Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi J., dismissed the original petition filed under Article 227 of the Constitution where the petitioner prayed the Court to direct the Sessions Court to pass orders under Section 173(8) of CrPC to direct the investigating officer to conduct further investigation in the case of her son’s death, Sreejith. He had been missing since 26-07-2013. 

On the basis of the complaint filed by the petitioner, a case under Section 57 of the Kerala Police Act was registered. During the investigation, it was revealed that Sreejith had died on the very day he had gone missing after getting electrocuted by coming into contact with the live electric fence put up by Rajagopalan and Raghavan, the neighbours of Sreejith to prevent the entry of wild animals into their property. After they found the dead body of Sreejith, they buried the dead body without informing any person. The aforesaid two persons were arrested for the offences punishable under Sections 304 and 201 read with 34 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case is pending in the Court of Session. Counsel for the petitioner, C.P. Udayabhanu and Navaneeth N. Nath contended that the murder not a case of mere culpable homicide not amounting to murder. 

The High Court referred to Vinubhai Haribhai Malaviya v. State of Gujarat, JT 2019 (10) SC 537, where the Supreme Court held that the Magistrate had the power to order further investigation under Section 173(8) CrPC at all stages of the case before the trial actually commences and whether further investigation should or should not be conducted is within the discretion of the learned Magistrate who could exercise such discretion on the facts of each case in accordance with law. In light of this decision, the Court held that the petitioner should have approached the appropriate court below and seek further investigation of the case. It was not proper for this Court to exercise its jurisdiction under Article 227 of the Constitution of India even before the petitioner had approached the appropriate court below in that regard.

They further stated that the High Court should discourage the practice of filing a writ petition or filing petition under Section 482 CrPC, simply because the complainant had a grievance that his/her complaint was not properly investigated by the investigating agency. They cited Thomas v. Achamma Thomas 2009 (2) KLT 931 which explained that filing of the writ petition is not absolutely barred, but it is well settled if there are an alternative and efficacious remedy provided under the provisions of the concerned Act, normally the

High Court should not interfere by exercising the extra-ordinary jurisdiction.

The Court stated that no other arguments were advanced before them as to which Court, whether it is the Magistrate’s Court or the Sessions Court, the petitioner should approach seeking further investigation. The Court dismissed the original petition is dismissed and made clear that the petitioner was at liberty to approach the appropriate court below seeking a further investigation of the case by the police under Section 173(8) CrPC. [Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided on 17-12-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J. allowed this petition seeking a direction to the official respondents for reinvestigation because of shoddy, incomplete and unreasoned investigation conducted in a perfunctory manner.

The facts of the case are that the father, brother of the petitioner and the petitioner himself were criminally abused, beaten up and restrained by the accused persons. An FIR was lodged but the police refused to take any actions against the accused persons. It was stated that the Challan in the aforesaid FIR was produced before the Court of Learned Munsiff only under Sections 341/323/34 RPC and only against a few of the respondents and left over the serious offences and rest of the accused persons. The petitioners further contended that the criminal case under the FIR whose challan was presented in the Court of Munsiff required a reinvestigation as the medical record which had been annexed with the petition was not considered by the Investigating Officer during the investigation.

The Court allowed the petition and ordered for further investigation. [Mohd. Arif v. State of J&K, 2018 SCC OnLine J&K 1046, decided on  24-12-2018]

Case BriefsSupreme Court

Supreme Court: Interpreting Section 173 CrPC with reference to the power of the investigative agency, the Court said that the un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings.

The bench of Dipak Misra and Amitava Roy, JJ said that though the Magistrate has the power to direct investigation under Section 156(3) CrPC at the pre-cognizance stage even after a charge-sheet or a closure report is submitted, once cognizance is taken and the accused person appears pursuant thereto, he would be bereft of any competence to direct further investigation either suo motu or acting on the request or prayer of the complainant/informant. The direction for investigation by the Magistrate under Section 202 CrPC, while dealing with a complaint, though is at a post-cognizance stage, it is in the nature of an inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such a direction for investigation is not in the nature of further investigation, as contemplated under Section 173(8) CrPC. Had it been the intention of the legislature to invest such a power, Section 173(8) of the Cr.P.C would have been worded accordingly to accommodate and ordain the same having regard to the backdrop of the incorporation thereof. The Court said that the recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone.

It was held that after a report is submitted by the police on completion of the investigation, the Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to the Magistrate to direct further investigation suo motu or on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render the provisions of Sections 311 and 319 Cr.P.C., whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 SCC OnLine SC 86, decided on 02.02.2017]