Punjab-Haryana High Court
Harvail Singh Saini vs State Of Punjab And Anr on 3 December, 2014
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Misc. No.M-32662 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-32662 of 2012
Date of Decision: 03.12.2014
Harvail Singh Saini ....Petitioner
Versus
State of Punjab and another ....Respondents
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
1. Whether reporters of local newspapers may be allowed
to see the judgment ?
2. To be referred to reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present:- Mr. Navkiran Singh, Advocate
for the petitioner.
Ms. Ritu Punj, Addl. A.G., Punjab
for the respondent-State.
Mr. R.K. Dadwal, Advocate
for respondent No.2.
*****
DAYA CHAUDHARY, J.
Petitioner-Harvail Singh Saini was a Municipal Councilor in Municipal Council Garhshankar, District Hoshiarpur. An FIR No.7 dated 20.01.2000 was registered under Sections 13(2) of the Prevention of Corruption Act, 1988 (here-in-after referred to as `the PC Act') and 379 IPC at Police Station Garhshankar on the basis of complaint made by one Surinder Kumar, who was working as a contractor.
As per allegations in the FIR, a cheque, amounting to ` one lac was issued by the Executive Officer, Municipal Council, Garhshankar on 15.12.1999 to the complainant. However, on receiving the said cheque, the petitioner asked the complainant to show it to him and on showing, the said cheque was snatched by the petitioner and it was kept in his pocket and asked the complainant to pay a sum of ` 6,000/- to him as a commission. It is also mentioned in the complaint by the complainant that GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 2 he was given pushes and was turned out of the Office of Municipal Council.
An inquiry was conducted by the Deputy Superintendent of Police (D) and the allegations levelled in the complaint were found to be false. However, on the basis of said inquiry, an untrace report was submitted before the trial Court, which was not accepted vide order dated 13.08.2001 and the same was returned for further investigation. The matter was again investigated into by the police and again an untrace report was filed on 11.09.2007, which was again rejected by the trial Court vide order dated 22.08.2008. For the third time also, on presentation of the cancellation report by the Deputy Superintendent of Police, Garhshankar, before the trial Court, it was again rejected vide order dated 22.01.2011. The matter was investigated into for the fourth time and again, the cancellation report was submitted on 30.08.2012. Vide Order dated 14.09.2012, it was mentioned that the complainant has appeared and made a statement that he does not agree with the police report and the complaint was again sent back to Vigilance Bureau for reinvestigation.
The present petition has been filed by the petitioner-accused for quashing of FIR No.7 dated 20.01.2000 as well as Order dated 14.09.2012 passed by the Additional Sessions Judge, Hoshiarpur, as the trial Court has ordered for reinvestigation for the fifth time in spite of submission of four cancellation reports within a period of thirteen years.
Learned counsel for the petitioner submits that thorough investigation has been conducted and the cancellation reports were filed by different Officers of higher rank and only on this ground that the complainant has not agreed with the cancellation report, the FIR has been sent to the Vigilance Bureau for reinvestigation. Learned counsel also submits that the complainant himself has given a statement before the Court that a new cheque was re-issued to him and nothing is due towards GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 3 the Municipal Council, Garhshankar and has no grievance in the matter. Learned counsel also submits that the statement of the complainant made on 14.09.2012 has not been considered. The petitioner is facing litigation for the last more than 13 years and in spite of filing cancellation reports repeatedly , the trial Court is not accepting the same and sending it for reinvestigation.
Learned counsel for the petitioner has also relied upon the judgments of this Court in cases Harinder Pal Singh vs State of Punjab 2004(2) RCR (Criminal) 307 as well as Prithvi Raj Sehgal vs State of Punjab and others 2007(3) RCR (Criminal) 438, in support of his contentions.
Learned State counsel has not disputed the factum of filing cancellation reports on four different occasions and order of the trial Court for reinvestigation.
Heard the arguments of learned counsel for the parties and have also gone through the records of the case.
After hearing learned counsel for the parties and on perusal of order passed by the trial Court, I find that there is a merit in the contention raised by learned counsel for the petitioner. It has not been disputed that on four occasions, the cancellation report was prepared and submitted before the trial Court but the same was not accepted. It is also not disputed that the investigation was conducted on four occasions by different Officers. The allegations levelled in the complaint were found to be false but the same have been rejected by the trial Court only on the ground that the complainant does not agree with the cancellation report, whereas, as per statement of the complainant himself, a new cheque was re-issued to him and he was satisfied with the same and was not having any grievance in any manner. Once a cancellation report is submitted before the trial GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 4 Court, the Magistrate has the power to reject the same by giving a reasoning and to refer the matter for further investigation or he can take cognizance of the offence himself but he cannot reject the cancellation report only on the ground that the complainant is not satisfied with the investigation. Undoubtedly, it is within the purview of the Investigating Agency to investigate the case. The trial Court cannot compel the Investigating Agency to take a particular view in the investigation or to change its opinion in view of the opinion of the Court. Similar view has been held by this Court in Harinder Pal Singh's case (supra), which is as under :-
" In Chapter XIV of the Code of Criminal Procedure (hereinafter referred to as `the Code'), the police has been given ample powers for the purpose of registering the case involving a cognizable offence and its investigation. Section 173 of the Code provides for an investigation to be completed without unnecessary delay and also makes it obligatory on the Officer-in-charge of the Police Station to send a report to the magistrate concerned in the manner indicated therein, containing the various details. If the Police submits a report under Section 173 of the Code to the effect that a case is made out for sending the accused for trial, the Magistrate is not bound to accept the opinion of the Police. It is open to the Magistrate, to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify and accused being put on trial. On the other hand, if the Magistrate agrees with the report, then he will take cognizance of the offence. In case, the Police submits a report stating therein that no case is made out against the accused for sending him for trial, the Magistrate, agreeing with the report, may accept the GURPREET KAUR final report and close the proceedings, but the 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 5 Magistrate may also take a view on consideration of the final report that the opinion framed by the Police is not based on full and complete investigation and in such a situation, the Magistrate can order for further investigation. It is always open for the Magistrate to decline to accept the closure report and direct the police to further investigate the matter but once the closure report is not accepted by the Magistrate and the matter has been ordered to be re-investigated, then for the second time the Magistrate cannot compel the Police to take a particular view in the matter and submit the challan in the case. If the Magistrate does not agree with the opinion formed by the Police and still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the Police, to take cognizance under Section 190(1)(c) of the Code, but in my opinion, he cannot direct the police to re- investigate the matter for the third time.
xx xx xx xx xx xx xx xx xx xx xx xx Thus, from the aforesaid judgments, it is clear that the Police is the master of the investigation and formation of opinion as to whether, on the material collected, a case is made out to place the accused for trial is the exclusive function of the officer in charge of the Police Station and/or his superior officers. The Magistrate, while accepting or rejecting the report, cannot compel the investigating agency to change its opinion and to form a particular opinion or to submit the challan. The formation of the said opinion by the police is the final step in the investigation and that final step is to be taken only by the Police and not by other authority." It is clear from the observation of the Court referred to above that in case, the Court is not satisfied with the cancellation report or is of the opinion that the allegations have not been properly considered by the Investigating Agency or there is sufficient material on record against the accused, he can take cognizance of the offence under Section 190(1)(c) of GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 6 the Code of Criminal Procedure while not accepting the police report. The Court cannot reject the cancellation report every time and send the same for further investigation. The Investigating Agency cannot be compelled to submit the charge sheet against the accused.
On perusal of the impugned order, it clearly shows that no reasoning whatsoever has been recorded. Simply, it has been stated that the complainant does not agree with the investigation conducted by the police. In case, the complainant is not satisfied with the cancellation report, he has an alternative remedy to file a private complaint but merely on the ground that he is not satisfied with the investigation, the cancellation report submitted by the police cannot be rejected.
Hon'ble the Apex Court in case Abhinandan Jha and others vs Dinesh Mishra AIR 1968 Supreme Court 117 has observed as under :-
"...The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer-in-charge of the police station and that opinion determines whether the report is to be under Section 170, being a `charge sheet', or under section 169, `a final report.' It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 7 compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either under Section 169 or under section 170, depending upon the nature of the decision. Such a question has been left to the police under the Code. We have already pointed out that the investigation, under the Code takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police, as to whether on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.
The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit a final report, under section 169? In our opinion, the Magistrate has no such power. He was no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take a suitable action, according to law, he cannot certainly infringe (sic. Impunge ?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view."GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 8
In another judgment titled as R. Sarala vs. T.S. Velu and others 2000(2) RCR (Crl.) 637, the Hon'ble Supreme Court, while considering the question of giving direction by the Court to the Investigating Officer to take opinion of the Public Prosecutor for filing charge sheet, has observed as under :-
"...The formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. There is no stage during which the investigating Officer is legally obliged to take the opinion of a Public Prosecutor or any authority, except the superior police officer in the rank as envisaged in Section 36 of the Code. A Public Prosecutor is appointed as indicated in Section 24 Criminal Procedure Code, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court."
From a perusal of the judgments cited above, it is apparent that the Investigating Agency is the master of the investigation. It is the exclusive function of the Investigating Officer to form an opinion as to whether, on the material collected, a case is made out to place the accused for trial or not. The Court while accepting or rejecting the report, cannot compel the Investigating Agency to change its opinion and to form a particular opinion for submitting the challan. The formation of the opinion by the Investigating Agency is the final step in the investigation, which is in GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 9 the purview of the Investigating Agency only and not by the other authority.
It has been held by Hon'ble the Apex Court in R. Sarala's case (supra) that although the Investigating Officer is subject to supervision by his superiors in rank but he is not to take instructions regarding investigation of any particular case even from the executive government of which he is a subordinate officer as has been observed in R. v. Metropolitan Police Commissioner 1968(1) All England Reporter 763. Lord Denning has observed as under :-
" I have no hesitation, however, in holding that, like every constable in the land, he should, and is, independent of the executive. He is not subject to the orders of the Secretary of State....I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that' or that he must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."
In view of the facts and legal position as explained above and after perusal of impugned order, I am of the considered view that the Special Judge has not accepted the presentation of four closure reports and ordered for reinvestigation for the fifth time, without giving any valid reason and without any application of judicial mind, which is contrary to the provisions of law as well as ratio of judgments as mentioned above. On GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh Crl. Misc. No.M-32662 of 2012 10 perusal of contents of cancellation report submitted by the police, there was no reason to issue direction and to reject cancellation report as the investigation was conducted by different police officers and no reasoning whatsoever has been mentioned in not accepting the cancellation report. In case, the Special Judge was not satisfied with the closure report/cancellation report or it was not based on full and complete investigation, he could have taken cognizance of the offence under Section 190(1)(c) of the Code but he could not order for reinvestigation of the matter for the fifth time. It is apparent that the Special Judge has not applied his mind and especially under the circumstances when the complainant has stated that a cheque was re-issued to him and he was having no grouse in any manner. By rejecting the cancellation report only on the ground that the complainant was not agreeing with the same, is not sufficient. Moreover, the petitioner is facing prosecution for the last more than 13 years as the complaint was of the year 2000 and it would be a futile exercise to get the matter re-investigated time and again.
Accordingly, this petition is allowed and the impugned order dated 14.09.2012 (Annxure P-3) passed by the Additional Sessions Judge, Hoshiarpur is set aside and the cancellation report dated 30.08.2012 submitted by the police is accepted. Consequently, FIR No.7 dated 20.01.2000 registered under Section 13(2) of the Prevention of Corruption Act, 1988 and Section 379 IPC at Police Station Garhshankar, District Hoshiarpur along with all subsequent proceedings arising therefrom are hereby quashed.
(DAYA CHAUDHARY) 03.12.2014 JUDGE gurpreet GURPREET KAUR 2014.12.18 11:44 I attest to the accuracy and authenticity of this document HIgh Court Chandigarh