Permission Of Court For Further Investigation Not Mandatory, But Seeking It A Well-Accepted Legal Practice: Kerala High Court

A Bench of Justice R Narayana Pisharadi ruled that while a permission for further investigation was not mandated by the Criminal Procedure Code, It is a well-accepted legal practice based on principles of courtesy and propriety.

Facts

The Thiruvananthapuram Special Cell of the Vigilance and Anti-Corruption Bureau (VACB) registered a case alleging corruption in medicine purchases at the Medical College Hospital Thiruvananthapuram in 2003 – 2004. Thereafter, a final report was filed in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram against the respondents, who are functionaries at the Medical College.

They were booked for criminal misconduct under Sections 13(1)(d) and Section 15 of the Prevention of Corruption Act, 1988 and for criminal conspiracy under Section 120B of the Indian Penal Code.

After cognizance was taken, the second accused petitioned the Chief Minister to direct the VACB Director to conduct further investigation. This was forwarded to the VACB Superintendent of Police.

An application to this effect under Section 173(8) of the Criminal Procedure Code (CrPC) was thereafter filed by the investigating officer before the trial court.

However, the trial court observed that no fresh facts or further evidence had been unearthed relying on State v. Gopakumar.

Holding that this condition precedent for a further investigation under Section 173(8) was not fulfilled, the trial court dismissed the petition.

The State proceeded to file a revision petition in respect of the trial court's order of dismissal.

During proceedings, the Public Prosecutor asserted that it was not necessary for an investigating officer to obtain the permission of the trial court for the purpose of investigation.

The Prosecution insisted that the prayer in the investigating officer's application seeking permission was only a formality and that the trial court should have either accepted the application or treated it as an intimation that further investigation was proposed to be conducted.

On whether permission from a Court was necessary before conducting a further investigation

Before responding to the questions raised in the petition, the Court observed that Section 173(8) did not mandate an officer in charge of a police station (investigating officer) to seek permission to conduct further investigation.

On the question of whether a court permission was necessary, the High Court referred precedent.

In so doing, the Court extracted a passage form Ram Lal Narang v. State that underscored that a court permission before a probe would be desirable.

Elaborating on this theme, the Court pointed out that the Kerala High Court in Abdul Latheef v. State of Kerala had opined that the Supreme Court in Ram Lal Narang had cautiously not imposed a restriction that a further investigation could be conducted only on obtaining permission from a Court.

Additionally, in State of AP v. AS Peter, the Supreme Court had ruled that permission was not necessary before a further investigation. However, the Apex Court clarified that such permission was necessary before a re-investigation.

Pointing out that Vinay Tyagi v. Irshad Ali had taken a view that seeking permission was in the nature of a legal practice that would have to be read into the provisions of the CrPC, the Kerala High Court held,

"It is only as a matter of courtesy that the investigating officer is required to inform the court regarding the further investigation being conducted in the case so as to enable the court to decide the further action to be taken in the case which is pending before it on the basis of the final report already submitted. Absence of permission by the court does not render the further investigation illegal."

The High Court went on to advise investigating officers to inform the court about further investigation and seek the court's formal permission.

"It is a well-accepted legal practice based on principles of courtesy and propriety", the High Court stated.

On the necessity of collecting material before embarking on further investigation

The Court distinguished the present case from the facts of Gopakumar, pointing out that in the said case the investigating officer had filed a fresh report, deviating from the conclusion reached in the earlier report, without a further investigation or collection of evidence. On the other hand, the Kerala High Court in Antony Scaria v. State of Kerala had ruled that Section 173(8) did not contemplate a further investigation after obtaining additional material connected to the crime. Rather, the requisite for further evidence referred to that obtained during the course of the probe, the Court had then held.

Relying on this dictum as also that of the Supreme Court in Rama Chaudhary v. State of Bihar and Vinay Tyagi v. Irshad Ali, the Court found the trial court's insistence on fresh evidence erroneous and described it as unsustainable in law.

Drawing on Kerala High Court decsion Khaleel v. State of Kerala, the Court remarked,

"The hands of the investigating agency should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth."

The Court stated that further investigation could be undertaken not only when new material or fresh facts came to light but also when certain aspects of the matter were not considered during the probe.

The court also emphasized that an accused could bring to light facts that were omitted in the original investigation.

"There is no legal impediment or prohibition for the accused to bring to the notice of the investigating officer any fact which was omitted to be traced out at the stage of submission of the earlier report", the Court concluded.

With this, the High Court directed the trial court to treat the investigating officer's application for further investigation as an intimation of the same, and disposed of the petition