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Orissa High Court · body

2016 DIGILAW 939 (ORI)

Bhuan @ Pramod Kumar Patra v. State of Orissa

2016-10-07

B.K.NAYAK

body2016
JUDGMENT. B.K.NAYAK, J. - Challenge in the present petition is to the order dated 14.3.2016 passed by the learned S.D.J.M., Cuttack in G.R. Case No.1173 of 1999, arising out of Madhupatna P.S. Case No.229 of 1999, which raised the question whether a Judicial Magistrate (SDJM) can direct fresh investigation or re-investigation into a case. 2.The question arises in the following circumstances : 2.1. On the basis of F.I.R. lodged by the informant on 13.07.1999, Madhupatna P.S. Case No.229 of 1999 was registered against the present petitioner under Sections 448/379/294/506/34 of the I.P.C. The F.I.R. allegations are that the informant was in occupation of Shop No.6 in the OSRTC shopping Complex, Badambadi and the petitioner was the agent of OSRTC. The informant paid Rs.45,444/- to the petitioner towards rent of the shop room but the petitioner did not grant any money receipt. Later the petitioner prevented the informant to open the shop. On 12.07.1994 the persons of the petitioner forcibly entered into the shop, scolded the informant in obscene language, dragged him out of the shop and looted the goods from the shop worth Rs.3.5 lakhs barring a few items and threatened to kill the informant in case he reported the matter to the Police. 2.2.On completion of investigation the Investigating Officer submitted Final Report before the S.D.J.M., Cuttack on 24.09.1999 stating the case as one of mistake of law. The Final Report reveals that the informant was in default of payment of rent in respect of Shop Room No.6 to the tune of Rs.1,55,132/- in spite of demand by the petitioner (agent), for which OSRTC cancelled the allotment of the shop in favour of the informant and allotted the same in favour of the petitioner and informed the informed on 12.07.1999.Thereafter, the articles in the shop were handed over to the informant in presence of neighbouring shop owners and the matter was amicably settled. It transpires further that there was a faisalanama (compromise) dated 30.08.1999 between the petitioner and the informant on the intervention of local gentries in pursuance to which the informant paid some money to the informant towards the value of fittings of the show room. It transpires further that there was a faisalanama (compromise) dated 30.08.1999 between the petitioner and the informant on the intervention of local gentries in pursuance to which the informant paid some money to the informant towards the value of fittings of the show room. 2.3.It is stated that after submission of final report notice was issued to the informant by the S.D.J.M. by order dated 15.09.2000, but he did not raise any protest and ultimately long ten years thereafter by order dated 28.11.2010 in the Lok Adalat the learned S.D.J.M. accepted the Final Report and closed the case. 2.4.In the meantime due to bifurcation of Madhupatna Police Station and creation of new Badambadi Police Station the place of occurrence came within the limits of Badambadi Police Station. Thereafter, on an alleged complaint lodged by the informant expressing his dissatisfaction on the investigation made by Madhupatna Police, the Inspector—in-charge, Badambadi Police Station made a prayer before the S.D.J.M. in 2016 for reopening of investigation of the case. By the impugned order dated 14.03.2016 the S.D.J.M. allowed the prayer of the IIC, Badambadi Police Station stating that there is no bar for the Officer-in-charge of Police Station to make further investigation. 3.Learned Counsel for the petitioner submits that by the impugned order though the SDJM, Cuttack has purportedly allowed further investigation of the case but in essence it is direction for fresh investigation inasmuch as the earlier investigation by the Madhupatna Police Station having been completed final report was submitted, which was accepted by the learned S.D.J.M. and the case was closed. Therefore, the learned S.D.J.M. has no power or jurisdiction to direct fresh investigation or de novo investigation. Learned Additional Standing counsel contended that the Judicial Magistrate has power to permit or direct further investigation and the instant case being a matter of further investigation, no exception can be taken to the impugned order. 4.From the facts noted above, it is clear that Madhupatna P.S. Case No.229 of 1999 had been fully investigated and on closure of investigation final report under Section 173 (2) of the Cr.P.C. had been filed on 24.09.1999 and the informant was issued notice by order of the learned SDJM, but he did not raise any protest to the final report which was finally accepted by the learned S.D.J.M. on 28.11.2010, i.e. eleven years after submission of the final report. It was not a case where the police submitted preliminary report under sub-Section (2) of Section 173, Cr.P.C. keeping the investigation further open under sub-Section (8) of Section 173 Cr.PC. Definitely the Judicial Magistrate has power to permit or direct further investigation where on submission of police report under sub-Section (2) the investigation is further kept open by the Investigating Officer or where the final report has not been accepted. Six years after the final report was accepted, the IIC, Badambadi Police Station made prayer to the SDJM for reopening of investigation. Reopening of an investigation after closure of the case does not amount to further investigation, but amounts to reinvestigation or de novo investigation. Hence, the contention of he learned Additional Standing Counsel or the opinion of the learned SDJM that he directed further investigation is not correct. 5.It has been held by the Hon’ble Supreme Court in the case of K.Chandrasekhar v. State of Kerala and others reported in AIR 1998 SC 2001 as follows : “25. From a plain reading of the above Section it is evident that even after submission of police report under sub-Section (2) on completion of investigation, the police has a right of’ ‘further investigation under sub-Section (8) but not fresh investigation or re-investigation’. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated June 27,1996 (quoted earlier) that the consent was being withdrawn in public interest to order a ‘reinvestigation’ of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a ’further investigation of the case’ instead of ‘re-investigation of the case’. The dictionary meaning of ‘further’ (when used as an adjective) is ‘additional’, more supplemental.‘Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-Section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a ‘further’ report or reports - and not fresh report or reports – regarding the ‘further’ evidence obtained during such investigation. In drawing this conclusion we have also drawn inspiration from the fact that sub-Section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a ‘further’ report or reports - and not fresh report or reports – regarding the ‘further’ evidence obtained during such investigation. Once it is accepted – and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji, (1964 AIR SCW 2190) (supra) that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that ‘further investigation’ is a continuation of such investigation which culminates in a further police report under sub-Section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the C.B.I. alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the question, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No.246/94 was redundant in view of the general consent earlier given by the State of Kerala.” 6.In the recent decision in the case of Vinay Tyagi v. Irshad Ali Alias Deepak and others : (2013) 5 SCC 762 , it has been held by the Apex Court thus : “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 complainant, 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 or reinvestigation. Right at the initial stage of receiving the FIR or a complainant, 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 or 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. In other words, it has to be understood in complete contradistinction 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. 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 Article 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”. With regard to the question whether the Magistrate has powr to direct reinvestigation or fresh investigation, the Apex Court in the aforesaid case further held as follows : “28. The next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct “further investigation” or “fresh investigation”. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct “fresh” or “de novo” investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is filed to wipe out the report and its effects in law. Reference in this regard can be mad to K. Chandrasekhar v. State of Kerala : Ramachandran v. R. Udhayakkumari, Nirmal Singh Kahlon v. State of Punjab, Mithabhai Pashabhai Patel v. State of Gujrat and Badubhai v. State of Gurajat”. 7.From the law laid down by the Hon’ble Apex Court in the aforesaid decisions, it is clear that the Magistrate has only power to direct further investigation, but has no power to direct fresh investigation or de novo investigation. The power to direct fresh investigation or reinvestigation vests only with the constitutional Courts, viz. Supreme Court and the High Court and such power is to be exercised very sparingly. 8.In the instant case, the impugned order of the learned S.D.J.M., Cuttack is nothing but a direction for fresh investigation or de novo investigation and the SDJM lacks power to give such a direction. Therefore, the impugned order is legally untenable. 9.It is also clear that during initial investigation the dispute between the petitioner and the informant was compromised in terms of a Faisalanama and the informant understood not to agitate the matter further. It would also be an abuse of the process of law and a travesty of justice to direct de novo investigation or fresh investigation in a case of the present nature, that too seventeen years after the completion of first investigation and filing of final report in respect thereof. 10.For the reasons aforesaid, the impugned order and the reinvestigation taken up by the Badamabadi Police in pursuant thereto are quashed. The CRLMC is thus disposed of. CRLMC disposed of.