Himachal Pradesh High Court
Pritam Singh Chaudhary & Another vs State Of Himachal Pradesh & Others on 6 April, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 271 of 2014 along .
with Cr.MMO No. 272 of 2014 Reserved on: 26.3.2015 Date of decision: 6.4.2015 Cr.MMO No. 271 of 2014 Pritam Singh Chaudhary & Another ...Petitioners Versus State of Himachal Pradesh & others ...Respondents Cr.MMO No. 272 of 2014 Pritam Singh Chaudhary & Another ...Petitioners r Versus State of Himachal Pradesh & others ...Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes.
For the Petitioners: Mr. Ashwani K. Sharma, and Mr.Satish Sharma, Advocates.
For the Respondents: Mr. Sharwan Dogra, Advocate
General with Mr.V.K. Verma,
Mr.Rupinder Singh, Additional
Advocate Generals, Mr.P.M. Negi
and Ms. Parul Negi, Deputy
Advocate Generals.
Tarlok Singh Chauhan, Judge
By medium of these petitions under Section 482 of the Code of Criminal Procedure, (for short 'Cr.P.C.') the petitioners have sought quashing of order passed by learned Special Judge, Kangra Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 2 at Dharamshala in Criminal Miscellaneous applications No. 29/2 of 2012 in FIR No. 10 of 2003 and 51/2013 in FIR No. 8 of 2005, whereby he allowed the applications of the Investigating Agency to .
carry out further investigation under Section 173(8) of Cr.P.C in the matter in accordance with law.
2. The petitioners are accused in FIR Nos. 10 of 2003 and 8 of 2005, which were registered against them on 6.12.2003 and 20.9.2005 respectively. At the relevant time, the petitioners had been working in different capacities in the Kangra Central Cooperative Bank Ltd. Prior to the registration of FIRs, an enquiry was ordered to be conducted by the Vigilance Department of the State, vide Enquiry No.ACD/NR-6/03 DMA-60221 dated 19.6.2003.
This enquiry pertained to the mode and manner of recruitment made by the Bank of Junior Clerks, recruited in the year 1999 and Helpers cum Peons, recruited in the year 2002. Based upon the enquiry, the Government of Himachal Pradesh conveyed its approval for registration of a criminal case against the petitioners under Sections 420, 465, 470, 471 and 201 of the Indian Penal Code read with Section 13(2) of the Prevention of Corruption Act 1988.
3. Upon registration of the case, petitioner No. 1 approached this Court by filing CWP No. 1381 of 2007, wherein he sought declaration to the effect that the Vigilance Department had ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 3 no jurisdiction or authority to enquire or investigate into the subject matter of the petition, because under the provisions of Para 9(5) of Chapter 1 of the Vigilance Manual, all cases relating to the .
Cooperative Societies including the Kangra Central Cooperative Bank were within the investigation domain of Cooperative Department and, therefore, the FIRs No. 10 of 2003 and 8 of 2005 be quashed. At the time of admission of the petition, learned Division Bench of this Court was of the prima facie view that the Vigilance Department had no jurisdiction to look into the complaints and had permitted the investigation to go on, but directed the prosecution to put the challan only after permission to this effect had been obtained from this Court. When the matter came up for final hearing on 3.8.2012, it was represented by the State that the writ petition had become infructuous, since cancelation report had already been filed in the case. It is relevant to reproduce the order passed by learned Division Bench of this Court on 3.8.2012, which reads thus:-
"Learned Additional Advocate General submits that the petition has become infructuous since cancellation report has been filed in this case. Learned counsel appearing for the petitioner does not dispute this fact. Status report submitted by the State is taken on record. Learned counsel appearing for respondent No.3 submits that Board of Directors of respondent No.3 has taken a decision that no action will be taken against the petitioner. In these circumstances, writ petition is dismissed as infructuous.
2. All miscellaneous applications also stand disposed of."::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 4
4. Prior to this, it appears that a cancellation report was already put up by the prosecution in the Court of learned Special .
Judge, Dharamshala on 24.1.2012 in FIR No. 10 of 2003 and the matter remained pending in the said Court for almost more than a year. Thereafter, on 7.3.2013, an application under Section 173(8) Cr.P.C. came to be filed in FIR No. 10 of 2003 by the Additional Superintendent of Police (Vigilance), Dharamshala, seeking permission for carrying out further investigation in the case. This application was allowed by the learned Special Judge vide its order dated 4.7.2013.
5. It is against this order that the present petitions have been filed on the ground that that the application filed for further investigation did not disclose what fresh evidence oral or documentary had emerged, which necessitated further investigation. The permission for conducting further investigation had been granted in a mechanical manner and that the respondents had played fraud on the Court by firstly holding out that a closure report had been filed, resulting in the dismissal of the writ petition, as having been rendered infructuous and thereafter had filed the application for further investigation.
6. The respondents in their reply have raised preliminary objections regarding maintainability of the petition on the ground ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 5 that an efficacious remedy to challenge the impugned order is available to the petitioners by invoking the provisions of revisional jurisdiction under Section 397 of the Code of Criminal Procedure.
.
On merits, the factual aspects regarding registration of the case etc. have not been disputed and justification as to why further investigation is necessary have been spelt out in para 7 of the reply, which reads thus:-
"7. That the contents of para 7 of the petition are admitted. It may be submitted here that the final report (nor charge sheeted for want of evidence) had been prepared in the case erroneously as such further investigation in the matter is being carried out.
It is pertinent to mention here that out of 167 existing vacancies, 122 vacancies of clerks had been advertised in the year 1998-99. However 229 candidates were given appointment of regular basis and 49 were appointed on daily wages. Initially the 49 candidates were given appointment for 59 days and extension were given to them from time to time and on completion of 1 years of service they were given regular appointments in utter violation of Sehakari Niam 56(3) and flagrant disregard of Rule 4(C)7-D the Bank Rules. In this regard no approval was obtained from the Registrar Co-operative Societies as required under the rules. It may also be mentioned here that 527 candidates had qualified in the examination and over writing was found to have been made in 45 answer sheets illegally and unlawfully. As per the report of FSL, it was found that 16 answer sheets had not been written by the original persons. The marks of 29 candidates have been enhanced later as per the FSL report. Thus, it means that the said answer sheets have not been written by the said selected candidates. As such there were serious acts of omission and commission which constituted ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 6 criminal misconduct on the part of the petitioner No. 2. As such the closure report had erroneously been filed in the case. Infect due to involvement of top bureaucrat occupying position like Deputy Commissioner, Kangra and thereafter as .
Principal Secretary to the Chief Minister, the material evidence in the case in question had not been collected. The candidates in the select list of bank had not been interrogated, as such the case is required to be re-examined by way of further investigation so as to arrive at fair and just conclusion in the case."
7. In response to the grounds raised by the petitioners, it is submitted that since the candidates who had been illegally selected, had not been interrogated by the investigating agency before putting up the final report, the same necessitated the filing of the impugned application. It is further submitted that by moving the application the prosecution had in no manner violated the orders passed by this Court, since the statement recorded by this Court while disposing of CWP No. 1381 of 2007 was factually correct, because admittedly the cancellation report in this case had been submitted on 24.1.2012, whereas, the writ petition came to be disposed of much later on 3.8.2012. It is further denied that the impugned order has been passed in a mechanical fashion or that the entire exercise of the prosecution is to unnecessary harass the petitioners.
I have heard the learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 78. In the old Code of Criminal Procedure, there was no identical provision to that of Section 173(8) which is present in the Code of Criminal Procedure, 1973. The same is a newly added .
provision in the Code of Criminal Procedure, 1973. The same is the result of the recommendation of the Law Commission in its 41st report that the right of the police to make further investigation should be statutorily affirmed. The Law Commission stated:
"14.23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused".
9. Accordingly, in the Code of Criminal Procedure, 1973, ('Cr.P.C.', for short) a new provision as Section 173(8) was introduced, which says:
"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-sec. (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 8 form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
.
10. The parties are not at variance and have rather jointly relied upon the judgment of Hon'ble Supreme Court in Vinay Tyagi Vs. Irshad Ali alias Deepak and others, (2013) 5 SCC 762, to canvass that this case will have to be decided on the basis of principles laid down therein. The Hon'ble Supreme Court after analyzing the provisions of the Code and various judgments on the subject had observed:-
"15. A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173(2) has been forwarded to the Magistrate', which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173(8). The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., sub-section (2) to sub-section (6) of Section 173 shall apply when the Court deals with such report.::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 9
22. "Further investigation" is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is .
the continuation of a previous investigation and, therefore, is understood and described as a "further investigation". Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. "Supplementary report"
would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo"
investigation.
28. The next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct "further investigation" or "fresh investigation". As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 10 of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be made to K. Chandrasekhar v. State of Kerala (1998) 5 SCC 223; Ramachandran v. R. Udhayakumar (2008) .
5 SCC 413, Nirmal Singh Kahlon v State of Punjab & Ors.
(2009) 1 SCC 441; Mithabhai Pashabhai Patel & Ors. v. State of Gujarat (2009) 6 SCC 332]; and Babubhai v. State of Gujarat (2010) 12 SCC 254.
29. Now, we come to the former question, i.e., whether the Magistrate has jurisdiction under Section 173(8) to direct further investigation.
30. The power of the Court to pass an order for further investigation has been a matter of judicial concern for some time now. The courts have taken somewhat divergent but not diametrically opposite views in this regard. Such views can be reconciled and harmoniously applied without violation of the rule of precedence. In the case of State of Punjab v. Central Bureau of Investigation (2011) 9 SCC 182, the Court noticed the distinction that exists between "reinvestigation"
and "further investigation". The Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and therefore, must exercise their jurisdiction within the four corners of the Code.
31. Referring to the provisions of Section 173 of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173(8) of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat (2009) 1 SCC 332 held as under: (CBI case, SCC pp 191-92, para 23) ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 11 "23. ..... '13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a .
superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar (2008) 5 SCC 513 opined as under:
(SCC p. 415, para 7) "7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain r reading of the above section it is evident that even after completion of investigation under sub-
section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation."
A distinction, therefore, exists between a reinvestigation and further investigation.
* * *
15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court even do not have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The pre-cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four corners of the Code." (Mithabhai Pashabhai Patel Vs. State of Gujarat, (2009)6 SCC p. 337, paras 13 & 15)
32. In the case of Minu Kumari & Anr. v. State of Bihar & Ors. (2006) 4 SCC 359, this Court explained the powers that ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 12 are vested in a Magistrate upon filing of a report in terms of Section 173(2)(i) and the kind of order that the Court can pass. The Court held that when a report is filed before a Magistrate, he may either (i) accept the report and take .
cognizance of the offences and issue process; or (ii) may disagree with the report and drop the proceedings; or (iii) may direct further investigation under Section 156(3) and require the police to make a further report.
33. This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, (2001) 7 SCC 536 where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 13 the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation.
.
34. In support of these principles reference can be made to the judgments of this Court in the cases of Union Public Service Commission v. S. Papaiah & Ors (1997) 7 SCC 614, State of Orissa v. Mahima (2007) 15 SCC 580, Kishan Lal v. Dharmendra Bhanna & Anr. (2009) 7 SCC 685, State of Maharashtra v. Sharat Chandra Vinayak Dongre (1995) 1 SCC 42.
35. We may also notice here that in the case of S. Papaiah (supra), the Magistrate had rejected an application for reinvestigation filed by the applicant primarily on the ground that it had no power to review the order passed earlier. This Court held that it was not a case of review of an order, but was a case of further investigation as contemplated under Section 173 of the Code. It permitted further investigation and directed the report to be filed.
36. Interestingly and more particularly for answering the question of legal academia that we are dealing with, it may be noticed that this Court, while pronouncing its judgment in the case of Hemant Dhasmana v. CBI, (supra) has specifically referred to the judgment of S. Papaiah (supra) and Bhagwant Singh v. Commissioner of Police & Anr. (1985) 2 SCC 537.
While relying upon the three Judge Bench judgment of Bhagwant Singh (supra), which appears to be a foundational view for development of law in relation to Section 173 of the Code, the Court held that the Magistrate could pass an order for further investigation. The principal question in that case was whether the Magistrate could drop the proceedings after filing of a report under Section 173(2), without notice to the complainant, but in paragraph 4 of the judgment, the three Judge Bench dealt with the powers of the Magistrate as ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 14 enshrined in Section 173 of the Code. Usefully, para 4 can be reproduced for ready reference: (Bhagwant Singh case, SCC pp 541-43) .
"4. Now, when the report forwarded by the officer-in-
charge of a police station to the Magistrate under sub- section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-
section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 15 takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly .
be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. There can. therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 16 effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the first information .
report has to be communicated to the informant and a copy of the report has to be supplied to him under sub- section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
37. In some judgments of this Court, a view has been advanced, [amongst others in the case of Reeta Nag v State of West Bengal & Ors. (2009) 9 SCC 129, Ram Naresh Prasad v. State of Jharkhand and Others (2009) 11 SCC 299 and Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361], that a Magistrate cannot suo moto direct further investigation under Section 173(8) of the Code or direct re- investigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge sheet where the police submits a report that no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo moto direct further investigation.
38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct "further investigation" and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 17 the case of Bhagwant Singh has, in no uncertain terms, stated that principle, as afore-noticed.
39. The contrary view taken by the Court in the cases of .
Reeta Nag (supra) and Randhir Singh (supra) do not consider the view of this Court expressed in Bhagwant Singh (supra). The decision of the Court in Bhagwant Singh (supra) in regard to the issue in hand cannot be termed as an obiter.
The ambit and scope of the power of a magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three Judge Bench concluded as afore-noticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh, are thus squarely in line with the doctrine of precedence. To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the principle of stare decisis."
After analyzing the provisions of the Code and various judgments, as aforeindicated, it culled out the following conclusions in regard to the powers of the Magistrate in terms of Section 173(2) read with Sections 173(8) and 156(3) of the Code:-
"1. The Magistrate has no power to direct "reinvestigation" or "fresh investigation" (de novo) in the case initiated on the basis of a police report.
2. A Magistrate has the power to direct "further investigation" after filing of a police report in terms of Section 173 (6) of the Code.
3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case by a three-Judge Bench and thus in conformity with the doctrine of precedent.
4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 18 the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of .
Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).
5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
6. It has been a procedure of propriety that the police has to seek permission of the court to continue "further investigation" and file supplementary charge-
sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case."
11. From the above, it is clear that when a final report has been filed under Section 173(2) of the Code of Criminal Procedure by the investigating officer, if the Court on applying its mind is satisfied that there is a lapse or defect in the investigation or if it is satisfied that further investigation have to be conducted, the Court on its own motion can trigger a further investigation under Section 173 (8) of the Code of Criminal Code to be done by the investigating officer. The investigating officer himself after obtaining permission ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 19 from the Court can exercise such jurisdiction under Section 173(8) of Cr.P.C., if he wants to conduct further investigation in case he reveals some fresh acts or materials after filing the final report .
under Section 173(2) of Cr.P.C. He can conduct such further investigation and file supplementary final report before the Court under Section 173 (8) Cr.P.C.
12. The powers of police to conduct further investigation after lying final report is recognized under Section 173 (8) Cr.P.C.
This power can be exercised even after cognizance is taken by the Court. The matter as to why there exists sufficient and valid ground for further investigation is entirely for the consideration of the investigating officer and the Court can hardly give any direction restraining the investigating officer from taking further investigation, but then the investigating officer can only further investigate under Section 173 (8) Cr.P.C., but he has no right of investigation or re-investigation.
13. The learned counsel for the petitioners would contend that the first FIR was registered in the year 2003, while the second FIR was registered in the year 2005, therefore, on the ground of delay alone the application for further investigation ought to have been rejected.
14. I am afraid, such contention cannot be accepted, because further investigation is not ruled out, merely because it ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 20 may delay the trial, as the ultimate object is to arrive at the truth.
This was so held by the Hon'ble Supreme Court in Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others, (2004) 5 SCC .
347, which reads thus:-
"12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.
All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang V. State (Delhi Admn. (1979) 2 SCC 322 it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the mater by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 21
We make it clear that we have not expressed any final opinion on the merits of the case.
15. It is then vehemently argued that the prosecution .
cannot claim further investigation as a matter of course, particularly in teeth of the letter dated 29.11.2012, written by the Principal Secretary (Personnel) to the Principal Secretary (Vigilance) and prior thereto the letter dated 21.9.2011 written by the Inspector General to the Superintendent of Police. In the former letter, it had been specifically stated that the matter had been examined comprehensively and it had been finally resolved that no further action needs to be initiated against the petitioners. It is apt to reproduce the contents of this letter, which reads thus:-
"In continuation of this Department's order of even number dated the 11th June, 2012, I am directed to refer to the subject cited above and to say that the matter with regard to intimation of departmental proceedings against Sh.R.S. Gupta, IAS the then MD, Kangra Central Cooperative Bank Ltd., Dharamshala for procedural lapse in the said case was taken up with the AD i.e. Cooperation Department. The AD has informed that the matter has been examined comprehensively and it has finally been resolved that no further action needs to be initiated against the then MD, KCCB, Dharamshala. In view of the above recommendations of the AD, the Department has Personnel has decided to close this matter finally."
Similarly, vide letter dated 21.9.2011, the Inspector General had informed the Superintendent of Police that only departmental action had been proposed against the petitioners and it was also ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 22 observed that the present case was weak for prosecution and there was no point in proceeding further.
16. On the strength of the contents of the letters, it is .
argued that in case the matter was required to be re-looked or re-
considered, the top officials of the State Government would not have made the aforesaid recommendations. It is further argued that merely because one investigating officer may have a perception different from the other investigating officer, who had earlier investigated the case, the same cannot be a ground to order further investigation.
17. Though the submissions of the learned counsel for the petitioners appear to be attractive, but when tested on the touch stones and principles laid down by the Hon'ble Supreme Court in Vinay Tyagi's case (supra), it would be seen that whether there exists sufficient and valid grounds for further investigation, is entirely for the consideration and in the exclusive domain of the investigating officer and in absence of any personal allegations or allegations of malafide or the likes, the Court cannot issue any direction restraining the investigating officer from conducting further investigation.
18. There is yet another reason why the submissions made by the learned counsel for the petitioners cannot be accepted. The opinion expressed in the aforesaid letters is based upon the existing ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 23 material and there is no dispute that it was on the basis of such material that the prosecution itself had filed a closure report. But now the prosecution seeks further investigation and as such the .
opinion expressed in the aforesaid communications has lost its efficacy and has virtually no relevance at this stage.
19. The learned counsel for the petitioners would then contend that the application moved by the prosecution for further investigation lacked material particulars and should have been rejected. I am afraid that this contention of the petitioners cannot be accepted, in view of the averments made in paragraphs 2 and 3 of the application, which reads thus:-
"2. That in the above stated closure the state has filed an application for returning the case file to carry out further investigation which is fixed for consideration today i.e. on 23.03.2013. The present application is being moved in continuation to the earlier application with prayer in alternative that in case the Court decides not to return the entire case file in that situation the agency prays that all the original documents, alongwith other related documents, police diaries and statement of witnesses annexed with closure report may please be returned to the investigating agency after retaining on record the photo copies of such documents and the closure report earlier filed may please be adjourned sine-die till filing of fresh report after further investigation.
3. That due to involvement of top bureaucrat occupying positions like Deputy Commissioner, Kangra and thereafter as Principal Secretary to the Chief Minister, the material evidence in the case in question has not been collected. The material placed before the authority for granting prosecution ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 24 sanction has not been analysed with proper application of mind. The candidates in the select list of Bank have not been interrogated and if established during further investigation they are to be arrayed as accused. It is further submitted .
that among the candidates selected for the post of clerk three are close relatives of Sh. R.S. Gupta who was holding the charge of M.D. Kangra Central Co.Op. Bank and these three candidates are required to be interrogated further so as to unearth the conspiracy in the selection for the post of clerks. The case is required to be re-examined by way of further investigation so as to arrive at fair and just conclusion in the case."
20. The learned counsel for the petitioners would then argue that the petitioners have been prosecuted only on account of political vendetta, because the general elections to Vidhan Sabha in the State took place in the month of November, 2012 and the duly elected Government came to office on 25.12.2012 and prior to coming into office of the new Government, the petitioner No. 2 was serving as Principal Private Secretary to the then Chief Minister of the State. It is also alleged that the party now in power in election manifesto had specifically incorporated that if they came to power, the matter regarding the recruitment of the KCCB Ltd. will be got enquired into and the name of the petitioner No. 2 was specifically mentioned in the "Congress Charge Sheet".
21. These allegations have been specifically set out in para 8 of the petition. At this stage, the learned counsel for the petitioners has invited my attention to para 8 of the reply, which reads thus:-
::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 25"That the contents of this para No. 8 of the petition are admitted."
On the strength of these averments, which have not been denied, it .
is contended that it is proved beyond any doubt that the impugned application had been filed only to unleash political vendetta.
22. In response to these allegations, the learned Advocate General, assisted by Mr.P.M. Negi, learned Deputy Advocate General, would submit that the Investigating Agency was well within its right to request the Court for further investigation, more particularly after the Investigation Agency had satisfied the Court as to why it wanted to carry out further investigation. It is further argued that this Court in exercise of its powers under Section 482 Cr.P.C. would loathe to interfere with such findings, as this Court was not exercising its appellate or revisional jurisdiction and would, therefore, confine itself to the question of legality and proprietary of the order.
23. This submission of the petitioners is equally without merit. Merely because the prosecution is against high ranking officers and was initiated by the successor government, that by itself cannot support the inference that the initiation of the prosecution was actuated by political vendetta or mala fides because it is quite possible that there might be material justifying the initiation of the prosecution against the petitioners and the ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 26 successor government might have legitimately felt that there was a case for initiation of prosecution and that it why the prosecution might have been initiated. There would be nothing wrong on the .
part of the successor government in doing so and the prosecution cannot be said to be vitiated only on that account. Even if such political vendetta is proved, the criminal prosecution, if otherwise justifiable and based upon the adequate evidence, does not become vitiated on account of malafides or political vendetta.
24. In taking this view, I am fortified by the observations made by a Constitution Bench in Sheonandan Paswan Vs. State of Bihar and others, (1987) 1 SCC 288, wherein Hon'ble Supreme Court observed as under:-
"16. It was then contended on behalf of Dr. Jagannath Misra that Sheonandan Paswan was a Minister in the cabinet of Karpoori Thakur and continued to be a member of the political party opposed to Dr. Jagannath Misra and he was therefore actuated by political motivation in opposing the withdrawal of prosecution against Dr. Jagannath Misra and in preferring a revision application to the High Court and an appeal to this Court. This contention is also without substance and does not commend itself to us. We may concede for the purpose of argument that Sheonandan Paswan opposed the withdrawal of the prosecution against Dr. Jagannath Misra because he had a political score to settle with Dr. Jagannath Misra and he was motivated by a political vendetta. But that is no reason why this Court should sustain an order made by the learned Chief Judicial Magistrate granting consent for withdrawal of the prosecution if otherwise the order appears to be improper ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 27 and unjustified. The question is even if no one had opposed the withdrawal of the prosecution, would the learned Chief Judicial Magistrate and the High Court have been justified in granting consent to the withdrawal of the prosecution and .
that would depend essentially on the facts and particulars of the case placed before the Court. The political motivation or vendetta of Sheonandan Paswan could not possibly be a valid ground for granting consent for withdrawal of the prosecution if otherwise on the facts and circumstances of the case it was improper and invalid. It is a well-established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the Complainant. It was rightly observed by Krishna Iyer, J. in State of Punjab v.
Gurdial Singh, (1980) 1 SCR 1071 at p. 1076 : (AIR 1980 SC 319 at p. 321) :
"If the use of power is for the fulfilment of a legitimate object, the actuation or catalisation by malice is not legicidal". The same principle must obviously apply where a person is opposing withdrawal of prosecution against an accused. His political motivation or vendetta cannot justify grant of consent for withdrawal if otherwise it is not legitimate or justified.
17. It is undoubtedly true that the prosecution against Dr. Jagannath Misra was initiated by the successor Government of Karpoori Thakur after Dr. Jagannath Misra went out of power. But that by itself cannot support the inference that the initiation of the prosecution was actuated by political vendetta or mala fides because it is quite possible that there might be material justifying the initiation of prosecution against Dr. Jagannath Misra and the successor Government might have legitimately felt that there was a case for initiation of prosecution and that is why the prosecution might have been initiated. There would be nothing wrong on the part of the successor Government in doing so and the prosecution cannot be said to be vitiated on that account.::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 28
This is precisely what Hidayatullah, J. speaking for the Constitution Bench pointed out in Krishna Ballabha Sahay v. Commission of Enquiry, (1969) 1 SCR 387 : (AIR 1969 SC
258):-
.
"The contention that the power cannot be exercised by the succeeding ministry has been answered already by this Court in two cases. The earlier of the two has been referred to by the High Court already. The more recent case is P. V. Jagannath Rao v. State of Orissa, (1968) 3 SCR 789 : (AIR 1969 SC 215). It hardly needs any authority to state that the inquiry will be ordered not by the Minister against himself but by someone else. When a Ministry goes out of office, its successor may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny."
These observations afford a complete answer to the contention urged on behalf of Dr. Jagannath Misra that this Court should not interfere with the withdrawal of the prosecution because the successor Government of Karpoori Thakur or Sheonandan Paswan was actuated by political motivation or vendetta".
25. The learned Advocate General has rightly contended that while exercising jurisdiction under Section 482 Cr.P.C., the Court does not function as a Court of appeal or revision. Here it shall be apt to cull out the principles for exercise of power under Section 482 of the Code as laid down by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Awadh Kishore Gupta, (2004) 1 SCC 691, which are as follows:-
"(i) To give effect to an order under the Code. (2) To prevent abuse of the process of court. (3) To otherwise secure the ends of justice. (4) Court does not function as a court of appeal or revision.::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 29
(5) Inherent jurisdiction under Section 482 though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.
.
(6) It would be an abuse of process of court to allow any action which would result in injustice.
(7) In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts t abuse of the process of court.
(8) When no offence is disclosed by the complaint, the court may examine the question of fact.
(9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustained-That is the function of the trial Judge.
(10) Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
(11) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed.
(12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.
(13) When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance-It is the material collected during the investigation and evidence led in Court which decides ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 30 the fate of the accused person-The allegations of mala fides against the informant are of no consequence and cannot be itself be the basis for quashing the proceedings."
.
26. Lastly, a faint attempt has been made by the learned counsel for the petitioners to canvass that by filing application under Section 173(8) Cr.P.C. and thereby seeking further investigation amounts to judicial overreach, as it stands to defeat the order passed by the learned Division Bench of this Court in CWP No. 1381 of 2007. It is argued that it was on the basis of the information imparted by the respondents to this Court that a closure report had been filed that the writ petition came to be dismissed as having been rendered infructuous. It is further contended that this infact amounts to practicing fraud on Court.
27. In so far as the allegation of practicing of fraud on this Court is concerned, suffice it to say that once the information on the basis of which the writ petition was disposed of, is found to be factually correct, then no question of fraud arises.
28. The question of judicial overreach would have only arisen in case there would have been a decision in favour of the petitioners which was sought to be nullified or otherwise defeated by the respondents. Admittedly, the writ petition had been rendered infructuous in view of the closure report having been submitted at that time, but then the prosecution has every right to ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP 31 move an application under Section 173(8) Cr.P.C., which application has to then undergo the test of judicial scrutiny. As held by the Hon'ble Supreme Court in Vinay Tyagi's case (supra), .
the sufficiency and validity of the ground for further investigation is entirely for the consideration and in the exclusive domain of the investigating officer and in absence of any allegations like malafide, personal vendetta etc., the Court normally cannot issue any directions restraining the investigating officer from conducting further investigation. The provisions of Section 173(8) Cr.P.C.
cannot be interpreted restrictively after all the conduct of proper and fair investigation is the hallmark of any criminal investigation.
In view of the aforesaid discussion, I find no merit in these petitions and the same are accordingly dismissed. Registry is directed to place a copy of this judgment on the file of connected matter.
(Tarlok Singh Chauhan), Judge.
6th April, 2015 (KRS) ::: Downloaded on - 15/04/2017 17:56:49 :::HCHP