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Trial Court Can Treat Application For Further Investigation As Protest Petition, SC Holds

Bench comprising Justice Surya Kant and Justice KV Vishwanathan heard an appeal against order passed by the Judicial Magistrate, which came to be upheld by the Madras High Court vide impugned order

The Supreme Court of India recently held that application for further investigation can be treated as a protest petition by the Trial Court.

Bench comprising Justice Surya Kant and Justice KV Vishwanathan heard an appeal against order passed by the Judicial Magistrate, which came to be upheld by the Madras High Court vide impugned order. 

The application moved by the appellant seeking further investigation under Section 173(8) of the Code of Criminal Procedure, 1973, on the ground that a part of the vital material to substantiate the allegations of commission of offences under Sections 376, 417 and 420 of the Indian Penal Code, 1860 (in short, IPC) was not collected by the Investigating Agency, was turned down by the Trial Magistrate and that order has been affirmed by the High Court.

The Apex Court noted that after investigation, a chargesheet under Sections 354A and 506 of IPC was filed. Instead of filing a Protest Petition against the dropping of certain charges by the Investigating Agency, the appellant was advised to move an application under Section 173(8) of Cr.P.C., in which she averred that there was ample material to establish the performance of marriage between her and respondent no.2 and/or that they had been staying together as husband and wife.

The Court observed that, "We fail to understand what prevented the Magistrate from treating that application purportedly filed under Section 173(8) of Cr.P.C. as a Protest Petition and then decide the same on merits. A technicality like the caption of the application/petition could not be an impediment to consider the substance thereof and then determine whether or not the matter required further investigation so as to find out the prima facie element of offences under Sections 376, 417 and 420 of the IPC. Such a permissible procedural recourse has been unfortunately overlooked by the High Court as well."

The denial of further investigation has led to gross injustice to the appellant, the Court affirmed.

The appeal was allowed by the Court. The Court directed to constitute a Special Investigation Team to be headed by a directly recruited woman IPS Officer along with two officers in the rank of DYSP and Inspector of Police.

If a woman IPS Officer is not available in the State cadre, then any one of the officers in the rank of DYSP or Inspector must necessarily be a woman. The further investigation shall be completed by SIT within three months, the Court ordered.



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