Holding

The Supreme Court declined to order further investigation, holding that such direction would constitute a re‑investigation and was not appropriate at this stage, though the trial court may alter charges under Section 311 if justified.

Summary

The appellant, the brother of the deceased Achamma, alleged that his sister’s death was not a natural heart‑failure but a murder concealed as suicide. After exhumation and a post‑mortem indicating organophosphorus poisoning, the CB‑CID investigated and charged the husband under Section 306 IPC (abetment of suicide) and the doctor under Section 201 IPC. The trial began, and the appellant sought further investigation by the CBI under Section 482 CrPC; the High Court dismissed the application. The Supreme Court examined whether it could order fresh investigation at this stage and whether the trial court could alter charges. While affirming its plenary powers under Articles 32 and 142, the Court held that directing further investigation would amount to re‑investigation and was not warranted, but it directed the trial court to retain its discretion to alter charges under Section 311 if evidence later justifies it. The appeal was dismissed.

Issues considered

Whether the Supreme Court may direct further investigation by the CBI after a charge‑sheet has been filed and trial commenced.
Whether the High Court erred in dismissing the appellant’s application under Section 482 CrPC for further investigation.
Whether the trial court can alter charges under Section 216/311 CrPC based on new material.
Whether the investigation conducted by the police/CB‑CID was fair and adequate under the circumstances.

Legislation cited

Code of Criminal Procedure, 1973s. 173(8), s. 216, s. 311, s. 391, s. 482
Constitution of Indias. Article 142, s. Article 32
Indian Penal Code, 1860s. 201, s. 302, s. 306

Subjects

murdersuicideabetment of suicideinvestigationCB‑CIDCBISection 173(8)Section 311Section 482trial court powersconstitutional jurisdictionexhumationpost‑mortemcircumstantial evidence

Judgment

A SASI THOMAS
v.
STATE AND ORS.

NOVEMBER 24, 2006

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Code of Criminal Procedure, 1973; Ss. 173(8), 216, 311, 391and4821
Penal Code, 1860; Ss. 201 and 302:

c Murder of wife by husband-Obtaining offalse certificate from doctor
certifYing heartfailure as the cause of death and buried the dead body-
Brother of deceased filing complaint raising suspicion about the cause of
death-Dead body exhumed-Post mortem report reveals that she died of
insecticides poisoning-Final report stating that deceased committed
D suicide-Challenge to-High Court directing CB-CJD to conduct
investigation-Investigation report charging the husband under Section 306
!PC for commission of abetment of suicide and also for committing offences
u/s. 207 !PC-Commencement of trial-Filing of an application u/s. 482
Cr.P.C. for further investigation by CBI-Dismissed by the High Court-On
appeal, Held: Proper and fair investigation by investigating Officer is back
E bone ofrule of/aw-Where no direct evidence available, collection ofadequate
material to prove circumstantial evidence becomes essential-Since doubt as
to cause of death raised, statutory duties should have been carried out fairly
by the investigating authorities-They submitted a final report stating that
the deceased might have committed suicide without any material in support
F thereof-Jn the facts and circumstances of the case, trial Court directed that
it may exercise its discretionary jurisdiction and may, if case so made out,
make alteration of charges and could also consider the question from view
point of complainant as regards the circumstances which points out guilt of
accused-Complainant permitted to engage a lawyer to assist public
prosecutor-Constitution of India, 1950-Articles 32 and 142.
G
Constitution of India-Articles 32 and 142:

Interference with the trial-Power of Supreme Court-Held: Supreme
Court could interfere with the trial to reach injustices wherever it is found-
But it is not a fit case to inte1fere with.
H ~o

..
SASITHOMASv. STATE 451
Code of Criminal Procedure, 1973-Ss. 31 I & 390-Alteration of A
charges-Powers of trial Court-Discussed

Appellant's sister was married with Respondent No. 4, Vice-President
in a reputed bank in USA. They obtained naturalized citizenship in USA. In
the meantime, the husband developed intimacy with another woman and the
wife came back to India with her children on five years visa. Later, her husband B
also came back to India. She died on 24.01.1998 in mysterious circumstances.
She was stated to have died of heart failure. Respondent No. 5, a doctor gave
a certificate to that effect Brother of the deceased, appellant made complaints
to various authorities whereupon the body of the deceased was exhumed on
22.04.1998 and a post mortem was i:onducted. It was opined in the post-mortem C
report that she died of Organo Phosphorous Insecticide poisoning. The police
investigated the matter and submitted a final report. Challenging the report,
the appellant tiled a writ petition praying for further investigation in terms
of Sub-section (8) of Section 173 of the Code of Criminal Procedure. High
Court directed investigation to be carried by CB-CID. After investigation, final
report was submitted by the authorities charging the husband for commission D
of offence of abetment of suicide under Section 306 and respondent No. 5 for
commission of offence under Section 201 of the Indian Penal Code. The trial
has commenced, however, the appellant filed an application before the High
Court purported to be under Section 482 of the Code of Criminal Procedure
praying for further investigation by the CBI. The application was dismissed E
by the High Court. Hence the present appeal.

The appellant contended that the High Court was not correct in not
allowing further investigation without taking into consideration two important
developments in the case, viz. a case from heart attack was made out at an
initial stage, whereafter a case of abetment of suicide was made out, which F
would go to show as to how the investigation has been carried out both by the
general police or by the CB-CID; and that there are various circumstances
which would clearly point out that the accused-husband committed murder of
the deceased-wife.

Accused-respondent No. 4 submitted that if sufficient evidences are G
brought on record, the Trial Judge could alter the charge in exercise of its
jurisdiction under Section 216 of the Code of Criminal Procedure.

Accused-respondent No. 5 submitted that the question of directing a
further investigation against him does not arise as he has been charged only
under Section 201 of the Indian Penal Code.·
H
452 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A The State submitted that this Court should not exercise its discretionary
jurisdiction to direct further investigation at this stage in the matter as the
same would amount to a re-investigation.

On behalf of CBI, it was submitted that unfortunately it is possible that
adequate materials had not been collected during investigation and in the event
B it is found that the investigating officers have failed to perform their statutory
duties, this Court may issue appropriate direction in exercise of its
jurisdiction under Article 142 of the Constitution of India.

Disposing of the appeal, the Court

c HELD: 1.1. Proper and fair investigation on the part of the investigating
officer is the backbone of rule of law. A proper and effective investigation
into a serious offence and particularly in a case where there is no direct
evidence available assumes great significance as collection of adequate
materials to prove the circumstantial evidence becomes essential. The
D Complainant has not been treated fairly. When a death has occurred in a
suspicious circumstance and in particular when an attempt had been made to
bury the dead body hurriedly and upon obtaining apparently an incorrect
medical certificate, it was expected that upon exhumation of the body, the
investigating authorities of the State shall carry out their statutory duties
fairly. It is clearly a matter of great concern that the authorities did not become
E alive to the situation. Although the dead body was buried on the premise that
the deceased died of heart attack, a final report was submitted stating that
she might have committed suicide. It is not known, on what material, such an
opinion was arrived at by the investigating officer. It i.s only because of the
persistent efforts on the part of the complainant to move the High Court, a
F further investigation was directed to be made by CB-CID. ·
(458-H; 459-A-B-C-D]
1.2. It is not known, whether fourteen circumstances enumerated by
the Complainant had been duly taken note of and investigation in this behalf
had been carried out. Although the CBI in its counter-affidavit has supported
the impugned judgment of the High Court but as noticed, it without looking
G into the documents opined that although the said circumstances are relevant
but they themselves had not proved commission of offence of murder of the
deceased by her husband. It was not expected of the CBI to file such an affidavit
Even the Additional Solicitor General appearing on behalf of the CBI was not
satisfied therewith and sought to withdraw the sam~'./ [459-D-E-F)
H
SASITHOMASv. STATE 453
1.3. The investigating officer and particularly CB-CID should have made A
a thorough investigation. If the allegations made by the complainant are
correct, the same depicts a sordid state of affairs. [459-F-G)

1.4. The job of the investigating officer is to make investigation in right
direction. The investigation must be in consonance with the ingredients of
the offence. It cannot be haphazard or unmethodical. (459-G-H) B
MC v. Bulgaria, 15 BHRC 627, referred to.

2.1. The powers of this Court both under Articles 32 and 142 of the
Constitution of India are plenary in nature. The High Court or this Court in
exercise of the said power is entitled to reach injustice wherever it is found. C
But, it is not a case where cognizance had not been taken. It is not even a
case where a direction under Sub-section (8) of Section 173 of the Code of
Criminal Procedure can be issued at this stage. It is also not a case to interfere
with the trial of the case. [461-F-G)

Paramjit Kaur (Mrs.) v. State of Punjab and Ors., (1996) 7 SCC 20; D
Gudalure MJ. Cherian and Ors. v. Union of India and Ors., (1992) J SCC
397; Ramesh Kumari v. State (NCT ofDelhi) and Ors., [2006) 2 SCC 677 and
Shashikant v. CB.I. & Ors., (2006) 11 SCALE 272, relied on.
<!;·

Amar Chand Agarwala v. Shanti Bose and Anr., AIR (1973) SC 799; E
Rajesh and Ors. v. Ramdeo and Ors., (2001) 10 SCC 759 and Hasanbhai
Valibhai Qureshi v. State ofGujarat and Ors., (2004) 5 SCC 347, referred to.

2.2. Trial Court is not powerless. It, if a case is made out, can exercise
its discretionary jurisdiction under Section 311 of the Code of Criminal
Procedure as also Section 391 thereof. In the event of open marshalling of F
the evidence, it comes to the opinion that a case has been made out for
alteration of charge, it indisputably can do so in exercise of its power under
Section 311 of the Code of Criminal Procedure. In a given case again it can
consider the question from the viewpoint of the complainant as regards the
existence of circumstances which point out to the guilt of Respondent No. 4-
husband. [464-E-F-G) G
Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors., (2004]
4 SCC 158; Rajiv Ranjan Singh 'La/an' (VIII) and Anr. v. Union of India and
Ors., [2006) 6 SCC 613 and Union of India v. Sushi/ Kumar Modi, [1998) 8
sec 661, relied on. H
454 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A 3.1. It is a fit case where the complainant should be permitted to engage
a lawyer on his behalf who would assist the public prosecutor. It is placed on
record that the Counsel for the State assured this Court that the same shall
not be objected to. In the event the State is of the opinion that the prosecution
should be conducted by a public prosecutor of repute and having sufficient
B experience, it would not hesitate to appoint one. (464-G-H)

3.2. Trial Judge is directed if any occasion arises therefor, to exercise
his power under Section 311 of the Code of Criminal Procedure upon
considering the facts and circumstances of this case. [465-B)

C 3.3. Although it is not beyond the jurisdiction of this Court to direct
further investigation by the CBI as contradistinguished from reinvestigation
at this stage, but the same is declined, keeping in view the fact that 47
witnesses including the appellant himself have already been examined and
recourse thereto can be taken if during trial a case therefor is found to be
have been made out (465-B-C)
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1211 of
2006.

From the Judgement and Order dated 23-1-2006 of the High Court of
Judicature at Madras in Cr!. Original Petition No.1764 of 2006.
E
V.J. Francis, A. Radhakrishnan, Anupam Mishra and Ritu Bhardwaj for
the Appellant.

A. Sharan, V.G. Pragasam, S. vallinayagam, Dayan krishnan, Gautam
Naryan, Nikhil Nayyar, K.V. Viswanathan, B. Raghunath, R. Nedumaran, Tufail
F A.Khan and P. Parmeswaran for the Respondents.

The Judgment of- the Court was delivered by

S.B. SINHA, J. Leave granted.

G One Achamma (deceased) was married with Jose Paul Respondent No.
4 herein. After their marriage, they went to USA. Jose Paul was a Vice-
President in a reputed bank in USA. The deceased was a nurse. They obtained
naturalized citizenship in USA. Allegedly, the couple was not leaving a happy
married life. Respondent No. '4 developed intimacy with one divorcee, viz.,
Lissy P.C. The deceased thereafter came back to India with her children on
H five years visa. She purchased a house in the year 1994. In 1996, Respondent
.. SASI THOMAS v. STATE [S.B. SINHA, J.] 455
No. 4 also came back to India. Appellant is her younger brother. She died on A
24.01.1998. She was stated to have died of heart failure. Respondent No. 5
gave a certificate to that effect. The appellant made complaints to various
authorities whereupon the body was exhumed on 22.04.1998. Thereupon only
a post mortem was conducted. A final opinion was given on 18.06.1998
stating that she died of Organo Phosphorous Insecticide poisoning. No B
injuries on her person could have been found as mentioned in the report. The
appellant contended that the dead body had injuries.

One Shri Durairaj, Inspector of Police who investigated into the matter
issued a final form stating that the deceased could have committed suicide.

A writ petition came to be filed by the appellant herein praying that C
further investigation in terms of Sub-section (8) of Section 173 of the Code
of Criminal Procedure should be directed to be ca~ried out by the Central
Bureau of Investigation (CBI). By an order dated 14.07.2000, further
investigation was directed to be done by CB-CID. They submitted another
final report on 19.11.2002 charging Respondent No. 4 for commission of D
offence of abetment of suicide under Section 306 and Respondent No. 5 for
commission of offence under Section 201 of the Indian Penal Code.

Cognizance of the offence was taken. The trial has already commenced
and it is stated that 47 witnesses have been examined. The appellant filed an
application before the High Court of Madras purported to be under Section E
482 of the Code of Criminal Procedure inter alia praying for further investigation
in the aforementioned case by the CBI. A learned Judge of the said Court
dismissed the said application stating:

"The learned counsel appearing for the petitioner would submit
that some poisonous substance was found in the intestine of the F
deceased as per the post mortem examination. He would further contend
that there are materials already collected by the investigating agency,
which makes out an offence under Section 302 of l.P.C. The first
respondent had conducted the investigation and laid charge sheet for
offences under Sections 306 and 201 of I.P.C. Now, the case is ripe for G
trial after the charges have been framed by the learned Assistant
Sessions Judge, Ooty. The charge can be altered at any time under
Section 216 ofCr.P.C., by the trial court, if it comes to the conclusion
that a different offence is attracted.

Considering the facts and circumstances of the case, this Court H
456 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A finds that further investigation at this distance of time is not
necessitated ... "

The appellant is, thus, before us.

Mr. V.J. Francis, learned counsel appearing on behalf of the appellant,
B would submit that the High Court was not correct to take the said view
without taking into consideration two important developments in the case,
viz. a case from heart attack was made out at an initial stage, whereafter a case
of abetment of suicide was made out, which would go to show as to how the
investigation has been carried out both by the general police or by the CB-
CID in the State of Madras.
c
The learned counsel would contend that there are various circumstances
which would clearly point out that Respondent No. 4 murdered the deceased,
some of which are as under:

i. The death of Smt. Achamma was alleged to be sudden as per the
D version given by the servant of respondent no. 4 to the petitioner.
This proved to be false later on.

ii. The petitioner had asked the respondent no. 4 to keep the dead
body of his sister till the arrival of all her relatives. This request was
turned down by respondent no. 4 and the dead body was ready for
E burial at 2 pm on 25.1.1998.

iii. No post mortem was conducted on the dead body.

iv. Respondent no. 5 informed the petitioner that the cause of death
of the deceased was heart attack and Respondent No. 5 had tried her
F best to revive the body.

v. The deceased was said to be seriously sick from 6.30 p.m. on
24.1.1998, but she was taken to the hospital only at about 12.30 night.
·The body was carried to the hospital at the back of the jeep
accompanied by the Respondent No. 4, one Father Mathew Edakkara,
G another brother of the Respondent No. 4 and one Shri Mathukutty
and Shri Mani. Thereafter the information was conveyed by
Respondent No. 4 about deat.h after about 3 am on 25. l.l 998.

vi. The Respondent No. 4 was alleged to have been found happy after
the death of his wife and he was found drinking happily in front of
H
SASITHOMASv. STATE [S.B. SINHA,J.] 457
the room of the deceased, without letting anybody go in. A
(vii) The children of the deceased had made a complaint to the Judicial
Magistrate that their 'Daddy' was in the habit of beating their mother
(the deceased).

viii. On or about 16.3.1998 an application being made on behalf of the B
two children of the deceased, the Judicial Magistrate, Guda\ur, had
passed an order that the children be kept in the Hostel run by Mr.
Herman. Despite the said specific order, Respondent No. 4 had taken
away the children. No orders were obtained by Respondent No. 4 for
their custody by him.

ix. The final report given by the Police Surgeon and Professor of
c
Forensic Medicine of Coimbatore, Medical College, had reported that
the deceased had died of Organo Prosperous Insecticide Poisoning.

x. On the basis of the said report dated 18-06-1998 the police had
converted the whole incident from heart attack to one of suicide by D
the deceased herself by consuming poison. This was neither the case
of Respondent No. 4 nor Respondent No. 5/Doctor, who had attended
on her when the body was taken to the Pushpagiri Medical Hospital,
where Respondent No. 5 was there.

xi. If the incident of consuming poison by the deceased as based on E
the report submitted by the post mortem doctor on 18.6.1998 there was
no reason as to why such a report was not submitted by the police
till 2002.

xii. One of the persons who accompanied the body (of the person who
had committed suicide or had heart attack) is cine Father Mathew F
Edakkara, Principal of Morning Star School. It is on record that the
said priest was given a Maruti car by Respondent No. 4, as he had
helped the family, and also to buy property.

xiii. Driver Shri Mani who had taken the deceased to Hospital, stated
that he had brought the poison, and kept in the store room. G
xiv. The Respondent No. 4 had suddenly gone to the United States
to settle the Insurance Claim and get the benefits.

Our attention has been drawn to the counter-affidavit filed by
Respondent No. I herein which is to the foltowing effect: H
458 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A "5. That there is no evidence to prove that it was a case of murder.
The petitioner has listed out fourteen points in paragraph No. 5 to
create suspicion against Jose Paul in respect of the death of Achamma.
Certainly they are material circumstances to prove that Jose Paul
was behind the death of his wife Achamma. These facts would support
the case of the prosecution that Jose Paul committed cruelty as a
B result of which his wife achamma could have committed suicide. But
these fourteen points are not sufficient to prove a theory that Jose
Paul murdered his wife Achamma, as suspected by the petitioner."

Mr: R. Sundaravaradan, learned senior counsel appearing on behalf of
C the State, on the other hand, would contend that this Court should not
exercise its discretionary jurisdiction to direct further investigation a! this
stage in the matter as the same would amount to a re-investigation.

Mr. K.V. Vishwanathan, learned counsel appearing on behalf of
Respondent No. 4, would submit that if sufficient evidences are brought on
D record, the Trial Judge could alter the charge in exercise of its jurisdiction
under Section 216 of the Code of Criminal Procedure.

Mr. Dayan Krishnan, learned counsel appearing on behalf of Respondent
No. 5, submitted that the question of directing a further investigation as
against Respondent No. 5 does not arise as he has been charged only under
E Section 20 l of the Indian Penal Code.

Before us, a counter-affidavit has been filed on behalf of the CBI. In its
counter-affidavit the CBI has supported the impugned judgment.

. Mr. A. Sharan, learned Additional Solicitor General, however, would
F contend that the same may be treated to be withdrawn and in the event, this
Court forms an opinion that a case has been made out for further investigation,
the CBI would take up the same.

The learned Additional Solicitor General urged that unfortunately it is
possible that adequate materials had not been collected during investigation
G and in the event. it is found that the investigating officers have failed to
·perform their statutory duties, this Court may issue appropriate direction in
exercise of its jurisdiction under Article 142 of the Constitution of India.

Proper and fair investigation on the part of the investigating officer is
H the backbone of rule of law. A proper and effective investigation into a
SASI THOMAS v. STATE [S.B. SINHA, J.] 459
serious offence and particularly in a case where there is no direct evidence A
assumes great significance as collection of adequate materials to prove the
circumstantial evidence becomes essential. Unfortunately, the appellant has
not been treated fairly. When a death has occurred in a suspicious circumstance
and in particular when an attempt had been made to bury the dead body
hurriedly and upon obtaining apparently an incorrect medical certificate, it
was expected that upon exhumation of the body, the investigating authorities B
of the State shall carry out their statutory duties fairly. The appellant alleges
that no fair investigation has been conducted. It is clearly a matter of great
concern that the authorities did not become alive to the situation. Although
the dead body was buried on the premise that she died of heart attach, a final
report was submitted stating that she might have committed a suicide. We do C
not know on what material, such an opinion was arrived at by the investigating
officer. It is only because of the persistent efforts on the part of the appellant
to move the High Court, a further investigation was directed to be made by
(
CB-CID. Another final report was submitted that Respondent Nos. 4 and 5
have committed the offence under Sections 302 and 201 respectively.
D
While doing so, it is not known, whether fourteen circumstances
enumerated by the appellant herein had been duly taken note of and
investigation in this behalf had been carried out. Although the CBI in its
counter-affidavit has supported the impugned judgment of the High Court but
as noticed hereinbefore, it without looking into the documents opined that E
although the said circumstances are relevant but they themselves had not
proved commission of offence of murder of the deceased by Respondent No.
4 herein. We regret to state that it was not expected of the CBI to file such
an affidavit. Even the learned Additional Solicitor General appearing on behalf
of the CBI was not satisfied therewith and as indicated hereinbefore sought
to withdraw the same. F
The investigating officer and particularly CB-CID should have made a
thorough investigation. If the allegations made by the appellant are correct,
the same depicts a sordid state of affairs.

The job of the investigating officer is to make investigation in right G
direction. The investigation must be inconsonance with the ingredients of the
offence. It cannot be haphazard or unmethodical.

We may notice that in MC v. Bulgaria [15 BHRC 627], where the
investigation was carried out in a case of rape of minor by two boys as to
H
460 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A find out as to whether she was subjected to sexual intercourse upon applying
a force in contradistinction "with her consent". The European Court of Human
Rights referring to Article 3 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, I 950 opined that the general approach
should be :

B (a) the existence of a positive obligation to punish rape and to
investigate in rape cases.

(b) the modem conception of the elements of rape and its impact on
the substance of member states' positive obligation to provide
adequate protection.
c (c) the court's task.

·As regards application of the court's approach, it opined:

"I 80. Furthermore, it appears that the prosecutors did not exclude the
possibility that the applicant might have not consented, but adopted
D the view that in any event, in the absence of proof of resistance, it
could not be concluded that the perpetrators had understood that the
applicant had not consented (see the text of the prosecutors' decisions
in paras 64 and 65, above). The prosecutors forwent the possibility
of proving the perpetrators' mens rea by assessing all the surrounding
circumstances, such as evidence that they had deliberately misled the
E
applicant in order to take her to a deserted area,. thus creating an
environment of coercion, and also by judging the credibility of the
versions of the facts proposed by the three men and witnesses called
by them (see paras 2 I, 63 and 66-68, above).

F 186. As regards the government's argument that the national legal
system provided for the possibility of a civil action for damages
against the perpetrators, the court notes that this assertion has not
been substantiated. In any event, as stated above, effective protection
against rape and sexual abuse requires measures of a criminal law
nature (see paras 124 and 148-153, above).
G
187. The court thus finds that in the present case there has been a
violation of the respondent state's positive obligations under both
arts 3 and 8 of the convention. It also holds that no separate issue
arises under art I 3 of the convention."

H It was further found that there has been a violation of Articles 14 and
SASITHOMASv. STATE [S.B. SINHA,J.] 461

41 of the Convention and on that ground granted damage of 8000 euros to A
the prosecutrix besides costs and expenses.

Indisputably, in a given case, this Court can direct an investigation by
the CBI. [See Paramjit Kaur (Mrs.) v. State of Punjab and Others, (I 996) 7
SCC20]
B
In Gudalure MJ. Cherian and Others v. Union of India and Others
[1992] I SCC 397, this Court held:

"8. It is obvious from the affidavit of the Senior Superintendent, Police
that the nuns who are victims of the tragedy are not coming forward
to identify the culprits in an identification parade to be held by the C
Magistrate. The petitioners on the other hand, have alleged that the
four persons who have been set up as accused by the police are not
the real culprits and the police is asking the sisters to accept the four
arrested persons as culprits. In the face of these averments and
keeping in view the facts and circumstances of this case, we are of D
the view that ends of justice would be met if we direct the CBI to hold
further investigation in respect of the offences committed between the
night of July 12 and 13, 1990 as per the FIR lodged at Police Station,
Gajraula."

Yet recently, in Ramesh Kumari v. State (NCT ofDelhi) and Ors., [2006] E
2 SCC 677, this Court directed the CBI to register a case and investigate the
complaint filed by the appellant therein in September, 1997. [See also
Shashikant v. CB.I. & Others (2006)11 SCALE 272]

The powers of this Court both under Articles 32 and 142 of the
Constitution of India are plenary in nature. F
The High Court or this Court in exercise of the said power is entitled
to reach injustice wherever it is found. But, it is not a case where cognizance
had not been taken. It is not even a case where a direction under Sub-section
(8) of Section 173 of the-Code of Criminal Procedure can be issued at this
stage. It is also not a case, in our opinion, to interfere with the trial of the G
case.

Reliance has been placed by Mr. Sundaravaradan on Amar Chand
Agarwala v. Shanti Bose and Anr., [AIR (1973) SC 799], wherein for quashing
the charges at a preliminary stage, the High Court was found to have relied H
462 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. ....
A on oral and documentary evidences adduced on behalf of the complainant in
presence of accused. The said decision, although in our opinion, cannot be
said to have any direct application in the instant case but signifies the
justifiability or otherwise of exercise of the jurisdiction of this Court at this
stage.

B We may furthennore notice that a Division Bench of this Court in Rajesh
and Ors. v. Ramdeo and Ors., [2001] 10 SCC 759, refused to direct a fresh and
further investigation opining:

" .... Since the investigation agency has already filed the charge-sheet
on the basis of which the accused persons are being proceeded
c against, if any further materials are available, the Court may alter the
charge framed. In the circumstances, we have no hesitation to come
to the conclusion that the High Court has overstepped its jurisdiction
in issuing the impugned direction calling upon further investigation
into the matter, which in .our considered opinion, would be an abuse
D of the process of the court... .. "

This decision albeit is not supported by any reason. It has not taken
into consideration the binding precedents as was urged by the learned
Additional Solicitor General. But, as at present advised, we do not intend to
take a contrary view.
E
We may, however, note that in Hasanbhai Valibhai Qureshi v. State of
Gujarat and Others [2004] 5 SCC 347, a Division Bench of this Court stated
the law, thus:

"10. Therefore, if during trial the trial court on a consideration of
F broad probabilities of the case based upon total effect of the evidence
and documents produced is satisfied that any addition or alteration
of the charge is necessary, it is free to do so, and there can be no legal
bar to appropriately act as the exigencies of the case warrant or
necessitate.

G 11. Coming to the question whether a further investigation is warranted,
the hands of the investigating agency or the court should not be tied
down on the ground that further investigation may delay the trial, as
the ultimate object is to arrive at the truth."

As such an option is maintainable, we have no doubt that the learned
H
SAS! THOMAS v. STATE [S.B. SINHA, J.] 463
Judge if any occasion arises, may take recourse thereto. A
We may furthermore notice that this Court in· Zahira Habibulla H.
Sheikh and Another v. State ofGujarat and Others [2004] 4 SCC 158, opined:

"18. According to the appellant Zahira there was no fair trial and the
entire effort during trial and at all relevant times before also was to B
see that the accused persons got acquitted. When the investigating
agency helps the accused, the witnesses are threatened to depose
falsely and the prosecutor acts in a manner as if he was defending the
accused, and the court was acting merely as an onlooker and when
there is no fair trial at all, justice becomes the victim.
c
54. Though justice is depicted to be blindfolded, as popularly said, it
is only a veil not to see who the party before it is while pronouncing
judgment on the cause brought before it by enforcing Jaw and
administer justice and not to ignore or tum the mind/attention of the
court away from the truth of the cause or lis before it, in disregard of
its duty to prevent miscarriage of justice. When an ordinary citizen D
makes a grievance against the mighty administration, any indifference,
inaction or lethargy shown in protecting his right guaranteed in Jaw
will tend to paralyse by such inac!ion or lethargic action of courts and
erode in stages the faith inbuilt in the judicial system ultimately
destroying the very justice-delivery system of the country itself. Doing E
justice is the paramount consideration· and that duty cannot be
abdicated or diluted and diverted by manipulative red herrings.

55. The courts, at the expense of repetition we may state, exist for
doing justice to the persons who are affected. The trial/first appellate
courts cannot get swayed by abstract technicalities and close their F
eyes to factors which need to be positively probed and noticed. The
court is not merely to act as a tape recorder recording evidence,
overlooking the object of trial i.e. to get at the truth. It cannot be
oblivious to the active role to be played for which there is not only
ample scope, but sufficient powers conferred under the Code. It has
a greater duty and responsibility i.e. to render justice, in a case where G
the role of the prosecuting agency itself is put in issue and is said
to be hand in glove with the accused, parading a mock fight and
making a mockery of the criminal justice administration itself."

Such a direction, thus, can be issued where there had been complete H
464 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A failure of justice and in a case where the investigating and prosecuting
agencies were found to have not performed their role in the manner it was
expected to do.

The question has again been considered by this Court in Rajiv Ranjan
Singh 'La/an' (VIII) and Another v. Union of India and Others [2006] 6 SCC
B 613, wherein referring to Union of India V. Sushi/ Kumar Modi [1998] 8 sec
661, this Court opined:

" ... It is thus clear from the above judgment that once a charge-sheet
is filed in the competent court after completion of the investigation,
the process of monitoring by this Court for the purpose of making CBI
c and other investigative agencies concerned perform their function of
investigating into the offences concerned comes to an end and
thereafter, it is only the court in which the charge-sheet is filed which
is to deal with all matters relating to the trial of the accused including
matters falling within the scope of Section 173(8).
D 38. We respectfully agree with the above view expressed by this
Court. In our view, monitoring of the pending trial is subversion of
criminal law as it stands to mean that the court behind the back of the
accused is entering into a d_ialogue with the investigating agency.
Therefore, there can be no monitoring after the charge-sheet is filed."
E The decisions referred to hereinbefore clearly show that the Trial Court
even is not powerless. It, if a case is made out, can exercise its discretionary
jurisdiction under Section 311 of the Code of Criminal Procedure as also
Section 391 thereof. In the event of open marshalling of the evidence, it comes
to the opinion that a case has been made out for alteration of charge, it
F indisputably can do so in exercise of its power under Section 311 of the Code
of Criminal Procedure. In a given case again it can consider the question from
the viewpoint of the appellant herein as regards the existence of circumstances
which point out to the guilt of the Respondent No. 4 .

.We are also of the opinion that it is a fit case where the appellant should
G be permitted to engage a lawyer on his behalf who would assist the public
prosecutor. We place on record that the learned Counsel for the State assured
us that the same shall not be objected to. We hope and trust that in the event
the State is of the opinion that the prosecution should be conducted by a
public prosecutor of repute and having sufficient experience, it would not
H hesitate to appoint one.
SASITHOMASv. STATE [S.B. SINHA,J.] 465
We would also direct the learned Trial Judge if any occasion arises A
therefor, to exercise his power under Section 311 of the Code of Criminal
Procedure upon considering the facts and circumstances of this case.

We may reiterate that although it is not beyond the jurisdiction of this
Court to direct further investigation by the CBI as contradistinguished from
reinvestigation at this stage, but we decline to do so keeping in view the fact B
that 47 witnesses including the appellant himself have already been examined
and recourse thereto can be taken if du:ring trial a case therefor is found to
be have been made out.

This appeal is disposed of with the aforementioned directions.
c
S.K.S. Appeal disposed of.

-