Gauhati High Court
Mcleod Russel India Limited vs The State Of Assam And Ors on 30 April, 2012
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
Criminal Petition No. 17/2010
MCLEOD RUSSEL INDIA LIMITED,
A Company incorporated under the provisions of the
Companies Act, 1956 and having its Registered Office
situated at 4, Mangoe Lane, Surendra Mohan Ghosh
Sarani, Kolkata-700001 and owns various Tea Estates in the
State of Assam including a Tea Estate in the name and style
of 'Namdang Tea Estate' situated at Margherita, under P.S.
Margherita, in the District of Tinsukia, Assam. Represented
by Sri Baldeep Singh, the Senior Manager, Namdang Tea
Estate, P.O. & T.O. Margherita, in the District of Tinsukia,
Assam-786181.
- Petitioner
- Versus -
1. THE STATE OF ASSAM
2. THE OFFICER-IN-CHARGE,
Margherita Police Station,
P.O. & P.S. Margherita,
Dist. Tinsukia, Assam.
3. SRI ASHUTOSH TALUKDAR,
Son of Late Kagendra Nath lTalukdar,
R/O Namdang Tea Estate,
P.O. & P.S. Margherita,
Dist. Tinsukia, Assam.
- Respondents
BEFORE THE HON'BLE MR. JUSTICE I A ANSARI Advocates present:
For the petitioner : Mr. D. Baruah, Mr. K Saharia,
Mr. P.P. Das,
Ms. S. Baruah,
For the respondent : Mr. D. Das, Addl. Public Prosecutor,
Assam.
For the Opp. Party. No.3 : Mr. J.M. Choudhury, Senior Advocate.
Mr. R.C. Paul, Mr. C Phukan,
Ms. S Roy,
Date of hearing : 11-04-2012
Date of judgment : 30-04-2012
Page 2
JUDGMENT & ORDER
Fairness of trial does not mean that the trial has to be fair to the accused alone. Equally important is that the trial is fair to the person aggrieved or whose near and dear ones are aggrieved. When police registers a case, the State assumes the responsibility of conducting an investigation. Having assumed the responsibility of investigating the truth or veracity of the allegations, which the police receive, the State cannot act, nor can its Investigating agency act, without a sense of impartiality. It is not merely a trial, which has to be impartial. No less important it is that the investigation, too, is impartial. Fairness of trial will carry with it the fairness of investigation and fairness of investigation will carry with it the impartiality in investigation, besides the investigation being efficient, un- biased, not aimed at helping either the prosecution or the defence. In short, an investigation must not suffer from any ulterior motive or hidden agenda to either help a person or harm a person. This is the principle, which Article 21 of the Constitution of India, read with Article 14 thereof, enshrines, when we say that our Constitution guarantees fair trial. (See Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors. reported in (2011) 5 GLR 388)
2. With the help of this application, made under Section 482 Cr.P.C., the petitioner, who is the informant of Margherita Police Station Case No. 111 of 2008 (Corresponding to GR Case No. 276 of 2008), under Sections 408/420 IPC, has sought for setting aside and quashing the order, dated 16-12-2009, passed by the learned Judicial Magistrate 1st Class, Margherita, declining to direct further investigation into the said case, in terms of the Crl. Pet. No. 17 of 2010 Page 3 provisions of Section 173(8) Cr.P.C., on the grounds that cognizance had already been taken, process has already been issued against the accused- opposite party No. 3 herein, namely, Sri Ashutosh Talukdar, the accused- opposite party No. 3 has already entered appearance and that Section 311 Cr.P.C. read with Section 319 Cr.P.C., give sufficient power to the Court to unearth the truth and, in the context of the facts of the present case, no order for further investigation, as has been sought for by the informant, is necessary.
3. The material facts emerging from the record and leading to the filing of the present application, under Article 482 Cr.P.C., are, in brief, set out as under:
(i) The informant is a company incorporated under the Company's Act, 1956, with its registered office at Kolkata and owns various tea gardens, in the State of Assam, including a tea garden, which is run under the name and style of Namdang Tea Estate, situated at Margherita, in the district of Tinsukia.
(ii) The accused-opposite party No. 3 herein, namely, Sri Ashutosh Talukdar, was initially appointed, on 12-11-1984, as office clerk, in Grade-III, in Namdang Tea Estate of the petitioner company and, with effect from 18-03-2000, he was posted as Head Clerk of Namdang Tea Estate. Being the Head Clerk, the opposite party No. 3, according to the petitioner, was entrusted with the duty to prepare vouchers for disbursement of payments to different persons, his additional duty being preparation and maintenance of cash books in the computer as well as in printed version. The accused, as Head Clerk, according to the petitioner, Crl. Pet. No. 17 of 2010 Page 4 was also entrusted with the duty to not only prepare vouchers, but make payments.
(iii) Describing the manner in which the cash books, in computer as well as in printed version, are maintained and various amounts, which were disbursed to the third parties, the petitioner states that based on approximate amounts payable by the said tea estate to various persons, cash is withdrawn from the bank by the said tea estate and kept in the safe, which remains in the custody of the Manager of the said tea estate, the said safe of the petitioner's tea estate being operated jointly with two different keys at a time; while one key remains with the Manager of the said tea estate, the other is kept by the Head Clark and that the Head Clark takes out cash from the safe, in the presence of Manager, according to the requirement of a given day. The cash, lying in the safe, is either withdrawn on the same day or the subsequent day by the Head Clark as per exigencies. The cash is withdrawn on the basis of the vouchers, which the Head Clark prepares, and the amounts, mentioned in the vouchers, are entered into the computer of the said tea estate and, upon making entry in this regard, the computer generates a cash book (in the printed form) and, thereafter, the printed cash book is signed by the Manager.
(iv) The informant company's auditor, namely, M/S BM Chatrath and Company, found, upon conducting audit of the accounts of Namdang Tea Estate, that the accused, as Head Clark, had manipulated the cash books, which he was entrusted to prepare and maintain, and misappropriated huge amount of money. The manipulation as well as misappropriation, done by the accused, came to be unearthed by Crl. Pet. No. 17 of 2010 Page 5 conducting audit by one Sri Tejash Kr. Bhattacharjee, one of the auditors of M/S BM Chatrath and Company, the process of manipulation resorted to by the accused being that he manipulated the entries by showing, in the computer system, cash payments of higher amounts than the amounts actually paid. The consequence was that the cash entries, made in the computer, were larger than that of the physical cash book, which the accused himself had maintained, and, during the audit, the total of such entries, made in the computer, were found to be different and varying from the day's total of cash payments in the cash book maintained by the accused. It was also found, according to the informant, that the accused had fraudulently prepared different cash books with missing entries and wrong total of payments and produced the same before the Manager. The auditor also found that false and fictitious entries had been made in the computer system, which were not backed by relevant vouchers.
(v) The manipulation, committed by the accused, was revealed when the auditors checked the printed cash book signed by the Manager.
The modus operandi of the accused, according to the informant, was thus:
The day's total of cash payments, in the cash copies, were manipulated by showing a higher total disbursement than the actual amounts paid and a lower cash balance and thereby the requirement for cash were inflated.
Under such circumstances, the auditors counter-checked the entries of cash payments in the system and found that the number of cash entries, appearing in the system, were more as compared to the entries in the cash book (in physical form), signed by the Manager, and the total of the extra entries, appearing in the system, exactly matched with the difference Crl. Pet. No. 17 of 2010 Page 6 found in the day's total of cash payments in the copies of cash book signed by the Manager. This reflected that the accused, who had been entrusted with the responsibility to prepare cash book and produce the same before the Manager for latter's signature, had fraudulently prepared different cash books with missing entries and wrong total for payment and produced the same before the Manager. All the additional entries of cash payments, appearing in the cash book, in the computer system (and not in printed form), were not supported by any voucher whatsoever, the entries, thus, being all fake and willfully inserted in the system to cover up the difference between the actual and enhanced cash expenses. The accused also deleted/suppressed, in the system, the fake entries and the print-outs of the cash book, showing genuine cash expenditure, in the entries, suppressing the voucher, were given, in the printed form, by the Head Clark to the Manager and he (accused) got the latter's signatures obtained thereon. However, the day's total, in the system, being not changeable in the system, remained unaltered in the printed cash book copies signed by the Manager. As an illustration, the informant, while describing the modus operandi of the accused, states that the accused, in maintaining and preparing the cash book in the computer, would enter 100 entries of which 10 entries would be fraudulent and fictitious entries. While printing out the said cash book prepared in the computer, the accused manipulated the system, wherein only 90 entries would be mentioned; however, the total of the 90 entries, which were reflected in the printed version of the cash book, and the 100 entries, which were reflected in the cash book maintained in the computer system, the total would always remain the same. In other Crl. Pet. No. 17 of 2010 Page 7 words, the total of 100 payment vouchers and the total of 90 genuine payment vouchers, maintained in the printed form, in the cash book, would be the same. The extra amount, (i.e. the total 10 fraudulent vouchers) so drawn out from the safe, were misappropriated by the accused. By this way, the accused had misappropriated an amount of Rs.
25,40,137.44p belonging to the petitioner.
(vi) Upon the report, so supported by the auditors, a First Information Report was lodged with Margherita Police Station, which came to be registered, as indicated above, as Margherita Police Station Case No. 111 of 2008.
(vii) Following the registration of the FIR, the investigating officer concerned seized, on various occasions, following documents:
(i) On 27.06.2008, the following documents were seized:-
(a) One Safe Book of Namdang Tea Estate containing Reg. NO.1 to 98.
(b) One Audit Report of Namdang Tea Estate done by M/s B. M. Chatrath & Co., Chartered Accountant for the financial year 2007-08.
(c) One Audit Report of Namdang Tea Estate done by M/s B.M.Chatrath & Co., Chartered Account for th period 2003-04 to 2006-07.
(d) Confession Letter written by Sri Ashutosh Talukdar addressing the Acting Manager, Namdang Tea Estate alongwith list of witnesses, code and amount date wise.
(ii) On 25.08.2009, the Investigating Officer seized one draft copy written by the Respondent No.3 addressed to Gopal Automobile, Makum Road, Tinsukia.Crl. Pet. No. 17 of 2010
Page 8
(iii) On 10.08.2009, the Investigating Officer seized the following documents:-
(a) One C.P.U. (Computer Processing Unit) where account records were stored at Namdang Tea Estate w.e.f. 2004-05 to 2006-07 and 2008.
(b) One CD(Compact Disk) containing cash books of Namdang Tea Estate w.e.f. 2004-05 to 2006-07 and 2008.
(viii) The officials of the informant company apprised the investigating officer of the manner of maintenance of printed cash book, wherein the Managers had put their signatures, and the fact that the seizure of the printed cash book was necessary, because the same were wider piece of evidence, for, without comparing the printed cash book, signed by the Managers, with the cash book, maintained in the computer, it was not possible to prove the offence, which, according to the informant, the accused had committed. This apart, during the course of investigation, Shri Tejesh Kumar Bhattacharjee, one of the auditors, who had conducted the audit as well as the Managers, who had signed the cash book, were not examined as witnesses and their attendance were never sought for by the investigating officer, at any stage, during the course of investigation. The charge-sheet also reveals, points out the petitioner, that the said persons have not been mentioned as prosecution witnesses, though their evidence would be very material for the purpose of proving the commission of offence by the accused.
4. The petitioner company submits that the accused was not interrogated by the investigating authority and was shown as absconder in the charge-sheet. In this regard, it is also brought to the notice of this Court Crl. Pet. No. 17 of 2010 Page 9 by the petitioner that the accused had filed as many as four applications for pre-arrest bail, under Section 438 Cr.P.C., in the High Court, but all the said applications were rejected and in the last Bail Application No. 2955/2009, the Court had, while rejecting the bail application, directed the accused to surrender before the Sub-Divisional Judicial Magistrate, Margherita, within a period of 14 days. The accused did not, however, surrender contrary to the directions so issued. The informant, through its Manager, filed an application, in the Court of the learned Sub-Divisional Judicial Magistrate, Margherita, bringing to the notice of the learned Court below the directions, which had been passed in Bail Application No. 2955/2009. However, the learned Sub-Divisional Judicial Magistrate, Margherita, disposed of the said petition, filed by the Manager of the informant company, by observing, in the order, dated 20-08-2009, that as the accused person had neither surrendered nor has he been produced before the Court, the Court could do nothing in respect of appearance of the accused.
5. It is alleged by the informant company that the accused and the investigating officer knew each other. They knew that in view of the order passed by this Court in Bail Application No. 2955/2009, the accused would not be granted bail and yet, in perfunctory and haphazard manner, the investigating authority submitted charge-sheet against the accused, on 13- 09-2009, showing him as absconder. The said charge-sheet was taken note of by the learned Magistrate on 23-10-2009 and the cognizance of offences under Sections 408/420 IPC was taken and, having taken note of the fact that the accused was an absconder, the learned Sub-Divisional Judicial Crl. Pet. No. 17 of 2010 Page 10 Magistrate, vide his order, dated 23-10-2009, transferred the case to Shri A Deuri, learned Judicial Magistrate, 1st Class, Margherita, for disposal. On 29-10-2009, the accused, who had all along been absconding, appeared in the trial Court and sought for bail even though no summon had been issued by the learned trial Court and the learned trial Court, without considering the earlier rejection of the application for pre-arrest bail and also the fact that the direction given by the order, dated 24-07-2009, passed, in Bail Application No. 2955/2009, by the High Court, to surrender in the Court of the Sub-Divisional Judicial Magistrate, Margherita, had not been complied with by the accused, granted bail to the accused on the ground that the accused had appeared before the Court to face trial and fixed the case, on 25-11-2009, for copy.
6. The informant came to learn, on 25-11-2009, about the filing of the charge-sheet and, immediately, thereafter, on 03-12-2009, an application was filed, on behalf of the informant, under Section 156(3) Cr.P.C., seeking further investigation and, in this application, the informant stated that the petitioner had reason to believe that it was for reasons other than bona fide that the investigating officer had conducted the investigation in the most perfunctory manner. A counsel, appearing on behalf of the informant- petitioner, had also requested the learned trial Court to allow him to assist the Public Prosecutor, who has to conduct a session triable case.
7. By order, dated 16-12-2009, the learned trial Court, as indicated above, has rejected the petition made under Section 156(3) and also the prayer made for allowing the petitioner's counsel to assist the Public Crl. Pet. No. 17 of 2010 Page 11 Prosecutor on the ground that it is the Public Prosecutor, who has to conduct a session triable case.
8. Four questions, which have arisen for determination in the present case, are as under:
(i) Whether the Magistrate, after taking cognizance of a case upon a Police Report, has the power and authority to direct further investigation on an Application being filed by the informant or de facto complainant?
(ii) Whether the Court's power, under Section 311 and Section 319, can be effective substitute for further investigation?
(iii) Whether Section 302 read with Section 301 of the Code of Criminal Procedure, 1973, envisages that for grant of leave from a Magistrate for a private lawyer to appear before the Magistrate, a No Objection is required from the Public Prosecutor?
(iv) Whether in the facts and circumstances of the instant case, a ‗further investigation' is called for?
9. I have heard Mr. D Baruah, learned counsel for the informant- petitioner, and Mr. D Das, learned Additional Public Prosecutor, Assam. I have also heard Mr. JM Choudhury, learned Senior counsel, assisted by Mr. C Phukan, learned counsel for the opposite party No. 3.
10. Appearing on behalf of the petitioner, Mr. Baruah, learned counsel, submits that the facts, as narrated in the present application made under Section 482 Cr.P.C. and the materials on record would go to show that the investigating authority had conducted the investigation in a manner so as to help the accused. The investigation was, according to Mr. Baruah, wholly perfunctory, manipulated and unfair and, hence, based on such Crl. Pet. No. 17 of 2010 Page 12 perfunctory and unfair investigation, a charge-sheet has been laid. Mr. Baruah, learned counsel, contends that as the investigation is wholly unfair, it is necessary that unless the vital omissions, in the investigation, and the unfairness thereof are removed by this Court by taking recourse to appropriate provisions of law or else, the investigation would become a precursor of miscarriage of justice.
11. Mr. Baruch points out that though the application, filed on behalf of the petitioner, was made under Section 156(3), the fact remains that what the petitioner had really sought for was a direction for further investigation under Section 173(8) CrPC and, though the learned Magistrate may not have the power to direct further investigation, because cognizance had already been taken by him, there is no impediment, on the part of this Court, to direct further investigation in exercise of its inherent power under Section 482 CrPC.
12. Though Mr. Baruah does not, in specific term, challenges the fact that no direction for further investigation could have been passed by the learned Court below, because cognizance had already been taken, Mr. Baruah contends that the limitation, which the learned Court below suffers from, is not applicable to this Court inasmuch as this Court, under Section 482 Cr.P.C., is sufficiently empowered to direct further investigation and the fact that the petitioner had made the application, seeking further investigation, by mentioning Section 156(3) Cr.P.C., was immaterial and the said petition ought to be treated as a petition seeking further investigation, made under Section 173(8) Cr.P.C. and if this Court is satisfied that such a direction is warranted in the facts and attending circumstances of the Crl. Pet. No. 17 of 2010 Page 13 present case, then, necessary directions be issued by invoking Section 482 CrPC.
13. Support for his submission that the High Court is empowered, under Section 482 Cr.P.C., to direct further investigation, even after cognizance has been taken by a Magistrate of an offence, Mr. Baruah places reliance on the case of State of Punjab vs CBI, reported in (2011) 9 SCC 182, and the case of Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors. reported in (2011) 5 GLR 388. Mr. Baruah, in this regard, also refers to the case of Reeta Nag -vs- State of West Bengal and others, reported in (2009) 9 SCC 129, and Randhir Singh Rana -vs- State (Delhi Administration), reported in (1997) 1 SCC 361.
14. In support of his contention that nomenclature, whereunder a petition is filed, is irrelevant so long as the Court possesses the power, Mr. Baruah refers to Pepsi Foods Limited -vs- Special Judicial Magistrate (AIR 1998 SC 128).
15. On the basis of the authorities cited above, Mr. Baruah contends that where an investigation is carried out in a manner, which is one sided or unfair and/or when the investigation is tempered, the High Court has the inherent power, under Section 482 Cr.P.C., to correct the miscarriage of justice so that fair trial takes place and this can be achieved, in the present case, by directing further investigation in terms of Section 173(8) Cr.P.C. The power to issue such a direction can also be exercised, according to Mr. Baruah, under Articles 226 and/or 227 of the Constitution of India. Crl. Pet. No. 17 of 2010
Page 14
16. Appearing on behalf of the accused-opposite party, Mr. J. M. Choudhury, learned Senior counsel, has submitted that, in the case at hand, the learned trial Court was wholly justified in declining to direct ‗further investigation', because the learned Court below had already taken cognizance of offence and it had, therefore, no jurisdiction to direct further investigation. The power to direct further investigation remains, according to Mr. Choudhury, with a Magistrate so long as he has not accepted the police report submitted by the police under Section 173(2) CrPC. This apart, points out Mr. Choudhury, learned Senior counsel, the informant- petitioner's application, seeking further investigation was made under Section 156(3) CrPC, which was not applicable to the facts of the case at hand after the charge-sheet had already been submitted, for, Section 156(3) empowers a Magistrate, contends Mr. Choudhury, to direct investigation before he takes cognizance and not after he has already taken cognizance. The investigation, in the present case, if unfair, can very well be, according to Mr. Choudhury, cured by taking recourse to Section 311, read with Section 319 CrPC, or else, it is the police, which may decide, in a given case, to conduct further investigation if such an investigation is warranted.
17. While considering the present application, in the light of the questions, which have arisen for determination, it needs to be carefully noted that Mr. Baruah is wholly correct, when he submits that the nomenclature or the Section, whereunder a particular application/ petition is filed, in a Court, is immaterial. What is material is the substance or the contents of the application/petition and the reliefs, which have been sought for. The reference, made by Mr. Baruah, in this regard, to the case Crl. Pet. No. 17 of 2010 Page 15 of Pepsi Foods Limited Vs. Special Judicial Magistrate (AIR 1998 SC 128), is not wholly misplaced. Viewed from this angle, it is clear that though the petition was filed, in the present case, by the informant, under Section 156(3) Cr.P.C., seeking further investigation into the case aforementioned, the fact of the matter remains that Section 156(3) Cr.P.C. does not deal with further investigation, for, Section 156(3) Cr.P.C. empowers the Magistrate to direct investigation before he takes cognizance of an offence in exercise of his power under Section 190 Cr.P.C.; whereas further investigation by investigating agency is provided in Section 173(8) Cr.P.C. and the question of further investigation comes after the police, on completion of investigation, has already submitted its report either in the form of charge-sheet or in the form of final report informing the Court that there is no material at all or insufficient material to put, on trial, the accused or any one named or unnamed in the FIR.
18. A Division Bench of this Court, to which I was one of the parties, in Rana Sinha @ Sujit Sinha (supra), has clearly drawn the distinction between an investigation under Section 156(3) Cr.P.C. and further investigation under Section 173(8) Cr.P.C. The Division Bench, in Rana Sinha @ Sujit Sinha (supra), has also drawn the distinction between a further investigation and re-investigation.
19. In the light of the fact that a further investigation is carried out by police under Section 173(8) Cr.P.C., it needs to be noted that a Magistrate, on his own, cannot order further investigation after he has already taken cognizance of an offence on the basis of a police report. This position Crl. Pet. No. 17 of 2010 Page 16 clearly emerges from the case of Randhir Singh Rana (supra), wherein the Court, while holding that a Magistrate cannot, on his own, direct further investigation, if he has taken cognizance, observed thus:
"11. The aforesaid being the legal position as discernible from the various decisions of this Court and some of the High Courts, we would agree, as presently advised, with Shri Vasdev that within the grey area to which we have referred the Magistrate, of his own, cannot order for further investigation. As in the present case the learned Magistrate had done so, we set aside his order and direct him to dispose of the case either by framing the charge or discharge the accused on the basis of materials already on record. This will be subject to the caveat that even if the order be of discharge, further investigation by the police on its own would be permissible, which could even end in submission of either fresh charge- sheet.‖ (Emphasis added)
20. The legal position, emerging from the case of Randhir Singh Rana (supra), that a Magistrate, having taken cognizance of an offence, cannot direct further investigation, came up for re-consideration in Reeta Nag (supra) and, having analysed the law on the subject, the Supreme Court has reiterated, in Reeta Nag (supra), its earlier decision, in Randhir Singh Rana (supra), by taking the view that a Magistrate cannot, having taken cognizance of an offence complained of, direct further investigation. The relevant observations, appearing, in this regard, at Para 25 and 26, in Reeta Nag (supra), read as under:
―25. What emerges from the abovementioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) CrPC and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further Crl. Pet. No. 17 of 2010 Page 17 investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) CrPC or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code.
26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8) was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.‖
21. In the light of the position of law, as surfaced from the decision in Randhir Singh Rana (supra) and Reeta Nag (supra), a Division Bench of this Court clearly held, in Rana Sinha (supra), that a Magistrate cannot direct further investigation on his own and if he cannot direct further investigation on his own, it is not possible for him to hold that he can direct further investigation on the basis of a petition filed by the informant, de facto complainant, aggrieved person or the victim. The relevant observations, appearing in this regard, read as under:
―155. In the light of what has been observed option but to conclude and, in fact, it is not even disputed that Ranbir Singh Rana (supra) lays down that a Magistrate cannot, of his own, direct further investigation to be conducted by the police if cognizance has already taken and the accused has entered appearance. Rannbir Sinha Rana (supra) also clearly lays down that a Magistrate cannot, in the name of advancing the cause of justice, or to arrive at a just decision of the case, direct further investigation to be conducted by the police if he does not, otherwise, have the power to direct such further investigation meaning thereby that since a Magistrate does not have the power to direct, on his own, further investigation after Crl. Pet. No. 17 of 2010 Page 18 cognizance has already been taken and the accused has entered appearance, he cannot direct such further investigation of his own for the purpose of advancing the cause of justice or even to arrive at a just decision of the case.
156. No way, therefore, a Magistrate can direct further investigation of his own and if he cannot direct further investigation of his own, it is not possible to hold that he can direct such an investigation on the basis of any petition filed by the informant, de facto complainant, aggrieved person or the victim.‖ (Emphasis is added)
22. The question, therefore, which stares at us is: Whether the High Court, in exercise of its power under Section 482 Cr.P.C., or in exercise of its power under Article 226 and or 227 of the Constitution of India, can direct further investigation if the facts of a case so warrant, even if cognizance of offence(s), as revealed from the police report submitted under Section 173(2) CrPC, has already been taken ?
23. While considering the question posed above, it needs to be noted that the limitation, imposed on the power of a Magistrate, to direct further investigation if he has taken cognizance of an offence, does not disable the High Court to direct, in exercise of its power under Section 482 Cr.PC, or, in a given case, even under Article 226 of the Constitution, further investigation if so warranted in the facts of a given case. A complete answer to this question has been given, in Rana Sinha (supra), which is reproduced hereinbelow:
―199. Considering the fact that we have already held that a court cannot, on the basis of an application made by the informant, de facto complainant or victim, order ‗further investigation' to be conducted by the police, when the trial has already commenced, it logically follows that even if the grievances of the son of the deceased couple, in the present case, had any Crl. Pet. No. 17 of 2010 Page 19 justification, the learned Court below had no power to direct ‗further investigation'. The remedy of the present appellant, therefore, lied in making, either an application under Section 482 of the Code or a writ petition under Article 226 of the Constitution of India, seeking appropriate direction to be issued by the High Court, in exercise of either its inherent power under Section 482 or in exercise of its extra-ordinary jurisdiction under Article 226, for further investigation. Whether the present appellant could have made, in the fact situation of the present case, an application under Section 482 or an application under Article 226 of the Constitution of India and whether such an application could have been allowed, in the context of the facts of the present case, is an aspect of the case, which we would consider shortly. ― *** *** *** *** *** ***
203. What is, now, extremely important to note is that Article 227 vests in the High Court the power of supervisory jurisdiction so as to keep the courts and tribunals within the bounds of law. When a court's order is correct and in accordance with law, the question of reversing such an order in exercise of power under Article 227 does not arise. Same is the situation at hand. Since the learned trial Court, in the present case, could not have directed ‗further investigation' (as already held above) on the request of the de facto complainant or the victim, such as, the present appellant, the impugned order, declining to direct further investigation, cannot be said to amount to refusal to exercise jurisdiction. If the case at hand warranted 'further investigation', then, the remedy of the informant, de facto complainant or the victim, such as, the present appellant, lied in approaching the High Court either by making an application under Section 482 of the Code or by making an application under Article 226 inasmuch as the High Court has, in appropriate cases, the power to direct "further investigation' in exercise of its inherent power under Section 482 of the Code as well as in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India if the facts of a given case so warrant.
204. In fact, recognizing the power of the High Court, under Article 226, to direct the State to get an offence ‗investigated' or ‗further investigated', Crl. Pet. No. 17 of 2010 Page 20 the Supreme Court has held, in Kishan Lal (supra), that in a given situation, the superior Court, in exercise of its Constitutional power, namely, under Articles 226 and 32 of the Constitution of India, can direct the State to get an offence ‗investigated' and/or ‗further investigated' by a different agency. The relevant observations, made by the Supreme Court, in this regard, read thus:
―The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he 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 his 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.‖ [Emphasis is added]
205. The order impugned, in the writ petition, could not have been said to be an illegal order to the extent that the same declined further investigation on the basis of the present appellant's petition filed in the learned trial Court. Seen in this light, when the impugned order was not illegal, the question of reversing the order, by taking recourse to supervisory jurisdiction of the High Court under Article 226, could not have validly arisen.
206. The question as to whether the present appellant's grievances against alleged unfair and manipulated investigation are justified or not and, if justified, whether the learned Single Judge ought to have, in the facts and attending circumstances of the present case, directed further investigation, is a question, which needs to be, now, answered in this appeal.
207. While considering the above aspect of this appeal, one has to also bear in mind that the prayer made by a party, in any criminal or civil trial, shall not be the sole determining factor as to whether a person is or is not entitled to the relief, which he has sought for. If the law, on the basis of the facts brought on record, requires a relief to be given to a party, such a relief ought not to be disallowed merely because the party Crl. Pet. No. 17 of 2010 Page 21 has not specifically sought for such a relief unless, of course, the party concerned himself refuses to receive such a relief.
*** *** ***
*** *** ***
212. A trial, based on such manipulated and unfair investigation, as in the present case, would, if we may borrow the language in Babu Bhai (supra), ultimately, prove to be precursor of miscarriage of criminal justice. It is for such cases that the Supreme Court has pointed out and observed, in Babu Bhai (supra), that if the investigation has not been conducted fairly, such vitiated investigation cannot give rise to a valid charge-sheet. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place. In no uncertain words, observed the Supreme Court, in Babu Bhai (supra), that not only fair trial, but fair investigation too forms part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India and, hence, investigation must be fair, transparent and judicious inasmuch as a fair investigation is the minimum requirement of 'rule of law' and no investigating agency can be permitted to conduct an investigation in tainted and biased manner. Held the Supreme Court, in Babu Bhai (supra), that the court must interfere, where non-interference by the court would, ultimately, result in failure of justice.
(Emphasis is added)
24. Thus, notwithstanding the fact that a Magistrate is disabled from directing further investigation once he has taken cognizance of offence on the basis of a police report submitted under Section 173(2) Cr.PC., there is no impediment, on the part of the High Court, to direct further investigation, under Section 173(8), if the facts of a given case so warrant.
25. In short, the limitation, which is imposed on the power of a Magistrate to direct further investigation if he has already taken cognizance, does not apply to, or disable, the High Court from directing further Crl. Pet. No. 17 of 2010 Page 22 investigation, in a given case, if the facts of the case so warrant, by taking recourse to Section 482 Cr.PC. A reference, in this regard, may be made to the case of State of Punjab Vs. CBI, reported in (2011) 9 SCC 182, too. The observations, appearing at Para 24 of State of Punjab (supra), read thus:
―24. It is clear from the aforesaid observations of this Court that the investigating agency or the court subordinate to the High Court exercising powers under CrPC have to exercise the powers within the four corners of CrPC and this would mean that the investigating agency may undertake further investigation and the subordinate court may direct further investigation into the case where charge-sheet has been filed under sub- section (2) of Section 173 CrPC and such further investigation will not mean fresh investigation or reinvestigation. But these limitations in sub- section (8) of Section 173 CrPC in a case where charge-sheet has been filed will not apply to the exercise of inherent powers of the High Court under Section 482 CrPC for securing the ends of justice.‖
26. Though the informant, on coming to learn about the charge-sheet having been laid, made an application, under Section 156(3) Cr.P.C., seeking further investigation on the grounds and reasons mentioned in the said application, the fact remains that the learned trial Court had committed no error by refusing to direct further investigation inasmuch as the learned trial Court, having already taken cognizance of offence on the basis of the charge-sheet already filed by the police, could not have directed, in the light of Randhir Singh Rana (supra), Reeta Nag (supra) and Rana Sinha (supra), further investigation. This would not, however, disable this Court from directing further investigation into the case if the facts of the case so warrants.
Crl. Pet. No. 17 of 2010
Page 23
27. From the decision in Randhir Singh Rana (supra), Reeta Nag (supra) and Rana Sinha (supra), it becomes transparent that in a case, where investigation has been carried out in a one sided manner or when an investigation has been carried out to favour a particular party or investigation is tempered, the High Court, in exercise of its inherent power under Section 482 Cr.P.C., and even under its supervisory jurisdiction under Article 227 of the Constitution of India, and, in extraordinary cases, in exercise of its power under Article 226 of the Constitution of India, not only has the power, but even owes a duty to direct further investigation and/or reinvestigation, as the case may be.
28. The question, which, now, arises for consideration is: Whether in the case at hand, the direction for further investigation ought to be given by this Court?
29. Because of the fact that further investigation has been sought for by the petitioner on the ground of unfairness in investigation, the questions, which have emerged for consideration are: (i) What is an unfair investigation ? and (ii) Whether an unfair investigation can be a ground for directing further investigation ?
30. While considering the above question, one needs to note that the Division Bench, in Rana Sinha's case (supra), commenting upon the importance of fair investigation, observed that Article 21 guarantees fair trial and a fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing Crl. Pet. No. 17 of 2010 Page 24 during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation and, hence, a manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. The observations made, in this regard, which appear at paragraph 1 and 2 of Rana Sinha's case (supra), read as under:
―1. Article 21 guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all aspects of an accusation, be it in favour of the accused or against him.
2. Article 21, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he or she has the right to demand that the State discharges its Constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its Crl. Pet. No. 17 of 2010 Page 25 chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial.‖
31. It needs to be borne in mind that the allegation against the accused is that he, being a clerk, committed the offence of criminal breach of trust by siphoning of the company's fund by showing bogus transactions. It would, therefore, be not out of place to mention here the basic ingredients of criminal breach of trust as defined under Section 405 IPC. Section 405 IPC reads:
―Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
32. The prosecution, in a case under criminal breach of trust, is required to prove the following to bring home the charge of criminal breach of trust.
(i) That the accused was entrusted with property or with any dominion over property Crl. Pet. No. 17 of 2010 Page 26
(ii) That the accused violated the direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust.
(iii) That the accused did the aforesaid acts driven by dishonest intention.
33. It is equally important that the facts relevant to the facts in issue be proved by person having direct knowledge of the events; hence, examination of those witnesses, if available, who could give direct evidence on the ingredients of the offence becomes indispensable part of investigation.
34. A police investigation must, therefore, take care to investigate the basic ingredients of the offence of criminal breach of trust not to ensure the conviction of accused, but to unearth the truth.
35. From the facts narrated by the informant-petitioner and the grievances expressed on his behalf, it becomes clear that the offence, alleged to have been committed by the accused, is that he has manipulated the Cash Book and thereby siphoned off huge amount of money of the informant company. In this regard, the basic grievance of the informant- petitioner is that the accused was entrusted with the duty of preparing and maintaining cash book. What the accused did was that he maintained one cash book in the computer system and another cash book in the physical form. In both these cash books, though the day's total of cash remained the same, but in the cash book, which has been maintained in the computer, the accused allegedly entered various amounts, on the basis of fraudulent Crl. Pet. No. 17 of 2010 Page 27 vouchers, but, in the physical cash book, the entries, as regard fraudulent vouchers, were absent. It is in this manner that the accused had allegedly siphoned off, by using fraudulent and fictitious vouchers, money belonging to the company.
36. In the circumstances, mentioned above, the informant submits, and I find considerable force in the submission, that it was incumbent, on the part of the investigating agency, to seize both the cash books, i.e. the cash book maintained in the computer and the cash book maintained in the physical form, because it would be well-neigh impossible to prove offence, if any, committed by the accused without comparing the two cash books, which he allegedly used to maintain. The said manipulation, it is alleged, were unearthed by the auditors of the petitioner company, namely, one Tejesh Kumar Bhattacharjee, whose evidence, as a witness, would, undoubtedly, be of paramount importance.
37. Similarly, the informant-petitioner also has considerable force in his grievance that the evidence of the Managers of the periods concerned, namely, Dipen Bordoloi and Ramanuj Das Gupta, who had signed the printed version of the cash book, would not only be relevant and important, but indispensible for effective investigation and fair trial if the prosecution has to prove its case against the accused. For no reason, either assigned or discernible from record, the physical cash book was not seized by the investigating authority knowing fully well that without comparing the cash books, as indicated above, it is impossible to prove the allegations, which have been made against the accused. Seen thus, it is clear that Crl. Pet. No. 17 of 2010 Page 28 Tejesh Kumar Bhattacharjee, Dipen Bordoloi and Ramanuj Das Gupta are vital witnesses and ought to have been cited, in the charge-sheet as witnesses for prosecution. Amazingly enough, the investigating authority, during the course of investigation, did not even examine these witnesses or ask for their attendance.
38. From what have been indicated above, it becomes clear that the charge-sheet has been filed either on perfunctory investigation or by deliberately manipulating the investigation. In either case, the investigation, being inherently defective and lacking in all requisites, would not end in a fair trial. This would, therefore, cause, unless suitably interfered with, serious miscarriage of justice.
39. While considering the above aspect of the case, one cannot ignore the fact that the accused had been an absconder throughout the period of investigation commencing from 25-06-2008 till 29-10-2009 and was never arrested and despite the fact that four anticipatory bail applications, made by the accused, had been dismissed and, in the last application for pre- arrest bail, he was directed to surrender in the learned Court below, he did not carry out the order and yet he was allowed to go on bail. This gives an indication that the investigating officer was either helping the accused or has conducted the investigation in a manner, which would have the effect of helping the accused to the prejudice of the informant, which is unfair and cannot, therefore, be sustained. The investigation is, thus, unfair and cannot give rise to a valid charge-sheet. Such an investigation, Mr. Baruah is correct, would, ultimately, prove to be precursor of miscarriage of justice. Crl. Pet. No. 17 of 2010
Page 29 There is, therefore, no doubt that the present one is a fit case for directing further investigation so that the miscarriage of justice can be prevented.
40. Can the power, conferred on a Court, under Section 311 read with Section 319 CrPC, be effective substitute for a direction to the Investigating Agency to conduct further investigation in terms of the provisions of Section 173(8) CrPC ?
41. Coming to the question, which the learned Court below has raised that it has the power under Sections 311 and 319 to examine any witness and call for any document and the same would be sufficient substitute for further investigation, it needs to be noted that Section 2(h) of the Code of Criminal Procedure ( in short, 'the Code') defines the term 'investigation' to include all proceedings under for collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in that behalf. The Supreme Court, in the case of H.N. Rishbud Vs. State of Delhi (AIR 1955 SC 196), concluded that investigation consists of (i) proceeding to the spot (ii) ascertainment of the fact and the circumstances of the case (iii) discovery and arrest of suspected offenders, collection of evidence relating to commission of the offence, which may consist of (a) examination of various persons and the reduction of the statement into writing, if the officer thinks fit (b) the search of a place or seizure of the things considered necessary for the investigation and to be produced at the trial and (iv) formation of the opinion as to whether by the materials collected there is a case to place the accused before the Magistrate.
Crl. Pet. No. 17 of 2010
Page 30
42. If the very concept of investigation includes the above, as enunciated by the Supreme Court, then, in that case, can the above be substituted by taking recourse to Section 311 and 319 of the Code is the question before this Court. The answer to the question, which has so arisen, can be found in this Court's decision, in Rana Sinha (Supra), at paragraphs 194, 195 and 196 as under:
―194. Before proceeding further, it needs to be noted that section 311 of the Code, cannot be a substitute for investigation or further investigation inasmuch as investigation does not consist of only examination of persons acquainted with the facts of a given case either as witnesses or as accused; rather, investigation involves various other steps, such as, search and seizure. Investigation may also include various forensic examinations.
195. Merely on the ground, therefore, that section 311 empowers the court to examine any witness at any stage in order to enable it to arrive at a just decision of the case, it cannot be said that section 311 would serve the purpose of an effective, unbiased and fair investigation. In every case, Section 311 is not necessarily a remedy for a manipulated and motivated investigation.
196. Similarly, Section 319 merely empowers the court to add a person as an accused if the evidence on record reveals involvement of such a person as an accused. Section 319 too cannot become a substitute for an effective investigation so as to determine whether a person is or is not involved in an occurrence and whether he is required to be brought to face trial. Thus, neither section 311 nor section 319 can be treated as a complete substitute for a fair investigation.‖ (Emphasis is added)
43. Yet another question, which has been raised in the present application, made under Section 482 Cr.PC., is: Whether in a case, which is pending in the Court of a Magistrate, it is possible for the Magistrate to grant permission to a counsel/lawyer engaged by the informant/de facto Crl. Pet. No. 17 of 2010 Page 31 complainant to conduct prosecution or allow the private lawyer to assist the Public Prosecutor ?
44. The above question has arisen, because of the fact that the learned trial Court has rejected the request made by the learned counsel for the informant to assist the Public Prosecutor and the reason, assigned by the learned trial Court, in this regard, is that in a session triable case, it is the duty of the Public Prosecutor and Additional Public Prosecutor to conduct the case. For this, the learned trial Court has drawn support from the decision in Shiv Kumar Vs. Hukum Chand and another, reported in (1999) 7 SCC 467.
45. While considering the decision, in Shiv Kumar (supra), I may pause here to point out that under the scheme of the Code, a sessions trial is required to be conducted by a Public Prosecutor and not by a counsel engaged by the aggrieved party. However, the police has submitted charge-sheet against the accused under Section 409 IPC, which is not exclusively triable by a Court of Session; rather, an offence, under Section 409 IPC, is triable by a Magistrate of first class.
46. In Shiv Kumar vs. Hukam Chand and Anr. , reported in (1999) 7 SCC 467, the appellant, who carried the matter to the Supreme Court, was aggrieved, because the counsel, engaged by him, was not allowed by the High Court to conduct prosecution despite having obtained a consent, in this regard, from the Public Prosecutor concerned. In fact, in Shiv Kumar (supra), the Court had allowed the prosecution to be conducted by the complainant's counsel. The accused, however, was not prepared to have Crl. Pet. No. 17 of 2010 Page 32 his case prosecuted by the complainant's counsel. The accused, therefore, filed a revision in the High Court. The High Court allowed the revision and directed the lawyer, appointed by the complainant/private person, to act under the direction of the Public Prosecutor making it clear that the lawyer for the complainant/private party may, with the permission of the Court, submit written argument, when the evidence is closed. The High Court further specifically directed the Public Prosecutor, who was in charge of the case, to conduct the prosecution.
47. By the time the aggrieved party challenged the High Court's order, disallowing the aggrieved party's counsel to conduct the prosecution, the trial was already over. Considering, however, the importance of the issue involved, in Shiv Kumar (supra), the Supreme Court decided the issue of law, namely, whether a counsel, engaged by a complainant/aggrieved party, can conduct prosecution, in a sessions trial, if the Public Prosecutor consents thereto ?
48. Having taken note of the provisions of Section 301 and Section 302 of the Code, the Court pointed out that the scheme of the Code is that while it is the Public Prosecutor of Assistant Public Prosecutor in charge of a case, who must, according to Section 301(1), conduct the prosecution, sub-Section (2) of Section 302 permits any private person to instruct a pleader to prosecute, but the trial has to be still conducted by the Public Prosecutor or Assistant Public Prosecutor, as the case may be, and the pleader, so instructed by the private party, shall act under the Public Prosecutor or Assistant Public Prosecutor, as the case may be. The Crl. Pet. No. 17 of 2010 Page 33 Supreme Court, therefore, pointed out that the latter provisions, contained in Section 302 IPC, allowing any person to conduct prosecution, is meant for Magisterial courts and the Magistrate may, therefore, permit any person to conduct prosecution, the only rider being that the Magistrate cannot give such permission to a police officer below the rank of Inspector;
but the person, who conducts prosecution in a Magisterial Court, need not necessarily be a Public Prosecutor. However, such a laxity is not extended to a Court of Session inasmuch as Section 225 of the Code states that in any trial, before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. The Code permits Public Prosecutor to plead, in the court, without any written authority provided he is in charge of the case; but any counsel, engaged by an aggrieved party, has to act under the direction of the Public Prosecutor in charge of the case.
49. In no uncertain words, the Supreme Court made it clear, in Shiv Kumar (supra), thus: ―From the scheme of the Code the legislative intention is manifestly clear that prosecution in a sessions court cannot be conducted by any one other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a session's court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel Crl. Pet. No. 17 of 2010 Page 34 overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.‖ (Emphasis is added)
50. The Supreme Court further clarified, ―It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf . The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter.
An early decision of a Full Bench of the Allahabad High Court in Queen- Empress v. Durga (ILR 1894 Allahabad 84) has pinpointed the role of a Public Prosecutor as follows: It is the duty of a Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated: and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness-box for cross-examination a truthful witness returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of Crl. Pet. No. 17 of 2010 Page 35 opinion that a witness is a false witness or is likely to give false testimony if put into the witness-box, he is not bound, in our opinion, to call that witness or to tender him for cross- examination.‖ (Emphasis is added)
51. A conjoint reading of Section 301 and 302 of the Code would show that the scheme of the Code is that while it is the Public Prosecutor in charge of the case, who must conduct the prosecution, in a session triable case, Section 302(2) of the Code permits prosecution to be conducted by any person. It has, therefore, been held, in Shiv Kumar (supra), that Section 302 is intended for Magisterial Courts only and this Section, i.e., Section 302, enables the Magistrate to permit any person to conduct prosecution subject to the condition that the Magistrate cannot give such permission to a police officer below the rank of Inspector. The Supreme Court has also clarified, in Shiv Kumar (supra), that in the Magistrate's Court, anyone, except a police officer below the rank of Inspector, can conduct prosecution provided that the Magistrate permits him to do so and, once permission is granted, the person concerned can appoint any counsel to conduct prosecution, in his behalf, in the Magistrate's Court. This scheme of Section 302 is different from Section 301 inasmuch as Section 301 is applicable to all Courts of criminal jurisdiction and this can be discerned from the fact that the word employed, in Section 301, is 'any court'. Section 301(1) empowers the Public Prosecutor to plead, in the Court, without any written authority provided that he is in charge of the case. Section 301(2) imposes a curb on a counsel's engagement by any private party, because Section 301(2) limits the role of the counsel by allowing him to act under Crl. Pet. No. 17 of 2010 Page 36 the direction of the Public Prosecutor with, of course, the liberty to submit written argument if the Court permits him to do so.
52. With respect to Section 302, which applies to the Magistrate's courts, any person, except a police officer below the rank of Inspector, can conduct prosecution provided that permission is granted by the Court. The observations of the learned trial Court, in the present case, that consent has to be taken from the Public Prosecutor or from the Additional Public Prosecutor, is completely foreign to the scheme of the Code. Para 7 to 14 of the decision, in Shiv Kumar (supra), may be referred to in this regard, which read:
―7. Section 302 of the Code has also some significance in this context and hence that is also extracted below:
‗302. Permission to conduct prosecution.--(1) Any Magistrate enquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:
Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.
(2) Any person conducting the prosecution may do so personally or by a pleader.'
8. It must be noted that the latter provision is intended only for Magistrate Courts. It enables the Magistrate to permit any person to conduct the prosecution. The only rider is that Magistrate cannot give such permission to a police officer Crl. Pet. No. 17 of 2010 Page 37 below the rank of Inspector. Such person need not necessarily be a Public Prosecutor.
9. In the Magistrate's Court anybody (except a police officer below the rank of Inspector) can conduct prosecution, if the Magistrate permits him to do so. Once the permission is granted the person concerned can appoint any counsel to conduct the prosecution on his behalf in the Magistrate's Court.
10. But the above laxity is not extended to other courts. A reference to Section 225 of the Code is necessary in this context. It reads thus:
―225. Trial to be conducted by Public Prosecutor.--In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.‖
11. The old Criminal Procedure Code (1898) contained an identical provision in Section 270 thereof. A Public Prosecutor means ―any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor‖ [vide Section 2(u) of the Code].
12. In the backdrop of the above provisions we have to understand the purport of Section 301 of the Code. Unlike its succeeding provision in the Code, the application of which is confined to Magistrate Courts, this particular section is applicable to all the courts of criminal jurisdiction. This distinction can be discerned from employment of the words ―any court‖ in Section 301. In view of the provision made in the succeeding section as for Magistrate Courts the insistence contained in Section 301(2) must be understood as applicable to all other courts without any exception. The first sub-section empowers the Public Prosecutor to plead in the court without any written authority, provided he is in charge of the case.
The second sub-section, which is sought to be invoked by the appellant, imposes the curb on a counsel engaged by any Crl. Pet. No. 17 of 2010 Page 38 private party. It limits his role to act in the court during such prosecution ―under the directions of the Public Prosecutor‖. The only other liberty which he can possibly exercise is to submit written arguments after the closure of evidence in the trial, but that too can be done only if the court permits him to do so.
13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
14. It is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable with that of a junior advocate Crl. Pet. No. 17 of 2010 Page 39 conducting the case of his senior in a court. The private counsel is to act on behalf of the Public Prosecutor albeit the fact that he is engaged in the case by a private party. If the role of the Public Prosecutor is allowed to shrink to a mere supervisory role the trial would become a combat between the private party and the accused which would render the legislative mandate in Section 225 of the Code a dead letter.‖
53. While considering the above aspect of the law, one may also take note of the Supreme Court's decision in J.K. International Vs. State (Government of NCP of Delhi) and others, reported in (2001) 3 SCC 462, wherein the Court has held that a private person, who is permitted to conduct prosecution in a Magistrate's Court, can engage a counsel to do the needful, in the Court, on his behalf. The Supreme Court has also clarified, in J.K. International (supra), that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested, he can apply to the Magistrate for permission to conduct prosecution by himself and it is open to the Court to consider his request and, if the Court takes the view that cause of justice would be served better by granting such permission, the Court would, generally, grant such a permission. The Supreme Court has further clarified, in J.K. International (supra), that this wider amplitude of power, conferred on the Magistrate, is limited to Magistrate's court only, because such person's right, in conducting the prosecution, in a Sessions Court, is restricted and is made subject to the control of the Public Prosecutor. The relevant observations, appearing, in this regard, at para 12 in J.K. International (supra), read as under:
Crl. Pet. No. 17 of 2010
Page 40 ―12. The private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to Magistrates' Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them.‖
54. This Court had an occasion to deal with the above aspects of law in Firoz Khan and another Vs. State of Assam, reported in (2009) 1 GLT 399, and taking note of the decision, in J.K. International (supra), the Court has observed that the recent trend in criminal jurisprudence is to allow a person, who is victim, to have his say on the conduct of trial. The logical extension of this principle would be that ordinarily, a victim or an informant shall be allowed to conduct prosecution in a Magistrate's court Crl. Pet. No. 17 of 2010 Page 41 by engaging a counsel of his own choice unless the Magistrate, on any reasonable ground, does not so permit. The relevant observations, appearing at para 17 to 19, in Firoz Khan (supra), reads as under:
―17. In the case of J.K. International (supra), the Apex Court had the occasion of deal with the provisions of Section 302, CrPC, but the observations made in paragraph-9 has got relevance to the present case, wherein the Apex Court held, inter alia, that the scheme envisaged in the Code of Criminal Procedure indicates that a person - who is aggrieved by the offence committed is not altogether wiped out from the scenario merely because the investigation was taken over by the police and charge sheet filed by them and even the Court has taken cognizance of the offence and the Code has not debarred him from reaching the Court for ventilating his grievance even in the Sessions Court where the Public Prosecutor is the authority empowered to conduct the case as per Section 225, CrPC, and he or she is not altogether debarred from participating in the trial. When such a role is permitted to a private lawyer though it is limited role, even in the sessions case that is enough to show that the private person, if aggrieved, is not wiped out from the proceeding in the Criminal Court.
18. It is noteworthy that the recent trend in criminal jurisprudence goes to show, which is also the anxiety of the people that in a criminal case instituted on the basis of an FIR lodged by the victim/informant, he should be allowed to say, inasmuch as, the limited role allowed to a complainant under Section 301(2), CrPC, is not sufficient to protect the interest of the victim who might be silently weeping behind the screen suffering from the criminal act committed by the accused and this has lead to emergence of a new concept of ―victimology‖ in the criminal jurisprudence. However, that is the function of the legislature and not of the Court to incorporate.
19. The aforesaid discussions lead me to hold that when the Public Prosecutor has not abdicated himself from his role and constantly supervises and conduct the prosecution case, there is no bar in any law to engage private lawyer by the complainant/victim to examine the witnesses, which is also not specifically barred by the Code in express terms. However, it is the presiding Judge who is the best authority to monitor and see as to Crl. Pet. No. 17 of 2010 Page 42 whether the Public Prosecutor has abdicated his duties and responsibilities and in allowing the private lawyer to assist the prosecution and act as per the facts situation arising in a particular case. The learned Advocate General, in the backdrop of the above provisions of law did not notice any flaw in the impugned order.‖
55. In the case at hand, it is clear that since trial is being held against the accused in a Magistrate's court, the case, in question, is not exclusively triable by Court of Session, the learned Magistrate, without any grave reason, ought not to have asked the informant to obtain permission from the Public Prosecutor; rather, the learned trial Court ought to have granted permission to conduct prosecution.
Based on tainted investigation, can there be a fair trial ?
56. I have already pointed out that a defective, biased or mala fide investigation or a tainted investigation cannot give rise to a valid charge- sheet, because such an investigation would, ultimately, prove to be precursor of miscarriage of criminal justice. Not only, therefore, ‗fair trial', but ‗fair investigation' too form part of the Constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. The investigation, therefore, must be fair, transparent and judicious. In fact, fairness in investigation and, consequently, 'fairness in trial' form the basic minimum requirement of the ‗rule of law'. When non-interference by the Court with an investigation would, ultimately, result in failure of justice, the Court must interfere. A reference, in this regard, may be made to the case of Babu Bhai vs. State of Gujarat and Ors., (MANU/SC/0643/2010), wherein the Supreme Court observed thus:
Crl. Pet. No. 17 of 2010
Page 43 ―34. ................ If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor of miscarriage of criminal justice. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place wherein three persons died and so many persons including the complainant and accused got injured. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India . Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere.‖ (Emphasis is added)
57. However, unless an extra-ordinary case of gross misuse of power by those, who are in charge of an investigation, is made out, the court should be quite loathe to interfere with the investigation, which is, ordinarily, a field of activity reserved for the police and the executives. Commenting on this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:
―21. ..........The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this Court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue.
*** *** ***
31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. ......‖ (Emphasis is added) Crl. Pet. No. 17 of 2010 Page 44
58. At any rate, there is no difficulty in the State seeking permission for ‗further investigation', because Section 173(8) permits the State to conduct ‗further investigation'. As expected, the Supreme Court, as a visionary, had observed, in the case of Ramlal Narang (supra), that, ordinarily, it is desirable that the police should take formal permission from the court for ‗further investigation'. The word ‗ordinarily' would, therefore, imply, as already discussed above, that in all cases and in every situation, the police need not take formal permission from the Court before conducting ‗further investigation'. It is not difficult to visualize situations, where, on information received by the police, the police may justifiably form the opinion that ‗further investigation' is warranted. In such a case, there may be a situation, where the police may be required to conduct ‗further investigation' without the accused person(s) being informed of such ‗further investigation'. After the trial starts, the police cannot obtain permission for ‗further investigation' at the back of the accused person or without informing the accused person. If the accused person is informed that police is seeking permission for ‗further investigation', the police would be obviously required to disclose, if not to the accused person, at least, to the court as to what has surfaced, which warrants ‗further investigation'. Disclosure of the fact, which may have given rise to the requirement of ‗further investigation,' may not be disclosed by the police, because, in a given case, such a disclosure may cause prejudice to ‗further investigation' if the accused becomes aware of an aspect of the case which the police wants to examine by ‗further investigation'. No wonder, therefore, that it has been laid down, in A.S. Peter (supra), that in every case, the police need not take Crl. Pet. No. 17 of 2010 Page 45 formal permission from the court for conducting ‗further investigation' and, in the case of Hasanbhai Valibhai Qureshi (supra), the Supreme Court has clearly held that ‗further investigation' may be conducted by the police de hors any permission from the court.
59. What crystallizes from the above discussions is that the investigation, in the case at hand, was either perfunctory or deliberately manipulated so as to help the accused. In either case, as already pointed out, the investigation is unfair and such an unfair investigation cannot give rise to a valid charge-sheet and the charge-sheet, based on such an unfair investigation will, unless interfered with by this Court by issuing suitable directions, cause serious miscarriage of justice, which this Court is duty- bound to prevent.
60. In the result and for the foregoing reasons, this application, made under Section 482 of the Code, is hereby allowed. The Officer-in-Charge, Margherita Police Station, is hereby directed to conduct further investigation into the case and, then, submit additional report in terms of the provisions of Section 173(2) of the Code and till the time an appropriate police report is submitted, as directed hereinbefore, all further proceedings of G.R. Case No. 276 of 2008 (Margherita Police Station Case No. 111 of 2008) shall remain Stayed.
61. Before parting with this application, it is, however, made clear that the Officer-in-Charge, Margherita Police Station, shall conduct further investigation in terms of Section 173(8) of the Code, expeditiously, so as to avoid any further delay.
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62. With the above observations and directions, this Criminal Petition stands disposed of.
63. Send back the LCR.
JUDGE rk Crl. Pet. No. 17 of 2010