Whether there is any bar to pass an order for transfer of investigation, re-investigation or further investigation?
Whether pendency of private complaint limits the scope of re-investigation or further investigation?
The prevailing procedure regarding transfer of investigation has been set out in Section 18A of the Police Order, 2002 (enacted by way of the Police Order (Amendment) Act, 2013.
It is evident from perusal of above provision that there are three police hierarchies bestowed with the power to transfer investigation i.e. the Head of District Police, the Regional Police Officer and the Provincial Police Officer. It is notable that transfer of investigation is not a matter of routine or simple compliance of afore-referred provision of law instead it is ordered if some further material relevant to the case is required and to find out the truth for advancement of the cause of justice, not to oblige one party to the detriment of the other for some ulterior motive. Before making such order, troubles of parties in producing their witnesses / evidence time and again should also be kept in mind. Such power is not unfettered rather qualified by certain contingencies and prerequisites, inter-alia, discovery of some new event or evidence, previous investigation being unilateral, based on malafide, excess of jurisdiction, having serious flaw(s) or unsatisfactory for some reasons etc. The Court is also under legal obligation to see the legality and validity of repeated transfers of investigation in the light of peculiar facts and circumstances of each case.
From the survey of case-law, relevant provisions of the Code of Criminal Procedure, 1898 and the Police Order, 2002, this Court is of the view that there is no encumbrance for police to conduct re-investigation or further investigation of a case even if an earlier report under Section 173 Cr.P.C. has been submitted before the Court and the Court has taken cognizance of the matter. Equally, police is competent to re-investigate and to submit fresh challan on the basis of subsequent investigation. However, transfer of investigation would be regulated by Article 18A of the Police Order, 2002. The only impediment in this regard is that re-investigation or further investigation is not permissible after conclusion of trial of the criminal case.
The other pivotal question is whether re-investigation or further investigation can be conducted during pendency of private complaint. Needless to say that where challan and private complaint regarding same alleged occurrence are pending before the same Court, the private complaint is to be taken up first for trial and trial of challan case would depend upon the fate of trial in private complaint. The rationale behind such practice / procedure is that in case of conviction in private complaint, the prosecution may opt to withdraw challan case and if trial of private complaint results in acquittal, trial in challan case may proceed and material available in first trial may be used in second trial as per law. It is also observed that if the parties are equipped with evidence which was either not available at the time of first investigation or according to them was not taken into consideration properly, they may produce the same in private complaint.
When challan case and private complaint are pending before a Court, trial in private complaint shall be carried out and concluded in the first instance and proceedings in challan case shall remain dormant, which may commence thereafter, if need be. Likewise, re-investigation or further investigation by police shall not be carried out during pendency of private complaint as it would not serve any useful purpose rather it would tantamount to deviate from the law settled by the august Supreme Court and increase agony and troubles of parties to produce evidence / witnesses time and again before different forums. However, re-investigation or further investigation within the contemplation of Article 18A of the Police Order, 2002 may be conducted after conclusion of proceedings in private complaint depending upon the fate of the trial.
Writ Petition No.18153 of 2022
Dilshad Akbar Versus Inspector General of Police, Punjab, Lahore & others
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