Madras High Court
K.Lakshmipathy vs The Superintendent Of Police on 24 August, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/08/2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.3808 of 2012
and
M.P.(MD).Nos.2 & 3 of 2012
K.Lakshmipathy ... Petitioner
Vs.
1.The Superintendent of Police,
Office of the Superintendent of Police,
Thoothukudi District,
Thoothukudi.
2.The Inspector of Police,
North Police Station,
Kovilpatti,
Thoothukudi District. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of Certiorari to call for the records from the file of
the 1st respondent herein in C.No.C1/49305/2011 and to quash the order dated
02.12.2011 passed therein.
!For Petitioner ... Mr.Siva Ayyappan
^For Respondents ... Mr.M.Alaguthevan, Spl GP (For R1 and R2)
Mr.Veera Kathiravan (For proposed R3)
:ORDER
In this writ petition, the petitioner challenges the order passed by the 1st respondent / Superintendent of Police, Thoothukudi District, dated 02.12.2011.
2.In the impugned order the 1st respondent has stated that the case in Cr.No.205/2011 on the file of the Kovilpatti West Police Station filed under various provisions of IPC and Indian Arms Act, has been investigated by the Inspector of Police, Kovilpatty West Police Station and he filed the charge sheet before the Judicial Magistrate No.II, Kovilpatty on 10.08.2011. Further, the offences, under which the investigation was madem, were under Section 120(b), 294(b), 406, 420, 506(ii) IPC r/w 35 IPC and 25(i)(A) of Indian Arms Act. The final report has not been taken on file by the learned Judicial Magistrate. Therefore, the Superintendent of Police (1st respondent) by the impugned order directed the Inspector of Police, District Crime Branch, Thoothukudi, to take up re-investigation of the above case with immediate effect and the Inspector of Police, Kovilpattty West Police Station was directed to handover the connected CD file of the case to the newly appointed Investigating Officer. The Deputy Superintendent of Police, Maniyachi Sub-Division, i/c Kovilpatti Sub-Division, was directed to ensure immediate handing over of CD file to the newly appointed Investigating Officer and he was further directed to guide the Investigating Officer in the investigation besides sending periodical progress report of the investigation to the Office of the Superintendent of Police.
3.Aggrieved by the same, the present writ petition came to be filed.
4.When the matter came up on 29.03.2012, this Court directed the Special Government Pleader to get instructions from the respondents and pending the writ petition, an order of interim stay of further proceedings was granted. Subsequently, the writ petition was admitted on 07.08.2012 and in the interim stay petition notice was ordered.
5.During the pendency of the writ petition, one Subiah @ Kadambur Jeyaraj filed an impleading petition to implead himself as 3rd respondent in the writ petition. The said Subiah has been arrayed as 1st accused in the complaint given by the petitioner.
6.Though it was contended by the proposed party to be impleaded that the case has been foisted against him by the petitioner, this Court did not implead him as a party respondent, as normally in criminal proceedings the accused will have no say during the investigation, but this Court allowed him to intervene in this petition, vide order dated 23.08.2012. Accordingly, on behalf of the said Subiah, the learned counsel Mr.Veera Kathiravan made submissions.
7.The contention of the petitioner was that the Police has right to order for further investigation under Section 173(8) of Cr.P.C., but no fresh or re-investigation can be done by them. There is a distinction between re-investigation and further investigation. The Investigating Agencies or the Courts Subordinate to the High Court have to exercise their powers under the four corners of the Cr.P.C, and the reinvestigation has been forbidden by law. The 2nd respondent has already filed a charge-sheet, but had not informed about the erroneous order of re-investigation to the Trial Court.
8.On notice from this Court, the 1st respondent has filed a counter affidavit, dated (nil) April 2012 and in the counter affidavit it was stated that the transactions between the writ petitioner and the accused were not properly investigated by the Investigating Officer in a transparent manner and he has filed a final report without collecting relevant materials. Further, when the final report was placed before the learned Judicial Magistrate No.II, Kovilpatti, on 12.02.2011, it was returned for production of original documents. When the case diary was produced before the 1st respondent, he found that the Investigating Officer has not properly investigated the case. In the meanwhile, the accused filed Crl.O.P.NO.243 of 2011 before this Court to quash the FIR. The said Crl.O.P was dismissed on the ground that the charge-sheet was already filed. The 1st respondent by invoking the powers under Section 173(8) of Cr.P.C., vide his proceedings dated 02.12.2011 (Impugned order) ordered for re-investigation to investigate the above case. On the basis of the said order, the investigation was handed over to the Inspector of Police, District Crime Branch, Thoothukudi. It is also stated that the petitioner filed earlier Writ Petition in W.P.No.15004 of 2011 seeking for a direction to consider his representation and this Court by order dated 23.12.2011 directed the respondent to consider his representation. A copy of the order sent by the Inspector General of Police, South Zone, Madurai was sent to the 1st respondent herein and he had sent a letter dated 24.02.2012 to the Inspector General of Police, South Zone stating the reasons for re-investigation. It is also stated by the 1st respondent in his counter that there is no material irregularity while ordering reinvestigation and he has power under Section 173(8) of Cr.P.C., to order reinvestigation and he found that the 2nd respondent has not done the investigation in a proper manner.
9.Therefore, the only question that arises for consideration is whether by exercising the powers under Section 173(8) of Cr.P.C., an authority, who is superior to the Investigating Officer, can order for reinvestigation?
10.The learned counsel for the petitioner placed reliance upon the judgment of the Honourable Supreme Court reported in 2009(2) SCC (Cri) 1047 [Mithabhai Pashabhai Patel Vs. State of Gurajat), for contending that even under Section 482 of Cr.P.C, the Court subordinate to the High Court has no inherent powers and it has to function within the four corners of the law, and a reference was made to the following paragraphs in the said judgment, which run as follows:-
"12.This Court while passing the order in exercising of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.
13.It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' 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 reinvestigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction. Pasayat, J. inRamachandran Vs. 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."
A distinction, therefore, exists between a reinvestigation and further investigation."
Therefore, it is contended that there is a world of difference between 'further investigation' and 'reinvestigation'.
11.A reference to the above passage also clearly shows that the Investigating Agency in terms of Section 173(8) of Cr.P.C., can pray before the Court for permission for investigating into the matter further. In certain situations, such a formal request may not be insisted. Nevertheless, in several circumstances in several judgments, the difference between 'further investigation' and 'reinvestigation' has been reiterated.
12.The learned counsel also referred to another judgment of the Honourable Supreme Court in Ramachandran Vs. R.Udhayakumar & others reported in CDJ 2008 SC 989. In the said judgment in paragraphs 6 & 7 it has been observed as follows:-
"6.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 furtehr investigation under Sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K.Chandrasekhar Vs. State of Kerala and Ors [1998(5) SCC 223. It was, inter alia, observed as follows:-
"24.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."
7.In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by the CB (CID) as directed by the High Court."
13.Mr.Veera Kathiravan, learned counsel appearing for the intervener, however, stated that the powers used by the Superintendent of Police may be erroneous, but at the same time, the ground situation in this case requires further investigation as the complaint given by the Defacto-complainant was false. He has also got information under RTI about the non-filing of the complaint by the said Officer.
14.In any event, in this case the only question to be considered is whether the impugned order is within the four corners of law.
15.It is not out of place to make a reference to the judgment of the Honourable Supreme Court reported in (1998)5 SCC 223 (K.Chandrasekhar Vs. State of Kerala), which was referred in subsequent judgments. In the said judgment, the Honourable Supreme Court has observed as follows:-
"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 reinvestigation'. 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 27.06.1996 (quoted earleir) that the consent was being withdrawn in public interest to order a 'reinvestigation' of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a "further investigation of the case"
instead of 'reinvestigation 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 -- 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 entitled the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI 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 applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No.246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala."
In the above said judgment, the power under Section 173(8) of Cr.P.C., has been clearly spelled out. All that the investigating agency required is on completion further investigation, it has to forward to the learned Magistrate a further report/reports and not fresh report/reports regarding the further evidence obtained during such investigation.
16.Therefore, this Court is not inclined to accept the contention made by the respondents and intervener, that the 1st respondent was empowered to order reinvestigation of the case,.as if he is empowered under Section 173(8) of Cr.P.C.
17.In the light of the above, the impugnd order is set aside. If the 1st respondent thinks that any further investigation is required in this case, he may make an application before the learned Judicial Magistrate and be guided by the orders of the learned Magistrate. In the alternative, the accused can make an application, after filing of the final report, before the learned Judicial Magistrate / Trial Court seeking any further report.
18.With the above observations, this writ petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.
ssv To:
1.The Superintendent of Police, Office of the Superintendent of Police, Thoothukudi District, Thoothukudi.
2.The Inspector of Police, North Police Station, Kovilpatti, Thoothukudi District.