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2006 DIGILAW 462 (AP)

Lingam Subramanyam v. Putta Seshadri

2006-04-03

G.YETHIRAJULU

body2006
( 1 ) CRIMINAL Revision case under Section 397 and 401 of Crl. P. C. , against the judgment in Crl. MP no. 77 of 2005 in SC No. 104 of 2005 dated 25/10/2005 on the file of the court of the V Additional sessions Judge, Tirupathi. ( 2 ) THIS Criminal Revision Case is filed by the de facto complainant against the order of V additional Sessions Judge, Tirupathi, dated 25-10-2005 in Crl. M. P. No. 77 of 2005 in Sessions case No. 104 of 2005. ( 3 ) THE Sessions Case for the offences under sections 498-A and 304-B of the Indian Penal Code (for short i. P. C. ) and Sections 3 and 4 of the Dowry Prohibition Act is pending against the accused. During the pendency of the Sessions Case, the learned Public Prosecutor filed crl. M. P. No. 77 of 2005 under section 173 (8) of the Code of Criminal Procedure (for short cr. P. C. ) for permission to do further investigation into the case. The accused vehemently opposed the application. The learned Sessions Judge, after hearing the respective contentions, came to a conclusion that the petitioner is not entitled for the relief s as prayed for and accordingly the petition was dismissed. The state did not prefer any revision against the said order. Therefore, the de facto complainant approached this court through this revision challenging the order of Sessions Judge on the ground that the Session Judge ought to have given an opportunity to the Investigating Officer to do further investigation. ( 4 ) DURING the course of investigation, a death note of the deceased was traced and it was marked during the course of trial. When it was marked through a witness, the accused suggested that the death note is not in the handwriting of the deceased person. At that stage, the prosecution realized that the handwriting of the deceased has to be proved with reference to the material traced. It is mentioned in the petition that the deceased studied in a high school, therefore, they approached the Head Master with a request to show any material with the handwriting of the deceased. But, the Head Master expressed his inability to show any handwriting; Therefore, the present revision with a similar request is not maintainable. It is mentioned in the petition that the deceased studied in a high school, therefore, they approached the Head Master with a request to show any material with the handwriting of the deceased. But, the Head Master expressed his inability to show any handwriting; Therefore, the present revision with a similar request is not maintainable. The respondents further contended that unless there is fresh material to do further investigation in the matter, investigation cannot be ordered as many of the prosecution witnesses examined and at this stage, the State filing an application is a belated one and that if any material is secured, they are at liberty to place before the court. Therefore, there is no necessity to order further investigation in this case. ( 5 ) THE learned counsel for the petitioner submitted that since the charge sheet was also filed, the Investigating Officer suo moto cannot do further investigation unless the court permits him to do further investigation. Therefore, the Sessions Judge ought to have considered the request of the state and ought to have granted permission for the said purpose. Section 173 (8) Cr. P. C. reads as follows:"nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-s (2) has been forwarded to the Magistrate and where upon such investigation, the officer in charge if 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-ss (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-s (2 ). " ( 6 ) THE Section very clearly indicates that whenever there is a fresh material, the Magistrate can grant permission to the Investigating Officer to do further investigation. The learned counsel for the petitioner relied on a judgment in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004 Supreme Court Cases (Cri) 1603), wherein the Supreme Court while considering the scope of Section 173 (8) Cr. The learned counsel for the petitioner relied on a judgment in Hasanbhai Valibhai Qureshi v. State of Gujarat (2004 Supreme Court Cases (Cri) 1603), wherein the Supreme Court while considering the scope of Section 173 (8) Cr. P. C. observed as follows:"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. Section 173 (8) Cr. P. C. permits further investigation, and even dehors and direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. When defective investigation comes to light during course of trial, it may be cured by further investigations, if circumstances so permit. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts". ( 7 ) IN Kantilal Chandulal Metha V. State of Maharashtra (1969) 3 SCC 166 : 1970 SCC (Cri) 19: air 1970 SC 359 , the Supreme Court held that whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth. Sub-section (8) of section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted. Sub-section (8) of section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted. ( 8 ) IN Ram Lal Narang V. State (Delhi Admn.) (1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1970 sc 1791, the Supreme Court observed that further investigation is not altogether ruled out merely because cognizance has been taken by the court. When defective investigation comes to light during the course of trial, it may be cured by further investigation, if circumstances so permitted. ( 9 ) IN State of Orissa V. Dara Singh (2001) Cri. L. J. NOC 149 (Ori.), the High Court of Orissa held that further investigation of case by police subsequent to filing of charge sheet and taking of cognizance is permissible under section 173. ( 10 ) IN the present case, when death note was traced everybody believed that it is the note of the deceased. A doubt was entertained when the accused suggested that the note does not contain the handwriting of the deceased. On the basis of the denial of handwriting of the deceased, the investigation Officer thought that the handwriting has to be proved with any of the prior handwriting of the deceased. It is a new fact came to light and the Head Master expressing his helplessness in securing the handwriting of the deceased. The material containing the handwriting of the deceased is not a bar for the Investigating Officer to search for any other material, which contains the handwriting of the deceased, which may help for comparison and to confirm whether the death note contains the handwriting of the deceased or not. The death note traced by the prosecution is a very important piece of evidence and if the handwriting of the deceased is proved, it is a dying declaration, which has so much evidentiary value in support of the prosecution. By keeping in view the above circumstances, I am of the opinion that further investigation would help the court in arriving at the truth and do the real, substantial as well as effective justice. By keeping in view the above circumstances, I am of the opinion that further investigation would help the court in arriving at the truth and do the real, substantial as well as effective justice. The learned Sessions Judge, instead of allowing the petition, dismissed on the ground that there is no fresh material to consider the request of the Investigating Officer and that the application has been filed with so much delay. ( 11 ) IN view of the present legal position and to do effective justice, it would be appropriate to set aside the order of the District Judge dated 25-10-2005 and grant permission to the Investigation Officer to do further investigation in establishing the handwriting of the deceased on the death note. The criminal Revision Case is allowed with the above direction.