Appeal against the order directing the Further Investigation
2. The present appeal mounts a challenge to the judgment and order dated 30.04.2021 of the Madurai Bench of the Madras High Court in Criminal R.C. (MD) No.533 of 2020 . By the said judgment, the High Court has, by a cryptic order, and long after final arguments had been concluded on 19.10.2019 in the trial court, ordered further investigation in the matter. The aggrieved accused is before this Court with a grievance that the direction was not justified in law particularly when already an attempt by the wife of the deceased to summon certain witnesses under Section 311 of the Criminal Procedure Code, 1973 (Cr.P.C.) had been rebuffed by the Trial Court and the High Court as early as in December 2019.
Question of law: Whether the Hon’ble High court was justified in ordering further investigation?
3. The question that arises for consideration is whether the High Court was, on the facts of the case, justified in ordering further investigation?
4. The basic facts essential for adjudication of the present controversy are as follows:-
5. On 31.03.2013, a First Information Report (FIR) being Crime No. 27 of 2013 was registered on the complaint given by one Padikasu (subsequently examined as PW-1) stating that when he along with the deceased Kumar were doing their morning walk around 5:00 AM and were returning back, three persons alighted from a car with weapons and hacked to death, the deceased Kumar.
6. On 11.07.2013, a final report was filed setting up eight accused for trial, including the appellant.
Based on P.W.1’s information FIR came to be registered
7. On 20.12.2016, PW-1 – Padikasu was examined. He testified that among the two persons who alighted from the car to attack Kumar, Ganapathy had a sickle in his hand; upon seeing them he began to run; that he phoned the family of deceased Kumar and spoke to the son of the deceased. PW-1 testified that he had not seen the hacking. He further testified that within five to ten minutes, the family members of Kumar came to the place and that he went to the Police Station at 6:45 AM and gave the complaint.
PW-1 declared hostile
8. PW-1-Padikasu was declared hostile and sought to be cross-examined by the prosecution. In the cross-examination he denied the suggestion that he had told the Police that he saw Ganapathy and Vadivel (appellant) hacking the deceased and Chinnaraja (the other accused) stabbing the deceased with a spear. On a question by the Court, he reiterated that he saw Ganapathy among the persons who alighted having a sickle and since he was perturbed and began to run though he saw others, he was not in a position to identify them. His deposition was recorded on 20thof December 2016.
Respondent Shanthi (wife of deceased) corroborated the fact of receiving phone call from P.W.1 about the assault on the deceased
9. Thereafter, on 18th of March 2017, the first respondent Shanthi – wife of the deceased was examined. She corroborated the phone call received from PW-1 and also stated that PW-1 told her that Ganapathy, Vadivel (appellant) and Karthick were the accused who hacked her husband with sickle and that while Chinnaraj and Selvaraj stabbed her husband with spear-stick, Madhavan, Murugan and Palaniyappan caught hold of her husband. She also testified that when after receiving the phone call she went to the place of the incident with Sathappa Subramanian and Subramanian, her brothers-in-law and that her own brothers also accompanied her. On 18.03.2017 itself, PW-3, Subbaiah and PW-4, Duraimurugan were examined.
Accused recalled the P.W.1 and obtained the facts what P.W.1 has stated to the respondent
10. On 25.07.2019, PW-1 – Padikasu was recalled at the behest of accused A1 and A2 wherein he stated that he did not specifically state to the Police about A1 Ganapathy being present in the place of occurrence and that he had only stated that three unidentified persons had attacked the deceased. He further added that he mentioned about A1 Ganapathy only on account of the Police threatening him.
11. On 19.10.2019, on the conclusion of the trial, final arguments were heard, and the case was fixed for filing of written arguments.
Respondent has filed section 311 crpc to call up certain persons as additional witnesses to the prosecution case
12. At this stage, on 22.10.2019, Respondent No. 1 (examined as PW-2/wife of the deceased) filed Crl. M.P.No.245 of 2019 under Section 311 of the Cr.P.C. She contended that PW-1 – Padikasu has given false evidence; that the Investigating Officer has failed to enquire the proper eye-witnesses; that the direct eye-witnesses to the occurrence-K. Ganesh S/o Kumar, P. Karmegam S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Andiappan S/o Chinnaiah have not been examined and that they deserve to be summoned. According to the application filed by respondent No. 1, these witnesses would speak about the cell phone recovered by the Police from the occurrence spot and that the cell phone was of Nokia Brand holding the sim of Vodafone company which belonged to her. She averred that the Police failed to produce the material object and that the cell phone and call details ought to have been produced by the Police. In view of the above, she prayed that the additional witnesses be summoned and examined.
Both the accused and the state opposed the application
13. The accused opposed the Section 311 petition by pointing out the delay of 6 years and 9 months in filing the petition and also about respondent No.1 (PW-2) not whispering about any of these facts during her examination. They contended that the persons sought to be examined were none other than her son, brother, brothers-in-law and other close relatives.
14. The State also filed its response opposing the application by averring that when the statement of 7 Respondent No. 1 was recorded nothing was mentioned by her and that during the investigation also nothing of the nature as alleged now was forthcoming; that even while being examined as PW-2 the applicant had not mentioned these facts; that no phone was seized and no sim card was seized and that investigation was properly conducted and final report filed.
Trial court dismissed the application
15. On 29.11.2019, the Trial Judge dismissed the application filed by respondent No. 1. The Court observed that the application was filed after the examination of the prosecution witnesses had concluded and when the case was posted for questioning the accused under Section 313. That respondent No. 1 was already examined as PW-2 on 18.03.2017 and that on that day itself, together with her, Subbaiah alias Subramanian and Duraimurugan were also examined as PW-3 and PW-4 respectively. The Court observed that though the power under Section 311 is available to the Court to reach a just decision, it cannot be 8 exercised unless the facts and circumstances of the case make it apparent as otherwise it would result in causing serious prejudice to the accused resulting in miscarriage of justice. The Court observed that though the power is available, it has to be exercised judiciously and not arbitrarily.
Based on the observations on the Hon’ble High Cour’s order respondent filed an application for further investigation
17. Taking a cue, as it were, from the observations of the High Court that the first respondent would have filed a petition seeking for further investigation at that time if eyewitnesses have been left out, the first respondent in January, 2020 filed Cr. M.P. No 40/2020 in S.C. No. 61/2014 before the Court of the Additional District and Sessions Judge with a prayer for directing the State to conduct further investigation or reinvestigation by examining the related occurrence and eyewitnesses of the crime mentioned in the application and submit additional (or) supplementary chargesheet. In the application, it was averred that the Investigating Officer had failed to enquire Kattarimani who had accompanied her husband-deceased Kumar and also had failed to examine proper eyewitnesses; that PW-1 Padikasu had given false statements and evidence and that Padikasu had expressed fear and mentioned about the threatening influences of the accused and other pressures brought by the accused; that investigation has been carried out in a haphazard manner; that there is lack of collection of material evidence; that the cell phone used by PW-1 Padikasu and the cell phone of deceased Kumar has not been properly secured and placed for tracing the call details. That non-examination of R. Natarajan, M. Muthu, S. Ramasamy who are the occurrence witnesses and eye witnesses K. Ganesan S/o Late Kumar, P. Karmagan S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Audiappan S/o 11 Chinnaiah are designed at the behest of the inspector of police.
Trial court dismissed the further investigation
21. The trial court dismissed the petition for further investigation by its order of 23rd July, 2020. The trial court held that the respondent no. 1 (PW-2) in her examination on 18.03.2017 in court did not speak anything as to about what she is mentioning now in the application. That final report was filed as early as on 11.07.2013 and if her contention is correct, she would have filed a petition for further investigation at that very time. The trial court further held that further investigation cannot be ordered at the post cognizance stage either suo moto or at the instance of victims/complainants or at the instance of anyone else except the investigating agency and that the petition was only filed to prolong the proceeding.
Hon’ble High Court has allowed the application and directed for further investigation
22. The respondent No. 1 filed a criminal revision before the High Court to which the accused filed a counter reiterating the contentions. By the impugned order, without any discussion whatsoever and holding the following in the operative portion, the High Court allowed the application:
“10. It is seen that an opportunity to examine additional witness was not given by this Court on the ground that the petitioner has not filed a petition for further investigation. In the above circumstances, dening (sic.) a relief of further investigation may cause prejudice to the petitioner. It is stated that P.W.1 turned hostile. This is a murder case. For the above reasons, it is decided that further investigation is necessary. The order passed in Crl.M.P.No.40 of 2020 in S.C.No.61 of 2014 dated 23.07.2020 on the file of the learned Additional District Judge, Pudukottai is set aside. The investigation agency is hereby directed to take up the case for further investigation and to complete the investigation, after examining all the witnesses referred by the petitioner and to file a additional chargesheet within a period of three months.
11. On receipt of the additional chargesheet, the trial Court is directed to frame charges afresh and to proceed with the trial and to dispose of the case as expeditiously as possible.”
Against the aforesaid order of the Hon’ble High Court respondent has preferred the present appeal
23. The present Special Leave Petition has been filed on 14.03.2022. By an order of 16.08.2022, this Court, while issuing notice, stayed the operation of the impugned order. It appears that before the filing of the Special Leave Petition, the additional charge-sheet also came to be prepared on 02.12.2021.
Section 173 (8) Cr.P.C
28. The legal position on the aspect of further investigation is fairly well settled. Under the Code of Criminal Procedure, 1973, pursuant to the recommendation of the Law Commission, in its 41st Report, Section 173(8) has been expressly engrafted setting at rest any controversy that may have obtained earlier. Section 173(8) reads as under:
“173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
Core question: When would power to direct further investigation is warranted?
29. The question really is, under what circumstances could this power be invoked and whether on the facts of this case, is a further investigation warranted.
30. There was some debate at the Bar as to whether the Addl. District and Sessions Judge before whom the application was filed by the respondent no. 1 under Section 173(8) after the conclusion of the evidence could have ordered further investigation. The premise of the argument was even though in the present case the Addl. District and Sessions Judge has not ordered and it was the High Court which had ordered it, while exercising jurisdiction under Section 397 read with 401 of Cr.P.C. The contention was that as per the law laid down by this Court in Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. (2019) 17 SCC 1, further investigation could at best have been ordered till the commencement of the trial.
31. In the present case, though the Trial Judge rejected the application, the High Court has ordered further investigation. Considering the fact that we are inclined to set aside the order of the High Court, on merits, we deem it unnecessary to discuss the issue of jurisdiction.
When would the need of further investigation or reinvestigation is necessary? Explained
32. Ultimately, the contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties (see Pooja Pal vs. Union of India & Ors. (2016) 3 SCC 135, para 83). As noticed in Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322, (para 20) where fresh materials come to light which would implicate persons not previously accused or absolve persons already accused or where it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it may be the duty of the investigating agency to investigate the genuineness of the same and submit a report to the court.
Further Investigation cannot be permitted to do a fishing and roving enquiry when police already filed a charge-sheet
33. However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet and the very applicant for further investigation, in this case respondent no. 1, has not whispered about anything new in her evidence as is now sought to be averred in the application. There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation. In Hasanbhai Valibhai Qureshi vs. State of Gujarat & Ors., (2004) 5 SCC 347), this Court held as under:-
“13. In Ram Lal Narang v. State (Delhi Admn.) [1979) 2 SCC 322] 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.”
34. In Vinay Tyagi vs. Irshad Ali alias Deepak & Ors., (2013) 5 SCC 762, this Court dealing with the aspect of the power of Magistrate to direct further investigation had the following to say:
“41. …..The power of the Magistrate to direct “further investigation” is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.”
Power to order investigation is significant power
35. It is essential to note that this Court emphasized that though power to order further investigation is a significant power it has to be exercised sparingly and in exceptional cases and to achieve the ends of justice (see Devendra Nath Singh vs. State of Bihar & Ors., (2023) 1 SCC 48, para 45). Whether further investigation should or should not be ordered is within the discretion of the Magistrate and the said discretion is to be exercised on the facts of each case in accordance with law. This Court also held that in an appropriate case, where the High Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482 Cr.P.C. could be exercised to direct further investigation or even reinvestigation. This Court reiterated the principle that even under Section 482 Cr.P.C. the wide powers are to be exercised fairly with circumspection and in exceptional cases.
36. In Himanshu Kumar and Others vs. State of Chhattisgarh and others, 2022 SCC OnLine SC 884 dealing with the prayer for transfer of investigation to CBI, this Court had the following to say:
“47. ….We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.”
Conclusion: Further investigation is absolutely unwarranted
37. Applying the above law to the facts of the present case, we find that for the following reasons the direction for further investigation is absolutely unwarranted:-
“……………………”
38. We are convinced that ordering the additional charge sheet to be taken on record at this stage pursuant to the further investigation will not be in accordance with law. It will be contrary to the settled principles as laid down by this Court. We have also to satisfy ourselves examined the additional charge sheet placed before us. Primarily, apart from explaining the motive which is already set out in the evidence of PW-2, there is a reference to three of these witnesses named in this application as having come to rescue of the deceased after hearing the noise raised by the deceased. It is now alleged that A-5 tried to prevent the said two witnesses from approaching Kumar and threatened them with the sickle. It is also alleged that at that point these witnesses saw A-1 and A-4 committing overt acts on the deceased.
Hon’ble Supreme Court termed this case as causing delay in trial for no genuine grounds exist
42. A brief postscript. While it is true that delay in trial will cede to the pursuit of truth, however, a distinction should be made between cases where there exist genuine grounds to hold up the proceedings and cases where such grounds do not exist. This case is a classic example of the latter category. The FIR was filed on 31.03.2013 and the charge-sheet on 11.07.2013. At the fag end of the trial in October 2019, on the eve of the final arguments, the first round of applications under Section 311 of Cr.P.C. came to be filed, which culminated in its dismissal in December, 2019.
Hon’ble Supreme Court explaining the legal profession’s role to play in process
46. The legal profession has an important role to play in the process. Any proceeding or application which prima facie lacks merit should not be instituted in a court. We are constrained to observe this because of late we notice that pleadings/petitions with outrageous and ex facie unbelievable averments are made with no inhibition whatsoever. This is especially so in some family law proceedings, both civil and criminal. Reading some of the averments therein, we are left to wonder whether at all the deponents were conscious of what has been written purportedly on their behalf, before appending their signatures. These misadventures directly impinge on the rule of law, because they add to the pendency and the consequential delay in the disposal of other cases which are crying for justice. It is time that such frivolous and vexatious proceedings are met with due sanctions in the form of exemplary costs to dissuade parties from resorting to such tactics. If we have desisted from such a course in this case, it is only because the High Court allowed the petition and it is here that we have, reversing the High Court, dismissed the petition for further investigation.
Party
K. Vadivel …Appellant (s) Versus K. Shanthi & Ors. …Respondent(s) – CRIMINAL APPEAL NO. OF 2024 (@ SLP Criminal No. 4360 of 2022) – 2024 INSC 746 – September 30, 2024.
