COURTESY:Mr.Ravit Khanna& Mr.Prashant Manchanda. Special Cell of the Delhi Police in a case lodged an FIR xxx/2006 under Sections 4 and 5 of the Explosive Substances Act and under Sections 120B, 121 and 122 of the Indian Penal Code, 1860 (for short ‘IPC’) read with Section 25 of the Arms Act against the accused persons. Both the accused were described as terrorists. Subsequently, the investigation was completed and charge sheet was filed before the concerned court, on the basis of which cognizance was taken. In the meanwhile aggrieved by the action of the Delhi police, brother of the accused filed a petition in the High Court of Delhi stating the harrowing facts, the factum that both the accused were working as ‘informers’, and that they have been falsely implicated in the case and, inter alia, praying that the investigation in relation to FIR No.xxx of 2006 be transferred to the CBI. . In the writ petition, it was stated to be a mala fide exercise of power. The High Court directed the CBI to investigate the case at and submit the charge sheet before the concerned court. After detailed investigation, the CBI filed the closure report stating that the accused persons were working as ‘informers’ of Special Cell of Delhi Police and Intelligence Bureau Officials and that it was a false case. After filing of the report by the CBI, the accused-, filed an application before the Trial Court in terms of Section 227 of the Criminal Procedure Code with a prayer that in view of the ‘closure report’ submitted by the CBI, he should be discharged. This application was opposed by the Special Cell, Delhi Police, who filed a detailed reply. The CBI, of course, stood by its report and submitted that it had no objection if the said accused was discharged. The learned Trial Judge refused to accept the submission of the accused and opined that in order to ascertain the prima facie allegations at the stage of charge framing it will take into account the charge sheet filed by the Special cell along with the closure report and the former cannot be ignored altogether. Accused filed a petition under Section 482 of the Code praying that the proceedings pending before the Court of Additional Sessions Judge, Delhi, pertaining to FIR No.xxx of 2006, be quashed. The High Court observed that once the report was filed by the CBI, that agency has to be treated as the investigating agency in the case and the closure report ought to have been considered by the trial Court. the Additional Sessions Judge would not be influenced by the report of the Special (sic) Cell in this matter. Therfore, the High Court stated that the report emanated from the subsequent investigation conducted by the CBI will have an overriding effect upon the investigation conducted by the Special cell of the Delhi police, the charge sheet filed by the said agency therefore cannot be looked into to ascertain the prima facie allegations against the accused persons. The following two important questions of law which arose before the Honble Supreme Court for consideration were Question No.1 : Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court? If so, to what effect? Question No. 2 : Whether the Central Bureau of Investigation (for short ‘the CBI’) is empowered to conduct ‘fresh’/’re-investigation’ when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code. COMMENTS: In the below mentioned case the Honble Supreme Court enumerated different directions of the court vis-a-vis investigation. Initial Investigation: Which is in the form of 156(3) which finally culminates into a report under section 173(2) Further investigation: Under section 173(8) the same can be ordered even after the taking of cognizance. Further investigation under section 156(3) after the filing of police report but the same cannot be directed at a post cognizance stage since the direction of investigation under the said provision is to investigate and file the report, but when the report is already acted upon then section 156(3) loses its relevance. Then the subsequent order of further investigation can be given only in the form of section 173(8). Fresh or de novo or re-investigation. It was held that:- However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the Court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating Agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’ In the present case admittedly charge sheet was filed by the Delhi Police upon which cognizance was already taken by the concerned court. Subsequently upon the petition filed by the brother of the accused the High Court Ordered the CBI to investigate the matter further. In the said order there was no specific mention of conducting De Novo Investigation, or to treat the former investigation as Non est. Apparently, the order was in the nature of directing supplementary investigation under section 173(8). As defined by the Supreme Court Supplementary investigation is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation. According to section 227/228 at the stage of framing the charges the trial court must ascertain the allegations upon the material on record ,such material would constitute charge sheet, documents submitted therewith etc. Report filed by the different agency in pursuance of further investigation cannot have an overriding effect/upon previous report which has already formed part of the records of the courts concerned and particularly when cognizance has been taken solely upon such report. Subsequent report is merely a continuation of the old proceedings. Criminal procedure code nowehere provides for cancellation of charge sheet/or treating the same as non est by either the police or even by the courts. The only legitimate method of dropping the proceedings by the Courts is only at the initial stage when it decides is to accept the final report and drop the proceedings. Once cognizance is taken upon such report or upon the charge sheet then it must form part of the record along with report filed from further investigation. To conclude, unless the High Court specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the trial courts have no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior Court, the reports, whether a primary report or a report upon ‘further investigation’ or a report upon ‘fresh investigation’, shall have to be construed and read conjointly. It was held that the trial court was right in discerning the cumulative effect of all the documents produced by the investigating agencies and come to the conclusion as to whether the accused should be discharged or sent to trial. Ergo, the Impugned order passed by the High Court was set aside. and the case was remanded to the Additional Sessions Judge to proceed further in the matter after hearing the parties on the basis both the reports. Please refer to the entire Judgment: indiankanoon.org/doc/113150814/
Posted on: Wed, 16 Oct 2013 08:40:31 +0000
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