Summary
After two accused had been chargesheeted for murder on a supplementary chargesheet, had failed in a quashing petition up to the Supreme Court and faced non-bailable warrants, the Secretary (Home) of the State, on an application by the mother of one accused, transferred the investigation to the CBCID. The Supreme Court held that this was a reinvestigation by another agency, impermissible without the Magistrate's prior permission, that the Secretary (Home) has no role in investigation under the CrPC, and that an accused aggrieved by a chargesheet must seek quashing or discharge rather than a fresh investigation.
Issues
- Whether an order of the Secretary (Home) transferring the investigation of a chargesheeted case to the CBCID, at the instance of an accused's mother, amounts to further investigation under Section 173(8) CrPC or to a reinvestigation requiring the Magistrate's prior permission.
- Whether the Secretary (Home) has any authority under the Code of Criminal Procedure to order further investigation or reinvestigation by another agency.
- Whether a mere intimation to the Magistrate after the transfer satisfies the requirement of the Magistrate's concurrence.
- Whether Section 173(3) read with Section 158 CrPC supports an order by the Secretary (Home) for investigation by another agency.
Provisions considered
- Section 173(8), Code of Criminal Procedure, 1973The investigating officer may further investigate after filing a report under Section 173(2) without the Magistrate's prior approval, but reinvestigation, and in particular reinvestigation by a different agency, needs the Magistrate's prior permission; the transfer to CBCID after two chargesheets was a reinvestigation and so impermissible. (¶¶ 7, 7.1, 7.2)
- Section 173(3) read with Section 158, Code of Criminal Procedure, 1973These provisions deal with how the police report is routed through a superior officer, who may direct the officer in charge to investigate further pending the Magistrate's orders; they do not authorise the Secretary (Home) to order further investigation or reinvestigation by another agency. (¶ 7.3)
- Section 482, Code of Criminal Procedure, 1973An accused aggrieved by a chargesheet has the remedy of a quashing petition before the High Court or a discharge application before the Magistrate; the accused here had already failed in a quashing petition and could not circumvent that by obtaining a reinvestigation. (¶ 7.2)
- Sections 302 and 120B, Indian Penal Code, 1860The offences in the supplementary chargesheet of which the Magistrate had taken cognizance; all defences remain open at trial. (¶¶ 7, 8)
Held
- Where the case had already been further investigated by the District Crime Branch and a supplementary chargesheet filed and cognizance taken, an order transferring the investigation to CBCID on the application of an accused's mother is not further investigation but a reinvestigation by another agency, which is unknown to law. (¶ 7)
- The investigating officer's right to investigate further under Section 173(8) does not require the Magistrate's prior approval, but a reinvestigation does. Mere intimation to the Magistrate after the transfer is not concurrence; the High Court's finding that the Magistrate had concurred was factually incorrect. (¶¶ 7.1, 7.2)
- Under the scheme of the CrPC investigation is conducted by the officer in charge of the police station under the supervision of the Superintendent of Police; the Secretary (Home) does not come into the picture. If the Secretary could order reinvestigation at an accused's request, any chargesheeted accused could procure a fresh report nullifying the chargesheet; the accused's remedy is a quashing petition under Section 482 or a discharge application. (¶ 7.2)
- Section 173(3) read with Section 158 CrPC only governs submission of the report through a superior police officer, who may direct further investigation pending the Magistrate's orders; it does not permit the Secretary (Home) to order investigation by another agency. (¶ 7.3)
Result
Appeal of the deceased's mother allowed; High Court's judgment, the Secretary (Home)'s order dated 13.02.2019 and the CBCID's further investigation/reinvestigation quashed; all defences of the accused left open at trial. The connected appeal of accused Nos. 6 and 7 against non-bailable warrants dismissed.