Rama Chaudhary Vs.
State of Bihar  INSC 689 (2 April 2009)
E IN THE SUPREME
COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009
(Arising out of S.L.P. (Crl.) No. 370 of 2009 Rama Chaudhary .... Appellant(s)
Versus State of Bihar .... Respondent(s)
P. Sathasivam, J.
1) Leave granted.
2) This appeal is
directed against the order of the High Court of Judicature at Patna passed in
Criminal Revision No. 437 of 2008 dated 10.12.2008 in and by which, after
finding that there is no illegality or irregularity in summoning the witnesses
named in the supplementary charge-sheet, the High Court rejected the criminal
revision filed by the appellant herein against the order dated 19.02.2008
passed in Sessions 1 Trial No. 63 of 2004 whereby the learned Additional
Sessions Judge allowed the application of the prosecution to summon the
witnesses named in the supplementary charge-sheet.
3) Brief facts of the
case are as follows:
a) On the basis of
fardebayan of Smt. Champa Devi - wife of Awadh Yadav in Siwan Mofussil Police
Station case No. 8 of 2001 was registered against the appellant and others on
13.01.2001 under Section 364/34 of IPC.
b) On 08.08.2003, an
offence under Section 27 of the Arms Act was also added. The police, after
completion of investigation, submitted charge-sheet on 29.08.2003 against the
appellant and other five accused under Section 364/34 IPC and Section 27 of the
Arms Act. In the said charge-sheet, the prosecution has conveyed that they are
going to examine altogether 18 witnesses.
c) On 11.03.2004, the
learned Sessions Judge framed charges under Sections 120-B, 364/34, 302/34 and
201/34 IPC read with Section 27 of the Arms Act. The prosecution had examined
d) When the trial was
at the stage of closure, on 08.09.2007, another charge-sheet was submitted by
the Police in the court of Chief Judicial Magistrate, Siwan, against the
charge-sheeted accused persons adding names of eight new witnesses in the
charge-sheet. In the said report/charge-sheet, Police did not mention name of
any accused. The learned Chief Judicial Magistrate, Siwan, without proceeding
under Section 190 Cr.P.C. forwarded the second charge-sheet to the court of
Session/Special Court, Siwan, on 10.09.2007.
e) On 12.01.2008, the
prosecution has filed an application in a pending Sessions Trial No. 63 of 2004
to summon the prosecution witnesses named in the second charge-sheet. The
appellant has filed a reply contending that the application filed by the
prosecution is not maintainable and the same was filed with mala fide
intention. By order dated 19.02.2008, the learned Sessions Judge, Special Court
allowed the said application to summon the witnesses by observing that the goal
of criminal trial is to discover the truth and to 3 achieve that goal the best
possible evidence is to be brought on record. The learned trial Judge issued
summons to the newly added witnesses and posted the case to 23.02.2008. Being
aggrieved by the said order, the appellant filed Criminal Revision No. 437 of
2003 under Sections 397 and 401 of Cr.P.C. before the High Court. By the
impugned judgment and order dated 10.12.2008, the High Court dismissed the said
Aggrieved by the
same, the appellant filed the above appeal.
4) We heard Mr. U.U.
Lalit, learned senior counsel for the appellant and Mrs. Vimla Sinha, learned counsel
for the State of Bihar.
5) Mr. U.U. Lalit,
learned senior counsel for the appellant, after taking us through relevant
materials as well as Section 173(2) and (8) of the Code of Criminal Procedure,
1973 contended that "further investigation" referred to in sub-
clause (8) does not mean "re-investigation" against the accused
persons who are already facing trial in the case. He further pointed out that,
in the present case, after submission of charge-sheet under Section 173(2) in
the year 2003, the cognizance of the offence was taken by the Chief Judicial
Magistrate and the case was remitted to the Court of Sessions.
Trial was commenced
and altogether 21 witnesses have been examined. At a belated stage, the
prosecution has filed the present report for further investigation with a view
to delay the disposal of the trial. According to him, further investigation as
contemplated in Section 173(8) of the Cr.P.C. cannot be allowed to be made into
the very same offence in relation to the same accused if the trial had already
According to him, at
this juncture, allowing the application of the prosecution for summoning eight
new witnesses would prejudice the defence of the accused in the trial.
6) On the other hand,
Mrs. Vimla Sinha, learned counsel for the State of Bihar, submitted that
sub-section (8) of Section 173 Cr.P.C. recognizes right and confer statutory
duty on the Investigating Agency to conduct further investigation and submit
supplementary charge-sheet on the basis of fresh materials at any stage and no
prior permission from the Magistrate is required for further investigation. She
further submitted that Section 231 of Cr.P.C. gives unfettered right to the
prosecution to produce any person as witness even though such person may not have
been examined by the Police if examination of such person is necessary for
unfolding the prosecution story.
7) 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
8) 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.
9) The above said
provision also makes it clear that further investigation is permissible,
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.
10) From a plain
reading of sub-section (2) and sub-section (8) of Section 173, it is evident
that even after submission of police report under sub-section (2) on completion
of investigation, the police has a right to "further" investigation
under sub-section (8) of Section 173 but not "fresh investigation" or
"reinvestigation". 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
reinvestigation to be started ab initio wiping out the earlier investigation
altogether. Sub- section (8) of Section 173 clearly envisages that on
completion of further investigation, the investigating agency has to forward to
the Magistrate a "further" report and not fresh report regarding the
"further" evidence obtained during such investigation.
11) As observed in
Hasanbhai Valibhai Qureshi vs. State of Gujarat and Others, (2004) 5 SCC 347,
the 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.
12) If we consider
the above legal principles, the order dated 19.02.2008 of the trial Court
summoning the witnesses named in the supplementary charge-sheet cannot be
faulted with. It is true that after enquiry and investigation charges were
framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses
were examined. In the meantime, Police submitted supplementary charge-sheet
with certain new materials and on the basis of supplementary charge- sheet, the
prosecution filed an application on 12.01.2008 in a pending Sessions Trial No.
63 of 2004 to the trial Court for summoning the persons named in the
charge-sheet for their examination as prosecution witnesses. On a careful perusal
of the application, the trial Court, by order dated 19.02.2008, allowed the
same and has summoned those witnesses named in the supplementary charge-sheet.
13) The law does not
mandate taking prior permission from the Magistrate for further investigation.
It is settled law that carrying out further investigation even after filing of
the charge-sheet is a statutory right of the Police. [vide K. Chandrasekhar vs.
State of Kerala and Others, (1998) 5 SCC 223.] The material collected in
further investigation cannot be rejected only because it has been filed at the
stage of trial. The facts and circumstances show that the trial Court is fully
justified to summon witnesses examined in the course of further investigation.
It is also clear from Section 231 of the Cr.P.C. that the prosecution is
entitled to produce any person as witness even though such person is not named
in the earlier charge-sheet. All those relevant aspects have been taken note of
by the learned Magistrate while summoning the witnesses based on supplementary
charge-sheet. This was correctly appreciated by the High Court by rightly
rejecting the revision. We fully agree with the said conclusion.
14) In the light of
the above discussion, we do not find any valid ground for interference, consequently,
the appeal fails and the same is dismissed.