During Further Investigation, Police Can Include Relevant Materials That Are Subsequent To Filing Of Initial Final Report: Kerala High Court

The Kerala High Court on Friday held that inclusion of events/ materials in the additional charge sheet, that are subsequent to filing of initial final report, is legally permissible.It added that as long as the evidence collected and the subsequent events point towards the commission of crime for which the report has been filed, the investigating agency would be justified in collecting such materials also and is in fact bound to forward it with the report. The Single Judge Bench of Justice Bechu Kurian Thomas was of the view that determining as to whether such materials are relevant or even admissible are to be agitated during the trial. "The right of the investigating agency to collect all evidence cannot be cribbed, cabined or crippled. The Investigating Officer has to unearth the real truth behind the alleged crime so as to serve the ends of justice. In the said process, if he chances upon or collects materials that are even subsequent to the filing of the initial final report, it cannot be stated as a legal proposition that those materials cannot be included in the further final report or that they are prohibited. Under section 173(8) Cr.P.C, the officer has the power to obtain further evidence, both oral and documentary. The term 'further evidence' cannot be interpreted restrictively as including only those that were prior in time to the initial final report. Such evidence, if collected and included in the further final report, will be a matter to be appreciated, as mentioned earlier, at the time of trial", the Court observed. The Court also emphasized in this regard that what was envisaged under Section 173(8) Cr.P.C. was a right of 'further' investigation and not a 'fresh investigation' or a 'reinvestigation'."Further investigation is a continuation of the earlier investigation and not a fresh investigation or reinvestigation. The latter two are those to be started ab initio, wiping out the earlier investigation altogether. As per section 173(8) Cr.P.C, on completion of further investigation, the investigating agency has to forward to the Magistrate a 'further' report and not a fresh report regarding the 'further' evidence obtained during such investigation", the Court clarified.The Court made the above observation in a 2006 case, relating to ponzi scheme whereby the Petitioner herein is accused of duping the investors of around Rs.500 Crores. The Petitioner is booked under section 420 IPC, Sections 3, 4, & 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 and Sections 45LBB, 45S and 58B of the Reserve Bank of India Act,1934.Final report in the case was filed in September 2006 and the concerned Magistrate court framed charges after omitting the offences under the RBI Act, as well as those under section 2(e) r/w section 3 of the Prize Chits Act. During trial, 72 witnesses had been examined when the prosecution filed an application for postponing the trial claiming that a further investigation had already commenced. It is this further final report that was challenged in the instant proceedings.Arguments Raised:It was contended by Advocate O.V. Maniprasad on behalf of the petitioners herein that the further final report revealed a fresh investigation, and not a further investigation, since only circumstances subsequent to the final report alone have been brought in it, which could not have been part of the further investigation. The counsel argued that the further investigation was resorted to only for the purpose of overcoming the lacunae in the prosecution case, which was legally impermissible. It was further argued by the counsel that the police officer who conducted the further investigation i.e., Assistant Commissioner, Narcotic Cell, Kochi had no jurisdictional authority and could not have conducted the further investigation.On the other hand, the Public Prosecutor K.A. Noushad and Advocate N. Anilkumar on behalf of the respondents, argued that the contentions raised by the petitioners had already been considered by the High Court as well as the Supreme Court, and that the petitioners were only attempting to delay and protract the trial, much as they had for the past 10 years. It was contended that accordingly, the principles of res judicata and constructive res judicata would apply herein. It was further argued that it was well within the domain of the Investigating Officer to conduct a further investigation. Since the money siphoned off from the original scheme was used for starting a fresh scheme, the offences added could only be part of the original offence, and the further investigation report would be legally justifiable, the counsels submitted. Findings of the Court:The Court in the instant case, observed that the petitioners herein had been facing prosecution from the year 2006, and that they had been challenging the proceedings on one ground or the other at almost every stage. "For the last almost 10 years, the trial relating to the case has been stalled midway. None...

During Further Investigation, Police Can Include Relevant Materials That Are Subsequent To Filing Of Initial Final Report: Kerala High Court

Navya Benny

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