REDACTED vs STATE OF KARNATAKA

1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

th
DATED THIS THE 29 DAY OF JULY, 2026

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.22291 OF 2025 (GM – RES)


BETWEEN:

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R
... PETITIONER
(BY SRI NAGARAJ R., ADVOCATE)

AND:


1 . STATE OF KARNATAKA
BY THIRUMALASHETTAHALLI POLICE STATION
BENGALURU – 560 067
REPRESENTED BY
STATE PUBLIC PROSECUTOR.

2 . SUPERINTENDENT OF POLICE,
BENGALURU 5,
MILLERS ROAD, VASANTH NAGAR,
BENGALURU,
KARNATAKA – 560 052.
... RESPONDENTS
(BY SRI ANOOP KUMAR, HCGP)
Digitally
signed by
PADMAVATHI
B K
Location:
High Court of
Karnataka

2

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C.,
PRAYING TO I. ISSUE WRIT OF MANDAMUS TO THE RESPONDENT
POLICE TO CONTINUE FURTHER INVESTIGATION UNDER SECTION
173(8) OF THE CR.PC AND TO SUBMIT SUPPLEMENTARY
CHARGESHEET IN CRIME NO. 0122/2022 REGISTERED FOR
OFFENCES UNDER SECTION 307 OF THE INDIAN PENAL CODE AND
REGISTERED THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC,
HOSAKOTE AND COMMITTED AS SC 11/2023 ON THE FILE OF
PRINCIPAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL;
II. ISSUE A DIRECTION TO ENSURE THAT THE FURTHER
INVESTIGATION UNDER SECTION 173(8) OF THE CODE OF
CRIMINAL PROCEDURE, 1973, IS CARRIED OUT BY A SENIOR
OFFICER NOT BELOW THE RANK OF DEPUTY SUPERINTENDENT OF
POLICE (DySP) / ASSISTANT COMMISSIONER OF POLICE (ACP),
WHO IS INDEPENDENT OF THE EARLIER INVESTIGATING
OFFICER;III. TO COMPLETE AND UNDERTAKE SUCH
INVESTIGATION IN A TIME BOUND MANNER AND SUBMIT THE
SUPPLEMENTARY CHARGESHEET WITHIN SUCH TIMEFRAME.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-

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CORAM:
THE HON'BLE MR JUSTICE M.NAGAPRASANNA


CAV ORDER

The petitioner/victim is before the Court seeking a direction to
the Police to conduct further investigation at the hands of a
different Investigating Officer as obtaining under Section 173(8) of
the Cr.P.C., and place a supplementary charge sheet before the
Principal District and Sessions Judge, Bengaluru Rural in S.C.No.11
of 2023.

2. Heard Sri Nagaraj Ravikumar, learned counsel appearing
for the petitioner and Sri Anoop Kumar, learned High Court
Government Pleader appearing for the respondents.


3. Facts in brief, germane, are as follows: -

3.1. The accused one Kashis Gupta invites the petitioner to an
office party at Marathahalli. Both of them were colleagues. After
the party, when both the accused and the petitioner were said to
have consumed alcohol, the accused took the petitioner to drop
her, sexually assaulted her and attempted to commit rape on her

4
inside the car after taking the car to an isolated place. The
petitioner, on suffering severe injuries, even stab injuries, is
admitted to Manipal Hospital and the Police record the statement of
the petitioner at Manipal Hospital and read over the recorded
statement. Though petitioner did not know Kannada, her statement
was recorded in Kannada. On 21-08-2022, based upon the
statement rendered by the petitioner, a crime in Crime No.122 of
2022 is registered for the offence punishable under Section 307 of
the IPC.

3.2. On 03-09-2022, the learned Magistrate records the
statement of the petitioner as obtaining under Section 164 of the
Cr.P.C. Several items were seized on 08-09-2022. On 16-09-2022,
Manipal Hospital issues a Medico Legal Certificate that the lungs
had ruptured, stab wounds were found in the thighs, abdomen and
under the breast. The Police conduct investigation and file a charge
sheet; not for any other offence, but only for the offence under
Section 307 of the IPC, which would be attempt to murder. The
charge sheet having been prepared for the offence punishable
under Section 307 of the IPC, the matter is committed to the Court

5
of Session. The Court of Session registers S.C.No.11 of 2023 and
frames the charge for the said offence. The petitioner then makes a
requisition seeking further investigation at the hands of a different
Investigating Officer citing several lacunae in the investigation so
conducted in the charge previously laid. The continuance of trial
after framing of the charge, makes the petitioner to rush to this
Court in the subject petition, on the score that the concerned Court
did not have power to direct further investigation after framing of
the charge.

3.3. A coordinate Bench of this Court on 03-09-2025 stalls
further trial by the following order:

“ Learned Additional SPP is directed to accept notice to the
respondents.

The photographs produced at Annexure–D series prima
facie indicate that the petitioner has sustained bodily injuries,
including deep cut injuries below the ribs, on the hand, and on
the thigh. Though the crime was registered in the year 2022,
the prosecution has not yet secured the FSL report.
Notwithstanding this, the learned Sessions Judge has proceeded
to frame charges, and the victim is now called upon to tender
evidence. Unless the relevant witnesses and the FSL report are
secured by the prosecution, commencement of trial at this stage
would seriously prejudice the interest of the victim.

In this view of the matter, the learned Additional SPP is
directed to forthwith communicate this order to the

6
Investigating Officer and secure necessary instructions by the
next date of hearing.

Re-list this matter in the fresh matters list on 17.09.2025.

Till then, further proceedings in S.C. No.11/2023 on the
file of the VI Additional Principal District and Sessions Judge,
Bengaluru Rural, insofar as the petitioner is concerned, are
stayed.”

The said order is in subsistence even today and, therefore,
the trial has not progressed.
SUBMISSIONS:
THE PETITIONER:
4. Learned counsel Sri Nagaraj Ravikumar appearing for the
petitioner would take this Court through the documents appended
to the petition, the photographs to show the condition of the
petitioner, bite marks and cigarette burning stains all over the body
and would contend that the Police ought to have registered a crime
for the offence punishable under Section 376 r/w 511 of the IPC
also, in addition to Section 307 of the IPC. He would submit that
due to the manner in which the investigation is conducted, no FSL
report is received. Even though all the events have happened in the
car, the car is not seized. Only the clothes of the petitioner are
taken, but not of the accused. He would project serious lacunae in

7
the investigation and seeks further investigation into the matter as
it was a clear case of attempt to rape. He would further contend
the statement of the petitioner is recorded in the hospital in
Kannada, which language she does not know. Though the petitioner
has narrated every circumstance, what is recorded is only stab
injuries. Therefore, only the offence under Section 307 of the IPC is
laid in the charge sheet. He would contend that this is a fit case for
further investigation and this Court should so direct at the hands of
a different Investigating Officer.

THE STATE:

5. Per contra , the learned High Court Government Pleader
would submit that what the Police have done is in terms of what the
statement was. The trial is in progress. Therefore, there is no
warrant of further investigation in the case at hand. But, if this
Court would direct, they would accomplish the act of further
investigation.

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6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
CONSIDERATION:
7. The afore-narrated facts are not matters of conjecture;
they stand firmly embedded in the record. What, however, unfolds
from those facts is a narrative that is both disturbing and
disquieting. On the night of 20-08-2022 , the petitioner, who is
also the victim of the alleged occurrence, and the accused, Kashish
Gupta , both colleagues residing in the very same apartment
complex, attended an office party. As the festivities waned into the
early hours of 21-08-2022 , at about 1.30 a.m. , the petitioner
expressed her desire to return home. The accused, however,
prevailed upon her to permit him to drop her at her residence. What
commenced as an innocuous offer of companionship is alleged to
have swiftly transformed into a journey of terror.
8. Instead of proceeding towards the petitioner's
residence, the accused is alleged to have diverted the

9
vehicle on the ostensible pretext of purchasing cigarettes
and driven it to a desolate, forsaken and God-forsaken
stretch . It is there, according to the petitioner, that the veneer of
friendship gave way to unrestrained brutality. The accused is
alleged to have made unwelcome sexual advances inside the
confines of the vehicle. The petitioner, repelled every such
advance. The rejection, however, appears to have ignited an
eruption of unbridled violence. The accused is said to have
repeatedly stabbed the petitioner on the chest and abdomen
with a knife. It is further her emphatic assertion that the
accused forcibly attempted to spread her legs with the
unmistakable object of subjecting her to sexual intercourse
against her will. When the petitioner resisted with every
ounce of strength she could muster, the accused allegedly
bit her on several parts of the body, inflicted burn injuries
upon her thighs with a lighted cigarette, stabbed her
indiscriminately and ultimately abandoned her on the
roadside in a grievously injured condition. The injuries,
according to the petitioner, were not confined to stab

10
wounds alone; they bore the unmistakable imprint of a
sustained physical and sexual assault.
9. Bleeding profusely and battling for survival, the
petitioner somehow managed to reach Manipal Hospital,
where she was admitted in an extremely critical condition.
The medical records would reveal that she remained in the
Intensive Care Unit for six days before she could even be
shifted to the general ward. It was only thereafter that her
statement came to be recorded by the police. Curiously,
though the petitioner was admittedly not conversant with
Kannada, the statement was recorded in Kannada and was
later said to have been translated to her. Be that as it may,
the statement that came to be recorded forms the very
genesis of the prosecution and, therefore, deserves
reproduction in extenso . The statement of the petitioner/victim
reads as follows:
“ ೇೆ ೇೆ ೇೆ ೇೆ
Date:21/08/2022

XXXX

ಾನು ೕಲಂಡ ಾಸದ ನಮ  ಾ ೊೆ ಾಸಾರುೆ!ೕ ೆ ಾನು ಈ#ೆ$ ಒಂದು

ವಷ( ಮೂರು )ಂಗಳ ,ಂ-ೆ -ೆಹ ಂದ /ೆಂಗಳ01#ೆ ಬಂದು XXXX ದ  ಾಸರುೆ!ೕ ೆ ನಮ 

11

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-ೆಹ ಂದ ಬಂ-ಾ =ಂದ XXXX ಕಂಪ=ಯ  ಅ ೌಂA BಾC ೇಜE ಾ ೆಲಸ Bಾಡು)!ರು ೆ!ೕ ೆ.

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.
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20/08/2022
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3CC1921 09:00
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1:30
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03:00 ¹Ãmï
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3:30 A.M.
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ºÉÆÃUÀÄwÛzÀÄÝ N
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ಸತC ಾರುತ!-ೆ.”

Based on her statement, a crime is registered in Crime
No.122 of 2022. During the course of the investigation, the further
statement of the victim is recorded. It reads as follows:

12

122-2022 307
“)ರುಮಲsೆV5ಹ U t ೕH uಾgಾ b ನಂ ಕಲಂ ಐvG

vaಾ(Q-ಾರರ ಮುಂದುವPೆದ ೇೆ

XXXX
: 28/10/2022
Q ಾಂಕ

01
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.
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20/08/2022
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.
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ೕ]ೆ ಾನೂನು 1ೕತC ಕTಮ ಜರು ಸ/ೇೆಂದು ದೂರನುY =ೕZದು9 ಅದರಂ ೆ uಾgೆಯ  ಪTಕರಣವc ಸಹ
:03/09/2022
-ಾಖ]ಾ ರುೆ! ನಂತರ ಾನು Q ಾಂಕ ರಂದು ೊಸೋWೆ ಎG ೆ ಮತು! ೆಎಂಎ~ G

13
164
ಾCaಾಲಯ ದ  ಾCaಾqೕಶರ ಮುಂ-ೆ ನನY ಕಲಂ GಆE vG 1ೕತC ೇೆಯನುY =ೕZದು9

ಅದರ  ನನY LೆYೕ,ತ ಾದ ಕwೕಶ ಗುಪ! ರವರು ನನ#ೆ ]ೈಂ ಕ ಸಂ•ೋಗ ೆ ಒ ಾ!ಯ BಾZರು ಾ! ೆ ಾನು

ಅದ ೆ ಒಪmದ91ಂದ ನನ#ೆ dಾಕು =ಂದ ಚು[\ ]ೈಂ ಕ ಸಂ/ೋಗ ೆ ಒ ಾ!ಯ BಾZ ೊ]ೆ Bಾಡಲು

ಪTಯತY BಾZರು ಾ! ೆಂದು ೇಕ =ೕZರು ೆ!ೕ ೆ ಾನು ಮತು! ಕwೕಶ ಗುಪ! ರವರು LೆYೕ,ತPಾ ದು9 ಈ

bದಲು ಅನೂCನC ಾ-ೆ9ವc ಾವc ಈ ,ಂ-ೆ IಾV( ಗ #ೆ LೆYೕ,ತPೊಂQ#ೆ ೋ ಬರು)!-ೆ9ವc ನಮ 

ಮದC ಸಣi ಪcಟ5 dಾರಗ#ೆ ಸಣi ಪcಟ5 ಗ]ಾWೆಗ ಾದ9ವc ಾನು ಾCaಾಲಯದ =ೕZರುವ ೇೆ

ಾಗೂ ದೂರನುY =ೕಡು ಾಗ ಆಸm ೆTಯ =ೕZರುವ ೇೆಯನುY /ೇPೆ 1ೕ) =ೕZರು ೆ!ೕ ೆ ಕwೕx ಗುಪ!

ರವರು ನಮ  ಮದC ಇರುವ ಸಣi dಾರಗಳನುY ಮನGJನ ಟು5ೊಂಡು ನನYನುY ೊ]ೆ Bಾಡು ಉ-ೆ9ೕಶQಂದ

ನನ#ೆ dಾಕು =ಂದ ನನY ಎಡಗ^ೆ ಎ-ೆಯ ೆಳಗ^ೆ ಬಲ ಾ ಚು[\ ನಂತರ ಮ ೆ! ಬಲ ೊ^ೆ#ೆ ಎಡ ೊ^ೆ#ೆ

ಎಡ#ೈ ಮುಂ#ೈ ೕ]ೆ dಾಕು =ಂದ ಚು[\ರು ಾ! ೆ ಆದ91ಂದ ಸದ1 ಕwೕH ಗುಪ! ರವರ ೕ]ೆ ಾನೂನು

1ೕತC ಕTಮ ಜರು ಸ/ೇೆಂದು ೋರುೆ!ೕ ೆ.”


Upon the completion of investigation, the Police file a final
report against the accused for the offence punishable under Section
307 of the IPC only and nothing else. The summary of the charge
sheet as obtaining in column No.17 reads as follows:
“17.
ೇGನ ಸಂ€ಪ! LಾPಾಂಶ

307
ಕಲಂ L¦¹

:21/08/2022 03-30
Q ಾಂಕ Q ಾಂಕ Q Q ಾಂಕ ಾಂಕ ರಂದು ರಂದು ರಂದು ರಂದು /ೆನ /ೆನ /ೆ /ೆನ ನ ಾವ ಾವ ಾವ ಾವ ಸುBಾರು ಸುBಾರು ಸುBಾರು ಸುBಾರು ಗಂWೆ ಗಂWೆ ಗಂWೆ ಗಂWೆ ಸಮಯದ ಸಮಯದ ಸಮಯದ ಸಮಯದ  ಘನ ಘನ ಘನ ಘನ

ಾCaಾಲಯದ ಾCaಾಲಯದ ಾCaಾಲಯದ ಾCaಾಲಯದ ಾCv!#ೆ ಾCv!#ೆ ಾCv!#ೆ ಾCv!#ೆ Lೇ1ದ Lೇ1ದ Lೇ1ದ Lೇ1ದ )ರುಮಲsೆV5ಹU )ರುಮಲsೆV5ಹU )ರುಮಲsೆV5ಹ )ರುಮಲsೆV5ಹU U tೕH tೕH t tೕH ೕH uಾgಾ uಾgಾ uಾgಾ uಾgಾ ಸರಹದು9 ಸರಹದು9 ಸರಹದು9 ಸರಹದು9 )ರುಮಲsೆV5ಹU )ರುಮಲsೆV5ಹU )ರುಮಲsೆV5ಹ )ರುಮಲsೆV5ಹU U

#ಾTಮQಂದ #ಾTಮQಂದ #ಾTಮQಂದ #ಾTಮQಂದ ಚನYಸಂದTೆ ಚನYಸಂದTೆ ಚನYಸಂದT ಚನYಸಂದTೆ ೆ ೋಗುವ ೋಗುವ ೋಗುವ ೋಗುವ ರLೆ!ಯರುವ ರLೆ!ಯರುವ ರLೆ!ಯ ರLೆ!ಯರುವ ರುವ wTೕ wTೕ wTೕ wTೕ Lಾ Lಾ Lಾ Lಾ  IಾC]ೇH IಾC]ೇH IಾC]ೇH IಾC]ೇH ಎಂಬ ಎಂಬ ಎಂಬ ಎಂಬ ಕ]ಾCಣ ಕ]ಾCಣ ಕ]ಾCಣ ಕ]ಾCಣ ಮಂಟಪದ ಮಂಟಪದ ಮಂಟಪದ ಮಂಟಪದ
-12 1 -01
ಮುಂ•ಾಗದ ಮುಂ•ಾಗದ ಮುಂ•ಾಗದ ಮುಂ•ಾಗದ  ಈ -ೋ‚ಾPೋಪಣಪV5 -ೋ‚ಾPೋಪಣಪV5 -ೋ‚ಾPೋಪಣಪV5 -ೋ‚ಾPೋಪಣಪV5 ಾಲಂ ಾಲಂ ಾಲಂ ಾಲಂ ನಂ ನಂ ನಂ ನಂ ರ ರ ರ ರ  ಕಂಡ ಕಂಡ ಕಂಡ ಕಂಡ ಎ ಆPೋv ಆPೋv ಆPೋv ಆPೋv ಾಗೂ ಾಗೂ ಾಗೂ ಾಗೂ Lಾ€ Lಾ€ Lಾ€ Lಾ€
1 -3 - - 4921
ರವರು ರವರು ರವರು ರವರು ಎ ಆPೋv#ೆ ಆPೋv#ೆ ಆPೋv#ೆ ಆPೋv#ೆ Lೇ1ದ Lೇ1ದ Lೇ1ದ Lೇ1ದ ZಎM ZಎM ZಎM ZಎM GG GG GG GG ಯು ಯು ಯು ಯು ಾ1ನ ಾ1ನ ಾ1ನ ಾ1ನ ಬಂದು ಬಂದು ಬಂದು ಬಂದು ಕ]ಾCಣ ಕ]ಾCಣ ಕ]ಾCಣ ಕ]ಾCಣ ಮಂಟಪದ ಮಂಟಪದ ಮಂಟಪದ ಮಂಟಪದ
1 01
ಮುಂ•ಾಗ ಮುಂ•ಾಗ ಮುಂ•ಾಗ ಮುಂ•ಾಗ =Gೊಂಡು =Gೊಂಡು = =Gೊಂಡು Gೊಂಡು ಎ ಆPೋvಯು ಆPೋvಯು ಆPೋvಯು ಆPೋvಯು Lಾ€ Lಾ€ Lಾ€ Lಾ€ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ =ೕನು =ೕನು =ೕನು =ೕನು /ೇPೆ /ೇPೆ /ೇPೆ /ೇPೆ ವC`!ಯ ವC`!ಯ ವC`!ಯ ವC`!ಯ ೊೆ#ೆ ೊೆ#ೆ ೊೆ#ೆ ೊೆ#ೆ ಸಂಬಂದ ಸಂಬಂದ ಸಂಬಂದ ಸಂಬಂದ
1
ಇಟು5ೊಂZ ಇಟು5ೊಂZQ9aಾ ಇಟು5 ಇಟು5ೊಂZ ೊಂZ Q9aಾ Q9aಾ Q9aಾ aಾೆ aಾೆ aಾ aಾೆ ೆ ಈ 1ೕ) 1ೕ) 1ೕ) 1ೕ) bೕಸ bೕಸ bೕಸ bೕಸ Bಾಡು)!aಾ Bಾಡು)!aಾ Bಾಡು)!aಾ Bಾಡು)!aಾ ಎಂದು ಎಂದು ಎಂದು ಎಂದು ೇದು9 ೇದು9 ೇದು9 ೇದು9 ಅದರೆ ಅದರೆ ಅದರ ಅದರೆ ೆ ಎ ಆPೋv ಆPೋv ಆPೋv ಆPೋv ಮತು! ಮತು! ಮತು! ಮತು!
01 1
Lಾ€ Lಾ€ Lಾ€ Lಾ€ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ Bಾ)#ೆ Bಾ)#ೆ Bಾ)#ೆ Bಾ)#ೆ Bಾತು Bಾತು Bಾತು Bಾತು /ೆೆQದು9 /ೆೆQದು9 /ೆ /ೆೆQದು9 ೆQದು9 ಆಗ ಆಗ ಆಗ ಆಗ ಎ ಆPೋvಯು ಆPೋvಯು ಆPೋvಯು ಆPೋvಯು ಸದ1 ಸದ1 ಸದ1 ಸದ1 ಾ1ನದ9 ಾ1ನದ9 ಾ1ನದ9 ಾ1ನದ9 dಾಕುವನುY dಾಕುವನುY dಾಕುವನುY dಾಕುವನುY
-1
ೆ#ೆದುೊಂಡು ೆ#ೆದುೊಂಡು ೆ#ೆದುೊಂಡು ೆ#ೆದುೊಂಡು Lಾ€ Lಾ€ Lಾ€ Lಾ€ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ ಏಾ ಏಾ ಏ ಏಾ ಾ ಏ` ಏ` ಏ` ಏ` ೋ]ೆ ೋ]ೆ ೋ]ೆ ೋ]ೆ Bಾಡುವ Bಾಡುವ Bಾಡುವ Bಾಡುವ ಉ-ೆ9ೕಶQಂದ ಉ-ೆ9ೕಶQಂದ ಉ-ೆ9ೕಶQಂದ ಉ-ೆ9ೕಶQಂದ ಎಡಗ^ೆ ಎಡಗ^ೆ ಎಡಗ^ೆ ಎಡಗ^ೆ ಎ-ೆಯ ಎ-ೆಯ ಎ-ೆಯ ಎ-ೆಯ ೆಳಗ^ೆ ೆಳಗ^ೆ ೆಳಗ^ೆ ೆಳಗ^ೆ

14

ಬಲಾ ಬಲಾ ಬಲ ಬಲಾ ಾ ಚು[\ ಚು[\ ಚು[\ ಚು[\ ನಂತರ ನಂತರ ನಂತರ ನಂತರ ಮೆ! ಮೆ! ಮ ಮೆ! ೆ! ಬಲ ಬಲ ಬಲ ಬಲ ೊ^ೆ#ೆ ೊ^ೆ#ೆ ೊ^ೆ#ೆ ೊ^ೆ#ೆ ಎಡೊ^ೆ#ೆ ಎಡೊ^ೆ#ೆ ಎಡ ಎಡೊ^ೆ#ೆ ೊ^ೆ#ೆ ಎಡ#ೈ ಎಡ#ೈ ಎಡ#ೈ ಎಡ#ೈ ಮುಂ#ೈ ಮುಂ#ೈ ಮುಂ#ೈ ಮುಂ#ೈ ೕ]ೆ ೕ]ೆ ೕ]ೆ ೕ]ೆ dಾಕು=ಂದ dಾಕು=ಂದ dಾಕು dಾಕು=ಂದ =ಂದ ಚು[\ ಚು[\ ಚು[\ ಚು[\
-1
Lಾ€ Lಾ€ Lಾ€ Lಾ€ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ ರವ1#ೆ )ೕವT )ೕವT )ೕವT )ೕವT ಸyರೂಪದ ಸyರೂಪದ ಸyರೂಪದ ಸyರೂಪದ #ಾಯಗಳ<ಂಟು #ಾಯಗಳ<ಂಟು #ಾಯಗಳ<ಂಟು #ಾಯಗಳ<ಂಟು BಾZರುವcದು BಾZರುವcದು BಾZರುವcದು BಾZರುವcದು ತ=ƒೆಂದ ತ=ƒೆಂದ ತ=ƒೆ ತ=ƒೆಂದ ಂದ ದೃಡಪV5ರುೆ! ದೃಡಪV5ರುೆ!” ದೃಡಪV5ರು ದೃಡಪV5ರುೆ! ೆ!

The petitioner makes a requisition to the respondents seeking
a direction to respondent No.1 - Police to conduct further
investigation in S.C. No.11 of 2023. The requisition of the
petitioner reads as follows:
“Date:03/07/2025
From:

XXXX
XXXX
XXXX
XXXX

To:

Station House officer,
Thirumalashettahalli PS, [Bengaluru Rural]
Thirumalashettahalli, Koralur,
Bangalore district, Karnataka – 560 067.

Subject: Requisition seeking further investigation under Section
173(8) CrPC in Crime No. 0122/2022, currently pending as SC
No. 11/2023 before the Hon'ble VI Additional District and
Sessions Court, Bengaluru Rural

Respected Sir/Madam,

1. I, XXXX, the victim and complainant in Crime No. 0122/2022
registered at Thirumalashettahalli Police Station, Bengaluru
Rural, most respectfully submit this requisition requesting your
kind intervention and direction to initiate further investigation
under Section 173(8) of the Code of Criminal Procedure, 1973.

2. The matter, arising from a brutal incident that occurred on
the night of 20.08.2022, involves grave offences including

15
attempted rape, grievous sexual assault, and attempted
murder. The FIR in the said matter was registered under Section
307 IPC, and is now pending as SC No. 11/2023 before the
Hon'ble VI Additional District and Sessions Court, Bengaluru
Rural.

3. While the FIR and initial chargesheet were filed, the
investigation was riddled with serious procedural lapses and
material omissions that have undermined the integrity of the
case and compromised my right to a fair investigation.

4. Failure to invoke appropriate sections of the IPC relating to
sexual assault and attempted rape, despite explicit statements
made under Section 164 statement before Addl. Civil Judge
(Jr.Dn) & JMFC Court Hoskote, Bengaluru Rural District dated
03.09.2022.

* Non-inclusion of crucial medical records from Manipal Hospital
in the chargesheet, despite grievous stab wounds, surgeries,
and documented injuries;

* Omission of FSL reports and forensic evidence relating to
seized materials (knife, clothes, and blood-stained items);

* Failure to medically examine me for sexual assault despite
statutory mandate under Section 164-A CrPC;

* Non-identification and examination of key eyewitnesses
(including 2 unnamed persons present at near the scene of the
crime);

* Failure to trace and examine the Ola cab driver (Devaraja HM)
who transported me to the hospital. The driver witnessed the
accused attempting to get the vehicle alongside the
complainant. wherefore police officer not taken the statement or
he has not been made as a witness in the Chargesheet of the
driver who was eye witness of this crime.

* Ignoring digital and electronic evidence, such as CCTV footage
and location/GPS data around the crime scene.

* I was not at all called to police station to give my further
statement or submitted any documents pertaining to the crime.

16
I had not received any Notice from the police station. I only got
to know when I received the notice from the court that you had
filed chargesheet and only 307 Crpc offence is made out.

* My sister XXXX was not at all called to police station to give
my further statement or submitted any documents pertaining to
the crime. I had not received any Notice from the police station.
I only got to know when I received the notice from the court
that you had filed chargesheet and only 307 Crpc offence is
made out.

, I humbly request the SHO, Thirumalashettahalli
WHEREFORE
PS to undertake further investigation under section 173(8) of
CrPC, 1973 in CrPC in Crime No. 0122/2022, currently pending
as SC No. 11/2023 before the Hon'ble VI Additional District and
Sessions Court, Bengaluru Rural.”


The petitioner thereafter approaches this Court in the present
petition seeking further investigation in S.C.No.11 of 2023.

10. The petitioner has filed several documents to demonstrate
serious lacunae in the conduct of investigation. To begin with, it is
necessary to notice the statement of the petitioner/victim under
Section 164 of the Cr.P.C. It reads as follows:

“IN THE COURT OF CIVIL JUDGE AND JMFC., HOSKOTE.

TS Halli Cr no: 122/2022

Name : XXXX

Father name : XXXX

Age : XXXX.

17

Occupation : Account Manager, XXXX, Bengaluru

Residence : Bengaluru

rd
(Oath has been duly administered to the witness on this 3
September 2022 after getting it comformed that she is giving
her statement voluntarily there is no any coercion. Thereafter
the statement of victim has been recorded in camera
proceedings)

I know accused by name Kashish Gupta he also works in
XXXX company. On 20.08.2022 he asked me that what I would
do on 21.08.2022. I said that it was my holiday. He invited me
to office party held at Marathahalli. Accused also resides in the
apartment where I reside. On 21.08.2022 at 10. Pm we both
went to marathahalli by his car. When we reached there, there
were other people in queue then we waited for 45 minutes.
Thereafter we went in partyhall we waited for an hour, but his
friends didn't come. Since it was getting late I told him that I
wanted to go home. He was insisting me to wait. I waited for
some more time, at about 1.30 am I was booking my cab but he
said that he would drop me.

When we came back to our apartment he said that
he wanted a cigarrate. So he drow his car ahead of out
apartment and took me in a isolated area. After some
time I said him that I wanted to go home he asked me to
have sex with him. I said no then he started touching my
thighs and chest. When I resisted he became aggressive
and removed a knife. And he grabbed my hand and
stabbed with knief on my chest. He stabbed me thrice on
my chest, once on my stomach. He dragged my hairs and
pulled my face on his private part. I was so crying and
begging him to leave me, but he said if I have sex with
him he would leave me. I said no, he started biting me
everywhere on my back and on my face. He was trying to
take off his pant, just I tried to depend my self hence I
scrached his eyes.

18
I was telling him to leave me, but he kept saying
that he would kill me. I some how managed to open the
door of the car of my side. I was trying to get me away
from his grip, at that time he took his knief and scratched
on parts of my body. He was trying to take off my dress I
punched him and tried to crawl out side of the car. As I
was getting out of the car he held my leg and stabbed on
my leg. I got out from his car and started running. Since I
was injured and bleeding I could not run fast and he
came out side the car. There was a path hole, he tried to
push me in that hole. I lost my balance and fell down on
the other end. Then he came on the top of me and sat on
my back. Then he started pressing my neck and tried to
strangle. He was sitting on my back and rubbing with his
private part. He tried to put his hand inside my short
wearing. I kept telling him to leave me but he went on
saying that either I had to have sex with him or he would
kill me.

Since I was bleeding I felt little unconcious I asked
him to get himself off from me. When I stopped
depending myself he got himself off from me. I crawled
further arid tried myself to get up and I saw a house and
some people there, about 10 mtrs away from me and I
ran to them and sat infront of the house. I had phone
with me and I tried to book cab for me, he also followed
me and saw the people there and he asked some water
they gave him. Then he tried to snatch my phone I did
not give him, then he laid on the ground. After some time
the cab which I booked came to the spot, driver of that
cab also saw the accused. Accused was also trying to get
into the cab, but I asked the driver to run the cab and
from there I went to the hospital and I admitted in
hospital. I was under treatment in ICU for 6 days and 2
days under observation. I got discharged from the
hospital, meanwhile my elder sister and my mother had
lodged the complaint against the accused.

(The statement of the victim is recorded as she has deposed as
per my dictation).

R.O.& F.C.,
Sd/-

19
Prl., Civil/Judge and JMFC.,
Hoskote”

(Emphasis added at each instance)
The statement of the petitioner, recorded under Section 164
of the Cr.P.C., unfolds a harrowing narrative that leaves little to the
imagination. It is not the account of a mere physical altercation; it
is the narration of a desperate struggle by a woman fighting to
preserve her bodily integrity and sexual autonomy against an
assailant who, according to her, was determined to violate both.
The petitioner unequivocally states that she cried inconsolably,
pleaded with the accused to leave her and repeatedly begged for
mercy. Those entreaties, however, are alleged to have fallen on
deaf ears. On the contrary, the accused is stated to have coldly
declared that he would let her go only if she yielded to his demand
for sexual intercourse. Such a statement, if true, lays bare the
unmistakable intent that animated the entire episode.
11. The petitioner would further narrate on her refusal, the
accused became increasingly violent. He allegedly bit her
indiscriminately all over her body, attempted to remove his trousers
with the object of committing sexual intercourse against her will

20
and, when met with resistance, unleashed brutal physical violence.
She is said to have been mercilessly assaulted and repeatedly
stabbed on her legs. Every act attributed to the accused, viewed
either in isolation or cumulatively, unmistakably points towards an
endeavour to ravish the petitioner. The allegations do not
merely portray an assault; they prima facie depict an
attempt to commit rape, interrupted not by any voluntary
desistance on the part of the accused but by the relentless
resistance offered by the victim herself.
12. The narrative does not end there. Bleeding profusely from
the injuries allegedly inflicted upon her and overpowered by the
brutality of the assault, the petitioner is stated to have collapsed
into unconsciousness. Upon regaining consciousness after some
time, she somehow gathered the strength to summon a cab and
reach Manipal Hospital for medical aid. Even at that stage,
according to the petitioner, the accused attempted to pursue her as
she was struggling to board the cab, a circumstance which only
accentuates the gravity of the allegations.

21
13. If this indeed is the statement of the victim recorded
under Section 164 of the Cr.P.C., this Court is constrained to
observe that it is startling, if not shocking, that the investigating
agency confined the crime merely to an offence punishable under
Section 307 of the IPC. Equally disquieting is the fact that the
jurisdictional Court, oblivious to the tenor and substance of the
victim's statement, proceeded to frame charge only for the offence
punishable under Section 307 of the IPC. A statement which, on its
plain reading, prima facie discloses ingredients of an attempt to
commit rape appears to have escaped the attention of both the
investigating agency and the Court below. Such an omission, at
least prima facie, strikes at the very root of a fair and
comprehensive investigation.
14. The inadequacies in the investigation do not end
with the erroneous characterization of the offence. The
statement of the petitioner and the subsequent events
disclose disturbing gaps that cast a serious shadow over the
manner in which the investigation has been conducted. The
petitioner specifically asserts that on the very next day, i.e.,

22
21-08-2022, the clothes and shoes worn by the accused had
mysteriously disappeared. A yellow plastic cover,
approximately nine inches in length, allegedly used by the
accused to conceal the knife employed during the assault,
was not even forwarded to the Forensic Science Laboratory
for examination. More alarmingly, despite the allegation that
the occurrence had taken place inside the vehicle and
despite visible blood stains on the window panes of the car,
no biological samples, blood swabs or other forensic
material were collected from the interior of the vehicle. Such
omissions are not mere procedural irregularities; they are
investigative lapses of considerable magnitude, capable of
impairing the search for truth itself. A criminal investigation
is expected to unearth every available piece of evidence,
particularly where the allegations concern offences of such
grave nature. An investigation that leaves behind obvious
and potentially incriminating material without examination
can scarcely inspire confidence.

23
15. In the teeth of the aforesaid facts, the issue that now falls
for consideration lies in a narrow but significant compass: whether
the acts attributed to the accused merely depict an assault
simpliciter culminating in an attempt to murder, or whether
they unmistakably transcend that boundary and enter the
domain of an attempt to commit rape punishable under
Section 376 read with Section 511 of the Indian Penal Code.
The answer to the issue necessarily lies in an examination of the
statutory contours of Section 511 of the IPC and the rich body of
jurisprudence that has evolved around the expression "attempt" in
criminal law.
16. Section 511 of the IPC reads as follows:

“ 511. Punishment for attempting to commit
offences punishable with imprisonment for life or other
imprisonment .—Whoever attempts to commit an offence
punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and
in such attempt does any act towards the commission of the
offence, shall, where no express provision is made by this Code
for the punishment of such attempt, be punished
with imprisonment of any description provided for the offence,
for a term which may extend to one-half of the imprisonment
for life or, as the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such fine as is
provided for the offence, or with both.

24
Illustrations
( a ) A makes an attempt to steal some jewels by breaking
open a box, and finds after so opening the box, that there is no
jewel in it. He has done an act towards the commission of theft,
and therefore is guilty under this section.

( b ) A makes an attempt to pick the pocket of Z by
thrusting his hand into Z 's pocket. A fails in the attempt in
consequence of Z 's having nothing in his pocket. A is guilty
under this section.”

Section 511 of the IPC is the repository of punishment for
attempts to commit offences where the Code does not expressly
prescribe a separate punishment. The provision proceeds on the
well-settled principle that criminal culpability is not postponed until
the final consummation of the offence. The law intervenes the
moment preparation ripens into an overt act directed towards the
commission of the intended crime. Thus, where intention is
translated into action, though the intended offence ultimately
remains unconsummated, Section 511 steps in to visit the offender
with penal consequences.
JUDICIAL LANDSCAPE:
17. The jurisprudence on the distinction between
preparation and attempt is no longer res integra . Time and

25
again, the Apex Court has explained that what the law
punishes is not a mere evil thought nor a remote
preparation, but the commencement of execution of the
criminal design. Once the conduct of the accused
unmistakably demonstrates a determined movement
towards the commission of the intended offence, the offence
travels beyond preparation and assumes the character of an
attempt.

17.1. The Apex Court in CHAITU LAL v. STATE OF
1
UTTARAKHAND , has considered what would become an attempt
to commit an offence, and has held as follows:
“…. …. ….

6. Heard the counsel appearing for both parties. In the
present case, the statement rendered by the complainant victim
(PW 1) is corroborated by the daughter of the complainant
victim (PW 2) who is an eyewitness to the said incident,
husband of the complainant victim (PW 3) and independent
witness Sohan Lal (PW 4). The courts below have observed that
although these witnesses were subjected to lengthy cross-
examination, they have remained persistent in their statements
and there was no material contradiction so as to raise any doubt
regarding their credibility.


1

(2019) 20 SCC 272

26
7. The statement of the complainant victim reveals that
the appellant-accused had attempted to molest her on
numerous occasions. In order to attract culpability under
Section 354 IPC, the prosecution has to prove that the accused
applied criminal force on the victim with the intention of
outraging her modesty. In the case at hand, prior to the
commission of the offence, the appellant-accused had attempted
to molest the complainant victim on the same day itself. Later
that night, the appellant-accused forcibly entered the house of
the complainant victim in a drunken state, being aware about
the absence of her husband. Thereafter, the appellant-accused,
exerting criminal force, pounced upon the complainant victim
and forcibly lifted her petticoat. Although, the complainant
victim pleaded the accused to stop considering the fact that she
was his aunt; he responded stating, it does not matter to him.
The aforesaid action of the appellant-accused is sufficient to
prove his culpability.

8. The counsel of the appellant-accused has pleaded that
the actions of the appellant-accused do not constitute the
offence under Section 511 read with Section 376, as the
appellant-accused had not committed any overt act such as any
attempt to undress himself in order to commit the alleged act.
This Court in Aman Kumar v. State of Haryana [ Aman
Kumar v. State of Haryana , (2004) 4 SCC 379 : 2004 SCC (Cri)
1266] , held that: (SCC p. 388, para 11)

“ 11 . In order to find an accused guilty of an
attempt with intent to commit a rape, court has to be
satisfied that the accused, when he laid hold of the
prosecutrix, not only desired to gratify his passions upon
her person, but that he intended to do so at all events,
and notwithstanding any resistance on her part.”

9. The attempt to commit an offence begins when
the accused commences to do an act with the necessary
intention. In the present case, the appellant-accused
pounced upon the complainant victim, sat upon her and
lifted her petticoat while the complainant victim
protested against his advancements and wept. The
evidence of the daughter (PW 2) also reveals that she
pleaded with the appellant-accused to spare her mother.
In the meantime, hearing such commotion, other

27
villagers intervened and threatened the accused of dire
consequences pursuant to which the accused ran away
from the scene of occurrence. Here, the evidence of
independent witness Sohan Lal (PW 4) assumes
significance in corroborating the events on the date of
occurrence, wherein he has averred that at around 10.00
p.m., he heard noise coming from the house of
complainant victim, pursuant to which he saw the
appellant-accused's wife holding his neck coming out
from the house of the complainant victim. PW 4 had also
overheard the complainant victim complaining that the
appellant-accused was quarrelling with her.

10. Herein, although the complainant victim and her
daughter were pleading with the accused to let the
complainant victim go, the appellant-accused did not
show any reluctance that he was going to stop from
committing the aforesaid offence. Therefore, had there
been no intervention, the appellant-accused would have
succeeded in executing his criminal design. The conduct
of the accused in the present case is indicative of his
definite intention to commit the said offence.

11. The counsel on behalf of the appellant-accused placed
reliance upon Tarkeshwar Sahu v. State of Bihar (Now
Jharkhand) [ Tarkeshwar Sahu v. State of Bihar (Now
Jharkhand) , (2006) 8 SCC 560 : (2006) 3 SCC (Cri) 556] , to
claim the benefit of acquittal for the offence under Section 511
read with Section 376 IPC. But, on careful perusal of the
aforesaid decision in the backdrop of facts and circumstances of
the present case, both the cases are distinguishable as in the
case cited above, it is clearly noted that the accused failed at
the stage of preparation of commission of the offence itself.
Whereas, in the present case before us the distinguishing fact is
the action of the appellant-accused in forcibly entering the
house of the complainant victim in a drunken state and using
criminal force to lift her petticoat despite her repeated
resistance.

12. Further, the plea of the appellant-accused regarding
the delay in registering the FIR has been duly considered by
both the courts below. It has been duly noted that the husband
of the complainant victim (PW 3) was staying in Nandprayag

28
while the incident occurred in the remote village of Salna.
Subsequent to the incident, the complainant victim first
travelled to meet her husband (PW 3). After narrating the said
incident to him, she further travelled to register a complaint
before the Chief Judicial Magistrate, Chamoli, which is again far
off from the place of occurrence. Considering the aforesaid
factual scenario, the delay in registering FIR does not affect the
case of the prosecution adversely.

13. Considering the facts and circumstances, the guilt of
the appellant-accused has been established beyond doubt. In
our opinion, therefore, the courts below have rightly convicted
and sentenced the accused. In view of the aforesaid
observations, the appeal lacks merit and is accordingly
dismissed.”

The Apex Court in Chaitu Lal v. State of Uttarakhand ,
while dealing with an allegation of attempt to commit rape, lucidly
expounds that an attempt begins the moment the accused
commences acts accompanied by the requisite criminal intention.
The Court holds that if the surrounding circumstances demonstrate
that the accused would have succeeded in accomplishing his object
but for resistance by the victim or intervention by others, the law
would readily infer the existence of the requisite intention. The
Court emphatically observes that to constitute an attempt to
commit rape, it is not necessary that every conceivable overt act
towards penetration should have taken place. What is required is

29
that the conduct of the accused must unmistakably exhibit a
determination to gratify his sexual desire notwithstanding every
resistance offered by the victim. The principle emerging from the
said judgment is clear as daylight. The law does not insist upon
completion of the offence before it can condemn the
conduct. The law condemns the determined journey towards
the offence as much as the completed destination itself.

17.2. The Apex Court in the case of STATE OF MADHYA
2
PRADESH v. MAHENDRA , while considering the entire spectrum
of law and delineating what would become attempt under Section
511 of the IPC, has held as follows:
“…. …. ….
Analysis

Distinction between “preparation” and “attempt” to
commit rape

12. It is a settled proposition of criminal
jurisprudence that in every crime, there is first, mens rea
(intention to commit), secondly, preparation to commit it,
and thirdly, attempt to commit it. If the third stage, that
is, “attempt” is successful, then the crime is complete. If
the attempt fails, the crime is not complete, but law still
punishes the person for attempting the said act.

2
(2022) 12 SCC 442

30
“Attempt” is punishable because even an unsuccessful
commission of offence is preceded by mens rea, moral
guilt, and its depraving impact on the societal values is
no less than the actual commission.


13. There is a visible distinction between
“preparation” and “attempt” to commit an offence and it
all depends on the statutory edict coupled with the
nature of evidence produced in a case. The stage of
“preparation” consists of deliberation, devising or
arranging the means or measures, which would be
necessary for the commission of the offence. Whereas, an
“attempt” to commit the offence, starts immediately after
the completion of preparation. “Attempt” is the execution
of mens rea after preparation. “Attempt” starts where
“preparation” comes to an end, though it falls short of
actual commission of the crime.

14. However, if the attributes are unambiguously
beyond the stage of preparation, then the
misdemeanours shall qualify to be termed as an
“attempt” to commit the principal offence and such
“attempt” in itself is a punishable offence in view of
Section 511IPC. The “preparation” or “attempt” to
commit the offence will be predominantly determined on
evaluation of the act and conduct of an accused; and as to
whether or not the incident tantamounts to transgressing
the thin space between “preparation” and “attempt”. If
no overt act is attributed to the accused to commit the
offence and only elementary exercise was undertaken
and if such preparatory acts cause a strong inference of
the likelihood of commission of the actual offence, the
accused will be guilty of preparation to commit the crime,
which may or may not be punishable, depending upon the
intent and import of the penal laws.

15. Section 511IPC is a general provision dealing with
attempts to commit offences which are not made punishable by
other specific sections of the Code and it provides, inter alia,
that,

“ 511. Punishment for attempting to commit
offences punishable with imprisonment for life or

31
other imprisonment .— Whoever attempts to commit
an offence punishable by this Code with imprisonment
for life or imprisonment, or to cause such an offence to
be committed, and in such attempt does any act
towards the commission of the offence, shall, where no
express provision is made by this Code for the
punishment of such attempt, be punished with
imprisonment of any description provided for the
offence, for a term which may extend to one-half of the
imprisonment for life or, as the case may be, one-half of
the longest term of imprisonment provided for that
offence, or with such fine as is provided for the offence,
or with both .”

(emphasis supplied)

16. It is extremely relevant at this stage to brush up the
elementary components of the offence of “rape” under Section
375IPC, as was in force at the time when the occurrence took
place in the instant case. The definition of “rape”, before the
2013 Amendment, used to provide that:

“ 375. Rape .— A man is said to commit “rape”
who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—
*
Fourthly.—
*
Fifthly.—
*
Sixthly.—With or without her consent, when she
.
is under sixteen years of age
Explanation.—Penetration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape .
Exception.—Sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age,
is not rape .”
(emphasis supplied)

17. A plain reading of the above provision spells out that
sexual intercourse with a woman below sixteen years, with or

32
without her consent, amounted to “rape” and mere penetration
was sufficient to prove such offence. The expression
“penetration” denotes ingress of male organ into the female
parts, however slight it may be. This Court has on numerous
occasions explained what “penetration” conveys under the
unamended Penal Code which was in force at the relevant time.
In Aman Kumar [ Aman Kumar v. State of Haryana , (2004) 4
SCC 379 : 2004 SCC (Cri) 1266] , it was summarisedthat : (SCC
p. 386, para 7)

“ 7 . Penetration is the sine qua non for an offence
of rape. In order to constitute penetration, there must
be evidence clear and cogent to prove that some part of
the virile member of the accused was within the labia of
the pudendum of the woman, no matter how little (see
Joseph Lines, IC&K 893).”

18. Even prior thereto, this Court in Madan
Lal v. State of J&K [ Madan Lal v. State of J&K , (1997) 7
SCC 677 : 1997 SCC (Cri) 1151] opined that the degree of
the act of an accused is notably decisive to differentiate
between “preparation” and “attempt” to commit rape. It
was held thus : (SCC p. 689, para 12)

“ 12 . The difference between preparation
and an attempt to commit an offence consists
chiefly in the greater degree of determination and
what is necessary to prove for an offence of an
attempt to commit rape has been committed is
that the accused has gone beyond the stage of
preparation. If an accused strips a girl naked and
then making her lie flat on the ground undresses
himself and then forcibly rubs his erected penis on
the private parts of the girl but fails to penetrate
the same into the vagina and on such rubbing
ejaculates himself then it is difficult for us to hold
that it was a case of merely assault under Section
354IPC and not an attempt to commit rape under
Section 376 read with Section 511IPC. In the facts
and circumstances of the present case the offence
of an attempt to commit rape by the accused has
been clearly established and the High Court rightly
convicted him under Section 376 read with Section
511IPC.”

33
19. The difference between “attempt” and
“preparation” in a rape case was again elicited by this
Court in Koppula Venkat Rao v. State of A.P. [ Koppula
Venkat Rao v. State of A.P. , (2004) 3 SCC 602 : 2004 SCC
(Cri) 840] , laying down that : (SCC p. 606, paras 10-11)

“ 10 . An attempt to commit an offence is an
act, or a series of acts, which leads inevitably to
the commission of the offence, unless something,
which the doer of the act neither foresaw nor
intended, happens to prevent this. An attempt may
be described to be an act done in part-execution of
a criminal design, amounting to more than mere
preparation, but falling short of actual
consummation, and, possessing, except for failure
to consummate, all the elements of the
substantive crime . In other words, an attempt
consists in it the intent to commit a crime, falling
short of, its actual commission or
consummation/completion. It may consequently
be defined as that which if not prevented would
have resulted in the full consummation of the act
attempted. The illustrations given in Section 511
clearly show the legislative intention to make a
difference between the cases of a mere
preparation and an attempt.

11 . In order to find an accused guilty of an
attempt with intent to commit rape, court has to
be satisfied that the accused, when he laid hold of
the prosecutrix, not only desired to gratify his
passions upon her person, but that he intended to
do so at all events, and notwithstanding any
resistance on her part . Indecent assaults are often
magnified into attempts at rape. In order tocome
to a conclusion that the conduct of the accused
was indicative of a determination to gratify his
passion at all events, and in spite of all resistance,
materials must exist. Surrounding circumstances
many times throw beacon light on that aspect.”

(emphasis supplied)

20. In light of the statutory provisions as construed by
this Court from time to time in the cited decisions, let us

34
examine whether the respondent attempted to commit rape of
the prosecutrices or there was only preparation on his behalf?

21. We may at the outset explain that what constitutes
an “attempt” is a mixed question of law and facts. “Attempt” is
the direct movement towards the commission after the
preparations are over. It is essential to prove that the
attempt was with an intent to commit the offence. An
attempt is possible even when the accused is
unsuccessful in committing the principal offence.
Similarly, if the attempt to commit a crime is
accomplished, then the crime stands committed for all
intents and purposes.”

The Apex Court in State of Madhya Pradesh v. Mahendra ,
considers the distinction between preparation and attempt has
been delineated with remarkable clarity. The Court reiterates
that every offence ordinarily passes through three distinct
stages—intention, preparation and attempt. While intention
remains confined to the recesses of the mind and
preparation generally escapes punishment, an attempt
marks the commencement of execution. It is at that stage that
the law intervenes, for the accused has crossed the threshold from
contemplation into action. The Court explains that an attempt is the
direct movement towards commission of the offence after
preparation has ceased, and whether a particular act constitutes
preparation or attempt is necessarily a mixed question of fact and

35
law to be gathered from the conduct of the accused and the
surrounding circumstances.
18. Tested on the anvil of the aforesaid authoritative
pronouncements, the facts of the case at hand leave little
room for doubt. The statement of the petitioner recorded
under Section 164 of the Cr.P.C. is neither vague nor
embellished. It is vivid, spontaneous and graphically
chronicles every stage of the occurrence. The petitioner
narrates that the accused repeatedly demanded sexual
intercourse; forcibly touched her body; attempted to remove
her clothes; dragged her towards himself; pressed her face
against his private parts; repeatedly declared that he would
either have sexual intercourse with her or kill her; continued
the assault despite her desperate resistance; inflicted
multiple stab injuries, bite marks and burn injuries; throttled
her; and persisted in his attempts until the petitioner
somehow escaped from his clutches. Such allegations, if
accepted at their face value—as they necessarily must be at
this stage—are not mere indicators of preparation. They

36
unmistakably depict a sustained and determined attempt to
subject the victim to sexual intercourse against her will.
19. It therefore becomes difficult, if not impossible, to
comprehend how the investigating agency, despite such a graphic
narration and despite the statement under Section 164 of the
Cr.P.C., confined the investigation only to the offence punishable
under Section 307 of the IPC. The investigation, prima facie,
appears to have perceived the stab wounds but overlooked
the conduct that preceded those wounds. It noticed the
injuries upon the body, but failed to examine whether those
very injuries were inflicted in the course of an attempt to
commit a far graver offence. Such an investigation cannot be
described as either comprehensive or complete.
20. Once this Court arrives at a prima facie conclusion
that the investigation suffers from glaring omissions, which
have the potential to result in miscarriage of justice, the
consequential question is no longer whether further
investigation should be directed, but who should conduct
such investigation. The answer to that question is equally well

37
settled. The Constitutional Courts, in order to preserve the sanctity
of a fair investigation and thereby a fair trial, possess ample
jurisdiction to direct further investigation even after the filing of the
charge-sheet and even after the framing of charges, if the facts so
warrant.
21. The Apex Court in the case of ANANT THAKUR
3
KARMUSE v. STATE OF MAHARASHTRA , while considering the
entire spectrum of law on the issue, observes that the
Constitutional Courts may direct further investigation at the hands
of a different investigating agency to ensure fair investigation, and
holds as follows:
“…. …. ….
36. Now, so far as the power of the constitutional courts
to order further investigation/reinvestigation/de novo
investigation even after the charge-sheet is filed and charges
are framed is concerned, the following decisions are required to
be referred to.

37. In Bharati Tamang [ Bharati Tamang v. Union of
India , (2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] , after
taking into consideration the decisions of this Court
in Babubhai v. State of Gujarat [ Babubhai v. State of Gujarat ,
(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] , paras 40 and 42
and the subsequent decision of this Court in Ram
Jethmalani v. Union of India [ Ram Jethmalani v. Union of India ,
(2011) 8 SCC 1 : (2011) 3 SCC (Cri) 310] and other decision on

3
(2023) 5 SCC 802

38
the point, ultimately the principles, which are culled out are as
under : ( Bharati Tamang case [ Bharati Tamang v. Union of
India , (2013) 15 SCC 578 : (2014) 6 SCC (Cri) 566] , SCC p.
597, para 41)

“ 41 . From the various decisions relied upon by
the petitioner counsel as well as by respondents'
counsel, the following principles can be culled out.

41.1 . The test of admissibility of evidence lies in
its relevancy.

41.2 . Unless there is an express or implied
constitutional prohibition or other law, evidence placed
as a result of even an illegal search or seizure is not
liable to be shut out.

41.3 . If deficiency in investigation or
prosecution is visible or can be perceived by lifting
the veil which try to hide the realities or covering
the obvious deficiency, courts have to deal with
the same with an iron hand appropriately within
the framework of law.

41.4 . It is as much the duty of the
prosecutor as of the Court to ensure that full and
material facts are brought on record so that there
might not be miscarriage of justice.

41.5 . In order to ensure that the criminal
prosecution is carried on without any deficiency, in
appropriate cases this Court can even constitute
Special Investigation Team and also give
appropriate directions to the Central and State
Governments and other authorities to give all
required assistance to such specially constituted
investigating team in order to book the real
culprits and for effective conduct of the
prosecution.

41.6 . While entrusting the criminal prosecution
with other instrumentalities of State or by constituting a
Special Investigation Team, the High Court or this Court
can also monitor such investigation in order to ensure
proper conduct of the prosecution.

39
41.7 . In appropriate cases even if the
charge-sheet is filed it is open for this Court or
even for the High Court to direct investigation of
the case to be handed over to CBI or to any other
independent agency in order to do complete
justice.

41.8 . In exceptional circumstances the Court
in order to prevent miscarriage of criminal justice
and if considers necessary may direct for
investigation de novo. ”


38. In Dharam Pal [ Dharam Pal v. State of Haryana ,
(2016) 4 SCC 160 : (2016) 2 SCC (Cri) 259] , after taking
into consideration the catena of decisions on the point, it
is observed and held that the constitutional courts can
direct for further investigation or investigation by some
other investigating agency. It is observed that the
purpose is, there has to be a fair investigation and a fair
trial. It is observed that the fair trial may be quite
difficult unless there is a fair investigation. It is further
observed and held that the power to order fresh, de novo
or reinvestigation being vested with the constitutional
courts, the commencement of a trial and examination of
some witnesses cannot be an absolute impediment for
exercising the said constitutional power which is meant
to ensure a fair and just investigation.

39. While observing and holding so in Dharam
Pal [ Dharam Pal v. State of Haryana , (2016) 4 SCC 160 :
(2016) 2 SCC (Cri) 259] , in paras 24 and 25, it is observed and
held as under : (SCC pp. 170-71)

“ 24 . Be it noted here that the constitutional
courts can direct for further investigation or
investigation by some other investigating agency. The
purpose is, there has to be a fair investigation and a fair
trial. The fair trial may be quite difficult unless there is a
fair investigation. We are absolutely conscious that
direction for further investigation by another agency has
to be very sparingly issued but the facts depicted in this
case compel us to exercise the said power. We are
disposed to think that purpose of justice commands that
the cause of the victim, the husband of the deceased,
deserves to be answered so that miscarriage of justice is

40
avoided. Therefore, in this case the stage of the case
cannot be the governing factor.

25 . We may further elucidate. The power to order
fresh, de novo or reinvestigation being vested with the
constitutional courts, the commencement of a trial and
examination of some witnesses cannot be an absolute
impediment for exercising the said constitutional power
which is meant to ensure a fair and just investigation. It
can never be forgotten that as the great ocean has only
one taste, the taste of salt, so does justice have one
flavour, the flavour of answering to the distress of the
people without any discrimination. We may hasten to
add that the democratic set-up has the potentiality of
ruination if a citizen feels, the truth uttered by a poor
man is seldom listened to. Not for nothing it has been
said that sun rises and sun sets, light and darkness,
winter and spring come and go, even the course of time
is playful but truth remains and sparkles when justice is
done. It is the bounden duty of a court of law to uphold
the truth and truth means absence of deceit, absence of
fraud and in a criminal investigation a real and fair
investigation, not an investigation that reveals itself as a
sham one. It is not acceptable. It has to be kept
uppermost in mind that impartial and truthful
investigation is imperative. If there is indentation or
concavity in the investigation, can the “faith” in
investigation be regarded as the gospel truth? Will it
have the sanctity or the purity of a genuine
investigation? If a grave suspicion arises with regard to
the investigation, should a constitutional court close its
hands and accept the proposition that as the trial has
commenced, the matter is beyond it? That is the “tour
de force” of the prosecution and if we allow ourselves to
say so it has become “idée fixe” but in our view the
imperium of the constitutional courts cannot be stifled or
smothered by bon mot or polemic. Of course, the
suspicion must have some sort of base and foundation
and not a figment of one's wild imagination. One may
think an impartial investigation would be a nostrum but
not doing so would be like playing possum. As has been
stated earlier, facts are self-evident and the grieved
protagonist, a person belonging to the lower strata. He
should not harbour the feeling that he is an “orphan
under law”.”

41
40. Now, so far as the reliance placed upon the
decision of this Court in VinubhaiHaribhai
Malaviya [ VinubhaiHaribhai Malaviya v. State of Gujarat ,
(2019) 17 SCC 1 : (2020) 3 SCC (Cri) 228] , relied upon
on behalf of the respondent-accused is concerned, it is
required to be noted that in the said decision, this Court
was considering the powers of the Magistrate. Even in the
said decision, it is observed and held that there is no
good reason given by the Court as to why a Magistrate's
powers to order further investigation would suddenly
cease upon process being issued. It is further observed
that power of the police to further investigate the offence
continues right till the stage the trial commences. It is
further observed that Article 21 of the Constitution
demands no less than a fair and just investigation. In para
42 as such, it is observed and held as under : (SCC pp. 39-40)

“ 42 . There is no good reason given by the
Court in these decisions as to why a Magistrate's
powers to order further investigation would
suddenly cease upon process being issued, and an
accused appearing before the Magistrate, while
concomitantly, the power of the police to further
investigate the offence continues right till the
stage the trial commences. Such a view would not
accord with the earlier judgments of this Court, in
particular, Sakiri [ Sakiri Vasu v. State of U.P. ,
(2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440]
, Samaj Parivartan Samudaya [ Samaj Parivartan
Samudaya v. State of Karnataka , (2012) 7 SCC 407
: (2012) 3 SCC (Cri) 365] , Vinay Tyagi [ Vinay
Tyagi v. Irshad Ali , (2013) 5 SCC 762 : (2013) 4
SCC (Cri) 557] , and Hardeep Singh [ Hardeep
Singh v. State of Punjab , (2014) 3 SCC 92 : (2014)
2 SCC (Cri) 86] ; Hardeep Singh [ Hardeep
Singh v. State of Punjab , (2014) 3 SCC 92 : (2014)
2 SCC (Cri) 86] having clearly held that a criminal
trial does not begin after cognizance is taken, but
only after charges are framed. What is not given
any importance at all in the recent judgments of
this Court is Article 21 of the Constitution and the
fact that the Article demands no less than a fair
and just investigation. To say that a fair and just
investigation would lead to the conclusion that the police
retain the power, subject, of course, to the Magistrate's

42
nod under Section 173(8) to further investigate an
offence till charges are framed, but that the supervisory
jurisdiction of the Magistrate suddenly ceases midway
through the pre-trial proceedings, would amount to a
travesty of justice, as certain cases may cry out for
further investigation so that an innocent person is not
wrongly arraigned as an accused or that a prima facie
guilty person is not so left out. There is no warrant for
such a narrow and restrictive view of the powers of the
Magistrate, particularly when such powers are traceable
to Section 156(3) read with Section 156(1), Section 2( h )
and Section 173(8)CrPC, as has been noticed
hereinabove, and would be available at all stages of the
progress of a criminal case before the trial actually
commences. It would also be in the interest of justice
that this power be exercised suo motu by the Magistrate
himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is
within the discretion of the learned Magistrate who will
exercise such discretion on the facts of each case and in
accordance with law. If, for example, fresh facts come to
light which would lead to inculpating or exculpating
certain persons, arriving at the truth and doing
substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding
the criminal proceeding, as was held
in HasanbhaiValibhai Qureshi [ HasanbhaiValibhai
Qureshi v. State of Gujarat , (2004) 5 SCC 347 : 2004
SCC (Cri) 1603] . Therefore, to the extent that the
judgments in AmrutbhaiShambhubhai
Patel [ AmrutbhaiShambhubhai
Patel v. SumanbhaiKantibhai Patel , (2017) 4 SCC 177 :
(2017) 2 SCC (Cri) 331] , Athul Rao [ Athul Rao v. State
of Karnataka , (2018) 14 SCC 298 : (2019) 1 SCC (Cri)
594] and Bikash Ranjan Rout [ Bikash Ranjan
Rout v. State (NCT of Delhi) , (2019) 5 SCC 542 : (2019)
2 SCC (Cri) 613] have held to the contrary, they stand
overruled. Needless to add, Randhir Singh Rana v. State
(Delhi Admn.) [ Randhir Singh Rana v. State (Delhi
Admn.) , (1997) 1 SCC 361] and Reeta Nag v. State of
W.B. [ Reeta Nag v. State of W.B. , (2009) 9 SCC 129 :
(2009) 3 SCC (Cri) 1051] also stand overruled.”

…. …. ….

43
42. Applying the law laid down by this Court
in Dharam Pal [ Dharam Pal v. State of Haryana , (2016) 4
SCC 160 : (2016) 2 SCC (Cri) 259] and Bharati
Tamang [ Bharati Tamang v. Union of India , (2013) 15
SCC 578 : (2014) 6 SCC (Cri) 566] and to do the complete
justice and in furtherance of fair investigation and fair
trial, the constitutional courts may order further
investigation/reinvestigation/de novo investigation even
after the charge-sheet is filed and the charges are
framed. If the submission on behalf of the accused and even as
observed by the High Court that once the charge-sheet is filed
and the charges are framed, there may not be any order for
further investigation/reinvestigation/de novo investigation is
accepted, in that case, the accused may see to it that the
charges are framed to avoid any fair investigation/fair trial. It
would lead to travesty of justice.
…. …. ….

47. It can be seen from the aforesaid that there was no
proper investigation by the State investigating agency at the
relevant time and even the material evidences were also not
collected. At the cost of repetition, it is observed that during the
pendency of the writ petition before the High Court and
pursuant to the various orders passed by the High Court, the
State investigating agency were compelled to investigate in the
matter and belatedly Accused 13 was charge-sheeted in the
month of March 2022. Even according to the State investigating
agency, still the further investigation is required on certain
aspects. Some of the illustrations/instances which required
further investigation are narrated in Para 4 of the counter-
affidavit filed on behalf of Respondents 1 to 3. Elaborate reasons
and on what further investigation is required has not been
stated on the apprehension that if the same is disclosed at this
stage, it may frustrate the very purpose of the
investigation/further investigation.

48. Be that as it may, even according to the State
investigating agency, the further investigation is required. As
observed and held by this Court in the aforesaid
decisions, the victim has a fundamental right of fair
investigation and fair trial. Therefore, mere filing of the
charge-sheet and framing of the charges cannot be an
impediment in ordering further

44
investigation/reinvestigation/de novo investigation, if
the facts so warrant .”

21.1. Earlier to the afore-quoted judgment in ANANT
THAKUR KARMUSE supra , the Apex Court in the case of
4
DEVENDRA NATH SINGH v. STATE OF BIHAR , observes that
this Court in exercise of its jurisdiction under Section 482 of the
Cr.P.C. may direct further investigation if the investigation is not in
the proper direction or otherwise, and holds as follows:
"…. …. ….
35. In Vinay Tyagi [ Vinay Tyagi v. Irshad Ali , (2013) 5
SCC 762 : (2013) 4 SCC (Cri) 557] , this Court dealt with the
wide range of issues relating to the powers of the High Court
under Section 482CrPC as also the powers of the Magistrate
under Section 173CrPC; and different vistas of the processes of
conducting “fresh investigation” and/or “further investigation”.
This Court observed and held as under : (SCC pp. 791-93, paras
43-45 & 48-49)

“ 43 . At this stage, we may also state another
well-settled canon of criminal jurisprudence that the
superior courts have the jurisdiction under Section 482
of the Code or even Article 226 of the Constitution of
India to direct “further investigation”, “fresh” or “de
novo” and even “reinvestigation” . “Fresh”, “de novo”
and “reinvestigation” are synonymous expressions and
their result in law would be the same. The superior
courts are even vested with the power of
transferring investigation from one agency to
another, provided the ends of justice so demand
such action. Of course, it is also a settled principle
that this power has to be exercised by the superior

4
(2023) 1 SCC 48

45
courts very sparingly and with great
circumspection .

44 . We have deliberated at some length on the
issue that the powers of the High Court under Section
482 of the Code do not control or limit, directly or
impliedly, the width of the power of the Magistrate
under Section 228 of the Code. Wherever a charge-
sheet has been submitted to the court, even this Court
ordinarily would not reopen the investigation, especially
by entrusting the same to a specialised agency . It can
safely be stated and concluded that in an
appropriate case, when the Court feels that the
investigation by the police authorities is not in the
proper direction and that in order to do complete
justice and where the facts of the case demand, it
is always open to the Court to hand over the
investigation to a specialised agency . These
principles have been reiterated with approval in the
judgments of this Court in Disha v. State of
Gujarat [ Disha v. State of Gujarat , (2011) 13 SCC 337 :
(2012) 2 SCC (Cri) 628] , v.
Vineet Narain Union of
India [ Vineet Narain v. Union of India , (1998) 1 SCC 226
: 1998 SCC (Cri) 307] , Union of India v. Sushil Kumar
Modi [ Union of India v. Sushil Kumar Modi , (1996) 6
SCC 500] and Rubabbuddin Sheikh v. State of
Gujarat [ Rubabbuddin Sheikh v. State of Gujarat ,
(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] .

45 . The power to order/direct
“reinvestigation” or “de novo” investigation falls
in the domain of higher courts, that too in
exceptional cases . If one examines the provisions of
the Code, there is no specific provision for cancellation
of the reports, except that the investigating agency can
file a closure report (where according to the
investigating agency, no offence is made out). Even
such a report is subject to acceptance by the learned
Magistrate who, in his wisdom, may or may not accept
such a report. For valid reasons, the court may, by
declining to accept such a report, direct “further
investigation”, or even on the basis of the record of the
case and the documents annexed thereto, summon the
accused.
*

46
48 . What ultimately is the aim or
significance of the expression “fair and proper
investigation” in criminal jurisprudence? It has a
twin purpose : Firstly, the investigation must be
unbiased, honest, just and in accordance with law;
secondly, the entire emphasis on a fair
investigation has to be to bring out the truth of the
case before the court of competent jurisdiction.
Once these twin paradigms of fair investigation
are satisfied, there will be the least requirement
for the court of law to interfere with the
investigation, much less quash the same, or
transfer it to another agency. Bringing out the
truth by fair and investigative means in
accordance with law would essentially repel the
very basis of an unfair, tainted investigation or
cases of false implication. Thus, it is inevitable for
a court of law to pass a specific order as to the
fate of the investigation, which in its opinion is
unfair, tainted and in violation of the settled
principles of investigative canons.

49 . Now, we may examine another significant
aspect which is how the provisions of Section 173(8)
have been understood and applied by the courts and
investigating agencies. It is true that though there is no
specific requirement in the provisions of Section 173(8)
of the Code to conduct “further investigation” or file
supplementary report with the leave of the court, the
investigating agencies have not only understood but also
adopted it as a legal practice to seek permission of the
courts to conduct “further investigation” and file
“supplementary report” with the leave of the court. The
courts, in some of the decisions, have also taken a
similar view. The requirement of seeking prior leave of
the court to conduct “further investigation” and/or to file
a “supplementary report” will have to be read into, and
is a necessary implication of the provisions of Section
173(8) of the Code. The doctrine of contemporanea
expositio will fully come to the aid of such interpretation
as the matters which are understood and implemented
for a long time, and such practice that is supported by
law should be accepted as part of the interpretative
process.”
(emphasis supplied)
…. …. ….

47

40. In the course of this decision, this Court in Vinubhai
Haribhai Malaviya [ Vinubhai Haribhai Malaviya v. State of
Gujarat , (2019) 17 SCC 1 : (2020) 3 SCC (Cri) 228] exposited
on the theory and philosophy related with the aim of
investigation and inquiry as also on the wide range of powers of
the police and the Magistrate as regards investigation and
further investigation, inter alia, in the following passages :
( Vinubhai Haribhai Malaviya case [ Vinubhai Haribhai
Malaviya v. State of Gujarat , (2019) 17 SCC 1 : (2020) 3 SCC
(Cri) 228] , SCC pp. 15, 19 & 39, paras 18, 25 & 42)

“ 18 . It is clear that a fair trial must kick off
only after an investigation is itself fair and just.
The ultimate aim of all investigation and inquiry,
whether by the police or by the Magistrate, is to
ensure that those who have actually committed a
crime are correctly booked, and those who have
not are not arraigned to stand trial. That this is the
minimal procedural requirement that is the
fundamental requirement of Article 21 of the
Constitution of India cannot be doubted. It is the
hovering omnipresence of Article 21 over CrPC
that must needs inform the interpretation of all
the provisions of CrPC, so as to ensure that Article
21 is followed both in letter and in spirit.
*
25 . It is thus clear that the Magistrate's power
under Section 156(3)CrPC is very wide, for it is this
judicial authority that must be satisfied that a proper
investigation by the police takes place. To ensure that a
“proper investigation” takes place in the sense of a fair
and just investigation by the police—which such
Magistrate is to supervise—Article 21 of the Constitution
of India mandates that all powers necessary, which may
also be incidental or implied, are available to the
Magistrate to ensure a proper investigation which,
without doubt, would include the ordering of further
investigation after a report is received by him under
Section 173(2); and which power would continue to
enure in such Magistrate at all stages of the criminal
proceedings until the trial itself commences. Indeed,
even textually, the “investigation” referred to in Section
156(1)CrPC would, as per the definition of
“investigation” under Section 2( h ), include all
proceedings for collection of evidence conducted by a

48
police officer; which would undoubtedly include
proceedings by way of further investigation under
Section 173(8)CrPC.
*
42 . … To say that a fair and just investigation
would lead to the conclusion that the police retain the
power, subject, of course, to the Magistrate's nod under
Section 173(8) to further investigate an offence till
charges are framed, but that the supervisory jurisdiction
of the Magistrate suddenly ceases midway through the
pre-trial proceedings, would amount to a travesty of
justice, as certain cases may cry out for further
investigation so that an innocent person is not wrongly
arraigned as an accused or that a prima facie guilty
person is not so left out. There is no warrant for such a
narrow and restrictive view of the powers of the
Magistrate, particularly when such powers are traceable
to Section 156(3) read with Section 156(1), Section 2( h )
and Section 173(8)CrPC, as has been noticed
hereinabove, and would be available at all stages of the
progress of a criminal case before the trial actually
commences. It would also be in the interest of justice
that this power be exercised suo motu by the Magistrate
himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is
within the discretion of the learned Magistrate who will
exercise such discretion on the facts of each case and in
accordance with law. If, for example, fresh facts come to
light which would lead to inculpating or exculpating
certain persons, arriving at the truth and doing
substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding
the criminal proceeding.”

…. …. ….

45. For what has been noticed hereinbefore, we could
reasonably cull out the principles for application to the present
case as follows:

45.1. The scheme of the Code of Criminal
Procedure, 1973 is to ensure a fair trial and that would
commence only after a fair and just investigation. The
ultimate aim of every investigation and inquiry, whether by the
police or by the Magistrate, is to ensure that the actual

49
perpetrators of the crime are correctly booked and the innocents
are not arraigned to stand trial.

45.2. The powers of the Magistrate to ensure proper
investigation in terms of Section 156CrPC have been recognised,
which, in turn, include the power to order further investigation
in terms of Section 173(8)CrPC after receiving the report of
investigation. Whether further investigation should or should not
be ordered is within the discretion of the Magistrate, which is to
be exercised on the facts of each case and in accordance with
law.

45.3. Even when the basic power to direct further
investigation in a case where a charge-sheet has been
filed is with the Magistrate, and is to be exercised subject
to the limitations of Section 173(8)CrPC, in an
appropriate case, where the High Court feels that the
investigation is not in the proper direction and to do
complete justice where the facts of the case so demand,
the inherent powers under Section 482CrPC could be
exercised to direct further investigation or even
reinvestigation. The provisions of Section 173(8)CrPC do
not limit or affect such powers of the High Court to pass
an order under Section 482CrPC for further investigation
or reinvestigation, if the High Court is satisfied that such
a course is necessary to secure the ends of justice.

45.4. Even when the wide powers of the High Court
in terms of Section 482CrPC are recognised for ordering
further investigation or reinvestigation, such powers are
to be exercised sparingly, with circumspection, and in
exceptional cases.

45.5. The powers under Section 482CrPC are not
unlimited or untrammelled and are essentially for the
purpose of real and substantial justice. While exercising
such powers, the High Court cannot issue directions so as to be
impinging upon the power and jurisdiction of other authorities.
For example, the High Court cannot issue directions to the State
to take advice of the State Public Prosecutor as to under what
provision of law a person is to be charged and tried when

50
ordering further investigation or reinvestigation; and it cannot
issue directions to investigate the case only from a particular
angle. In exercise of such inherent powers in extraordinary
circumstances, the High Court cannot specifically direct that as a
result of further investigation or reinvestigation, a particular
person has to be prosecuted."

(Emphasis supplied at each instance)

The Apex Court in afore-quoted judgment holds that the
right to a fair investigation is not merely a statutory
entitlement but an inseparable facet of Article 21 of the
Constitution . A defective, truncated or one-sided investigation
strikes at the very root of a fair trial. Therefore, neither the
filing of the final report nor the framing of charges can
operate as an impregnable barrier against an order directing
further investigation where the ends of justice so demand.
The constitutional obligation of the Court is to discover the
truth and not merely to preserve the procedural status quo .
22. The cumulative effect of the aforesaid discussion
unmistakably persuades this Court to hold that the present case is
one of those exceptional cases where the interests of justice
command a fresh look into the investigation. The omissions noticed

51
are neither trivial nor technical. They strike at the very substratum
of the prosecution. To permit the trial to proceed on the foundation
of an investigation which, prima facie, appears to have overlooked
material facets of the occurrence would be to allow justice to travel
on an incomplete record. Such a course cannot receive the
imprimatur of a Constitutional Court.
23. Accordingly, the ends of justice would be best served if
further investigation is entrusted, not to the very
investigating machinery that conducted the earlier
investigation, but to the Crime Investigation Department
(CID) of the State , so that the investigation is carried to its logical
culmination in an independent, comprehensive and impartial
manner before the competent Court proceeds further with the trial.
24. For the aforesaid reasons, the following:

O R D E R

(i) Writ Petition is allowed.

(ii) Mandamus issues to the State to entrust further
investigation into the matter to a different investigating
agency i.e., the Crime Investigation Department, who

52
shall further investigate the matter and submit a report
of that investigation before the concerned Court, within
an outer limit of three months from the date of such
entrustment. The entrustment shall happen within
fifteen days from the date of the receipt of a copy of
this order.

(iii) Till the Crime Investigation Department submits its
report, the concerned Court shall not proceed with the
trial and regulate its procedure thereafter, based on the
report of the Crime Investigation Department, in
accordance with law.

Ordered accordingly.







Sd/-
(M.NAGAPRASANNA)
JUDGE





bkp
CT:MJ