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J&K High Court · body

2012 DIGILAW 678 (JK)

Rajinder Prasad v. State & Anr.

2012-10-18

MANSOOR AHMAD MIR

body2012
1. By the medium of both these petitions, filed under Section 561-A of Code of Criminal Procedure (for short, Cr.P.C.), the petitioners herein are seeking to quash, (i) challan/charge sheet, bearing No.15/07, (ii) order dated 27.06.2009 passed in case, titled as, State vs Subash Chander Chopra & others, in File No.69, under Section 5(2) of J&K Prevention of Corruption Act, 2006 (for short, P.C. Act) read with Sections 420, 468, 471, 201 and 120-B of Ranbir Penal Code (for short, RPC) and (iii) order dated 20.09.2006 passed in File No.84-A/Challn, in case, titled as, State vs S. C. Chopra & others, on the grounds taken in both petitions, which are aptly and precisely summarized as under: 2. FIR No.79/1995 came to be registered by the Vigilance Organization, Jammu (for short, VOJ) against the petitioners herein and four other persons on the written complaint of one Jaswant Singh, IPS, retired DIG Police. Investigation was conducted and final charge sheet in terms of Section 173 Cr.P.C. was presented before the Court of Special Judge, Anti Corruption, Jammu on 13.08.2005 and came to be diarized as 84-A/Challan. The matter came up for consideration at the charge stage. Learned Special Judge after examining the entire record along the case diary held that the Investigating Agency has failed to collect evidence and identify the person(s) responsible in disappearance of file from the office of J&K State Financial Corporation. It is relevant to reproduce relevant portion of order dated 20.09.2006, which reads as: “The document mentioned as item-ii above gives the procedure involved in sanction and payment of loans by the corporation whereas that mentioned as item No.iii gives a list of officials/officers working in Transport section of the Corporation in the year 1992. The author(s) of these documents neither have been identified nor are identifiable from the record. It is not understandable as to how the prosecution is going to prove the contents of these two documents. That notwithstanding, the first document though throws light on the procedure of sanction and payment of loans neither of them can be used to show at this stage and prove at the trial the involvement of A-1, A-2 and A-4 in preparation of the loan case in question. That notwithstanding, the first document though throws light on the procedure of sanction and payment of loans neither of them can be used to show at this stage and prove at the trial the involvement of A-1, A-2 and A-4 in preparation of the loan case in question. This is simply because the list of the officials/officers (supra) contains names of as many as 9 persons, apparently, including the names of A-2 and A-4, some of them similarly placed. These two documents given their face value cannot prove the involvement of A-1, A-2 and A-4 in processing and preparing the loan case in question. Likewise the I.O. has failed to collect evidence and identify the person(s) responsible for disappearance of the concerned file from the office of the Corporation. The I.O. it appears has contented with collecting the correspondence between A-1 and A-3 on one hand and A-12 and A-5 on the other. This correspondence is placed on the record. Its perusal shows that prior to commencement of investigation by the Vigilance Organization, the matter was taken up by A-1 in his capacity as Chief Manager of the LBO. Before him A-5 had taken a stand that he gave the concerned file to A-3, which the A-3 had refused. The prosecution, however, has charged all these three officers along with A-2 and the proposed evidence is the said correspondence only. This correspondence at the most would through light on the shifting of responsibility by different officials but not prove any one’s culpability. Viewed thus, the Investigating Officer in this case has failed to collect material sufficient to identify the officers/officials involved in the preparation of the loan case in question and later disappearance of the concerned file from the office of the Corporation. The officers/officials A-1 to A-5, it appears, have been charge sheeted on the basis of a general impression gathered by the Investigators rather than on the basis of the material collected against them. The I.O. it is clear, has failed to investigate the case in its right perspective. The officers/officials A-1 to A-5, it appears, have been charge sheeted on the basis of a general impression gathered by the Investigators rather than on the basis of the material collected against them. The I.O. it is clear, has failed to investigate the case in its right perspective. Agreed that the original file was not available in the office of the Corporation and it may not have been possible for the Investigating Officer to collect direct evidence as regards the officials involved in preparation of the loan case but the matter should not end there only and what is expected of the Investigators is to use their expertise to collect other evidence to identify the persons so involved. Likewise I.O. should have used his own expertise to identify the person(s) responsible for disappearance of the record. This is a matter of serious nature as it indicates bungling in the premier State run financial institution, involving its own officers/officials. The loan is alleged to have been secured in a fictitious name, which could not have been possible without active involvement and connivance of the officials/officers responsible for preparing the loan case. Its genesis must be understood. It is, therefore, a fit case where the investigating agency should be asked to try further and identify with cogent material the responsible persons. Charge sheet based upon general impression would not suffice. Viewed, thus, I order reinvestigation of the case to identify the responsible persons. Entire record along with a copy of this order be forwarded to SSP VOJ for informant and compliance. Accused for the time being shall continue on bail and seek further direction from the Investigating agency.” 3. Neither prosecution nor the accused persons questioned the said order and the same has attained finality. VOJ conducted further investigation and submitted the final report on 20.08.2007 in the Court of Special Judge, Anti Corruption, Jammu and came to be diarized as File No.69/Challan. Said court after hearing learned counsel for the State and the accused came to the conclusion that a case for framing of charge against the accused persons was made out. It is relevant to reproduce operative part of order dated 27.06.2009 hereunder. “The material collected during investigation further reveals that A-5 was holding charge of record keeper of SFC in addition to his duties as Gestetnor operator. It is further revealed that A-6 lodged FIR No.119/94 undere sec. It is relevant to reproduce operative part of order dated 27.06.2009 hereunder. “The material collected during investigation further reveals that A-5 was holding charge of record keeper of SFC in addition to his duties as Gestetnor operator. It is further revealed that A-6 lodged FIR No.119/94 undere sec. 379 RPC at P/S Nowabad falsely alleging theft of truck no.JK02B-5626 wherein he claimed to be the owner/driver of the truck. This was done with the oblique motive of grabbing the insurance claim. The record of the loan case was found untraceable after the VOJ embarked upon investigation which raises the inference that the record was concealed/destroyed to wipe out the evidence. The record collected during investigation reveals that the official started blaming each other for concealing the record of the loan case only to hoodwink the investigating agency. The circumstances in which the loan file went missing speak of nothing but oblique motive behind the concealing/destruction thereof. On evaluation of material collected during investigation as a whole, inferences available from the fact s emerging from seized record and bearing in mind the limited scope of sifting of material for purpose of determining whether there are grounds for believing that the accused are guilty of offences alleged against them, I find that a case for framing of charge under sec. 5(2) P.C. Act 2006 BK read with 201, 120-B RPC is made out against A-1, A-3 and A-5, offence under section 5(2) P.C. Act 2006 BK read with section 120-B RPC is made out against A-2 and A-4 and offence under sec. 5(2) P.C. Act 2006 BK read with 420, 468, 471, 120-B RPC is made out against A-6.” 4. The trial court prima facie held that there are grounds to presume that accused 1, 3 & 5 are involved in the commission of offence under Section 5(2) of P.C. Act read with Sections 201 and 120-B RPC, accused 2 and 4 are involved in the commission of offence under Section 5(2) P.C. Act read with Section 120-B RPC, whereas accused no.6 is involved in the commission of offence under Section 5(2) P.C. Act read with Sections 420, 468, 471 and 120-B RPC. The trial court further held that a case is made out for framing of charge against the petitioners herein along with other accused persons and, accordingly, posted the file for framing charge. The trial court further held that a case is made out for framing of charge against the petitioners herein along with other accused persons and, accordingly, posted the file for framing charge. Feeling aggrieved, the petitioners Rajinder Prasad and Harbans Lal have questioned both the orders. 5. Admittedly, accused, namely, Subash Chander, S. Mohinder Singh, Joginder Pal and S. Parmajeet Singh, accused no.1, 4, 5 & 6 respectively, framed in the said challan, are not before this Court and have not questioned both the impugned orders. 6. Petitioner Rajinder Prasad, accused no.2, filed 561-A 127/2009 on 10.08.2009 questioning the orders, impugned herein. This Court while issuing notice in the main petition dismissed the application for grant of interim relief vide order dated 11.08.2009. 7. Petitioner Harbans Lal, accused no.3, after a lapse of more than one year has also questioned the said orders by the medium of 561-A 193/2010, but no relief was granted except issuance of notice vide order dated 22.10.2010. 8. The moot question for consideration is: whether the Special Judge, Anti Corruption has the jurisdiction to direct for further investigation? The answer is in affirmative. 9. Special Judge, Anti Corruption has to follow the procedure as contained in Chapter XXI,Sections251 to 259(B)CrPC while exercising the powers as a Magistrate. The Magistrate is having all the powers to direct for further investigation. A Magistrate cannot shut his eyes and allow the accused to roam at large and enjoy the benefits of ineffective, faulty and bad investigation. It is beaten law of the land that even bad/defective/improper/faulty investigation cannot be a ground to acquit the accused. The trial court while hearing the case at the stage of framing of charge found that the investigation was defective and directed for its further investigation vide order dated 20.09.2006. Except petitioners herein, the other accused have not questioned both the orders, thus, the same have attained finality. 10. Virtually, the Special Judge Anti Corruption has not directed for reinvestigation, but has ordered for further investigation on the ground that the investigation was not properly conducted and the relevant registers/documents have not been seized and the person(s) involved is/were not identified. 11. The Apex Court in Hemant Dhasmana vs Central Bureau of Investigation, AIR 2001 SC 2721 , has held that the Special Judge can order further investigation for the ends of justice. 11. The Apex Court in Hemant Dhasmana vs Central Bureau of Investigation, AIR 2001 SC 2721 , has held that the Special Judge can order further investigation for the ends of justice. It would be relevant to reproduce paragraphs 16, 17, 18 & 19 hereunder. “16. Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judges direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck. 17. In Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537 : ( AIR 1985 SC 1285 : 1985 Cr LJ 1521) a three Judge Bench of this Court has said, though in a slightly different context, that three options are open to the court on receipt of a report under Section 173(2) of the Code, when such report states that no offence has been committed by the persons accused in the complaint. They are (Para 4) : (1) The court may accept and drop the proceedings; or (2) The court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) The court may direct further investigation to be made by the police. 18. Another three Judge Bench in M/s. India Carat Pvt. Ltd. vs. State of Karnataka, (1989) 2 SCC 132 : ( AIR 1989 SC 885 : 1989 Cri LJ 963) has stated thus (Para 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.” 19. In Union Public Service Commission vs. S. Papaiah, (1997) 7 SCC 614 : (1997 AIR SCW 3801 : AIR 1997 SC 3876 : 1997 Cri LJ 4636) a two Judge Bench considered the scope of Section 173(8) of the Code in extenso. Dr.A.S. Anand, J (as the learned Chief Justice then was) after extracting Section 173(8) of the Code has observed thus (Para 13) : “The Magistrate could, thus in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to further investigate the case and collect further evidence keeping in view the objection raised by the appellant to the investigation and the new report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 Cr.P.C.” 12. The Apex Court in State of Bihar vs J.A.C. Saldanna, AIR 1980 SC 326 , has held that the power of a Magistrate under Section 156(3) Cr.P.C. to direct further investigation is clearly an independent power and can be exercised even after submission of a report by the Investigating Officer. 13. The Apex Court in Sri B. S. S. V. V. Vishwandadha Maharaj vs State of A. P., AIR 1999 SC 2332 , has held that the Magistrate has the power to direct for further investigation even after the cognizance is taken. 14. The Apex Court in Zahira Habibulla H. Sheikh vs State of Gujarat, AIR 2004 SC 3114 , has held that the Courts cannot be mute spectators. 15. Mr. Tak, learned counsel for petitioner in 561-A No.193/2010, relied upon cases, titled as, Ramachandran vs R. Udhayakumar, (2008) 5 SCC 413 , and Virender Prasad Singh vs Rajesh Bhardwaj, (2010) 9 SCC 171 . 16. In the given circumstances of the case, the judgments cited by learned counsel are not applicable to the case of petitioners. 17. The Apex Court in Ramachandra vs R. Udhayakumar (supra) has held that the Court can direct for further investigation. It would be profitable to reproduce paragraph 8 hereunder. “In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by the CB (CID) as directed by the High Court.” 18. It would also be appropriate to reproduce paragraphs 36 & 38 of the judgment delivered by the Apex Court in Virender Prasad Singh’s case (supra). “36. We may also refer to the observations made in another ruling in Mithabhai Pashabhai Patel V. State of Gujarat. In paragraph 13 of the said decision, this Court has observed (SCC p.337, para 13) “13. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction” …… 38. The plea raised by the accused herein was not for further investigation under Section 173 (8) but for re- investigation by some other agency. In the circumstances of this case, the accused had not justified his plea at all for re-investigation or fresh investigation by another agency. On its own, the High Court did not go into that exercise to decide as to whether the investigation was required to be done by any other agency. It required help of DGP level officer and his opinion to decide whether the earlier investigation was done properly or not. We are afraid that was not the task. To decide so was the task of the Court alone and no opinion could have been sought for, particularly, in the circumstances of this case. Nothing seems to have been established which would justify calling for such opinion. However, we are not going into that question as we have already stated earlier. Once the charge sheet was filed, ordinarily it could only be the power of the Court to decide upon its correctness or otherwise.” 19. It took about one year in conducting further investigation and filing the final report. The petitioners also have not questioned the filing of new final report under Section 173 Cr.P.C. In terms of trial court orders, the petitioners/accused contested the case at the stage of framing of charge. The trial court after hearing them vide order dated 27.06.2009, impugned herein, prima facie came to the conclusion that the accused are presumed to be involved in the commission of offences. Feeling aggrieved the petitioners have questioned the framing of charge along with the impugned orders. 20. In the given circumstances, I am of the considered view that the trial court has the power to order for further investigation of the case and the same cannot be said to be abuse of process of law. Feeling aggrieved the petitioners have questioned the framing of charge along with the impugned orders. 20. In the given circumstances, I am of the considered view that the trial court has the power to order for further investigation of the case and the same cannot be said to be abuse of process of law. It is beaten law of the land that the remedy under section 561-A Cr.P.C. (corresponding to Section 482 Cr.P.C of Central Code) should not be exercised by the Courts in a routine manner, rather has to be exercised sparingly, carefully with caution and in rarest of rare cases. 21. It pains me to record herein that the record was summoned and the other accused, who have not questioned both the orders, also availed the benefit of pendency of these petitions. After 03.11.2009 the trial court was not in a position to pass substantive orders despite of the fact that no interim relief was granted at the first instance, is against the concept of the speedy trial. 22. In the given circumstance, no case for interference is made out. Accordingly, both the petitions are dismissed along with all connected CrMPs with costs, which are quantified at rupees five thousand each, to be deposited by or before 5th November 2012, in default trial court to recover the same as a fine in terms of the provisions of Cr.P.C. 23. Trial court is directed to conclude the trial as early as possible, preferably within one year. Parties through their counsel are directed to cause appearance before the trial court on 5th November 2012. 24. Registry to forthwith send down the record along with a copy of the order.