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2024 DIGILAW 950 (KER)

BIJU R. S/O RAJU M. v. STATE OF KERALA

2024-07-31

A.BADHARUDEEN

body2024
ORDER : 1. The accused in S.C. No. 2852/2022 on the files of the Special Court for trial of cases under the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’ for short), Thiruvananthapuram, has filed this criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’ for short), challenging order in Crl.M.P.No. 353/2023 dated 26.04.2023 whereby an application filed by the accused as petitioner, seeking further investigation under Section 173(8) of Cr.P.C. was dismissed. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order impugned and the other relevant documents, including the decisions in this regard. 3. In this case, arising out of crime No. 685/2022 of Valiyamala Police Station, Thiruvananthapuram, the prosecution alleges commission of offences punishable under Sections 450, 354B, 376, 376(2)(f), 376 (3) of IPC and under Section 3(a) r/w 4(2), 5(p) r/w 6, 5(l) r/w 6, 5(j)(i) r/w 6, 5(j)(ii) r/w 6 of the POCSO Act. 4. In this matter, after investigation, police laid charge and now the matter has been pending before the Sessions Court, awaiting trial. At this juncture, the petitioner filed Crl.M.P.No. 353/2023, seeking further investigation, mainly urging that he had no physical relationship with the victim at any point of time and the victim also given inconsistent statements in this regard. According to the petitioner, the victim became pregnant either at the option of Biju Kumar or Rahul, on the allegation that Rahul met the victim on 19.08.2022, when she was admitted at the hospital, for 30 minutes. Accordingly, the petitioner sought for further investigation. The prayer was opposed by the prosecution and the trial court addressed the contentions with reference to paragraph No. 10 relying on certain decisions of this Court and held in paragraph No. 14 as under while dismissing the application: “14. In the case on hand the prosecution has questioned all the material witnesses and collected evidence in support of their case. The claim of the petitioner for conducting further investigation is only for proving the case of the defence. On going through the averments in the petition, I am of the opinion that, no detection of new fact or omission traced out during the course of investigation. Nothing has been brought out by the petitioner/accused to order further investigation in this case. On going through the averments in the petition, I am of the opinion that, no detection of new fact or omission traced out during the course of investigation. Nothing has been brought out by the petitioner/accused to order further investigation in this case. The grounds stated in the petition are not a ground warranting a further investigation in this case. All the contentions raised by the petitioner in this petition can be raised at the time of trial. This petition is filed only for delaying the proceedings of the court. There is no merit in the petition. Hence, I am of the opinion that this petition is liable to be dismissed.” 5. While impeaching the veracity of the order, the learned counsel for the petitioner reiterated the contentions raised before the trial court, and also submitted that the involvement of Bijukumar and Rahul in this crime also to be investigated. 6. The learned counsel for the petitioner further submitted that the accused also has the right to ask for further investigation as held by this Court in Khaleel and Others v. State of Kerala and Others, 2020 (6) KHC 51 . He also placed three Bench decision of the Hon’ble Apex Court in Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 (5) KHC 352 , holding the view that the power of further investigation could be available to the magistrate at all stages of progress of a criminal case before trial actually commences. (trial commences with the framing of charges) 7. Whereas it is submitted by the learned Public Prosecutor that the accused has no vested right to seek further investigation since further investigation is within the domain of the Investigating Officer and the Investigating Officer, either suo motu or as directed by the Court, in appropriate cases, can conduct further investigation where such investigation is necessary. 8. In paragraph No. 10 of the trial court judgment, the learned Judge relied on the decision of this Court in Gilbert v. State Police Chief and Others (2023 : KER : 1697) and observed that the petitioner who is an accused did not have any vested right to seek further investigation. The further investigation is a matter which comes within the powers of the investigating officer, and the accused cannot insist for a further investigation as of right when the final report arraying him as accused was filed. The further investigation is a matter which comes within the powers of the investigating officer, and the accused cannot insist for a further investigation as of right when the final report arraying him as accused was filed. 9. The trial court also referred the decision of the Alahabad High Court in Amitabh Thakur v. State of U.P. MANU/UP/2506/2022, wherein also, it was held that the accused could not ask the trial court for a direction to the prosecuting agency that a particular evidence to be collected, which might be in favour of the accused. Another decision in Surendra Babu v. State of Kerala, 2023 (3) KLT 80 also referred by the trial court, where this Court held that the accused is not entitled to get the investigation conducted from his point of view. It is well settled position of law that, as far as the matters relating to the investigation, the accused has no right to be heard and he cannot insist that the investigation should be conducted in a particular manner. His point of view or explanation, at the most could be his defence which he can raise during the trial. 10. In Khaleel’s case (supra), this Court, while dealing with the power of the court to order further investigation, held that the power of the court to issue an order for further investigation under S.173(8) Cr.P.C. would arise when a new fact or evidence or omission on the part of investigation to trace out a material fact brought to its notice either by the defacto complainant or by the accused. 11. 11. In the decision in Vinubhai’s case (supra), three Bench of the Hon’ble Apex Court considered the power of Magistrate under Sections 173(8), 156(3) and 119 of Cr.P.C. and held as under: “Whereas it is true that S.156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, S.173(8), which did not exist under the 1898 Code --As we have noticed earlier in this judgment, S.2(h) of the 1973 Criminal Procedure Code defines “investigation” in the same terms as the earlier definition contained in S.2(l) of the 1898 Criminal Procedure Code with this difference that “investigation” after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer - “All” would clearly include proceedings under S.173(8) as well - Thus, when S.156(3) states that a Magistrate empowered under: S. 190 may order “such an investigation”, such Magistrate may also order further investigation under S.173(8), regard being had to the definition of “investigation” contained in S.2(h) - To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under S.173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid way through the pre trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to S.156(3) read with S.156(1), S.2(h), and S.173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences We, therefore, set aside the impugned High Court judgment insofar as it states that post cognizance the Magistrate is denuded of power to order further investigation.” 12. Section 173(8) Cr.P.C. provides as under: “(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 subsections (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).” Thus section 173(8) Cr.P.C. authorizes the investigating officer to go for further investigation if he obtains further evidence, oral or documentary, as the case may be, after filing the initial report. 13. It is well settled law that once the final report is filed and the Magistrate, on verification of the records, finds that further investigation is necessary, the Magistrate could very well order further investigation. The constitutional courts have the power to order further investigation or reinvestigation in appropriate cases as per law. In Vinubhai’s case (supra), the Hon’ble Apex Court held that the Magistrate possesses the power to order further investigation, after filing of final report and taking cognizance, till trial actually commences and trial commences only with framing of charges. Going by the discussion along with the decisions referred, Section 173(8) Cr.P.C does not give a vested right to the accused to file an application for further investigation and the ratio in Khaleel’s case (supra) which runs contra to the earlier decisions referred above is not good law and could not be followed. 14. Coming to the question as to whether a further investigation is necessary in this matter, otherwise, then also, it is relevant to note in this matter that as part of investigation, fetus and blood samples of the victim and the petitioner were collected and sent for DNA examination, the paternity of the child would depend upon the result of the said DNA test. Here, the specific allegation substantially raised by the victim is that she was subjected to rape by the accused and in consequence thereof, she became pregnant. Therefore, the prosecution allegation as to commission of sexual assault and other offences are the crux of the matter to be proved. Here, the specific allegation substantially raised by the victim is that she was subjected to rape by the accused and in consequence thereof, she became pregnant. Therefore, the prosecution allegation as to commission of sexual assault and other offences are the crux of the matter to be proved. On perusal of the available materials, the case was properly investigated by the Investigating Officer and thereafter filed final report. In fact, in such a case, there is no necessity to order further investigation. Thus it appears that none of the grounds urged by the petitioner to order further investigation are justifiable, as found by the trial court and in view of the matter, this petition must fail and is dismissed. 15. Interim order of stay stands vacated. 16. Registry is directed to forward a copy of this order to the trial court for information and further steps.