SUPREME COURT HOLDS THAT POLICE IS NOT EMPOWERED TO ORDER FOR FURTHER / RE-INVESTIGATION OF A CRIME, AS SUCH POWERS LIE WITH THE CONCERNED MAGISTRATE OR HIGH COURT

A Two Judge Bench of the Supreme Court comprising of Justice Krishna Murari and Justice Sajay Karol passed a Judgment dated 03.05.2023 in Peethambaran v State of Kerala & Anr in Criminal Appeal No. 1381 of 2023 and held that the Police is not empowered to order for further investigation / reinvestigation of a crime, as such power lies with the concerned Magistrate or a High Court.

Facts

1) In the present case, one, Peethambaran, the Appellant – Accused No. 2 herein and another Accused No. 1 were accused of committing cheating and taking money of around Rs. 2,94,000/- from 7 people on the pretext of promising to secure jobs for them or their wives in the Rubber Board as clerks. Thus, a Crime No. 1838 of 2015 was registered against him at Vaikom Police Station of Kottayyam District, Kerala on 24.10.2015.

2) After registering the case, the Police started investigation and asked the Complainant(s) to submit evidence or document relating to the aforesaid alleged fraudulent transactions, on 30.12.2015. But the Complainant(s) failed to submit any such evidence against the Accused.

3) Thus, the Police filed a Final Report in CC No. 1838 of 2015 before the Court of the Judicial First Class Magistrate Vaikom (Trial Court) on 30.12.2015, stating that the aforesaid Crime Case field against the Accused is false.

4) Thereafter, the District Chief Police Officer of Kottayyam District, vide Order No. D2-43642/16/k, directed the Vaikom Police to reinvestigate the case in CC No. 1326 of 2017 in the Trial Court.

5) Accordingly, the Inspector of Police, Vaikom, filed another Final Report against the Appellant-Accused(s) for an offence punishable under Section 420 of the Indian Penal Code 1860 (IPC) (Cheating and dishonestly inducing delivery of property).

6) Meanwhile, aggrieved by the Order No. D2-43642/16/k issued by the District Chief Police, the Appellant-Accused 2 filed MC. No. 6314 of 2018 in the High Court of Kerala at Ernakulam, under Section 482 of the Code of Criminal Procedure 1973 (CrPC) (Saving of inherent power of the High Court), seeking quashing of the proceedings in the case of CC No. 1838 of 2015.

7) The High Court of Kerala at Ernakulam dismissed the said Criminal Miscellaneous Case filed by Appellant-Accused 2, vide Order dated 06.11.2019 and refused to exercise its inherent powers under Section 482 CrPC.

Supreme Court Observations

Aggrieved by the High Court Order dated 06.11.2019 passed in Crl. MC No. 6314 of 2018, the Appellant-Accused 2 filed Criminal Appeal No. 1381 of 2023 before the Supreme Court.

The Apex Court passed a Judgment dated 03.05.2023 and made the following observations regarding the following questions of law:

(i) Whether the District Police Chief, Kottayam was empowered to order further investigation pursuant to which the second Final Report was filed by the Police?

(ii) Whether the High Court of Kerala at Ernakulam was justified in not exercising its inherent powers under Section 482 CrPC?

(1) That as per Section 173 (8) CrPC (Report of police officer on completion of investigation), if an officer-in-charge obtains further evidence, after submission of final report before the Magistrate under Section 173 (2) CrPC, a further report(s) shall be forwarded to the Magistrate. Further, a Magistrate is empowered to order further investigation thereunder. Section 173 (8) CrPC is reproduced below for easy reference:

“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub­section (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 sub­sections (2) to (6) shall, as far as may be, apply in relation to such a report or reports as they apply in relation to a report forwarded under sub­section (2).”

(2) Further, the High Court is empowered under Section 482 CrPC and Article 226 of the Constitution of India to direct the Police for further investigation.

“43. At this stage, we may also state another well-settled canon of the 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 investigations 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.

45. The power to order or direct “reinvestigation” or “de novo” investigation falls in the domain of higher courts, and 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.”

(3) That based on the aforesaid provisions of law, the Bench observed that the Magistrate and the High Court both have powers to order further investigation, reinvestigation, or de novo investigation.

(4) That applying the aforesaid principles of law to the present case, the Bench held that the Order issued to the Officer-in-Charge to conduct further investigation against the Appellant-Accused(s) was not issued by a Magistrate / High Court, but in fact, issued by the District Chief Police, who is an officer of the Indian Police Service (IPS) and an order of the District Chief Police is not the same as an order issued by the concerned Magistrate / High Court. Thus, the second Final Report filed by the Police, upon further investigation conducted on the basis of the Order issued by the District Chief Police, was held unsustainable.

(5) Further, regarding the allegations of cheating made against the Appellant-Accused(s), the Bench observed that the Complainant(s) failed to produce any evidence to establish the execution of fraudulent financial transactions against the Accused. Thus, the Bench set aside the allegations of cheating made against the Appellant-Accused under Section 420 IPC.

Conclusion

Based on the above observations, the Supreme Court held that the District Police Chief, Kottayam, was not authorized to issue the Order No. D2-43642/16/k for conducting further investigation and that the Magistrate and the High Court were empowered to pass such orders under Sections 173 (8) and 482 CrPC respectively. As a result, the Appeal filed by the Appellant-Accused 2 was allowed and the High Court Order dated 06.11.2019 was set aside.

Suneel Jaiswal

Associate

The Indian Lawyer