Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. The present Special Leave Petition has been filed on 14.03.2022. By an order of 16.08.2022, this Court, while issuing notice, stayed the operation of the impugned order. It appears that before the filing of the Special Leave Petition, the additional charge-sheet also came to be prepared on 02.12.2021.
24. We have heard Mr. Jayanth Muth Raj, learned senior advocate, for the appellant as well as Shri Amit Anand Tiwari, learned Additional Advocate General, for the State as well as Shri S. Nagamuthu, learned senior advocate, for the respondent No. 1 (wife of the deceased).
25. The learned senior counsel for the appellant contends that the present application filed by respondent no. 1 is a disguised attempt to reopen the earlier proceedings under Section 311 which attained finality; that after framing of charges, respondent no. 1, who is not a complainant, cannot file an application for further investigation under Section 173(8) of Cr.P.C.; that the trial court had no jurisdiction to entertain the application under Section 173(8) of Cr.P.C. after framing of charges; that no grounds have been made out for further investigation and that the High Court ought not to have interfered with the order of trial court in the exercise of its revisional jurisdiction. Learned senior counsel relied on several judgments of this Court to support the contentions. 10
26. The learned Additional Advocate General for the State and the learned senior counsel for the respondent no. 1 strongly defended the impugned order. They contended that the interest of justice is paramount and it will even trump the need to avoid any delay being caused in the proceedings; that the investigating agency has carried out further investigation in compliance with the impugned order and prepared the additional charge-sheet on 02.12.2021 bringing out certain new facts and material; that no prejudice is caused to the defence as the material will be furnished to the accused persons and they will have ample opportunity to put forth their defence. To support their stand, learned senior counsel referred to several precedents.
27. We have carefully considered the submissions of the learned counsels for the parties, perused the records as well as written submissions filed by them.
28. The legal position on the aspect of further investigation is fairly well settled. Under the Code of Criminal Procedure, 1973, pursuant to the recommendation of the Law Commission, in its 41st Report, Section 173(8) has been expressly engrafted setting at rest any controversy that may have obtained earlier. Section 173(8) reads as under: “173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
29. The question really is, under what circumstances could this power be invoked and whether on the facts of this case, is a further investigation warranted.
30. There was some debate at the Bar as to whether the Addl. District and Sessions Judge before whom the application was filed by the respondent no. 1 under Section 173(8) after the conclusion of the evidence could have ordered further investigation. The premise of [2024] 10 S.C.R. K. Vadivel v. K. Shanthi & Ors. the argument was even though in the present case the Addl. District and Sessions Judge has not ordered and it was the High Court which had ordered it, while exercising jurisdiction under Section 397 read with 401 of Cr.P.C. The contention was that as per the law laid down by this Court in Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. (2019) 17 SCC 1, further investigation could at best have been ordered till the commencement of the trial.
31. In the present case, though the Trial Judge rejected the application, the High Court has ordered further investigation. Considering the fact that we are inclined to set aside the order of the High Court, on merits, we deem it unnecessary to discuss the issue of jurisdiction.
32. Ultimately, the contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties (see Pooja Pal vs. Union of India & Ors. (2016) 3 SCC 135, para 83). As noticed in Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322, (para 20) where fresh materials come to light which would implicate persons not previously accused or absolve persons already accused or where it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it may be the duty of the investigating agency to investigate the genuineness of the same and submit a report to the court.
33. However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet and the very applicant for further investigation, in this case respondent no. 1, has not whispered about anything new in her evidence as is now sought to be averred in the application. There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation. In Hasanbhai Valibhai Qureshi vs. State of Gujarat & Ors., (2004) 5 SCC 347), this Court held as under:- “13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may 12 be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”
34. In Vinay Tyagi vs. Irshad Ali alias Deepak & Ors., (2013) 5 SCC 762, this Court dealing with the aspect of the power of Magistrate to direct further investigation had the following to say: “41. …..The power of the Magistrate to direct “further investigation” is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.”
35. It is essential to note that this Court emphasized that though power to order further investigation is a significant power it has to be exercised sparingly and in exceptional cases and to achieve the ends [2024] 10 S.C.R. K. Vadivel v. K. Shanthi & Ors. of justice (see Devendra Nath Singh vs. State of Bihar & Ors., (2023) 1 SCC 48, para 45). Whether further investigation should or should not be ordered is within the discretion of the Magistrate and the said discretion is to be exercised on the facts of each case in accordance with law. This Court also held that in an appropriate case, where the High Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482 Cr.P.C. could be exercised to direct further investigation or even reinvestigation. This Court reiterated the principle that even under Section 482 Cr.P.C. the wide powers are to be exercised fairly with circumspection and in exceptional cases.
36. In Himanshu Kumar and Others vs. State of Chhattisgarh and others, 2022 SCC OnLine SC 884 dealing with the prayer for transfer of investigation to CBI, this Court had the following to say: “47. ….We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or re- investigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.”
37. Applying the above law to the facts of the present case, we find that for the following reasons the direction for further investigation is absolutely unwarranted:- i. The application for further investigation was filed in January 2020 by respondent no. 1. The charge sheet under Section 173 Cr.P.C. too had been filed as early as on 11.07.2013. ii. On 20th December, 2016, PW-1 Padikasu was examined, he was recalled and cross-examined on 25.07.2019. 14 iii. Respondent No. 1 (who is the applicant for further investigation) herself was examined on 18.03.2017. There is no whisper in her deposition about what she now seeks to contend in the application for further investigation. There was nothing that had prevented her from deposing in the box about any failure of the investigating officer, to enquire Kattarimani or any person concerned; about R. Natrajan, M. Muthu and S. Ramasamy being occurrence witnesses and about K.Ganesan S/o Late Kumar, P. Karmagan S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Audiappan S/o Chinnaiah being eye witnesses, and about how such failure has caused prejudice. iv. In fact, seeking the examination of these five witnesses mentioned hereinabove, first respondent filed application under Section 311 Cr.P.C. which came to be dismissed by the trial court on 29.11.2019 and was confirmed by the High Court. The application under Section 311 Cr.P.C. itself was filed on 22.10.2019, that is after a period of about six years after the filing of the charge-sheet. v. It is only when the High Court dismissed her petition under Section 311 Cr.P.C. stating that she had not made any prayer for further investigation that she filed the present application in January, 2020. At the stage when she filed the application for further investigation, the accused had concluded oral arguments and had also filed written arguments. vi. The trial court dismissed the application stating that the respondent no. 1 when examined as PW-2 did not speak anything about what she had mentioned in her application and that though the final report was filed as early as on 11.07.2013, respondent no. 1 has filed the application for further investigation only in January, 2020. Though, the trial court held that no further investigation could be ordered at the post cognizance stage, we have, as explained above, not proceeded on that reasoning, since that is clearly erroneous. vii. The High Court has not recorded any reason whatsoever and has not set out any legal principle which is relevant and applicable to the facts. All that is said is the Section 311 petition of the respondent no. 1 has been denied on the ground that [2024] 10 S.C.R. K. Vadivel v. K. Shanthi & Ors. she has not filed a petition for further investigation; that denial of relief would cause prejudice to respondent no. 1; that PW-1 has turned hostile and that being a murder case, it is decided to order for further investigation. Not one of the legal principles adverted to hereinabove has been considered by the Court. viii. As pointed out hereinabove, the failure to claim further investigation at that stage was not the only basis for the High Court to reject the revision against the dismissal of the Section 311 application. The High Court had given other detailed reasons also like PW-1 and PW-2 not whispering about the additional witnesses, when they deposed in Court.
38. We are convinced that ordering the additional charge sheet to be taken on record at this stage pursuant to the further investigation will not be in accordance with law. It will be contrary to the settled principles as laid down by this Court. We have also to satisfy ourselves examined the additional charge sheet placed before us. Primarily, apart from explaining the motive which is already set out in the evidence of PW-2, there is a reference to three of these witnesses named in this application as having come to rescue of the deceased after hearing the noise raised by the deceased. It is now alleged that A-5 tried to prevent the said two witnesses from approaching Kumar and threatened them with the sickle. It is also alleged that at that point these witnesses saw A-1 and A-4 committing overt acts on the deceased.
39. As pointed out earlier, when the application under Section 311 Cr.P.C. was filed on 22.10.2019, the State, in its response and in the arguments before the Court vehemently opposed the application. Even before the High Court in the Revision filed against the dismissal of the application under Section 311 Cr.P.C., the Additional Public Prosecutor appearing for the State had expressly contended that the respondent no. 1 was examined more than five times by the investigating officer and even in her deposition in court had not adverted to any of these aspects.
40. Before the trial court and the High Court in the present set of proceedings concerning the application for further investigation, the State had opposed the prayer contending that the investigation of the case has been done properly and charge-sheet had been duly filed arraigning all the allegedly involved individuals. 16
41. It is only in this Court that the State has vehemently defended the order. A counter affidavit was filed by the State in this Court in September, 2024 without offering any tenable justification for the need for further investigation. We direct that for all these reasons the additional charges ought not to be taken on the record of the trial Court.
42. A brief postscript. While it is true that delay in trial will cede to the pursuit of truth, however, a distinction should be made between cases where there exist genuine grounds to hold up the proceedings and cases where such grounds do not exist. This case is a classic example of the latter category. The FIR was filed on 31.03.2013 and the charge-sheet on 11.07.2013. At the fag end of the trial in October 2019, on the eve of the final arguments, the first round of applications under Section 311 of Cr.P.C. came to be filed, which culminated in its dismissal in December, 2019.
43. Soon thereafter in January, 2020, virtually the same grounds which had been rejected earlier were rehashed in the form of an application under Section 173(8) Cr.P.C. on behalf of the respondent no. 1. The State, which had hitherto opposed all the applications up to the High Court, turned turtle and stoutly supported the respondent no. 1 in this Court without offering any tenable justification as to how the earlier investigation which had arrayed eight accused for trial lacked credibility.
44. The net result has been that all the stakeholders in the process have contributed to the delay and in spite of eleven years having elapsed after the incident, the trial has still not concluded. No doubt, the High Court allowed the further investigation which we have today reversed. The judgment of the High Court also gave no valid justification for ordering a further investigation.
45. The victims of crime, the accused, and the society at large have a legitimate expectation that justice will be available to the parties within a reasonable time. It is beyond cavil that speedy and timely justice is an important facet of rule of law. Denial of speedy and timely justice can be disastrous to rule of law in the long term. Even if the parties involved in a case themselves, with no valid justification attempt to delay the proceedings, the courts need to be vigilant and nip any such attempt in the bud instantly. The administration of justice feeds on the faith of the citizenry and nothing should be done to even remotely shake that faith and confidence. [2024] 10 S.C.R. K. Vadivel v. K. Shanthi & Ors.
46. The legal profession has an important role to play in the process. Any proceeding or application which prima facie lacks merit should not be instituted in a court. We are constrained to observe this because of late we notice that pleadings/petitions with outrageous and ex facie unbelievable averments are made with no inhibition whatsoever. This is especially so in some family law proceedings, both civil and criminal. Reading some of the averments therein, we are left to wonder whether at all the deponents were conscious of what has been written purportedly on their behalf, before appending their signatures. These misadventures directly impinge on the rule of law, because they add to the pendency and the consequential delay in the disposal of other cases which are crying for justice. It is time that such frivolous and vexatious proceedings are met with due sanctions in the form of exemplary costs to dissuade parties from resorting to such tactics. If we have desisted from such a course in this case, it is only because the High Court allowed the petition and it is here that we have, reversing the High Court, dismissed the petition for further investigation.
47. In view of what has been stated hereinabove, we set aside the judgment of the High Court dated 30.04.2021 in Criminal RC (MD) No. 533 of 2020. Consequently Cr. M.P. No 40/2020 in S.C. No. 61/2014 filed by the respondent no. 1 before the Court of Additional District and Sessions Judge for further investigation under Section 173(8) Cr.P.C. would stand dismissed. We further direct that, in view of the dismissal of the application, the additional charge sheet dated 02.12.2021 will not be taken on record. The appeal is, accordingly, allowed.
48. We direct that after hearing arguments of parties afresh, the trial should be concluded and judgment pronounced within eight weeks from today. Result of the Case: Appeal allowed †Headnotes prepared by: Nidhi Jain