State Of Orissa v. HABIBULLAH KHAN — 2003 DIGILAW 1631 (SC)

ORDER 1. The Special Judge, Vigilance, Bhubaneshwar, by order dated 20-9-1999, held that in face of existence of prima facie case under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short "the Act"), punishable under Section 13(2) of the Act, charge against the respondent-accused under the said section deserves to be framed. The above order framing charge has been quashed by the High Court by the impugned common judgment rendered on writ petition (OJC No. 12753 of 1999) and Crl. Misc. Case No. 5021 of 1999 filed under Section 482 CrPC by the accused. The High Court allowing both the petitions has further held that the order taking cognizance has become non est. The State is in appeal on grant of special leave. 2. In order to appreciate the respective contentions, it is necessary to notice, in brief, the facts as under: For the period from 1980 to the end of 1989, the respondent was a Minister holding different portfolios from time to time. On 29-9-1990, a case under, Section 13(2) read with Section 13(1) (e) of the Act for acquisition of disproportionate assets was registered against the respondent. The period under consideration was from June 1980 to November 1989. On 26-3-1991, on completion of investigation, a charge-sheet for possession of disproportionate assets to a tune of about Rs 14 lakhs was submitted against the respondent. On 27-3-1991, the Special Judge, Bhubaneshwar, took cognizance. On the Special Court coming into existence, again cognizance was taken on 5-7-1993 by the Presiding Judge of the Special Court. A petition filed by the accused on 25-7-1997 seeking reinvestigation was rejected by the Special Court on 3-1-1998. It seems that in July 1998, when the respondent was again a Minister, he made a representation to the Inspector General of Police, Vigilance, to consider his income from sale of paddy which he received during the period under investigation and sought on that basis reinvestigation. On the basis of the said representation, an application was made by the investigating officer before the Special Judge seeking orders for reinvestigation. On the basis of the said representation, an application was made by the investigating officer before the Special Judge seeking orders for reinvestigation. The Special Judge on the said application ordered, "It is open to the 10 to do so." As a result of reinvestigation/further investigation, the investigating officer submitted final report dated 29-9-1998 concluding that: "From the above reinvestigation it is found that Mr H. Khan has acquired total assets during the check period of Rs 15,48,863.84 as per Annexure I, incurred expenditure during the check period of Rs 4,67,213.27 as per Annexure II and his total income during the check period comes to Rs 19,69,057.22 as per Annexure III. So the total disproportionate assets acquired by Mr H. Khan is computed to Rs 47,029.89, which is 2.38% of his total income. From the above facts it is ascertained that there is no material to prove the charge of acquisition of disproportionate assets by Shri H. Khan during the check period and as such this case is submitted to the court with a prayer to accept it as final report true insufficient evidence (sic) under Section 13(2) read with Section 13(I) (e) of the PC Act, 1988." 3. The Special Judge, in terms of the order dated 20-9-1999, after noticing the background including the submission of the first and the second report and also after examining the law on the subject, came to the conclusion of existence of the prima facie case requiring framing of charge as above-noticed. The learned Judge did not accept the conclusion in the second report that there is no material to prove the charge of acquisition of disproportionate assets by the accused during the check period. 4. The law as to the power of the Magistrate not to accept the final report and ignore the conclusion arrived at by the investigating officer on independent application of mind is well settled. A Magistrate has ample power to take cognizance of an offence even when the police report is to the effect that the investigation has not made out any offence against an accused. A Magistrate has ample power to take cognizance of an offence even when the police report is to the effect that the investigation has not made out any offence against an accused. A Magistrate is not bound, in such a situation, to follow the procedure laid down in Sections 200 and 202 of the Code of Criminal Procedure for taking cognizance of a case under Section 190(1)(a) of the Code though it is open to him to act under Section 200 or Section 202 also. This Court, on consideration of law laid down in Abhinandan Jha v. Dinesh Mishra1, H.S. Bains v. State (Union Territory of Chandigarhp in India Carat (P) Ltd. Y. State of Karnataka3 has set at rest the controversy, if any, on the powers of the Magistrate in the following words: (SCC pp. 138-40, paras 14-16) "14. Since in the present case the IInd Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha v. Dinesh Mishra1 and H.S. Bains v. State2 In Abhinandan Jha v. Dinesh Mishra1 the question arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the court observed that the Magistrate could take cognizance under Section 190(1) (c). The reference to Section 190(1)( c) was a mistake for Section 190(1)(b) and this has been pointed out in H.S. Bains2. 15. In the case of H.S. Bains2 one Gumam Singh submitted a complaint to the Judicial Magistrate, First Class, Chandigarh alleging that H.S. Bains trespassed into his house along with two others on 11-8-1979 at about 8 a.m. and threatened to kill him and his son. The Magistrate directed the police under Section 156(3) of the Code to make an investigation. After completing the investigation, the police submitted a report to the Magistrate under Section 173(2) of the Code stating that the case against the accused was not true and that the case may be dropped. The learned Magistrate disagreed with the conclusion of the police and took cognizance of the case under Sections 448 and 506 of the Indian Penal Code and directed the issue of process to the accused. Thereupon, the accused moved the High Court for quashing the proceedings before the Magistrate. As the High Court declined to interfere, the accused approached this Court by way of appeal by special leave. Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused. Various contentions were advanced on behalf of the accused and one of them was that the Magistrate was not competent to take cognizance of the case upon the police report since the report was to the effect that no offence had been committed by the accused. It was further urged that if the Magistrate was not satisfied with the police report, there were only two courses open to him viz. either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses under Section 200 of the Code and then issue process if he was satisfied that the case should be proceeded with. Repelling those contentions this Court held as follows: (SCC pp. 635-36, para 7) The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307 of the Indian Penal Code the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324 of the Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eyewitnesses to a murder but that for various reasons witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. 16. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. 16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the IInd Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him." 5. Reverting to the present case, the order framing charge shows that the learned Special Judge was fully alive to the two reports, the different scope of powers and functions exercisable by the Magistrate and the police and on facts came to the prima facie view that charge is liable to be framed though reasons thereof have not been mentioned in the order. We have also perused the two reports that were filed by the investigating officer. We have also perused the two reports that were filed by the investigating officer. It is evident therefrom that neither the prima facie view reached by the Special Judge can be faulted nor can it be said that the second report was altogether ignored by the Special Judge as was sought to be contended by Mr Verma, learned Senior Counsel appearing for the respondent. What has been done by the Judge is to ignore and brush aside the conclusion in the second report so as to form an independent opinion on the facts emerging from the report that charge deserves to be framed against the respondent. The course adopted by the Special Judge is permissible in law. We do not wish to dwell in detail on facts lest any prejudice may be caused to the parties during the trial of the case. Further, too much cannot be made out from the observation made by the Special Judge in respect of the second report that it insults common sense when reinvestigation is conducted about a decade after the happening. 6. In the impugned judgment, the High Court has clearly committed an error of law by setting aside the order of the Special Judge framing charge without even coming to the conclusion that there was no material on basis whereof the charge could be framed. What the High Court has said is that "in view of the final report submitted by the police stating that there is no material to prove the charge of acquisition of disproportionate assets by the petitioner, the charge-sheet on the basis of which cognizance was taken has lost its force". It is not necessary to always accept the final report. It depends on facts and circumstances of each case. There can and has to be an independent examination and application of mind by the judicial officer. On examination of facts, the judge has to decide to accept or not to accept the conclusion of the police that there is no material to prove the charge. The decision of the judge, at this stage, is of course prima facie. The High Court has concluded that in view of the final report, the charge-sheet on the basis of which cognizance was taken lost its force. That is not the correct approach. 7. The decision of the judge, at this stage, is of course prima facie. The High Court has concluded that in view of the final report, the charge-sheet on the basis of which cognizance was taken lost its force. That is not the correct approach. 7. Before parting, we may clarify that the observations made by us are only for the purpose of considering the validity of the order framing charge and will have no effect on the case to be tried by the Special Judge. 8. For the reasons aforesaid, we allow these appeals, set aside the impugned judgment of the High Court and restore that of the Special Judge, Vigilance, Bhubaneshwar. The trial will proceed in accordance with law.