IMPORTANT POINT
Investigation by CBI - nature and effect of.

JUDGMENT

Chelameswar, J.-While I agree with the conclusion reached by Hon’ble the Chief Justice of India, I wish to add a few lines.

2. The necessary facts and submissions of the learned counsel for the petitioner are clearly set out in the judgment of my Lord the Chief Justice. I wish to deal with only one submission made on behalf of the petitioner - that the earlier judgment and order of this Court in Writ Petition (Criminal) No.115 of 2007 dated 8th April 2011 directing the Central Bureau of Investigation (CB) to conduct an investigation pertaining to all aspects of killing of Tulsiram Prajapati would necessarily mean that the charge-sheet filed by the Gujarat Police (CID) stood rejected. In my view, the submission is misconceived for the following reasons.

3. Section 173 of the Code of Criminal Procedure, 1973 (for short “the CrPC”) obligates the police investigating a case to make a report to the Magistrate to take cognizance of the offence which is subject matter of the investigation. Sub-section (2) indicates the various pieces of information which are required to be contained in the said report. Section 173(2)(i)(d) [Section 173(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take c?] stipulates that the said report should state whether any offence appears to have been committed and, if so, by whom. If the Investigating Officer opines in the said report that an offence appears to have been committed by the persons named therein, he is also obliged to forward to the Magistrate all documents on which the prosecution proposes to rely along with the statements recorded under Section 161 of the CrPC of all persons whom the prosecution proposes to examine as witnesses.[2] Sub-section (8)[3] recognizes the authority of the Investigating Officer/Agency to make any further investigation in respect of any offence notwithstanding the fact that the report contemplated under sub-Section (2) of Section 173 had already been submitted. It may be worthwhile noticing that under sub-Section (3), even a superior police officer appointed under Section 158 of the CrPC could direct the Investigating Officer to make a further investigation pending any orders by the concerned Magistrate on the report submitted. It is settled law that a Magistrate to whom report is submitted under Section 173(2) can direct the Investigating Officer to make a further investigation into the matter. [4]

4. In my opinion, the mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the concerned Magistrate to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the Investigating Agency or the concerned Court is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.

5. Therefore, the submission of Mr. Sushil Kumar, learned senior advocate appearing for the petitioner, that the directions given by this Court earlier in Writ Petition (Criminal) No.115 of 2007 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that the CBI purported to have registered a “fresh FIR”, in my opinion, does not lead to conclusion in law that the earlier report or the material collected by the Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI.

6. In my view, notwithstanding the practice of the CBI to register a “fresh FIR”, the investigation undertaken by the CBI is in the nature of further investigation under Section 173