While ruling on a very significant subject pertaining to investigation, the Delhi High Court has in a most learned, laudable, logical and latest judgment titled Sri Desaraju Venugopal vs Central Bureau of Investigation in W.P.(CRL) 833/2021, CRL.M.A. 6005/2021 that was pronounced finally on November 25, 2022 has held that Section 173(8) CrPC gives an unfettered right to the investigation agency for further investigation with no conditions and it cannot be restricted since such restrictions do not exist in the statute.
The Single Judge Bench of Hon’ble Mr Justice Yogesh Khanna has minced just no words to make it indubitably clear that:
The Statute does not limit the right to investigate under Section 173(8) CrPC only till the trial begun. The Bench said that:
It is not mandatory to take prior permission from the Magistrate for ‘further’ investigation even after the filing of the charge sheet as it is the statutory right of the police. The material collected in further investigation cannot be rejected merely because it has been filed at the stage of trial. The Bench made the observations while dealing with a plea moved by an accused Sri Desaraju Venugopal challenging an order that was passed by the Trial Court.
At the very outset, this progressive, pragmatic and pertinent judgment authored by the Single Judge Bench of Hon’ble Mr Justice Yogesh Khanna sets the ball in motion by first and foremost putting forth in para 1 that:
This petition is filed with the following prayers:
- Issue a writ order and/ or direction calling for the record of CC No.03/19, CIS No.190/2019 pending before Shri Chandra Shekhar Ld. Special Judge, Rouse Avenue Court.
- Issue a writ order and/ or direction directing the Ld. Special Judge Rouse Avenue Court to follow the judicial discipline in terms of Article 141 of the Constitution of India.
- Issue a writ and/ or order and/ or quashing and/ or setting aside the Order dated 24.02.2021 passed by Shri Chandra Shekhar Ld. Special Judge, Rouse Avenue Court in CC No. 03/19, CIS No.190/2019.
- Costs;
- pass such further and other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
As we see, the Bench then states in para 2 that:
The main grievance of the petitioner herein is without there being an end to an investigation the learned Special Judge has listed the case for hearing on framing of charges. This act of the learned Special Judge was challenged by the petitioner by moving an application but it was dismissed vide impugned order dated 24.02.2021.
To put things in perspective, the Bench then envisages in para 3 that:
In this case FIR was registered in the year 2015 and on 11.08.2016 chargesheet was filed wherein it was stated investigation is still going on and a supplementary chargesheet is going to be filed soon. On 08.01.2019 supplementary chargesheet was also filed mentioning investigation is going on. On 06.01.2020 the petitioner herein moved an application for clarification from CBI on this account. The CBI filed a reply stating interalia investigation is still going on and supplementary chargesheet shall be filed soon.
It is argued this is against the preposition of law settled by Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1. The learned counsel for the petitioner argued the impugned order noted the finding in Vinubhai (supra) are orbiter in nature and not binding. The learned Special Judge relied upon Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others (2004) 5 SCC 347 and Rama Chaudhary vs. State of Bihar (2009) 6 SCC 346. It is argued Vinubhai (supra) is of a larger Bench hence needs to be followed.
Quite naturally, the Bench observes in para 4 that:
Thus the crux of the arguments is investigation cannot be carried on endlessly and it need to stop once the trial begin and can continue only if there are exceptional facts viz. a fresh evidence has come to light of the prosecution etc.
It would be worthwhile to mention that the Bench specifies in para 23 that:
In State of West Bengal vs. Salap Service Station, 1994 Supp (2) SCC 318 it was held the Magistrate has no power to refuse supplementary chargesheet but to accept the same and would see the consolidated effect of the final report and supplementary reports and then proceed to frame charges. Hence, if the investigation is going on, a supplementary charge sheet is filed, the accused must have the supplementary charge sheet to know the entire case against him since the supplementary charge sheet is also to be considered as a part of the final report viz. the primary report.
Quite pertinently, the Bench specifies in para 24 that:
In Samaj Parivartan Samudaya vs. State of Kerala (2012) 7 SCC 407, the three Judge Bench held if the Officer in Charge of the police station obtains further evidence, it is incumbent upon him to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. It was held investigation is permissible though reinvestigation is prohibited and to carry out further investigation even after filing of the charge sheet is a statutory right of the police. It held the mere fact there may be further delay in concluding the trial, would not stand in the way of further investigation if that would help the Court in arriving truth and to do real, substantial as well as effective justice. The statutory duty of police to investigate includes its right to further investigate though the Magistrate has a right to agree or disagree with its report.
While citing yet other relevant case laws, the Bench enunciates in para 26 that, In Ram Lal Narang vs. State (Delhi Admn.) 1979 (2) SCC 322, the Court held there is no provision in Cr P C which expressly or by necessary implication barred the right of the police to further investigate after cognizance of the offence. The practice, convenience and preponderance of authorities permit repeated investigation on discovery of fresh facts.
Even in State of Bihar vs. J.A.C. Saldanha, (1980) 1 SCC 554, the Court held the power of the Magistrate under Section 156(3) Cr P C to direct further investigation is an independent power and it does not stand in conflict with the power of the State Government. Moreso, in Hasanbhai Valibhai Qureshi vs. State of Gujarat (2004) 5 SCC 347, the Court held the hands of the investigating agency or the Court should not be tied down on the ground further investigation may delay the trial, as ultimate object is to arrive at the truth. If the police is not satisfied of the propriety or the manner and nature of the investigation already conducted, it would not stop the police under section 173(8) Cr PC to further investigate the matter.
In State of Orissa vs. Mahimananda Mishra and Others (2007) 15 SCC 580, it was held the investigating agency will be at liberty to investigate further in the manner as it deems fit and proper in accordance with law. Similarly, in State of Andhra Pradesh vs. A.S.Peter, (2008) 2 SCC 383, it was held re-investigation without prior permission is necessarily forbidden, whereas further investigation is not.
As a corollary, the Bench then observes in para 27 that:
The crux of these judgments is it is not mandatory to take prior permission from the Magistrate for further investigation even after the filing of the charge sheet as it is the statutory right of the police. The material collected in further investigation cannot be rejected merely because it has been filed at the stage of trial.
Most significantly, the Bench minces no words to hold in para 28 that, Undoubtedly, the right to investigate includes the right to further investigate. Section 156 Cr.P.C. exists prior to the induction of Sub-Section 8 of Section 173 Cr.P.C. The Section 173(8) Cr.P.C. gives an unfettered right to Investigating Agency with no conditions and cannot be restricted in time since such restrictions does not exist in Statute. The Statute does not limit the right to investigate under Section 173(8) Cr.P.C. only till the trial begun.
Most remarkably, the Bench clearly states in para 31 that:
Thus, per law discussed above, though there is no bar for the investigating agency to further investigate the matter, but it would only be when some fresh evidence would come to its fore. Such fresh evidence would not come if the agency is sitting idle. For it the respondent shall have to make efforts, like in present case it has written letters to its foreign counterparts. Such evidence may come or not, one cannot predict at this moment, hence in case any fresh evidence is found which may be used against the petitioner it would certainly then be incumbent upon the respondent to inform the learned Special Judge and to seek its permission to further investigate the matter against petitioner.
Such right admittedly can be exercised by it even after trial begins. Thus while the observations of the learned Trial Court qua applicability of principle of obiter, is set aside but the trial must proceed and in the event any fresh/new material is found by the prosecution against the petitioner, it shall bring it to the notice of the Court to seek permission to further investigate, if necessary. The learned Trial Court would then decide the matter in accordance with law. However, presently since no fresh evidence is forthcoming and the respondent being only seeking queries, which may or may not come, and such queries being predominantly qua co-accused person, the petitioner cannot be allowed to stall the proceedings.
Finally, the Bench then concludes by holding in para 32 that:
In view of above observation, the petition stands disposed of. Pending application, if any, also stands disposed of. No order as to costs.
In a nutshell, the Delhi High Court has thus made it indubitably clear that Section 173(8) CrPC gives unfettered right to the investigating agency for further probe with no conditions and it cannot be restricted since such restrictions do not exist in the statute. Of course, all the courts must pay heed to what the Delhi High Court has held so very commendably in this leading case! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
