2022 (11) TMI 1482 - HC - Indian Laws

Limit of an investigation - parallel procceings - it is argued that investigation cannot be carried on endlessly and it need to stop once the trial begin and can continue only if there are exceptional facts viz. a fresh evidence has come to light of the prosecution etc. - right to further investigate - HELD THAT - In State of West Bengal vs. Salap Service Station, 1994 (1) TMI 319 - SUPREME COURT it was held the Magistrate has no power to refuse supplementary chargesheet but to accept the same and would see the consolidated effect of the final report and supplementary reports and then proceed to frame charges. Hence, if the investigation is going on, a supplementary charge sheet is filed, the accused must have the supplementary charge sheet to know the entire case against him since the supplementary charge sheet is also to be considered as a part of the final report viz. the primary report. In Samaj Parivartan Samudaya 2012 (5) TMI 776 - SUPREME COURT , the three Judge Bench held if the Officer in Charge of the police station obtains further evidence, it is incumbent upon him to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed. It was held investigation is permissible though reinvestigation is prohibited and to carry out further investigation even after filing of the charge sheet is a statutory right of the police. It held the mere fact there may be further delay in concluding the trial, would not stand in the way of further investigation if that would help the Court in arriving truth and to do real, substantial as well as effective justice. The crux of these judgments is it is not mandatory to take prior permission from the Magistrate for further investigation even after the filing of the charge sheet as it is the statutory right of the police. The material collected in further investigation cannot be rejected merely because it has been filed at the stage of trial. Right to further investigate - HELD THAT - Undoubtedly, the right to investigate includes the right to further investigate. Section 156 Cr.P.C. exists prior to the induction of Sub-Section 8 of Section 173 Cr.P.C. The Section 173(8) Cr.P.C. gives an unfettered right to Investigating Agency with no conditions and cannot be restricted in time since such restrictions does not exist in Statute. The Statute does not limit the right to investigate under Section 173(8) Cr.P.C. only till the trial begun. There is no bar for the investigating agency to further investigate the matter, but it would only be when some fresh evidence would come to its fore. Such fresh evidence would not come if the agency is sitting idle. For it the respondent shall have to make efforts, like in present case it has written letters to its foreign counterparts. Such evidence may come or not, one cannot predict at this moment, hence in case any fresh evidence is found which may be used against the petitioner it would certainly then be incumbent upon the respondent to inform the learned Special Judge and to seek its permission to further investigate the matter against petitioner. Such right admittedly can be exercised by it even after trial begins - presently since no fresh evidence is forthcoming and the respondent being only seeking queries, which may or may not come, and such queries being predominantly qua co-accused person, the petitioner cannot be allowed to stall the proceedings. Petition disposed off.

Summary

Issues Involved:
1. Whether the learned Special Judge erred in listing the case for hearing on framing of charges without concluding the investigation.
2. Whether the investigation can continue parallel to the trial.
3. Whether the findings in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1 are binding.
4. Whether the supplementary chargesheet and further investigation are permissible after the trial has commenced.

Summary of Judgment:

Issue 1: Listing the Case for Hearing on Framing of Charges
The petitioner argued that the learned Special Judge listed the case for hearing on framing of charges without concluding the investigation, which was challenged and dismissed by the impugned order dated 24.02.2021. The FIR was registered in 2015, and a chargesheet was filed on 11.08.2016, stating that the investigation was ongoing. A supplementary chargesheet was filed on 08.01.2019, again mentioning ongoing investigation. The petitioner moved an application for clarification, which was dismissed.

Issue 2: Parallel Investigation and Trial
The petitioner argued that investigation cannot continue endlessly and must stop once the trial begins, except in exceptional circumstances like fresh evidence. The Court referred to Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1, which held that further investigation can continue until the trial commences. The Court also cited Tofan Singh vs. State of Tamil Nadu 2020 SCC Online SC 882 and Arjun Padnitrao Khotkar vs. Kailash Kushanrao Gorantyal and Others (2020) 7 SCC 1, emphasizing that the prosecution should not fill lacunae during the trial.

Issue 3: Binding Nature of Vinubhai Haribhai Malaviya Judgment
The petitioner argued that the findings in Vinubhai (supra) are binding, even if considered obiter. The Court acknowledged that even obiter dicta from the Supreme Court are binding on lower courts. However, the Court also examined other judgments to clarify the powers of the police to investigate further.

Issue 4: Supplementary Chargesheet and Further Investigation
The Court noted that the supplementary chargesheet is part of the primary report and must be considered during the trial. It cited multiple judgments, including State of West Bengal vs. Salap Service Station, Samaj Parivartan Samudaya vs. State of Kerala, and Abhinandan Jha and Others vs. Dinesh Mishra, to support the view that further investigation is permissible and does not require prior permission from the Magistrate. The Court emphasized that the right to investigate includes the right to further investigate, and Section 173(8) Cr.P.C. gives an unfettered right to the Investigating Agency.

Conclusion:
The Court concluded that while the observations of the learned Trial Court regarding the applicability of obiter dicta are set aside, the trial must proceed. If fresh evidence is found, the prosecution must inform the learned Special Judge and seek permission to further investigate. The petition was disposed of, and no order as to costs was made.