Karnataka High Court
J. Alexander, I.A.S., Major vs State Of Karnataka on 18 August, 1995
Equivalent citations: 1996CRILJ592, ILR1995KAR2578, 1995(4)KARLJ227
Author: R.V. Raveendran
Bench: R.V. Raveendran
JUDGMENT Rajendra Babu, J.
1. This petition is directed against an order made by the learned Special Judge functioning under the Prevention of Corruption Act, 1988, on 17-6-1993 by which he allowed the Karnataka Lokayukta to continue the investigation into the offence against the petitioner in accordance with Section 173(8) of the Criminal Procedure Code and to take all possible steps in consequence thereof, in accordance with law.
2. The brief facts leading to this case are that on 22-6-1990 the Lokayukta police registered a case in LAC (Crime) No. 14/1990 for the offences arising under sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 and filed a 'B' report in terms of Section 173(2) read with Section 169, Cr.P.C. on 30-11-1991. The said 'B' report was accepted by an order made on 11-12-1991 by the learned Special Judge, as provided under section 173(4), Cr.P.C. An application was filed under section 178, Cr.P.C. on 7-6-1993 to recall the order dated 11-12-1991 and seeking permission for investigation. However, the learned Special Judge made an order as aforesaid on 17-6-1993.
3. The learned counsel for the petitioner raised the following contentions : that the order made on 11-12-1991 accepting 'B' reports is a judicial order resulting in adjudication of rights between parties as has been observed by the Supreme Court in Kamalapati Trivedi v. State of West Bengal, AIR 1979 SC 771 : (1979 Cr LJ 679 (SC) and is final; that there is no power of review available under the Criminal Procedure Code and when once an order is made that becomes final, and drew out attention to Section 362, Cr.P.C. placing reliance upon the decision of the Supreme Court in and ; that the learned Special Judge if at all wanted to consider the application under section 173(8) of the Code, should have issued notice to the petitioner and heard him; that no notice was issued to him much less was he heard in the matter before passing the order under Revision.
4. A persual of the order under Revision would indicate that it is only to the effect of allowing the Karnataka Lokayukta to continue investigation into the offences against the accused under section 173(8), Cr.P.C. and to take all other steps in the matter. The learned Special Judge did not review or set aside the order made earlier accepting 'B' report nor recalled the order. He merely enabled the police to continue with the investigation which in any event is within the statutory powers of the police under section 173(8) of the Code. The question that really for consideration is the scope and effect of Sections 173(4) and 173(8), Cr.P.C.
5. Even without an order from the Court the police have power to investigate further into a matter on plain terms of Section 173(8) of the Code when there is no matter pending in Court and any order made by Court does not amount to acquittal or conviction. In Ram Lal Narang v. State (Delhi Admn.), , while considering the question as to the effect of Section 173(8) introduced into the Criminal Procedure Code, the Supreme Court made certain observations as follows :
"..... We think that in the interests of independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light".
It is only in deference to these observations, information had been laid before the Court and its permission sought for continuation of the investigation because on an earlier occasion a 'B' report had been made and accepted.
6. However, Sri Nagesh, learned counsel for the petitioner sought to make a distinction between the decision in Ram Lal Narang's case referred to above and the present case on the ground that it is only in cases where cognizance is taken, the power under section 173(8) allowing the police to investigate further should be exercised and not in other cases. In support of this proposition, the learned counsel relied upon a series of decisions in 1988 Cr LJ 214; 1991 Cr LJ 3329; 1982 Cr LJ 1020 (All) 1988 (1) All India Cr LR 646 (P & H); 1977 Cr LJ 262 (Delhi) and 1988 (2) All India Cr LR 952.
7. Section 173(8) Cr.P.C. reads as follows :-
"S. 173(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 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)".
It opens with a non-obstante clause that nothing stated in the section would preclude further investigation after a report under sub-section (2) had been forwarded to the Magistrate. A report submitted to the Court may either result in taking cognizance as a result of a report as contemplated under section 170 of the Code or discharge of bond on a report made under section 169 of the Code. Where upon 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 under the provisions. The applicability of sub-sections (2) to (6) of Section 173 of the Code would make it clear that each of the subsequent reports made further would also become report for the purpose of Section 173(2), Cr.P.C.
8. Section 173(8) came to be introduced into the Code pursuant to 41st Report of the Law Commission. It is pertinent to refer to the said portion of the Report which is extracted hereunder :
"14.23. A report under section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the Police Officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate Copies concerning the fresh material must be of course furnished to the accused." The view of the Courts in the cases relied on for petitioner or that once a final report under section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation, in the opinion of the Law Commission, was a narrow view and places hindrance in the way of the Investigation Agency which can be very unfair to the proposition and, for that matter, even to the accused. To obviate such a difficulty, Section 173, Cr.P.C. was amended to enable the competent police officer to examine evidence collected further to report under Section 173(2) and send a further report to the Magistrate. Thus the object of Section 173(8) is clear and it is not confined only to cases where cognizance is taken.
9. What is contemplated under section 173(4) of the Code though a judicial function, it is implicit in the exercise of that discretion in accepting a report sent should ordinarily mean that the Court has to satisfy itself that the executive function of the Investigating Officer has not been improperly exercised or that it is not an attempt to interfere with the normal course for extraneous reasons or purposes. When a report is made under section 169 read with Section 173 of the Code what is necessary for the Court is to find out whether the material is insufficient to send up the accused person for trial. The provisions of the Section under consideration does not mandate the Court to record any reasons before accepting such report. However, it would not mean that the acceptance is a matter of course. What the Court does then is consider the materials collected in the course of investigation either accepting the report or adopt any of the other course indicated in Kamalapati Trivedi v. The State of West Bengal, . The provisions of law in question cannot be construed as giving a finality to the matter such as would result in discharge much less an acquittal or conviction. It is only in such cases the proceedings of the Special Court could be stated to have reached a stage of finality of any kind wherein the principles of autrefois acquit or autrefois convict could be invoked. Indeed, this very question came up for consideration before the Supreme Court in Raghubans Dubey v. State of Bihar, . In that case, the police did not include the name of an accused in the Final report under section 173, Cr.P.C., but mentioning his name under the heading 'not sent up'. The Sub-Divisional Magistrate transferred the case to the Magistrate for enquiry with an order that the said accused who was sent up for trial was discharged. The Magistrate after recording evidence summoned the said person as accused. This action of the Magistrate was called in question before the High Court. It was contended that the order of discharge by the Sub-Divisional Magistrate was final and judicial refusal to summon amounted to discharge. The Supreme Court held that the contention had no force because there could not be any question of discharge when the said accused was not sent up on the report submitted by the police. The position in the present case is identical. The petitioner was not sent up the report stating that there were insufficient grounds. Therefore, it cannot be said that there has been any discharge or acquittal of the petitioner. It is only in such cases that a finality would be reached.
10. When cognizance of an offence is taken and the Court starts enquiry into the matter by issue of appropriate process, Court is fully seized of the matter and in such cases with the permission of the Court if further reports could be made as provided under section 173(8), We fail to understand as to why such course of action could not be taken under the said provision when no case is pending before the Court. In the event that accused are not sent up for want of sufficient grounds and subsequently vital material is gathered to show that accused has committed the offence and needs to be investigated further or fresh material is gathered requiring further investigation of the matter and the Court not being seized of the matter, it was presumed the police have a statutory right and duty to perform such act even without reference to the Court. But, in order to see that the Court retains its control over the proceedings as observed by the Supreme Court in Ram Lal Narang's case, , to which we have already made reference, it becomes necessary to intimate the Court and thereafter pursue with the matter.
11. This Court in Kishan Rao v. State of Mysore, 1966 (1) Mys LJ 127, had taken the view that there is no provision in the Code prohibiting a Magistrate from taking cognizance of a charge-sheet and proceeding with the trial of the case, even though the 'B' Report submitted by the police had been accepted by him earlier. The view expressed by this Court is in conformity with what has been stated by the Supreme Court in Raghubans Dubey's case , wherein it is observed that the police report stating that no case was made out against a person and Sub-Divisional Magistrate transferred the case to the Magistrate for inquiry with an order that he was discharged, the contention that the order of the Sub-Divisional Magistrate was final and judicial refusal to summon amounted to discharge was rejected because there could not be any discharge when he was not sent up upon charge-sheet filed by the police. This Court having already taken the view consistent with that of the Supreme Court, it may not be necessary to refer to the decisions of other High Court in any detail.
12. Even when Section 173(8) in the present form was not available under the Code, this Court took the view that in case a report is made under Section 173(2) Cr.P.C. relatable to Section 169, Cr.P.C. cognizance could be taken upon a charge-sheet subsequently made. Hence there is no impediment to the Special Judge to make an order under Section 173(8), Cr.P.C. according permission to police for further investigation. Section 173(2) Cr.P.C. requires a report being filed before the Court by the police whether under section 169 or 170, Cr.P.C. In case of the former accused are not sent up but released on bond for appearance before the Court, while in the case of latter, charge-sheet is filed sending up the accused for trial. A report contemplated under section 173(2) is not only in cases where cognizance could be taken but includes cases where such cognizance is not taken by the Court.
13. The views expressed by several Courts and the decisions to which reference has been made would only indicate that the matter has reached a finality and therefore it is not permissible to reopen the matter. We demur. In our view at the stage of acceptance of 'B' Report all that happens is that the Court accepts the 'B' Report on the basis of the material as available then. Even if further fresh material is discovered which calls for further investigation and if such investigation is not allowed then such course would be stultification of law and logic resulting in miscarriage of justice. In a country where there is cancerous growth of corruption with close links between the bureaucracy and politicians and such acts being done under shrouded mystery, it is difficult to assume that all facts could be revealed in one stroke. In such cases great effort is needed to discover material, and after securing further material, the Police seek to investigate the matter, the provisions of law cannot be interpreted to stifle such course of action. An order accepting the 'B' Report is not an immunity granted to an accused person, but merely a temporary relief subject to further investigation in the event good and fresh material is secured and investigation done. It is also possible that a sloppy or a dishonest Investigating Officer connives with the accused and sends up a 'B' report and if the higher officers discover the same and collect fresh or further material could it be said that the mere acceptance of 'B' Report sent by the junior officer would still stand even on discovery of such material and further investigation done by the Police. Such a course would lead to startling results. We do not think that is the intention of the Criminal Procedure Code either under section 173(4) or 173(8). A provision of law must be expected to read in such a manner that it advances the cause of justice and the interest of public, but not merely to bear in mind an action taken by the Courts while supervising investigation. Such act though characterised as judicial is nevertheless of supervisory character because at different stages of investigation different kinds of control are exercised by the Court.
14. However, the learned counsel for the petitioners urged that if police are given such powers it would result in reports being submitted 'ad infinitum' and parties concerned would be put to great harassment. We do not think so. The interest of justice may require further investigation into a matter and a fresh investigation report may have to be placed before the Court. Ordinarily it is desirable that the police should seek permission of the Court when a report has already been made to the Court as observed by the Supreme Court. When further investigation is under the control and supervision of the Court, We do not think such results can occur, there being sufficient safeguard in that regard.
15. The learned counsel for the petitioner however urged that such reports can only be supplemental to the original report made to the Court and unless a original report had been made to the Court and that report is still in existence, the question of making a further report would not arise. In this context, the learned counsel for the petitioners relied upon some of the decisions to earlier and particularly, 1988 (2) All Cri LR 952 (Kerala); State v. Gopa Kumar. It is submitted that a subsequent report cannot efface an earlier report. But, we do not think that, that would be the effect of Section 173(8) of the Code. Section 173(8), Cr.P.C. does not in terms refer to any 'Supplementary' report being made. What is provided under section 173(8), Cr.P.C., is sending of a further report. Where a report has already been made under section 173(2), Cr.P.C., a report sent after one report had already been made is a further report. Hence, there is no basis to conclude that is supplemental to the earlier report or has no independent existence.
16. We shall now consider the contention of the learned counsel for the petitioners that there was no hearing in the matter much less any notice was served on the party concerned. In this context, reliance was placed upon the decision of the Supreme Court in , Kamalapati Trivedi v. State of West Bengal, to contend that an order made by the Magistrate accepting a 'B' report is a judicial order determining the rights of the parties - the State on the one hand and the accused on the other, after application of mind. If that is so, the order passed must be characterised as a judicial act and therefore is one performed in its capacity as a Court. The order made by the Magistrate though judicial, is only of tentative character because even if there be adjudication of the matter, the order made by the Magistrate accepting a 'B' report could not become final because if certaain events or circumstances take place such a complaint being filed under section 200 and cognizance taken, further investigation can be directed, at any rate. If that be so, we fail to understand as to why any notice is required in such circumstances. In such circumstances that notice need not be given does not admit of any doubt. Therefore, at the stage when the police want to investigate the matter further in terms of Section 173(8) of the Code, without reference to the Court, question of issue of notice to the petitioner would not arise. Thus if merely an intimation is made to the Court and further investigation is done, how notice and hearing in the matter is required baffles us. At the stage of investigation the principles of Audi Alterm Partem do not apply. We are not impressed with any of the contentions advanced on behalf of the petitioner. Petition is therefore dismissed.
17. Petition dismissed.