Ramachandran Vs. R. Udhayakumar & Ors.  INSC 909 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 871 OF 2008 (Arising out of
SLP (Crl.) No.1105 of 2007) Ramachandran ..
Appellant Versus R. Udhayakumar &
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to
the order passed by a learned Single Judge of the Madras High Court on a
petition filed by respondent no.1 under Section 482 of the Code of Criminal
Procedure, 1973 (in short `the Code'). The prayer was to direct the respondent
no.2 the State of Tamil Nadu represented by its Secretary, Government of Home
Department to withdraw the litigation in Crime no.39/2004 on the file of
Inspector of Police, Palayanoor Police Station, Sivagangai District and to
entrust the same to the file of Central Bureau of Investigation (in short
`CBI'). They are respondent nos.5 and 6 in the present appeal. Respondent no.1
had filed the petition seeking for direction to re- investigate the case by the
CBI in an alleged case of murder by respondent no.1. There were totally 59
witnesses in the case.
The High Court disposed of the
petition, inter alia, with the following directions:
"8. Under the above facts and
circumstances of the case in the interest of justice, the case in Crime
No.39/2004 on the file of the fourth respondent stands transferred to the
Deputy Superintendent of Police, C.B.C.I.D., Madurai who shall entrust this
case to a competent and efficient inspector of Police for the purpose of
re-investigation in this case. The Inspector of 2 Police who is nominated by
the Deputy Superintendent of Police, C.B.C.I.D. Shall afresh investigate the
matter and file the final report within a period of three months from the date
of receipt of a copy of this order from this Court. The fourth respondent shall
forthwith hand over the case records in crime No.39/2004 to the officer to the
nominated by the Deputy Superintendent of Police, C.B.C.I.D., Madurai. The
Petitioner stands ordered accordingly. Consequently, connected miscellaneous
petition is closed."
3. Learned counsel for the
appellant submitted that the background facts are as follows:
On 16.7.2004 crime case was
registered against respondent no.1 and other accused persons for alleged
commission of offence punishable under Sections 147, 148, 324, 302 and 307 of
the Indian Penal Code, 1860 (in short `IPC'). On 4.8.2004 Criminal O.P.
no.444/2004 was filed by the appellant before the Madras High Court seeking
transfer of investigation in the case to some other Investigating Officer.
On 24.3.2005 charge sheet
no.18/2005 was filed by the Inspector of Police against respondent no.1 and 8
other 3 accused persons for commission of offence punishable under Sections
148, 302, 307 and 324 read with Section 149 IPC.
On 25.4.2005 on the basis of the
representation given by the father of respondent no.1, the Additional District
Superintendent of Police, Sivagangai filed a report in view of G.O.
No.14/ADSP/Crime/Sivagangai/2005 and concluded that further investigation under
Section 173 (8) of the Code was necessary in the case to find out the real
culprit. Since, there was no progress even after filing of the charge sheet,
the appellant approached the High Court seeking for a direction to the Inspector
of Police to execute the NBWs issued against 7 of the original 9 accused
including respondent no.1 since the Inspector was colluding with the accused.
The High Court ordered SP., Sivagangai to arrest the absconding accused
persons. On 27.3.2006 an application in terms of Section 173 (8) of the Code
being Criminal M.P. No.2227/2006 was filed by the Inspector of Police,
Palayanoor Police Station, before the learned Judicial Magistrate, Manamadurai,
seeking permission to further investigate the case. The permission 4 was
granted. On 3.4.2006 the Inspector investigating the case wrote to the Deputy
Director of Prosecution seeking his opinion as to whether the case was required
to be transferred to C.B.C.I.D. On 10.4.2006 legal opinion was given by the Deputy
Public Prosecutor stating that the case ought to be transferred to CBCID wing.
On 20.11.2006, Criminal O.P.
No.9175 of 2006 was filed by
respondent no.1 before the High Court seeking for a direction for
reinvestigation of the case by the CBI. On 18.12.2006 learned Single Judge
directed the Inspector of Police nominated by the Deputy Superintendent of
Police, CBCID to investigate the matter afresh and thereafter file the final
report. On 5.4.2007, Criminal M.P.
No.1/2007 was filed in the said
Criminal O.P. by the Inspector of Police, Crime Branch, CID, Sivagangai
District, Madurai Wing before the High Court of Madras at Madurai seeking
further six months time to complete the investigation and file the final
report. The impugned order passed by the High Court is the order dated
4. It is the stand of the
appellant that in an application under Section 482 the direction as given could
not have been given. It is stated that there was no scope for fresh or re-
investigation in view of what is provided in Section 173(8) of the Code.
5. Learned counsel for respondent
no.1 supported the order of the High Court.
6. At this juncture it would be
necessary to take note of Section 173 of the Code. From a plain reading of the
above section it is evident that even after completion of investigation under
sub-section (2) of Section 173 of the Code, the police has right to further
investigate under sub-section (8), but not fresh investigation or
re-investigation. This was highlighted by this Court in K. Chandrasekhar v.
State of Kerala and Ors.
(1998 (5) SCC 223). It was, inter
alia, observed as follows:
6 "24. The dictionary meaning
(when used as an adjective) is
"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."
7. In view of the position of law
as indicated above, the directions of the High Court for re-investigation or
fresh investigation are clearly indefensible. We, therefore, direct that
instead of fresh investigation there can be further investigation if required
under Section 173 (8) of the Code.
The same can be done by the CB
(CID) as directed by the High Court.
8. The appeal is allowed to the
(Dr. ARIJIT PASAYAT)
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