2023 YLR 264
Line of inquiry preceds further investigation and reinvestigation.
Consequent upon the contentions of proponents, it is desirable to explain the difference between the concepts “Further investigation” and “Re-investigation” or “Fresh investigation”. The meaning of “further” is additional, more or supplemental; “further investigation”, therefore, is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether. Further investigation is done to find a concrete evidence or strong evidence against the person; whereas reinvestigation is done when the case is in wrong track or the convicted is found not guilty and the criminal is on loose.
Investigation is the domain of police, to initiate at its own or on the direction of higher authority or by the court of competent jurisdiction. Concept of directing investigation and further investigation is rooted in our criminal justice system; it is tracked from the provisions contained in section 155, 156, 157, 159, and 202 Cr. P.C. (herein after may be referred as the “Code”) which deal with directing investigation or further investigation at initial stage and section 173 of the Code for a control over further investigation later at developed point of time. Section 155 postulates investigation of non-cognizable offence with the permission of concerned Magistrate. Section 156 authorizes the police officer to conduct investigation of a cognizable case without the order of a Magistrate, like direction can also be passed by the concerned Magistrate u/s 156 (3) of the Code. Similarly, Section 157 deals with directing investigation and also authorizes the police officer to postpone or abandon the investigation on following grounds:-
(a) Where local investigation dispensed with: When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer Incharge of a police-station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) Where police-officer Incharge sees no sufficient ground for investigation: if it appears to the officer Incharge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
Clause (b) postulates the abandoning of investigation, yet such action of police is to be reported to the Magistrate through superior officer as mentioned in section 158 of the Code and such superior officer while forwarding the report to Magistrate can pass any instructions to police officer over such report. The sort of instruction could be a direction to continue with investigation until any order received from the Magistrate. This procedure has well been explained in the Rule 25.9 of Police Rules, 1934 with the heading of “Optional Investigation”. The Magistrate on receiving such report can direct following three actions:-
1.May direct an investigation
2. Depute a Subordinate Magistrate to hold a preliminary inquiry
3. Otherwise, to dispose of, the case in manner provided in this Code
Section 157 of the Code in a broader sense gives powers to police to stop investigation and this action can be endorsed or null by the Superior officer subject to order of Magistrate. This section also authorizes the Magistrate to hold an inquiry and to proceed further or dispose of the case in the manner provided in the code; if after inquiry he directs the investigation, it shall follow, yet if he finds nothing, he can agree with the police opinion when police submit a report of cancellation of case, and section 173(3) Cr. P.C authorizes him to do so. Similarly, in case of private prosecution, Magistrate can direct investigation u/s 202 of Cr. P.C.
The above arrangements are for the preliminary stage when the criminal action is initiated against any suspect, yet on a developed stage when case is ripe for its presentation before the court either in the form of interim report within 14 plus 3 days from the registration of FIR or complete report thereafter, the situation with respect to further investigation is changed. Concept of submission of interim report within 14 days has been introduced by amending the Cr. P.C in year 1992 through Code of Criminal Procedure (Amendment) Act XXV of 1992 w.e.f. 12.12.1992, otherwise there was no limitation on conclusion of investigation within any stipulated period; therefore, under Police Rules, 1934, there is a concept of submission of incomplete report in certain circumstance which is now known as interim report. There is no cavil to the proposition that police can forward as many incomplete reports as it considers appropriate indicating collection of some additional incriminating material till the submission of complete report.
While submitting interim/incomplete report, it is mandatory, that it should be forwarded through superior officer who can direct further investigation till the order of Magistrate/court and the only section that authorizes such action is regulated u/s 173 (2) Cr. P.C which runs as under;
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation. (Emphasize supplied)
It clearly indicates that further investigation is subject to “pending the order of Magistrate”, Proviso to Section 173(1) says that Court shall commence the trial on the basis of interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence. Meaning thereby if the court does not commence the trial, it would be presumed that the police should continue on for further investigation. “Pending the orders of Magistrate” has a wide connotation that Court can also direct to collect such and such information in the matter apart from the functions assigned to prosecution to supervise the process in order to build a case on the basis of evidential and public interest tests but if the court commences the trial on such interim/incomplete report, even then police is bound to submit complete report later because there is no limitation for conclusion of investigation in any stipulated period which is mentioned in the opening lines of section 173 Cr. P.C that “Every investigation under this Chapter shall be completed without unnecessary delay”. On the moral plane a second investigation by police cannot be hit down because in most cases it would be undertaken only for the purpose or finding the truth of seeking available evidence which for some reasons was not available at the previous stage.
The above discussion shows that the entrustment of investigation to any other officer for further investigation was being regulated through such provisions without any system breakdown. Later intervention to investigation through influential people became rampant in order to get favourable reports and Honourable Supreme Court has time and again warned about this meddling, declaring it a recent innovation and the purpose is malafide and directed that it should be deprecated because this is in no way assists the Courts in coming to a correct conclusion.
Later the police function of investigation was separated through promulgation of Police Order, 2002 and the concept of direction for further investigation was made part of Article 18 of the Order ibid; it was strengthened through introduction of an institution of Supervisory
Officer embodied in Article 18 of Police Order, 2002; relevant SubArticle 9 & 10 are as follows:-
(9) The supervisory officers–
(a) shall ensure timely completion and verification of investigation; and
(b) may summon the investigation officer or team of officers, review the case file, evaluate the evidence and, in that case, shall issue instructions to the investigation officer or team of officers in the form of case diary.
A supervisory officer not below the rank of a Deputy Superintendent of Police may verify the correctness of the investigation and accuracy of conclusions of investigation by writing a case diary before submission of report in the court. (Emphasize supplied)
Sub-Article 11, 12 and 13 of Article 18 of Order ibid also deal with the situations when direction for further investigation can be ordered.
In addition to above Article, another Article 18A was introduced which underwent many changes finally in year 2013; this section authorizes certain police authorities to order transfer of investigation not once but for three times. The wisdom of legislature while introducing this Article was not only to have a check and control over multiple transfers of investigation but to strengthen the concept of reinvestigation and not the further investigation which was being carried out successfully since centuries. What marks an investigation to go for further investigation or re-investigation depends upon the line of inquiry it is being run on. In a criminal case of murder, there could be following lines of inquiry:-
Whether the act is;
homicidal
Suicidal or
Accidental
Likewise in a case of forgery, an action can either be dishonest, fraudulent or result of innocent misrepresentation and other offences do contain such like lines of inquiry depending upon the circumstances. In every category, if some additional material or evidence is required to cater to the pre-charge requirement, case shall be entrusted for further investigation and it could conveniently be done by the superior or supervisory officers; therefore, transfer of investigation should not be ordered except where serious allegations of corruption of any kind is levelled against the investigating officer; but If there are any apprehension that police are investigating the case on the wrong lines, re-investigation would be the best choice and it could be done through transfer of investigation because it now needs more talented and expert members to attend it on such sophisticated lines. Similarly, if investigation requires modern gadgetry involving forensic techniques or collection of evidence could only be possible through personal scientific knowledge of any expert. List is not exhaustive, yet transfer of investigation can also be allowed if the police have personal interest being complainant or case is registered against the illegal acts of police.
Re-investigation by all means is known as fresh investigation wiping out of all effects of earlier one; therefore, three tiers for change of investigation introduced in Article 18A of Police Order, 2002 could well be comprehended, showing intention of legislature to set the process of investigation on right track and modern techniques which is possible because superior officers had the better opportunities to learn and get trainings based on international best practices in the relevant field. This should be the priority before directing the change of investigation and order for transfer of investigation must contain reasons appealable to prudent mind depending upon the circumstances of every case.
Authority transferring the investigation or ordering reinvestigation should comment upon the quality of investigation and pinpoint the shortcomings or lapses made by investigating officer. Authority if convinced after going through the record that either the investigating officer is inefficient or incapable or has connived with one of the parties for any reason, may transfer the investigation after recording reasons therefor in writing and must propose action against the said investigating officer for misconduct, inefficiency and corruption as the case may be.
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