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2021 DIGILAW 706 (KER)

V. RAJEENDRANATH NATH v. STATE OF KERALA

2021-08-06

R.NARAYANA PISHARADI

body2021
ORDER : The petitioner is the third accused in the case registered as V.C.No.01/2015/Wayanad by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Wayanad Unit under Section 13(1)(d)(ii) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). 2. The first accused in the case was the Secretary of the Public Works Department and the second accused was the General Manager of the Kerala State Construction Corporation Limited (KSCCL). The case relates to the corrupt practices alleged to have been conducted by the accused in relation to installation of crash guard barriers on CVG Road in Wayanad District. The petitioner was the person to whom the work was entrusted by the KSCCL on a sub contract. 3. After conducting the investigation, the investigating officer filed Annexure-A17 final report in the Court of the Enquiry Commissioner and Special Judge, Thalassery praying that the case may be closed as mistake of fact. 4. The Special Court, as per Annexure-A18 order dated 30.06.2020, did not accept the final report but returned it to the investigating officer for taking necessary further action in accordance with law. 5. In paragraph 15 of Annexure-A18 order, the Special Court has stated as follows: “There are enough materials in the case diary to submit final report against the accused persons. The investigating officer ought to have charge sheeted the accused persons after obtaining sanction required under the law.” 6. This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-A18 order. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. 8. Learned counsel for the petitioner submitted that the observations made by the Special Court in paragraph 15 of Annexure-A18 order virtually amount to a direction issued to the investigating officer to file charge-sheet against the accused in the case. Learned counsel for the petitioner has contended that the Special Court has no power to direct the investigating officer to file a charge-sheet against the accused in the case. 9. Learned Public Prosecutor submitted that the VACB is conducting further investigation in the case in compliance with Annexure-A18 order passed by the Special Court. 10. Learned counsel for the petitioner has contended that the Special Court has no power to direct the investigating officer to file a charge-sheet against the accused in the case. 9. Learned Public Prosecutor submitted that the VACB is conducting further investigation in the case in compliance with Annexure-A18 order passed by the Special Court. 10. 'Investigation' is defined in Section 2(h) of the Code to include all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in that behalf. 11. Section 156(1) of the Code empowers any officer in charge of a police station to investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. 12. Investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by the filing of a charge sheet under Section 173 of the Code. The final step in the investigation, namely, the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station (See H. N. Rishbud v. State : AIR 1955 SC 196 ). 13. Section 156(3) of the Code states that, any Magistrate empowered under Section 190 of the Code may order an investigation as mentioned in Section 156(1). 13. Section 156(3) of the Code states that, any Magistrate empowered under Section 190 of the Code may order an investigation as mentioned in Section 156(1). Section 173(2) of the Code provides that, as soon as the investigation 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, which shall contain the particulars prescribed under clauses (a) to (h) therein. 14. The term "investigation" under Section 173(2) of the Code includes opinion of the officer in charge of the police station as to whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to the concerned court or not. This opinion is not legal evidence (See M.C.Mehta v. Union of India : AIR 2007 SC 1087 ). 15. There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of a case is the exclusive domain of the police. The functions of crime detection and its subsequent adjudication are well defined and well demarcated between the police and the Magistrate (See State of Bihar v. J. A. C. Saldanha : AIR 1980 SC 326 ). The investigation of a cognizable offence is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his powers well within the provisions of the law and the legal bounds. 16. However, when proper investigation is not conducted, the Magistrate has power under Section 156(3) of the Code to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation (See Sakiri Vasu v. State of U.P : AIR 2008 SC 907 ). 17. Investigation includes proceedings in the further investigation also. The power of the Magistrate to order investigation under Section 156(3) of the Code is very wide and he has the authority to ensure that a proper investigation by the police takes place (See Vinubhai Haribhai Malaviya v. State of Gujarat : AIR 2019 SC 5233 ). 18. 17. Investigation includes proceedings in the further investigation also. The power of the Magistrate to order investigation under Section 156(3) of the Code is very wide and he has the authority to ensure that a proper investigation by the police takes place (See Vinubhai Haribhai Malaviya v. State of Gujarat : AIR 2019 SC 5233 ). 18. In the present case, after conducting investigation, the investigating officer filed Annexure-A17 final report (closure report) in the Special Court stating that the case may be closed as mistake of fact. The question arises, what are the options available to the court, when such a report is filed by the investigating officer. 19. In Abhinandan Jha v. Dinesh Mishra : AIR 1968 SC 117 , the question considered by the Apex Court was, whether a Magistrate can direct the police to submit a charge sheet, when the police, after the investigation into a cognizable offence, had submitted a final report under Section 173 of the Code stating that no case was made out for sending up an accused for trial. The Apex Court held that, the formation of an opinion as to whether or not there is a case to place the accused on trial, is left to the officer in charge of a police station. Regarding a report filed by the police that no case is made out against the accused, it was held as follows: “Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge sheet, or, again submit a final report, depending upon the further investigation made by them. The police, after such further investigation, may submit a charge sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence”. 20. In Bhagwant Singh v. Commissioner of Police : AIR 1985 SC 1285 , it has been held as follows: “Now, when the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156”. 21. In the present case, the Special Court did not accept Annexure-A17 final report (closure report) filed by the investigating officer. The Special Court disagreed with the report filed by the investigating officer but it did not take cognizance of the offences, if any, disclosed. Then, the only other option available to the Special Court was to direct further investigation to be made by the VACB. In fact, no such specific direction has been made by the Special Court in the operative portion of Annexure-A18 order. Then, the only other option available to the Special Court was to direct further investigation to be made by the VACB. In fact, no such specific direction has been made by the Special Court in the operative portion of Annexure-A18 order. However, it is discernible that, by issuing a direction to the investigating officer to take further action in accordance with law, the Special Court meant that the investigating officer shall conduct further investigation in the case. 22. The grievance of the petitioner is that the observations made by the Special Court in paragraph 15 of Annexure-A18 order, which have been quoted earlier, when read together with the direction given to the investigating officer to take necessary further action in accordance with law, virtually amount to a direction to the investigating officer to file charge-sheet against the accused in the case. Learned counsel for the petitioner contended that the power of the investigating officer to conduct free and fair investigation has been shackled by such observations made by the Special Court. The apprehension expressed by the petitioner in this regard is well founded. 23. In Abhinandan Jha (supra), it has been held as follows: “It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate. ..... The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. ....... The Magistrate has no power to direct the police to submit a charge sheet when the police have submitted a final report that no case is made out for sending the accused for trial. ....... The Magistrate has no power to direct the police to submit a charge sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial”. (emphasis supplied) 24. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report to the effect that the allegations against the accused are not substantiated and no case is made out against the accused to send him for trial. It is then open to the Magistrate to accept the report. It is also open to the Magistrate to disagree with the report and order further investigation. He may also take cognizance of the offence under Section 190(1)(b) of the Code. But, the Magistrate cannot direct the investigating agency to submit a charge sheet against the accused (See also R.N.Chatterji v. Havildar Kuer Singh : (1970) 1 SCC 496 , M.C.Abraham v. State of Maharashtra : (2003) 2 SCC 649 , Ram Naresh Prasad v. State of Jharkhand : (2009) 11 SCC 299 and Vasanti Dubey v. State of M.P : (2012) 2 SCC 731 ). 25. In view of the position of law as noticed above, the observations made by the Special Court in paragraph 15 of Annexure-A18 order, which have been quoted in paragraph 5 of this order, cannot have any legal basis and those observations, which virtually amount to issuing direction to the investigating officer to file charge-sheet against the accused, are liable to be set aside. The investigating officer shall conduct further investigation uninfluenced by those observations and he shall file final report in the Special Court in accordance with the opinion formed by him on the basis of the materials collected during the investigation. 26. Though the petition contains factual grounds also to challenge Annexure-A18 order, at the time of hearing, learned counsel for the petitioner submitted that he would be satisfied with an order to the above effect. Therefore, the contentions based on the factual aspects of the matter, are not considered. 27. Consequently, the petition is allowed in part. The observations made by the Special Court in paragraph 15 of Annexure-A18 order, which have been quoted in paragraph 5 of this order, are set aside. The investigating officer shall conduct further investigation in the case uninfluenced by those observations. If the investigating officer files any charge-sheet against the petitioner, he would be at liberty to challenge the same in appropriate proceedings in the appropriate court.