1 October 2024 - Legal Updates

1. Section 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 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 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.

Case- K. Vadivel vs. K. Shanthi & Ors.

2. Civil Judge Has no Direction To Entertain Suit Filed U/S 92 CPC Or Under Section 2 of Religious Endowment Act, 1863: Allahabad High Court

The Allahabad High Court has held that a Civil Judge does not have jurisdiction to entertain a suit filed under section 92, CPC or under the Religious Endowment Act, 1863.

Justice Subhash Vidhyarthi held that, a suit under section 92 CPC and section 2 of the Religious Endowment Act, 1863 in the state of Uttar Pradesh can only be filed in the court of the Principal Civil Court of original jurisdiction, that is the court of the District Judge, and not in any other court. The District Judge can decide the suit himself or he may transfer it to an Additional District Judge.

Section 2 of the Religious Endowment Act, 1863 defines Civil Court as the “principal Court of original civil jurisdiction in the district in which or any other Court empowered in that behalf by the State Government within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate.”

Case Background

Petitioners had filed a suit before the Civil Judge (Senior Division) under Sections 91 and 92 of CPC for a decree of declaration and perpetual injunction. Petitioners had prayed for constitution of an eleven-member Committee and appointment as manager for the Dhri Ram Janki Mandir.

The Trial Court dismissed the suit as non-maintainable. It further held that the petitioner did not file any trust deed and the plaint did not disclose the identity of the trustees or manager of the trust. Additionally, it was stated that no bye-laws/Rules of the trust were filed, and no pleadings existed pertaining to any public charities being administered by the disputed property.

High Court Verdict

The Court observed that a combined reading of Sections 92(1) and (2) of C.P.C. with Sections 2, 14, 15, and 18 of the Religious Endowment Act, 1863 clearly shows that a suit under Section 92 CPC can be filed in case of alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature.

The Court referred to Janki Prasad vs. Kuber Singh, wherein the Allahabad High Court held that absence of a written document or entries is not conclusive proof of non-existence of a trust. It was held that a trust can be created orally as well, with the property endowed being used for charitable and religious purposes for which the trust was created.

The Court held that the Trial Court committed a patent illegality in dismissing the suit at the stage of admission because a trust deed had not been filed. It was held that non-disclosure of the trustees or trust manager, no bye-laws having been filed, and the relief sought by the plaintiff not falling under Sections 91 and 91 of CPC were not sufficient reasons for dismissal of the suit.

Further, the Court observed that the suit could not have been admitted by the Civil Judge as the aforementioned Sections state that such suit must be filed in the Principal Civil Court of original jurisdiction or any other court empowered by the State Government. This phrase does not include a Civil Judge, held the Court.

For ascertaining the meaning of the phrase 'principal civil court of original jurisdiction', the Court referred to Section 3(17) of the General Clauses Act, Section 2(4) of C.P.C., and Sections 3 and 18 of the Bengal, Agra and Assam Civil Courts Act, 1887.

The Court relied Muhammad Ali Khan vs. Ahmad Ali Khan, where a Full Bench of the Allahabad High Court held that a District Judge as principal civil court of original jurisdiction has the power to nominate a mutwalli on application. In Vinod Kumar vs. DM, Mau, the Supreme Court categorically stated that a Principal Civil Court means the Court of the District Judge. In Gangadeen vs. Kanhaiya Lal, reiterated in Ashok Kumar Jain vs. Gaurav Jain, the Allahabad High Court held that a principal civil court of original jurisdiction as stated in Section 92 of C.P.C. and Section 2 of the 1863 Act would mean the District Judge and the Additional District Judge.

It was held that a suit under Section 92 CPC and Section 2 of the 1863 Act can only be filed before the Court of the District Judge after seeking the Court's leave.

In Sita Ram Das and Ors. Vs. Ram Chandra Arora and Ors. The Allahabad High Court held that the District Judge only has to see if a prima facie case has been made out at the time of granting of leave.

Accordingly, the petition was allowed. The order by the Civil Judge was set aside, with liberty granted to the petitioner to file a fresh suit before the principal civil court of original jurisdiction, i.e. the Court of the District Judge.

Case- Jayntri Prasad and 9 Others vs. Ram Janki Lakshman Ji Virajman Mandir, Pratapgarh Thru. Ram Shiromani Pandey and 2 Others

3. Section 193 (9) BNSS Bars Further Investigation After Filing of Police Report Without Permission of Trial Court: Rajasthan High Court

Rajasthan High Court has clarified that in light of proviso to section 193 (9) of the Bhartiya Nagrik Suraksha Sanhita (BNSS), where the police has already filed the report following investigation against the prime accused, no further investigation can be carried out without the permission of the trial court.

Section 193 talks about report of police office on completion of investigation and Section 193(9) reads as below,

“Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be completed within a period of ninety days which may be extended with the permission of the Court.”

The bench of Justice Arun Monga was hearing a quashing petition against FIR filed for cheating and criminal breach of trust in which four charge sheets were already filed and no role was attributed to the petitioner, neither his name was arrayed anywhere as an accused.

The Court found that no culpability of commission of any offence was attributable to the petitioner and disposed of the petition.

Case- Gajendra Singh Sekhawat vs State of Rajasthan & Ors.