Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 156 (JK)

Surjit Singh Rana v. State Of J. &K.

2002-05-16

S.K.GUPTA, T.S.DOABIA

body2002
1. We have heard Mr. D.C. Raina, learned counsel appearing for the appellant, as well as Mr. K.N. Bhat, learned counsel appearing for the CBI, Special Investigating Cell, in extenso. 2. Appellant, Surjit Singh Rana, has assailed the proprietary and legality of the impugned order dated 20-3-2002 formulated by learned Single Judge in OWP No. 1092/2000 on the following grounds: "(A) That the judgment impugned is against the facts as well as law. Therefore, the same is liable to be set-aside on this ground alone. (B) That the judgment impugned passed by the learned Single Judge run counter to law the laid down by the Honble Supreme Court of India in Various judgments on the subject, whereby fresh investigation of a matter by an investigating agency has been held unwarranted and illegal. Reference in. this behalf can be made to a recent judgment of the Honble Supreme Court in Case titled T.T. Antony Vs. State of Kerala, reported as AIR 2001 page 2637. (C) That the learned Single Judge while passing the judgment impugned has failed to appreciate the true facts of the matter put forth by the appellant. It is submitted that the learned Single Judge has not appreciated the fact that the investigation in FIR No. 8/99 having been completed by the Crime Branch, Jammu could not have been ordered to be reinvestigated on the basis of some fresh FIRs having been lodged in the year 2001 almost after three years from the date of Lodging of FIR 8/99, and the SRO No.467 of 2001 issued by respondent No.1 thus being illegal, unconstitutional was thus liable to be quashed. Therefore, the judgment impugned is liable to be set-aside on this ground alone. (D) That the learned singe judge has failed to consider the fact that there cannot be two investigations in one matter and the accused alleged to have committed an offence cannot be subjected to any further inquiry into the same offence which has been already investigated upon by an investigating agency having competence. Therefore, the judgment impugned is liable to be set-aside on this ground alone. 3. Therefore, the judgment impugned is liable to be set-aside on this ground alone. 3. Facts relevant for the disposal of this Letters Patent Appeal depicted in narration are that, on the basis of a communication received form Special Cell, Police, Delhi addressed by Special Commissioner of Police Intelligence to Home Commissioner, Srinagar with regard to the issuance of fake arms licences by ADM/DM through Licence Branch, Jammu in urging a need for thorough probe, led to the initiation of a preliminary inquiry by the crime Branch of the State. After preliminary inquiry, it was found by the Crime Branch that there is an inter-Sate racket operating with regard to the issuance of fake arm licences to the needy customers in consideration of huge money in connivance with the concerned officers/officials of DM office, Jammu. A case stood registered under Sections 420/467/468/161 /165-A/120 RPC with Sections 25/30/54 of the Indian Arms Act, and investigation proceeded. It is further stated that the petitioner/appellant participated in the proceedings, which were almost at its fag end of completion when the State Government by issuing an impugned notification No.Home-AP-75/98-ll dated 10-12-2001 accorded sanction to the extension of powers and jurisdiction of the members of the Delhi Special Police Establishment to the State of Jammu and Kashmir for investigation of offences out of FIR-18/96 and 08/99 registered at Police Station Crime Branch, Jammu and FIR 31/2001 registered at Police Station Crime Branch, Srinagar, inter-alia read with Sections 420,467,468,471-A of the State Ranbir Penel Code, Samvat 1989 Section 5(1 )(d) read with section 5(2) of the Prevention of Corruption Act, Samvat 2006 and Section 25 of the Arms Act, 1959. According to the petitioner/appellant, this amounts to registration of a fresh FIR, which has the effect of subjecting him again to undergo the agony of re-investigation. The earlier investigation by the Crime Branch of the State continued for a period of three years and this fresh FIR on the basis of same events, having essence same in both, renders the fresh investigation by the CBI agency unwarranted and illegal under the aforesaid notification. 4. Respondents, however, in their demurrer to the petition, refuted the contention of the petitioner/appellant with regard to the completion of the investigation in case of FIR 8/99. 4. Respondents, however, in their demurrer to the petition, refuted the contention of the petitioner/appellant with regard to the completion of the investigation in case of FIR 8/99. Further stand of the respondents is that, in fact, during the course of investigation of 4 cases, RCsNo.11-14/2001-SIU.I/CBI/SIC-1,that it came to be revealed that thousands of illegal arms licences, mostly having all India jurisdiction have been issued from Jammu to non-residents of J&K and subsequently renewed/re-entered and duplicate copies issued. It also came to be revealed by the CBI during investigation of the aforesaid cases that a case in FIR relating to issuance of illegal arms licences in also under investigation of Jammu Crime Branch. Since the racket involved inter-State ramification, a request was made to the State Government for transferring the investigation of FIR 8/99 from the Crime Branch, Jammu to the CBI. Since the case under FIR 8/99 related to and inter-linked with four cases registered with CBI, the State Government consented and transferred investigation of FIR 8/99 to Crime Branch alongwith two other cases to the CBI impugned vide notification referred to above. The learned Single Judge after having considered the rival submissions and on examining the record, gave the finding impugned and reads as under: 5. "1, after going through the record have found that no second FIR has been lodged or registered against the petitioner. Present investigation, besides other four cases, relates to Fir No. 8/1999. Therefore, the first ground fails. 2. An accused has to stand trial before an agency to which the Government entrusts investigation. No accused can claim any to be tries by a particular police or agency. All what should be kept in mind is that while entrusting such investigation, the agency should have jurisdiction to hold investigation and while holding such investigation no law or procedure should be violated. This was laid down in a case titled C.B.I. Vs. Rajesh Gandhi and another reported in AIR 1997 SC 393. Here the jurisdiction of the C.B.I, is not and cannot be challenged. Therefore, no right of the petitioner is violated. This ground also fails. 3. A clue to this ground is available from ground No.2 supra. The order of assignment of a particular investigation to a particular agency is only an administrative order. It is not required to laydown reasons for such entrustment whether in the first instance or during pendency of investigation. This ground also fails. 3. A clue to this ground is available from ground No.2 supra. The order of assignment of a particular investigation to a particular agency is only an administrative order. It is not required to laydown reasons for such entrustment whether in the first instance or during pendency of investigation. Their lordships in Rajesh Gandhis case (supra) held as under: - 6. "There is no provision in law under which, while granting consent or extending the power and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded." 7. In the same judgment their lordships also held that: - "The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I, has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the Cr.P.C. 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-sec (2) has been forwarded to the Magistrate." 8. Their lordship in this judgment have also held that principles of natural justice cannot be attracted while passing a notification, like the one impugned in this petition. This being the position of law, third ground also fails." 9. It is pertinent to point out that the page of the citation due to typographical error has been indicated as 393, which in fact is AIR 1997SC 93. 10. What is indisputably gatherable from scanning the record is that, it is a pure and simple case of transfer for further investigation of a case under FIR 8/ 99, still in process, to CBI, where other four cases of related subject matter on issuance of illegal and fake licences are pending investigation, and not a case of registration of second FIR, as vouched by Mr. D.C. Raina, learned advocate appearing for the appellant. D.C. Raina, learned advocate appearing for the appellant. Moreover, transfer of investigation from one agency to another is an administrative action of the Government and does not envisage assigning of reasons. That apart, the decision of agency which should investigate does not even attract the principles of natural justice. 11. We are clearly of the view that there is no manner of doubt that it is prerogative of the Government to entrust investigation to any agency to investigate the case, after considering its magnitude and ramification. However, the accused cannot ask for, as of right, investigation of a case by an agency of his choice. Learned Single Judge has elaborately considered and dealt with the grounds urged by the petitioner/appellant and the finding returned, in our view, can not be faulted. 12. In this view of the matter, the appeal does not possess any merit and is accordingly dismissed.