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Madhya Pradesh High Court · body

2014 DIGILAW 1217 (MP)

Govind Swaroop Shrivastava v. State of M. P.

2014-09-25

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Regard being had similitude in the controversy involved in the matter, the above mentioned cases were heard analogously and a common order is being passed. 2. The applicant accused Govind Swaroop Shrivastava has filed M.Cr.C No. 2994/2014 under Section 482 of Cr.P.C to set aside the order dated 20th March, 2014 passed by the learned Special Judge (under Prevention of Corruption Act), Gwalior in Special Sessions Trial No. 3/2010 whereby the application filed by the applicant under Section 173(8) of the Cr.P.C has been disallowed. 3. Similarly, M.Cr.C No. 3182/2014 has been filed by the accused/applicant Chandramauli Mishra under Section 482 of Cr.P.C challenging the order dated 20th March, 2014 passed by the learned Special Judge (under Prevention of Corruption Act) whereby the application filed by the applicant under Section 173(8) of Cr.P.C for “further investigation” in Crime No. 29/2009 has been rejected. 4. Heard the counsel for the applicants and respondents. 5. The facts just necessary for adjudicating the matters are stated hereunder to appreciate the case of the applicants and also to find out whether the applicants are entitled for the relief as prayed by them. 6. The applicants Govind Swaroop Shrivastava and Chandramauli Mishra are the accused persons in Special Sessions Trial No. 03/2010. They have filed separate applications under Section 173(8) of Cr.P.C and submitted that in Harsi High Level Canal the revised estimate of Rs. 607.76 Crores was granted by the Government of Madhya Pradesh. The estimate was prepared by the applicants, it was also approved by the high level technical advisors of Government of India. Madhya Pradesh Laghu Udyog Nigam is an ancillary of the Government of Madhya Pradesh. The administrative control of which is vested with the Department of Commerce and Industries. The Managing Director of this Laghu Udyog Nigam is an IAS Officer. The allegations against the applicants are not true. In the police report, this fact has not been mentioned that the administrative sanction was granted as per the revised estimate. The main accusation was regarding purchase of ''Acquaduct'' as revised estimate was administratively approved and further additional budget was sanctioned. But in this regard, nothing has come on record, therefore, it is felt necessary for “further investigation”. The applicant, Govind Swaroop Shrivastava and Chandramauli Mishra have prayed before the learned Trial Court to order ''further investigation'' under Section 173(8) of Cr.P.C. 7. But in this regard, nothing has come on record, therefore, it is felt necessary for “further investigation”. The applicant, Govind Swaroop Shrivastava and Chandramauli Mishra have prayed before the learned Trial Court to order ''further investigation'' under Section 173(8) of Cr.P.C. 7. The learned Trial Court observed that the Engineer-in-Chief, Chief Engineer and Superintendent Engineer have been involved in this case according to the police report. In this project, provision of RCC Aquaduct was made. However, arbitrarily in place of RCC Aquaduct, purchase of steel pipe Aquaduct has been included. Besides, without inviting tender M.S. Railing and M.S. Foot Bridge were purchased overlooking the provisions of the Government purchase rules. 8. The Government fund was misused. The Technical sanction for the revised estimate was granted for the purchase of unwanted goods from the un-authorized firm through M.P. State Consumer Cooperative Society at higher rate and illegally paid the amount from the Government fund, which is criminal breach of trust and violation of Madhya Pradesh Store Purchase Rules. 9. The learned Trial Court also observed that by criminal conspiracy, the accused persons by-passing the rules purchased the goods at high rate of 4 times to 14 times more than the market value, caused wrongful loss to the Government of Madhya Pradesh. The accused persons committed criminal breach of trust and misappropriated the government funds. Charge sheet has been filed against 18 accused persons. Still investigation is pending against about 100 other persons. 10. The learned Trial Court held that the criminal acts of the petitioners have been made clear in the police report. They have purchased the goods at high rate of 4 times to 14 times more than the market price by overlooking the Madhya Pradesh Store Purchase Rules. Thus, it ruled that “further investigation” is not felt necessary. Hence, the applications are not bona fide and are rejected. 11. On behalf of the petitioner, Govind Swaroop Shrivastava, the impugned order has been challenged on the ground that the Investigation Agency has not done the investigation fairly and impartially. The investigation was carried for other accused persons, then why the petitioner is being deprived of. It is clear cut abuse of process of law. The fact that it may cause delay in concluding the trial, should not stand on the way for ''further investigation''. The investigation was carried for other accused persons, then why the petitioner is being deprived of. It is clear cut abuse of process of law. The fact that it may cause delay in concluding the trial, should not stand on the way for ''further investigation''. The Court in arriving at truth and to do real and substantial justice should order for ''further investigation''. 12. At the time of filing of charge sheet, application for “further investigation” was moved but no action has been taken. At that time, charges have not been framed, investigation of other accused persons is still under process. Therefore, ''further investigation'' for exploring the real facts should be ordered. 13. On behalf of the other applicant Chandramauli Mishra, the impugned order has been assailed on the ground that the petitioner while working as an Executive Engineer in Harsi High Level Canal Division has not violated any provision or the guidelines laid down in Madhya Pradesh Financial Code, Madhya Pradesh State Purchase Rules and Madhya Pradesh Works Department Manual, 1983. The petitioner performed his duties with utmost sincerity complying with the Civil Services Conduct Rules. Material facts and Department Rules have been overlooked during the investigation. Therefore, it is necessary that ''further investigation'' be ordered in the interest of justice. Mere fact that it may cause delay in concluding the trial should not stand on the way of dispensation the justice. It is necessary to prevent abuse of process of Court or otherwise to secure ends of justice. 14. For better understanding of the provision, we reproduce section 173 of Cr.P.C., which reads as follows:- "173.(1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation, (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2). 15. In a recent judgment pronounced by the Supreme Court in Vinay Tyagi Vs. Irshad Ali alias Deepak and others reported in: (2013) 5 SCC 762 , it has been held that:- "Investigation can be of the following kinds:- (i) Initial investigation (ii) Further investigation (iii) Fresh or de novo or reinvestigation The "initial investigation" is the one which 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 CrPC 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) Cr.P.C." 16. "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) of CrPC. This is a kind of continuation of the previous investigation. The basis of “further investigation” is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. The scope of “further investigation” is restricted to the discovery of further oral and documentary evidence. The report submitted in pursuance of “further investigation” is commonly described as “supplementary report”. 17. The Hon'ble Supreme Court has also opined that 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. The report submitted in pursuance of “further investigation” is commonly described as “supplementary report”. 17. The Hon'ble Supreme Court has also opined that 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. Whereas “fresh”, “denovo” and “reinvestigation” are synonymous expressions and their result in law would be the same. The superior courts have the jurisdiction under Section 482 of Cr.P.C. or even Article 226 of the Constitution of India may direct “further investigation”, 'fresh' or 'denovo' and even 're- investigation'. 18. In the present context, we are only concerned with “further investigation”. Hon'ble the Supreme Court in the case of Vinay Tyagi (supra) at Para 22 has clearly and unambiguously propounded that “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) of CrPC. 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. 19. Arguing vehemently on behalf of the applicant, learned senior counsel Shri Anil Khare, contended that the applicants are innocent and they have no other chance to prove their innocence. The investigation which is tainted by unhealthy atmosphere. Therefore, there may be chances of failure or miscarriage of justice. Thus, the only option available to the applicants is that of “further investigation” under sub-section 8 of Section 173 of CrPC. Similar submission has been made by the learned senior counsel Shri N.P. Dwivedi for the other applicant. They placed reliance on “Virender Prasad Singh Vs. Rajesh Bhardwaj and others reported in (2010) 9 SCC 171 ”, in which, Hon'ble the Supreme Court has held that:- “When the charge-sheet was filed and the case was committed to the Sessions Judge and the matter was pending before the Sessions Judge, it would be proper procedure to move the Sessions Court under Section 173(8) of Cr.P.C. and not to the High Court under Section 482 of Cr.P.C.” 20. Learned senior counsel also cited “Ramachandran Vs. R. Udhayakumar and others reported in : (2008) 5 SCC 413 ”, in which, it has been held that:- “B. Criminal Procedure Code, 1973 - Ss. Learned senior counsel also cited “Ramachandran Vs. R. Udhayakumar and others reported in : (2008) 5 SCC 413 ”, in which, it has been held that:- “B. Criminal Procedure Code, 1973 - Ss. 482, 173(8) and (2) and 156(1) - Exercise of power under S. 482 CrPC - Further investigation - Choice of investigating agency, held, can be decided by High Court.” 21. Learned senior counsel for the applicants further placed reliance on “Zahira Habibulla H. Sheikh and another Vs. State of Gujrat and others reported in : (2004) 4 SCC 158 ”, in which, Hon'ble the Supreme Court has held that:- “E. Criminal Procedure Code, 1973(8) - Reinvestigation - Scope for - On facts, since there was unanimity on part of both parties that investigation was tainted, biased and not fair, though for different reasons, investigating agency directed to act in terms of S. 173(8) - Director General of Police directed to monitor such reinvestigation.” 22. Learned senior counsel also pointed out that the power under sub-section (8) of Section 173 of Cr.P.C. is of widest amplitude and is not of such restrictive nature. They fortified their argument by placing reliance on State of Orissa Vs. Mahima alias Mahimananda Mishra and others reported in: 2010 3 SCC (Cri) 611 : (2007) 15 SCC 580 ? in which, Hon'ble the Apex Court held that:- “Criminal Procedure Code, 1973 - S. 173(8) - Further investigation - Long after submission of final form - Held, valid - Order for further investigation cannot be interfered with by High Court in exercise of its revisional power on ground that examining the witnesses who were examined at the time of the earlier investigation, recording their statements 5 O years after submission of the final form and further investigation on the basis of such statement would amount to abuse of process of court - Power under sub-section (8) is of widest amplitude and is not of such restrictive nature.” 23. Learned Public Prosecutor for the respondents/State has vehemently opposed the arguments put forth by the counsel for applicants and submits that there is nothing on record to order for “further investigation”. Learned Trial Court has assigned reasons for not passing any order for “further investigation”. It is also contended that the police has statutory right to carry out “further investigation” even after filing of the charge-sheet, no prior permission of the Magistrate is required. Learned Trial Court has assigned reasons for not passing any order for “further investigation”. It is also contended that the police has statutory right to carry out “further investigation” even after filing of the charge-sheet, no prior permission of the Magistrate is required. This view of the learned counsel for the respondent is supported by Rama Chaudhary Vs. State of Bihar reported in (2009) 6 SCC 346 . 24. Having gone through the above relevant materials as well as Section 173(2) and (8) of Criminal Procedure Code, 1973, we are of the opinion that “further investigation” referred to in sub- clause (8) does not mean re-investigation against the accused persons, who are already facing trial in the case. 25. In Randhir Singh Rana Vs. State (Delhi Administration) reported in (1997) 1 SCC 361 , while considering the provisions of Sections 156(3), 173(8), 190, 200 and 204 Cr.P.C., it is held that after taking cognizance of an incident on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot on his own order “further investigation” in the case, and if an order of discharge is passed, nothing would prevent the police from making “further investigation” on its own. The view expressed in Ranvdhir Singh Rana (supra) finds support in the earlier decision of the Supreme Court in the case of “Dinesh Dalmia Vs. C.B.I. reported in (2007) 8 SCC 770 ”. It is also made clear that the Judicial Magistrate cannot of his own order “further investigation” in the case, though such an order could be passed on the application of the investigation authorities. 26. In the instant case, the investigating authorities did not apply for “further investigation”. The accused/applicants filed applications for “further investigation” under Section 173(8) Cr.P.C. In Reeta Nag Vs. State of West Bengal and others reported in (2009) INSC 1441 : (2009) 13 SCR 276, it is held that “the investigation authorities did not apply for further investigation and it was only up on the application filed by the defacto complainant under Section 173(8), a direction was given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdiction at competence of the Magistrate. As we have already indicated above, such a course of action was beyond the jurisdiction at competence of the Magistrate. The Apex Court further observed that since no application have been made by the investigating authorities for conducting “further investigation” as permitted under Section 173(8) or Cr.P.C.” 27. The other course of action open to the Magistrate is to take recourse to the provisions of Section 319 of Cr.P.C. at the stage of trial. We also see no reason to interfere with the order of the learned Trial Court since it will always available to the Trial Court to take recourse to provisions of Section319 of Cr.P.C. if any material is disclosed during the examination of the witnesses during the trial. We also feel that the material alleged to have not brought into record in the investigation, if felt necessary, for the better disposal of the case, the applicants may take recourse to call the record at the time of entering into defence. 28. The learned Trial Court at this juncture has not felt it necessary to order “further investigation” to do real and substantial justice. Hon'ble the Supreme Court in Amitbhai Anilchandra Shah Vs. Central Bureau of Investigation and another reported in (2013) 6 SCC 348 , opined that:- “58.9. Administering criminal justice is a two- end process, where guarding the ensured rights of the accused under the Constitution is as imperative as ensuring justice to the victim. It is definitely a daunting task but equally a compelling responsibility vested on the court of law to protect and shield the rights of both. Thus, a just balance between the fundamental rights of the accused guaranteed under the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. Accordingly the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences. As a consequence, in our view this is a fit case for quashing the second FIR to meet the ends of justice. 58.10. The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. As a consequence, in our view this is a fit case for quashing the second FIR to meet the ends of justice. 58.10. The investigating officers are the kingpins in the criminal justice system. Their reliable investigation is the leading step towards affirming complete justice to the victims of the case. Hence they are bestowed with dual duties i.e. to investigate the matter exhaustively and subsequently collect reliable evidences to establish the same.” 29. In the present case, learned Trial Court has held that there has been no sufficient material on record for ordering a “further investigation”. The applicants failed to convince us to take a different opinion. 30. In view of the above discussion and conclusion we decline to interfere with the impugned order, therefore, petitions filed under Section 482 of Cr.P.C. are dismissed.