A few days ago, a Two-Justices' Bench of the Supreme Court passed what seemed an innocuous order referring the petition in Jagdish Patni v Nikita Patni & Ors [SLP (Crl) 3806/2018)] to a bench of higher-strength. This was because the Justices thought that an earlier Supreme Court decision - Reeta Nag [(2009) 9 SCC 129, Two Justices' Bench] - might need re-consideration. In this post, I briefly cover that earlier decision and the problem that the Supreme Court alluded to. I argue that there is, frankly, no problem at all, and the petition should have been dismissed for more reasons than one.
Further Investigations and De-Facto Complainants: What is the Law?
When police investigate a case under the Criminal Procedure Code, 1973 [Cr.P.C.], the investigation ends with a Final Report under Section 173. When this suggests allegations have enough basis to be tried in court, this Report is colloquially called a Charge-Sheet. But that is not the end of the matter. Section 173(8) Cr.P.C. makes it clear that even after filing of a Report, "further investigation" into the allegations can take place. And police file subsequent reports detailing what that further investigation revealed. As always, problems emerge when we probe further for details. What all can come within "further" investigation - can the same documents / witnesses be considered again? Are there no limits to this power of continuing investigations? Must the police file an application, or can the Magistrate herself direct further investigation? What about the victim / informant? Here, I am only concerned with two of these themes and their intersections: till when can a police do "further" investigations, and how can this be triggered. For a discussion on the scope of what can happen in further investigations, I'd encourage reading Vinay Tyagi v. Irshad Ali [(2013) 5 SCC 762].
The Supreme Court has clarified that further investigations can happen at any stage before judgment, and that triggering such investigations is not an exclusive power with the police. A magistrate on her own, or on an application by an aggrieved party, can also direct the police to further investigate a case. But, importantly, there is no right to further investigations: it is another area where the court has to exercise discretion, and it considers different considerations in deciding whether granting that permission makes sense. Basically, the more advanced a case gets, the more difficult it is to go back and investigate. This makes ample sense, as revisiting a case causes more delays in what is already a slow system of justice.
The Court has made the time-element relevant in another sense: once the case crosses certain stages, a magistrate, and the aggrieved person, lose their ability to trigger a hearing for considering further investigations. The Court has held that a magistrate loses the right to trigger further investigations after taking cognizance. So, after deciding that there is enough material warranting the case proceed to trial, the magistrate on her own cannot turn back the clock and seek further investigations. For an aggrieved party, the starting-line is not as clear. But one point of no return was clearly identified in Reeta Nag by the Court. There, it held that an aggrieved person cannot seek further investigation once charges have been framed. After this stage, the only way left to trigger this process was if the police approach a court.
Again, this makes sense. It is clear under the Cr.P.C. that there are other avenues that allow a court to arraign other defendants or bring in new evidence once the trial has begun, either on its own or on an application by an aggrieved party. Under Section 319, Cr.P.C., a court has broad powers to arraign new defendants it finds sufficient grounds. Equally broad powers are vested in a court to take in fresh evidence after the start of a case under Section 311.
The Petition in Jagdish Patni and the (Mis)Perceived Legal Issue
Prakash Patni died on 27.05.2013. His father, Jagdish Patni, lodged a complaint with the police which resulted in registration of a First Information Report. The subsequent police investigation concluded his death was a suicide, and alleged that three defendants - his wife, mother-in-law, and a maternal aunt - abetted his suicide and recommended a case under Sections 306 read with 34, IPC. After cognizance was taken, Jagdish Patni moved an application on 16.06.2015 for "further investigation", at at time when the court was hearing arguments on charge. On 27.07.2015, the court rejected the plea for discharge by the defendants. Then, on 12.10.2015, the court passed an order dismissing the application for further investigation. This was challenged before the High Court, which affirmed the order and relied on Reeta Nag to do so. Challenging that order, Jagdish Patni came to the Supreme Court. And on May 7, a Bench comprising of Justices Chelameshwar and Kaul were of the view that relying upon Reeta Nag was a problem. The daily order notes:
"The High Court dismissed the case of the petitioner by the impugned order relying on a judgment of this Court reported in Reeta Nag (citation omitted) wherein it was held that the criminal court is not competent to direct further investigation at the instance of de-facto complainant. Further, that judgment is rendered on the basis of the law as it existed prior to the judgment. By an amendment Act V of 2009 which came into force on 31st December 2009, a right of appeal is created in favour of a victim against order of acquittal under the proviso of Section 372 Cr.P.C. In light of the above-mentioned amendment, the scheme of Section 173 CrPC, in our view, requires a further examination."
In my view, the Court gets it wrong here on multiple levels. First, Reeta Nag did not say this at all, as I have discussed above. De-facto complainants continue to have a right to seek further investigations, as long as it is before arguments on charge. In fact, this position was clarified in 2017 by the Court in Amrutbhai Patel [(2017) 4 SCC 177] nine years after the victim-rights amendment was passed, and curiously that decision is not cited by the Court. Moreover, assuming that the Court knew of this, and wanted to remove this limitation on the right of de-facto complainants, one struggles to see a connection between granting victims a right of appeal against acquittals and a right to seek further investigation after cognizance has been taken. Victims already had a panoply of rights, including the right to seek further investigations, but did not have a right to appeal. This was the lacunae being filled, but instead, the Court has put the cart before the horse in the extracted order.
But the biggest reasons are pragmatic. Nobody needs reminding of how serious the problem of delays is. This is apparent in Jagdish Patni itself, as the FIR was registered in 2013, and according to the case status website charges have not even been framed yet. As I have argued previously, a large part of the reason for this is the Supreme Court itself. How? Because the Supreme Court, over the years, has repeatedly transformed routine administrative stages into full-blown hearings, purportedly in the interests of justice. This has led to a strange reality where the Court itself creates avenues for more delays, and then criticises that the system for delay. Sensibly, previous decisions created some limits on the right of aggrieved parties to seek further investigations. There was no marginal benefit gained at the cost of the additional delays this step invited. After all, the benefits accruing by this process were already being conferred by existing provisions, i.e. Sections 319 and 311. By reversing this, the Court would only drive another nail in the coffin of our tedious criminal process.
Having seen how a SLP is heard, I would not find it unthinkable that the nuances of a legal issue evade a Bench of Supreme Court that is pressed for time. But the Court was not hearing the petition in Jagdish Patni for the first time on May 7; it was a week after it had first taken up the case as notice was issued on May 1. In that week, surely the able support of judicial clerks would have seen this obvious point that I raise. There are two reasons then, why this petition moved forward. The first reason is that, well, somehow owing to the burdens of work this legal point did elude everybody. The second is that the Justices knew of it but wanted to change the legal position. I only hope it is not the latter possibility.