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2002 DIGILAW 279 (KAR)

B. S. DWARAKANATH v. STATE OF KARNATAKA

2002-04-17

R.GURURAJAN

body2002
R. GURURAJAN, J. ( 1 ) PETITIONER Sri Dwarakanath is seeking direction for a CBI enquiry in Crime N. 427/99 on the file of JC Nagar Police Station, Bangalore, on the following facts. ( 2 ) PETITIONER who is working as a Technical Officer incharge of storage point, Karnataka Handloom Development Corporation, Whitefield, Bangalore (for short Corporation), was issued with a show cause notice and a reply was submitted by the petitioner. Thereafter a charge-sheet was issued to him in the matter for negligence. An enquiry was conducted. Petitioner complains about the defects in the enquiry. Petitioner was imposed a penalty of stoppage of two increments with cumulative effect besides recovery of a sum of Rs. 1,01,670/- being the amount of loss alleged to have been caused by him on the account of alleged negligence on his part. An appeal was filed to the authorities. Petitioner refers to the details of the appeal procedure in paras 5 and 6. Petitioner states that the then Managing Director Sri K. L. Negi was transferred from Corporation to another department and in his place one Sri A. P. Joshi was posted as the Managing Director of the Corporation. Petitioner says that Sri Joshi has tampered with the Board note put up by earlier Managing Director to suit his needs. He says that the change of Board note amounts to an offence in terms of the provisions under Indian Penal Code. He filed an appropriate complaint and the same is registered. He has sought for reference under Sec. 156 (3) of Cr. P. C. for investigation. An order was passed ordering reference in the matter. An investigation was in progress and the petitioner states that he is not likely to get justice with the police authorities and therefore he wants a CBI enquiry. He refers to a letter in this regard by the then Director General and Inspector General of Police to the Commissioner of Police in terms of Annexure-C. He has made allegations against the then Director General and Inspector General of Police Sri T. Srinivasulu. With these facts he wants this Court to interfere in the matter. ( 3 ) RESPONDENT-STATE Government filed their statement of objections and they say that no case is made out by the petitioner. They also deny the various allegations made therein. Subsequently they also say that the respondent 2 did not interfere with the investigation. With these facts he wants this Court to interfere in the matter. ( 3 ) RESPONDENT-STATE Government filed their statement of objections and they say that no case is made out by the petitioner. They also deny the various allegations made therein. Subsequently they also say that the respondent 2 did not interfere with the investigation. An additional statement of objection was filed in which it was stated that a B report has been submitted and the same being enquired into by the Magistrate. The B report is also filed in the case on hand. ( 4 ) MATTER was heard for some time. Thereafter it was noticed that the respondent 2 has been arrayed in his personal capacity and that he has not chosen to file any reply whatsoever. In those circumstances he was asked to file an affidavit and the same was filed before this Court. ( 5 ) HEARD the learned counsel for the parties. ( 6 ) MR. Nagesh, learned counsel seriously contends that respondent 2 has clearly interfered with the investigation in terms of this letter. Counsel says that respondent 2 is a topmost Police Officer and his writing a letter to the Commissioner would certainly have a bearing in the matter. He wants a CBI enquiry. He further states that even B' report filed cannot be accepted. He invites my attention to three judgments of the Supreme Court for further investigation in the light of this complaint in this petition. ( 7 ) PER contra the learned Govt. counsel would support the stand of the respondents. He would further say that the matter is already pending before the Magistrate and therefore no action is necessary by this Court. Counsel for respondent 2 would submit that the said letter cannot be understood to mean an interference in investigation. Counsel states that the respondent 2 has since retired no action is necessary at this stage. He also states that this cannot be termed as an interference. ( 8 ) I have perused the entire material on record. It is not necessary for me to go into the allegations made by the petitioner against Sri Joshi. Matter is already seized by the police in the light of the complaint filed by the petitioner. When the matter is pending, the then Director General and Inspector General of Police has addressed a personal letter to Commissioner of Police. It is not necessary for me to go into the allegations made by the petitioner against Sri Joshi. Matter is already seized by the police in the light of the complaint filed by the petitioner. When the matter is pending, the then Director General and Inspector General of Police has addressed a personal letter to Commissioner of Police. It has been mentioned therein that the complaint viz. , the petitioner is facing an enquiry and the matter is decided by the High Court. The relevant portion of the letter is as under :"a detailed report is sent and the jurisdictional officers told not to take a precipitative action against the officials for their actions in due course of discharge of their duties. " ( 9 ) IN the normal circumstances it would not matter very much if any such letter is written by the DIG. But in the case on hand DIG writing a letter to Commissioner of Police not to take any precipitative action against the officials. In the case on hand the person against whom an allegation is made is Mr. Joshi, an IAS officer. In the light of these facts relatable to highly placed officials such letters cannot be just brushed aside as sought by the learned Government counsel and the counsel for the respondent 2. The said letter certainly has a bearing on investigation. Letter is written by DGP to the Commissioner of Police. Both are holding a very sensitive and senior positions in the hierarchy of the department. If a number one officer writes to another senior officer next to him not to take precipitative action against the officials it can safely be presumed that investigation may not be safe. Moreover law does not provide for any such interference in the matter of investigation. In these circumstances certain prejudice is certainly caused to the petitioner. At the same time I must also notice that a mere letter as per Annexure-C by itself cannot give a right to the petitioner to seek CBI probe as sought for by him. There are no compelling material available on record to order for a CBI enquiry. ( 10 ) IT is also necessary to notice the B' report filed by the police. There are no compelling material available on record to order for a CBI enquiry. ( 10 ) IT is also necessary to notice the B' report filed by the police. Letter by DGP to Commissioner of Police in terms of Annexure-C, B' report and the involvement of an IAS officer all would show that investigation might not have been conducted in the way in which it ought to have been conducted. An element of bias or doubt of fair investigation is planted in the mind of the Court. ( 11 ) THE respondent 2 tried to justify his letter in terms of Sec. 77 of the Act. It was argued before me that Sec. 77 of the Police Act provides for such interference, which reads as under : "a Police Officer of rank superior to that of a Constable may perform any duty assigned by law or by a lawful order to any officer subordinate to him; and in case of any duty imposed on such subordinate, a superior where it shall appear to him necessary may aid, supplement, supersede or prevent any action of such subordinate by his own action or that of any person lawfully acting under his command or authority, whenever the same shall appear necessary or expedient for giving more complete or convenient effect to the law or for avoiding an infringement thereof. " ( 12 ) A reading of the section would show that what can be done by a senior officer is to call for a report with regard to investigation. What has been done in this case cannot be termed as calling for a report. On the other hand it is a personal letter addressed to another police official, not to take precipitative action. This letter in my view cannot be said to be in terms of powers conferred under Sec. 77 of the Police Act. Therefore, the argument on that basis is rejected. Similarly, the argument of the counsel that a precipitative action would mean nothing cannot be accepted. A reading of para 3 of the letter would show that it is not that simple as sought to be made out by the counsel. However, I deem it proper not to view the matter seriously in the light of the affidavit filed in this Court and in the light of the retirement of respondent 2 from the service. A reading of para 3 of the letter would show that it is not that simple as sought to be made out by the counsel. However, I deem it proper not to view the matter seriously in the light of the affidavit filed in this Court and in the light of the retirement of respondent 2 from the service. This Court hopes that at least in future senior officers of the Police Department would avoid such instances to maintain purity of investigation. ( 13 ) IN the case on hand B report is filed. A Division Bench of this Court in ILR 1995 Kant 2578 : (1996 Cri LJ 592), has ruled that under Sec. 173 (4) the Court has to satisfy itself with regard to executive function of Investigating Officer in the matter of exercise of his power. This Court also ruled in para 13 reading as under :"the views expressed by several Courts and the decisions to which reference has been made would only indicate that the matter has reached a finality and therefore it is not permissible to re-open the matter. We demur, in our view at the stage of acceptance of B report all that happens is that the Court accepts the B report on the basis of the material as available then. Even if further fresh material is discovered which calls for further investigation and if such investigation is not allowed then such course would be stultification of law and logic resulting in miscarriage of justice. In a country where there is cankerous growth of corruption with close links between the bureaucracy and politicians and such acts being done under shrouded mystery, it is difficult to assume that all facts could be revealed in one stroke. In such cases great effort is needed to discover material, and after securing further material, if the police seek to investigate the matter, the provisions of law cannot be interpreted to settle such course of action. An order accepting the B report is not an immunity granted to an accused person, but merely a temporary relief subject to further investigation in the event good and fresh material is secured and investigation is done. An order accepting the B report is not an immunity granted to an accused person, but merely a temporary relief subject to further investigation in the event good and fresh material is secured and investigation is done. It is also possible that a sloppy or dishonest Investigating Officer connives with the accused and sends up a B report and if the higher officers discover the same and collect fresh or further material could it said that the mere acceptance of B report sent by the junior officer would still stand even on discovery of such material and further investigation done by the police. Such a course would lead to startling results. We do not think that is the intention of the Cr. P. C. either u/s. 173 (4) or 173 (8 ). A provision of law must be expected to read in such a manner that if advances the cause of justice and the interest of the public, but not merely to bear in mind an action taken by the Court while supervising investigation. Such act though characterised as judicial is nevertheless of supervisory character because of different stages of investigation different kinds of control are exercised by the Court. " ( 14 ) THE Supreme Court in a judgment reported in (1999) 6 Supreme 47 : ( AIR 1999 SC 2332 ) has ruled in paras 10 and 11 reading as under :"power of the police to conduct further investigation, after laying final report, is recognised under Sec. 173 (8) of the Cr. P. C. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Sec. 173 (8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such allegation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we could not burden the Magistrate with such an obligation. Casting of any such allegation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we could not burden the Magistrate with such an obligation. " ( 15 ) AGAIN in another latest judgment reported in 2002 AIR SCW 12 : ( AIR 2002 SC 483 ), the Apex Court ruled that power of cognizance is not lost merely because Magistrate accepted final form submitted by the police in the matter. ( 16 ) IN the light of these judgments it is clear to me that even after accepting a report further investigation can be ordered. In the case on hand I have also gone through B' report submitted by the police. A careful reading of the report would show that the Investigating Officer have heavily relied upon disciplinary proceedings and the subsequent approval of the same by the High Court in holding against the petitioner. Sufficient attention is not paid to the facts relating to the serious complaint made by the petitioner. In these circumstances and in the light of the letter at Annexure-C I deem it proper to modify the relief on the facts and circumstances of this case. ( 17 ) IN my view the ends of justice would be met if the police is directed to further investigate the matter in accordance with law. So that there is no element of doubt or bias in the mind of the complainant or in the mind of the Court. ( 18 ) IN these circumstances this petition is allowed partly. Prayer of the CBI enquiry rejected. However, a direction is issued to the respondent-police authorities to conduct fresh investigation in accordance with law. No costs. Petition partly allowed. --- *** --- .