application filed by the prosecution even after the
commencement of the trial in this case is maintainable and I answered the
question accordingly.
Result:-
16. In the result,
(i) The order of the learned Judicial Magistrate No.I, Villupuram
in CMP.No.951 of 2021 in C.C.No.220 of 2020 is set aside.
(ii) The application filed in CMP.No.951 of 2021 in C.C.No.220
of 2020 on the file of the Judicial Magistrate No.I, Villupuram is allowed;
(iii) It is made clear that the observations made in this Order are
for the purpose of disposing the application for further investigation alone
and shall not have any bearing on the merits of the case.
01.07.2022
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