Last Updated on June 20, 2024 by Satish Mishra
To begin with let us analyze powers of investigation by the police first.
Supreme Court in the case of Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & Ors, 2017 dwelt upon the three facets of investigation as follows: (i) initial investigation (ii) further investigation and (iii) fresh or de novo or re-investigation.
Initial investigation is the one which the empowered police officer shall conduct in furtherance to registration of an FIR leading to a final report under Section 173(2) of the Criminal Procedure Code.
Further investigation was a phenomenon where the investigating officer would obtain further oral or documentary evidence after the final report had already been submitted before the court in terms of Section 173(8) of the Criminal Procedure Code. It is the continuation of a previous investigation.
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However, Fresh investigation or de novo investigation or re-investigation, is an exercise, which it was held, could neither be undertaken by the investigating agency suo motu nor could be ordered by the Magistrate and that it was essentially within the domain of the higher judiciary to direct the same and that too under limited compelling circumstances warranting such probe to ensure a just and fair investigation and trial.
In the case of Samaj Parivartana Samudaya & Ors v. State of Karnataka & Ors, 2012, the Supreme Court held that carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. However, Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible. Under Section 173(8) of Criminal Procedure Code, it clearly envisages that on completion of further investigation, the investigating agency has to forward the Magistrate a ‘further’ report and not a fresh report regarding the ‘further’ evidence obtained during such investigation.
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In the case of Chandra Babu @ Moses v. State through Inspector of Police, 2015, the Supreme Court observed that the magistrate cannot order a further investigation by a different agency either, as that will amount to re-investigation. It is a well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction to direct further investigation, ‘fresh’ or ‘de novo’ or ‘reinvestigation’. The case for re-investigation is altogether a subject matter and discretion of the concerned High Court or Supreme Court under Article 226 and Article 32 of the constitution, respectively or under Section 482 of Criminal Procedure Code; or may be considered by the Supreme Court of India.
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.
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In the case of State Of Punjab v. CBI & Ors, 2011 the Supreme Court held that the distinction that exists between reinvestigation and further investigation. The Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and therefore, must exercise their jurisdiction within the corners of the Code.
After the order for further investigation, then for the second time the Magistrate cannot compel the police to take a particular view in the matter and submit the challan in the case.
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However, A Magistrate can disagree with the police report and take cognizance and issue process and summons to the accused. Thus, the Magistrate has the jurisdiction to ignore the opinion expressed by the investigating officer and independently apply his mind to the facts that have emerged from the investigation.
In the case of Dharam Pal v. State of Haryana, 2016 the Supreme Court observed that for a fair trial it is necessary that a fair investigation is conducted. The Court further observed that the power to direct re-investigation should be sparingly given and such decision should be based on the facts of the case. In order to instil the faith and fear of law in the minds of the victim and the accused, it becomes necessary for the Courts to ‘uphold the truth, which means absence of fraud and deceit in a criminal investigation.’
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The police have the power to investigate and suo motu take initiative to do further investigation but not in the case of fresh or de novo or re-investigation. Also, Magistrate has power to ensure that his order under Section 156(3) of Criminal Procedure Code is complied with. Thus, we reiterate that the power of Police Officers in the field of investigation of an offence is not unlimited. Hence, the power during investigation by the Police must be strictly exercised within the constraints’ of the Criminal Procedure Code and should not violate the basic rights of the citizen.
This post is written by Avinash Medidhi from University of Delhi (Faculty of Law). For more info on subject, please dial 99888-17966.
