The competency of the Superintendent of Police to order re-investigation and the prohibition of reinvestigation without a judicial order.

The petitioner has come forward with this petition seeking for a direction, to set aside the order passed by the 2nd respondent, based on the order passed by the 1st respondent / Superintendent of Police, Tiuruneveli, ordering re-investigation of the case.

2. Pursuant to the complaint lodged by the the de-facto complainant, a case was registered in Crime No.30 of 2010 on 12.05.2010 for the offences punishable under Sections 465, 468, 471, 420 and 506(ii) IPC in respect of an occurrence said to have taken place between 03.07.1998 and 14.08.2009 against three named persons. After due investigation, a charge sheet has been laid for the offences under Sections 465, 468, 471, 420, 120(b) and 506(ii) IPC, against them, namely, Subbiah, Praveen V.Patel The first charge sheet has been filed against the first petitioner and the second charge sheet against the first accused and Praveen V.Patel and others and the third charge sheet filed against Subbiah and the fourth charge sheet against A1 and Santhulal M. Patel before the Court and the same were not taken on file.

3. At this juncture, the learned Government Advocate (Criminal side) appearing for the respondents submitted that the first respondent has issued an order for re-investigation on 16.07.2015, pursuant to which, the petitioner has received a communication dated 28.07.2015, directing him to appear before the 2nd respondent on 04.08.2015 at 10.30 a.m along with records.

4. The learned Counsel appearing for the petitioner submits that as per the dictum of the Hon'ble Apex Court reported in Rama Chaudharay vs. State of Bihar reported in (2009) 6 SCC 346 and in Virender Prasad Singh -vs-Rajesh Bhardwaj and others reported in (2010) 9 SCC 171 and in Kishan Lal -vs-Dharmendra Bafna and another reported in (2009) 7 SCC 685, the respondent can order further investigation and not re-investigation and hence he prays for setting aside the order. He further submits that the re-investigation can only be ordered by a Magistrate by way of judicial order and cannot be passed by an executive.

5. Resisting the same, the learned Government Advocate (Criminal side) appearing for the respondents submitted that already five final reports were filed and the Superintendent of Police has ordered reinvestigation on the basis of which the impugned notice has been given. Hence, he prays for dismissal of the petition.

6. Considering the submissions made on both sides and on perusal of the typed set of papers and the complaint registered in Crime No.30 of 2010 for the offences punishable under Sections 465, 468, 471, 420 and 506(ii) IPC on 12.05.2010. The point to be considered by this Court is as to whether the Superintendent of Police is competent to order re-investigation. Therefore, it is appropriate to consider the decision relied upon by the learned Counsel for the petitioner in Rama Chaudharay -vs-State of Bihar reported in (2009) 6 SCC 346 wherein it has been stated that even after filing of the charge sheet under Section 173, on completion of the investigation, the police has right to further investigation under sub-section (8) of Section 173, but not afresh investigation or reinvestigation. In the said judgment (supra), it has been specifically stated in paragraphs 15 to 17 as follows:-

"15.Among other Sub-sections, we are very much concerned about Sub-section (8) which 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 Subsection (2). "

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