Power of Reinvestigation in Criminal Cases : Legal Issue
There have been many cases which were decided by Hon'ble Supreme Court.
It has been commented at page nos 24, 25, 26, 28, 29, 38, 42, 43, 45 of Vinay Tyagi v Irshad @ Deepak [2012] GCtR 2704 (SC) thus : -
"In the case of a ‘fresh investigation’,
‘reinvestigation’ or ‘de novo investigation’ there has to be a
definite order of the court. The order of the Court
unambiguously should state as to whether the previous
investigation, for reasons to be recorded, is incapable of
being acted upon. Neither the Investigating agency nor the
Magistrate has any power to order or conduct ‘fresh
investigation’. This is primarily for the reason that it would
be opposed to the scheme of the Code. It is essential that
even an order of ‘fresh’/’de novo’ investigation passed by the
higher judiciary should always be coupled with a specific
direction as to the fate of the investigation already
conducted. The cases where such direction can be issued are
few and far between. This is based upon a fundamental
principle of our criminal jurisprudence which is that it is the
right of a suspect or an accused to have a just and fair
investigation and trial. This principle flows from the
constitutional mandate contained in Articles 21 and 22 of the
Constitution of India. Where the investigation ex facie is
unfair, tainted, mala fide and smacks of foul play, the courts
would set aside such an investigation and direct fresh or de
novo investigation and, if necessary, even by another
independent investigating agency. As already noticed, this is
a power of wide plenitude and, therefore, has to be exercised
sparingly. The principle of rarest of rare cases would
squarely apply to such cases. Unless the unfairness of the
investigation is such that it pricks the judicial conscience of
the Court, the Court should be reluctant to interfere in such
matters to the extent of quashing an investigation and
directing a ‘fresh investigation’."
"The Next question that comes up for consideration of this
Court is whether the empowered Magistrate has the
jurisdiction to direct ‘further investigation’ or ‘fresh investigation’. As far as the latter is concerned, the law
declared by this Court consistently is that the learned
Magistrate has no jurisdiction to direct ‘fresh’ or ‘de novo’
investigation. However, once the report is filed, the
Magistrate has jurisdiction to accept the report or reject the
same right at the threshold. Even after accepting the report,
it has the jurisdiction to discharge the accused or frame the
charge and put him to trial. But there are no provisions in
the Code which empower the Magistrate to disturb the status
of an accused pending investigation or when report is, filed
to wipe out the report and its effects in law."
"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."
"Following conclusions in regard to the powers of a magistrate in
terms of Section 173(2) read with Section 173(8) and Section
156(3) of the Code :-
The Magistrate has no power to direct ‘reinvestigation’
or ‘fresh investigation’ (de novo) in the case initiated on
the basis of a police report.
A Magistrate has the power to direct ‘further
investigation’ after filing of a police report in terms of
Section 173(6) of the Code."
"Another well-settled
canon of criminal jurisprudence that the superior courts have
the jurisdiction under Section 482 of the Code or even Article
226 of the Constitution of India to direct ‘further investigation’,
‘fresh’ or ‘de novo’ and even ‘reinvestigation’. ‘Fresh’, ‘de
novo’, and ‘reinvestigation’ are synonymous expressions and their result in law would be the same. The superior courts are
even vested with the power of transferring investigation from
one agency to another, provided the ends of justice so demand
such action. Of course, it is also a settled principle that this
power has to be exercised by the superior courts very sparingly
and with great circumspection."
"The power to order/direct ‘reinvestigation’ or ‘de novo’
investigation falls in the domain of higher courts, that too in
exceptional cases. If one examines the provisions of the Code,
there is no specific provision for cancellation of the reports,
except that the investigating agency can file a closure report
(where according to the investigating agency, no offence is
made out). Even such a report is subject to acceptance by the
learned Magistrate who, in his wisdom, may or may not accept
such a report. For valid reasons, the Court may, by declining
to accept such a report, direct ‘further investigation’, or even
on the basis of the record of the case and the documents
annexed thereto, summon the accused."
"The Code does not contain any provision which deals with
the court competent to direct ‘fresh investigation’, the situation
in which such investigation can be conducted, if at all, and
finally the manner in which the report so obtained shall be
dealt with. The superior courts can direct conduct of a ‘fresh’/‘de novo’ investigation, but unless it specifically directs
that the report already prepared or the investigation so far
conducted will not form part of the record of the case, such
report would be deemed to be part of the record. Once it is
part of the record, the learned Magistrate has no jurisdiction to
exclude the same from the record of the case. In other words,
but for a specific order by the superior court, the reports,
whether a primary report or a report upon ‘further
investigation’ or a report upon ‘fresh investigation’, shall have
to be construed and read conjointly. Where there is a specific
order made by the court for reasons like the investigation being
entirely unfair, tainted, undesirable or being based upon no
truth, the court would have to specifically direct that the
investigation or proceedings so conducted shall stand cancelled
and will not form part of the record for consideration by the
Court of competent jurisdiction."
Kindly note that full text Judgments of Hon'ble Supreme Court can be downloaded absolutely free of cost from the official website at the link https://main.sci.gov.in/judgments - Then entering the date of Judgment as 13 December 2012.
Written by
Vishal
Delhi
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