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2023 Supreme(Cal) 65

IN THE HIGH COURT AT CALCUTTA
Shampa Dutt Paul, J.
Tarak Nath Uthasini - Appellant
Versus
State Of West Bengal & Ors. - Respondents
Criminal Revision No. 1120 of 2019
Decided On : 06-01-2023

Advocates appeared:
T. Samanta, Advocate, B. Banerjee, Advocate

The Magistrate has the power to order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage of justice.

Headnote:

CRIMINAL PROCEDURE - Further Investigation - Section 173(8) CrPC - Magistrate's Power to Order - Scope - Whether Magistrate can order further investigation after cognizance is taken and accused appears - Held, Magistrate has the power to order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage of justice.

Fact of the Case:

The petitioner/defacto complainant filed a revision petition against the order dated 14.06.2017, where cognizance was taken by the learned Magistrate on submission of charge sheet and against the order dated 25.03.2019 when the case has been fixed for evidence.

Finding of the Court:

The court held that the Magistrate has the power to order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage of justice.

Issues: Whether the Magistrate has the power to order further investigation after cognizance is taken and accused appears?

Ratio Decidendi: The court held that the Magistrate's power to order further investigation is not limited to the pre-cognizance stage. The Magistrate can order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage of justice.

Final Decision: The court dismissed the revision petition.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The Magistrate has the authority to order further investigation even after cognizance has been taken and the accused has appeared in court, if the circumstances of the case require it, to ensure justice and prevent miscarriage of justice (!) .

  2. The power to direct further investigation is not limited to the pre-cognizance stage; it can be exercised even after the case has progressed to the stage of evidence and during the trial, provided the facts justify such action in the interest of justice (!) .

  3. The initiation of proceedings begins at the framing of charges, and the trial commences only at that point. The stage of inquiry occurs before the trial and involves examining whether the case is made out based on the available materials (!) (!) .

  4. Once the trial has begun, especially after charges are framed and the accused appears, the Magistrate's power to order further investigation is generally limited, unless the investigating agency itself seeks permission for further investigation and files a supplementary report with the court’s approval (!) .

  5. The law permits the investigating agency to seek permission for further investigation at any stage before the trial concludes. However, the Magistrate cannot suo motu order further investigation after the accused has appeared and the case has advanced beyond the initial stages (!) .

  6. The proper procedure involves the investigating agency applying for permission to conduct further investigation, which the court may grant if justified, to ensure a fair and comprehensive investigation that aims to uncover the truth (!) .

  7. The power to order further investigation is rooted in the need for an honest, unbiased, and lawful investigation, which ultimately serves the twin purposes of establishing the truth and ensuring justice for all parties involved (!) .

  8. The judicial system emphasizes that investigations must be fair, impartial, and in accordance with law, and courts have the authority to intervene if an investigation is tainted or unfair (!) .

  9. The distinction between pre-cognizance and post-cognizance stages is crucial. After the court takes cognizance and the trial is underway, the Magistrate’s authority to direct further investigation becomes more constrained, especially after discharging the accused (!) .

  10. The proceedings are at an initial stage, and any application under the relevant law for further investigation should be considered by the trial court in accordance with legal procedures, without unnecessary delay or interference from higher courts (!) .

  11. The court dismisses the revision petition, emphasizing that there is no abuse of process or law in the ongoing investigation, and that the investigation is prima facie lawful (!) .

  12. The judgment underscores that the proper forum for considering requests for further investigation is the trial court, and such requests should be made there, not directly before higher courts, unless there is clear evidence of procedural irregularity or abuse (!) .

  13. The court clarifies that the powers of the Magistrate to order further investigation are available at all stages before the trial begins, and such powers are limited once the trial has commenced, especially after the discharge of the accused (!) .

  14. Any application for further investigation at a later stage, especially after the discharge, must be filed by the investigating agency and not initiated suo motu by the Magistrate (!) .

  15. The decision affirms that the investigation and any subsequent further investigation must be conducted lawfully, with proper application and approval from the court, to uphold the integrity of the judicial process (!) .

  16. Overall, the case emphasizes the importance of procedural correctness and judicial oversight in the investigation process, ensuring that the rights of the accused and the interests of justice are balanced appropriately (!) .

Please let me know if you need a more detailed analysis or specific legal advice related to this case.


JUDGMENT

Shampa Dutt (Paul), J. - The petitioner's (defacto complaint) case in this revision is against an order dated 14.06.2017, where cognizance was taken by the learned Magistrate on submission of charge sheet and against the order dated 25.03.2019 when the case has been fixed for evidence.

2. On 08.04.2017 the petitioner/defacto complainant lodged a written complaint with Panskura Police Station against the accused person/opposite parties 2 to 7 to the effect that on 07.04.2017 at about 12 noon, when his wife Tapasi was on way to bring water from the tap situated near their house with a brass Metal Jug, the opposite parties no. 2 to 7 abused her by wrongfully restraining her and outraged her modesty and some of them committed sexual intercourse by opening her clothes. When Tapasi cried for help and local people came, the accused persons fled away.

3. On his complaint Panskura P.S. Case no. 175 of 2017 under Sections 341, 323, 325, 354, 376, 511, 379, 506 and 34 IPC was started against the accused persons.

4. Initially a charge sheet was filed for offences under Sections 341/323/506/34 IPC. Subsequently on a further Investigation being directed Sec. 354 IPC was added. But the petitioner/husband of the alleged victim is aggrieved.

5. The grievance of the petitioner is that the 2nd charge sheet has been filed only under Sections 341, 323, 354, 506 and 34 IPC. Sections 325, 376/511, 379 of the IPC has been omitted. It is the case of the petitioner/defacto complainant that the Investigating Officer has done so in collusion with the accused persons and the learned Magistrate without considering the materials in proper perspective, has taken cognizance thus causing grave miscarriage of justice to the petitioner/the victim.

6. It is further submitted that the I.O. without spot investigation without seizure of wearing apparels of the victim, without seizure of the brass metal jug submitted charge sheet by deleting Section 325,376/511,329 IPC inspite of the ingredients being present in the FIR. Presently the trial has commenced and the case is fixed for evidence.

7. Mr. T. Samanta, learned Counsel for submitted that the learned Magistrate without complainant received the charge sheet and took clear violation of principle of natural justice.

8. Mr. T. Samanta, learned Counsel for the petitioner has submitted that the learned Magistrate without notice to the defacto complainant received the charge sheet and took cognizance, which is clear violation of principle of natural justice.

9. Mr. B. Banerjee, learned Counsel for the State/opposite party is present. Admittedly the petitioners did not file a petition under Section 173(8) Cr.P.C. before the Magistrate taking cognizance praying for further investigation. There being no prayer before the learned Magistrate, the trial commenced and case has been fixed for evidence.

10. A Three Judge Bench of the Supreme Court decided the power of a Magistrate to order further investigation U/s 173(8) Cr.P.C. in Vinubhai Haribhai Malaviya Vs. The State of Gujarat on 16th October, 2019 in Criminal Appeal No. 478-479 of 2017, wherein the Court held:-

    '9. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.

    38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct 'further investigation' and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] has, in no uncertain terms, stated that principle, as aforenoticed.

    40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclus

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