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1. : IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE27H DAY OF JANUARY , 2021 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR WRIT PETITION No.2208 OF2018(GM-RES) CONNECTED WITH CRIMINAL PETITION No.1928 OF2017CRIMINAL PETITION No.8678 OF2016IN W.P.NO.2208 OF2018BETWEEN: Sri. Chandappa Gowda S/o Poovani Gowda Aged about 44 years R/at Pangala House Dharmasthala Village Belthangady Taluk DK District. ... Petitioner (By Sri. Amar Correa - Advocate and Smt. Shridevi Bhosale - Advocate) AND:
1. Central Bureau of Investigation 36, Bellary Road, Dena Bank Colony Ganga Nagar Bengaluru – 560 032.
2. State of Karnataka Through the Sub-Inspector of Police Belthangady – 574214. :
2. :
3. Central Investigation Department Carlton House, Palace Road Bengaluru – 560 001.
4. Sri. Santhosh Rao S/o Sudhakar Rao Aged about 30 years R/at Sri. Nava Durga Prasad Near Housing Colony Kukkundooru Village Karkala Taluk, Udupi District Kukkundooru – 576117. ... Respondents (By Sri. P. Prasanna Kumar - Spl.PP for CBI – R1; Smt. Rashmi Jadhav – HCGP for R2 and R3; R4 served but unrepresented) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, pleased to direct the R-1 to reinvestigate RC.2[S]./2014-CBI/SCB/CHN [originally Crime No.250/2012 of the R-2 Police]. for offences punishable under Sections 376 and 302 of Indian Penal Code pending in the file of the L-Addl. City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.203/2016 which re-investigation this Hon’ble court may kindly be pleased to monitor vide Annexure-A. IN CRL.P.No.1928 OF2017BETWEEN1 Mr. Dhiraj Jain Aged 33 years Son of Raviraj Ajila R/at ‘Inchara’ Chandragiri, Dharmasthala Belthangady Taluk D.K. District-575175. :
3. :
2. Mr. Uday Jain Aged 38 years Son of Baby Kadamba R/at Preethi Nagar Dharmasthala Belthangady Taluk D.K. District-575175.
3. Mr. Malik Jain Aged 31 years Son of Megharaj Jain R/at Rajathagiri Dharmasthala Belthangady Taluk D.K. District-8575175. ... Petitioners (By Sri. P.P. Hegde, Advocate) AND1 The State Through the Investigating Sub Inspector of Police Officer Belthangady Police Station Belthangady and Inspector of Police C.B.I., Special Crime Branch Chennai.
2. Sri. Chandappa Gowda S/o Poovani Gowda Aged about 44 years R/at Pangala House Dharmasthala Village Belthangady Taluk D.K. District-575175. ... Respondents (By Smt. Rashmi Jadhav, HCGP for R-1; Sri P. Prasanna Kumar – Spl.P.P for CBI-R-1; Sri Amar Correa – Advocate for R-2) :
4. : This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, praying to set aside the impugned order dated 19.11.2016 passed by the court of L-Addl. City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.203/2016 allowing this petition filed by PW1/Respondent herein and summoning the petitioners as additional accused to appear on 29.11.2016 and also quash all further proceedings in Spl.C.C.No.203/2016 pending on the file of L-Addl. City Civil and Sessions Judge, Bengaluru against the petitioners in the said case. IN CRL.P.No.8678 OF2016BETWEEN1 Mr. Dhiraj Jain Aged 33 years Son of Raviraj Ajila R/at ‘Inchara’ Chandragiri, Dharmasthala Belthangady Taluk D.K. District-575175.
2. Mr. Uday Jain Aged 38 years Son of Baby Kadamba R/at Preethi Nagar Dharmasthala Belthangady Taluk D.K. District-575175.
3. Mr. Malik Jain Aged 31 years Son of Megharaj Jain R/at Rajathagiri Dharmasthala Belthangady Taluk D.K. District-8575175. ... Petitioners (By Sri. P.P. Hegde, Advocate) :
5. : AND1 The State Through the Investigating Sub Inspector of Police Officer Belthangady Police Station Belthangady, D.K. District Mangalore – 577013.
2. Inspector of Police C.B.I., Special Crime Branch Ganganagar Bangalore – 560087.
3. Sri. Chandappa Gowda S/o Poovani Gowda Aged about 44 years R/at Pangala House Dharmasthala Village Belthangady Taluk D.K. District-575175. ... Respondents (By Smt. Rashmi Jadhav, HCGP for R-1; Sri P. Prasanna Kumar – Spl.P.P for CBI-R-2; Sri Amar Correa – Advocate for R-3) This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, praying to set aside the impugned order dated 07.02.2017 passed by the L-Addl.City Civil and Sessions Judge, Bengaluru in Spl.C.C. No.203/2016 allowing the petition filed by P.W.1/ Respondent herein and summoning the petitioners as additional accused to appear on 29.11.2016 and also quash all further proceedings in Spl.C.C.No.203/2016 pending on the file of L-Addl. City Civil and Sessions Judge, Bengaluru against the petitioners in the said case. :
6. : These Writ Petition and Criminal Petitions coming on for Dictating Orders, this day, the court made the following:
ORDERShri Chandappa Gowda who is the complainant / first informant in Spl.C.No.203/2016 in Cr.No.250/2012 of Belthangady P.S. and so also arising in RC.2(S)/2014- CBI/SCB/CHN for the offences punishable under Section 376 and 302 of the IPC, 1860 has filed W.P.No.2208/2018 seeking for issuance of a writ of mandamus directing the first respondent / Central Bureau of Investigation to re- investigate the aforesaid case originally in Cr.No.250/2012, in respect of which investigation was done by the Investigating Agency and laid the charge- sheet against the accused in Spl.C.No.203/2016 vide Annexure-“A” and for such other order / direction deemed fit in the facts and circumstances of the case.
2. The petitioners in Crl.P.No.1928/2017 have filed the said petition aggrieved by the order dated 07.02.2017 passed by the L Addl. City Civil and Sessions Judge, Bengaluru allowing the petition filed by PW-1 / Respondent No.2 herein for further investigation in :
7. : Spl.Case No.203/2016 and have prayed to set aside the said order.
3. The petitioners in Crl.P.No.8678/2016 have filed the said petition seeking to set aside the impugned order dated 19.11.2016 passed by the Court of the L-Addl. City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.203/2016 allowing the petition filed by PW-1 and summoning the petitioners herein as additional accused and seeking further to quash all further proceedings in Spl.C.C.No.203/2016 in respect of the petitioners.
4. The petition in W.P.No.2208/2018 has been preferred by one Chandappa Gowda who is the first informant under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. seeking for a court monitored investigation to be conducted by the Respondent No.1 / CBI by way of re-investigation in respect of the original Cr.No.250/2012 dated 09.10.2012 registered by the Belthangady Police. Investigation has been conducted in the said case in Cr.No.250/2012 and :
8. : charge-sheet has already been filed in Spl.C.C.No.203/2016.
5. The father of the victim-Sowjanya, namely Chandappa Gowda had filed an application under Section 319 of the Cr.P.C. to summon three persons proposed as accused on the ground that there being material on record to show that they have committed the alleged offences. Accordingly, the Trial Court had directed to issue summons to the petitioners being proposed as accused in Cr.No.250/2012. The petitioners in Crl.P.No.8678/2016 namely Mr. Dhiraj Jain / first petitioner, second petitioner Mr. Uday Jain and third petitioner Mr. Mallik Jain have been proposed as accused in Spl.C.C.No.203/2016. Crl.P.8678/2016 is filed seeking to set aside the impugned order passed by the Trial Court in Spl.C.C.No.203/2016 dated 19.11.2016 allowing the petition filed by PW-1 / Chandappa Gowda and seeking to quash all further proceedings in Spl.C.C.No.203/2016 as against the said petitioners.
6. But however, the application under Section 319 Cr.P.C. has been filed by him after Chandappa Gowda was :
9. : examined as PW-1 in the aforesaid case wherein the Investigating Agency has laid the charge-sheet against the accused namely Santhosh Rao, S/o. Sudhakar Rao for offences under Section 376 and Section 302 IPC.
7. An application under Section 173(8) of the Cr.P.C. was filed by Chandappa Gowda / PW-1 in Spl.C.C.No.203/2016 seeking for further investigation in the matter and submitting the charge-sheet afresh. The Trial Court by its order dated 07.2.2017 directed the CBI to take the matter on priority basis and conduct further investigation by considering the observations made in the order and to submit the report by 24.04.2017. The same is borne out from the order-sheet maintained by the Trial Court in Spl.C.C.No.203/2016.
8. Crl.P.No.1928/2017 is relating to an order passed by the Trial Court in Spl.Case No.203/2016 in respect of the said application filed under Section 173(8) of the Cr.P.C. Similarly, Crl.P.No.8678/2016 is relating to an order passed by the Trial Court in Spl.Case No.203/2016 in respect of an application filed under Section 319 of the Cr.P.C. Therefore, these two petitions have to be disposed :
10. : of through this common order and so also the petition in W.P.No.2208/2018 whereby seeking issuance of a writ of mandamus directing the first respondent / CBI to re- investigate the case in Cr.No.250/2012 relating to the case in Spl.C.C.No.203/2016. The petitioner Chandappa Gowda who is a gravamen of the allegation made a complaint against the accused, has filed the writ petition seeking issuance of a writ of mandamus to re-investigate the matter.
9. Though the first one is a writ petition and other two are criminal petitions, as all these petitions arise out of the same Spl.Case No.203/2016, all the three petitions are heard together and are disposed of by this common order.
10. Heard the learned counsel Shri Amar Correa who is appearing for the original complainant namely Shri Chandappa Gowda / petitioner in W.P.No.2208/2018, for Respondent No.2 in Crl.P.No.1928/2017 and for Respondent No.3 in Crl.P.No.8678/2016. Further, heard the learned counsel Shri P.P. Hegde for the petitioners in Crl.P.No.1928/2017 and Crl.P.No.8678/2016, the learned :
11. : counsel Shri P. Prasanna Kumar, Spl. PP appearing for CBI in all the petitions and Smt. Rashmi Jadhav, learned HCGP for the State in all these petitions.
11. Though notice has been duly served in respect of all the petitions on Santhosh Rao who is arraigned as the accused in Spl.C.C.No.203/2016, but he remains unrepresented.
12. An FIR came to be registered in Cr.No.250/2012 of Belthangady Police Station for offences punishable under Sections 376 and 302 of the IPC as on 09.10.2012 on the basis of a missing complaint lodged by one Chandappa Gowda / CW-1, alleging that his daughter aged 17 years who was studying in II PUC was last seen at about 4.15 p.m. while she got down from the bus near Nethravathi Snana Ghatta, Dharmasthala, and thereafter, she was found missing.
13. Subsequently, on the basis of the complaint of one Jagadish / CW-2, the police submitted a report adding Sections 376 and 302 of the IPC, as the dead body of the deceased victim was found at about 12.20 noon on 10.10.2012 near a stream of water and it was suspected :
12. : that the deceased had been murdered by unknown persons. The case was transferred to the C.I.D., Bengaluru. On completion of investigation, the C.I.D. Police filed a charge-sheet against the accused Santhosh Rao for the offences under Sections 376, 302 and 201 of the IPC. Thereafter, the Government of Karnataka entrusted the investigation to the Central Bureau of Investigation (CBI) and in turn, the CBI on completion of their investigation, submitted the charge-sheet, confirming that accused Santhosh Rao had committed the offence of Sec.376 & 302 of IPC. The CBI had further concluded that no other person other than accused Santhosh Rao had committed the offence in any manner. Further, evidence has also commenced in the matter and CW-1 Chandappa Gowda has been examined as PW-1. In the course of his evidence, on the basis of the statement of CW-3 Smt. Yashoda, he had stated that he suspected the involvement of Mr. Dhiraj Jain, Mr. Uday Jain and Mr. Mallik Jain to be involved in the alleged offences. Hence, he filed an application under Section 319 Cr.P.C. seeking to issue summons to the said three persons, which came :
13. : to be allowed by the Court of the L-Addl. City Civil and Sessions Judge, Bengaluru, thereby summoning the said persons as additional accused.
14. Learned counsel for the petitioner Shri Amar Correa in W.P.No.2208/2018 has taken me through the initiation of the FIR in Cr.No.250/2012. The petitioner’s daughter by name Sowjanya, aged 17 years was a student of SDM, College, Ujire studying II PUC. As on 9.10.2012 at about 4.15 p.m., she was seen near Netravati Snana Ghatta, Dharmasthala wherein she had got down from bus after college and was walking towards her house. But however, since Sowjanya did not reach home even until late in the evening, that night at about 10.30 p.m. the petitioner approached the jurisdictional police and lodged a missing complaint of his daughter. The said first information came to be registered as FIR No.250/2012 on 9.10.2012 and investigation was taken up. The petitioner and his family members were searching for Sowjanya in and around the said place and on 10.10.2012 at about 12.30 p.m., the dead body of Sowjanya was found at a place called Mannasanka, by the bottom of a tree situated :
14. : by the side of a stream flowing from Dharmasthala towards Belthangady in front of Dharmasthala Naturopathy Hospital. Since clothes were found on her body only partially, the police recorded an FIR for offences under Sections 376 and 302 of the IPC and then took up the case for investigation. However, the accused Santhosh Rao was apprehended by the Belthangady Police on 11.10.2012 and then proceeded with the case for investigation in the presence of the accused, wherein he had led the police to the scene of crime, that is where the dead body of Sowjanya was lying. But on 22.11.2012, the case in Cr.No.250/2012 was handed over to the CID / Respondent No.3 in W.P.No.2208/2018 in pursuance of a Government order No.HD343PCB/2012 dated 22.11.2012. The CID had in turn took up the case for investigation on 22.11.2012 and then proceeded with the case for investigation and during investigation, recorded the statement of several witnesses and more importantly, the statement of one Miss Varsha. Accordingly, investigation was taken up by Respondent No.3 / CID and investigation has proceeded falling in line with :
15. : investigation conducted earlier by the Belthangady P.S. in Cr.No.250/2012. Subsequent to registration of the aforesaid crime, the investigation was done in part by the Belthangady P.S. But however, pending further investigation by the CID / Respondent No.3 under Section 173(8) Cr.P.C., the Government of Karnataka vide Govt. order No.HD6COD/2013 Bengaluru dated 6.11.2013, transferred the investigation to the CBI under Sections 5 and 6 of the Delhi Special Police Establishment Act. Statements under Section 161 of Cr.P.C. of about 40 witnesses were recorded. Certain evidence earlier collected during earlier investigation made by the Belthangady Police and also CID were made part of the record of investigation conducted by the CBI. Subsequently, upon completion of investigation on 26.10.2017, the CBI filed a charge-sheet against the accused / Santhosh Rao for offences punishable under Sections 376 and 302 of the IPC, 1860.
15. As on 10.10.2012 at about 12.30 p.m., the dead body of the daughter of the petitioner was found at a place called Mannasanka. The state of the body looked that :
16. : there had been forceful sexual intercourse. Clothes were found on her body only partially and the hands of the girl were tied to a tree and her school bag was lying just by her side. One Jagadish who is none other than the relative of the deceased Sowjanya had filed another complaint before the Respondent No.2 / Belthangady P.S. After receiving the said complaint, the case in Cr.No.250/2012 was registered by the Belthangady P.S. for offences under Sections 376 and 302 of the IPC and the case was taken up for investigation. However, investigation was not done properly as against the culprits / offenders who are alleged to have committed the murder of the deceased Sowjanya by committing forceful sexual intercourse on her.
16. But the post-mortem report reveals injuries in the form of abrasion and contusion, which was observed and noticed on several parts of the body of the deceased including both hands and upper part of back and lower part of back.
17. But on an examination of the private parts of the deceased Sowjanya, lacerated and bleeding injuries were :
17. : found and so also certain mud particles were seen on her private parts.
18. This aspect has not been properly considered by the Investigating Agency even at the initial stage by the Belthangady P.S. and even in further investigation by the CID arraigned as Respondent No.3 and so also investigation by the CBI, Chennai in pursuance of the order passed by the Government of Karnataka.
19. The second limb of the argument advanced by the learned counsel for the petitioner namely Amar Correa by referring the name of the accused Santhosh Rao, but he was apprehended by the local police, that is Belthangady police. But the counsel has taken the contention that the accused Santhosh Rao was apprehended by the locals, one being Malik Jain and another Ashrith Jain along with others. It is said that while they were coming down by steps from Bahubali Betta, they noticed one person sitting in the dark area at around 6.45 – 7.00 p.m. and on enquiry, he had told that he was waiting for someone. But they had informed him that nobody was available at Bahubali Betta in the :
18. : premises of Dharmasthala shrine. The said person who was then apprehended, made an attempt to take heel from there on seeing the persons. But the local persons said to have apprehended and had manhandled him. He was beaten and then handed over to the Belthangady P.S. The investigation records also indicate that the accused Santhosh Rao was subjected to medical examination on 12.10.2012 under the relevant provisions of the Cr.P.C. After taking the said Santhosh Rao to custody, he was arrested and it is stated that he confessed to the crime. The investigation further reveals that on 13.10.2012, the accused had led the police to the scene of occurrence in the presence of panchas and he had pointed out to the place where he committed the rape and murder of the said girl Sowjanya. The Belthangady police had conducted mahazar in the presence of panch witnesses and they have also seized several material objects which have been referred. The clothes of the deceased Sowjanya and other articles were seized at the scene of occurrence and were forwarded with a letter dated 18.10.2012 to the Forensic Science Laboratory for chemical analysis to gather the :
19. : DNA profile and more specifically in respect of any semen of the accused to be matching with any content of the same found on the clothes of the deceased, in respect of any blood stain found on the deceased Sowjanya matching with the blood sample of the accused Santhosh and so also in respect of the material object of hair. Further, the police also recorded the statements of several witnesses as contemplated under Section 161 of the Cr.P.C. This aspect is very much required for further investigation even as contemplated under Section 173(8) of the Cr.P.C. wherein the petitioner Chandappa Gowda has filed an application seeking for further investigation. The said petitioner Chandappa Gowda in W.P.No.2208/2018 is seeking for issuance of a writ of mandamus directing the first respondent / CBI to re-investigate the matter, taking into consideration the statement of Varsha who is acquainted with the deceased Sowjanya. But the CID, in pursuance of the order passed by the Government has proceeded its investigation in line with the investigation that was carried out by the Belthangady P.S. in Cr.No.250/2012. During investigation done by the CID, :
20. : they had filed a charge sheet in the form of an interim charge-sheet but had sought permission to continue the investigation as contemplated under Section 173(8) Cr.P.C. and also had sought for a direction to re- investigate by issuance of a writ of mandamus.
20. Though the CID has investigated the case even after laying the final report, but in pursuance of the order passed by the Government of Karnataka, the investigation was taken up by the CBI / Respondent and subsequent to completion of the investigation the CBI had laid a charge- sheet against the accused Santhosh Rao as on 26.10.2017. Accordingly, the accused was charge-sheeted for the offences under Sections 376 and 302 of the IPC. But the statement of Varsha who was acquainted with Sowjanya, her statement would indicate that on 9.10.2012 when this witness Varsha was walking by the road, that at around 1.15 p.m. while she was walking around the place where the dead body of Sowjanya was found, she had seen two persons, one person sitting on a motor bike and another person walking towards the person sitting on the bike and telling that nothing can be :
21. : done at that place. This witness Varsha states that she then went ahead and boarded a bus to proceed towards her college. This witness happens to be studying in the same college where the deceased Sowjanya was studying. Keeping in view the statement of Varsha and the charge- sheet laid by the CID / Respondent No.3 and even the charge sheet finally laid by the CBI, that the statement of this witness Varsha seems to have a vital role in the case of the prosecution. But the statements of 40 witnesses under Section 161 Cr.P.C. has been recorded by the I.O. Further, certain evidence earlier collected by the Belthangady P.S. and also CID / Respondent No.3 also have been made part of the record of the investigation conducted by the CBI / Respondent No.1. Though the investigation has been done thoroughly as contemplated under Section 173(2) of the Cr.P.C., but the proper investigation has not been carried even at the earlier stage in Cr.No.250/2012 and even later on it has been transferred to the CID and in pursuance of the order passed by the Government of Karnataka, the investigation was transferred to the CBI. The learned counsel has :
22. : sought for fair investigation to be done by the Investigating Agency by directing the CBI to investigate the case afresh in Cr.No.250/2012 by issuing a writ of mandamus.
21. The counsel has sought that the investigation has to be proceeded further as contemplated under Section 173(8) Cr.P.C. though the previous investigation is in conformity with Section 173(2) Cr.P.C., wherein PW-1 Chandappa Gowda has been examined in Spl.C.C.No.203/2016 and thereafter based upon his application, the Special Judge by order dated 07.02.2017 has ordered the CBI to take this matter on priority basis and to conduct further investigation by considering the observations made in the order and thereafter to lay the charge sheet in respect of Cr.No.250/2012.
22. But however, the learned counsel contends that Investigating Agency has not done the investigation fairly and also not properly conducted the investigation but had concluded the investigation and laid the charge-sheet. But it would be gathered that the petitioner Chandappa Gowda is seeking for a direction to the CBI under Article :
23. :
226. of the Constitution of India by way of issuance of a writ of mandamus since the investigation has not been conducted properly and such failure being apparent on record, there can be absolutely miscarriage of justice to the gravamen of the complainant Chandappa Gowda who is an instrument of the complaint in Cr.No.250/2012 and also examined as PW-1 in the aforesaid case of Spl.C.C.No.203/2016.
23. The overall investigation that has been conducted by three different Investigating Agencies have all been unfair and in some manner prejudicial to the cause which had been taken up by them. Therefore, the petitioner Chandappa Gowda has filed the writ petition under Article 226 of the Constitution of India for seeking fair investigation to identify the real perpetrator / offender / felony in the murder of his daughter Sowjanya and who had committed sexual intercourse on her. The Investigating Agency though has laid the charge-sheet against the accused in Spl.C.C.No.203/2016 and moreover the accused Santhosh Rao is facing trial, but unfair and improper investigation has been conducted by :
24. : the Investigating Agency, which is certainly failure of criminal justice delivery system.
24. The learned counsel Shri Amar Correa has relied on the following citations, in support of his case: CHANDRA DEO SINGH VS PROKASH CHANDRA BOSE & ANR - (1964) SCR639 AIR1963SC14307. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued ; nor can he examine any witnesses at the instance of such a person. of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. Sethi for respondent No.1 that the very object of the provisions of Ch. XVI of the' Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, :
25. : according to Mr. Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects, behind the provisions of s. 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of respondent No.1 but from the fact that they were persons who were alleged to have been the -associates of respondent No.1 in the first information report lodged by Panchanan Roy and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for respondent No.1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate is vitiated. In this connection; the' observations of this court in Vadilal Panchal v. Dattatraya Dulaji Ghadigsonkar (1), may usefully be quoted: :
26. :
"The enquiry is for the purpose of ascertaining the truth or falsehood of the complaint that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the 'accusation made against him only when a process has issued and he is put on trial."
NARENDRA G. GOEL //VS// STATE OF MAHARASTRA AND ANOTHER – (2009) 6 SCC6511.It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC740 this Court observed-
"11. …There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
SRI BHAGWAN SAMARDHA SREEPADA VALLABHA VENKATA VISHWANANDHA MAHARAJ //VS// STATE OF A.P. AND OTHERS – (1999) 5 SCC74010. Power 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 offence on the strength of the police report first submitted, it is open to the police to conduct :
27. : further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) (AIR1979SC1791. 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.
11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation. RAM LAL NARANG //VS// STATE (DELHI ADMINISTRATION) - (1979) 2 SCC32217. In H. N. Rishbud v. The State of Delhi(7),this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case. While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance. It was held that where cognizance of the case had, in fact, been taken and the case had proceeded to termination, the invalidity of the precedent investigation did not vitiate the result unless miscarriage of justice had been caused thereby. It was said that a defect or illegality in investigation, however serious, had no direct bearing on the competence of the procedure relating to cognizance or trial. However, it was observed:
"It does not follow that the invalidity of the investigation is to be completely ignored by a Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining :
28. : cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for". This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.
20. Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ?. After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action :
29. : a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
21. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. 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 desi ed 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. :
30. : BHAGWANTH SINGH //VS// COMMISSIONER OF POLICE AND ANOTHER – (1985) 2 SCC5374. Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub- section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence apppears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub- section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the :
31. : informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant connot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.
5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice lo the injured :
32. : person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at that time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative of or relatives the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report. KISHAN LAL //VS// DHARMENDRA BAFNA AND ANOTEHR – (2009)7 SCC6851. Jurisdiction of a Magistrate to direct reinvestigation of a case from time to time as laid down under sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973 (for short, "the Code") is the question involved in this appeal 6. The said application was disposed of by the learned single judge of the High Court in the following terms:
"8. Therefore in the considered view of this order, the above criminal original petition can be disposed of with the following directions:- The petitioner is at liberty to file an appropriate petition before the III Metropolitan Magistrate,George Town, Chennai, incorporating his grievances and the alleged lapses on the part of the investigating agency and seek further investigation in the case. On such petition being filed, the learned Magistrate, shall consider the same in :
33. : accordance with law and if the learned Magistrate is satisfied that a case has been made out by the petitioner for ordering further investigation under Section 173(8) of the Criminal Procedure Code, the learned Magistrate is entitled to invoke the powers under Sections 173(8) of the Criminal Procedure Code and direct the respondent to further investigate into the matter.
8. Mr.K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the appellant would contend: (i) The High Court committed a serious error in opining that no direction for further investigation or reinvestigation can be directed after cognizance of an offence is taken.
9. Mr. U.U. Lalit, the learned Senior Counsel appearing on behalf of the accused other than accused Nos. 2 and 6, on the other hand, urged: (i) Despite the fact that the learned Magistrate had the requisite jurisdiction to direct further investigation, such order could not have been passed in the instant case as all aspects of the matter had been taken into consideration by the Investigating Officers.
15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.
16. The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. SAMAJ PARIVARTAN SAMUDAY AND OTHERS //VS// STATE OF KARNATAKA AND OTHERS - (2012) 7 SCC407:
34. :
27. Once the investigation is conducted in accordance with the provisions of the Cr.P.C, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with non-obstante language that nothing in the provisions of Section 173(1) to 173(7) 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. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr. [(2001) 7 SCC536}. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made.
30. Still in another case, taking the aid of the doctrine of implied power, this Court has also stated that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such statutory power effective. Therefore, absence of statutory provision empowering Magistrate to direct registration of an FIR would not be of any consequence and the Magistrate would nevertheless be competent to direct registration of an FIR. (Ref. Sakiri Vasu v. State of Uttar Pradesh & Ors. [(2008) 2 SCC409).
56. Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty :
35. : of the Court and any lapse in this regard would tantamount to error of jurisdiction.
57. In the case of Rama Chaudhary v. State of Bihar [(2009) 6 SCC346, this Court was considering the scope of Sections 173(8), 173(2) and 319 of the CrPC in relation to directing further investigation. The accused raised a contention that in that case, report had been filed, charges had been framed and nearly 21 witnesses had been examined and at that stage, in furtherance to investigation taken thereafter, if a supplementary charge- sheet is filed and witnesses are permitted to be summoned, it will cause serious prejudice to the rights of the accused. It was contended that the Court has no jurisdiction to do so. The Trial Court permitted summoning and examination of the summoned witnesses in furtherance to the supplementary report. The order of the Trial Court was upheld by the High Court.
58. While dismissing the special leave petition, a Bench of this Court observed : “14. Sub-section (1) of Section 173 CrPC makes it clear that every investigation shall be completed without unnecessary delay. Sub- section (2) mandates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the name of the parties, nature of information, name of the persons who appear to be acquainted with the circumstances of the case and further particulars such as the name of the offences that have been committed, arrest of the accused and details about his release with or without sureties.
15. Among the other sub-sections, we are very much concerned about sub-section (8) of Section 173 which 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 :
36. : 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).” A mere reading of the above provision makes it clear that irrespective of the report under sub-section (2) forwarded to the Magistrate, if the officer in charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited”.
16. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.
18. Sub-section (8) of Section 173 clearly envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a “further” report and not a fresh report regarding the “further” evidence obtained during such investigation.
19. As observed in Hasanbhai Valibhai Qureshi v. State of Gujarat the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of the investigating agency for further investigation should not be tied down on the ground of mere delay. In other words: “13. …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.” :
37. : RAMA CHUDHRY //VS// STATE OF BIHAR – (2009) 6 SCC34615. Among other sub-sections, we are very much concerned about sub- section (8) which 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)."
A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. The abovesaid provision also makes it clear that further investigation is permissible, however, reinvestigation is prohibited. VINAY TYAGI //VS// IRSHAD ALI ALIAS DEEPAK AND OTEHRS – (2013)5 SCC7621. The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal: Question No.1.1 : 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 :
38. : 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?.
21. The “initial investigation” is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code.
22. “Further investigation” is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It 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.
23. 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 :
39. : 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’.
25. In the case of Gudalure M.J.
Cherian & Ors. v. Union of India & Ors. [(1992) 1 SCC397, this Court stated the principle that in cases where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders.
29. Now, we come to the former question, i.e., whether the Magistrate has jurisdiction under Section 173(8) to direct further investigation.
33. This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also :
40. : exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC536 where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court’s revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation.
34. In support of these principles reference can be made to the judgments of this Court in the cases of Union Public Service Commission v. S. Papaiah & Ors [(1997) 7 SCC614, State of Orissa v. Mahima [(2003) 5 SCALE566, Kishan Lal v. Dharmendra Bhanna & Anr. [(2009) 7 SCC685, State of Maharashtra v. Sharat Chandra Vinayak Dongre [(1995) 1 SCC42.
35. We may also notice here that in the case of S. Papaiah (supra), the Magistrate had rejected an application for reinvestigation filed by the applicant primarily on the ground that it had no power to review the order passed earlier. This Court held that it was not a case of review of an order, but was a case of further investigation as :
41. : contemplated under Section 173 of the Code. It permitted further investigation and directed the report to be filed.
36. Interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be noticed that this Court, while pronouncing its judgment in the case of Hemant Dhasmana v. CBI, (supra) has specifically referred to the judgment of S. Papaiah (supra) and Bhagwant Singh v. Commissioner of Police & Anr. [(1985) 2 SCC537. While relying upon the three Judge Bench judgment of Bhagwant Singh (supra), which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the Magistrate could drop the proceedings after filing of a report under Section 173(2), without notice to the complainant, but in paragraph 4 of the judgment, the three Judge Bench dealt with the powers of the Magistrate as enshrined in Section 173 of the Code.
38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct ‘further investigation’ and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in the case of Bhagwant Singh (supra) has, in no uncertain terms, stated that principle, as afore- noticed.
39. The contrary view taken by the Court in the cases of Reeta Nag (supra) and Randhir Singh (supra) do not consider the view of this Court expressed in Bhagwant Singh (supra). The decision of the Court in Bhagwant Singh (supra) in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three Judge Bench concluded as afore-noticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh (supra), are thus squarely in line with the doctrine of precedence. To some extent, the view expressed in Reeta Nag (supra), Ram Naresh (supra) :
42. : and Randhir Singh (supra), besides being different on facts, would have to be examined in light of the principle of stare decisis.
40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :
40. 1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report. 4.2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code. 40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh’s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence. 40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. :
43. :
40. 6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue ‘further investigation’ and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case.
46. The Code does not contain any provision which deals with the court competent to direct ‘fresh investigation’, the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a ‘fresh’/‘de novo’ investigation, but unless it 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 learned Magistrate has 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. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction. BHARATI TAMANG //VS// UNION OF INDIA AND OTHERS – (2013) 15 SCC5785. According to the petitioner, though the occurrence had taken place in a public place and there were several eye-witnesses to the incident and also various other clinching materials with the prosecution, there was a deliberate attempt on behalf of the prosecution to suppress the truth to enable the real culprits escape from the clutches of the police. Mr. Rohatgi learned senior counsel brought to our notice a newspaper clipping in which the photograph of the deceased Madan Tamang was displayed in a seriously injured condition, who was :
44. : assisted by one of his supporters, as well as, few policemen and submitted that the person who assisted the deceased Madan Tamang was not even examined and his statement was not recorded immediately in order to find out the real culprits.
10. Mr. Rohatgi learned senior counsel in his submissions made it clear that he was not attempting to rely upon the said statement knowing full well as to what extent the said statement under Section 161 can be used. But according to learned senior counsel, the contents of the said statement would give enough scope for the investigating agency to unearth the truth and that inspite of such abundant information available, there was total sluggishness in the investigation process. In our opinion, to some extent, we do find considerable force in the said submission.
22. The learned senior counsel contended that in the course of trial if the trial Court is convinced of the involvement of any other person in the act of crime, the Court has enormous powers under Section 319 Cr.P.C. and by invoking the said power the trial Court can always implicate any other person as accused, but certainly in a writ petition under Article 32 of the Constitution such direction cannot be issued.
23. Mr. Rohatgi learned senior counsel while countering the submissions of Mr. Ram Jethmalani learned senior counsel contended that the petitioner does not pray to this Court to find anyone guilty nor even add anyone as accused. According to Mr. Rohatgi, learned senior counsel, the petitioner is a widow, whose husband was done to death in broad day light in the presence of witnesses, police personnel and other security persons, that since authenticated official transcription of interceptions are available there should have been proper investigation and the culprits must have been brought to book. He further contended that the very fact that the State police and CID displayed their total disinclination to book the real culprits and hold proper investigation to unearth the truth, the case was handed over to CBI. Since for more than two years many of the accused were freely moving around the Darjeeling town, who were not apprehended and the real :
45. : culprits were not brought to book even after the investigation was taken over by the CBI, it became imminent for the petitioner to approach this Court.
25. The learned senior counsel would, therefore, contend that this Court should order for reinvestigation by keeping in abeyance the trial commenced already based on a tardy investigation by entrusting the whole case to a Special Investigation Team governed by the provisions of the special Act of the National Intelligence Agency or any other independent body. The learned senior counsel also contended that in the interest of justice and fair-play, the case should be transferred to any other nearby State.
33. We also wish to refer to some of the decisions relied upon by Mr. Rohatgi learned senior counsel for the petitioner as to how far the grievances of the petitioner can be redressed in this proceedings. In the famous decision of Zahira Habibulla H. Sheikh (supra), this Court has expressed its strong view as to the necessity of courts to be alive to the situations where genuine grievances were brought to its notice for redressal. Paragraphs 54 and 56 are relevant for our purpose and the relevant portions therein read as under: “54……When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice- delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.” 56……“The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.” Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only :
46. : in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice”. The above principles makes the position clear to the effect that the administration of justice, lethargic action of courts may result in failure of justice and, therefore, when deficiency in investigation or prosecution is visible or can be perceived by lifting the veil and thereby tried to hide the realities the Court should deal with the same with the iron hand appropriately within the framework of law.
38. Therefore, at times of need where this Court finds that an extraordinary or exceptional circumstance arise and the necessity for reinvestigation would be imperative in such extraordinary cases even de novo investigation can be ordered.
40. In the decision of Ram Jethmalani and others Vs. Union of India and others reported (2011) 8 SCC1(to which one us Justice S.S. Nijjar was a party) considering the nature of grievances expressed by the writ petitioner, constituted a High Level Committee as an Special Investigation Team in order to ensure that an effective investigation is carried out and the culprits were brought to book.
46. In that view we issue following directions:
46. 1. The pending Sessions case on the file of Sessions Judge, Darjeeling shall be transferred to the Principal District and Sessions Judge of the Calcutta Civil and Sessions Court. Such transfer shall be effected by the Sessions Court, Darjeeling to the file of the Principal Judge of the Calcutta Civil Court along with all the records and :
47. : material objects within two weeks from the date of production of the copy of this order. 46.2. On such transfer of records being made by the Sessions Judge, Darjeeling and receipt of the same along with the material objects, the Principal District and Sessions Judge of the Calcutta Civil and Sessions Court shall forthwith commence the proceedings by ensuring the presence of all concerned both accused as well as the prosecution agency. 46.3. The investigation shall continue to be carried out by the CBI but shall be monitored closely by Mr. Rajiv Singh, Joint Director, CBI. 46.4. The investigation by the CBI shall ensure that all required evidence are gathered by proceeding to make further investigation in order to ensure that no stone is left unturned in proceeding with the case of the prosecution and all accused involved in the offence are brought before Court for being dealt with in accordance with law. 46.5. The trial which was commenced in the absence of the arrest of the remaining accused shall not be proceeded with until the CBI concludes its further investigation and submit its comprehensive report before the transferred Court, namely, the Principal District and Sessions Judge of the Calcutta Civil and Sessions Court and such comprehensive report shall be filed expeditiously preferably within three months from the date of pronouncement of this order. 46.6. The Principal District and Sessions Judge of the Calcutta Civil and Sessions Court shall commence the trial after the comprehensive final report is filed by the CBI and all the accused concerned are brought before Court for the trial. 46.7. Simultaneously the CBI shall file a copy of its comprehensive report before this Court in this writ petition for passing further directions if any required. 46.8. The Principal District and Sessions Judge of the Calcutta Civil and Sessions Court will also be at liberty to :
48. : approach this Court and seek for appropriate directions in order to ensure that the directions issued by this Court are duly complied with. 46.9. It is needless to state that to enable the CBI, the Prosecuting Agency and the trial Court to effectively comply with our directions, the State Government, Departments of the Central Government and all other agencies whose assistance is required by the CBI or the Court shall render the required support without giving room for any delay being caused in proceeding with the trial. ZAHIRA HABIBULLA H. SHEIKH AND ANOTHER //VS// STATE OF GUJRAT AND OTHERS – (2004) 4 SCC158Criminal Procedure Code, 1973 – S. 173(8) – Reinvestigation – Scope for – on facts, since there was unanimity on part of both parties that investigation was tainted, biased and not fair, though for different reasons, investigating agency directed to act in terms of S. 173(8) – Director General of Police directed to monitor such reinvestigation. H.N.RESHBUD AND INDER SINGH V. STATE OF DELHI (1955) 1 SCRF1150 AIR1955SC196 “It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention :
49. : of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined. :
50. : Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC322“As in the present case, occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrates themselves may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency. It was submitted to us that the submission of a charge-sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court. We do not think that the prosecution acted with any oblique motive. In the charge-sheet filed in the Delhi Court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 Criminal Procedure Code, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would have done better if it had informed the Ambala Magistrate and sought his formal permission for the second investigation, we are satisfied that the investigating agency did not act out of any malice. We are also satisfied that there has been no illegality. Both the appeals are, therefore, dismissed. KISHAN LAL VS. DHARMENDRA BAFNA AND ANOTHER (2009) 7 SCC685Criminal Procedure Code, 1973 – Ss.173(8) and 319 – High Court and Supreme Court setting aside Magistrate’s direction for further investigation and concurrently holding that further investigation by Magistrate under S.173(8) :
51. : was not warranted in respect of accused persons A-3 to A_10 – Effect – Said direction, held, neither closes the future options of further investigation under S.173(8) nor closes application of S.319 to proceed against additional offenders. IN HEMANTH DHASHMANA VS. CBI AND ANOTHER (2001) 7 SCC536“When the report is filed under the Sub-section the magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offences were also detected, the Court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contrary conclusions made by the investigating officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging therefrom and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code. Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further :
52. : investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judges direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck. It is not within the province of the magistrate while exercising the power under Section 173(8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. Therefore, the direction made by the Special Judge that further investigation shall be conducted by an officer of the DIG rank of the CBI, will stand deleted. Though the investigation was conducted by the CBI the provisions under Chapter XII of the Code would apply to such investigation. The police referred to in the Chapter, for the purpose of investigation, would apply to the officer/officers of the Delhi Police Establishment Act. On completion of the investigation the report has to be filed by the CBI in the manner provided in Section 173(2) of the Code, with the exception that the magistrate referred to in the section would be understood as a Special Judge when the offence involved are under the Prevention of Corruption Act, 1988. IN UNION PUBLIC SERVICE COMMISSION VS. S.PAPAIAH (1997) 7 SCC614“S.173(8) – Power of Magistrate to direct further investigation after acceptance of final report and closure of the case – Short coming necessitating reinvestigation :
53. : brought to the notice of the Magistrate by the informant but he refused to direct reinvestigation holding to exercise jurisdiction vested in him by law – He was not required to review the order but to order further investigation into the case which he was competent to do under S.173(8) IN STATE OF ORISSA VS. MAHIMA ALIAS MAHIMANANDA MISHRA (2007) 15 SCC580“S.173(8) – Further investigation – Long after submission of final form – Held, valid – Order for further investigation cannot be interfered with by High Court in exercise of its revisional power on ground that examining the witnesses who were examined at the time of the earlier investigation, recording their statements 5½ years after submission of the final form and further investigation on the basis of such statement would amount to abuse of process of court – Power under sub-section (8) is of widest amplitude and is not of such restrictive nature”. VINAY TYAGI VS. IRSHAD ALI ALIAS DEEPAK AND OTHERS (2013) 5 SCC762“Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the Court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code. Investigation can be of the following kinds : (i) Initial Investigation. (ii) Further Investigation. (iii) Fresh or de novo or re-investigation. The initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order :
54. : for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It 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. 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.” :
55. : SAKIRI VASU VS. STATE OF UTTAR PRADESH AND OTHERS (2008) 2 SCC409Constitution of India – Art.226 – Interference in criminal matters – when can High Court direct inquiry by CBI - Reiterated, only if material no record discloses prima facie case calling for investigation by CBI or any other similar agency – Not as a matter of routine merely because a party makes some allegation – Allegation of murder against army authorities – Investigation by GRP, Mathura and two inquiries by army authorities concluding it to be a case of suicide – on facts, held, the mere allegation of the appellant that his son was murdered because he had discovered some corruption could not justify a CBI inquiry. VINUBHAI HARIBHAI MALAVIYA AND OTHERS VS. STATE OF GUJARAT AND ANOTHER (2019) 17 SCC1Criminal Procedure Code, 1973 – Ss.156(3) and 173(8) – Magistrate’s power under S.156(3) Cr.PC – Scope of – Held, is very wide – Under S.156(3) Cr.P.C, by virtue of Art.21 of the Constitution, all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation in the matter in the sense of a fair and just investigation by the police – Said power includes ordering of further investigation after submission of police report under S.173(2) Cr.P.C – Exercise of that power is available even at post-cognizance stage until trial commences, i.e., charges are farmed – This power can also be exercised suo motu by the Magistrate himself, depending on the facts of each case K.V.RAJENDRAN VS. SUPERINTENDENT OF POLICE, CBCID SOUTH ZONE, CHENNAI AND OTHERS (2013) 12 SCC480- Complainant and associate Professor of Physics, (appellant herein) filing a complaint against RDO and others that they forcibly apprehended him, treated him with utmost cruelty and injured him – High Court directing registration of FIR – Final police report under S.173(2) CrPC filed but Magistrate had not passed a final order accepting :
56. : said report or directing further investigation under S.173(8) CrPC – Facts and circumstances implying that accused (RDO) could not have influenced the investigation because in the meantime (i.e., 15 yrs), the RDO had been transferred several times and many police officers might have investigated the same case – Though there has been delay in investigation, complainant(appellant herein) neglecting in approaching the court for relief – Though complainant had brought allegation of malafides against police officers, said allegations were non-specific – Complainant could not produce any subsequent development warranting transfer of case to CBI after a similar prayer had been rejected by supreme Court on 2.9.2008 – High Court considering all circumstances and manner in which investigation was conducted, had declined to interfere- Held facts and circumstances of the case do not present any special feature warranting transfer of investigation to CBI – Therefore, there are no cogent reasons to interfere with impugned judgment and order of High Court. SHREE SHREE RAM JANKI JI ASTHAN TAPOVAN MANDIR VS. STATE OF JHARKHAND (2019) 6 SCC777- Held, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person’s involvement is prima-facie established, but direction to CBI, or any other authority, to investigate whether any person has committed an offence or not cannot be legally given – Such direction would be contrary to concept and philosophy of life and liberty guaranteed to a person under Art.21 of the Constitution.
25. On all these grounds, the learned counsel for the petitioner Shri Amar Correa in the writ petition is seeking to allow the writ petition and consequently issue a writ of mandamus directing the first respondent to re-investigate :
57. : the case in Cr.No.250/2012 and so also re-investigate the case registered by the CBI in RC.2(S)/ 2014/CBI/SCB/CHN.
26. The learned Special Public Prosecutor Shri P. Prasanna Kumar for the CBI and the learned HCGP for the State / Belthangady P.S. have submitted by referring the case in Cr.No.250/2012 and so also the charge-sheet laid by the Investigating Agency, that thorough investigation has been done and that the charge-sheet has been laid against the accused in respect of the murder of the deceased Sowjanya and also as against the allegation of having forcible sexual intercourse on her. But the Investigating Agency even at the initial stage at Belthangady has registered a case in Cr.No.250/2012 where the dead body of Sowjanya was lying in a thick bushes at Mannasanka with partial clothes on her body and also her body was found tied to the stem of a tree using the shawl of her college uniform. But the complaint was given by Jagadish on 10.10.2012 and based upon his complaint, Cr.No.250/2012 came to be registered and also based on the missing complaint dated 9.10.2012 given by :
58. : Sowjanya’s father Chandappa Gowda. Sowjanya was a college going student studying II PUC at Dharmasthala Manjunatha College, Ujire and had left for college on 9.10.2012 but she did not return to her house even though she was seen by her uncle Vittal Gowda during evening while she was walking towards her house. The investigation was initially taken up by the Belthangady P.S. and on an order passed by the Government of Karnataka by entrusting the case to the CID, the same was handed over to CID, who filed an interim charge-sheet. But thereafter, the Government once again passed a Government order entrusting the said case to the CBI. The Investigating Agency had thoroughly investigated the case and laid the charge-sheet against the accused in Cr.No.250/2012 registered by the Belthangady P.S. against Santhosh Rao who is facing trial. On the part of the prosecution, PW-1 to PW-18 have been examined. Even the test in the form of forensic report and even other material have been collected by the Investigating Agency and laid the charge sheet against the accused. When once prosecution has subjected to examination the witnesses :
59. : and so also subjected to marking of certain material documents collected by the Investigating Agency and though evidence finds place on the part of the prosecution side, even other perpetrators who were also involved in the activities relating to the murder of the deceased Sowjanya and so also having forcible sexual intercourse on her even found in the PM report issued by the Doctor who conducted autopsy over the dead body and observed the conditions of the dead body and also the position of the dead body lying at the scene of crime wherein inquest mahazar was conducted by the Investigating Agency. But the petitioner Chandappa Gowda who is an instrument of the missing complaint filed by him relating to missing of his daughter Sowjanya and even later Jagadish who is relative of the deceased had filed a complaint and based upon his complaint, the case in Cr.No.250/2012 has been registered by the Belthangady P.S. for offences under section 376 and 302 of the IPC, 1860.
27. He contends that there is no specific contention in the writ petition filed by Chandappa Gowda for seeking to issue a writ of mandamus directing the first respondent :
60. : / CBI to re-investigate the case in Cr.No.250/2012. However, the petitioner Chandappa Gowda who is the father of the deceased Sowjanya and he has suspected about the perpetrator / accused persons were also involved in committing the murder of his daughter Sowjanya and also having had forcible sexual intercourse on her.
28. Heard the learned counsel Shri P.P. Hegde for the petitioner in Crl.P.No.1928/2017 and Crl.P.No.8678/2016. Based upon the missing complaint filed by Chandappa Gowda, father of deceased Sowjanya and so also based on the complaint filed by Jagadish, criminal law has been set into motion by registering the case in Cr.No.250/2012 by Belthangadi P.S. and investigation has been carried and conducted a mahazar and so also the dead body of Sowjanya was sent for autopsy. The Court received the Autopsy report of the deceased Sowjanya. This counsel has extensively addressed arguments in both the petitions by referring to the investigation regarding the official report submitted by the Investigating Agency under Section 173(2) of the Cr.P.C. During the investigation, the Investigating Agency has recorded the sworn statement :
61. : and so also conducted mahazar in the presence of panch witnesses and so also the material objects which were recovered during conduct of the mahazar has been subjected to PF in PF No.140/12, PF No.141/12 dated 13.10.2012, PF No.145/12 dated 13.10.2012, PF No.147/12 dated 13.10.2012, PF No.148/12 dated 13.10.2012, PF No.150/2012 dated 13.10.2012 and PF No.189/2012 and so also referred evidence orally during the course of investigation carried on by the I.O. and laid the charge-sheet against Santhosh R @ Santhosh Rao, which finds place in the record referring to the witness CW-44. But it is relevant to state that CW-44 who is the Investigating Officer who speaks about the entire investigation and filed the charge-sheet against Santhosh @ Santhosh Rao for offences under Section 376 and 302 IPC. Chandappa Gowda being the father of the deceased Sowjanya was examined as PW-1.
29. It is submitted that the application was filed under Section 173(8) of Cr.P.C. for further investigation and to submit the further report/additional charge sheet in respect of Crime No.250/2012. But application under :
62. : Section 319 of Cr.P.C is filed by the PW.1-Chandappa Gowda or the prosecution seeking for impleading of the petitioner respectively. It is based upon the evidence of PW.1- Chandappa Gowda and so also the evidence of other witnesses as PW.2 to 18. But when once the charge sheet has been laid by the investigating agency i.e,. the Beltangadi Police Station and in their line, by the CID in pursuance of the order passed by the Government of Karnataka and later on taken up by the CBI, Chennai in pursuance of the order passed by the Government of Karnataka dated 06.11.2013. But the final report has been laid by CBI, Chennai in RC.2(S)/2014-CBI/SCB/CHN as contemplated under Section 173(2) of Cr.P.C. Though the allegation was made against the unknown accused at the initial stage on a missing complaint filed by Chandappa Gowda who is none other than the father of deceased - Sowjanya, before the Belthangady police. Subsequent to filing of missing complaint by Chandappa Gowda, the Belthangady police and so also, persons to be termed as neighbourers made search of deceased- Sowjanya, but could not trace her. In the meanwhile, one :
63. : Jagadish who is the relative of deceased – Sowjanya had filed a complaint before the Belthangady Police Station and based upon the said complaint, the case in Crime No.250/2012 came to be registered for the offence punishable under Section 376 and 302 of IPC as where the accused – Santosh Rao was apprehended by the local people and on his apprehension, the investigation came to be continued by the Belthangady Police and recorded his voluntary statement and he took the police to the alleged scene of crime as where the dead body of deceased- Sowjanya was lying. The IO conducted the spot mahazar in the presence of the panch witnesses and so also conducted inquest over the dead body and proceeded with the case for investigation as contemplated under Section 173(2) of Cr.P.C. for recording statement of witnesses. While the case was under investigation the Government of Karnataka passed an order transferring the investigation to the CID, Bangalore and in pursuance of the said order, the investigation was taken over by the CID and proceeded with the case for investigation and recorded the statement of witnesses and laid the final report consisting the :
64. : statement of witnesses and so also drew the mahazar in line with Belthangady Police. However, in the meanwhile, the Government of Karnataka, again passed an order transferring the investigation to CBI, Chennai. In pursuance of the said order, the CBI took up the case for investigation and investigation was done in line with the Belthangady Police and so also, the CID, Bangalore, and laid the charge sheet against the accused in C.C.No.28241/2015 for the offence punishable under Sections 376 and 302 of IPC. Subsequent to laying of the charge sheet against the accused the case was assigned in Spl.C.No.203/2016 and in that case after framing of charge against the accused, the prosecution has let in evidence of PWs.1 to 18 out of CW.1 to 44 of the charge sheet witnesses. But in the meanwhile, Chandappa Gowda filed an application under Section 173(8) of Cr.P.C. seeking further investigation in order to file report in terms of additional charge sheet and also filed an application under Section 319 of Cr.P.C. to implead the persons being arraigned as accused who are the petitioners in these criminal petitions. When once the charge sheet is laid :
65. : against the accused and even the prosecution has led the evidence by examining witnesses, the said applications have been filed by the Respondent No.2 – Chandappa Gowda only on suspicion in his evidence before the court. .
30. Sri P.P.Hedge, further contends that when thorough investigation has been done by Belthangady police station, thereafter the CID and thereafter the special cell of CBI, only to harm the reputation of the petitioners and their family, without there being no ground whatsoever to implicate/add the petitioners herein as additional accused the applications came to be filed. The Court below has erred in ordering for further investigation and there is absolutely no ground whatsoever to implicate the petitioners as additional accused in the above case.
31. He further submits that the trial Court in Spl.C.No.203/2016 has gone through the evidence of PW.1 – Chandappa gowda and so also, evidence of PW.9 – Janardhana including the evidence of PW.3 – Vittal gowda, the evidence of PW.12 – Dr.Adam who conducted the post mortem over the dead body of the deceased, PW.13 – Dr.Mahabala Shetty who had opined that the accused is :
66. : suffering from Phimosis, which is a disease relating to the skin of private part of male person, in which the person is not able to move his skin of private part up and down easily. In addition to that the trial Court has gone through evidence of PW.18 – Dr.Vinod J.Lakkappa who is the DNA expert, who subjected the articles for examination had identified the hairs found on Sl.No.15 – Panche found by the Belthangady Police. This article was seized by the Police and so also in the nail clippings of the deceased he did not notice any blood sample of the accused. But the trial Court has passed an order in respect of the application filed under Section 173(8) of Cr.P.C. by referring to the evidence on the part of the prosecution and had come to the conclusion that the CBI ought to have probed into certain matters in respect of deceased- Sowjanya. Though the accused Santosh Rao has been apprehended and put on trial but the culprits said to have been involved have to be traced by the investigating agency i.e., the CBI, since it has laid the charge sheet against the accused. Therefore, there are materials on which the CBI has to conduct fair and proper investigation by considering :
67. : all the observations made in the order by acting under Section 173(8) of Cr.P.C. But this kind of an observation made by the trial Court based upon the evidence adduced by the prosecution with exaggeration and the same should be curtailed, if not, the investigation theory and so also, the prosecution theory set up based upon the materials collected by the IO it will take different direction to give credentiality for consideration of application under Section 173(8) of Cr.P.C wherein the application filed by Chandappa Gowda seeking further investigation and taken up the matter on priority basis which is unwarranted.
32. However, Sri P.P.Hedge, learned counsel for the petitioners contends that the petitioners being impleaded to be arraigned as accused because of the order passed by the trial Court while consideration of applications filed under Sections 173(8) and 319 of Cr.P.C. If the impugned orders are not set-aside, certainly the gravamen of proposed persons being arraigned as accused in Crime No.250/2012 akin to that Spl.C.No.203/2016 would be the sufferer. But the counsel has referred to the material documents collected by the investigating agencies i.e., :
68. : Belthangady Police, CID, Bangalore and CBI, Chennai. There is no dispute that deceased – Sowjanya being the daughter of Chandappa Gowda and he had suspected about the perpetrators/felonies have committed murder of his daughter – Sowjanya, therefore, filed missing complaint before the Belthangady Police, thereafter the CID, Bangalore and thereafter the CBI laid the charge sheet and the trial Court framed charges and proceeded with the case for trial against the accused and even prosecution examined in all PWs.1 to 18 but mere because filing of the application for further investigation and even filing an application under Section 319 of Cr.P.C. for impleading based upon admission on oath the trial Court has given much credentiality to the evidence of PW.1 – Chandappa Gowda and other witnesses and by exaggerating their evidence has been considered and passed in Spl.C.No.203/2016 and so also, passed an order ordering to conduct further investigation and to implead the petitioners herein as additional accused. It is contended that the Court below has exceeded its jurisdiction by passing the impugned order and there is no ground for :
69. : ordering further investigation and has proceeded on the basis of unfounded suspicion and baseless allegations to order for further investigation. The impugned order to implicate the petitioners as additional accused is perverse and liable to be set-aside and continuation of further proceedings against the petitioners is an abuse of the process of law.
33. In support of his contention, Sri P.P.Hegde, has relied on the following decisions of the Hon’ble Supreme court: KAVULURI VIVEKANANDA REDDY AND ANOTHER //VS// STATE OF A.P. AND ANOTHER – (2005) 12 SCC432Criminal Procedure Code, 1973 – S.319 – Power to summon a person as additional accused – nature and scope of – Extraordinary and discretionary – should be used sparingly – court should not turn against another person whenever it comes acress evidence connecting that other person also with the offence – In present case, only general statements made qua appellants by witnesses as to part played by appellants in instigating main accused – Appellants summoned 8 years after incident – appellants as accused under S.319. BRINDABAN DAS AND OTHERS //VS// STATE OF WEST BENGAL – (2009) 3 SCC329Criminal Procedure Code, 1973 – S. 319 – Nature, scope and applicability – power to summon persons as additional accused – when invocable – Matters to be considered – Held, power under S. 319 should only be invoked where it is imperative to meet ends of justice – Evidence adduced against such persons must be substantive evidence in order to summon :
70. : them for trial, warranting their prosecution thereafter with good chance of conviction – In present case, there was no direct evidence of complicity of appellants in the incident – Hence, orders summoning them set aside – penal code, 1860 – S. 302 – practice and procedure jurisdiction – discretionary power. MICHAEL MACHADO AND ANOTHER //VS//CENTRAL BUREAU OF INVESTIGATION AND ANOTHER – (2000) 3 SCC262Criminal Procedure Code, 197. – S. 319 – when should court proceed against other persons – essential conditions for exercise of power under S. 319 – Evidence should indicate reasonable prospect of conviction of such other person(s) – Mere suspicion of his/their involvement in the offence not enough – power of court discretionary in nature – It should be exercised judicially having regard to various factors including the stage at which the trial has proceeded already, the quantum of evidence collected and time spent by court in collecting evidence - where none of the 49 witnesses examined by the Magistrate making any allegation against the appellants and only the three remaining witnesses making reference about the role played by the appellants in the offence but such reference was insufficient to make out the offence against the appellants, held, there was no justification for proceeding against the appellants by recommencing the entire trial afresh – penal code, 1860, Ss.120-B, 420, 467, 468, 471. LAL LSURAJ @ SURAJ SINGH AND ANOTHER //VS// STATE OF JHARKHAND - (2009) 2 SCC696Criminal Procedure Code, 1973 - S.319 – Nature, scope and applicability – trial of persons not already arraigned as accused – Evidence on basis of which may be ordered – evidence of person not eyewitness and another a hearsay witness – held, power under S.319 is required to be exercised very sparingly – before order summoning such persons is passed, trial court must form an opinion on the basis of evidence brought before it, that a case has been made out that such person could be tried together with the other accused – On facts, in a murder trial, indisputably, no charge-sheet was filed against the appellants, hence no cognizance was taken against them – However, trial court, relying upon the cognizance was taken against them – However, trial court, relying upon the evidence of PWs 6 and 7, :
71. : allowed the application for summoning appellants, exercising power under S.319 – Revision filed by appellants there against dismissed by High Court – Sustainability – Held, both trial court and High Court relied on the deposition of PWs 6 and 7 – However, PW6 was not an eyewitness to the occurrence and PW7 was only a hearsay witness – Therefore, no evidence worth the name was brought on record to arrive at a satisfaction that there was a reasonable prospect of conviction of the appellants – Under S. 319, the court has to exercise its power on the basis of fresh evidence brought before it – Hence, on the basis of aforementioned evidence, there was no possibility of recording judgment of conviction against appellants – Thus, impugned orders set aside.
16. The approach of the learned Sessions Judge was wholly incorrect. The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the court. There lies a fine but clear distinction.
17. In Ram Kishan Rohtagi (supra), this court observed:
"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than :
72. : this we would not like to say anything further at this stage...
18. In Yuvaraj Ambar Mohite v. State of Maharashtra [2006 (10) SCALE369, it was observed that there is a possibility of the accused being convicted on the basis of the evidences brought on record even if the same is taken to be correct in its entirety. 20(9). “…This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands."
BABUBHAI BHIMABHAI BOKHIRIA AND ANOTHER //VS// STATE OF GUJARAT AND OTHERS – (2014) 5 SCC568Criminal Procedure Code, 1973 – S.319 – Arraignment of person as accused under – Materials which may be considered – Material inadmissible as evidence, held, cannot be considered. JOGENDRA YADAV AND OTHERS //VS// STATE OF BIHAR AND ANOTHER (2015) 9 SCC244Criminal Procedure Code, 1973 – Ss. 227, 228 and 319 – Discharge – Held, not applicable in case of accused summoned under S.319 – Standard of proof employed for summoning a person as an accused under S. 319 Cr.PC is higher than the standard of proof employed for framing a charge against an accused – Thus, it does not stand to reason that a person who is summoned as an accused to stand trial and added as such to the proceedings on basis of a stricter standard of proof can be allowed to be discharged from the proceedings on the basis of a lesser standard of proof such as a prima facie connection with the offence necessary for charging the accused. :
73. :
2. …On the basis of the evidence the Additional Sessions Judge on 05.02.2005 under Section 319 of the Cr.P.C. issued notice to the appellants asking them to show cause as to why they should not be added as accused. After giving an opportunity to the appellants to file a reply, the learned Additional Sessions Judge summoned the appellants as accused for being added to the proceedings. It is nobody’s case that they were not heard before such summon.
3. … The High Court also observed that the order of discharge virtually nullifies the order under Section 319 of the Cr.P.C. made earlier by which the accused were added.
6. … On a perusal of Section 319 of the Cr.P.C., it is apparent that a person who is not an accused may be added as an accused only when it appears from the evidence that he has committed any offence for which he could be tried together with the accused. The Section says that in such an eventuality, the Court “may proceed against such person” for the offence which he appears to have committed. In other words, a person who is not an accused becomes liable to be added where he appears to have committed an offence. Thereupon, the effect is that the Court may proceed against such a person.
9. … It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 of the Cr.P.C., is necessarily heard before being so added. SMT. ASHA AND OTHERS //VS// STATE OF KARNATAKA12 What is ultimately held in the case of JOGENDRA YADAV (supra) is found in paragraph 9 of the judgment and it is reproduced below:
9. It was, however, urged by learned counsel for the appellants that in order to avail of the remedies of discharge under Section 227 of the Cr.P.C, the :
74. : only qualification necessary is that the person should be accused. Learned counsel submitted that there is no difference between an accused since inception and accused who has been added as such under Section 319 of the Cr.P.C. It is, however, not possible to accept this submission since there is a material difference between the two. An accused since inception is not necessarily heard before he is added as an accused. However, a person who is added as an accused under Section 319 of the Cr.P.C., is necessarily heard before being so added. Often he gets a further hearing if he challenges the sum- morning order before the High Court and further. It seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. Moreover, it is settled that the extraordinary power under Section 319 of the Cr.P.C., can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. It is now settled vide the Constitution Bench decision in Hardeep Singh v. State of Punjab and others {(2014) 3 SCC92 (AIR2014SC1400} that the standard of proof employed for summoning a person as an accused under Section 319 of Cr.P.C., is higher than the standard of proof employed for framing a charge against an accused. The Court observed for the purpose of Section 319 of the Cr.P.C., that “what is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case.” As regards the degree of satisfaction necessary for framing a charge this Court observed in Para 100”. …15. Suffice to state that it is always incumbent upon criminal courts to issue prior notice to a person calling upon him or her to show cause as to why he/she should not be made an additional accused. Only on giving an opportunity of being heard, a suitable order should be passed. If the order is passed summoning a particular person in terms of Section 319, Cr.P.C. without giving prior notice, such an order would not withstand the legal scrutiny. Hence all criminal courts are expected to keep :
75. : in mind this aspect of the matter as explained by the Hon’ble apex court in the case of JOGENDRA YADAV (supra). …16. it need not be reiterated that whenever a person is sought to be summoned as an additional accused in 15 terms of Section 319, Cr.P.C., not only prior notice calling upon him to show cause is to be issued, but also the judge dealing with the case has to take extra caution to satisfy himself/herself that a stronger evidence exists as the basis for taking such action.
34. It is in this backdrop of the contention made by the learned counsel for the petitioner in the writ petition and so also, learned counsel for the petitioners in the criminal petitions and the counter made by learned Spl.PP and learned HCGP for State, it is relevant to state the Supreme Court has explained the nature and scope of the writ of mandamus. The entire law relating to the nature, scope and ambit of the writ of mandamus under Article 226 of the Constitution of India. About this writ, SA de Smith in ‘Judicial Review of Administrative Action’, 2nd edition pp 378 and 379 said that this writ was devised to prevent disorder from a failure of justice and defect of police and was used to compel the performance of a specific duty. :
76. :
35. About this writ, in 1762 Lord Mansfield observed that ‘within the past century it had been liberally interposed for the benefit of the subject and advancement of justice’. The exact observations of Lord Mansfield about this writ has been quoted in Wade’s ‘Administrative Law, Tenth Edition’ and those observations are still relevant in understanding the scope of Mandamus. Those observations are quoted below:- “It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one…..The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. Writs of mandamus have been granted on the given facts and circumstances of the case. De Smith in Judicial Review, Sixth Edition has also acknowledged the contribution of Lord Mansfield which led to the development of law on Writ :
77. : of Mandamus. A prerogative writ flowing from the royal authority. sitting in the court, superintending the police relating to the law investigating agency to maintain.
36. The Hon’ble Supreme in a judgment of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. Vs. V .R. R udani and Ors. – AIR1989SC1607 held that “mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute.” Commenting on the development of this law, Professor De Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter common law, custom or even contract.” We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in :
78. : the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
37. However, in the instant case, Crime No.250/2012 came to be registered by the Belthagandy Police as where PW.1 – Chandappa Gowda who is none other than the father of deceased – Sowjanya filed a missing complaint and based upon his complaint, the Belthangady police and surrounding people traced the missing girl. However, the accused – Santosh Rao who was apprehended by the local people while he was under perturbed condition and also attempted to ran away from the place as wherein he saw the public and that the accused was apprehended by the public and handed over to the Belthangady police and subsequently the Belthangady police proceeded with the case for investigation by recording his voluntary statement and based upon his voluntary statement, he led the investigation team to the scene of crime as where the dead body was lying and found partial cloths on the body. Subsequent to that, the investigating officer of :
79. : Belthangady police Station conducted inquest over the dead body as contemplated under Section 174 of Cr.P.C in the presence of panch witnesses and so also, collected the materials which were subjected in PF. There is a proforma relating to the conducting inquest over the dead body and it is marked as Ex.P3 on the part of prosecution. This accused had sustained abrasion wounds over left hand and other parts of the body which reveals in the wound certificate when he was apprehended by the local people and he is alleged to have been manhandled.
38. PW.12 being the doctor who conducted autopsy over the dead body and issued Ex.P4 and noticed injuries such as abrasion with contusion but opined chemical and pathological report time since death around 24 to 36 hours. During conducting autopsy over the dead body the sample preserved were leg public hair, vaginal swab, blood sample for having been sent to FSL, Mangalore. Accordingly, they were sent to KMC, Mangalore. The same reveals in the PM report issued by the Doctor.
39. However, it is relevant to refer the charge sheet laid by the CBI, Chennai against the accused in :
80. : RC.2(S)/2014/CBI/SCB/Chennai. Initially the case was registered in Crime No.250/2012 under the caption “girl missing” based on the complaint dated 09.10.2012 of Chandappa gowda who is the father of the deceased. In his complaint alleging that on 09.10.2012 that Ms.Sowjanya aged 17 years who was studying II PUC at Shri Dharmasthala Manjunatheswara College, Ujire has left for college on 09.10.2012 and on her way back from college to the house got down from bus at Nethravathi Snana Ghatta around 4.15 p.m. and was seen walking towards her house by her uncle Vittala Gowda. But she did not return to home and went missing.
40. Mr.Jagadish who is one of the relative of deceased- Sowjanya had filed a complaint before the Belthangady Police Station based upon which the case in Crime No.250/2012 came to be registered by recording FIR for the offence punishable under Section 376 and 302 of IPC and then proceeded with the case for investigation. Whereas in the charge sheet briefly described the scene of crime i.e., where the dead body was lying and found on 10.10.2012. The materials reveals that the dead body was :
81. : lying in a mud area with dry leaves, thick bushes at Mannasanka, at about 11.30. AM on 10.10.2012. The dead body was found partially naked. Even the clothes were stained with mud and the mud was found kept on the private part of the victim and bleeding was also found at the private part of the victim. The inquest over the dead body was conducted by Sub-Inspector of Police, Belthangady PS on 10.10.2012 in the presence of independent witnesses D.Krishna, Avinash Shetty, Raghavendra and Smt.Dhanalakshmi and various articles belonging to the victim were seized. Subsequent to conducting the inquest over the dead body, it was sent to Community Health Center, Belthangady for post-mortem as where Dr.Adam, Medical Officer and Dr.Reshmi, Medical Officer, PHC, Ujire on 10.10.2012 conducted autopsy over the dead body. They observed abrasions and contusions over upper arm, forearm, both hands, upper part of back, lower part of back, groin, inner part and outer part of both thighs and legs, strangulation mark measuring 7 inches present horizontally at the centre of the neck. They further preserved neck structure for :
82. : pathological examination. Public hair and nail clipping, vaginal swab and blood sample were collected and preserved for sending them to forensic Science Laboratory, Bangalore.
41. During the course of investigation carried out by the Belthangady Police Station on 11.10.2012, accused – Santosh Rao was apprehended by the public while he was found under suspicious circumstances and handed over him to the Belthangady Police Station. The said accused was subjected to medical examination on 12.10.2012 by Dr.Adam, Medical Officer and the injuries found on his body were recorded. The accused was said to be working in Hotel Sarada at Sringeri till last week of September, 2012. He was dismissed by his employer as his work was not satisfactory. Hence, out of frustration, he came down to Dharmasthala and said to be wandering at Dharmasthala during the relevant period of occurrence of crime. The investigation shows that on 09.10.2012 at about 4.15 pm. when the deceased – Sowjanya got down from bus at Nethravathi and was proceeding towards her home, accused Santhosh Rao forcibly dragged her to the :
83. : near by bushes, after crossing the stream, raped her and killed her by strangulating her with nylon tag of ID card worn by the victim and later left the dead body and her belongings there.
42. Whereas PW.1 – Chandappa Gowda speaks about his complaint about missing of his daughter Sowjanya, dead body found lying at Mannasanka among thick bushes on 10.10.2012 etc. PW.2 Jagadish states that Vittal Gowda, maternal uncle of sowjanya, informed him about Sowjanya’s not reaching home on 09.10.2012 and on 10.10.2012 he along with Vittal gowda went to SI Belthangadi and handed over the photographs of Sowjanya. However, the statements of Vittal Gowda and Jagadish has been recorded as PW.3 and PW.2. PW.4 - Guru Kiran and PW.16 – Shivappa, PW.5 – Prabhakara Gowda, PW.12 – Dr.Adam, PW.14 – Dr.Mahabalesh Shetty, PW.17 – Dr.Suresh Badamath, PW.18 – Dr.Vinod Janardhan Lakkappan were examined on the part of the prosecution. PW.17 – Dr.Suresh Badamath on mental status examination of accused opined that he was found not suffering from any mental disorder. These are all the :
84. : materials secured by the Belthangady Police Station, the CID and the CBI, Chennai who investigated the matter and laid the charge sheet against the accused in C.C.No.29241/2015. However, the charge sheet consisting in all CWs.1 to 44 and moreover, the case is under trial. The trial is proceeded against the accused and the prosecution is having domain and also prerogative power to produce the worthwhile evidence and also marking of documents. Subsequent to completion of trial of the case on the part of the prosecution/defense, it is the duty cast upon the trial Court to appreciate the evidence on record and thereafter to arrive at a right conclusion based upon the evidence on the part of the prosecution/defense theory and also documents facilitated by them.
43. Section 173(8) is akin to Section 173(2) of Cr.P.C., but Section 173(8) is relating to further investigation and to file additional charge sheet or further report. But it is the report relating to the earlier charge sheet laid by the investigating agency in pursuance of Section 173(2) of Cr.P.C. But mere because the evidence :
85. : has been adduced on the part of the prosecution and there shall be evidence and that witnesses shall be subjected to cross-examination on the part of the defense. But the domain is vested with the trial Court by appreciating the evidence and so also marking of documents even on the part of the prosecution side or defense side and arrive at a right conclusion. But the trial Court in Spl.C.No.203/2016 arising out of Crime No.250/2012, the sufficient evidence has been concluded by the investigating agency i.e., CBI, then only laying of the charge sheet even akin to Section 173(2) of Cr.P.C. Subsequent to laying of charge sheet against the accused in the instant case, the trial Court in Spl.C.No.203/2016 have been framing of charge and where the accused did not plead guilty and same has been recorded and proceeded with the case for trial and accordingly, the prosecution has examined PWs.1 to 18 out of CWs.1 to 44. But remaining witnesses have to be examined by the prosecution to establish the guilt of the accused beyond reasonable doubt. In case established the accused would be convicted and if there is any doubt arise in the case of :
86. : the prosecution, the case will be ended in acquittal. But the trial Court has to bank upon the evidence of PWs.1 to 18 and then arrive at a conclusion whether it needs for further investigation as contemplated under Section 173(8) of Cr.P.C. as where the CBI has thoroughly investigated the case and laid the charge sheet against the accused. But mere because of evidence here and there on the part of the prosecution and mere because of filing of application by PW.1 – Chandappa Gowda who is an instrument of complaint and by avocation a Contractor who was carrying contract work in the local area and he is not a layman and well acquainted with the filing of complaint thoroughly as his daughter was missing and even the dead body of deceased – Sowjanya was found lying at the scene of crime even partial cloths were found on the dead body and that too be his daughter was studying II PUC in the college at Dharmasthala. However, these are all the materials that finds place in the record as wherein the CBI has thoroughly investigated the case and laid the charge sheet against the accused. Despite of sufficient evidence has been collected by the investigating :
87. : agency by recording the statement of witnesses and also laying of charge sheet consisting CWs.1 to 44 and other materials were seized during the course of investigation and subjected in property form. But this PW.1 – Chandappa Gowda who is an instrument of complaint in Crime No.250/2012 has come forwarded to file application under Section 173(8) of Cr.PC only on suspicion and also the evidence to be on the part of the prosecution that too be on admission of oath. Even though there are materials on the part of the prosecution, but it is the domain vested with the trial Court to arrive at a right conclusion relating to proving of guilt of the accused by facilitating worthwhile evidence and also subjected to cross-examination thoroughly on the part of the defense. Ultimately the trial Court has to come to conclusion as even under Section 3 of the Evidence Act, 1872. But in the instant case, the trial Court while consideration of application under Section 173(8) has commanding over the evidence adduced on the part of the prosecution which is unwarranted and it cannot be considered at this stage because on the part of the prosecution evidence has been :
88. : adduced by examining PWs.1 to 18. Consequently, it is said that the order passed by the trial Court in Spl.C.No.203/2016 requires intervention of this Court.
44. Though complainant – Chandappa Gowda has filed application under Section 319 of Cr.P.C. for impleading some persons to be arraigned as accused, it is based upon the evidence adduced on the part of the prosecution and also based upon the suspicion of the complainant who has filed application under Section 173(8) of Cr.P.C. and the same has been considered by the trial Court. However, there is a judgment of the Hon’ble Supreme Court in Jogendra Yadav and others vs. State of Bihar and another reported in (2015) 9 SCC244wherein it is held that while consideration of application filed under Section 319 of Cr.P.C, notice must be given to the person who is proposed to be an additional accused. But in Spl.C.C.No.203/2016 the notice has not been given to them to participate in the proceedings to file response to that application whatever contention has been taken in the application. Unless notice is given to them, it cannot be arise for consideration of the said application filed by :
89. : the complainant – Chandappa Gowda under Section 319 of Cr.P.C., if not, it is violation of Doctrine of audi alteram partem. Therefore, the order passed by the trial Court in Spl.C.C.No.203/2016 dated 19.11.2016 requires intervention in terms of the aforesaid reasons. But this application has to be considered by the aforesaid trial Court by giving an opportunity to the proposed persons to be arraigned as accused.
45. However, keeping in view of the materials facilitated by the Sri Amar Correa, learned counsel for the petitioner in the writ petition, it is relevant to state that the mandamus lies to secure the performance of a public duty, in the performance of which there shall be sufficient legal interest by the petitioner. But he must show that he has demanded performance of the duty and that performance has been refused by the authority obliged to discharge it. But the duty to be performed must be of a public nature. To be enforceable by mandamus a public duty does not necessarily have to be one imposed by the statute. But it may be sufficient for the duty to have been imposed. But in the instant case, the initial investigation :
90. : is done by the Belthangadi Police in Crime No.250/2012and subsequent to an order Government of Karnataka the investigation has been done by the CID following in lien of investigation by the Belthangadi Police Station and subsequent to the order of Government of Karnataka, the investigation has been done taken by CBI, Chennai and the investigation was done following in line of investigation by the Belthangadi Police and so also, the CID police and the charge sheet has been laid against the accused. The charge sheet consisting of CWs.1 to 44 and out of that PWs.1 to 18 have been examined on the part of the prosecution in order to prove the guilt of the accused, where the accused – Santosh Rao is facing of trial for the offence under Section 376 and 302 of IPC.
46. But the mandamus will not, of course, lie to compel the performance of a mere moral duty, or to order anything to be done that is contrary to law. However, the distinctions between duties to act lawfully and duties not to act unlawfully, it is probable, only to proceed for investigation in further as under Section 173(8) of Cr.P.C. akin to Section 173(2) of Cr.P.C. But when the statute has :
91. : given certain powers to the investigating agency in order to proceed in further for investigation to filing supplementary charge sheet but in the instant case in Spl.C.No.203/2016 that the IO has thoroughly investigated the case that too the CBI, arraigned as Respondent No.1 in the writ petition and collected sufficient materials and cited witnesses as CWs.1 to 44 and laid the charge sheet against the accused and moreover, after laying the charge sheet against the accused, the case is under progress for examining the witnesses on the part of the prosecution and accordingly, examined PWs.1 to 18 and so also, several documents have been got marked in order to prove the guilt of the accused. Therefore, in the instant case, the writ petition seeking issue of writ of mandamus to re-investigate the case in Crime No.250/2012 of Beltangadi Police Station does not arise, as where the CBI, Chennai being the investigating agency has thoroughly investigated the case and laid the charge sheet against the accused person for the offence under Section 376 and 302 of IPC wherein the charge sheet consisting of sufficient materials in terms of :
92. : statement of witnesses and so also in terms of mahazar has been conducted by the investigating agency even to say the inquest over the dead body and autopsy has also been done over the dead body of deceased – Sowjanya. These are all the enough materials to proceed with the case for the aforesaid offences. Accordingly, it is observed and said that there is no merit or otherwise to say substance in the writ petition for seeking of issue of mandamus. Accordingly, it cannot arise for issue of relief as sought for by the petitioner who is examined as PW.1 and also being the father of deceased – Sowjanya who had initially filed a missing complaint of his Daughter and so also, the complaint filed by one Jagadish who is the relative of deceased – Sowjanya had filed a complaint before the Belthangadi Police and based upon his complaint the case in Crime No.250/2012 came to be registered for the offence punishable under Sections 376 and 302 of IPC and thorough investigation is done by the CBI and laid the charge sheet against the accused.
47. When once the case is put on trial against the accused and also some of the witnesses have been :
93. : examined as PWs.1 to 18 and through them documents have been marked respectively, therefore, it cannot arise for even further investigation as contemplated under Section 173(8) of Cr.P.C and also it cannot arise for impleading the persons being arraigned as accused without issuing notice to them. Mere because the petition under Section 319 of Cr.P.C. is filed, the trial Court in Spl.C.No.203/2016 having gone through the evidence of PWs.1 to 18 and then passing the impugned order, but it cannot arise unless extending an opportunity under the Doctrine of audi alterem partem to file response to the petition filed by the prosecution/PW.1 who is none other than the father of the deceased – Sowjanya, for consideration, in accordance with law.
48. Writ petition No.2208/2018 is filed by petitioner – Chandappa Gowda seeking issue of writ of mandamus directing respondent No.1 to reinvestigate the case in Crime No.250/2012 registered by the Beltangadi Police Station. A writ of mandamus is a prerogative writ issued to superintending the police relating to the law :
94. : investigating agency to maintain, if specific circumstance has been warranting. Writ was devised to prevent disorder from a failure of justice and defect of police and was used to compel the performance of a specific duty. But in the instant case, the case in Crime No.250/2012 initially came to be registered by the Beltangadi police and they proceeded with the investigation in accordance with the relevant provision of Cr.P.C., conducted the inquest over the dead body, recorded the statement of witnesses. In the meanwhile of the proceedings, in pursuance of the order of Government of Karnataka, the further investigation was transferred to CID and investigation has been done by recording statement of witnesses in line with the investigation done by Beltangadi Police. Thereafter, the Government of Karnataka had passed an order transferring the case to CBI, Chennai. Even the CBI, Chennai by following in line with the investigation done by the IO of Beltangadi Police Station and the CID, thoroughly investigated the case by recording the statement of witnesses under the relevant provisions of law and cited CWs.1 to 44 and out of the said witnesses :
95. : PWs.1 to 18 have been subjected to examination and documents were got marked on behalf of the prosecution. Therefore, it cannot arise for consideration at a later part of the case as trial has already commenced against the accused. Even if fresh investigation as sought for in a writ of mandamus is granted, certainly the investigation will be deviating the investigation reports of Beltangadi Police Station, the CID and the CBI, Chennai. Therefore, seeking writ of mandamus to direct the CBI to reinvestigate the case in Crime No.250/2012 for the offence punishable under Sections 376 and 302 of IPC is unwarranted and even if the said relief is granted, the same shall be diluting the powers under Section 173(8) which is a statutory power which is akin to Section 173(2) for investigation. Therefore, the various contentions as taken by Sri Amar Correa, learned counsel for the petitioner in W.P.No.2208/2018 if it is considered, certainly there shall be miscarriage of justice and the gravamen of the accused would be the sufferer even though he is facing of trial for the heinous offences under Section 302 and 376 of IPC. :
96. :
49. In terms of the aforesaid reasons, I proceed to pass the following:
ORDERThe writ petition filed by the petitioner in W.P.No.2208/2018 stands dismissed. Crl.P.No.1928/2017 filed by the petitioners are hereby allowed. Consequently, the order dated 07.02.2017 passed by the L-Addl. City Civil and Sessions Judge, Bengaluru allowing the petition filed by PW-1 / Respondent No.2 herein for further investigation in Spl.Case No.203/2016 is set aside. Similarly, Crl.P.No.8678/2016 filed by the petitioners is also allowed. The impugned order dated 19.11.2016 passed by the Court of the L-Addl. City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.203/2016 allowing the petition filed by PW-1 and summoning the petitioners herein as additional accused is hereby set-aside. However, the prosecution is at liberty to proceed in respect of application filed under Section 319 of Cr.P.C., by :
97. : giving an opportunity to the proposed petitioner, be arraigned as accused in Spl.C.No.203/2016 to file response, if any. The application shall be disposed of on merits, in accordance with law. Whatever the observations made in this order, it shall not influence the mind of the trial Court as where accused – Santosh Rao who is facing of trial under Sections 376 and 302 of IPC. Since, it is the case of year 2016, the trial Court is directed to expedite the matter by following the Standard Operating Procedure and guidelines issued therein. Ordered accordingly. Sd/- JUDGE KS/DKB