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Hasanbhai Valibhai Qureshi v. State of Gujarat, (SC) : Law Finder Doc Id # 71236
2004(2) RCR(Criminal) 463 : 2004 AIR Supreme Court 2078 : 2004(5) SCC 347 : 2004 CriLJ 2018 : 2004
SCC(Cri) 1603 : 2004 AIR (SCW) 2063 : 2004 AIR Jhar R 1508
SUPREME COURT OF INDIA
Before:- Doraiswamy Raju and Arijit Pasayat, JJ.
Criminal Appeal No. 421 of 2004 (Arising out of SLP (Crl.) No,. 472/2004). D/d. 5.4.2004.
Hasanbhai Valibhai Qureshi - Appellant
Versus
State of Gujarat and Ors. - Respondents
For the Appellant :- Jitendra Malkan, M. Iqbal Sheikh, Ms. Priya Kiran, P. Ramesh Kumar, Ms.
Aparna Bhat, Advocates.
For the Respondents :- V. Madhukar, Saurab Kirpal, Ms. Sadhna Sandhu and Ms. Hemantika Wahi,
Advocates.
IMPORTANT
Report submitted by Police and cognizance taken by court - Police can conduct further
investigation even after the court took cognizance of offence.
A. Criminal Procedure Code, Sections 216, 228 and 240 - Charge sheet - Trial Court can amend or
alter the charge on basis of evidence brought during trial. AIR 1970 Supreme Court 359 relied.
[Para 9]
B. Criminal Procedure Code, Section 173(8) - Further investigation - Report submitted by Police
and cognizance taken by court - Police can conduct further investigation even after the court
took cognizance of offence - It would, however, be desirable that police should inform the
court and seek formal permission to make further investigation when fresh facts come to light.
AIR 1979 Supreme Court 1791 relied.
[Paras 11 and 12]
C. Criminal Procedure Code, Section 173(8) - Further investigation - Police investigating and
submitting charge sheet - Police can make further investigation even if cognizance was taken
by police - Further investigation cannot be refused on the ground that it will delay the trial as
ultimate object is to arrive at the truth.
[Paras 10, 11 and 12]
D. Indian Penal Code, 1860, Section 395 - Criminal Procedure Code, Section 173(8) - Further
investigation - Allegation of defective investigation due to political influence - Police directed
to conduct further investigation despite the fact that charge sheet was submitted and court had
taken cognizance.

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[Paras 11 and 12]

Cases Referred :-
Kantilal Chandulal Mehta v. State of Maharashtra, AIR 1970 Supreme Court 359.
Om Prakash Narang and Anr. v. State (Delhi Admn.), AIR 1979 Supreme Court 1791.
JUDGMENT
Arijit Pasayat, J. - Leave granted.
2. The appellant who is the original complainant in the case relating to FIR No. 134 of 2003 in the
police station, Sub District, Veraval, district Junagadh calls in question legality of the judgment
rendered by a learned Single Judge of the Gujarat High Court, Ahmedabad dismissing the writ
petition filed by the appellant.
3. Main prayer in the writ petition was for issuance of appropriate writ for re-investigation by an
independent agency. The prayer was made alleging that the local police had succumbed to the
pressure exercised by local MLA and the investigation was not carried out in a straight forward
manner. It was alleged that on 23.9.2003 around 12.30 a.m. persons belonging to a particular
community carried deadly weapons and combustible materials and pursuant to the common object
of an unlawful assembly caused destruction of shops belonging to persons of another community, by
breaking them open and setting them ablaze. There was also large scale looting of articles. About 53
persons were arrested. Initially, in the FIR various offences including Sections 395 and 120B of the
Indian Penal Code, 1860 (in short the 'Indian Penal Code') and Section 135 of the Bombay Police Act
were noted and mentioned by the police officials. But strangely after a few hours of the registration
of the FIR wherein the aforesaid offence were mentioned, Sections 395 and 120B were deleted by
the prosecuting agency and because of such deletion the accused persons managed to get bail. The
prayer in the aforesaid circumstances was for investigation by an independent investigating agency.
It was brought to the notice of the High Court that a bare perusal of the statements clearly indicate
the applicability of those provisions and commission of such offences, contrary to what has been
stated by the prosecution agency.
4. The High Court noted that specific allegations were made regarding the biased approach of the
police officials under the influence of local MLA. The petition was resisted on the ground that on
detailed investigation it was noticed that the offences relatable to sections 395 and 120B Indian
Penal Code were not made out and, therefore, were deleted. Such a course is permissible in law.
The High Court was of the view that if further investigation is necessary the remedy is available in
the Code of Criminal Procedure, 1973 (in short the 'Code') and further investigation can be carried
out under the supervision of the trial Court. Moreover, it was held the police was not the ultimate
authority who can decide as to which sections are applicable. Appropriate steps can be taken by the
complainant along with the prosecuting agency before the trial Court. Since such remedy was
available under the Code, the petition under Article 226 of the Constitution of India, 1950 (in short
the 'Constitution') was not entertained.
5. In support of the appeal, learned counsel for the appellant submitted that the role of the
prosecution agency from the beginning is tainted with suspicion and visible leaning in favour of the
accused persons. There was no urgency to seek deletion of sections 395 and 120B Indian Penal Code
without full and complete investigation. It cannot be left to the ipse dixit of the investigating officer.
That the complainant could approach the trial Court is no reason to gloss over partisan approach

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and attitude of the prosecuting agency, which was obliged to act independently and ensure that the
guilty are brought before Court for appropriate offences though it is for the Court ultimately to find
whether they are guilty or not. The High Court has failed to notice that the prosecution agency was
showing unusual interest in protecting the accused persons and, therefore, the scope of the
complainant moving the trial Court along with the prosecuting agency is a remote possibility. The
prosecuting agency in the circumstances cannot be expected to be reasonable or co-operate, fairly
and just in order to effectively enforce and maintain law and order.
6. The respondents supported the judgment of the High Court stating that no infirmity exists in the
view taken by the High Court to warrant interference.
7. By order dated 19.3.2004 direction was given to the Director General of Police, Gujarat to submit
a report as to whether the action taken by the investigating officer was proper and whether there
was need for further investigation. In the report submitted by the Director General of Police, it has
been fairly accepted that the deletion of Section 120B Indian Penal Code does not appear to be
proper. In any event the Court of Additional Sessions Judge of the 10th Fast-track Court at Veraval
has framed charge in Sessions Case No. 64/2003 on 22.3.2004 against three of the accused persons
under Section 120B Indian Penal Code. It has been stated that though retention of Section 120B
Indian Penal Code was desirable, but nothing more is required to be done in view of the fact that
the Sessions Judge has already framed charge under the section. It has been stated that there were
few lapses in investigation and inquiry is being caused against the investigation officer with a view
to initiate suitable departmental action. So far as the desirability of further investigation is
concerned, it is stated that the case has been fixed for day-to-day hearing from 5.4.2004 to 15.4.2004
and if further investigation is done, it would prove infructuous and would only delay process of
trial unnecessarily.
8. Section 228 of the Code of Chapter XVII and Section 240 in Chapter XIX deal with framing of the
charge during trial before a Court of Sessions and trial of Warrant-cases by Magistrates respectively.
There is a scope of alteration of the charge during trial on the basis of materials brought on record.
Section 216 of the Code appearing in Chapter XVII clearly stipulates that any court may alter or add
to any charge at any time before judgment is pronounced. Whenever such alteration or addition is
made the same is to be read out and informed to the accused.
9. In Kantilal Chandulal Mehta v. State of Maharashtra (AIR 1970 Supreme Court 359) it was
held that the Code gives ample power to the Courts to alter or amend a charge whether by the
Trial Court or by the Appellate Court provided that the accused has not to face a charge for a new
offence or is not prejudiced either by keeping him in the dark about the charge or in not giving
him a full opportunity of meeting it and putting forward any defence open to him on the charge
finally preferred against him. Section 217 deals with recall, if necessary of witnesses when the
charge is altered.
Therefore, if during trial the trial Court on a consideration of 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.
10. 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.

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11. Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any
direction from the Courts as such, it is open to the police to conduct proper investigation, even after
the Court took cognizance of any offence on the strength of a police report earlier submitted. All the
more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety
or the manner and nature of investigation already conducted.
12. In Om Prakash Narang and Anr. v. State (Delhi Admn.) (AIR 1979 Supreme Court 1791) it
was observed by this Court that further investigation is not altogether ruled out merely because
cognizance has been taken by the Court. When defective investigation comes to light during course
of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily
be desirable and all the more so in this 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 course of proper investigation is as much relevant, desirable and necessary
as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law 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 trail 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. We make it clear that we have not expressed any final
opinion on the merits of the case.
The appeal is accordingly finally disposed of, on the above terms.
Order accordingly.
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