Kerala High Court: Further Investigation Is Permissible, but Re-Investigation Without Prior Permission Is Prohibited

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On 2nd March 2021, a Single Judge Bench consisting of Hon’ble Mr Justice R. Narayana Pisharadi heard The Vigilance and Anti-Corruption Bureau v. K. Sasikala.

The issue, in this case, is whether the investigating agency or officer must seek and obtain the permission of the Trial Court for conducting a further investigation under Section 173(8) of the Code of Criminal Procedure, 1973 after filing the final report under Section 173(2) of the Code.

Facts of the case

A case was registered by the Vigilance and Anti-Corruption Bureau (VACB), Special Cell, Thiruvananthapuram, alleging the commission of corrupt practices concerning purchasing medicines in the Medical College Hospital Thiruvananthapuram for the year 2003-2004. After completing the investigation, a final report was filed in the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram against the respondents for the offences under Section 13(1)(d) [Criminal misconduct by a public servant] and Sec 15 [Punishment for attempt] of the Prevention of Corruption Act, 1988 and also under Section 120B IPC [Punishment of criminal conspiracy]. 

The Accused made a petition to the Chief Minister of Kerala to issue a direction to the Director, VACB, for conducting further investigation in the case. The Petition was forwarded to the Director, VACB. After that, the Superintendent of Police, VACB, filed an application before the Trial Court seeking permission to conduct further investigation in the case. The Trial Court dismissed the Investigating Officer’s application seeking permission to conduct further investigation in the case. 

Contention of petitioner

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Learned Public Prosecutor submitted that the Investigating Officer has right under Section 173(8) of the CrPC to conduct further investigation. It was not necessary to obtain the permission of the Trial Court for that purpose. 

Learned Public Prosecutor further submitted that, though the Investigating Officer’s application before the Trial Court contained a prayer for granting permission to conduct further investigation, it was only a formality. The Trial Court should have permitted such an investigation. It should have treated the application as an intimation regarding the further investigation proposed to be conducted in the case.

Court’s analysis

The Court observed Section 173(1) of CrPC, which states that every investigation shall be completed without unnecessary delay. Section 173(2) of the Code states that, as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognisance of the offence on a police report, a report in the prescribed form stating the particulars specified.

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The Court also observed Section 173(8) of CrPC, which does not mandate the Officer in charge of the Police Station to seek the court’s permission to conduct further investigation. The provision indicates that filing a final report under Section 173(2) does not preclude further investigation regarding an offence.

The Court referred to the case of State v. Gopakumar 1988 (1) KLT 924 held that “In the absence of any new evidence or material obtained by the investigating officer, he has no right to conduct further investigation.”

The Court referred to the case of Ram Lal Narang v. State AIR 1979 SC 1791, which held that “The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing the charge sheet is a statutory right of the police.”

The Court referred to the case of Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762, which held that “the investigating agencies have not only understood but also adopted it as a legal practice to seek the permission of the Courts to conduct ‘further investigation’ with the leave of the Court”.

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The Court referred to the case of State of A.P v. A.S. Peter AIR 2008 SC 1052, which held that “Carrying out of a further investigation even after filing the charge sheet is a statutory right of the police.”

The Court referred to Abdul Latheef v. State of Kerala 2014 (3) KLT 905, where the Court held that “The Supreme Court has not restricted that only on obtaining the permission from the Court the Investigating Officer should conduct such further investigation”.

Court’s decision

The Court allowed the revision petition and held that the Investigating Officer doesn’t need to seek and obtain the Court’s permission for conducting a further investigation under Section 173(8) of the CrPC. However, as an accepted legal practice, it is always desirable that the Investigating Officer shall inform the court concerning the further investigation proposed to be conducted and seek formal permission of the Court in that regard.

The Court further cautioned the Investigating Officer that what he should conduct must be “further investigation” and not “re-investigation”.

Click here to view the Judgment.


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