Wrote on 20 August 2012
Before I throw in my two bits worth, please bear in mind this is not legal advice per se, but an informed opinion! And, like the great statesman Clint Eastwood opined about opinions in The Dead Pool, “everyone has one” …
Most dissenting judges deliberating on Review Petitions for Further Investigation rely on the ruling in Re. Randhir Singh Rana v. State (Delh I Administration) [(1997) 1 SCC 361]. See Andhra HC Justice V. Eswariah in Sadhu Narayana vs The Sho I-Town P.S. (Criminal Petition No.2627 OF 2003 – 19.04.2006).
But a decision that must have ticked off the learned Andhra judge big time came from the Calcutta High Court in Anima Ghosh vs The State Of West Bengal on 2 August, 2010—“Police is empowered u/s S.173(8) Cr.P.C. to make further investigation but, it does not debar a Magistrate to direct further investigation if Magistrate finds that earlier report submitted by police was on the basis of investigation, which was perfunctory and designedly defective.”
I believe there have been significant changes brought about by the Hon. Supreme Court since then pertaining to conditional justification for Further Investigation after submission of charge sheet and commencement of Trial. The Court’s power to review and abate transgressions is conferred by law either specifically or by necessary implication at any stage of Trial. See also SC Criminal Appeal No. Of 2009 (Arising out of S.L.P. (Crl.) No. 370 of 2009 Rama Chaudhary …. Appellant(s) Versus State of Bihar …. Respondent(s), See Sasi Thomas Vs. State and others reported in 2006(12) SCC 421, In Sakiri Vasu v. State of U.P.,(2007) 4 Crimes 338 SC, In Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya15 (SCC vide para 6), In Divine Retreat Centre Vs.State of Kerala reported in AIR 2008 SC 1614, C.B.I. Vs. Rajesh Gandhi reported in 1997 Crl.L.J. 63 “if the said Magistrate is satisfied about the allegations of the petitioner, he can direct the police agency which he deems to be appropriate to do the proper investigation into the complaint of the petitioner, and he can also monitor the police investigation., W.P.(MD).No.8707 of 2009 and M.P. (MD).No. 1 of 2009 G.Murugan (Petitioner).
The Supreme Court observed in Zahira Habibullah Sheikh & Another v. State of Gujarat & Ors., (“the Best Bakery Case” – March 8, 2006) that manipulation of information is a common feature of criminal trials here, where basic elements of criminal justice (viz. police investigation, prosecution, and judicial oversight) have become dysfunctional to varying degrees; that our judicial system reveals in most cases, inclusive of my case, the public prosecutors appointed to help the court in administering justice, do not act in a manner befitting their position but dance to the beat set by the “investigating” agency and enjoin them by facilitating cover-ups and misleading the Hon. Courts.
Hon. Supreme Court had occasion to caution the Courts to be vigilant against the motivated or unfair dealings of the investigating officers during the course of investigation. In the case of Karnel Singh v. State of M.P. the Hon. Supreme Court said: “In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.”
The Hon Supreme Court elsewhere observed that courts can always issue appropriate directions at the instance of an aggrieved person if the Hon. Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the Hon. Court. If after considering the material on record the Hon. Court comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. The Hon’ble Supreme Court has held that the same cannot be done as a matter of routine or merely because a party makes some such allegations but based upon circumstances of the said case and if the ends of justice would be met if further investigation is ordered in respect of the offenses committed.
Such pity that somewhere along the quest for justice, some have lost track of Honor, Integrity, and Spirit of the Law by averting to arbitrary, viscous procedures forgetting that it is well established that procedure is a mere handmaiden to Justice and should not stand in Her way.
There are opinions and opinions; and then there are big-time head scratchers! Every serious student of Appellate Court rulings will reverently acknowledge that these Most Learned Judges are the absolute, unsurpassed maestros of the language of argument – whether consenting or dissenting on the same issue. Therefore, the perseverant lawyer will search for more statesmanlike opinions that go along the grain of and add muscle to what they essentially desire from the courts – IN WRITING so their argument becomes part of the formal court record.
In a nutshell, what all the above amounts to is that there are certain current Supreme Court opinions that preclude court-ordered Further Investigations once a Magistrate has taken cognizance and issued summons. Then again, there are certain current Supreme Court opinions that CONDITIONALLY allow for court-ordered Further Investigations once a Magistrate has taken cognizance and issued summons!! Duh!!
One observes that Law (i.e., Substantive Law) is, for the most part, the sturdy patriarch. But Adjective Laws, i.e., its interpretations which define the pleading and procedure by which substantive laws are applied in practice (its application to the situation on hand), and subsequent appellate rulings are the offspring from its nocturnal coition with Logic and Argument which, as is so typical with matriarchic influences, is given to flexibility, versatility, and persuasive glib.
Please note that the reasoning and subsequent ruling in the cited Talwar case is relative to only one specific condition, viz., that “there is no scope for granting the relief of further investigation FOR THE PURPOSE OF FINDING OUT WHETHER SOMEONE OTHER THAN THE PETITIONER AND HER HUSBAND HAD COMMITTED THE OFFENSES in respect of the deceased persons Aarushi and/or Hemraj”. Nevertheless, RELATIVE TO THIS PARTICULAR CIRCUMSTANCE, the Learned Judge made a blanket ruling precluding Further Investigation – PERIOD!
But, take heart! A capable lawyer would present persuasive argument as to how the above ruling was inapplicable to your particular case(s) citing other compelling decisions that empower the tribunal to Order Further Investigation at any stage of the trial (as mentioned by my earlier citations).
Persuasion is the projectile that gets results provided it is propelled by logic, sound argument, and supporting appellate rulings. This, as well as the lawyer’s acumen of language separates the cream from the crud in professional circles; it is the “High Octane Fuel” of effective lawyering! If anything, it stimulates the intellect of appellate court judges while championing your cause for justice.
Despite the above (and many more) Rulings, if your learned judge tells you to go whine in the corner (which is highly unlikely), you will have in your possession written documentation that will(may?) overturn his ruling on appeal.
Another more viable option to obtain an Order for Further Investigation may be affected as a de facto complainant; to formally report any incident relative to your situation as a suspected crime per CrPC Section 39.
So, you see, there’s more than one way to skin a cat and/or piss-off a judge. But, in my books, I’ve learned it’s better to be pissed-off than to be pissed on!
I hope this helps. My sincere apologies to anyone if I rubbed them the wrong way.
Respectfully and with warm regards ....
