The Supreme Court recently held that Section 173(3) read with Section 158 of CrPC does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency, other than the officer in charge of the concerned Police Station and/or his superior officer.
The division bench of Justice M.R. Shah and Justice C.T. Ravikumar observed:
“….as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.PC. Under what authority of law, the Secretary (Home) has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the accused on the grounds which as such can be said to be the defences of the accused which are required to be considered at the time of trial.”
Facts
The facts reveal that the son of the appellant was murdered by some un-known persons. An FIR was lodged by the informant with regard to the incident. The investigation was carried out by the Inspector of Police, Baraut, District Baghpat who submitted chargesheet on March 01, 2015 against two persons of which cognizance was taken by the Magistrate on March 31, 2015.
Later on the investigation was transferred to the District Crime Branch. A supplementary chargesheet was filed on December 2, 2016 against two accused persons (respondent no. 8 and respondent no.11).
Respondent No. 8 filed a petition before the High Court for quashing of the entire criminal proceedings as well as for quashing of the charge sheet dated December 2, 2016 which was dismissed by the High Court vide order dated July 5, 2017.
Aggrieved by the said order of the High Court, the respondent no. 8 approached the Supreme Court by way of SLP which was dismissed vide order dated August 24, 2018 and the interim protection was also vacated.
The CJM, Baghpat issued non-bailable warrant against respondent No. 8 vide order dated Septmber 09, 2018.
However, the mother of the Respondent No. 8 moved an application dated January 23, 2019 to the Secretary (Home), State of U.P. for transferring the investigation to CBCID on the ground that respondent No. 8 had been arraigned as accused on the basis of statements of two witnesses who were in the Jail and therefore, their statements cannot be believed.
The Secretary (Home), State of U.P. vide order dated February 13, 2019 ordered further investigation by CBCID.
The order passed by the Secretary (Home) transferring investigation to CBCID was challenged before the Allahabad High Court by a writ petition.
The High Court vide impugned judgment and order dismissed the writ petition by observing that further investigation was ordered after intimation to the Magistrate and therefore, there was no infirmity in the order passed by the Secretary (Home) directing further investigation.
The impugned judgment and order passed by the High Court was assailed before the Supreme Court in present appeal.
Arguments
The Senior Advocate, Vibha Datta Makhija appearing for the appellant submitted that once chargesheeted thereafter, at the instance of mother of one of the accused, the Secretary (Home) could not have transferred the investigation as the same is not permissible in law.
It was further submitted that the grounds on which the investigation was sought to be transferred can be said to be the defences on behalf of the accused which are required to be considered at the time of trial and order of transfer of investigation to CBCID and the subsequent investigation by CBCID virtually acquits the accused who are chargesheeted in the supplementary chargesheet and would tantamount to nullify the chargesheet.
The Senior Counsel argued that the Secretary (Home) first took a decision and passed the order to transfer the investigation to CBCID and thereafter, the Investigating Officer (10) only intimated the Magistrate about transfer of investigation, which cannot be said to be following due procedure as required under Section 173(8) of the CrPC.
The AAG, Ardhendumauli Kumar Prasad appearing for the State submitted that a case is made out for further investigation and to do the complete justice to the parties Including the accused, no error has been committed by the Secretary (Home) in ordering further investigation by CBCID.
The Senior Counsels, S. Nagamuthu and Shri Rameshwar Singh Malik appearing for the respondents- accused persons submitted that Section 173(8) of CrPC authorises the 10 to further investigate the case for which the permission of Magistrate is not required. It was further submitted that under Section 173(8) of CrPC, it is the right of 10 for further investigation.
It was submitted by senior counsel appearing on behalf of the accused persons that as per Section 173(3) read with Section 158 of CrPC, the investigation by another agency is permissible.
Supreme Court’s Observation
The Court noted that the present case is not a case of further investigation, rather it is a case of reinvestigation by another agency.
The Court observed:
“The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law.”
It was further pointed by the Court that so far as the reinvestigation is concerned, the prior permission of the Magistrate is required.
“In the present case, the Secretary (Home) has passed an order for further investigation by CBCID and thereafter, the CBCID has sent the intimation to the learned Magistrate. No prior approval/permission as observed by the High Court has been accorded by the learned Magistrate. The High Court in the impugned judgment and order has observed that the further investigation is ordered with the concurrence of the Magistrate, which is factually incorrect. what is on record is only an intimation to the learned Magistrate which in any case cannot be said to be concurrence of the learned Magistrate.”, the Court noted.
The Court opined that so far as the investigation is concerned under the scheme of the CrPC, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police.
It was further opined by the Court that if such powers are given to the Secretary (Home) in that case any accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged.
The Court observed:
Section 173(3) of CrPC provides that where a superior officer of police has been appointed under Section 158, the report, shall be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
The Court noted that Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency.
Thus, the Court set aside the impugned judgment and order passed by the High Court as well as the order dated February 13, 2019 passed by the Secretary (Home), State of U.P. ordering for reinvestigation by CBCID.
Code of Criminal Procedure – Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency-The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law – In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.PC- Para 7.1,7.3
