M. A. Qayoom
The kidnapping, rape and murder of an eight year old girl in Kathua, has been condemned by one and all and everyone has demanded that the culprits be tried in a fast track court and awarded death penalty for their gruesome act. There are, however, some elements, who want to derail the process by demanding a CBI probe in the matter, notwithstanding the fact that the Crime Branch has already laid a charge sheet against the accused persons before Chief Judicial Magistrate, Kathua, who has committed the case to Sessions’ Court Kathua, for trial.
Those who demand a CBI inquiry into the matter include Lal Singh, MLA and ex-Forest Minister; Chander Prakash Ganga, MLA and Ex-Industries Minister; Professor Bhim Singh, a Senior Supreme Court Lawyer and the Founder of Panthers Party, who has also filed a Public Interest Petition before the Supreme Court in this behalf and his Deputy Harsh Dev Singh, who has also been an MLA and a Minister.
The High Court Bar Association, Jammu and Kathua Bar Association have also passed resolutions for a CBI probe. They had also gone on strike and had called for a Jammu Bandh but they later called off their strike and resumed their work mainly because the Supreme Court had taken suo-motu cognizance of the matter and while issuing notice to Jammu and Kathua Bar Associations, had asked Bar Council of India to depute a team to Jammu and Kathua to find out as to how and in what manner the lawyers of these Associations had impeded the course of justice by extending threats to the lawyers of the victim family from pursuing the matter in the courts and also by preventing the Crime Branch to file the charge sheet against the accused in a court at Kathua. The team deputed by Bar Council of India came to Jammu and after meeting the lawyers and so on, submitted a one sided report to the Supreme Court in which besides other things, they stated that the demand of Jammu and Kathua Bar Association seeking a CBI probe was justified; which has been denounced by many.
The members of Jammu Bar Association as well as those who are practising law at Kathua and other places including Supreme Court of India, are supposed to know the niceties of law. The same is true about a senior lawyer from Jammu, who is practising in the Supreme Court for the past five decades or even more. The other two MLA’s have also held important and sensitive ministers of the State apparatus and as legislators; they know how the law works. However, under the garb of demanding CBI probe their only aim appears to be to save the culprits, who have committed the dastardly act. They have also fuelled communal passions to achieve their objective and have even launched a vicious campaign against the members of the victim family to vacate the area and go somewhere else. They chose to forget that it was on the failure of the local police, to trace out the girl or to arrest the perpetrators of the crime that the Government had handed over the case to crime branch and the investigation conducted by the crime branch was monitored by the High Court. Most of lawyers belonging to Jammu and Kathua Bar Associations, used to be present in the High Court during the course of the said monitoring, as stated by the lawyers of the victim family as well as others, but none of them raised any finger of accusation against the crime branch officials regarding they being partisan or incompetent. It is only when the crime branch completed its investigation and the High Court stopped its monitoring to allow the crime branch to file the charge sheet before the court of competent jurisdiction that they called Jammu Bandh and speeded up their demand that the investigation of the case be handed over to the CBI.
One need not to be reminded that since there has been a monitoring of investigation by the High Court and after the completion of investigation, the crime branch has filed a challan against the accused in the court of law, it is now for the trial court, which is seized of the matter to direct “further investigation” if at all necessary, u/s 173(8) of the Code of Criminal Procedure.
Section 173(8) Cr.P.C. permits the Court, trying the case, to direct “further investigation” of the case, which should not be misunderstood with “reinvestigation” or “fresh investigation”. “Further investigation” is the continuation of the earlier investigation and not a fresh investigation or re-investigation to be started ab-initio, wiping out earlier investigation altogether. The order of “further investigation” can be passed by the court even without affording an opportunity of being heard to the accused provided it is necessary or expedient in securing the ends of justice. Neither the prosecution nor the accused can claim, as a matter of right, a direction from the court commanding further investigation under sub-section (8) of Section 173 Cr.P.C. Normally investigation terminates with the filing of charge sheet but in exceptional cases, where the investigating officer may have to collect some further evidence/material, he may apply to the court for such an order. There is also no statutory requirement for the police to obtain permission from the court, trying the case, to conduct further investigation but it is bound to inform the trial court about the said fact. It is also well settled that when police investigation is in progress, direction for fresh and further investigation by an agency/other than the local police is without jurisdiction. (AIR SCW 2358)
In case Vinay Tyagi v/s Irshad Ali, the Indian Supreme Court has held that the power of the Magistrate to direct “further investigation” is a significant power which has to be exercised sparingly in exceptional cases and to achieve the ends of justice. It has also been held that the scope of further investigation is restricted to the discovery of further oral or documentary evidence and its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation and that the requirement of seeking of prior leave of the court to conduct further investigation and/or to file supplementary charge sheet will have to be read into and is a necessary implication of Section 173(8) Cr.P.C. The Supreme Court has also said that while the Magistrate can only direct “further investigation”, the courts of higher jurisdiction can direct “re-investigation”, “further investigation” or “investigation denovo” depending on the facts of a given case but such power has to be exercised sparingly and that the principle of rarest of rare cases would squarely apply to such case and unless unfairness of investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a fresh investigation. The Supreme Court has also said that though the superior courts are vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand but wherever a charge sheet has been submitted to the court, even the Supreme Court would not ordinarily re-open the investigation especially by entrusting it to a specialised agency.
In the Kathua rape and murder case, the monitoring of investigation/inquiries have been done by the High Court. Such a monitoring of investigation by the High Court was intended to ensure that proper investigation takes place without directing or channelling the mode and manner of investigation. The whole idea was to retain public confidence in the impartial inquiry/investigation into the alleged crime keeping in mind that the inquiry/investigation into every accusation should be made on a reasonable basis irrespective of the position and status of any person and the inquiry/investigation should be taken to the logical conclusion in accordance with law. The monitoring by the High Court was aimed at to lend credence to the inquiry/investigation by the police and to eliminate any impression of bias, lack of fairness and objectivity therein. Had the High Court found any impropriety in the conduct of the investigation by the crime branch, it would have definitely passed appropriate orders in the matter. Since no such illegality or impropriety was brought to the notice of the High Court by anyone during the course of the monitoring of the investigation, it does not therefore lie in the mouth of anyone, including the members of the Jammu and Kathua Bar Associations to ask for a CBI investigation and that too after the filing of the challan against the accused in the trial court and closure of monitoring by the High Court.
Normally, monitoring of a criminal investigation is the function of investigating agency and not that of the High Court, but unsolved crimes, unsuccessful prosecution, unpunished offenders and wrongful convictions have brought the whole criminal justice system to disrepute. When the person involved in the crime wields political power and influence, the possibility of putting pressure on the investigating agency increases manifold. “Common” people will naturally get a feeling that they can get away with any crime. Once investigation fails, the court will be faced with a fait accompli. A proper and uninfluenced investigation is therefore necessary to bring about the truth. If the investigation is derailed due to external pressure truth will necessary be a casualty and the guilty will get away from the clutches of law, as has happened in sex scandal and Shopian rape and murder cases. More and more people therefore demand for monitoring of investigation relating to crimes committed by influential persons and persons who have political clout. Courts in public interest, sometimes, take such a course in the larger interest of the public and where the court agrees to monitor the investigation, the investigating agency informs the court about the progress of the investigation regularly.
It should be, however, remembered that in a court monitored investigation the court is not expected to interfere with the trial of the case. The conduct of trial is the business of the trial judge and not the court monitoring the investigation. Where a superior court in exercise of its appellate, revisional or constitutional power also gives a direction to the subordinate court to conduct the trial of the case expeditiously or compete the trial within a specified time, that time also it doesn’t interfere with the trial of the case but only facilitates the speedy trial, which is a facet of the right to life.
The power to monitor the investigation, however, comes to an end, once the charge sheet is filed leaving the trial court free to proceed with the trial of the case including the matters, which fall within the scope of section 173(8) Cr.P.C.
One must remember that filing of a challan is of considerable importance to a person who claims that he has been wrongly accused or wrongly framed for the commission of the offence. For society, a quick conclusion of investigation/inquiry is necessary so that those against whom there is evidence of the commission of the crime are tried at the earliest and punished, if they are found guilty. From the point of view of the investigator, an expeditious conclusion is necessary because greater the delay, greater are the chances of evidence being destroyed, witnesses being compromised or won over and/or the accused being able to manipulate circumstances to his/her advantage. Thus, instead of asking for a CBI probe, all the people more particularly those who are accused in the Kathua rape and murder case, should ask for an expeditious trial and not to impede the course of justice by forming associations taking out processions, striking of the work or going on hunger strike for pressing their unfair and unethical demand of handing over the case to CBI. What will happen to all those people who are demanding CBI enquiry, when supposingly, the CBI also finds them prima-facie involved in the commission of crime. It is better for all to allow the trial court to proceed further in the matter as otherwise any demand at this stage would be aberrance, warranting action against those, who intend to thwart the course of justice.
The author is an Advocate. He can be reached at: firstname.lastname@example.org