S. 173(8) CrPC | No Further Investigation Be Ordered If Application Was Filed Without Any Fresh Material : Supreme Court

The Supreme Court observed that the courts should refrain from ordering further investigation when the party requesting further investigation under Section 173(8) of the Code of Criminal Procedure (CrPC) has not whispered about anything new in its evidence and has based its application for further investigation without averring fresh materials.

“Where fresh materials come to light which would implicate persons not previously accused or absolve persons already accused or where it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it may be the duty of the investigating agency to investigate the genuineness of the same and submit a report to the court. However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet and the very applicant for further investigation, in this case respondent no. 1, has not whispered about anything new in her evidence as is now sought to be averred in the application. There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation.”, the bench comprising Justices BR Gavai and KV Viswanathan said.

In this case, the appellant/accused challenged the decision of the High Court wherein it had allowed the revision petition of respondent no.1 against the trial court's order refusing to direct further investigation into the deceased husband's murder case. The High Court ordered a further investigation after the conclusion of the final arguments before the Trial Court. 

Before applying for further investigation, respondent no.1 had preferred a recall application under Section 311 of CrPC for almost six years after the filing of the charge sheet to summon certain eye-witnesses who she believed were the direct eye-witnesses and were not examined by the Investigating Officer.

After the recall application was dismissed by both the Trial Court and High Court, respondent No. 1 applied for further investigation which was dismissed by the Trial Court but allowed by the High Court in a Criminal Revision.

Issue

The issue that came for the Court's consideration was whether the High Court committed an error while ordering further investigation without adverting to the fact that no new material was produced by respondent no.1 seeking further investigation as the application for further investigation was based on the materials she led in her evidence during the trial. 

Supreme Court's Observation

Setting aside the High Court's decision, the judgment authored by Justice KV Viswanathan observed that respondent no.1 failed to show a reasonable basis for triggering the court's power to order further investigation.

The court opined that respondent No. 1's act of filing the further investigation application soon after the dismissal of the recall application was an attempt to drag the case as no new grounds were urged by her in her application for further investigation. The Court said that if respondent no.1 wanted to seek the court's direction for further investigation then she should have applied for the same during the state of the evidence in the trial.

"While it is true that delay in trial will cede to the pursuit of truth, however, a distinction should be made between cases where there exist genuine grounds to hold up the proceedings and cases where such grounds do not exist. This case is a classic example of the latter category. The FIR was filed on 31.03.2013 and the charge-sheet on 11.07.2013. At the fag end of the trial in October 2019, on the eve of the final arguments, the first round of applications under Section 311 of Cr.P.C. came to be filed, which culminated in its dismissal in December, 2019….Soon thereafter in January, 2020, virtually the same grounds which had been rejected earlier were rehashed in the form of an application under Section 173(8) Cr.P.C. on behalf of the respondent no. 1.", the court observed.

The court ordered that no additional charge sheet be taken on record which was prepared based on the further investigation conducted by the investigation officer. 

"We are convinced that ordering the additional charge sheet to be taken on record at this stage pursuant to the further investigation will not be in accordance with law. It will be contrary to the settled principles as laid down by this Court."

Accordingly, the appeal was allowed.

Appearance:

Mr. Jayanth Muth Raj, senior advocate, for the appellant

Shri Amit Anand Tiwari, Additional Advocate General, for the State 

Shri S. Nagamuthu, senior advocate, for respondent No. 1 (wife of the deceased).

Case Title: K. Vadivel Versus K. Shanthi & Ors.

Citation : 2024 LiveLaw (SC) 757

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