Jammu & Kashmir High Court - Srinagar Bench
Asif Amin Chalkoo & Ors vs Ut Of J&K on 4 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 02.06.2025
Pronounced on:04.07.2025
CRM(M) No.197/2023
ASIF AMIN CHALKOO & ORS. ...PETITIONER(S)
Through: - Mr. Syed Faisal Qadiri, Sr. Advocate, with
Mr. Khursheed, Advocate.
Vs.
UT OF J&K ...RESPONDENT(S)
Through: - Mr. Mohsin Qadiri, Sr. AAG, with
Ms. Nadiya Abdullah, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners, through the medium of present petition, have challenged FIR No.04/2021 for offences under Section 7 of Prevention of Corruption Act (for short "PC Act") read with Section 120-B IPC registered with Police Station Anti-Corruption Bureau, South Kashmir, Anantnag.
2. As per contents of the impugned FIR, a Joint Surprise Check (JSC) was conducted by the sleuths of Anti-Corruption Bureau, Anantnag, to look into the allegations that certain touts and agents were operating in ARTO Office, Anantnag. It was alleged that the officers/officials of ARTO Office, Anantnag, in league with these touts prepare registration and fitness CRM(M) No.197/2023 Page 2 of 24 certificates for heavy commercial vehicles, issue driving licenses etc. in lieu of bribe. The JSC conducted on the day of driving trial test revealed that that most of application forms for issuance of driving licenses were bearing codes written in pencil which were found to be abbreviations of the names of some of the touts/agents like Altaf Photostat as A.F, Aijaz Khanabal as A.K, Farooq Batengoo as Farooq K, Nadeen Telecom as N.C, Maqbool Buland as M.B, Mushtaq Batengoo as M.B, Altaf Sheikh as A.M.B, Sajad Khan as S.K. etc. These touts were found operating in league with the Board members of ARTO Office, Anantnag, who were actively influencing the working of ARTO Office, Anantnag. During the course of enquiry, statements of some of the applicants who had appeared for driving test, revealed that they had paid bribe for issuance of driving licenses through agents/touts for Board members of ARTO Office, Anantnag. It was also found that the officers/officials of ARTO Office, Anantnag, for their ulterior motives, were conducting both driving test trials and fitness test of vehicles in hasty manner just to accommodate applicants recommended by touts/agents. In addition to this, social networking chats between the touts and ARTO officials revealed that the application numbers along with CRM(M) No.197/2023 Page 3 of 24 the names of the touts had been forwarded to the officials for issuance of certificates/licenses. It is further alleged in the impugned FIR that by acting in this manner, the officers/officials of ARTO Office, Anantnag, under a well- knit conspiracy with touts/agents, in lieu of pecuniary benefits, abuse their official positions while conferring undue benefit upon the touts and the candidates. These omissions and commissions on the part of the officers/officials of ARTO office, Anantnag, and the touts constitute offences under Section 7 of PC Act and Section 120-B of IPC.
3. The petitioners, who happen to be the officers/officials of the Motor Vehicles Department, were holding different positions in ARTO Office, Anantnag, in the year 2021. According to the petitioners, they were entrusted with the duty to conduct driving skill trial tests and fitness/passing of the vehicles in addition to their routine duties. They have challenged the impugned FIR on the grounds that the respondent has not complied with the mandatory requirements of Section 17A of the PC Act before proceeding to investigate the alleged offences. On this ground, it is being urged that the registration and investigation of the impugned FIR has been rendered illegal and, as such, the same is liable to CRM(M) No.197/2023 Page 4 of 24 be quashed. It has been further contended that the allegations made in the impugned FIR do not constitute an offence under Section 7 of the PC Act as there are no allegations of offer of bribe being made by the applicants to the petitioners and acceptance thereof by the petitioners. It has been contended that in the instant case, the complainant himself has been entrusted with the investigation of the case, as such, the investigation of the case is vitiated.
4. The respondent, in its reply to the petition, has reiterated the allegations made in the impugned FIR. It has been further submitted that during investigation of the case, search of the premises belonging to the petitioners were conducted by the Investigating Agency pursuant to the orders of authorization dated 02.08.2021 issued by the Special Judge, Anti-Corruption, Anantnag, and during the search operations, incriminating material having bearing on the subject matter of the case was recovered and seized. It has been submitted that during search operations conducted on the premises of touts, namely, Aijaz Ahmad Bhat, Nadeen Ahmad Bhat, Zahoor Ahmad Malik and Mubarak Ahmad Bhat, several documents like driving licenses, blank registration certificates, blank fitness books, registration certificate CRM(M) No.197/2023 Page 5 of 24 books, blank permit renewal forms, e-receipts, learners licenses etc. were recovered. Similarly, from the house search of petitioner No.4 herein, 06 premium certificates of LIC policy, 08 cheque book slips and a few revenue extracts were recovered and from the premises of petitioner No.3, two registration certificates, two fitness certificates, one permit and one token tax book were recovered.
5. The Investigating Agency also seized the record relating to driving test trials and it was found that a Board for conducting driving tests headed by petitioner No.4 as its Chairman was constituted which was assisted by other petitioners in the capacity of its members. It was found that petitioner No.4 had headed the Board as its Chairman from 25.10.2019 to 04.09.2021 and petitioners No.1 and 3, had assisted the said Board with effect from 11.08.2020 whereas petitioner No.2 had been a part of the Board with effect from November, 2019 to September, 2021.
6. It is further stated in the status report filed by the respondent that during investigation of the case, huge voluminous record pertaining to the subject matter was obtained which is under scrutiny. It was found during the scrutiny of the call details of the petitioners that they CRM(M) No.197/2023 Page 6 of 24 were closely connected to the touts/agents and even on the days of driving skill tests, they were found to be in touch with each other. It was also found that the petitioners and their family members are having multiple bank accounts and the same are under scrutiny.
7. According to the respondent Investigating Agency, the application forms that were obtained during investigations of the case are required to be forwarded to the FSL for examination and besides this, mobile cellphones, of which screenshots were taken, are also required to be recovered for taking the investigation to its logical conclusion. It has been submitted that the Enquiry Officer, who recommended the registration of the FIR, did not investigate the case and pursuant to registration of the FIR, the investigation has been handed over to a different officer. Thus, no prejudice is going to be caused to the petitioners.
8. Regarding non-adherence to Section 17A of the PC Act, the respondent Investigating Agency has taken a stand that the impugned FIR was not registered against any particular public servant and that the names of the suspects were not identified at that particular time. It has been submitted that it is only during investigation that complicity of the petitioners surfaced, whereafter the CRM(M) No.197/2023 Page 7 of 24 matter with regard to grant of sanction in terms of Section 17A of the PC Act was taken up with the competent authority. It has also been contended that Section 17A of the PC Act gets attracted only to those cases where the acts allegedly committed by a public servant are having reasonable and direct connection with his official functions or duties but the law does not permit a public servant to indulge in acts which constitute offences because such acts are beyond the realm of dominion of the State. It has been contended that the protection envisaged under Section 17A of the PC Act cannot be extended to the petitioners because the acts committed by them cannot by any stretch of imagination be termed as relatable to any recommendation made or decision taken by them in discharge of their official functions or duties. It has been submitted that the General Administration Department of the Government vide No. GAD-VIGOCOMP/118/2022-09-GAD dated 11.11.2022, has conveyed its approval for proceeding ahead in the matter. Thus, the requirement of Section 17A of the PC Act has been complied with.
9. It has been further contended that initially investigation of the case was handed over to an officer of the rank of Inspector but immediately thereafter, the CRM(M) No.197/2023 Page 8 of 24 same was handed over to an officer of the rank of Dy.SP in compliance to the mandate of Section 17 of the PC Act.
10. I have heard learned counsel for the parties and perused record of the case including the Case Diary.
11. The main ground that has been urged by learned Senior Counsel appearing on behalf the petitioners for assailing the impugned FIR is that the respondent Investigating Agency has not obtained previous approval of the Government in terms of Section 17A of the PC Act before proceeding to register the FIR and undertake investigation against the petitioners, who, admittedly, are public servants. Learned Senior Counsel for the petitioners has argued that in the impugned FIR itself, it is clearly stated that the touts of the ARTO Office, Anantnag, are in league with the Board members of the ARTO Office. Thus, according to the learned Senior Counsel, the petitioners, who were the Board members of ARTO Office, Anantnag, at the relevant time, were already identified and, as such, without seeking prior approval of the Government, the investigation against them could not have been undertaken.
12. Learned Senior AAG, appearing on behalf of the respondents, on the other hand has contended that the CRM(M) No.197/2023 Page 9 of 24 impugned FIR was lodged against unidentified and unnamed officers/officials of the ARTO Office, Anantnag, who were alleged to be in league with the touts and it is only during investigation of the case that names of the petitioners surfaced whereafter, the requisite approval was sought from the Government which has been granted by the General Administration Department in terms of communication dated 11.11.2022. Therefore, the requirements of the provisions contained in Section 17A of the PC Act stand complied with.
13. Before proceeding to test the merits of the rival submissions made by learned Senior Counsels appearing for the parties, it would be apt to notice the legal position as regards the requirement of previous approval for undertaking enquiry, inquiry or investigation of offences relating to decisions taken by public servants in discharge of their official duties or functions.
14. Section 17A of the PC Act, which has been inserted by Act 16 of 2018 with effect from 26.07.2018 is the focus of attention for understanding the issue at hand. The same reads as under:
17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.--No police officer shall conduct any enquiry or inquiry or investigation CRM(M) No.197/2023 Page 10 of 24 into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.
15. From a perusal of the aforesaid provision, it is clear that an enquiry or an inquiry or investigation into an offence alleged to have been committed by a public servant under the PC Act in a case where the offence is related to any recommendation made or decision taken by such public servant in discharge of his official functions or duties cannot be undertaken without the previous approval of the Government. Thus, a bare CRM(M) No.197/2023 Page 11 of 24 reading of the provisions contained in Section 17A of the PC Act would make it clear that if an act constituting an offence under the PC Act is committed by a public servant and the said act has nexus with his official functions or duties, previous approval of the Government is necessary for undertaking any enquiry, inquiry or investigation.
16. An investigation, as per the Code of Criminal Procedure, starts with the registration of an FIR and it involves proceedings for collection of evidence by a police officer whereas the expression "inquiry" has been defined in Section 2 (g) of the Code of Criminal Procedure as the inquiry conducted by a Magistrate or Court, but there is no specific definition of word "enquiry" provided in the Code. The dictionary meaning of the word "enquiry" is an act for asking an opinion, meaning thereby a step towards ascertaining the truth or falsity of an allegation. In the context of enquiry conducted by the police, it implies exercise of ascertaining particulars relating to commission of an offence.
17. Section 17A of the PC Act prohibits not only investigation or inquiry under Cr.P.C. but it also prohibits undertaking of enquiry against a public servant in respect of an allegation relating to offence under the PC Act if the same has nexus with his official duties or CRM(M) No.197/2023 Page 12 of 24 functions except with the previous approval of the Government. The object of Section 17A is to protect the public servants from malicious, vexatious or baseless prosecution. It acts as a filter against frivolous allegations against a public servant with a view to instill confidence in the public servants to perform their duties and functions fearlessly without having to worry about the baseless prosecutions and persecutions. It does appear from the perusal of the language of Section 17A that approval of the competent authority is imperative before proceeding to hold an enquiry, inquiry or investigation into an alleged administrative or official act of a public servant.
18. The Supreme Court in the case of Yashwant Sinha vs. CBI, (2020) 2 SCC 338, had an occasion to consider the issue relating legality of the prosecution initiated without complying with the requirements of Section 17A of the PC Act. It would be apt to refer to the relevant paragraphs of the said judgement. The same are reproduced as under:
117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous CRM(M) No.197/2023 Page 13 of 24 approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The complaint is dated 4-10-2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:
"6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month"."
118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17-A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24-10-2018 and the complaint CRM(M) No.197/2023 Page 14 of 24 is based on non-registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.
(emphasis supplied)
19. The Supreme Court in the case of Nara Chandrababu Naidu vs. State of Andhra Pradesh and Ors., 2024 SCC OnLine SC 47, had an occasion to interpret the provisions contained in Section 17A of the PC Act. The issue under deliberation before the Supreme Court in that case was as to whether the provisions contained in Section 17A of the Act operate retrospectively or the same operate prospectively. In a split verdict, Hon'ble Mr. Justice Aniruddha Bose came to the conclusion that Section 17A of the PC Act would come into operation even in respect of offences which have been committed prior to Amendment Act 16 of 2018 if the enquiry, inquiry or investigation has commenced after the coming into operation of the said Act whereas Hon'ble Ms. Justice Bela M. Trivedi concluded that the protection under Section 17A cannot be extended to the acts committed prior to coming into operation of the Amendment Act of 2018. Her Ladyship observed that CRM(M) No.197/2023 Page 15 of 24 Section 17A is required to be treated as substantive and not merely procedural in nature and that the same cannot be made applicable retrospectively to the offences like Section 13(1)(c) and 13(1)(d) of the PC Act which were deleted under the Amendment Act of 2018.
20. In the same case, Hon'ble Mr. Justice Aniruddha Bose concluded that if an enquiry, inquiry or investigation is intended in respect of a public servant on the allegation of commission of offence under the PC Act after Section 17A thereof becomes operational, which is relatable to any recommendation made or decision taken, at least prima facie, in discharge of his official duty, previous approval of the authority postulated in sub-section (a) or (b) or (c) of Section 17A of the 1988 Act shall have to be obtained and in absence of such previous approval, the action initiated under the 1988 Act shall be held illegal. His Lordship further held that the option of the concerned authority in seeking approval in terms of Section 17A of the Act is not foreclosed and the liberty is preserved for the State to apply for such approval.
21. However, Hon'ble Ms. Justice Bela M. Trivedi concluded that Section 17A would be applicable to the CRM(M) No.197/2023 Page 16 of 24 offences under the PC Act as amended by the Amendment Act 2018 and not to the offences existing prior to the said amendment. Her Ladyship further observed that absence of an approval as contemplated in Section 17A for conducting enquiry, inquiry or investigation of the offences alleged to have been committed by a public servant in purported exercise of his official functions or duties, would neither vitiate the proceedings nor would be a ground to quash the proceedings or the FIR registered against such public servant.
22. The expression "shall" used by the Legislature in Section 17A of the PC Act, makes it clear that approval of the competent authority is a mandatory requirement for undertaking enquiry, inquiry or investigation into an administrative or official act of a public service which may constitute an offence under the said Act. This view is supported by the aforesaid legal position discussed herein before. As already noted, Hon'ble Mr. Justice Aniruddha Bose has, in Nara Chandrababu Naidu's case (supra), taken a similar view. Even in Yashwant Sinha's case, the Supreme Court has held that the provisions contained in Section 17A of the PC Act appear to be mandatory in nature. Similar view has been expressed by Madras High Court in the case of K. Shiva Kumar vs. CRM(M) No.197/2023 Page 17 of 24 State (Crl. O. P No.16673 of 2024 decided on 06.01.2025) and Karnataka High Court in the cases of Dr. Ashok vs. State and another (Criminal Petition No.531 of 2022 decided on 4th July, 2023), Smt. S. Laxmi & others vs. Additional Director General of Police and another (Writ Petition No.11933 of 2023 decided on 17.03.2025) and Sri D. S. Veeraiah vs. State of Karnataka and another (Writ Petition No.31828 of 2024 decided on 29.04.2025) as also the High Court of Gauhati in the case of Mr. Alok Kumar vs. CBI (Crl. Pet. No.316 of 2023 decided on 07.08.2024).
23. The question, whether a particular act or omission of a public servant was in discharge of his official functions or duties or the same was relatable to recommendations made or decisions taken in discharge of official duties or functions, can be a subject matter of investigation or trial but in a case where it is clear from the facts and circumstances, which have led to initiation of an enquiry, inquiry or investigation, or in a case where during the enquiry, inquiry or investigation it is brought to the bear that the act or omission of a public servant is relatable to his official functions, the approval of the competent authority in terms of Section 17A of the PC Act CRM(M) No.197/2023 Page 18 of 24 would be mandatory. It would all depend upon the facts and circumstances of a particular case.
24. In the light of the aforesaid legal position let us now proceed to consider the facts emanating from the record. In the instant case, in the impugned FIR none of the petitioners and, in fact, none of the officials of the ARTO Office, Anantnag, has been named. There is a general allegation that certain touts are in league with officers/officials of ARTO Office, Anantnag, and they are collecting bribes from the applicants for issuance of driving licenses, registration certificates, fitness certificates etc.
25. It is true that in the impugned FIR, there is an allegation that a few applicants had paid bribes for issuance of driving licenses through agents/touts for Board members of ARTO Office, Anantnag, and it is also a fact that the petitioners were Board members of ARTO Office, Anantnag, at the relevant time. However, in the impugned FIR, it is also alleged that the officers/officials of ARTO, Anantnag, appear to be under a well-knit conspiracy with touts/agents. Thus, the allegations made in the impugned FIR are general in nature without pinpointing any Board member or any particular officer/official of ARTO, Anantnag. In fact, a perusal of CRM(M) No.197/2023 Page 19 of 24 the Case Diary would reveal that initially no incriminating material was found against any of the officials of the ARTO Office, Anantnag, including the petitioners herein. Thus, it cannot be stated that at the time of registration of the FIR or even thereafter for a considerable period of time, the Investigating Agency had derived any satisfaction with regard to involvement of the petitioners in the alleged activities.
26. A perusal of the Case Diary would reveal that it is for the first time in the month of August, 2021 that the Investigating Agency suspected the role of petitioners in the alleged activities. On 2nd August, 2021, the Investigating Agency filed applications before the learned Special Judge, Anti-Corruption, Anantnag, seeking search warrants in respect of residential premises of the petitioners. In those applications, the Investigating Agency has clearly nominated the petitioners as the accused. Thus, at that stage, the Investigating Agency was in knowledge about the identity of the suspects i.e. the petitioners herein.
27. The question as to whether the petitioners had committed the acts which were relating to their official duties or functions would not detain this Court too much because, as per case of the respondent Investigating CRM(M) No.197/2023 Page 20 of 24 Agency, they did apply for prior approval under Section 17A of the PC Act to the Government and got the approval in terms of communication dated 11.11.2022, meaning thereby that the respondent Investigating Agency is admitting that the acts\omissions of the petitioners were relating to recommendations made or decisions taken by them in discharge of official functions. Although the respondent Investigating Agency has, in its status report, taken a stand that these acts were not covered by Section 17A of the PC Act, yet the fact that they have later on obtained sanction under Section 17A of the Act makes their stand self-defeating. Even otherwise, the alleged acts of the petitioners in issuing licenses, fitness certificates etc. were, admittedly, in discharge of their official functions, therefore, the same are squarely covered by the protection under Section 17A of the PC Act.
28. Having held that the alleged acts of the petitioners fall squarely within the purview of Section 17A of the PC Act, it was incumbent upon the respondent Investigating Agency to seek prior approval of the Government for proceeding ahead with the investigation once they came to know about the identity and role of the petitioners. Therefore, the proceedings/investigation conducted by CRM(M) No.197/2023 Page 21 of 24 the respondent Investigating Agency from the stage of obtaining search warrants in respect of premises of the petitioners till the stage of obtaining approval under Section 17A of the PC Act i.e. uptill 11.11.2022 are contrary to law. However, this cannot form a ground for quashing the impugned FIR or the entire investigation conducted so far. The Supreme Court in Yashwant Sinha's case (supra) granted liberty to the complainant to obtain approval under Section 17A of the PC Act. In Nara Chandrababu Naidu's case (supra), Hon'ble Mr. Justice Aniruddha Bose has observed that the right of Investigating Agency to seek approval under Section 17A of the PC Act is not foreclosed whereas Hon'ble Ms. Justice Bela M. Trivedi went on to hold that absence of approval under Section 17A of the PC Act would not be a ground to quash the FIR or the proceedings. Thus, merely because the respondent has undertaken investigation of the impugned FIR in violation of the mandate under Section 17A of the PC Act between 02.08.2021 to 11.11.2022 cannot form a ground to quash the FIR or the entire investigation.
29. Now that veil of approval under Section 17A of the PC Act is in place, the question that arises for consideration is as to what would be the fate of the CRM(M) No.197/2023 Page 22 of 24 investigation conducted by the respondent Investigating Agency between 02.08.2021 when the names of the petitioners as accused were identified upto 11.11.2022, the date when the approval in terms of Section 17A of the PC Act was accorded.
30. As per the provisions contained in Section 465 of the Cr.P.C, any finding, sentence or order passed by a Court would not get affected, inter alia, on account of any error or irregularity in any sanction for prosecution unless it is shown that a failure of justice has occasioned thereby. In the present case, the petitioners have neither pleaded nor projected anything that would persuade this Court to hold that because of lack of approval under Section 17A of the PC Act, any prejudice has been caused to them while the investigation of the case was being conducting during the aforesaid period. In fact, a perusal of the Case Diary reveals that hardly any incriminating material has been collected by the Investigating Agency against the petitioners during the aforesaid period. It appears that the previous Investigating Officer had rendered his opinion that no case is made out against the petitioners. Thus, no prejudice has been caused to the petitioners because of the investigation conducted during the period when the veil of approval was not in place. CRM(M) No.197/2023 Page 23 of 24 Therefore, in the peculiar facts and circumstances of this case, the part of investigation conducted by the respondent Investigating Agency in violation of Section 17A of the PC Act would not vitiate the same, nor would it affect the registration of the impugned FIR and the investigation conducted pursuant thereto.
31. The other contention raised by learned Senior Counsel for the petitioners is that the previous Investigating Officer had, after conducting investigation, concluded that no offence is made out against the petitioners and, therefore, it was not open to the respondent Investigating Agency to proceed ahead with the investigation. In this regard, the learned Senior Counsel has, while referring to the provisions contained in Section 173(8) of the Cr. P. C, contended that without the permission of the Court, further investigation could not have been undertaken by the respondent Investigating Agency.
32. I am afraid the ground urged by learned Senior Counsel appearing for the petitioner is without any merit because the previous Investigating Officer had only rendered an opinion on the basis of the material collected by him. The matter had not reached the Court, inasmuch as the respondent Investigating Agency had not produced CRM(M) No.197/2023 Page 24 of 24 any closure report before the Court. That matter was at the stage of scrutiny of the opinion of the previous Investigating Officer and at that stage, the respondent Investigating Agency decided to investigate the matter all over again. This was well within the jurisdiction of the Investigating Agency. Section 173(8) of the Cr. P. C operates only after the final report is produced before the Court. From the stage of registration of FIR upto the stage of filing of final report before the Court, it is the domain of the Investigating Agency to investigate a matter in accordance with law without any judicial interference. Thus, it was well within the domain of the Investigating Agency to differ with the opinion of the previous Investigating Officer and to hold fresh investigation into the matter.
33. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. Interim stay order shall stand vacated.
34. The Case Diary be returned to learned counsel for respondents.
(Sanjay Dhar) Judge Srinagar, 04.07.2025 "Bhat Altaf"
Whether the judgment is reportable: YES