Investigation Agency Has No Power To Order Or Conduct Fresh Investigation: Madras High Court
The Madras High Court observed that investigation agency has no power to order or conduct fresh investigation.
The Court held thus in a criminal original petition filed to quash the final report submitted by the Investigation Officer and all the subsequent connected proceedings.
A Single Bench of Justice G.K. Ilanthiraiyan observed, “…the investigation officer cannot be permitted to do re-investigation, fresh or de nova investigation unless ordered by the court. Therefore, neither investigation agency nor Magistrate has any ower to order or conduct fresh investigation."
Senior Advocate Devadatt Kamat represented the petitioner while Government Advocate A. Gopinath represented the respondents.
In this case, the accused had installed CCTV cameras projecting the rest room which was located inside the petitioner’s campus which meant for women working on its premises and house of Managing Director of a private company. On receipt of the complaint, an FIR was registered for the offence punishable under Section 354C of the Indian Penal Code (IPC) and Section 4 of Tamilnadu Prohibition of Harassment of Women Act, 1998 and Section 66(E) of the Information Technology Act, 2000 (IT Act).
After completion of investigation, final report was filed as against two accused persons and the same was taken cognizance by the Judicial Magistrate. After the cognizance, DGP on his suo motu, ordered for transfer of investigation from Inspector of Police to CBCID for further investigation. The DGP also nominated an Investigation Officer to take up further investigation which was challenged by the petitioner. At the same time, the accused filed a petition to quash the proceedings and both petitions were dismissed.
The High Court in view of the above facts said, “As stated supra, the first respondent on his suo motu ordered for transfer of investigation and further investigation. In fact, no final report or whatever the records communicated to the first respondent in crime No.98 of 2019. This Court shocked to see that the first respondent ordered for further investigation by transferring the investigation from the file of the fourth respondent to the file of the fifth respondent without even referring to the final report in Cr.No.98 of 2019 and without any request made by either accused or by complainant. It shows the influence of the accused with the police officials.”
The Court noted that the DGP ordered only for further investigation and even after dismissal of the permission sought for further investigation by the trial court, Inspector of Police, Crime Branch CID proceeded with re-investigation by registering new FIR.
“The investigation officer recorded the statements of the victims under Section 164 Cr.P.C. The fourth respondent already examined their statements under Section 161 of Cr.P.C. and filed final report and the same has been taken cognizance by the trial court. Likewise, what or who insisted the fifth respondent to record statement under Section 164 of Cr.P.C is also questionable”, it added.
The Court further said that the Inspector can only continue the investigation done by the CID and can file supplementary report and instead, CID registered new FIR and conducted fresh investigation and closed the FIR as mistake of fact.
“The fifth respondent ought not to have conducted re-investigation, that too by registering new FIR. That apart, the first respondent and the fifth respondent failed to produce any fresh oral or documentary evidence. The same persons enquired by the fourth respondent, were once again enquired by the fifth respondent and recorded the statement cautiously under Section 164 of Cr.P.C. and filed final report. Therefore, the first respondent and the fifth respondent played with the Court and ordered for further investigation and in the name of further investigation, the fifth respondent conducted fresh investigation in crime No.98 of 2019 by registering another FIR. It is not permissible under law”, it held.
The Court also observed that only the court can order for fresh or re-investigation under Section 482 of the Criminal Procedure Code (CrPC) or under Article 226 of the Constitution. It said that no doubt, the police officer or the magistrate has power to order for further investigation.
“When the trial court rejected the permission sought for to do further investigation, the fifth respondent should not have conducted fresh investigation by registering new FIR for the very same set of allegations for the very same offences. Therefore, the order passed by the first respondent dated 23.06.2021 cannot be sustained and the same is liable to be quashed”, it concluded.
Accordingly, the High Court allowed the criminal original petition and quashed the final report submitted by the Investigation Officer.
Cause Title- S. Lakshmipathy v. The State rep. by The Director General of Police, Head of Police Force Tamilnadu, Chennai & Ors.
Appearance:
Petitioner: Senior Advocate Devadatt Kamat and Advocate E.K. Kumaresan.
Respondents: Government Advocate A. Gopinath
