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 had moved this Court to vacate the interim order. This Court is constrained to observe that it is unfortunate that the trial of a case which relates to the alleged cheating of several crores of rupees has been stalled for 10 years without any effort having been taken by the State to get the matter disposed of or at least vacate the stay granted", it was observed. 

The Court thereafter proceeded to consider the following issues raised in the case. 

A. Whether the Assistant Commissioner of Police, Narcotic Cell Kochi was, competent to conduct the further investigation. 

The Court noted that in the instant case, the Assistant Commissioner of Police, Crime Detachment, Ernakulam, who had initially conducted the investigation pursuant to the orders of the Commissioner of Police of Kochi City and had filed the final report, came to be transferred outside the district. Further investigation in the case was therefore conducted by the Assistant Commissioner of Police, Narcotic Cell, Kochi, under the direction of the Commissioner of Police, Kochi City. The Court noted that the Commissioner of Police had thus authorised one of his subordinates to investigate the offences committed within the district. 

The Court found that as per Sections 2(o), 2(h) and 173 (8) of Cr.P.C., only the officer-in-charge of the police station could conduct an investigation. However, it was noted that Section 36 Cr.P.C. also confers power upon superior officers of the Police to exercise the same powers as that of an officer-in-charge of a police station throughout the local area to which they are appointed. 

The Court also found that going by Section 14 of the Kerala Police Act, the Assistant Commissioner of Kochi City, even if he is in the narcotic cell, is a subordinate of the Commissioner of Police of the city and a superior officer of the Station House Officer of the Central Police Station, Kochi.

"The divisions in the police force of a District into narcotic cell or other such divisions are only administrative measures for the purpose of improving the efficiency of the police force of the district. The designation as the officer of the narcotics cell by itself will not divest the investigative powers of the said officer into a crime provided, he is so directed by his superior officer. As a superior police officer to the Station House Officer, he is entitled to conduct the investigation, especially when the Commissioner of Police authorised and directed him to do so", it was observed. 

The Court thus held that since the Commissioner of Police has jurisdiction throughout the city, directing one of his subordinates who also exercises jurisdiction throughout the city, to conduct an investigation or further investigation into a case would not fall foul of any provision of law.

B. Whether the inclusion of instances and materials subsequent to the filing of the final report in the further final report is invalid

The Court found on perusal of the further final report that although a few subsequent events had been brought in as evidence, they were only circumstances that supported the fact in issue in the first final report. 

"The attempt of the investigating officer to probe the alleged subsequent events was only a measure of lending credence to the initial charge that the accused had cheated its subscribers by misappropriating and diverting, after committing criminal breach of trust, of several crores of rupees collected from them. The diversion of funds collected from the subscribers to purchase properties in the individual names of the accused and in the name of other firms where the accused are partners have also been unearthed during the further investigation. The subsequent materials adduced during further investigation are only consequences of the offences alleged". 

The Court thus found no merit in this challenge either. 

While dismissing the instant petitions the Court also directed the CJM to complete the trial, as expeditiously as possible, at any rate, within a period of ten months, in light of the trial having been stalled for nine years. 

Senior Advocate M.K. Damodaran, and Advocates O.V. Maniprasad and Saju J. Panicker appeared on behalf of the petitioners. The respondents in Crl. M.C. No. 288 of 2013 were represented by Public Prosecutor K.A. Noushad and Advocate D. Anil Kumar, while Public Prosecutor M.K. Pushpalatha, and Advocates P.S. Appu and P.N. Sukumaran appeared on behalf of the respondents in Crl. M.C. No. 1461 of 2013. 

Case Title: Kuriachan Chacko & Ors v. State of Kerala & Ors. and Joy John & Anr v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 604

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