Madras High Court: While hearing a revisional petition against the decision of the Additional Sessions Judge, Fast Track Mahila Court, Thoothukudi dismissing the petition of the de facto complainant under Section 173 CrPC seeking re-investigation, the Bench of Dr. P. Devadass, J. observed that it is well settled that further investigation can be undertaken by the police even at the instance of the de facto complainant, under Section 173(8) CrPC and that the Judges and Lawyers should update themselves with the latest trend of law.
The petitioner- de facto complainant had filed a missing girl complaint and sought re-investigation of the case, which prayer was dismissed by the the Additional Sessions Judge, relying on the decision in Reeta Nag v. State of West Bengal, (2009) 9 SCC 129 on the ground that under Section 173(8) CrPC, the de facto complainant cannot ask for fresh investigation and dismissed the petition.
Allowing the petition, the Court observed that the view taken by the Supreme Case in Reeta Nag’s case, that the police alone can do further investigation has been deviated subsequently in Vinay Tyagi’s case and also in Chandra Babu v. State, (2015) 8 SCC 774. It is well settled that not only at the instance of the police, even at the instance of the de facto complainant, further investigation under Section 173(8) CrPC can be undertaken by the Police to find out the truth of the matter. But, the subordinate court is not competent to direct fresh, new, de novo investigation, which is entirely different from further investigation.
The Court observed that “it seems that the learned Additional Sessions Judge, Fast Track Mahila Court, Thoothukudi, has not been informed of the latest trend of law on this aspect. Judges and Lawyers should update themselves with the latest trend of law. Law is a living organism. It grows every day. It must be ‘dynamic’ and also ‘pragmatic. And should not be ‘static’. Law and judge-made law (case-law) must undergo change in tune with the change in Society. Otherwise, it will be a dull subject. Thus, March of Law is bound to be.”
Observing that the issue involved in this case has not been adjudicated before the trial court and had been left open by the learned Judge, the Court directed the lower court to rehear the matter and decide the application under Section 173(8) CrPC, according to law. [Samuel Jebakani v. Superintendent of Police, 2016 SCC OnLine Mad 8828, decided on August 17, 2016]
