SC: Courts cannot order re-investigation in a criminal case

The Supreme Court has ruled that the court can order further investigations, but cannot order reinvestigation in a criminal case.

A bench comprising Justices S B Sinha and Mukundakam Sharma, while allowing the appeal of the six accused in a 2002 Gujarat communal riots case against their custodial interrogation when they were on bail, noted, ‘appellants had been granted bail. They are not in custody of the court.

‘ They could not be taken in custody ordinarily, unless their bail was cancelled. The High Court in our opinion, was not correct in holding that as further investigation was required, subsection two of Section 167 of the code gives ample powers for grant of police remands.’ The power of remand in terms of the aforementioned provision is to be exercised only when investigation is not complete.

‘Once the charge sheet is filed and cognisance of the offence is taken, the court cannot exercise its power under subsection two of Section 167 of the code.

‘The precognisance remand jurisdiction is to remain vested in subordinate courts, therefore must be exercised within the four corners of the code.’ The Special Investigation Team (SIT) appointed by the Supreme Court had sought a ten day police remand of the accused persons on the grounds that new sections have been added against the accused, namely, Mithabhai Pashabhai Patel and others, and therefore their custodial interrogation was required.

The trial court rejected the application of the SIT. The Gujarat High Court, however, allowed the appeal of SIT to interrogate the accused person by taking them in custody.

The apex court, while setting aside the High Court order dated September 5, 2008 noted, ‘ we however, in view of the peculiar facts and circumstances of this case, in exercise of our jurisdiction under Article 142 of the Constitution of India, make the interim direction absolutely subject to any other of further orders that may be passed by the Sessions judge till an additional charge sheet, if any, is filed by the special investigative agency before the learned Sessions judge.’