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2001 DIGILAW 166 (KER)

Antony Scaria v. State of Kerala

2001-03-20

G.SASIDHARAN, K.S.RADHAKRISHNAN

body2001
Judgment :- G. Sasidharan, J. Investigation sought to be done by the police in a crime after filing the final report in the court of the Magistrate is objected to by the accused in the crime by saying that re-investigation of the crime after filing final report is not permissible under law. Investigation that is being conducted after filing final report in court is sought to be justified by the State saying that what is being done is further investigation permissible under S.173(8) Cr.P.C. and it is being done on the strength of an order made by the Director General of Police directing that investigation has to be conducted by the C.B.C.I.D., Kottayam. The question which arises for consideration is whether the investigation that is being done is further investigation or it is a re-investigation of the crime. When it is said that reinvestigation of a crime is being done, that can mean that investigation of the crime is commenced afresh wiping out the investigation which had been made before filing of the final report. On the other hand, further investigation can only mean that investigation is commenced from the stage at which it was stopped before filing of the final report and collection of additional materials is made in connection with the allegation regarding commission of the offence. 2. Crime No. 92 of 1997 was registered in Kumali Police Station on the basis of the information given by the 7th respondent on 10.6.1997 at about 11.45 p.m. that her husband the 6th respondent was missing upon 9.6.1997. The crime was registered alleging "man missing". Subsequently, the 5th respondent who was the President of the Panchayat gave a petition to the 4th respondent, Sub Inspector of Police, Kumali Police Station, stating that on 9.6.1997 by about 10.45 p.m. while the 6th respondent was going to his house, he was forcibly taken away in a jeep and that appellants and 8th respondent were behind the above incident. On 11.6.1997, the 6th respondent came back to Chakkupallam and the 4th respondent recorded his statement and got him medically examined. He was produced in Court and then he was set free. 3. The Sub Inspector of Police submitted a report in court on 11.6.1997 stating that offence punishable under S.365 read with S.34IPC was disclosed to have been committed during the course of investigation. Appellants got anticipatory bail during the course of investigation. He was produced in Court and then he was set free. 3. The Sub Inspector of Police submitted a report in court on 11.6.1997 stating that offence punishable under S.365 read with S.34IPC was disclosed to have been committed during the course of investigation. Appellants got anticipatory bail during the course of investigation. On 6.8.1997, the District Superintendent of Police, Idukki passed an order directing handing over of investigation to Sri. Gopinathan Nair, Dy.S.P., Crime Detachment, Idukki who after investigation filed a final report in court dated 24.9.1997 stating that no offence is revealed to have been committed by the accused in the crime. 4. Thereafter, the Director General of Police made an order on 4.11.1997 transferring the crime registered in the Kumaly Police Station to Crime Branch C.I.D. for investigation. Ext. R2(a) is the order of the Director General of Police which says that sanction was accorded to transfer the case in crime No. 92 of 1997 to C.B.C.I.D. for investigation and that Additional Director General of Police, Crimes will takeover investigation of the crime. It is seen from Ext. R2(a) that Sri. R. Radhakrishnan, Dy. S.P., C.B.C.I.D. (Annexe), Kottayam was directed to take over investigation of the case. 5. According to the appellants, re-investigation ordered in the case is illegal and the law does not contemplate such an investigation by a different agency in the absence of any new material obtained by the officer-in-charge of the police station who conducted the first investigation. There is also a statement in the petition that notice under S.173(2) Cr.P.C. was served on the defacto complainant, namely, respondents 6 and 7 after final report was received in the Court. After receipt of notice, respondents 6 and 7 did not come forward to file any complaint in court alleging commission of offence by the appellants. The above fact is pointed out by the appellants for arguing that re-investigation of the crime was ordered at the instance of somebody else and it is being done only for the purpose of harassing them. Final report was filed in court on the basis of the investigation conducted by the Dy.S.P., Crime Detachment, Idukki. Now, the direction given by the Director General of Police is to conduct further investigation by C.B.C.I.D., Kottayam. Final report was filed in court on the basis of the investigation conducted by the Dy.S.P., Crime Detachment, Idukki. Now, the direction given by the Director General of Police is to conduct further investigation by C.B.C.I.D., Kottayam. An attempt is made by the appellants to point out that C.B.C.I.D., Kottayam is an agency different from Crime Detachment, Idukki and for that reason, the direction given for further investigation to be conducted by an agency different from the agency which conducted the original investigation is illegal. 6. The appellants filed O.P. No. 22337 of 1997 for quashing the order by which further investigation of Crime No. 92 of 1997 of Kumali Police Station was directed to be made. The appellants want further investigation, if found necessary, to be conducted by the Central Bureau of Investigation or the Special Investigation Team of the State Police, Thiruvananthapuram. The prayer for further investigation to be conducted by the Central Bureau of Investigation is being made by the appellants for the reason that further investigation by an agency different from the agency which conducted the original investigation is impermissible. Central Bureau of Investigation is an agency different from "the State Police. The declaration sought for by the appellants is that further investigation of the crime in which final report under S.173(2) Cr.P.C. has been filed cannot be ordered in the absence of any fresh material received by the officer-in-charge of the police station or on the basis of any objection or protest complaint filed by the defacto complaint. The learned Single Judge, on finding that what is directed to be done is further investigation and also that further investigation is being done not by a different agency, dismissed the Writ Petition. 7. S.173(2) Cr.P.C. says that when investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence, a report containing the matters mentioned in that sub clause. It is necessary to state in that report whether any offence appears to have been committed and if so by whom. S.173(2)(ii) provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. S.173(2)(ii) provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. On receipt of a final report as envisaged in S.173(2) Cr.P.C., the Magistrate can either accept the same or discharge with the conclusions arrived at by the Police. There may be cases in which further materials may come to light subsequent to the filing of the final report. Then it is open to the police to further investigate the crime. S.173(8) Cr.P.C. says that after filing the report under sub-clause (2) of that section, it is open to the officer-in-charge of the police station to conduct further investigation in respect of the offence. S.173(8) Cr.P.C. also says that if the officer-in-charge of the police station obtains further evidence, oral or documentary, on conducting further investigation, he shall forward to the Magistrate further report or reports regarding such evidence. It is not stated in S.173(8) that further investigation can be conducted by the officer-in¬charge of the police station only after getting further materials in connection with the crime. On the other hand, what the above clause of S.173 Cr.P.C. says is regarding the right of the officer in charge of the police station to conduct further investigation of the crime by making it clear that nothing in S.173 Cr.P.C. shall be deemed to preclude further investigation in respect of an offence after a report under sub-s.(2) has been forward to the Magistrate. Mention about further evidence, oral or documentary, made in that sub-clause is that which is obtained during the course of further investigation and what that sub-clause provides is that further report or reports regarding such evidence have to be forwarded to the Magistrate. 8. A report sent to the court under S.173(2) Cr.P.C. will contain the facts collected by the police during the course of investigation and also the conclusions drawn by the police regarding the allegation about commission of the offence. The Magistrate is not expected to accept the conclusions drawn by the police. On receiving the police report, the Magistrate may take cognizance of the offence under S.190(1)(b) Cr.P.C. and issue process. The Magistrate is not expected to accept the conclusions drawn by the police. On receiving the police report, the Magistrate may take cognizance of the offence under S.190(1)(b) Cr.P.C. and issue process. This can be done by the Magistrate irrespective of the fact whether the conclusion arrived at by the police, as is seen from the report, is whether an offence has been made out or not. The Magistrate can issue process even if the police report says that there is no sufficient ground for proceeding further. 9. One of the grounds taken up by the appellants for quashing the order by which further investigation is directed is that further investigation cannot be made after notice has been given to the defacto complainant regarding the filing of refer report. The Deputy Superintendent of Police conducted investigation of the crime and filed a report stating that no offence is revealed to have been committed by the appellants. Even if the report so given by the police is accepted by the Magistrate, further investigation of the crime can be conducted by the police if there is sufficient justification for conducting further investigation. 10. In the statement filed by the second respondent, it is stated that what is being done is further investigation of the crime under S.173(8) Cr.P.C. and not re-investigation. After the Director General of Police passed Ext. R2(a) order directing further investigation of the crime, a petition was filed in the court of the Judicial Magistrate of the First Class, Peermade seeking permission for further investigation. Ext. R2(b) is the copy of the petition. In that petition, it is stated that the Director General of Police made an order transferring Crime No. 92 of 1997 to C.B.C.I.D., Kottayam for further investigation. Ext. R2(c) is the order of the Judicial Magistrate of the First Class, Peermade by which the application seeking permission for further investigation was allowed on perusing the records of the case. The application seeking permission for further investigation of the crime was submitted in Court by the Superintendent of Police, C.B.C.I.D., Kottayam. In the light of the above fact, we see that formal permission from the court was obtained by the investigating agency for further investigation of the crime. 11. The application seeking permission for further investigation of the crime was submitted in Court by the Superintendent of Police, C.B.C.I.D., Kottayam. In the light of the above fact, we see that formal permission from the court was obtained by the investigating agency for further investigation of the crime. 11. In K. Chandrasekhar v. State of Kerala, 1998 (1) KLT 835 = AIR 1998 SC 2001, the Supreme Court observed that further investigation is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab-initio wiping out the earlier investigation altogether. It is also stated in the above decision that sub-s.(8) of S.173 Cr.P.C. envisages that on completion of further investigation, the investigating agency has to be forward to the Magistrate a further report or reports and not fresh report or reports regarding the further evidence obtained during such investigation. The Supreme Court also held that further investigation has to be conducted by the same agency which conducted the original investigation and that further investigation by a different agency is impermissible. In the above case, originally investigation of the crime was conducted by the Kerala Police and investigation was subsequently handed over to the Central Bureau of Investigation. After completing investigation, the Central Bureau of Investigation gave a refer report which was accepted by the Court. After that the State Government took the decision to get the crime investigated again by the Kerala Police. The State Government withdrew the consent given for investigation to be conducted by the Central Bureau of Investigation and sought further investigation of the case by the State Police. The Supreme Court found that if any further investigation had to be made in the crime, it was the Central Bureau of Investigation alone which could do further investigation since the original investigation was conducted by that agency. Notification issued withdrawing consent to enable the State Police to further investigate into the case was found to be patently invalid and unsustainable in law. 12. The agreement advanced by the learned counsel appearing for the appellants on the basis of what is stated by the Supreme Court in the decision referred to above is that here also further investigation is being conducted by a different agency. 12. The agreement advanced by the learned counsel appearing for the appellants on the basis of what is stated by the Supreme Court in the decision referred to above is that here also further investigation is being conducted by a different agency. The decision in Vijayakumar v. Kamarudhin, 1999 (1) KLT 184 is cited by the learned counsel appearing for the appellants in support of the argument that further investigation by C.B.C.I.D. cannot be allowed for the reason that it is an agency different from Crime Detachment which conducted investigation before filing the report in Court. In the above decision, a learned Single Judge of this Court held that further investigation can be conducted only by the investigating agency which originally investigated the case and that further investigation by C.B.C.I.D. cannot be allowed for the reason that C.B.C.I.D. is an agency different from the local police. There can be no dispute regarding the proposition that further investigation has to be conducted by the investigating agency which originally investigated the case. 13. But the question arises for consideration is whether C.B.C.I.D. is an agency different from Crime Detachment department. C.B.C.I.D. and crime detachment are two departments of the police establishment of the State coming under the direct supervision of the Director General of Police and the personnel of crime detachment and C.B.C.I.D. are inter-transferable. C.B.C.I.D. was constituting as a specialised wing of the Police Department for the purpose of investigating serious crimes. C.B.C.I.D. is not an agency different from crime detachment, both being two organs of the Kerala Police. Here, the original investigation was conducted by Crime Detachment, a wing of the Kerala Police. The Director General of Police thought it fit to hand over further investigation of the crime to C.B.C.I.D., another wing of the Kerala Police. We do not find any merit in the submission made by the learned counsel appearing for the appellants that C.B.C.I.D. is an agency different from the agency which originally conducted investigation of the crime for the reason that both are different wings of the same agency, the Kerala Police. 14. We fully agree with the observation made by the learned Single Judge in Vijayakumar v. Kanutnulliin, 1999 (J) KLT 184 that further investigation of the crime can be conducted only by the agency which originally investigated the case. 14. We fully agree with the observation made by the learned Single Judge in Vijayakumar v. Kanutnulliin, 1999 (J) KLT 184 that further investigation of the crime can be conducted only by the agency which originally investigated the case. But the proposition that C.B.C.I.D. is an agency different from the local police and hence they cannot conduct further investigation of a crime which had originally been investigated by the local police is not correct. 15. Further investigation of a crime as per S.173(8) Cr.P.C. is possible when the police authority which conducted investigation of the crime or any other superior officer finds it necessary to further investigate the crime. There is nothing stated in the above sub-section of S.173 Cr.P.C. which would go to show that obtaining of further evidence is necessary for ordering further investigation of the crime. The above sub-section only says that the provisions of S.173 does not preclude further investigation in respect of an offence after a report under sub-s.(2) has been forwarded to the Magistrate. When further investigation is done and the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate further report or reports regarding such evidence. It is not necessary that notice has to be given to the persons who were made accused originally in a report which had already been given under sub-s.(2) for the purpose of taking a decision regarding further investigation to be conducted in the same crime. The above aspect of the matter has been considered by this Court in Superintendent of Police r. Firose,1994 (n KLT 971. In the above decision, it was held that notwithstanding the filing of the final charge sheet, a police officer can investigate and lay further charge sheets if he gets information. It was also observed that even alter cognizance of the offence had been taken, further investigation by the police is possible. When circumstances which necessitate further investigation come to the notice of the investigating agency, it is the duty of the investigating agency to further investigate the case and submit a report to the court. If the report given is about further investigation that is sought to be conducted, that is purely a matter between the court and the investigating agency and the accused have no right to interfere or to be heard. 16. Ext. If the report given is about further investigation that is sought to be conducted, that is purely a matter between the court and the investigating agency and the accused have no right to interfere or to be heard. 16. Ext. R2(a) says about further investigation to be conducted in Crime No. 92 of 1997 and sanction was given to transfer the above crime to C.B.C.I.D., Kottayam for investigation. It is not stated in Ext. R2(a) that investigation ordered to be made in the crime is a de novo investigation after wiping out the entire investigation conducted before filing of the report under S.173(2) Cr.P.C. In the statement filed by the second respondent, it is made clear that what is going to be done as per the direction of the Director General of Police is further investigation under S.173(8) Cr.P.C. and not re-investigation. Further investigation of the crime is possible even in cases in which the Magistrate has already taken cognizance of the offence. Inspite of the fact that notice under S.173(2) Cr.P.C. has been given to the defacto complainant regarding the refer report, further investigation of the crime can be ordered to be made and in that respect of the matter it cannot be said that there is any illegality or other infirmity in ordering further investigation of the crime. Here, further investigation was found necessary by the highest authority in the police department and the court had given permission for conducting further investigation of the crime. Hence, there is no merit in this appeal and it is liable to be dismissed. The Writ Appeal is accordingly dismissed.