S.173 CrPC | Investigating Agency Can Hold Further Probe On Receiving New Information: Kerala High Court

The Kerala High Court on Tuesday while dismissing the plea moved by actor Dileep seeking to suspend further investigation into the 2017 sexual assault case ruled that Section 173 of the Code of Criminal Procedure does not restrict the investigating agency from conducting a further probe into a crime when it is notified of new information. 

Justice Kauser Edappagath observed that Section 173(8) of CrPC does not imply that further investigation could be conducted only after getting further materials in connection with the crime.

"The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173 (2) has been forwarded to the Magistrate' which unambiguously indicates the legislative intent that it is open to the investigating agency to conduct further investigation on receiving any new or fresh information on the crime. Mention about further evidence, oral or documentary, made in that sub clause refers to collection of the same during the course of further investigation." 

The Court added that Dileep had failed to establish any grounds to quash the further investigation. 

"The inherent power vested with this court under Section 482 of Cr.P.C to quash further investigation could only be exercised sparingly and with circumspection save in exceptional cases such as, the further investigation is frivolous, vexatious, or it is maliciously initiated with an ulterior motive for wreaking vengeance on the accused, or is barred by any law, or the power of the investigating officer under Section 173 (8) is exercised malafide, or where there is abuse of power, or such exercise is justified by the test specifically laid down in the provision itself."

Holding so, the Single Judge permitted the investigating agency to carry on with the further investigation. However, it was directed that such investigation shall be completed and the further report be filed no later than April 15.

In 2017, a popular actress was abducted and raped in a moving vehicle pursuant to a conspiracy, allegedly plotted by Dileep. Being the 8th accused in the case, he is now undergoing trial before the CBI Special Judge.

The case made headlines once again in 2022 when film director Balachandrakumar made shocking disclosures against the actor bringing out new allegations against him.

In the petition filed before the High Court, Dileep had alleged that furtherance of this 'sham investigation' infringes the right of a fair trial and added that it is an abuse of the process of law.

The Court added that once additional materials or fresh information pertaining to the crime are received after filing of the final report, it is the right and duty of the police to enquire into the same and to find out whether there is any truth in it or not.

"This statutory right and duty of the police cannot be circumscribed without any valid reason."

Further, the Court noted that it would be premature at this embryonic stage to pronounce a conclusion based on hazy facts that revelations need not be probed into or that it amounts to abuse of process of law.

"This is an area which should be left to the investigating agency. On completion of the further investigation, if the investigating officer finds that there is substance in the revelations, he may file an appropriate report which may be considered by the Court in accordance with law. The criticism that a further investigation by the police would trench upon proceedings before the court is really not of very great substance since whatever the police may do, the final discretion in regard to further action is with the Court."

Justice Edappagath also noted that it is judicially acknowledged that a fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution. The ultimate aim of all investigation and enquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed the crime are correctly booked, and those who are not arraigned to stand trial, he remarked. 

Therefore, it was found that the Constitutional guarantee under Art.21 of the Constitution of India embraces both the life and liberty of the accused and the interest of the victim as well as of the society at large and cannot be alienated from each other.

Additionally, the Court noted that in Antony Scaria v. State of Kerala [2001 KHC 363], a Division Bench had categorically held that further investigation of a crime as per Section 173(8) is possible when the police authority which conducted the investigation or any other superior finds it necessary to do so. 

As such, the Court found that the petitioner was not entitled to get the reliefs sought. However, it was clarified that no findings or observations were made as to the veracity, truthfulness or reliability of the disclosures made by Balachandra Kumar in his petition or as to the genuineness, relevance or acceptability of any material collected by the investigating agency so far in the ongoing further investigation.

The petition was dismissed accordingly.