Allahabad High Court
Dr. Parvez Alam vs State Of U.P. And Another on 11 October, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 87 Case :- APPLICATION U/S 482 No. - 29079 of 2022 Applicant :- Dr. Parvez Alam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sikandar B. Kochar Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.
Heard Sri Sikandar B. Kochar, learned counsel for the applicant, Sri Rajeshwar Singh and Sri J.P.S.Chauhan, learned A.G.A. for the State and perused the material on record.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 28.07.2022 passed by learned Chief Judicial Magistrate, Bulandshahr in Criminal Case No. 5259 of 2020 (State Vs. Dr. Parvez Alam) arising out of Case Crime No. 0228 of 2020 under Sections 420, 409 I.P.C. Police Station Shikarpur, District Bulandshahr, whereby the application for further investigation of the matter on the basis of documents adduced by the applicant, has been rejected.
Brief facts of the case are that the applicant was the Manager of National Inter College, Shikarpur, District Bulandshahr w.e.f November 2017 till 2020, which institution is an aided institution upto High School and is unaided institution with respect to Class XI and XII. Initially a complaint was made by the opposite party no.2 against the applicant, in which, after enquiry, the applicant was found guilty for the charges pertaining to the cheating, criminal breach of trust and misuse of the college land, vide enquiry report dated 05.05.2020. On the basis of that enquiry report, the opposite party no.2 lodged a first information report dated 27.05.2020 against the applicant in Case Crime No. 0228 of 2020 under Sections 409, 420 I.P.C. The matter was entrusted for investigation which culminated in submission of charge sheet dated 15.10.2020, upon which cognizance was taken on 17.10.2020 and during the course of trial, the applicant moved an application for further investigation into the matter on the basis of documents adduced by him, however said application has been rejected vide order impugned dated 28.07.2022. It is this order, which is under challenge before this Court.
Learned counsel for the applicant submits that on the complaint filed by the opposite party no.2 the District Inspector of Schools, Bulandshahr conducted an enquiry, in which the applicant was found guilty, thereafter the matter was referred to the Joint Director (Education) Meerut, Zone, who issued a show cause notice to the applicant, which was specifically replied by the applicant and after considering the reply of the applicant, the Joint Director (Education), exonerated the applicant from the charges levelled against him. It is further contended that when the applicant was discharged from the charges levelled against him, the applicant moved an application before the Senior Superintendent of Police, Bulandshahr as well as before the Investigating Officer of the Case Crime No. 0228 of 2020 to investigate the matter after considering the documents furnished by him, however the same was not considered during the investigation and charge sheet dated 15.10.2020 was submitted against the applicant under Section 409, 420 I.P.C. He further submits that the learned Magistrate while taking cognizance, failed to consider the factual and legal aspect of the matter and in a routine manner took cognizance upon the charge sheet. Thereafter, the applicant moved an application before the learned Court below to direct the Investigating Officer to further investigate the matter in light of the documents adduced by him, however the same has been illegally rejected by the learned Court below. Learned counsel has next argued that the very basis of lodging of the F.I.R. was the enquiry report dated 05.05.2020 wherein the applicant was found guilty, thereafter, the show cause notice was issued by Joint Director of Education, Meerut Zone, Meerut, which was replied by the applicant and after considering the reply, the applicant was exonerated from the charges levelled against him and therefore the basis for lodging of the FIR does not survive any more. The learned Magistrate ought to have considered the documents sought to be relied upon by the applicant so that justice may be done, therefore the impugned order is illegal, arbitrary and is liable to be quashed by this Court.
On the other hand, learned A.G.A. submits that after framing of charges against the applicant, the applicant moved an application only to linger on the trial, and thus the learned Court below has rightly rejected the application vide order impugned, which order is perfectly legal, just and proper and thus the same calls for no interference by this Court.
The Hon'ble Apex Court in the matter of Vinubhai Haribhai Malaviya and others Vs. State of U.P. and another reported in 2020 (3) SCC 228 has held that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation in the matter in the sense of a fair and just investigation by the police, which power includes ordering of further investigation after submission of police report under Section 173 (2) Cr.P.C. Relevant paragraphs of the aforesaid Judgement is quoted below:-
18. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.
31. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 is an important judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held:
"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case."
42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.
In the instant case, the very basis of lodging of the F.I.R. against the applicant was the enquiry conducted by the concerned District Inspector of Schools, wherein the applicant was held guilty, later on, after submission of reply by the applicant before the Joint Director of Education Meerut Zone. Meerut, the applicant was exonerated from the charges levelled against him in the meantime, charge sheet was filed against the applicant and trial commenced. During the course of trial, the applicant moved an application with a prayer for further investigation, which has been rejected vide order impugned, which order, in the opinion of the Court, is not sustainable in view of the fact that there may be further delay in concluding the trial but that should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.
Considering the aforesaid observations of Hon'ble Apex Court as well as the facts and circumstances of the case, the impugned order is set aside. The matter is remitted to the concerned Court below to consider and decide the matter afresh in accordance with law, preferably within a period of one month from the date of production of a certified copy of the order before it.
Learned counsel for the applicant undertakes that the applicant shall furnish a certified copy of the order before the concerned court below within 10 days from today.
It is made clear that this Court has not expressed any opinion on the merits of the case.
The instant application is accordingly disposed of.
Order Date :- 11.10.2022 S.Ali