Chattisgarh High Court
B.L. Agrawal vs State Bureau Of Investigation Of ... on 25 July, 2023
Author: Rajani Dubey
Bench: Ramesh Sinha, Rajani Dubey
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 18/07/2023
Judgment delivered on : 25/07/2023
Writ Appeal No. 354 of 2020
B.L. Agrawal, S/o Ram Kumar Agrawal, A/o 54 years, R/o
Samarth, Opp. United Timbers, New Timber Market,
Fafadih, Raipur, Chhattisgarh.
---- Appellant
Versus
1. State Bureau of Investigation of Economic Offences,
Through S.H.O. in front of Jai Jawan, Petrol Pump, G.E.
Road, Raipur, Chhattisgarh.
2. Directorate of Enforcement, Through the Deputy Director,
Raipur Zonal Office, A/1 Block Second Floor, Pujori
Chembers, Panchpedinaka, Raipur (CG)
---- Respondents
For Appellant(s) : Dr. N.K. Shukla, Sr. Advocate with Mr.
Abhimanyu Bhandari (through video
conferencing), Mr. Sourabh Dangi,
and Mr. Utsav Saxena, Advocates.
For Respondent No.1 : Mr. H.S. Ahluwalia, Dy. A.G.
For Respondent No.2 : Dr. Saurabh Kumar Pandey, Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Smt. Rajani Dubey, Judge
C A V JUDGMENT
Per Rajani Dubey, J
01. This appeal under Section 2 of the CG High Court (Appeal to Division Bench) Act, 2006 has been filed against the order dated 21.10.2019 passed by learned Single Judge in WPCR 2 No.8/2018 whereby the petition filed by the appellant challenging the order of the learned Special Judge (Prevention of Atrocities Act), Raipur dated 5.10.2017 in Closure Case No.06/2016 relating to FIR dated 19.2.2010 bearing Crime No.06/2010, has been dismissed.
02. Brief facts of the case are that an FIR was lodged against the appellant/petitioner on 19.2.2010 by Economic Offence Wing (EOW)/Anti Corruption Bureau (ACB), Raipur alleging that the appellant by misusing his position as a public servant amassed wealth disproportionate to his known lawful sources of income. The said report was lodged on the basis of communication received from Brijesh Gupta, Directorate of Income (Investigation), MP & CG, Bhopal wherein it was alleged that a company styled as Prime Ispat Limited was formed in the year 2004 in which all the brothers of the appellant and their wives were made directors. A share capital of about Rs.60 crores was laundered over a period of five years by this company. During raid conducted by the Income Tax Department, 230 bank passbooks were recovered from the possession of Chartered Accountant of the appellant in which huge cash deposits were made in the name of Benami persons and the said deposits were used for purchasing the share of the company. The Income Tax Department made a request to ACB/EOW to investigate the case, based on which offences under Section 13(1)(e) read with Rule 3 32 of the Prevention of Corruption Act and Section 3 of the Benami Transactions (Prohibition) Act, 1988 were registered against the appellant.
03. Against the raid conducted by the Income Tax Department, the appellant preferred an appeal before the Commissioner of Income Tax Department. The appellate authority in its order dated 31.5.2012 (Annexure P/4) held that the Assessing Officer had committed error in making addition of the cash amount from the bank lockers and in the account of brother of the appellant. This means that the appellant had given satisfactory explanation as is required under Section 69A of the Income Tax Act. In the appeal preferred by the Income Tax Department before the Income Tax Appellate Tribunal, Raipur against the order passed by the appellate authority, the Tribunal vide order dated 9.1.2017 (Annexure P/5) held that the additional evidence presented by the appellant was not examined on merits by the Assessing Officer (AO), therefore, the matter was remitted back to the AO directing him to examine the veracity of additional evidence and decide accordingly. The appellant was thereafter proceeded against departmentally where departmental charges were framed against him. However, vide order dated 13.3.2012 the State Government withdrew all the departmental charges leveled against the appellant and consequently, he was exonerated of the departmental proceedings.
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04. A closure report was filed by EOW in the said matter, which was pending for consideration before the Special Court, in which an application was filed by the respondents on 5.10.2017 making a prayer for withdrawal of the closure report on the pretext of making re-investigation in the case. The said application was allowed and the closure report was returned to the respondent by the Special Court vide order dated 5.10.2017. Against this order, the appellant filed a writ petition i.e. WPCR No.8/2018. However, learned Single Judge after hearing both the parties and considering the material available on record, dismissed the writ petition by the impugned order dated 21.10.2019. Hence this appeal.
05. Learned counsel for the appellant submits that the impugned order passed by learned Single Judge is legally as well as factually incorrect. Learned Single Judge has failed to consider the fact that the preliminary report of the Income Tax Department, based on which the FIR was registered, was itself based on unverified facts and was inherently erroneous. It ought to have been considered that the respondent authorities even after passing of several years did not produce any incriminating material before the trial Court to sustain the criminal proceedings initiated against the appellant pursuant to the FIR dated 19.2.2010 in Crime No.6/2010 and therefore, ultimately filed a closure report having calculated the income, expenditure, assets etc. of the 5 appellant. The learned Single Judge has failed to consider the fact that the order dated 5.10.2017 (Annexure P/1) passed by the learned Special Judge was without authority of law and also committed grave illegality in interpretation of facts and law as well as orders passed by the Income Tax Appellate Authorities and exoneration order passed by the State Government in the departmental proceedings. Since the appellant was exonerated in all the subsequent quashi judicial/judicial/adjudication proceedings, the FIR deserved to be quashed forthwith and the appellant was entitled for grant of legitimate reliefs claimed in the writ petition.
06. It has been further contended that the learned Single Judge committed a grave error and mistake by presuming the figures in "crores" in place of "lakhs" as alleged in the FIR. For example, cash of Rs.68.10 crores and jewellery of Rs.70.20 crores etc., whereas these figures are alleged to be in "lakhs" in the FIR itself. It is clear from the order passed by the learned Special Judge that he has not examined the closure report and without applying his mind, simply returned the closure report. The closure report under Section 173(2) of CrPC was filed in the year 2016 after conducting investigation for seven long years stating therein that no offence, as alleged in the FIR, has been made out. However, surprisingly, relying upon the communication dated 8.9.2017, the respondent/State made an application for withdrawal of closure 6 report without there being any provisions of law in the Code of Criminal Procedure in this regard, which has been wrongly acted upon by the learned Special Judge, who allowed the said application, that too, without assigning any reason in this regard and without application of mind. Learned Single Judge also failed to consider the settled legal position that once a report has been filed under Section 173(2) of CrPC, the Magistrate may either frame charges or the accused will be discharged on the basis of closure report. However, the learned Special Judge without there being any provisions of law, permitted the investigating officer to withdraw the same with a direction to re-investigate the matter which has not been examined properly by the learned Single Judge. Thus, the impugned order of the learned Single Judge is liable to be set aside.
07. The further contention of learned counsel for the appellant is that the learned Single Judge has also committed a grave error by misinterpreting the order dated 9.1.2017 (Annexure P/5) of the Income Tax Appellate Tribunal. In fact, the Tribunal had dismissed all the appeals of the Income Tax Department and remitted the matter back to the AO on a limited point to re- examine the veracity of the additional evidence furnished by the appellant before the CIT (Appeals) for an expenditure of Rs.40,000/- made through debit card of one Shri D.P. Mishra. Learned Single Judge has failed to consider that the FIR was 7 lodged on the basis of communication received from Shri Brijesh Gupta, Directorate of Income Tax (Investigation), MP & CG, Bhopal which was merely a preliminary report based on unverified facts and the highest authority i.e. the Income Tax (Appellate) Tribunal, upon adjudication passed a detailed order dated 9.1.2017 categorically holding that the appellant had no role whatsoever in the affairs of the company M/s Prime Ispat Limited and dismissed the appeals filed by the IT Department. Therefore, continuation of the FIR and further investigation in absence of any fresh/new evidence cannot be sustained in the eye of law and as such, the same is liable to be set aside.
Reliance has been placed on the decisions of the Hon'ble Supreme Court in the matters of Abdul Rehman Antulay Vs. RS Nayak, (1992) 1 SCC 225; Pankaj Kumar Vs. State of Maharashtra, (2008) 16 SCC 117; Radheshyam Kejriwal Vs. State of West Bengal, (2011) 3 SCC 581; Lokesh Kumar Jain Vs. State of Rajasthan, (2013) 11 SCC 130; Videocon Industries Ltd. Vs. State of Maharashtra, (2016) 12 SCC 315; Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI, (2020) 9 SCC 636 and Anil Kumar Vyas Vs. State of Rajasthan, (2021) SCC OnLine Raj 1332.
08. On the other hand, Mr. H.S. Ahluwalia, learned Dy. Advocate General for the State and Dr. Saurabh Kumar Pande, learned counsel appearing for the ED jointly opposed the prayer 8 of the appellant and supported the impugned order the learned Single Judge and the order passed by the learned Special Judge. They submit that a letter dated 8.9.2017 (Annexure R/1) was written by the Directorate of Enforcement to ACB for investigation under the provisions of PMLA, 2002 in the case of appellant, so the State filed an application for further investigation before the learned Special Judge, who after considering all the material available on record, allowed the said application. Under Section 173(8) of CrPC, the prosecution is free to further investigate the matter and as such, the order passed by the learned Special Judge is according to the provisions of Code of Criminal Procedure and based upon proper appreciation of law and facts of the case.
Reliance is placed on the judgment of the Hon'ble Supreme Court in the matter of Satishkumar Nyalchand Shah Vs. State of Gujarat, (2020) 4 SCC 22.
09. Heard learned counsel for the parties and perused the material available on record.
10. The main objection of learned counsel for the appellant is that the learned Special Judge has not applied his mind and without passing any specific order, returned the closure report whereas he has no right to pass such order under any provisions of law. The order dated 5.10.2017 of the learned Special Judge reads as under:
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"05-10-2017 'kklu dh vksj ls fo'ks"k yksd vfHk;kstd Jh rkezdkj mifLFkr ,oa muds lkFk mi iqfyl v/kh{kd fo'okl panzkdkj mifLFkrA Jh rkezdkj us 'kklu dh vksj ls bl U;k;ky; es a izLrqr vijk/k dzekad 6@10 /kkjk 13 ¼1½bZ] 13 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e ,Oka /kkjk 3 csuke laO;ogkj ¼izfr"ks/k½ vf/kfu;e 1988 esa izLrqr [kkREkk dzekad 06@16 fnukad 21-11-2016 dks foospuk gsrq okil iznk; djus ckckr bl vk/kkj ij izLrqr fd;k fd izorZu funs'kky;] Hkkjr ljdkj mi {ks=h; dk;kZy; U;w /kerjh jksM fVdjkikjk jk;iqj ds }kjk fn;s x; i= ds lkFk ckcw yky vxzoky vkbZ0,0,l0 ds fo:} lk{; miyC/k djk;s gS ftuds vk/kkj ij iqu % foospuk fd;k tkuk vko';d gS vkosnu ds lkFk mDr i= dh izfr] voj lfpo dk i= fnukad 01-09-2014 ,oa deh'kuj vk;dj ¼vihy½ jk;iqj dk i= izsf"kr fd;k x;k gS] vkosnu ij Jh rkezdkj ij lquk x;k izdj.k dk voyksdu fd;k x;kA bZvksMCY;w@,lhch jk;iqj }kjk vkjksih ckcwyky vxzoky ds fo:} vijk/k dzekad 6@10 /kkjk 13¼1½ bZ] 13¼ 2½ Hkz"Vkpkj fuokj.k vf/kfu;e ,oa /kkjk 3 csuke laO;ogkj izfr"ks/k vf/kfu;e 1988 ds vraxZr izdj.k iathc} dj vUos"k.k fd;k x;k gS vkSj fnukad 10-02-2007 dks [kkRek dzekad 06@16 izLrqr fd;k x;k gS vkosnu ,oa nLrkostksa ds vk/kkj ij izdj.k okil djus gsrq vkosnu i= izLrqr fd;k x;k gS tks lnHkkfod izrhr gksrk gS vr% vkosnu Lohdkj dj orZeku [kkRek izdj.k vfHk;kstu dks vkns'k if=dk ,oa vkosnu jksddj okil fd;k tkosA is'kh fnukad 02-11-2017 dks fujLr fd;k tkrk gSA fofo/k izi= fu;r vof/k iwoZ vfHkus[kkxj Hkstk tkosA"
11. Section 173(8) of CrPC provides for further investigation, which reads as under:
173. Report of police officer on completion of investigation.-
(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). 10
12. The Hon'ble Supreme Court in the matter of Satishkumar Nyalchand Shah (supra) observed in paras 10 & 11 of its judgment as under:
"10. Having heard learned counsel appearing on behalf of the respective parties and the private respondent herein, we are of the opinion that as such no error has been committed by the High Court dismissing the application submitted by the appellant herein to implead him in the special criminal application filed by the private respondent herein challenging the order passed by the learned Chief Judicial Magistrate rejecting his application for further investigation under Section 173(8) CrPC with respect to one another accused namely Shri Bhaumik against whom no charge-sheet has been filed till date. Therefore, it is not at all appreciable how the appellant against whom no relief is sought for further investigation has any locus and/or any say in the application for further investigation under Section 173(8) CrPC. How he can be said to be a necessary and a proper party. It is required to be noted that, as such, even the proposed accused Shri Bhaumik shall not have any say at this stage in an application under Section 173(8) CrPC for further investigation, as observed by this Court in the case of W.N. Chadha {1993 Supp (4) SCC 260}; Narender G. Goel {(2009) 6 SCC 65} and Dinubhai Baghabhai Solanki {(2014) 4 SCC 626}. In the case of Dinubhai Baghabhai Solanki, after considering one another decision of this Court in the case of Sri Bhagwan Samardha Sreeepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. (1999) 5 SCC 740, it is observed and held that there is nothing 11 in Section 173(8) CrPC to suggest that the court is obliged to hear the accused before any direction for further investigation is made. In Sri Bhagwan Samardha (supra), this Court in paragraph 11 held as under:
"11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As the law does not require it, we would not burden the Magistrate with such an obligation."
11. Therefore, when the proposed accused against whom the further investigation is sought, namely Shri Bhaumik is not required to be heard at this stage, there is no question of hearing the appellant, one of the co- accused against whom the charge-sheet is already filed and the trial against whom is in progress and no relief of further investigation is sought against him. Therefore, the High Court is absolutely justified in rejecting the application submitted by the appellant to implead him as a party-respondent in the special criminal application."
13. From perusal of the order dated 5.10.2017 of the learned Special Judge, it transpires that the Special Judge has clearly stated in the said order that an application has been submitted to return the closure case on the basis of application and documents which seem to be bonafide and therefore, after allowing the application, the closure case was returned to the prosecution. 12 Furthermore, under Section 173(8) of CrPC, the prosecution has every right to further investigate the matter.
14. The learned Single Judge also observed in para 15 of the impugned order as under:
15. ...The closure report filed by the respondent had been kept pending without any decision of the Special Court, therefore, withdrawal of such closure report is not against the provisions of any law, because Section 173(8) of Cr.P.C. empowers the Investigation Officer to make further investigation even after filing of final report. On the cost of repetition, it is again observed that the word 're-investigation' is a misnomer and inaccurate word to be used by the respondent in the application. The respondent should be well-aware of this authority which is present only to make further investigation. Therefore, I do not find any reason to interfere with the order passed by the Special Judge and further the quashing of F.I.R. at the stage when the investigation is yet to be made is not possible and permissible for the reasons, that on plain reading of the F.I.R. lodged by the petitioner, it cannot be said that there is no material to disclose that any cognizable offence has not been committed by the petitioner. Therefore, I do not find any substance in this petition. Hence, the petition is dismissed."
15. So far as the judgments relied upon by learned counsel for the appellant are concerned, having gone through the said judgments, we find that they being distinguishable on facts are of no help to the appellant.
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16. For the reasons stated above, we are of the opinion that the order dated 5.10.2017 passed by the learned Special Judge is based on proper appreciation of facts and law. Accordingly, the learned Single Judge was justified in declining to interfere in the order of the trial Court and dismissing the writ petition. The writ appeal being bereft of any substance deserves to be and is dismissed as such.
Sd/ Sd/
(Rajani Dubey) (Ramesh Sinha)
Judge Chief Justice
Khan