In our evidence-based adjudication regime the judges of criminal courts often hear from the prosecution the prayer for ordering further investigation after the criminal trial commences while trying criminal litigation. In the present context where credibility and impartiality of the investigating agencies are predominantly questioned, it is naturally sought by the victims of criminal offences for the proper adjudication of their cases. While praying so, they also urge that proper adjudication will not be possible if the existing investigation report is taken into consideration. This matter may be decided in the exercise of judicial discretion of the court. Essentially the prayers for de-novo investigation reveal, inter alia, the following arguments:
Of neutrality of the investigation officer
It is argued that after lodging the FIR or complaint in relation to the allegations of the case, the investigation officer of concerned police station or any other inquiry officer investigate or inquire into the matter and submit police report or inquiry report against some of the accused persons whose names were mentioned in the FIR/complaint, intentionally keeping few major legal lacunae in the report being biased by some other accused persons.
Of legality of the investigative process
The second argument is that the investigation officer did not conduct the investigation properly. Though in course of the investigation all the witnesses mentioned the involvement of all the accused persons in the alleged occurrence, the investigation officer mechanically investigate the matter, and did not send them up in the inquiry report though they were directly involved with the occurrence. Consequently, the report remains in the centre of suspicion in the eye of law.
Of credibility of the questioned investigation report
Another important argument is that the investigation officer submitted investigation report against few of the accused persons mentioned in the FIR or complaint, praying for release of the other vital accused persons for whom he was biased. In course of the trial the witnesses in their respective testimony clearly mentioned the name and credible information regarding the involvement of all the accused persons whose names were mentioned in the FIR/complaint.
Of impunity illegally made to the real criminals
One of the most important arguments is that the total drift of investigation was designed to save few accused persons who actually committed the alleged offences. Therefore, a fair trial cannot be held on such an incomplete and unacceptable investigative procedure. As a result the case should be sent back for further investigation for bringing the real accused persons under law.
The cases with similar questions can be ordained for further investigation for avoiding miscarriage of Justice. If such prayer has legal strength to be considered positively the same may be granted after analysing the materials on record with paramount concentration. In addition to these it is argued that de-novo investigation may be ordered since there is no legal bar to send back any criminal case for de-novo investigation amid criminal trial. Relevantly, in this context a case decided by our highest court can be referred which was reported in 48 DLR at page 158. In this reported case their lordship were pleased to held that before conclusion of the trial the investigation officer may send further report if new and important evidences are available which may be considered during the trial. In fact, this decision has a strong support for sending the case for further investigation in the middle of the trial.
Another landmark case decided by our Apex Court in the same issue can also be referred which was reported in 18 BLD at page 102. In the said case, it is found that when a death reference was pending before the honorable High Court Division, a further investigation was ordained. It was held in that case that after examination of several witnesses, if it transpires that some persons actually involved in the offence have been left out, the court, if it considers that holding of further investigation is necessary, may pass an order for further investigation.
Undoubtedly these two decisions lend a robust support for sending back a case for further investigation after commencement of the trial to bring the real accused under the law. Thus, there is legal scope before the trial court. Since commencement of trial of a case is not a bar for sending back any criminal case for further investigation, proper adjudication of the case and the legal necessity to bring the real accused persons can be ensured by such an order. Taking into account the above grounds the trial court (not being a cognizance-taking court) even may consider the prayer of the petition of de-novo further investigation in the light of the settled principle as enunciated in the decisions of our Apex Court.
In any given criminal proceeding if it is evident that the incumbent investigation report on which a trial shall follow is not free from legal vices and the same is, in the opinion of the trial court, suffering from legal infirmity, the report cannot be accepted for the sake of equitable justice. For the purpose of a comprehensive further investigation of any case the trial court may order that such investigation shall be conducted by a competent officer of police or by any other competent person whom the court may deem eligible.
It is now settled that in any ongoing criminal trial, the trial court may ordain for a thorough and comprehensive investigation in respect of the material fact and circumstances of any case to ensure fair trial.
