Is 'De novo' or 'fresh' investigation is a remedy for defective investigation?

The Honourable Andhra Pradesh high court has recently while disposing a writ petition filed by way of public interest litigation has spotted the investigating and prosecuting agencies with regard to their failure of discharging duties. The Lordships in the said writ petition i.e., in Prof Rama shankarnarayan Vs. State of AP (Ayesha meera case) with distresses held 'the investigating officials and the prosecutors involved in presenting this case have miserably failed in discharging their duties. They have been instrumental in denying served the cause of justice. The misery of the family of the victim has remained undressed'. Further the Court has ordered to do fresh investigation in this case. These words are not new for the investigating and prosecuting agency. In many cases THE Apex court has expressed their affliction towards the defective investigation. 'It is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused.

The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded 'if any on culmination criminal case in acquittal : the concerned investigating officer responsible for such acquittal must necessary be identified. Every officer must suffer the consequences of his lapse by appropriate departmental action. 'Criminal trials should not be made casualty not for such lapses in the investigation or prosecution.' 'The erring investigating officers must suffer the consequences of their laches by appropriate departmental action.'

'We have been coming across various cases where while the investigation and prosecuting agency are not taking effective steps to ensure conviction of offenders '[Mukkupogula Lavanya Vs. State of Telangana the same view has been expressed in Rajiv Singh Vs. State of Bihar As seen from the above catena of findings by the Lordships it is necessary to examine the scope of investigation and affects of faulty or defective investigation and find the remedies of defective investigation at the anvil of precedents. 'Investigation' as defined in section 2 (h) of the Code of Criminal Procedure 1973 includes all proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf . 'an investigation means search for material and facts in order to find whether or not an offence has been committed . 'the word 'investigation' is to discover and collect the evidence to prove the charge as a fact or disproved . The word 'investigation'is not defined but in the context it means no more than the process of collection of evidence or the gathering of material. It is not necessary that it should commence with the communication of an accusation to the person whose affairs are to be investigated. That may follow later.

The defective investigation means an investigation leads many latches and lacunas which may quietly resulted acquittal of offender. The defects may to oversight or intentional but ultimate sufferer is victim so also the society. In addition to this the investigating officers has no any legal knowledge which is very essential for collecting correct and admissible evidence and avoiding the unwanted and inadmissible evidence , non co operation from the public, non availability of clues team in every station, many of the cases registering are in civil in nature, delay in filing final report improper maintenance of case diaries, delay in expert opinions, witnesses turns hostile, uncontrollable political interference in investigation, police department has preoccupied with numerous duties viz., bandobasth, traffic, patrolling etc., due to all these factors the investigators are not doing their duties properly.

The Apex court in many occasions cured the defects made in investigation with the strength of other cogent established evidence on record in many cases. Some of the cases are as follows; 'it is settled law that mere latches on the part of investigator itself cannot be a ground for acquitting the accused. If that is the basis then every criminal case will depend upon the will and design of the investigating officer. The courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record ''It is now well- settled that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case 'To what extent a faulty investigation is damaging to the prosecution the matter has to be seen a whole 'If the prosecution case is established by the evidence adduced, any failure or Omission on the part of the I.O cannot render the case of the prosecution doubtful'

Apart from the above findings the Court in various occasions directs the investigating agency to do further investigation or in rare cases directs fresh investigation when the court satisfies that there has been gross injustice and sheer negligence due to intentional lapses in investigation. There are certain cases in which the Courts has issued direction to do further investigation. Magistrate may direct further investigation under Sec 156(3) and require Police to make report as per Sec 173(8) where a Final Report is placed before him under Sec 173 (2) (AIR 1968 SC 117; AIR 1980 SC 1883 / AIR 1955 SC 196) .Also, further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes into light during course of trial, it may be cured by further investigation if circumstances so permitted.

It would be ordinarily be desirable that 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. The right of Police, even after submission of a report u/s (173(2) Cr. P.C , is not exhausted , and the Police can exercise such right as often as necessary when fresh information comes into light (Ram Lal Narang V. State of Delhi AIR 1979 SC 1791; Hasanbai Valibhai Quresi V. State of Gujarat , AIR 2004 SC 2078; Satish Tandurang Jagtap V. Statae of Maharashtra 1995 Cr. LJ 1509 AT 1510 Bom). There is a vivid difference in between further and fresh investigation. In further investigation the court wants of evidence something more from the evidence collected by the investigator.

But in case of fresh or de novo investigation the court completely dissatisfies the evidence on record collected by the investigating officer and order to re investigate or start afresh investigation. The Apex court while delivering judgment in Ram Saran Vashey Vs. State of UP (2016) 2 SCC 190 (CRL) has held that not only at the instance of police, even at the instance of de facto complainant further investigation under section 173(8) CRPC can be undertaken by the police to find out the truth of the matter. But the sub ordinate court is not competent to direct fresh, new, de novo investigation which is entirely different from the further investigation. 'Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency.

The purpose is, there has to be fair investigation and a fair trial. The fair trial may be may be quite difficult unless there is a fair investigation. The power to order fresh de novo or re investigation being vested with the constitutional courts the commencement of a trial and examination of some witnesses cannot be absolute impediment for exercising the said constitutional power which it meant to ensure a fair and just investigation.' 'If the investigation is neither effective nor purposeful nor objective nor fair, it would be necessary to order further investigation or re investigation as the case may be to discover the truth so as to prevent miscarriage of the justice'. As seen from the above findings the constitutional Courts in order to ensure the fair trial and find the truth has power to direct the re investigation or de novo investigation.

Apart from this power of constitutional courts for direction of re investigation there are some other ways to rectify the defects of the investigation like the prosecutor in charge of the Case may invoke certain provision of law to produce the evidence viz., filing petitions under section 311 , 242(3), 319, 216 CRPC before the Court to fill the intentional or mistakes of the investigator in the case.

 

Published in Criminal Law
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