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2017 DIGILAW 766 (ALL)

RAVI SHANKAR SINGH @ PAPPU v. STATE OF U. P.

2017-03-10

SUDHIR AGARWAL

body2017
JUDGMENT : Hon'ble Sudhir Agarwal, J. 1. This writ petition has been filed under Article 226 of Constitution of India assailing order dated 3.9.2004 passed by Chief Judicial Magistrate, Ballia(hereinafter referred to as 'CJM") allowing complainant-Shivji Pandey's application and directing investigation by Central Bureau of Investigation, Delhi. The aforesaid order has been passed by CJM in purported compliance of judgment and order dated 23.1.2004 passed by Additional District & Sessions Judge(Fast Track Court No.1) in Revision no.327 of 2003 under Sections 467, 468, 420, 471, 120-B IPC. 2. Facts in brief may be stated as under:- 3. Complainant-respondent no.2 filed an application under Section 156(3) Cr.P.C. in the Court of CJM, Ballia requesting to direct police to register a criminal case against accused Anil Kumar and Ravi Shanker Singh under Sections 467, 468, 420, 471, 120-B IPC and make investigation in accordance with law. The application was allowed and Magistrate directed police to register case and proceed for investigation vide order dated 23.1.2003.Consequently police registered First Information Report i.e. Case Crime No. C-1/2003 under Sections 467, 468, 420, 471, 120-B IPC, Police Station GRP, Ballia. Investigating Officer submitted Final Report dated 15.6.2003. Complainant, after notice, filed protest petition dated 14.8.2003. CJM considered Final Report as also Protest Petition. Vide order dated 16.9.2003 he accepted Final Report and rejected protest petition. Complainant thereafter preferred Criminal Revision no. 327 of 2003. 4. Revisional Court observed that Investigating Officer submitted Final report only upon statements recorded under Section 161 Cr.P.C. though he seized of certain documents, allegedly fabricated, but no attempt was made by Investigating Officer to verify genuineness of these documents. Magistrate also in accepting such a Final Report has shown a lethargic approach. Revisional Court also observed that since complaint has been made alleging embezzlement of Rs.55,00,000/- showing avoidance of payment of income tax and justice requires that reinvestigation should be carried out by CBI and Magistrate can give such direction under Section 156(3) or Section 173(8) of Code of Criminal Procedure(hereinafter referred to as 'Cr.P.C.'). In this regard, Revisional Court referred to judgment in Kashmiri Devi vs. Delhi Administration and Another, AIR 1988 SC 1323 . Consequently, Revision was allowed. Magistrate's order dated 16.9.2003 was set aside and Revisional Court sent record to Magistrate to pass appropriate order in the light of direction given by it. 5. In this regard, Revisional Court referred to judgment in Kashmiri Devi vs. Delhi Administration and Another, AIR 1988 SC 1323 . Consequently, Revision was allowed. Magistrate's order dated 16.9.2003 was set aside and Revisional Court sent record to Magistrate to pass appropriate order in the light of direction given by it. 5. It is pursuant to this order, Magistrate, by a short order dated 3.9.2004, accepted application filed by complainant on 26.8.2004 and directed for investigation by CBI. 6. It is contended that firstly there is no power of reinvestigation which was directed by the Revisional Court and secondly Magistrate has no power even if it is treated to be a case of further investigation to direct different agency to make further investigation. In support, reliance is placed by learned counsel for petitioner on a decision in Chandra Babu alias Moses vs. State through Inspector of Police and others, (2015) 8 SCC 774 . 7. Learned AGA on the contrary submitted that though Revisional Court used the word investigation but directed for further investigation and to that extent there is no reason to interfere but he could not dispute that the power to direct for further investigation is vested in the Magistrate for getting investigation done by the same agency and not by different one. 8. It is now well established that when a Final Report is submitted, Magistrate is not bound with the opinion expressed by the Investigating Officer but is still competent to apply its own mind and take an appropriate decision which may include issuance of process and summoning of accused. 9. In Rama Chaudhary vs. State of Bihar, 2009(6) SCC 346 Court expressed power of Magistrate under sub Section (2) and (8) of Section 173 Cr.P.C. and said:- "From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or 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." 10. The meaning of "Further" is additional; more; or 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." 10. It has been followed in Awdhesh Kumar Jha @ Akhilesh Kumar Jha & another vs. State of Bihar, 2016(3) SCC 8 . In Vinay Tyagi vs. Irshad Ali, 2013(5) SCC 562 Court has held that Magistrate before whom a report under Section 173(2) Cr.P.C. is filed, is empowered in law to direct for further investigation and direct police to inquire further and file supplementary report. He further held that Magistrate has, however, no power to direct for re-investigation or fresh investigation(de novo) in the case initiated on the basis of police report. 11. The decision in Vinay Tyagi vs. Irshad Ali (supra) has been reiterated and followed in Dharam Pal vs. State of Haryana, 2014(2) SCC (Cri) 159 observing that superior Courts have jurisdiction under Section 482 Cr.P.C. or under Article 226 of Constitution of India to direct further investigation afresh or denovo and even re-investigation. Fresh, denovo or reinvestigation are synonym expressions and result whereof in law, would be same. Superior Courts are even vested with power of investigation from one agency to another, provided ends of justice so demands. This power has to be exercised by Superior Courts very sparingly and with great circumspection. Court reiterated the following observation with regard to the power of Magistrate: "Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It would be specific order of the Court that would determine the nature of investigation." 12. The above views are reiterated and followed in Chandra Babu alias Moses vs. State(supra). In para 22, Court has further observed that Magistrate, however, cannot direct for further investigation by another agency as it is not within sphere of investigation and Magistrate has no jurisdiction in any case to direct for reinvestigation by another agency. 13. The above views are reiterated and followed in Chandra Babu alias Moses vs. State(supra). In para 22, Court has further observed that Magistrate, however, cannot direct for further investigation by another agency as it is not within sphere of investigation and Magistrate has no jurisdiction in any case to direct for reinvestigation by another agency. 13. We find that Revisional Court below while observing that investigating Officer has not probed documents which were seized of, could have directed for further investigation into the matter but its direction to get investigation through another agency justifies an inference that its direction actually meant for a fresh investigation or re-investigation and not further investigation. This is not within the domain of the Court below and, therefore, impugned orders cannot be sustained. 14. Writ petition is allowed. Order of the Additional District & Sessions Judge(FTC No.1) dated 23.1.2004 passed in Revision No. 327 of 2003 and consequential order dated 3.9.2004 passed by Chief Judicial Magistrate, Ballia are hereby set aside. The Revisional Court shall now redecide the revision treating it to be restored, as to whether police should be directed to further investigate the matter or not, on the facts and circumstances of the case and material on record. Since it is an old matter of more than a decade, the Court below shall take final decision afresh as directed above, expeditiously and in any case, within three months from the date of production of a certified copy of this order. It goes without saying that before passing a fresh order, as directed by this Court, the Court below shall afford opportunity of hearing to all concerned parties in accordance with law.