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Madhya Pradesh High Court · body

2013 DIGILAW 1228 (MP)

Harish Sharma v. Mohan Mandelia

2013-10-09

G.D.Saxena, S.K.Gangele

body2013
ORDER 1. This appeal has been filed by the appellants against the order dated 10.9.2013 passed by the writ Court in Writ Petition No.1224/2009. 2. Appellant No.1 lodged a complaint at the police station that he had advanced an amount of Rs.7,00,000/- to respondent No.1 another person Sheetabai also advanced an amount of Rs.9,00,000/- to him. Respondent No.1 issued a cheque of Rs.16,00,000/- to Seeta Bai. When the cheque was presented for clearance, it was returned back by the Bank with an endorsement that it had received stop payment and there was insufficiency of fund. The appellant No.1 mentioned in the FIR that the cheque issued by respondent No.1 was a forged one and it was a colored photo copy of the original cheque. After investigation, the prosecuting agency filed a charge-sheet before the appropriate Court. It was mentioned in the charge-sheet that the respondent No.1 had committed offences punishable under sections 420, 467, 468 and 471 of IPC. 3. The State Minister of Home, Transport and Jail Department directed the S.P. Gwalior to re-investigate the matter. The prosecution agency during the pendency of the case before the trial Court sought opinion from the State Examiner in regard to authenticity of cheque issued by the respondent No.1 in favour of appellant No.1. The State Examiner of questioned document submitted following opinion : “I. The document bearing marking Q1 and Q2 is examined under different arrangerment of light under instrument VSC 2000 HR the following observations are found : The portion marked “A to A” of the red enclosed questioned writing stamped and marked Q1 and the red enclosed signature stamped and marked Q2 are not the original writings/signature while these are photographic reproduction. The portion marked “B to B”, “C to C” and “D to D” of red enclosed questioned writings stamped and marked Q1 are original writings, written with blue ball point pen ink. Above observations reveals the fact that the whole document (cheque No.499127) with portion marked “A to A” of Q1 and signature marked Q2 are produced fraudulently by some photomechanical process and later on the original writings marked “B to B”, “C to C” and “D to D” of red enclosed questioned writings marked Q1 is executed. Hence, original writing is executed on the photographic document (cheque). Questioned signature marked Q2 has fraudulent reproduction of genuine signature. II. Hence, original writing is executed on the photographic document (cheque). Questioned signature marked Q2 has fraudulent reproduction of genuine signature. II. It has not been possible to express any definite opinion regarding authorship of red enclosed portion marked “B to B”, “C to C” and “D to D” (handwritten and executed with blue ball point pen ink) of Q1 on the basis of available data at hand.” 4. Respondent No.1 filed a writ petition before the writ Court for a relief that respondents police authorities be directed to conduct further investigation under section 173(8) of CrPC because the State Minister of Home, Transport and Jail Department had directed the police to re-investigate the matter. 5. Learned writ Court allowed the writ petition and issued directions to the prosecuting agency to submit further report before the Magistrate on the basis of documentary evidence-opinion of State Examiner of questioned document and further ordered that the Magistrate shall look into the said report and proceed further in accordance with law. 6. Learned counsel for the appellants has submitted that the directions issued by the learned Single Judge are contrary to law. In the facts and circumstances of the case, further investigation in exercise of powers under section 173(8) of CrPC could not be ordered by the writ Court. In support of his contentions, learned counsel relied on the judgment of the Hon’ble Supreme Court in Vinay Tyagi v. Irshad Ali and others, reported in (2013)5 SCC 762 . 7. Learned counsel for respondent No.1 has contended that the order passed by the learned writ Court is in accordance with law. 8. It is an admitted fact that the prosecuting agency sent the document i.e. cheque for opinion before the State Examiner of questioned document, Gwalior, Madhya Pradesh and the aforesaid authority submitted his opinion before the prosecuting agency and the same was forwarded to the Court. 9. The question is that whether on the basis of this opinion further investigation can be ordered under section 173(8) of CrPC or not. 10. Hon’ble Supreme Court in the case of Vinay Tyagi v. Irshad Ali and others, reported in (2013)5 SCC 762 , has considered the scope of section 173(8) of CrPC and held as under : “20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the Court to direct investigation. Hon’ble Supreme Court in the case of Vinay Tyagi v. Irshad Ali and others, reported in (2013)5 SCC 762 , has considered the scope of section 173(8) of CrPC and held as under : “20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the Court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the Court can direct investigation in accordance with the provisions of section 156(1) in exercise of its powers under section 156(3) of the Code. Investigation can be of the following kinds : (i) Initial investigation, (ii) Further investigation, (iii) Fresh or de novo reinvestigation. 21. The “initial investigation” is the one which the empowered police officer shall conduct in furtherance of registration of an FIR. Such investigation itself can lead to filing of a final report under section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the Court of competent jurisdiction in terms of section 156(3) of the Code. 22. “Further investigation” is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as “further investigation”. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as “supplementary report”. “Supplementary report” would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradictions to a “reinvestigation”, “fresh” or “de novo” investigation. 23. However, in the case of a “fresh investigation”, “reinvestigation” or “de novo investigation” there has to be a definite order of the Court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct “fresh investigation”. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of “fresh”/“de novo” investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a “fresh investigation”.” 11. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a “fresh investigation”.” 11. In the aforesaid case, Hon’ble Supreme Court has considered the previous judgments of Hon’ble Supreme Court on this point in Manu Sharma v. State (NCT of Delhi) [ (2010)6 SCC 1 ], Gudalure M.J. Cherian v. Union of India [ (1992)1 SCC 397 ], R.S. Sodhi v. State of U.P. [1994 Supp.(1) SCC 142], K. Chandrashekhar v. State of Kerala [ (1998)5 SCC 223 ], Ramchandran v. R. Udhayakumar [ (2008)5 SCC 413 ], Nirmal Singh Kahlon v. State of Punjab [ (2009)1 SCC 441 ], Mithabhai Pashabhai Patel v. State of Gujarat [ (2009)6 SCC 332 ], and Babubhai v. State of Gujarat [ (2010)12 SCC 254 ], hence, in our opinion, it is not necessary to quote previous judgments of the Hon’ble Supreme Court on the point because those have been considered by the Hon’ble Supreme Court and the Hon’ble Supreme Court has clearly held that the Magistrate or the prosecuting agency has no jurisdiction to direct fresh or de novo investigation in exercise of powers under section 173(8) of CrPC and this principle can also be applicable to the writ Court because the writ Court in the present case has issued direction to the investigating agency to conduct an investigation under section 173(8) of CrPC. 12. Hon’ble Supreme Court has further considered that the agency has only power of further investigation which means the investigation intended to supplement the primary investigation conducted by the empowered Police Officer and it is a kind of continuation of previous investigation and it could be ordered only on the basis of discovery of fresh evidence and it is not to be understood in the sense of reinvestigation, fresh or de novo investigation. 13. In the present case, the writ Court has ordered investigation on the basis of opinion submitted by the State Examiner. This is an opinion of the examiner and it can be termed as an expert opinion. 13. In the present case, the writ Court has ordered investigation on the basis of opinion submitted by the State Examiner. This is an opinion of the examiner and it can be termed as an expert opinion. It can be considered by the Court as an evidence within the parameters of Evidence Act, however, it could not be a basis for further investigation under section 173(8) of CrPC because as observed by the Hon’ble Supreme Court, the investigation could only be ordered in the event of discovery of fresh evidence. Hence, in our opinion, the order passed by the learned Single Judge is contrary to law. 14. Consequently, the appeal is allowed. Order dated 10.9.2013 passed by the writ Court in Writ Petition No.1224/2009 passed by the learned Single Judge is hereby quashed. 15. No order as to costs. .............