Himachal Pradesh High Court
Unknown vs State (Delhi Administration) on 28 October, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
CWP No. 4081 of 2020 .
28.10.2020 Present: Mr. B.C. Negi, Senior Advocate, with Mr. Nitin Thakur, Advocate, for the petitioner.
Mr. Ashok Sharma, Advocate General, with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Bhupinder Thakur, Ms. Seema Sharma and Mr. Yudhbir Singh Thakur, Dy. A.Gs., for respondents No. 1 to 10.
ASI Hem Parkash, P.S. Nahan, Distt. Sirmaur, present in person alongwith records.
(Through Video Conferencing) The petitioner lodged complaints at various Police Stations, one of such complaints has culminated into FIR No.523 of 2018, registered at Police Station, Una on 4.11.2018 under Sections 420 and 120B IPC and reads as under:
"To The Superintendent of Police District Una at UNA.
Subject:- To direct the concerned Station House Officer to register FIR. Respected Sir, I have the honour to submit that I have approached so many times to the Station House Officer, Police Station, Una, Police Station Kasumpti (Shimla) and Police Station Nahan to register FIR against the culprit who has prepared false surety bonds in my name and has also forged my signature and fraudulently and dishonestly used the said document as genuine in the office of AETC, Shimla. AETC Sirmaur, AETC Una. Sir, after receiving the notice for recovery of Excise arrears I was astonished to hear about the surety furnished in my name. I have also submitted application to AETC Shimla, AETC Sirmour, AETC Una on 20.04.2018 after procuring copies of forged document prepared in my name under RTI Act, but AETC Shimla, AETC Sirmour and AETC Una did not initiate any legal action or did not pursue the matter for lodging FIR and thereafter I filed application on 08.08.2018 to SHO Police Station Una, on ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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09.08.2018 to SHO Police Station, Nahan and on .
11.08.2018 to SHO Police Station Kasumpti (Shimla) to register FIR in the matter but they did not register any FIR till date. As the fraudulent documents have been prepared at UNA, hence FIR required to be registered at UNA. The offence committed by the culprit is of serious nature as the government revenue near about 10 crore is involved. The applicant has not furnished this surety. Since the applicant is approaching time and again to the Excise Department as well as Police Department to register FIR in the matter, but they are not initiating any action, hence the applicant left no remedy to approach to your goodself. Your goodself is hereby requested please direct the concerned SHOs to register the FIR as per copy of application attached. Dated 02.11.2018. Sincerely Sd.Eng. Pratap Chauhan S/o Sh. Kundal Lal R/o Village Chhupari, PO. Lower koti, Tehsil Rohru, District Shimla.H.P."
2. Similar complaints have been lodged at other places by the petitioner, but no FIRs have been registered.
3. Aggrieved by the non-registration of FIR and further aggrieved by the investigation carried out in FIR No. 523 of 2018, the petitioner has filed the instant petition for the grant of following reliefs:
(a) "Issue a writ of certiorari quashing and setting aside the notices issued (Annexure P-1 colly, Annexure P-2, Annexure P-3 and Annexure P-4), the writ of demand (Annexure P-5), the warrant of attachment and/or any attachment made as such (Annexure P-6) and/or
(b) Issue a writ of mandamus not to give effect to the warrant of attachment and/or any attachment made as such (Annexure P-6) and/or ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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(c) Issue a writ of mandamus in respect of FIR No. 523 .
of 2018 registered at Police Station, Sadar, Una (Annexure P-11) to reinvestigate the same and unearth the truth, and/or
(d) Issue a writ of mandamus to respondents No.4 and 6 to register FIR in view of the complaints filed by petitioner, and/or
(e) Issue an appropriate writ or direction in the like nature to the respondents or pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
4. At the out-set, we observe that since the respondents including the private respondents are yet to file their responses, therefore, we do not intend to pass any order which may prejudice the defence, but nonetheless this Court cannot shut its eyes to the fact that despite cognizable offence having been made out, the police authorities are reluctant to register FIR and even in case where the FIR has been registered, unfortunately, no proper investigation has been carried out and rather a closure report has been submitted by the Investigating Officer.
5. The investigation in this case has been carried out by one ASI Gurdeep Singh. The reasons for submitting the closure report as contained in the records of the investigation are as under:
"Investigation in the case was carried out by ASI Gurdeep Singh on the spot. During the course of investigation on 22.12.2018, memo qua producing the photocopies of affidavit and notice of Excise and Taxation, Distt. Sirmaur was prepared. In the instant case vide letter No.361/5A ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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dated 22.06.2019, in the year 2015-16 documents including .
address and surety bonds for the auction of liquor vends for unit No. 53, 02, 18, 17, 41, 12, 04, 34, 26, 25, 20 and 19 were received. In the instant case, statements under Section 161 Cr.P.C. were recorded.
In the instant case neither complainant nor Excise and Taxation Department have produced any original record in respect of surety bond before the police. The persons in whose favour liquor vends were auctioned in the year 2015- 16 were interrogated. During investigation, it was not ascertained as to who had appended the signature on the surety bond on behalf of the complainant. Till date, even complainant has not disclosed as to who has prepared the surety bond by appending his signature. Without naming any person, it is not possible to match the signatures appended on behalf of the complainant. The case is under investigation for a long time and it is not appropriate to keep the same under investigation any longer. On finding any clue regarding the signatures of the complainant in the instant case, investigation in the case will again be carried out.
Keeping in view the aforesaid circumstances in the case, untraced report has been prepared and after getting the same checked, it has been produced before the ld. CJM, Una on 30.09.2019 vide RC No. 343/2019.
Therefore, the report in case No. 523/2018 dated 04.11.2018 under Section 420, 120B IPC is being forwarded.
Sd/-(illegible) Incharge, Sadar P.S.,Una Distt. Una Dated: 13.11.2019."
6. We really fail to understand how the complainant could have produced the original records in respect of the surety bond as according to him he has not executed any bond.
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7. As regards the production of bonds from the Excise and Taxation Department or any other department, that clearly is the job of the Investigating Agency. If during the course of investigation, the Investigating Officer could not ascertain as to who had appended the signature on the surety bond on behalf of the petitioner, can to say the least, the Investigating Officer is unfit to be assigned the job of any investigation. If the complainant knew who had prepared the surety bond by appending his signatures, he would have clearly named the person in the complaint and not left it to the Investigating Officer. Such shoddy investigation by the Investigating Officer is not at all permissible and needs to be deprecated in the strongest terms.
8. It is beyond cavil that an order of further investigation can always be given by a superior court in exercise of its constitutional power under Articles 226 and 32 of the Constitution of India where the Court can direct a State "to get an offence investigated and/or further investigated by a different agency". Directions of a reinvestigation, however, are forbidden in law, the superior court can issue such direction.
9. In Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322 , the Hon'ble Supreme Court in paras 20 and 21 held as under:
"20. Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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police possessing the power to make further investigation and .
submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate ? After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the 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 the 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.
21. As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desi ed to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation."
10. In Kishan Lal vs. Dharmendra Bafna and another (2009) 7 SCC 685, the Hon'ble Supreme Court in paras 15 and 16 held as under:
"15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been ::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel & Ors. vs. State of Gujarat [2009 6 SCC 332 in the following terms: (SCC pp. 336-37, paras 12 -13) "12. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct re- investigation. This court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub- section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.
13. It is, however, beyond any cavil that `further investigation' and `re-investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413], opined as under : (SCC p.415. Para 7) '7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub- section (8), but not fresh investigation or reinvestigation...' "::: Downloaded on - 30/10/2020 20:20:46 :::HCHP
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We have referred to the aforementioned decision only because Mr. Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the Investigating Officer inadvertently.
16.The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary."
11. We at this stage refrain ourselves from handing over the investigation to a different agency only with the hope that further investigation would be carried out honestly, sincerely and diligently and as regards the other complaints filed by the petitioner, the same shall be looked into dispassionately and in case cognizable offence is made out, then further course in the matter in accordance with law shall be taken forthwith.
12. Accordingly, in the interim, we direct 2nd respondent to direct respondents No.4 to 6 to further inquire and investigate the complaint(s) made by the petitioner and submit its status report before the next date of hearing.
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13. As regards the FIR No. 523 of 2018, we direct 3 rd respondent to carry out the further investigation in the FIR by appointing a new Investigating Officer not below the rank of Dy. S.P., who in turn, shall submit his report before the next date of hearing.
14. List on 02.12.2020.
(Tarlok Singh Chauhan),
r Judge
28th October, 2020 (Jyotsna Rewal Dua),
(GR) Judge
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