Rajasthan High Court - Jodhpur
Mahesh Dan vs State on 24 March, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Revision No. 825/2013
Maheshdan s/o Bherudan Ji, by caste Charan, R/o 3 Tilak Nagar
II, Bhadwasia, Jodhpur.
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner : Mr. Mahesh Bora, Senior Advocate, assisted
by Mr. Nishant Bora
For Respondent : Mr. R.K. Bohra, P.P., for the State.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 24/03/2017 Accused-petitioner, Maheshdan, in this criminal revision petition under Section 397 read with Section 401 Cr.P.C. has assailed impugned order dated 7th of October 2013 passed by Special Judge, Anti Corruption Cases, Udaipur (for short, 'learned Court below'), pertaining to FIR No.209/11 (FR No.41/12) of Anti Corruption Bureau Outpost, Udaipur, whereby learned Court below has sent the matter for reinvestigation.
Facts, in brief, giving rise to this revision petition are that on 13th of March 2011 one Ali Koshar submitted a complaint before Addl. Superintendent of Police, Anti Corruption Bureau, Udaipur alleging therein that he purchased a shop on Chetak Marg, (2 of 9) [CRLR-825/2013] Udaipur and in connection with registration of its sale deed when contacted concerned clerk Mahesh in the office of Sub Registrar, he demanded bribe of Rs.5,000/- for handing it over to his higher officer. The officials of Anti Corruption Bureau, on receiving the said complaint, confirmed it and after its verification conducted trap proceedings calling independent witnesses at the scheduled time and place, but, on the appointed day and time, the complainant did not handover bribe money to the concerned Clerk, accused-petitioner herein, and moved an application for withdrawing his complaint, therefore, the trap proceedings, as slated could not materialized and failed. However, an FIR was registered by the Anti Corruption Officials bearing No.209/11 and investigation commenced. Later on, after completion of investigation in the matter, negative Final Report No.41/12 was submitted by Anti Corruption Bureau before learned Court below which in turn sent a notice to the complainant but he did not appear despite service. The learned Court below did not accept the negative final report filed by Anti Corruption Bureau and sent the matter back to the investigating agency for reinvestigation by its order dated 7th of October 2013 against which the present revision petition is filed by the accused-petitioner on 5.10.2013.
At the very inception, on 29th of October, 2013, when the revision petition came up on board, this Court stayed impugned order dated 7th of October 2013 passed by learned Court below taking into consideration the submission of learned Senior Counsel appearing for the petitioner that the learned Court below had no (3 of 9) [CRLR-825/2013] power to send back the matter to investigating agency for re- investigation in the matter.
Learned Senior Counsel, Mr. Mahesh Bora, appearing for the petitioner argues that when the complainant himself has withdrawn the complaint and investigating agency after completion of investigation has submitted negative Final Report, the learned Court below has over-stepped its jurisdiction in ordering re-investigation in the matter. It is also argued by the learned Senior Counsel that during investigation no incriminating evidence is found against the accused-petitioner and even the trap organized to catch hold of the accused-petitioner foiled and furthermore withdrawal of complaint by the complainant has rendered the impugned order per se vulnerable inasmuch as even after re-investigation there is hardly any possibility of coming incriminating evidence to the fore against the petitioner. Learned Senior Counsel further argued that proceedings have been stayed since 29th of October 2013 and after a lapse of more than three years it would not be appropriate to thwart the plea of the accused the impugned order. Learned Senior Counsel has relied on a decision of Supreme Court in the case of Vinay Tyagi Vs. Irshad Ali alias Deepak & Ors. [(2013) 5 SCC 762].
Per contra, learned Public Prosecutor has opposed the revision petition in general.
(4 of 9) [CRLR-825/2013] I have heard learned Senior Counsel for the petitioner as well as learned Public Prosecutor and perused the impugned order passed by learned Court below.
The point involved in the present case is whether the Court below is clothed with the power to send the matter back for reinvestigation despite the complainant having withdrawn his complaint and the investigating agency filed a negative final report after investigation. In this context, it would be apposite to take note of Section 173 of the Code.
Section 173. Report of police officer on completion of investigation -
(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating -
(a)the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170;
(5 of 9) [CRLR-825/2013]
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376, 376A, 376B, 376C or 376D of the Indian Penal Code.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. xxx (8) Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such an investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).
Sub Section (8) of Section 173 Cr.P.C., as quoted hereinabofe, makes it crystal clear that under sub-section (2) of Section 173 Cr.P.C., the police can undertake further investigation but not fresh investigation or reinvestigation in respect of an offence.
The Supreme Court, in State through CBI Vs. Raj Kumar Jain [(1998) 6 SCC 551] has held that the Court cannot in ordinary circumstance reopen the investigation, and observed as follows:
(6 of 9) [CRLR-825/2013] As regards the direction for further investigation, it is, of course, true that the Special Judge has power to so direct if he finds, on consideration of the police report, that the opinion formed by the Investigating Officer seeking discharge of the respondent is not based on full and complete investigation, as observed by this Court in Abhinandan Jha v. Dinesh Mishra. Unfortunately, however, in issuing the above direction the Special Judge has not given any reason whatsoever which prompted him to direct further investigation nor does it appear that he has gone through the police report and its accompaniments.
After recording the above finding the usual order which we are required to make is to remand the matter to the special Judge with a direction to look into the report under Section 173(2) Cr. P.C. and the documents referred to therein to decide whether further investigation should be ordered or not. But considering the facts, that since the case was registered more than 10 years have elapsed and that such a direction would further delay the matter we have for ourselves looked into those documents and found that a thorough investigation has been made and the opinion expressed by the C.B.I. that no prima facie case was made out against the respondent is just and proper.
Yet again, Supreme Court in the case of Ramchandran Vs. R. Udhayakumar & Ors. [(2008) 5 SCC 413] had the occasion to consider question of reinvestigation after completion of investigation. The Court observed:
"At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under Sub-section (2) of Section 173 of the Code, the police has right to further investigate under Sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and Ors. It was, inter alia, observed as follows:
24. The dictionary meaning of "further"
(when used as an adjective) is "additional; more; supplemental".
"Further" investigation therefore is the (7 of 9) [CRLR-825/2013] continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that Sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports -- and not fresh report or reports -- regarding the "further" evidence obtained during such investigation.
In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible.
In Vinay Tyagi (supra), Supreme Court held:
"However, in the case of a 'fresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct 'fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a 'fresh investigation'. xxx (8 of 9) [CRLR-825/2013] Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct 'further investigation' or 'fresh investigation'. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar v. State of Kerala; Ramachandran v. R. Udhayakumar; Nirmal Singh Kahlon v. State of Punjab and Ors.; Mithabhai Pashabhai Patel and Ors. v. State of Gujarat; and Babubhai v. State of Gujarat.
xxx Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173 and Section 156 of the Code:
1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173 of the Code.
x x x"
In the instant case, the trap proceedings failed and the complainant withdrew his complaint stating that he is not interested in pursuing the same. However, on filing negative final report, the learned Court below has ordered for reinvestigation in the matter without recording reasons and eschewing relevant facts by exceeding its jurisdiction. As a matter of fact, in such an (9 of 9) [CRLR-825/2013] eventuality, it was not expected of the Court below to have issued directions for reinvestigation in the matter. Therefore, in the backdrop of peculiar factual matrix and taking note of the law enunciated by the Supreme Court, it was not in the domain of the Court below to have ordered for reinvestigation in the matter. Consequently, the impugned order is clearly uncalled for and without jurisdiction as the directions for reinvestigation or fresh investigation are clearly indefensible and entails interference by this Court by setting aside the impugned order.
Resultantly, the revision petition is allowed. Impugned order dated 7th of October 2013, passed by Special Judge, Anti Corruption Cases, Udaipur, is quashed and set aside and further proceedings in the matter are dropped.
(P.K. LOHRA)J. arora/