State vs Samson D''Souza and Placido Carvalho

N.A. Britto, J.—In this petition, filed u/s 482 of the Code (Code of Criminal Procedure, 1973), the CBI has taken exception to Order dated 1-9-2008 of the learned Children''s Court, dismissing their application for keeping in abeyance further proceedings in Special Case No. 15/2008. Both the accused, the Respondents herein, presently are on bail. They appear to have been in custody at the time of passing the impugned Order. The case of death of victim on 18-2-2008, earlier registered as a case of unnatural death, appears to have been converted as homicidal death by F.I.R. No.21/2008 of Anjuna Police Station, and, that was done on 9-3-2008, and subsequently charge-sheet was submitted against both the accused on 31-5-2008 under Sections 302, 376, 328, 201, 109 I.P.C. and Sections 8(1) and (2) of the Goa Children''s Act, 2003.

The charge-sheet against both the accused was filed before the Children''s Court on 31-5-2008 and the learned Children''s Court was pleased to take cognizance of the offences on 2-6-2008, and accordingly the accused were summoned. As the case had attracted considerable media attention both at National as well as at International level, and as the mother of the victim was requesting that the investigations be carried out by the CBI, and with a view to have free and fair investigation, the case was entrusted by the State to the CBI on 5-6-2008, and there is no dispute that further investigations are being conducted in terms of Section 173 of the Code(Code of Criminal Procedure, 1973).

The learned Children''s Court noted that the Children''s Court had already taken cognizance of the offence on 2-6-2008 on the basis of final report submitted by Anjuna Police Station, and as such was bound to proceed with the case in accordance with law, and as such there was no question of keeping the proceedings in abeyance.

Shri C. A. Ferreira, learned Special Public Prosecutor, has submitted that the case is under further investigation by the CBI and a supplementary charge-sheet is likely to be filed, and, therefore initially the CBI be given about four months to enable the CBI to file supplementary charge-sheet and then the trial could start against the accused. In support of his submission, Shri Ferreira has placed reliance on two decisions of the Apex Court in the case of Ramachandran Vs. R. Udhayakumar and Others, and Hasanbhai Valibhai Qureshi v. State of Gujarat( 2004 DGL(Soft) 225).

On the other hand, Shri Ryan Menezes, learned Counsel on behalf of Respondent No.1 has submitted that although the impugned Order was passed on 1-9-2008 the CBI approached this Court only on 9-12-2009 and thereafter took another two months to clear office objections. Shri Menezes has further submitted that the case came to be registered upon a complaint of the mother of the victim whose supplementary statement was thereafter recorded by another investigating officer to whom the case was entrusted. He further submits that in case the trial is delayed, the right of the accused for a speedy trial would be affected.

Shri J. P. D''Souza, learned Counsel on behalf of Respondent No. 2 has also submitted that the CBI had not made out a case to keep the trial in abeyance and they had sufficient time to file supplementary charge-sheet in case they were willing to do the same after further investigations.

None dispute that after the filing of the charge-sheet by Anjuna Police Station and after entrustment of the investigations to the CBI what the CBI is really doing is carrying out further investigations in the case as provided by Section 173 of the Code.

The Apex Court in the case of Ramchandran v. R. Udhayakumar and others(supra) has stated that in an application u/s 482 of the Code, the Court cannot direct the re-investigation of the case u/s 173 of the Code. The Apex Court referred to the meaning of "further"(when used as an adjective) as "additional; more; supplemental", and, therefore held that further investigations is the continuation of the earlier investigations and not fresh investigations or re-investigation to be started ab initio wiping out earlier investigations altogether. The Apex Court noted, in coming to that conclusion, that they had taken inspiration from sub-section(8) of Section 173 which clearly envisaged that on completion of further investigation, the investigating agency has to forward to the Magistrate a further report or reports and not fresh report or reports.

The Apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat(supra) referred to the case of Ram Lal Narang Vs. State (Delhi Administration), and observed that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during the course of trial, it may be cured by further investigation, if circumstances so permit, and it would ordinarily be desirable and all the more so in that case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during the course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. If, there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.

As already stated, further investigations have been taken by the CBI on 5-6-2008 and that is over a year now. It cannot be denied that the CBI has many cases in hand which are required to be investigated. They would require some time to carry further investigation and the learned Children''s Court ought to have given some time, denial of which may be counter productive. Considering the facts of the case, in my view, additional time of three months can be given to the CBI to complete their further investigations. That may save time rather than waste any, in case after the commencement of trial, witnesses are to be re-called, as a result of further investigations and which is bound to cause inconvenience to all. However, this time is being granted to the CBI with a clear understanding that the trial of the case will have to proceed further, whether they file a supplementary charge-sheet or not. It is high time the CBI put its acts together, the sooner the better, and completes further investigation.

With the above observations, the petition partly succeeds and the trial against the accused shall be kept in abeyance for a period of three months from today. That would have given the CBI more than fifteen months to submit supplementary report in case they so desire. It is made clear that no further extension will be granted. With the above observations, petition disposed of.