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2024 DIGILAW 1073 (KER)

Cirin Siby, S/o. Siby Mathew v. State Of Kerala

2024-08-29

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure to quash Annexure V order dated 14.05.2024 in S.C.No.103/2024 on the files of the Fast Track Special Court, Changanassery, arose out of crime No.961/2023 of Manimala Police Station, Kottayam. The petitioner herein is the sole accused in the above case. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents. 3. Here, the prosecution alleges commission of offences punishable under Sections 354, 354A(1)(i) of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short) as well as Section 8 r/w 7, 10 r/w 9(f) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short). The petitioner, who is the accused facing trial, is aggrieved by Annexure V proceedings dated 14.05.2024 on the files of the Fast Track Special Court, Changanassery and the same reads as under: “Accused is present. CW3 and CW4 present. Station House Officer filed a petition intimating that further investigation is going on. Await further investigation report. CW3 and CW4 appear on fresh summons. Issue stop memo to CW2. Call on”. 4. At the time of admission also, the learned counsel for the petitioner pointed out that as per the impugned proceedings, further investigation has been going on without obtaining permission from the court. Accordingly, a report from the learned Special Judge has been call for. As per the report dated 05.07.2024, the learned Special Judge reported that in the order impugned, she omitted to note about grant of formal permission and the same is an inadvertent mistake on her part. 5. Regarding the necessity of permission, for the purpose of further investigation, the learned counsel for the petitioner would submit that even though starting from 1979 to 2021, the law regarding permission has been interpreted and held that nowhere in Section 173 (8) of Cr.P.C., it has been provided that further investigation could be conducted after getting permission of the Court as per the decisions reported in Ram Lal Narang v. State (Delhi Admn), reported in 1979 KHC 546 SC, Doraiswamy Raju v. State of Gujarat, reported in 2004 KHC 817 , Abdul Latheef and Others v. State of Kerala, reported in 2014 KHC 3694, Gopalakrishnan P alias Dileep v. State of Kerala and Others. But a change in law could be noticed in Devendra Nath Singh v. State of Bihar and Others, reported in 2022 KHC 7076 as well as Peethambaran v. State of Kerala, reported in 2023 KHC 6510 when the Apex Court held that getting permission for further investigation is a legal requirement. 6. In Devendra Nath Singh’s case (supra), the Apex Court dealt with the issue in paragraph No.12.1 of the decision, which reads as under: “12.1. In the case of Vinay Tyagi (supra), this Court dealt with the wide range of issues relating to the powers of the High Court under Section 482 CrPC as also the powers of the Magistrate under Section 173 CrPC; and different vistas of the processes of conducting ‘fresh investigation’ and/or ‘further investigation’. This Court observed and held as under:- “43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior Courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct “further investigation”, “fresh” or “de novo” and even “re-investigation”. “Fresh”, “de novo” and “re-investigation” are synonymous expressions and their result in law would be the same. The superior Courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior Courts very sparingly and with great circumspection. 44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of the Magistrate under Section 228 of the Code. Wherever a charge-sheet has been submitted to the court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in Disha v. State of Gujarat ( 2011 (13) SCC 337 : (2012) 2 SCC (Cri) 628), Vineet Narain v. Union of India (1998) 1 SCC 226 : 1998 SCC (Cri) 307), Union of India v. Sushil Kumar Modi ( (1996) 6 SCC 500 ) and Rubabbuddin Sheikh v. State of Gujarat (2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006). 45. The power to order/direct “re-investigation” or “de novo” investigation falls in the domain of higher Courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct “further investigation”, or even on the basis of the record of the case and the documents annexed thereto, summon the accused. xxxx xxxxx xxxxx 48. What ultimately is the aim or significance of the expression “fair and proper investigation” in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the Court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons. 49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the Courts and investigating agencies. 49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the Courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the Courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.” (emphasis supplied) 7. In Peethambaran’s case (supra), the Apex Court directly addressed the question, referring to the decision in Vinay Tyagi V. Irshad ali @ Deepak and Others, reported in 2012 KHC 4745, and held in paragraph No.19 as under: Referring to Vinay Tyagi (supra), this Court in Devendra Nath Singh v. State of Bihar and Ors. (2022 (6) KLT SN 26 (C.No.21) SC = 2022 (5) KLT OnLine 1054 (SC) = (2023) 1 SCC 48 ) noted that there is no specific requirement to seek leave of the court for further investigation or to file a supplementary report but investigation agencies, have not only understood it to be so but have also adopted the same as a legal requirement. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with”. 8. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with”. 8. In this connection, it is relevant to refer Section 193(9) of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’ for short), the pari materia provision corresponding to Section 173(8) of Cr.P.C. Section 193(9) of BNSS reads as under: 193. Report of police officer on completion of investigation - “(9) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (3) 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 as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (7) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (3): Proviso to Section 193(9) of BNSS stipulates that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court. 9. Reading the decisions in Vinay Tyagi’s case (supra), Devendra Nath Singh’s case (supra) as well as Peethambaran’s case (supra), further investigation provided under Section 173(8) of Cr.P.C. would require permission. That is to say, requirement of permission for further investigation and to file a supplementary report is accepted within law. Therefore, the said requirement to be complied with and the same arises from the maxim contemporanea expositio. Contemporanea expositio is a Latin phrase that means “contemporaneous exposition”. It is a doctrine that states that the best interpretation of a law or document is the one that was given by the people who enacted or signed it. This doctrine is especially useful when dealing with old laws, as it helps to understand the legislative intent behind the law. Contemporanea expositio is a Latin phrase that means “contemporaneous exposition”. It is a doctrine that states that the best interpretation of a law or document is the one that was given by the people who enacted or signed it. This doctrine is especially useful when dealing with old laws, as it helps to understand the legislative intent behind the law. It is noticed that as per proviso to Section 193(9) of BNSS, obtaining permission for the purpose of further investigation has given statutory recognition. Therefore, obtaining permission for further investigation is not merely an empty formality and it has some significance, so that the court dealing with the matter should be aware of further investigation by granting a permission to proceed further in that particular case. Having held the law so, on reading the proceedings under challenge, along with report of the learned Special Judge, it seems that no formal permission was granted by the trial court for the purpose of conducting further investigation. In view of the matter, the order impugned is set aside, with direction to the trial court to consider the petition, afresh, and grant permission, if necessary, in accordance with law. It is specifically ordered that anything done as part of further investigation without permission, the same can be ratified by the court if permission is granted afresh. Holding so, this Criminal Miscellaneous Case stands disposed of as indicated above. Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.