While allowing a revision of the order of the Judicial Magistrate rejecting the application for further investigation, the Madras High Court recently observed that an application for further investigation can be made even after the commencement of trial. The court observed that bringing out the truth was of utmost importance and that Section 173(8) of CrPC does not put any fetter on the Police to conduct a further investigation after the commencement of trial.
Justice Bharatha Chakravarthy observed as under:
Section 173(8) of Cr.P.C., does not place any fetter on the Police to conduct further investigation in the case after commencement of trial and whenever they come across any additional information it is just and necessary that the same be brought to the notice of the Court…..since bringing out the truth is the primordial purpose of investigation and the present application serves the said purpose, I am of the view that the application filed by the prosecution even after the commencement of the trial in this case is maintainable and I answered the question accordingly.
The court quoted the judgment of the Supreme Court in HasanbhaiValibhai Qureshi v. State of Gujarat where the Apex Court held as follows:
When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted…In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. 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.
This position was upheld by the Supreme Court in its various judgments. The court also noted that the purpose of further investigation was to ensure that any person who had wrongly been prosecuted should not suffer and at the same time any person who has actually committed an offense, should not escape punishment. This view was taken by the Supreme Court in Vinubhai Haribhai Malaviya Vs. the State of Gujarat. Therefore, it was necessary that further investigation be allowed to bring out the truth.
The gist of the matter was that the accused had made a false promise to get a job as Assistant Engineer in TNEB and had obtained money from the defacto complainant at various places on various occasions and cheated him.
The CCTVs in these said places were not collected and the CDR particulars of the mobile phones used to communicate were also not collected. Section 65B certificate as per the Indian Evidence Act with respect to certain documents were also not furnished. For bringing all these materials on record, an application was filed on behalf of the prosecution. The application was rejected by the Trial Court by observing that the trial had already commenced and moreover, the application was filed by the Additional Public Prosecutor on his own. Against this rejection, the revision petition was filed by the de facto complainant.
It was contended that the application was filed as per the instructions of the Police and not by the Additional Public Prosecutor on his own, as observed by the Trial Court. This contention was also supported by the Respondent Police.
The revision petitioner also submitted that the second reasoning that the trial has already commenced and the petition need not to be entertained is fallacious.
On the other hand, the second respondent/accused resisted this contention. He submitted that only the prosecution was entitled to file the application for further investigation. In this case, the application was filed by the de facto complainant. He also argued that the application was filed after the commencement of the trial. Hence, he submitted that the petition filed by the de facto complainant that too belatedly should not be entertained and prayed for dismissal of the petition.
Revision Application Filed By Defacto Complainant
One of the primary contention raised against the entertainment of the revision petition was that it was filed by the de facto complainant. The accused challenged the same on the ground that the petition could be filed only by the prosecution. To buttress his argument, reliance was placed on the decision of Madras High Court in M.Viswanathan vs. State and Ors wherein the court had remarked that the de facto complainant had no right for further investigation.
The court however observed that in the present case the application was initially filed by the prosecution and the same was rejected by the Magistrate. The court, therefore, was entitled to examine the correctness of the order and the de facto complainant was only bringing this to the notice of the court.
Relying on the decision of the Apex Court in Rekha Murarka Vs. The State of West Bengal, the court observed that by filing the revision, the de facto complainant was only bringing to the notice of the court that an erroneous order had been passed which according to him will lead to injustice. The same would, therefore, not amount to taking over of the prosecution. The court also highlighted that there was no express embargo in Section 372 of CrPC for the de facto complainant to invoke the jurisdiction of the court. Hence, the court opined that the revision petition was maintainable.
Case Title: Ganesan v. SHO and another
Case No: Crl R.C No. 654 of 2022
Citation: 2022 LiveLaw (Mad) 279
Counsel for the Petitioner: Mr. G. Vijayakumar
Counsel for the Respondents: Mr. S. Vinoth Kumar, Govt Advocate (Criminal Side) (R1), Mr. A. Arasu Ganesan (R2)