Crl. A. (J) 117/2015 Page 1 of 21

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL

PRADESH)

Crl. Appeal (J) 117/2015

Md. Abdul Rokib ………..Appellant

-Versus-

The State of Assam …….Respondent

For the Appellant : Mr. S.K. Agarwal, Advocate

For the Respondent : Mr. N.J. Dutta, Addl. P.P., Assam

BEFORE THE HON’BLE MR. JUSTICE MIR ALFAZ ALI

Date of hearing : 30.06.2017 Date of Judgment and order : 10.07.2017

JUDGMENT & ORDER (CAV)

Appellant, Abdul Rokib has been convicted by the Sessions Judge,

Karimganj under Section 498A IPC and 304B IPC and sentenced to

imprisonment for three years and fine of Rs. 1000/- under Section 498A IPC

and imprisonment for seven years and fine of Rs. 1000/- under Section 304B

IPC with default stipulation.

2. The victim in the present case was Soma Begum, who succumbed to

the following injuries:

(a) A sharp cut injury on left side of the forehead measuring 3 ½”X1”X

bone deep, cutting the bone,

(b) A sharp cut injury on the right side of the occipital region, measuring 4”X ½”X bone deep, cutting the bone,

(c) A cut injury over the left maxilla, measuring 1”X ¼”X bone deep.

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3. The prosecution case as unfolded during trial was that the victim

Soma Begum was married to Mukitur Rahman, the son of the present

appellant. The victim was subjected to cruelty for demand of dowry. The

parents of the victim met some of the demands. Before the death of the

victim, the appellant demanded an APE vehicle and threatened with dire

consequences if, such demand was not fulfilled.

4. On the intervening night of 19.06.2012 and 20.06.2012, the victim

was assaulted with sharp weapons causing grievous injuries as indicated

above and she succumbed to the injuries. The father of the victim (PW-4)

lodged the FIR, Ext.1 wherein six persons, i.e. the husband of the victim, his

parents, bothers and sister-in-law were named as perpetrators of the crime.

On the basis of Ext.1, police registered a case and on completion of

investigation, submitted charge sheet against the husband of the victim,

Mukitur Rahman under Section 302 IPC and prayed for release of the

remaining 5 accused persons named in the FIR, for having not found

sufficient materials against them.

5. During trial, learned Sessions Judge framed charge against the

accused Mukitur Rahman, to which he pleaded not guilty.

6 Prosecution initially examined 4 witnesses including the informant.

The father of the victim examined as PW-4, deposed implicating all the 6

persons named in the FIR and prayed for proceeding against all of them, who

were named in the FIR. Upon such submission of the informant, learned

Public Prosecutor sought an adjournment for filing appropriate application

and on the next date, learned Public Prosecutor filed an application, which

was numbered as Pt. No. 356/2013, praying for direction to police for further

investigation. On the basis of such application, the learned Trial Court

directed the police by order dated 21.05.2013 for further investigation. The

police subsequently filed a second/additional charge sheet on 27.08.2013

against the present appellant Abdul Rokib, the father of accused Mukitur

Rahman, and eventually charge was also framed against him too, to which he

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pleaded not guilty. The learned Trial Court proceeded with the trial of both

the accused jointly and examined altogether 12 witnesses.

7. At the stage of judgment and hearing the accused person on the point

of sentence, learned Trial Court found that accused Mukitur Rahman was

suffering from mental ailment and therefore judgment in respect of Mukitur

Rahman was put on hold, whereas judgment was delivered in respect of the

present appellant convicting him and awarding sentence as indicated above.

8. Heard Mr. S.K. Agarwal, learned Amicus Curiae and Mr. N.J. Dutta,

learned Addl. P.P., Assam.

9. Learned Amicus Curiae has submitted that the subsequent charge

sheet submitted by police was illegal as it was on the basis of re-

investigation, which was never ordered by the learned Trial Court and, as

such, re-investigation of the case and submission of subsequent charge sheet

implicating the present appellant was illegal and therefore the trial on the

basis of such illegal charge sheet was also illegal. Further contention of the

learned Amicus Curiae is that, even the Trial Court did not have power to

order further investigation at the stage of trial. Learned Amicus Curiae also

submitted that there was no material to bring home the charge under Section

498A IPC and 304B IPC against the appellant and on that count also, the

conviction and sentence are required to be set aside.

10. Learned Addl. Public Prosecutor, Assam, supporting the conviction and

sentence of the accused contended that the evidence brought on record were

sufficient to prove the guilt of the accused beyond reasonable doubt and

therefore, there is no scope for interference with the judgment. Learned Addl.

P.P. further submits that the objection with regard to illegality or irregularity

in conducting further investigation ought to have been raised at the earliest

before the trial court.

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11. Legality of the trial itself having been challenged, it would be in the

fitness of matter to address the question of legality of the investigation

carried out by police subsequently, pursuant to the order of the learned

Sessions Judge for further investigation and its consequence and effect on

the trial.

12. Section 173(8) of the CrPC empowers the police to further investigate

a case, after filing of the charge sheet or final report. To carry out further

investigation and submit supplementary report is a statutory right and duty of

the police as enshrined in Section 173(8) CrPC, and such right of further

investigation cannot be circumscribed by any power of superintendence. Only

rider in this respect, as has been consistently held by the Apex Court is that

the police should inform the Court and seek a formal permission. The Apex

Court in Om Prakash Narang Vs. State of (Delhi Administration)

reported in AIR 1979 (SC) 1791 observed that when defective investigation

comes to light during course of trial, it may be cured by further investigation

if the circumstances so permitted. It would ordinarily be desirable that police

should inform the court and seek formal permission to make further

investigation when fresh facts comes to light. The Apex Court in Vinay Tyagi

Vs. Irshad Ali @ Deepak and Ors. reported in (2013) 5 SCC 762

observed that though there is no specific requirement in the provision of

Section 173(8) CrPC to conduct further investigation or file supplementary

report with the leave of the Court, it has been procedure of propriety, that

the police has to seek permission of court to continue further investigation

and file supplementary charge sheet.

13. When police is statutorily empowered by the provision of Section

173(8) CrPC to ‘further investigate’ after filing of reports under Section 173(2)

CrPC and submit supplementary report without any embargo, it has been a

matter of judicial concern for long time as regards power of Magistrate/Court

to order further investigation of its own, at the post cognizance stage, though

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power of the court to direct further investigation at the pre-cognizance stage

is well settled.

14. The Apex Court in the case of Randhir Singh Rana Vs. State

(Delhi Administration) reported in (1997) 1 SCC 361 held that when

after filing of report under Section 173(2) CrPC, Magistrate has taken

cognizance and accused entered appearance in pursuance of process issued

by the Court, Magistrate cannot of his own, order ‘further investigation’.

15. A Division Bench of this Court in the case of Rana Sinha @ Sujit

Sinha Vs. State of Tripura & Ors. reported in 2011 (2) GLT 610 after

considering various decisions of the Apex Court including Randhir Singh

Rana (supra), Reeta Nag Vs. State of W.B. reported in (2009) 9 SCC

129 held as under:

“157. We have already pointed out above that in the decisions, which have been rendered subsequent to Randhir Singh Rana’s case (supra), the Supreme Curt has not deviated from the position of law laid down in Randhir Singh Rana’s case (supra), namely that a Magistrate cannot, of his own, order further investigation after cognizance has been taken and the accused has appeared. So long as Randhir Singh Rana (supra) holds the field, as it does, indeed, even today, we are of the view that there can be no escape from the conclusion that a Magistrate cannot, on his own, direct further investigation, on a defect or deficiency having come to his notice. Naturally, therefore, the mere fact that such a defect or deficiency has been brought to the notice of the Magistrate by the informant, or the de facto complainant, or the aggrieved person, or the victim, would not, and cannot, clothe the Magistrate with the power to order ‘further investigation’ so as to advance the cause of justice or to prevent miscarriage of justice or to arrive at a just decision of the case. The remedy, in such a case, lies in making appropriate application under Section 482 of the Code inasmuch as Section 482 preserves the inherent power of the High Court. ………………..” “165. As against the situation, which we have visualized above, relating to pre-cognizance stage, we may, now, turn to

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the third situation, where further investigation at the post-cognizance stage, may be needed. After a court takes cognizance, a defect or deficiency in the investigation may come to the notice of the court, or such a defect or deficiency may be brought to the notice of the court by an informant, de facto complainant, aggrieved person or the victim. In neither case, in the face of the clearly laid down position of law, in Randhir Singh Rana’s case (supra), that a court cannot, on its own, direct further investigation, when the trial has commenced, it becomes clear that even on the request of an informant, de facto complainant, or the aggrieved person, the court would have no power to direct ‘further investigation’.”

16. The Apex Court, after considering various earlier decisions including

Bhagwant Singh v. Commissioner of Police & Anr. [(1985) 2 SCC

537], a three judges Bench, in Vinay Tyagi (supra) doubted the ratio of

Randhir Singh Rana (supra) and Rita Nag’s (supra) case and held as

under:

“37. In some judgments of this Court, a view has been advanced, (amongst others in the case of Reeta Nag v State of West Bengal & Ors. [(2009) 9 SCC 129] Ram Naresh Prasad v. State of Jharkhand and Others [(2009) 11 SCC 299] and Randhir Singh Rana v. State (Delhi Administration) [(1997) 1 SCC 361]), that a Magistrate cannot suo moto direct further investigation under Section 173(8) of the Code or direct re-investigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge sheet where the police submits a report that no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo moto direct further investigation.” “39. The contrary view taken by the Court in the cases of Reeta Nag (supra) and Randhir Singh (supra) do not consider the view of this Court expressed in Bhagwant Singh (supra). The decision of the Court in Bhagwant Singh (supra) in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three Judge Bench concluded as afore-noticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh (supra), are thus squarely in

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line with the doctrine of precedence. To some extent, the view expressed in Reeta Nag (supra), Ram Naresh (supra) and Randhir Singh (supra), besides being different on facts, would have to be examined in light of the principle of stare decisis.”

“40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code :

40.1. The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report.

40.2. A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173(6) of the Code.

40.3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh’s case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence.

40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).

40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.”

The Apex Court in Vinya Tyagi (supra) even went on to say in para-

51, that “it will be a travesty of justice, if the court cannot be permitted to

direct further investigation to clear its doubt and to order the investigation

agency to further substantiate its charge sheet.”

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17. For better appreciation of the above ratio laid down by the Apex

Court, it would be beneficial to have a look at the factual matrix of the case in

Vinya Tyagi (supra). Respondent Irshad Ali was allegedly working as

informer of Special Cell of Delhi Police and Intelligence Bureau and he was

falsely implicated in a criminal case. The case was investigated by Special Cell

of Delhi Police. Aggrieved by the action of the Delhi Police, brother of the

accused filed a petition before the Delhi High Court for transferring the case

to CBI. While the matter was pending before the High Court, Delhi Police

submitted charge sheet before the trial court as there was no stay on the

investigation and/or the proceeding before the court of competent

jurisdiction. Delhi High Court directed the CBI to undertake an enquiry into

the matter. After detailed investigation, the CBI filed a closure report stating

that a false case was registered against the accused. After the closure report

of the CBI, respondent No. 2 filed a petition before the trial court praying for

discharge in terms of Section 227 CrPC, in view of closure report of CBI. The

trial court rejected the petition and fixed the case for hearing on charge.

Thereafter, the respondent No. 2 filed a petition under Section 482 CrPC

before the High Court for quashing the proceeding pending before the court

of Additional Session Judge, Delhi. High Court set aside the order of the

Additional Sessions Judge rejecting the petition for discharging the accused

and remanded the case for proceeding further, after hearing the parties on

the basis of closure report filed by CBI. The accused respondent again

challenged the order of the High Court before the Apex Court. It is pertinent

to mention that because of no stay order having been passed by the High

Court, Delhi Police submitted charge sheet even before the case was handed

over to CBI. So there were two reports, one was the charge sheet submitted

by Delhi Police and the other was closure report submitted by CBI and the

matter before the trial court was at the stage of consideration of charge. The

Apex Court ultimately held as under:

“60. Once a Report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed

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by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report. Furthermore, in the present case, the High Court had passed no order or direction staying further investigation by the Delhi Police or proceedings before the court of competent jurisdiction. On the contrary, the court had noticed explicitly in its order that it was a case of supplementary or further investigation and filing of a ‘supplementary report’. Once the Court has taken this view, there is no question of treating the first report as being withdrawn, cancelled or capable of being excluded from the records by the implication. In fact, except by a specific order of a higher court competent to make said orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, in accordance with law. It is also interesting to note that the CBI itself understood the order of the court and conducted only ‘further investigation’ as is evident from the status report filed by the CBI before the High Court on 28th November, 2007.

61. In our considered view, the trial court has to consider the entire record, including both the Delhi Police Report filed under Section 173(2) of the Code as well as the Closure Report filed by the CBI and the documents filed along with these reports. It appears, the trial court may have three options, firstly, it may accept the application of accused for discharge. Secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct ‘further investigation’, it may do so.”

18. What therefore, abundantly clear from the above is that, the Apex

Court clearly recognized the power of the trial court to order further

investigation even at the stage of trial, if such further investigation is felt

necessary in the interest of fair trial and for the ends of justice. The Apex

Court, however, held that “the power of the Magistrate to direct ‘further

investigation’ is a significant power which has to be exercised sparingly in

exceptional cases to achieve the ends of justice”

19. What therefore follows is that Magistrate or the trial court has the

power to order ‘further investigation’ even at the post cognizance stage after

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appearance of the accused in pursuance of the process issued from the court,

if interest of justice so demands. At the same time, while passing order for

further investigation, it should be borne in mind that power to order further

investigation is a significant power, which has to be exercised sparingly in

exceptional circumstances and only for the purpose of achieving the ends of

justice.

20. Fair trial presupposes a fair investigation. If the Magistrate/Court

notices serious defects or deficiency in the investigation which is likely to

results in miscarriage of justice and there is no other way to remedy such

deficiency or defect in the primary investigation, it becomes an obligation of

the court/magistrate to direct further investigation for advancing the cause of

justice or to prevent the miscarriage of justice. At the same time, it should

also be borne in mind, that the power to direct further investigation should

not be exercised in a routine manner in absence of extreme necessity of

meeting the ends of justice. Even at the risk of repetition, I must reiterate

herein, the note of caution by the Apex Court that the power to direct ‘further

investigation’ is a significant power, to be exercised sparingly in exceptional

cases for achieving the ends of justice. Section 315 CrPC empowers the Court

to issue process against any person, not being an accused, when in the

course of enquiry into and trial of an offence, the court is satisfied from the

evidence adduced, that such person has committed an offence for which he

could be tried together with the accused already put in trial. Section 311 CrPC

empowers the court, at any stage of any enquiry, trial or other proceeding

under the code of criminal procedure, to summon any person as witness or

examine any person in attendance, though not summoned as a witness, or

recall and re-examine such person, if his evidence appears to be essential to

the just decision of the case. If the court notices that because of deficiency in

investigation, any person, who ought to have been cited as witness by the

investigation officer, has not been cited as witness or, any person, who ought

to have been proceeded against, as accused but the Investigating Officer has

not sent such person for trial, and the court/magistrate is satisfied that such

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defect or deficiency in the investigation can be met and the cause of justice

can be served by resorting to the above position of law, it would be desirable

to avoid the course of ‘further investigation’. Ultimately it is the discretion and

objective satisfaction of the court/magistrate on the facts and circumstance of

a particular case, to decide, whether further investigation is required or not.

21. In the case of Rana Sinha (supra) Division Bench of this Court while

dealing with the object of further investigation, held in para-100 as under:

“100. In the light of what have been observed and held in Ram Lal Narang (supra), it becomes crystal clear that a ‘further investigation’ is not necessarily aimed at finding out materials against the accused. A ‘further investigation’ may subserve the interest of the prosecution and, at times, even of the defence. There may be fresh materials, which may, on coming to light, necessitate ‘further investigation’ either for strengthening the case against the accused or for exonerating him.”

22. In the case in hand, the FIR, Ext.1 was lodged by the PW-4, father of

the victim, wherein allegations of dowry demand and physical and mental

torture were brought against the appellant and all other members of his

family. All the six members of the family of the appellant were named in the

FIR (Ext.1). However, after investigation police submitted charge sheet

against only the husband of the victim and prayed for releasing the others for

having not found sufficient material against them. Learned Magistrate took

cognizance and committed the case to the court of Session for trial as the

offence charged was triable by the Court of Session. In course of trial, PW-4

the informant, deposed implicating all the six persons named in the FIR and

made a prayer for proceeding against all the FIR named persons. It is on the

basis of this evidence of PW-4, learned P.P., submitted an application for

further investigation and learned Trial Court directed for further investigation.

For better appreciation, the contents of the application are reproduced below:

“IN THE COURT OF DISTRICT & SESSIONS JUDGE::KARIMGANJ

S.C. Case No. 46 of 2013. 356/13

State Vs.

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Mukitur Rahman -- Accused. Petitioner : Shri R.K. Dev.

Public Prosecutor, Karimganj

The petitioner above named most respectfully states as under. 1. That on 21/06/2012 the informant of the instant case, Md.

Noor Uddin, lodges FIR at Nilambazar PS following the death of his daughter, Soma Begum, at her in-laws house on 20/06/2012.

2. That the said informant named the following persons as accused in the FIR. I. Mukitur Rahman, son of Abdul Rakib, II. Abdul Rakib, son of Late Firoj Ali, III. Moymuneessa, wife of Abdul Rakib, IV. Joynul Haque, son of Abdul Rakib, V. Moklichur Rahman, son of Abdul Rakib and VI. Piyara Bagam, wife of Moklichur Rahman.

3. That in course of investigation the police examined

material witnesses, including some family members of the informant.

4. That the informant while deposing before this Hon’ble Court on receipt of summons on 13/05.2013, could learn that the police has submitted the Charge Sheet only against his son-in-law and set free other in-laws and also the Police did not cite the aforesaid material witnesses.

5. That the informant humbly states that all the FIR named in-laws of his deceased daughter were involved in her murder. On extraneous considerations, police has laid the C/S improperly exonerating other FIR named culprits. There was sufficient evidence of their action involvement in the murder of his daughter.

6. That in view of the above, the Fir named co-culprits are required to be tried and the evidence of material witnesses be produced before this hon’ble court. And in the interest of fair trial and justice, further investigation is also necessary.

In the above exceptional circumstances, it is, therefore prayed that your honour would graciously be pleased to order further investigation in the case.

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And for this act of kindness, the petitioner shall ever pray.”

23. From the above application for further investigation, as well as the

order, by which further investigation was directed, it transpires that no fresh

material was placed before the trial court necessitating a further

investigation, except the version of the informant (PW-4) that all the six

persons named in the FIR are required to be proceeded against, which, can

by no stretch of imagination be said to be a new fact to justify a direction for

further investigation. It is also apparent from the application that no material

was brought before the court suggestive of any bias or lack of impartiality on

the part of the Investigating Officer. The power of the Magistrate/Court to

direct further investigation, more particularly at post cognizance stage, is a

significant one, to be exercised sparingly. Therefore, before passing an order

of further investigation, the court has to come to a definite finding with

objective satisfaction and by applying judicial mind that for achieving the

cause of justice or to prevent miscarriage of justice or in the interest of fair

trial, a further investigation is necessary. From facts of the instant case as

indicated above, want of adequate material necessitating a direction for

further investigation by the court is palpable. Therefore, in facts and

circumstances of the case, I am of the considered opinion that there was no

valid ground for directing a ‘further investigation’, though it was open for the

trial court to take recourse to the provision of Section 319 or 311 CrPC,

subject to availability of the necessary pre-requirement for invoking the said

provisions.

24. Looking from another angle, although the learned Trial Court by its

order directed the police for ‘further investigation’, the Investigating Agency

has deviated from the order of the learned Trial Court and instead of

conducting further investigation, re-investigated the case and submitted a

fresh charge sheet against the accused appellant, who was not charge

sheeted in the original report. What is more important is that, the

Investigating Officer has clearly mentioned in the charge sheet that he has

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re-investigated the case and found prima facie material against the accused

appellant Abdul Rokib (exonerated in the original charge sheet) for having

committed the offence under Section 304B IPC. The Investigating Officer

further mentioned categorically in the subsequent charge sheet, that during

his reinvestigation, he has not found any material against all the other

persons named in the FIR, except the accused appellant, and prayed for

exonerating all the other FIR named accused, except the accused appellant,

against whom the subsequent charge sheet has been filed. It is now settled

position of law that although Section 173(8) CrPC empowers the police to

‘further investigate’ a case, and submit a supplementary report, no power is

vested with the police for reinvestigation of a case. Rather, reinvestigation is

barred by law. Not to speak of police, directing re-investigation is also beyond

the jurisdictional competence of the subordinate courts. It is only the higher

Court which, in exercise of constitutional power, can order for reinvestigation

in exceptional and rare cases. The Apex Court in M itha Bhai Passa Bhai

Patel Vs. State of Gujrat (Manu SC 0858/ 2009) distinguishing between

further investigation and reinvestigation held as under:

13. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior could/would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413], opined as under :-

"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation..."

25. In Vinya Tyagi (supra) also the Apex Court held as under:

“54. No investigating agency is empowered to conduct a ‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the offence for which it has already filed a report in terms of Section

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173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate.”

26. It is therefore abundantly clear, that in view of the statutory power

provided by Section 173(8) CrPC, police is empowered to further investigate a

case and submit supplementary charge sheet, even after filing of report

under Section 173 (2), without being circumscribed by any embargo and for

that matter, the Magistrate or the subordinate Court can also direct for

further investigation both at pre and post cognizance stage, if such further

investigation is considered necessary for ends of justice. But reinvestigation

or fresh investigation is barred by law. Only the higher court in the exercise

of constitutional and inherent power, can order reinvestigation or fresh (de

novo) investigation in exceptional and rare cases, obviously to meet the ends

of justice. What therefore follows is that the term ‘further investigation’ and

reinvestigation are not synonymous. A reinvestigation or de-novo

investigation has to be understood in contra distinction to a further

investigation.

27. The Apex Court had the occasion to elaborate the distinction between

further investigation and reinvestigation in the case of K. Chandra Shekhar

Vs. State of Kerela reported in (1998) 5 SCC 233 as under:

“24. From a plain reading of the above Section it is evident that even after submission of police report under sub- section (2) on completion of investigation, the police has a right of 'further' investigation under sub-section (8) but not "fresh investigation' or 're-investigation'. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27, 1996 (quoted earlier) that the consent was being withdrawn in public interest to order a 're-investigation' of the case by a special team of State police officers, in the amendatory notification quoted earlier it made

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it clear that they wanted a 'further investigation of the case' instead of 're-investigation of the case'. The dictionary meaning of 'further' (when used as an adjective) is 'additional'; more; supplemental. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab-initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports - and not fresh report or reports- regarding the 'further' evidence obtained during such investigation. Once it is accepted - and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji (supra) - that an Investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that 'further investigation' is a continuation of such investigation which culminates in a further police report under sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I. alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act and whether consent given for investigating into Crime No. 246/94 was redundant in view of the general consent earlier given by the State of Kerala.”

28. A Division Bench of this Court in the case of Rana Sinha (supra)

while discussing the distinction between further investigation and

reinvestigation, observed as under:

“160. Further investigation is nothing, but continuation of an earlier investigation. In further investigation thus, the investigation, which might have been conducted in the past, would be resumed and conducted further. 161. As against ‘further investigation’, a re-investigation is an investigation, which is a new and fresh investigation wiping out the earlier investigation and ‘re-investigation’ is conducted

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by an agency, which is not only different from the earlier investigating agency, but also must be one, which falls under the control, supervision or jurisdiction of an authority not only different from, but also independent of, the authority, which had the control, supervision or jurisdiction over the earlier investigation agency. In this sense, an investigation conducted by an investigating agency, such, as Criminal Investigation Department of a State, is not different from the ordinary police machinery of the State concerned, because both of them are under the jurisdiction of the same State; whereas Central Bureau of Investigation (CBI) is an authority, which is different from the normal police investigation of the State or its Criminal Investigation Department. As has been pointed out in clear terms, in A.S. peter (supra), what Section 173(8) permits is a further investigation and not a re-investigation. What is, however, extremely important to bear in mind is that a reinvestigation being prohibited by law, it would not, ordinarily be ordered by a superior court. It, thus, becomes clear that a ‘reinvestigation’ would be ordered in the situations, which are extra-ordinary, rare and cannot be met by a further investigation.”

29. Thus, a further investigation is nothing but continuance of the earlier

investigation which commenced by virtue of the power vested on police

under Section 173(8) of the CrPC and such further investigation culminates in

submission of a supplementary charge sheet or additional charge sheet,

whereas a reinvestigation is a fresh investigation conducted by a different

agency, which culminates in submission of a fresh report as envisaged under

Section 173(2) CrPC. Further investigation is an additional investigation,

which adds new material to the original charge sheet, whereas,

reinvestigation is a fresh investigation, which may wipe out or completely

obliterate the previous investigation. Further investigation is statutory power

of the police and the Magistrate/court as provided in by Section 173(8) CrPC,

whereas reinvestigation is prohibited by the law. Only constitutional court can

order for reinvestigation in exercise of inherent or constitutional power, in

exceptional and rare cases.

30. Coming to the case in hand, the subsequent charge sheet, Ext.5

submitted on completion of reinvestigation, shows that the Investigating

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Officer has reinvestigated the case and submitted a fresh report whereby

wiping out the earlier investigation, inasmuch as, in the original report under

Section 173(2), the police submitted charge sheet against accused Mukitur

Rahman and prayed for exonerating the remaining 5 persons named in the

FIR for want of sufficient evidence against them. Whereas, by the subsequent

report, after the reinvestigation, the police submitted charge sheet (Ext.5)

against the present appellant Abdul Rokib and exonerated all other 5 persons

named in the FIR including the accused, who was charge sheeted in the first

charge sheet, meaning thereby, the subsequent reinvestigation has wiped out

the original investigation and charge sheet. The subsequent reinvestigation

and resultant charge sheet, Ext.5 wiping out completely the previous

investigation, was apparently illegal and beyond the jurisdictional competence

of police. What is more important is that after submission of the second

charge sheet (Ext.5) as culmination of the reinvestigation, the learned Trial

Court resumed the trial and framed charge against the accused appellant and

jointly tried both the accused persons, charge sheeted by first as well as

second charge sheet. When reinvestigation is prohibited by law and is beyond

the jurisdictional competence of the police as well as the subordinate courts,

the trial commenced on the basis of such reinvestigation is also illegal and a

nullity.

31. Now the question, which arises is, whether the entire trial stands

vitiated because of the illegal reinvestigation. Evidently, initial charge sheet

was filed against the accused Mukitur Rahman and trial proceeded against

him and during the course of trial, after examination of four PWs, the learned

Trial Court ordered further investigation and stopped the trial till completion

of such further investigation. But the police, in its wisdom or ignorance

reinvestigated the case illegally and without jurisdiction and submitted a fresh

charge sheet against the appellant wiping out the original investigation.

However, the learned Trial Court without applying its mind proceeded with

joint trial of the appellant along with the accused who was charge sheeted in

the original report. Apparently, till the order made by the Trial Court for

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further investigation, there was no illegality in the trial, as it commenced and

continued as per law.

32. A Division Bench of this Court in Hanuman Box Agarwal Vs. Girish

Ch. Gogoi reported in 1990 Cr.L.J. 2250 while dealing with the

consequence of investigation in a summon case continued beyond the period

of 6 months without the leave of the Court under Section 167 (5) CPC,

interalia formulated the following questions:

(i) Whether the entire proceeding becomes without jurisdiction and nullity in case investigation in a summon case is not completed and the charge sheet is not submitted within a period of 6 months from the date of arrest of the accused unless the Investigating Officer making the investigation satisfies the Magistrate that for a special reason and in the interest of justice the continuation of the investigation beyond the period of 6 months is necessary?

(ii) ……………

(iii) Whether the proceeding is a nullity and Magistrate cannot take cognizance, if the investigation continues beyond 6 months of arrest of the accused although the part of investigation completed before expiry of 6 months make out a case for trial against the accused?

33. Answering the above questions, this Court held as under:

“4. even though it would be permissible to take cognizance of the offence on eh basis of the charge sheet submitted beyond the period of 6 months visualized by Section 167 (5), it would be open to the magistrate to look into those materials alone which had been collected within the period of 6 months and to ignore other materials put on record. Confinement to the materials collected within 6 months would not require examination of the question regarding prejudice to the accused, which aspect has been mentioned in many cases. ……………….. ……………….. iii) The proceeding would not become a nullity if the materials collected before expiry of 6 months make out a case for trial against the accused. This applies to those cases which are connected with the accused persons not in jail at the relevant time.”

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34. Though the above observation of the Division Bench of this Court

relates to an investigation in a summon case under Section 167(5) CPC, the

principle embodied in the ratio, can beneficially be applied in the present case

to the extent that although the joint trial of the appellant along with the co-

accused after submission of the charge sheet on the basis of reinvestigation

was illegal, commencement of continuation of trial on the basis of the original

charge sheet till the order directing further investigation, cannot be said to

have been affected or vitiated by reinvestigation of the case, inasmuch as the

reinvestigation or the report submitted on the basis of such reinvestigation

had nothing to do with the continuation of trial till the order of further

investigation was passed. Therefore, I am of the considered opinion that

notwithstanding the trial of the appellant along with the co-accused having

been rendered illegal and vitiated, because the reinvestigation was without

jurisdiction; there is no justification to hold that the trial was vitiated ab initio,

for, the trial of the accused Mukibur Rahman continued in accordance with

law, till the order of further investigation was passed.

35. In above view of the matter, by applying the ratio of Hanuman Box

(supra) it can safely be held that the entire proceeding would not be illegal

and nullity. However, the proceeding to the extent, and so far as based on

the reinvestigation, is illegal and a nullity and liable to be set aside.

Accordingly, the conviction and sentence of the appellant is set aside. The

accused appellant Abdul Rokib be immediately released, if he is not required

in any other case. The LCR be send down along with copy of this judgment.

The learned Trial Court shall resume fresh trial in respect of accused Mukitur

Rahman from the stage, before the direction of further investigation. As the

learned Trial Court already held that accused Mukitur was suffering from

mental ailment, necessarily, learned Trial Court shall comply with the chapter

XXV of the CrPC.

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36. Appreciating the assistance rendered by Mr. S.K. Agarwal, learned

Amicus Curiae, I hereby provide that he will be entitled to Rs. 7500/-, as fees,

which shall be paid by the Gauhati High Court Legal Services Committee upon

production of a copy of this judgment.

JUDGE Mkk