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Madhya Pradesh High Court · body

2008 DIGILAW 424 (MP)

M. Cr. C. No. 4443/1006 v. STATE OF M. P.

2008-03-14

K.C.MISHRA

body2008
Judgment R.C.Mishra, J. ( 1. ) These petitions, under Section 482 of the Code of Criminal Procedure (for short "the Code"), are interrelated as arisen from the same criminal proceedings pending as Special Case No.1/2003 in the Court of Special Magistrate, CBI at Jabalpur. In that case, cognizance of the offences punishable under Sections 120-B, 420,467, 468 and 471 of the IPC has been taken against the petitioner and the co-accused S.S.Yadav, upon the charge-sheet submitted by the respondent on 29/8/03. ( 2. ) In the first petition registered as M.Cr.C. No. 4443/07, prayer has been made to quash the charge-sheet whereas in the second petition numbered as M.Cr.C. No.4522/07, order-dated 26/4/07 rejecting the application seeking production of certain documents, under Section 91 of the Code, has been sought to be set aside. ( 3. ) The investigation into the offences allegedly committed by the petitioner in pursuance of a conspiracy between him and the co-accused originated from FIR recorded on 23.07.1999, by Kewal Singh, S.P. C.B.I., Jabalpur. After due investigation, on 24.11.2001, the charge-sheet in respect of the aforesaid offences as well as the offence punishable under Section 13(l)(d) read with 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") was put up against the petitioner and his six companions in the Court of the Special Judge for CBI cases at Jabalpur. In the charge-sheet, one of the accused namely Balvir Singh was shown as absconding. However, considering the charge-sheet and the documents submitted, learned Special Judge, for the reasons recorded in the order- dated 29/06/2001 passed in Special Case No. 1/06, came to the following conclusions:- (i) no offence punishable under the Act was made out. (ii) the charges against co-accused H.S.Airy, Kishore Pathak, S.Natrajan and S.S Malik were groundless. ( 4. ) Accordingly, while discharging these four accused, the learned Special Judge returned the charge-sheet for the offences under the IPC as against the petitioner and co-accused S.S.Yadav for presentation to the Court of Special Magistrate, (CBI), at Jabalpur. However, the officer concerned, instead of complying with the direction carried out further investigation during which the discharged co- accused viz. H.S. Airy, Kishore Pathak, S. Natrajan and S.S. Malik were examined as witnesses. Thereafter, a fresh charge-sheet was filed in the Court of Special Magistrate on 08/05/2003. ( 5. However, the officer concerned, instead of complying with the direction carried out further investigation during which the discharged co- accused viz. H.S. Airy, Kishore Pathak, S. Natrajan and S.S. Malik were examined as witnesses. Thereafter, a fresh charge-sheet was filed in the Court of Special Magistrate on 08/05/2003. ( 5. ) Learned counsel for the petitioner has strenuously contended that no cognizance could be taken upon the fresh charge-sheet based on further investigation carried out without prior permission of the Magistrate. He is of the view that the cognizance of the offences could only be taken upon the main charge- sheet returned by the Special Judge and not upon the supplementary charge-sheet based on the further investigation in question. ( 6. ) In response, the learned counsel for CBI has submitted that the field of investigation of any cognizable offence is exclusively within the domain of investigating agency. According to him, the investigating officer was not precluded from carrying out further investigation before filing the amended charge-sheet before the Magistrate. However, the contention is apparently misconceived. As pointed out already, the respondent-CBI was only directed to put up the charge- sheet, returned by the Special Judge, before the Special Magistrate for trial of the petitioner and co-accused S.S.Yadav for the offences punishable under Sections 120-B, 420, 467 and 471 of the IPC. There cannot be any conflict with the proposition that CBI could conduct further investigation into the matter, but the only requirement was that due permission as contemplated under Section 173(8) of the Code, ought to have been obtained, before entering into such an additional investigation. For this, reference may be made to the under-mentioned observations made by the Apex Court in Hasanbhai Valibhai Qureshi vs. State of Gujarat AIR 2004 SC 2078 :- "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 matter 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." ( 7. ) Even when, the provision of Section 173(8) of the Code was not brought on the statute book, the Supreme Court in R.P. Kapur vs. State of Punjab AIR 1960 SC 866 has laid down the following guideline for the investigating agency:- "It is of utmost importance that investigation into criminal offences must always be free from any objectionable features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation is carried on unfairly or with any ulterior motive." ( 8. ) However, as pointed out already, the Special Judge, C.B.I., after taking into consideration the entire material on record, had given a categorical finding that the petitioner and co-accused S.S.Yadav deserve to be indicted with the offences under Sections 120-B, 420, 467 and 471 of the IPC. Admittedly, that order was not challenged by the petitioner. As such, it has become a final and a non review- able order. Further, the fact that C.B.I, had conducted further investigation without a prior permission of the Magistrate, by itself, would not be sufficient to vitiate the cognizance unless it is shown that such an investigation has caused any prejudice to the petitioner and the co-accused S. S .Yadav or had resulted into any miscarriage of justice. To fortify this view, suffice would be to advert to the celebrated observation made by the Apex Court in H.N. Rishbud vs. State of Delhi AIR 1955 SC 196 , as reproduced hereunder : "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance". ( 9. ) In this view of the matter, no interference with the order taking cognizance of the offences and consequent criminal proceedings is called for. ( 10. ) Coming to the order-dated 26/04/2007. it may be seen that the prayer for production of certain documents in possession of SECL, Sohagpur and Jabalpur was made at the pre-charge stage. However, the learned Magistrate rightly rejected the corresponding application in the light of the well-settled position of law, as explicated in State of Orrisa vs. Devendra Nath Padhi (2005) 1 SCC 568 , observing that entitlement of the accused to seek order, under Section 91 of the Code, would ordinarily not come till the stage of defence. Accordingly, this order also deserves to be maintained. , ( 11. ) For these reasons, none of the grievances as projected by the petitioners, has any merit or substance. As an obvious consequence, these petitions are dismissed. Petition dismissed.