Explainer : Further Investigation, Re-investigation & Re-Trial

The police had the statutory right and duty to 'register' every information relating to the commission of a cognizable offence. The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the Police to investigate into a cognizable offence.

As per Section 2(h) of the 1973 Criminal Procedure Code " investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

As explained by the Supreme Court in Vinay Tyagi v Irsahd Ali @ Deepak decision, investigation can be of the following kinds:

(i) Initial Investigation.

(ii) Further Investigation.

(iii) Fresh or de novo or re - investigation.

Normally an investigation begins with the the registration of First Information Report (Section 154) and ends with the filing of a final report under Section 173 of Code of Criminal Procedure.

When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). But where the information relates to a non- cognizable offence, he shall not investigate it without the order of a competent Magistrate.

Investigation consists generally of the following steps:(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under section 173.The terms 'investigation', 'further investigation' and 're-investigation' are conceptually different.

Sub-section (1) of Section 173 of Cr.P.C. makes it clear that every investigation shall be completed without unnecessary delay. Sub-section (2) mandates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the name of the parties, nature of information, name of the persons who appear to be acquainted with the circumstances of the case and further particulars such as the name of the offences that have been committed, arrest of the accused and details about his release with or without sureties. Among other sub-sections, we are very much concerned about sub- section (8) which reads as under:-

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

A mere reading of the above provision makes it clear that irrespective of report under sub-section (2) forwarded to the Magistrate, if the officer in-charge of the police station obtains further evidence, it is incumbent on his part to forward the same to the Magistrate with a further report with regard to such evidence in the form prescribed.

In Rama Chaudhary vs State Of Bihar the Supreme Court held that further investigation is permissible under Section 173(8), however, reinvestigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge-sheet is a statutory right of the police. Reinvestigation without prior permission is prohibited. On the other hand, further investigation is permissible.

in Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others, (2004) 5 SCC 347, the Supreme Court held that prime consideration for further investigation is to arrive at the truth and do real and substantial justice. 

The hands of investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice.

'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency (See Vinay Tyagi decision).

The Apex Court in Ramachandran v. R Udhayakumar and Others AIR 2008 SC 3102  held as follows:

"The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; supplemental'.

'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports - and not fresh report or reports - regarding the 'further' evidence obtained during such investigation." 

Ram Lal Narang Etc. Etc vs State Of Delhi (Admn.) is a classic case on further investigation.  The Supreme Court held in the said as follows;

"It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case.

Is it necessary for the Police to take formal permission from the Magistrate for further investigation?

In Ram Lal Narang, the Supreme Court held that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.

In Rama Chaudhary vs State Of Bihar the Supreme Court held that  law does not mandate taking prior permission from the Magistrate for further investigation.

Can further investigation be ordered by the Magistrate after taking Cognizance?

Supreme Court in Vinubhai Haribhai Malaviya Vs State of Gujarat (2019) held that a Magistrate has power to order further investigation into an offence, even at a post cognizance stage, untill the trial commences.

"To ensure that a "proper investigation" takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences".

"To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding".

Re-investigation

The concept of re-investigation is alien to Criminal Procedure Code. There is no provision in the Code of Criminal Procedure which enables the Magistrate to order re-investigation. or the police to conduct re-investigation.

Re-investigation is where the Court directs de novo or fresh investigation into the case. This is not a supplemental proceeding like further investigation. It is an altogether fresh proceeding.

Certain features of re-investigation are :

• Re-investigation can be ordered only by superior courts such as High Courts or the Supreme Court. Magistrate cannot order re-investigation.
• Police cannot conduct re-investigation on their own. There has to be a definite order of the Court for re-investigation. However, the police has power for further investigation under Section 173(8) CrPC, even without an order of the Court.
• The Code of Criminal Procedure does not mention 're-investigation'. I
• It can be ordered only in exceptional circumstances, where the unfairness of the investigation is such that it pricks the judicial conscience of the Court.

It was held in Vinay Tyagi that re-investigation can be ordered when the Court is satisfied that  the investigation ex facie is unfair, tainted, mala fide and smacks of foul play.

In Babubhai v. State of Gujarat and Others, the SC held that fair investigation is a part of the constitutional rights guaranteed under Art.20 and Art.21 of the Constitution of India and thus the investigating agency cannot be permitted to conduct an investigation in a tainted or biased manner. It was emphasized that where non - interference of the court would ultimately result in failure of justice, the court must interfere and in the interest of justice choose an independent agency to make a fresh investigation.

In Rubabbuddin Sheikh and Gudalure M. J. Cherian cases, the SC said that ordinarily, after the investigation is completed by the police and charge sheet is submitted to the court, the investigation ought not to be re - opened by entrusting the same to a specialized agency like CBI. Nevertheless in a given situation, to do justice between the parties and to instill confidence in the public mind, reinvestigation by another agency can be ordered. The overriding imperative of permitting transfer of investigation to the CBI was thus acknowledged to be in the advancement of the cause of justice and to instill confidence in the mind of the victims as well as the public.

It was ruled in Samaj Parivartan Samudaya and others vs. State of Karnataka that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction.

In Pooja Pal vs Union of India, the Supreme Court ordered fresh investigation by CBI in a murder case of a politician, despite the fact that the trial on the basis of final report filed by the state police was pending.

In H. N. Rishbud and Anr. v. State of Delhi, the question considered by the Supreme Court was whether after the court takes cognizance, trial can be held to be initiated merely on the ground that investigation was invalid. Answering in the negative, this Court held that if the plea of invalidity of investigation is raised at sufficiently early stage, the court, instead of taking cognizance direct reinvestigation by competent investigating officer. But, after cognizance is taken the trial cannot be quashed for invalidity of investigation.

Status of previous investigation in cases where re-investigation is ordered 

When a court orders re-investigation, if there is no specific direction that the previous investigation will not form part record of the case, such record will be deemed to be part of the record of the case. If the Court wants to exclude the previous investigation from the case, it will have to pass a specific direction for that(See Vinay Tyagi).

No reinvestigation on same charges after the accused is acquitted in trial

After an accused is acquitted in a trial, there is a bar to reinvestigation on the same charges.

This is due to the rule against double jeopardy, which is a constitutional protection enshrined under Article 20(2) of the Constitution of India. Any further investigation against the accused on the same charges for which he was tried and found guilty or innocent will amount to double jeopardy.

Also, Section 300(1) of the Code of Criminal Procedure states that a person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, cannot be tried again for the same offence while the order of conviction of acquittal remains in force.

Re-investigation is possible only on fresh charges, which were not earlier raised against the accused, which are based on a fresh set of facts and substantial evidence.

Retrial

Re-trial happens when an appellate court orders the trial court to conduct a denovo trial of the case.

The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused Under Section 386 of the Code, if it is convinced that miscarriage of justice has taken place due to glaring errors in prosecution.  

A de novo trial or retrial of the Accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice (P. Ramesh v. State)

In Zahira Habibulla H. Sheikh v State of Gujarat , commonly known as "Best Bakery Case", the Supreme Court ordered retrial of the case by setting aside the judgment of the Gujarat High Court that had confirmed the order of acquittal passed by the trial court. The apex court noted that investigation was faulty and biased. The prosecution was also not properly conducted, the Court found. Many witnesses had to turn hostile under coercion due to failure of state to make them feel secure.

The casual decision of the public prosecutor to drop a material witness, a measure approved by the trial court also came to be criticized. The lapse of non - examination of the injured eye - witnesses, who were kept away from the trial, was also highlighted. It was alleged that the partisan witnesses had been examined to favour the accused persons resulting in a denial of fair trial.

The apex court said that the trial judge should not remain an indifferent spectator to gross lapses in prosecution and investigation, and should invoke powers given under law to find out the truth of the matter.

"If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a more recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators", the SC said.

"The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."

In  Ajay Kumar Ghoshal v State of Bihar, the SC observed :

A retrial may be ordered when the original trial has not been satisfactory for particular reasons like..., appropriate charge not framed, evidence wrongly rejected which could have been admitted or evidence admitted which could have been rejected etc. Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice, the Appellate Court may not direct retrial. The power to order retrial should be exercised only in exceptional cases.