Allahabad High Court
Most Rev John Augustine vs State Of U.P. And 2 Others on 24 May, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:114158 Reserved on : 28.03.2023 Delivered on : 24.05.2023 Court No. - 71 Case :- APPLICATION U/S 482 No. - 7818 of 2023 Applicant :- Most Rev John Augustine Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Deepak Kumar Pandey, Deepak Kumar Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal, J.
1. List revised.
2. Heard Sri Deepak Kumar Pandey, learned counsel for the applicant and Sri Abhijeet Mukherjee, learned brief holder for the State and perused the records.
3. The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Most Rev John Augustine with the following prayers:-
"It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the impugned final report dated 18.01.2021 submitted in Case Crime No. 0281 of 2019 under Section 419, 420, 467, 468, 471 IPC, District Prayagraj and further may also be graciously be pleased to direct the opposite parties to conduct reinvestigation or further investigation in Case Crime No. 281 of 2019, under Section 419, 420, 467, 468 and 471 of IPC, P.S. Civil Lines, District Prayagraj in view of law laid down by Hon'ble Apex Court in the case of Devendra Nath Singh Vs. State of Bihar and others [2022 (0) AIR (SC) 5344] considering the facts and circumstances of the present case, and/or to pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
It is further prayed that this Hon'ble Court may graciously be pleased to transfer the reinvestigation or further investigation in Case Crime No. 0281 of 2019 under Section 419, 420, 467, 468 and 471 of IPC, P.S. Civil Lines, District Prayagraj to Economic Offences (EOW) considering the facts and circumstances of the present case, and/or may pass such other and further order, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
4. The facts of the case are that a First Information Report was lodged on 13.07.2019 by the applicant John Augustine as Case Crime No. 281 of 2019, under Sections 419, 420, 467, 468, 471 IPC against 16 named persons and some unknown persons. The investigation took place after which a Final Report No. 27 of 2021 dated 18.01.2021 was submitted in favour of the accused persons. The applicant preferred a Criminal Misc. Writ Petition No. 21354 of 2019 (Most Rev. John Augustine Vs. State of U.P. and 4 others) with the prayer to transfer the investigation to the Central Bureau of Investigation. The said writ petition was dismissed vide order dated 15.09.2022 by a Division Bench of this Court observing that in the matter final report has been submitted on 14.02.2021 and as such the reliefs claimed in writ petition do not survive. The records show that the final report reached the court concerned on 17.02.2021 on which notice was directed to be issued to the informant. The matter then remained pending before the court concerned. In the meantime, the Senior Superintendent of Police concerned passed an order under Section 173(8) Cr.P.C. directing further investigation in the matter. The matter was taken up for further investigation subsequent to which the Final Report No. 27 of 2021 dated 18.01.2021 was reiterated by the Investigating Officer vide parcha No. SCD-6 dated 21.03.2023. The present petition has now been filed with the aforesaid prayers.
5. Learned counsel for the applicant argued that the applicant is the Bishop of Lucknow, Church of India which was established in the 18th Century. It is argued that Church of India saved Churches and other properties all over India and is responsible for managing the affairs thereof. The office bearers of Church North India established a Church in 1970 by impersonating themselves as the actual owners of the property and by forging the documents after which they sold many lands belonging to the Church of India to various persons and divided the proceeds amongst themselves. It is argued that the allegation in the present First Information Report is to the effect that the Church of North India has fraudulently sold of the property which belongs to the Church of India through forgery and impersonation. The Investigating Agency has been won over by accused persons and as such the investigation has not been done in a fair and partial manner. It is submitted that the present petition thus allowed, final report dated 18.01.2021 be quashed, the opposite parties be directed to conduct reinvestigation or further investigation in the matter and further the matter be transferred for reinvestigation or further investigation to the Economic Offences Wing (EOW).
6. Learned counsel has further placed the judgment of the Apex Court in the case of Devendra Nath Singh Vs. State of Bihar and others : 2022 LiveLaw (SC) 835 and while placing para 13 and 18 of the same, it is argued that the Apex Court has culled out the principles to be applied to ensure a fair trial. It is argued that as such the prayers be allowed and the petition be allowed.
7. Per contra, learned counsel for the State opposed the prayer and arguments of learned counsel for the applicant and argued that in so far as the final report is concerned, it has reached before the trial court and the said court has vide its order dated 17.02.2021 issued notice to the first informant on it. The matter was referred for further investigation by the Senior Superintendent of Police under the powers of superintendence and even after the same, the said final report was reiterated by the Investigating Agency. It is argued that the applicant may raise his grievances before the concerned trial court since he has been put to notice on the final report which is remedy available to him under law. It is submitted that the present petition is thus devoid of any merit and deserves to be dismissed.
8. After having heard learned counsels for the parties and perusing the records, it is evident that a First Information Report lodged by the applicant was subjected to investigation, the Investigating Agency filed a final report in favour of the accused persons which was registered by the trial court and notice was issued to the first informant. The Senior Superintendent of Police while exercising of powers under Section 173(8) Cr.P.C. sent the matter for further investigation. After further investigation, the said final report was again reiterated. The applicant who is the first informant has filed the present petition before this Court with the prayers as aforesaid.
9. The Apex Court in the case of Bhagwant Singh Vs. Commr. of Police : (1985) 2 SCC 537 has held that if a final report is filed then the Magistrate three courses before him being that he may accept the report and drop the proceeding or he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or he may direct further investigation to be made by the police under sub-section (3) of Section 156. It has been held as follows :
"4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can. therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the first information report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
(emphasis supplied)
10. Further in the case of Union of India Vs. Prakash P. Hinduja : (2003) 6 SCC 195 it has been held by the Apex Court that the Magistrate is not bound to accept the final report submitted by the police. It has been held in paragraph 14 as under :-
"14. The Magistrate is no doubt not bound to accept the final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 CrPC. The statutory provisions are, therefore, absolutely clear that the court cannot interfere with the investigation."
11. In so far as the prayer for transfer of Investigation to the Economic Offence Wing (EOW) is concerned, the law on the issue is trite. It is well settled that no one can insist that an offence be investigated by a particular agency. The Apex Court in the case of Sakiri Vasu Vs. State of U.P. : (2008) 2 SCC 409 has in para 10 held as under :-
"10. It has been held by this Court in CBI v. Rajesh Gandhi [(1996) 11 SCC 253 : 1997 SCC (Cri) 88 : 1997 Cri LJ 63] (vide para 8) that no one can insist that an offence be investigated by a particular agency. We fully agree with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice."
12. In the present case although a final report has been submitted after which notice was issued to the first informant on it by the concerned trial Court and subsequently the matter was ordered to be investigated further by the Senior Superintendent of Police concerned subsequent to which the final report was again reiterated by the Investigating Officer and the matter is still pending before the trial court, the trial court as per the settled principles of law is empowered to exercise its powers as per law, there does not appear any justifiable reason to interfere in the present petition under Section 482 Cr.P.C with regards to the prayer for quashing the final report and sending the matter for re-investigation. Further since the final report is pending consideration before the trial court there is no abuse of process of court which would call upon this Court to exercise its jurisdiction under Section 482 Cr.P.C. Further in so far as the prayer for transfer of investigation to the Economic Offences Wing (EOW) is concerned, the law is well settled that no one can insist that an offence be investigated by a particular agency and as such the said prayer also does not call for any such order being passed by this Court.
13. The present application under Section 482 Cr.P.C. is thus devoid of any merit and is dismissed.
Order Date :- 24.05.2023 M. ARIF (Samit Gopal, J.)