District Police Chief Can't Order Further Investigation Without Permission From Magistrate Or Higher Court: Supreme Court

The Supreme Court recently reiterated that the power to order further investigation rests with either with the concerned magistrate or with a higher court and not with an investigating agency.

The division bench of Justice Krishna Murari and Justice Sanjay Karol observed:

“The Chief Police Officer of a district is the Superintendent of Police who is an officer of the Indian Police Service. Needless to state, an order from the District Police Chief is not the same as an order issued by the concerned Magistrate………. The doctrine of contemporanea exposito aids such an interpretation of matters which have been long understood and implemented in a particular manner to be accepted into the interpretive process. In other words, the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with.”

Facts

The appellant-accused was charged under Section 420 of IPC for having cheated, alongside accused no.1 (now deceased), the defacto complainant and seven other persons of a sum of Rs. 3,83,583/-, in exchange for securing jobs for them or their wives at the Kottayam Rubber Board, as clerks.

An FIR was registered against the accused persons under Section 420 of IPC on October 24, 2015.

The Final Report (FR-I) recorded that complainant was asked to produce documents in this regard, but despite notice, the same were not produced nor were any other documents with regard to any financial transaction. The FR-I further stated- “As there is no proper evidence in this regard, it shall be considered as a false case…”

Another Final Report (FR-II) was filed by the Inspector of Police, Viakom after conducting further investigation as per the Order passed by the District Police Chief, Kottayam.

The appellant approached the Kerala High Court with a prayer to exercise powers under Section 482 CrPC for quashing the criminal proceedings under the above-mentioned criminal case.

The High Court vide order dated November 6, 2019 rejected the prayer of the appellant.

Hence, the appellant filed the Special Leave Petition (SLP) before the Supreme Court.

The Supreme Court considered the following two issues:

1. Whether under the recognized parameters of exercise of power under Section 482, in the facts of the present case, the non-exercise of power is justified?
2. Whether the District Police Chief, Kottayam could have ordered the further investigation pursuant to which the second final report was filed?

It was contended by the appellant that a re-investigation had been ordered, in violation of the procedure laid down in law. It was further argued that the ingredients of Section 420 IPC have not been met and therefore the High court has erred in not quashing the proceedings subject of the petition under Section 482 as no specific role has been attributed to the appellant.

On the other hand, the State contended that only further investigation was conducted in view of the order of the District Police Chief, Kottayam.

The Apex Court observed:

“The distinction between further investigation and fresh investigation/reinvestigation/de novo investigation being that the former is a continuation of the previous investigation and is done on the basis of discovery of fresh material, whereas the latter can only be done when there is a definite order of the court to that effect which must states the reason as to why the previous investigation is incapable of being acted upon.”

The Court placed reliance upon its judgment in Minu Kumari v. State of Bihar (2006) 4 SCC 359, wherein it was observed that upon submission of a report in terms of Section 173 (2) (i) of CrPC, the concerned Magistrate has three courses of action available before him:

1. Accept the report and proceed further.
2. Disagree with the report and drop the proceedings.
3. Direct further investigation under Section 156 (3) which is the power of the police to investigate a cognizable offence, and require them to make a further report.

The reliance was further placed upon the judgment of Supreme Court in Hemant Dhasmana v. CBI (2001) 7 SCC 536 in which it was observed that although the section is not specific in respect of the Court’s power to order further investigation, the power of the police can be set into motion upon the order of such a court. It was further observed that this order should not be interfered with even in the exercise of the revisional jurisdiction of a higher court.

The Court noted:

“The above two cases make it amply clear that a magistrate has the power to order further investigation and the cases referred to earlier make clear that fresh investigation/reinvestigation/de novo investigation fall into the purview of the jurisdiction of a higher court.”

The Court further noted that no permission was taken, granted or ordered by the concerned magistrate for further investigation, therefore, FR-II is without basis.

It was further pointed by the Court that in FR-I, it was stated that in the absence of any documents in respect of the financial transactions, the instant case may be treated as a false case.

“This, then would necessarily imply that after due investigation conducted by a duly authorized person, the conclusion is that the ingredients of the section mentioned in the FIR have not been met and no case is made out,” the Court said.

The Court noted that no material was placed on record to show that the representation made by accused No.1 (now deceased), the present appellant or the de facto complainant, was false or that they had prior knowledge of such representation being false and made only with the intention to deceive. It was further pointed by the Court that no proof of any financial transaction was placed on record, much less concerning the present appellant.

“With only one ingredient being fulfilled and mere statements made to show dishonest intention or falsity of statement, the threshold of Section 420 is not breached, constituting the offence,” the Court observed.

The Court further held that District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the concerned magistrate or with a higher court and not with an investigating agency.

Thus, the Court quashed the order dated November 6, 2019 of the High Court as well as the criminal proceedings against the appellant.

Case Title: Peethambaran v. State of Kerala & Anr.

Citation : 2023 LiveLaw (SC) 402

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