Supplementary chargesheets help finding the whole truth

A retired government official in Chennai is at his wits end. About a decade ago, the senior citizen had complained to the police in Western Tamil Nadu about his land being grabbed by a relative, armed with allegedly forged documents. The complainant claimed that one of the accused persons, convicted in similar cases in the past, had been scuttling investigation. So he filed a petition in the Madras high court to direct the police to register the FIR for offences such as cheating, forgery and criminal intimidation.

In a predictable twist, the accused filed a petition under Section 482 of the Criminal Procedure Code (CrPC) in the Madras high court to quash the FIR. The Court quashed a part of the complaint but ruled that the heart of the issue - the forgery angle must be expeditiously investigated.

 The defacto complainant was summoned to give his sample signatures for analysis. In its Report,the Forensic Department concluded that the signatures in the forged document were not that of the complainant. However, for some inexplicable reason, the signature or handwriting samples of the accused persons and their accomplices named by the complainant were not taken. The chargesheet was filed citing offences of mischief, punishable under Section 427 Indian Penal Code (IPC), forgery for the purpose of cheating (468 IPC) ,using as genuine a forged document (471 IPC), Criminal Intimidation (506[1] IPC) and Cheating (420 IPC).

 Getting a whiff of possible loopholes in the prosecution, the senior citizen has petitioned the Coimbatore police seeking further investigation to obtain the signature and handwriting samples of the accused and accomplices and send them for forensic analysis. If their handwriting or signatures match that of the forged document, the petitioner has suggested that Section 465 IPC,which is the punishment for forgery be added and a supplementary chargesheet be filed with the fresh evidence. Is this a legally tenable plea?

  Yes, in my opinion. A trial can be said to be fair only if investigation is truly complete and there are no loopholes or loose ends. Section 173(8) CrPC states that “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) 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 prescribed.” Significantly, the provision begins with a non-obstante clause with the word “nothing”, implying there is no bar on a supplementary chargesheet.

The erstwhile CrPC of 1898 did not empower the magistrate to order further investigation after the chargesheet is filed by the police. The 'touch me not' restriction on investigation  after the chargesheet, was rightly questioned by the Law Commission in 1969. In its 41st Report, it recommended that “a hindrance in the way of the investigating agency  can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

  It is pertinent to note that under Section 2(h) of the1973 CrPC, the term 'investigation' is defined as “all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person, who is authorised by a Magistrate.” The word “all” is sweeping and must be interpreted to cover the entire gamut of investigation, if there is fresh evidence to be adduced, even after the chargesheet. When it comes to the notice of the investigating officer that a person accused of an offence has a good alibi, is it not his duty  to dig deeper and submit a report to the Magistrate? Likewise, when the involvement of persons who are not already accused comes to light,should the officer sit tight and not act on it?  Wouldn't that be dereliction of duty?

 What I am advocating in the retired official's case is further investigation and not re-investigation as both are different processes under different circumstances. This is supported by a decision in Babubhai Vs State of Gujarat (2010), where the Supreme Court was of the view that “the scheme of investigation, particularly Section 173(8) CrPC provides for further investigation and not of re- investigation”  if “the investigation has been done with an object of helping a party.”  

Referring to the Law Commission Report, a 3 judge Bench of the Supreme Court in Vinubhai Haribhai Malaviya Vs State of Gujarat (2019) settled this question, observing that “with the introduction of Section 173(8) of the CrPC, the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate.” The Court reasoned that denial would be “a travesty of justice”, as “certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the magistrate.”

The argument that further investigation may delay proceedings is unacceptable. The SC in Pooja Pal Vs Union of India (2016) explained that  “a 'speedy trial', albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in the concept of 'fair trial', both being in alienable constituents of an adjudicative process. A court of law cannot reduce itself to being a resigned and helpless spectator. Justice then would become a casualty.”

The writer is an advocate at the Madras high court, columnist & author