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69. In relation to crimes committed during communal violence the Supreme Court in Zahira Habibulla H. Sheikh (supra) has gone to the extent of quashing the acquittal of the accused by the trial Court which had been upheld by the High Court in appeal upon finding that the justice delivery system had been taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The Supreme Court had found that the investigation in the said case was perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. Before the CBI stepped into the investigation of the present case, it prima facie appears that the investigating agency i.e. Delhi Police did not better. It failed to record the evidence of crucial witnesses and proceeded to file an untraced report even though the investigation had been transferred to the CBI.

74. The last submission of Mr. Sharan is that the registration of FIR by the CBI is incompetent inasmuch, as the CBI could not have registered a fresh First Information Report, when the earlier FIR bearing no.416/84 had already been registered. He submits that there could not be parallel proceedings in respect of the same alleged offences, one arising out of FIR No.416/84 and the other arising out of CBI Case RC-24(S)/2005-SCU.I/SCR-I. Mr. Sharan submits that there could not be two final reports, one in the form of an untraceable report and the other in the form of a charge sheet in respect of the same set of alleged offences. He further submits that no fresh investigation or re-investigation is permissible under the law. Moreover, if in pursuance of further investigation, report under section 173(8) of Cr PC was required to be filed, it should have been filed before the same Court where cancellation report was submitted, and not before the Special Court.

78. In all cases of CBI, which are entrusted to it for investigation, the CBI in accordance with Rule 10.5 of Manual, renumbers it, but does not change the contents of the earlier FIR. Therefore, merely giving of a new number to the FIR by the CBI, which is their practice and obligation as per their Manual, does not make it the second FIR.

79. I have already noticed the inexplicable manner in which, despite the investigation being entrusted to the CBI in October 2005, and the records being given to the CBI vide letter dated 08.11.2005, Delhi Police proceeded to file the cancellation report on 17.12.2005/22.12.2005. In fact, the Delhi Police had no jurisdiction to file the untraced report on 17.12.2005/22.12.2005 as was sought to be done by them. The learned MM before whom a fresh status report was filed on 31.07.2008 was conscious of the entrustment of the investigation to the CBI and consequently did not accept the untraced report filed by the Delhi Police. After taking note of the development that the investigation of the case stand transferred to the CBI, the learned MM merely consigned the case file to records as the CBI was investigating the case and granted liberty to the State to move appropriate motion in respect of the untraced report as and when required.

80. For a report submitted under section 173(2) of the Cr PC to be actionable, it is essential that the same should be submitted by the duly empowered/authorized officer. The untraced report submitted by Delhi Police was not by an authorized/empowered officer inasmuch, as the investigation of the case on the relevant date stood transferred to the CBI. Moreover, the investigation was not complete as, even according to the untraced report submitted by Delhi Police, the Complainant Jagdish Kaur had not joined the investigation. The endeavour of Delhi Police to rush with the filing of the untraced report despite the transfer of the investigation to the CBI, prima facie, appears to be clandestine and calls for a high level enquiry. The enquiry should be made into the issue as to whether there was justification for the concerned police officers to file the untraced report even after the investigation stood transferred to the CBI, and if no satisfactory explanation is found, to enquire into the conduct of the concerned officer of Delhi Police, who proceeded to file the untraced report, despite having no authority to do so.