Application Seeking Further Investigation Can Be Treated As Protest Petition : Supreme Court

Recently, the Supreme Court observed that an application seeking further investigation can be treated as a protest petition if the application prima facie establishes the commission of the offences, and such an application can't be technically rejected because procedural recourse of filing a protest petition is not followed.

The Court said that although the proper course for the appellant would have been to file a protest petition instead of filing it under Sectio 173(8) for further investigation, it added that a petition should not be rejected merely because it is filed under the wrong caption.

“The averments made in that application reveal that the appellant protested against deletion of charges under Sections 376, 417 and 420 of IPC and she made an endeavour to bring on record the material which would prima facie establish the commission of these offences. We fail to understand what prevented the Magistrate from treating that application purportedly filed under Section 173(8) of Cr.P.C. as a Protest Petition and then decide the same on merits. A technicality like the caption of the application/petition could not be an impediment to consider the substance thereof and then determine whether or not the matter required further investigation so as to find out the prima facie element of offences under Sections 376, 417 and 420 of the IPC.”

Setting aside the concurrent findings of the High Court and Trial Court which turned down the application for further investigation of the complainant, the Bench comprising Justices Surya Kant and K.V. Viswanathan, while treating the application seeking further investigation as a protest petition observed that it is the bounden duty of every Court of law that injustice wherever visible must be hammered and the voice of a victim of the crime is dispassionately heard.

“The application moved by the appellant before the Trial Court is treated as Protest Petition and the same is allowed. As a result thereto, the Investigating Agency is directed to hold further investigation to find out whether or not offences under Sections 376, 417 and 420 of IPC are made out against respondent no.2.”

In the instant case, the complainant has lodged a lodged FIR against the accused, under Section 417, 376, 420, 354A, 506(i) read with Section 34 of IPC and Section 66A of the Information Technology Act, 2000 at the Police Station. However, after investigation, a charge-sheet under Sections 354A and 506 of IPC was filed, dropping other charges.

The complainant instead of filing the protest petition had moved an application seeking further investigation under Section 173 (8) Cr.P.C. The trial court turned down the same, and the order of the trial court was upheld by the High Court.

Subsequently, the complainant preferred a criminal appeal before the Supreme Court.

After noting that the complainant endeavored to bring in the record the material which would prima facie establish the commission of the offence, the court observed that the investigation officer ought to have probed the credibility of such record produced by the complaint.

“it was a fit case where the learned Judicial Magistrate ought to have invoked his power under Section 173(8) of Cr.P.C. and directed the Investigating Officer to further investigate such serious allegations. The denial of further investigation has led to gross injustice to the appellant.”

Resultantly, owing to the status of the accused, the court directed that further investigation be completed by the Special Investigation Team (SIT) within three months.

“the State of Pondicherry is directed to constitute a Special Investigation Team to be headed by a directly recruited woman IPS Officer along with two officers in the rank of DYSP and Inspector of Police. If a woman IPS Officer is not available in the State cadre, then any one of the officers in the rank of DYSP or Inspector must necessarily be a woman. The further investigation shall be completed by SIT within three months.”

Accordingly, the court allowed the appeal, setting aside the impugned order of the courts below which declined to entertain the application of the complainant seeking further investigation.

Case Details: XXX VERSUS THE STATE REPRESENTED THR. THE INSPECTOR OF POLICE & ANR.

Citation : 2024 LiveLaw (SC) 110

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