Can't be reinvestigation of an offence by different agency sans magistrate's approval: Supreme Court [Read Judgment]

NEW DELHI: The Supreme Court has declared that reinvestigation of an offence by a different investigating agency cannot be ordered by Secretary (Home) of a state government at the behest of an accused without prior approval or permission of the Magistrate concerned.

A bench of Justices M R Shah and C T Ravikumar quashed February 13, 2019 order passed by Uttar Pradesh's Secretary (Home) directing reinvestigation of a 2014 murder case of Satyaveer alias Kallu at Baraut by CBCID at the instance of a letter written by the mother of an accused.

"There cannot be any dispute that even after the chargesheet is filed, it is the right of the investigating officer to further investigate in respect of offence even after a report under sub-section (2) of Section 173 of CrPC forwarded to a Magistrate, the prior approval of the Magistrate is not required," the bench said.

"However, as per the settled position of law, so far as the reinvestigation is concerned, the prior permission/approval of the Magistrate is required," the bench added.

The court rejected a contention by the accused that as the Secretary (Home) is the head of the department, who is empowered to order further investigation by another agency on administrative side, saying this cannot be accepted.

"So far as the investigation is concerned under the scheme of the CrPC, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police," the bench said.

"So far as the Secretary (Home) is concerned, he does not come into picture at all. If such powers are given to the Secretary (Home) in that case any accused who is already chargesheeted may approach the Secretary (Home) and may get an order of further investigation or reinvestigation by another agency and obtain the fresh report nullifying the earlier chargesheet and get himself discharged," the bench added.

The court also pointed out Section 173(3) read with Section 158 of the CrPC does not permit the Secretary (Home) to order for further investigation/reinvestigation by another agency, other than the officer in charge of the concerned Police Station and/or his superior officer.

The victim's side led by Senior advocate Vibha Datta Makhija contended once charge sheet has been filed by police and supplementary charge sheet by district crime branch, the Secretary (Home) could not have transferred the investigation at the instance of the other of the accused.

"Such an order of transfer of investigation by the Secretary (Home) and that too at the instance of mother of one of the accused, is un-known to law and is not permissible at all," she said.

The counsel also said no prior approval of the Magistrate concerned was taken except a mere intimation.

She also pointed earlier the Allahabad High Court as well as the Supreme Court had dismissed the plea for quashing of the proceedings against the accused initiated on the basis of charge sheets.

Agreeing to the contention, the bench said in any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the Magistrate even while exercising the powers under Section 173(8) of the CrPC.

"Under what authority of law, the Secretary (Home) has transferred the investigation to another agency and/or ordered further investigation by another agency is not pointed out and that too at the instance of the accused on the grounds which as such can be said to be the defences of the accused which are required to be considered at the time of trial," the bench said.

The court allowed the appeal filed by the victim's side against the Allahabad High Court's order which had dismissed their writ petition against the direction issued by the Secretary (Home) UP government.

Makhija appeared for legal representatives of Bohatie Devi and senior advocates S Nagamuthu and Rameshwar Singh Malik represented the respondent accused. Advocate Anand Sanjay M Nuli appeared on behalf of an intervenor.

[Read Judgment]