ISSUE 3: WHETHER THE SUPREME COURT IS EMPOWERED TO ORDER RE-

INVESTIGATION OF THE INSTANT CASE?

It is humbly submitted that the hon’ble Apex Court is duly empowered to order re-
investigation of the instant case and to that extent petitioner seeks to establish that; (A) the
investigation has already been completed by Special Agency, (B) Re-investigation will lead
to double vexation for the accused, (C) No new or any substantial fact has been elucidated in
the instant case.

(A) The investigation has already been completed by Special Agency

It is humbly contended that as succinctly summarised by this Court in Committee for

Protection of Democratic Right,1 the extra ordinary power of the Constitutional Courts in
directing the CBI to conduct investigation in a case must be exercised sparingly, cautiously
and in exceptional situations, when it is necessary to provide credibility and instill confidence
in investigation or where the incident may have national or international ramifications or
where such an order may be necessary for doing complete justice and for enforcing the
fundamental rights.2 In casu, as the CBI investigation has already been completed and found
that there is no co-relation between the children’s death and sexual abuse of these children3
which means there is no need for any further investigation or re-investigation.

Furthermore, the Supreme Court observed that the constitutional courts should exercise this
power carefully. This kind of extraordinary power cannot be exercised routinely. This is what
the Court observed on this issue: “Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution,
while passing any order, the Courts must bear in mind certain self-imposed limitations on the
exercise of these Constitutional powers. The very plenitude of the power under the said
Articles requires great caution in its exercise. Also, the court must disregard this petition as
the matter is already settled out and to reduce increasing pendency of cases, court must
restrict such publicity interest litigation.4

In so far as the question of issuing a direction to the CBI to conduct investigation in a case is
concerned, although no inflexible guidelines can be laid down to decide whether or not such
power should be exercised but time and again it has been reiterated that such an order is not

1
Committee for Protection of Democratic Right
2
Pooja Pal vs. Union of India (UOI) and Ors. (22.01.2016 - SC) : MANU/SC/0071/2016
3
Moot Proposition, Para 4
4
Secretary, Govt. of India v. Alka Shubhash Gadia, (1990) SCR Supl. 3 583.
to be passed as a matter of routine or merely because a party has levelled some allegations
against the local police. This extra-ordinary power must be exercised sparingly, cautiously
and in exceptional situations where it becomes necessary to provide credibility and instil
confidence in investigations or where the incident may have national and international
ramifications or where such an order may be necessary for doing complete justice and
enforcing the fundamental rights. Otherwise, the CBI would be flooded with a large number
of cases and with limited resources, may find it difficult to properly investigate even serious
cases and in the process lose its credibility and purpose with unsatisfactory investigations.”

Also, it is needless to say, the writ courts should exercise this power carefully as the CBI has
limited manpower and resources. The CBI probe cannot be directed routinely. In many cases,
the Supreme Court has overruled the decisions of the High Court pertaining to the CBI probe
in different cases. It is submitted that, per curiam Sachidanand Pandey v. State of West
Bengal,5 courts must restrict free flow of case under attractive name of PIL. In the instant
case, there was no violation of fundamental rights by the action of any state authority rather
the state has acted as per the law but nothing material has been elicted.6

(B) Re-investigation will lead to double vexation for the accused

In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram
Arya and Anr.,7 this Court had said that an order directing an enquiry by the CBI should be
passed only when the High Court, after considering the material on record, comes to a
conclusion that such material does disclose a prima facie case calling for an investigation by
the CBI or any other similar agency. In the cases of a defective or faulty investigation, the
court has to be observant in evaluating the evidence and may have to adopt an active and
analytical role to ensure that truth is found by having recourse to Sec. 311 of Cr.P.C 8 or at a
later stage also restoring to Sec. 391 of Cr.P.C,9 instead of giving baseless decisions.

The expression ordinarily means normally and it is used where there can be an exception. It
means in the large majority of cases but not invariably. "Ordinarily" excludes "extra-
ordinary" or "special circumstances".10 Thus, it is evident that in exceptional circumstances,

5
Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295.
6
Moot Proposition, para 4
7
In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr.
(2002) 5 SCC 521
8
Sec 311 CrPC
9
Sec 391 Crpc
10
Kailash Chandra v. Union of India, AIR 1961 SC 1346; Eicher Tractors Ltd., Haryana v. Commissioner of
Customs, Bombay AIR 2001 SC 196 and State of A.P. v. Sarma Rao and Ors., AIR 2007 SC 137
the court in order to prevent the miscarriage of criminal justice, if considers necessary, it may
direct for investigation de novo wherein the case presents exceptional circumstances 11 but all
the procedure has been duly adhered by the CBI 12 and mere allegation of the petitioners will
not vitiated the authenticity of the investigation report.

According to Oxford Dictionary, “Investigation”13 means an official examination of facts

about a situation, crime etc. A scientific or academic examination of the fats of the subject or
problem. Re-investigation is a process of investigation denovo and CrPC is silent in relation
to the process of re-investigation. Re-investigation without permission is prohibited but
further investigation is permissible. The re-investigation wipes out the investigation done
earlier. Normally, the High Court or Supreme Court as a principle, reserves the right for
ordering “a fresh investigation”, when it is of the view that the investigation was flawed. 
Holding that the two organs of the state, police and judiciary operate in their specific spheres
of activities and one should not tread over the other's domain, the Supreme Court on Tuesday
deprecated the practice of courts interfering in police investigations by passing orders
routinely to stay probe or grant protection to the accused.

(C) No new or any substantial fact has been elucidated in the instant case

It said extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction
to act according to its whims or caprice and the courts should be cautious while interfering in
criminal investigations. The bench said courts should not go into the merits of the allegations
in the FIR when the investigation is in progress and police must be permitted to complete the
probe. "It would be premature to pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of
law," the bench said and added that the FIR is not an encyclopaedia which must disclose all
facts and details relating to the offence.

It is only the higher Court which, in exercise of constitutional power, can order for
reinvestigation in exceptional and rare cases.14 The Apex Court15 held as “no investigating
agency is empowered to conduct a ‘fresh’, ‘de novo’ or ‘re-investigation’ in relation to the
offence for which it has already filed a report in terms of Section 173(2) of the Code.16

11
Babubhai and Ors. vs. State of Gujarat and Ors. (26.08.2010 - SC): MANU/SC/0643/2010
12
Moot Proposition, Para 4
13
Oxford Dictionary: Investigation
14
Mitha Bhai Passa Bhai Patel Vs. State of Gujrat (Manu SC 0858/ 2009).
15
Mitha Bhai Passa Bhai Patel Vs. State of Gujrat (Manu SC 0858/ 2009
16
Vinya Tyagi (supra)
What Section 173(8) permits is a further investigation and not a re-investigation. What is,
however, extremely important to bear in mind is that a reinvestigation being prohibited by
law, it would not, ordinarily be ordered by a superior court. 17 It, thus, becomes clear that a
‘reinvestigation’ would be ordered in the situations, which are extra-ordinary, rare and cannot
be met by a further investigation.18” Whereas a reinvestigation is a fresh investigation
conducted by a different agency, which culminates in submission of a fresh report as
envisaged under Section 173(2) CrPC.

The power of the constitutional courts to direct further investigation or reinvestigation is a

dynamic component of its jurisdiction to exercise judicial review, a basic feature of the
Constitution and though has to be exercised with due care and caution and informed with
self-imposed restraint, the plenitude and content thereof can neither be enervated nor
moderated by any legislation.19 Not entrusting the investigation to the CBI and contended that
the facts and circumstances did not convincibly demonstrate any flaw in the investigation
undertaken by the state police or the CBCID.20

In State of M.P. v. Bhooraji and Ors.,21 that a de novo trial should be the last resort and that
too only when such a course becomes desperately indispensable and should be limited to the
extreme exigency to avert a failure of justice. A de novo trial should be the last resort and that
too only when such a course becomes so desperately indispensable. It should be limited to the
extreme exigency to avert "a failure of justice". Any omission or even the illegality in the
procedure which does not affect the core of the case is not a ground for ordering a de novo
trial. This is because the appellate court has plenary powers for re-evaluating or re-appraising
the evidence and even to take additional evidence by the appellate court itself or to direct
such additional evidence to be collected by the trial court. But to reply the whole laborious
exercise after erasing the bulky records relating to the earlier proceedings, by bringing down
all the persons to the Court once again for repeating the whole depositions would be a sheer
waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the
said course can be resorted to when it becomes unpreventable for the purpose of averting "a
failure of justice". The Superior Court which orders a de novo trial cannot afford to overlook

17
A.S. peter (supra)
18
A.S. peter (supra)
19
Pooja Pal vs. Union of India (UOI) and Ors. (22.01.2016 - SC) : MANU/SC/0071/2016
20
Committee for Protection of Democratic Rights (supra), K. Saravanan Karuppasamy and Anr. v. State of
Tamil Nadu and Ors. MANU/SC/0813/2014 : (2014) (10) SCC 406, Sudipta Lenka v. State of Odisha and Ors.
MANU/SC/0196/2014 : (2014) 11 SCC 527.
21
State of M.P. v. Bhooraji and Ors., (2001) 7 SCC 679
the realities and the serious impact on the pending cases in trial courts which are crammed
with dockets, and how much that order would inflict hardship on many innocent persons who
once took all the troubles to each the Court and deposed their versions in the very same case.
To them and the public, the re-enactment of the whole labour might give the impression that
law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting
sufferings on the people but for the process of justice dispensation.22

"We often hear about 'failure or justice' and quite often the submission in a criminal court is
accentuated with the said expression. Perhaps it is too pliable or facile an expression which
could be fitted in any situation of a case.23 The expression 'failure or justice' would appear,
sometimes, as an etymological chameleon where the simile is borrowed from Lord Diplock in
Town Investments Ltd. v. Deptt. of the Environment,24 the criminal court, particularly the
superior court should make a close examination to ascertain whether there was really a failure
of justice or whether it is only a camouflage.

Reinvestigation of a criminal case could not be ordered merely because the complainant party
was discontented with the closure report filed by the investigating agency. The dissatisfaction
of the complainant party qua the cancellation report is a normal instinct and that criteria alone
cannot form the basis for ordering further investigation. Justice, rendered to the accused after
unreasonable delay, does not have any sense. It is shameful to deliver delayed justice to the
accused on the part of the judiciary.25 The dictum “Justice delayed is justice denied is one of
the important principles of natural justice. A case must be decided by a court promptly and
speedily. An accused charged with an offence has the right to get verdict of a court as soon as
possible. The court must release him from the court proceedings either convicted or acquittal.
He should not be kept busy around the court for many years. 26 This will hamper the valuable
time of court as well as of accused.27

The jurisprudential concept of fair, just and reasonable procedure implicit in Article 21 of the
Constitution and it creates a right in the accused to be tried speedily. Right to speedy trail is a
concept which deals with disposal of cases as soon as possible so as to make the Judiciary
more efficient and trustworthy. The main aim of right to speedy trial is to inculcate justice in

22
State of Madhya Pradesh vs. Bhooraji and Ors. (24.08.2001 - SC) : MANU/SC/0481/2001
23
Shamnsaheb M. Multtani vs : . State of Karanataka (2001) 2 SCC 577
24
Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813
25
See Judge James Pickles, Straight from Bench (Melbourne: Phoenix House, 1987) Chapter V.
26
Upendra Baxi, “Right to Speedy Trial, Geese, Gander and Judicial Sauce, (State of Maharashtra v.
Champalal)”
27
Babubhai Bhimabhai v. State of Gujarat, AIR 2013 SC 3648 (3653).
the society.28 As a general principle, it can be stated that error, illegality or defect in
investigation cannot have any impact unless miscarriage of justice is brought about or serious
prejudice is caused to the accused. 29 Yet if the court is convinced that the evidence of
eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case
is suspicious.30 Mere defective investigation cannot vitiate the trial.31

Hence it must be declared that all the investigation has been completed by the CBI and
nothing material was elicited so, this hon’ble apex court must disregard the demand of re-
investigation of the instant case.

28
A.R. Antulay v. R.S. Nayak, (1992) 1 SCC 225: AIR 1992 SC 1701.
29
Union of India vs. Prakash P. Hinduja AIR 2003 SC 2612
30
Abu Thakir, AIR 2010 SC 2119
31
Paramjit Singh vs. State of Punjab AIR 2008 SC 441