Can an appeal be filed against the Challan for further reinvestigation?

[ashok dinda]

Hello sir,

Can an appeal be filed against the Challan for further re-investigation. Particularly in my cousin’s matrimonial case, Section 406 IPC and 506 IPC are dropped by police . How to get them back? Can we appeal to magistrate for their inclusion or further inquiry? If we can challenge, is there any time period of doing so?

[Dr. Ashok Dhamija]

Wherever after investigation, police submits closure report (i.e., where it finds no evidence to support the allegations made in FIR) under section 173 of Cr.P.C., an opportunity is given by the Magistrate to the original complainant to oppose such closure report. In your case, the final report or the charge sheet filed after investigation drops the offences under some specific sections. In such a case, it should be possible for the complainant to oppose the dropping of those sections by appearing before the Magistrate. Sub-section (8) of Section 173 of Cr.P.C. empowers further investigation in an offence after submission of the charge sheet by police. So, it should be possible for the complainant to request the court to direct further investigation.     

---

Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Pulkit Srivastava]

As per the facts narrated, you may proceed with filing of a Protest Petition before the concerned Magistrate, agitating your grievance of dropping of the specific charges as stated in your query and pray for further investigation / reinvestigation.

The term ‘further investigation’ has been explained by the Hon’ble Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors., (2013) 5 SCC 762, wherein the Apex Court has held that:

“15. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173. This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report.
‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation.
xxxx xxxx xxxx
35. The power to order/direct ‘reinvestigation’ or ‘de novo’ investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct ‘further investigation’, or even on the basis of the record of the case and the documents annexed thereto, summon the accused.”

The Hon’ble Supreme Court in various cases, has recognized the power of a Magistrate to direct further investigation under Section 173(8) of Cr.P.C. Recently, the Hon’ble Delhi High Court in the matter being titled as “Surender Kumar Sharma Vs. State & Anr.”, [Crl. M. C. No. 5033 of 2014], categorically dealt with a question as to “whether the Magistrate, after accepting the closure report filed by the police, can order further investigation in the case”. The Hon’ble High Court while answering in the affirmative has held as follows:

“30. It is imperative to note that the Code has compartmentalized the powers to be exercised at different stages of a case, namely, at the time of taking cognizance, after cognizance is taken, after appearance of the accused, and after commencement of trial on charge being framed. It is settled law that the power of ‘further investigation’ undoubtedly exists in the first stage, may exist at the second and Section 311 Cr.P.C. permits to examine any witness during the course of trial. ….”

[Author]

Posts