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2022 DIGILAW 44 (UTT)

K. N. Bhalla v. State of Uttarakhand

2022-03-15

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Since common questions of law and facts are involved in these two petitions, they are being decided by this common judgment. 2. Challenge in both the petitions have been made as following:- (i) Order dated 29.11.2014, passed in Criminal Case No.1884 of 2013, State vs. Sandeep Mittal and others, by the court of Additional Chief Judicial Magistrate, Vikasnagar, District Dehradun (for short, “the case”). By this order, the private respondents have been discharged of the offence under Sections 420, 406, 506, 120B IPC, and; (ii) Judgment and Order dated 25.07.2015, passed in Criminal Revision No.2 of 2015, State of Uttarakhand vs. Sandeep Mittal and others, by the court of Sessions Judge Dehradun (for short, “the revision”). By this judgment and order, the order dated 29.11.2014, passed in the case has been confirmed. The informant has filed Criminal Misc. Application No.1110 of 2015, challenging the impugned orders/judgments. The State has also impugned both these orders/judgments in Criminal Misc. Application No.308 of 2016. 3. Heard learned counsel for the parties and perused the record. 4. A small question of law is raised in these petitions. After investigation, charge-sheet was submitted in the matter. Once cognizance was taken, the Investigating Officer moved an application for further investigation of the case, which was allowed by the court on 16.08.2007. It appears that another application for investigation was again moved by the Investigating Officer, which was again allowed by an order dated 26.02.2009. Again the Investigating Officer moved an application with the averments that the specimen signatures of the informant as well as accused are required to be taken, in the presence of the court, so as to conduct further investigation. By the order dated 25.03.2009, his application was allowed by the court and both the informant as well as the accused were directed to appear before the court, in order to enable the Investigating Officer to take their specimen signatures. In the meanwhile, the proceeding of the case continued. 5. It also appeared that the private respondents had earlier also approached this Court by filing a petition under Section 482 of the Code, which was registered as Criminal Misc. Application No.195 of 2007, Sandeep Mittal and others vs. State of Uttarakhand and another and Criminal Misc. Application No.492 of 2007, Achal Kumar and others vs. State of Uttarakhand. 5. It also appeared that the private respondents had earlier also approached this Court by filing a petition under Section 482 of the Code, which was registered as Criminal Misc. Application No.195 of 2007, Sandeep Mittal and others vs. State of Uttarakhand and another and Criminal Misc. Application No.492 of 2007, Achal Kumar and others vs. State of Uttarakhand. The Court on 17.08.2012 dismissed the petitions and passed the following order:- “A First Information Report resulted into investigation. In course of such investigation, FSL Dehradun reported that the signatures on the documents, which were the basis of the alleged offences committed by the persons accused in the First Information Report, are not the signatures of the persons so accused. After this report was received, the Investigating Officer, it is alleged, was replaced by another Investigating Officer. The said Investigating Officer purported to have all those documents rechecked by somebody else and who allegedly reported that the signatures in question appearing on those documents are that of the persons accused. The learned counsel submits that the person, who submitted the second report, had no occasion to look into the original documents, but had occasion to look into the xerox copy of the original documents said to have been supplied by the informant. It is being contended that on the basis of second opinion, a police report has been filed against the accused persons and, on that, cognizance has been taken. Since cognizance has been taken, in the circumstances as above, the present application has been filed under Section 482 of the Code contending that this Court in a proceeding under Section 482 of the Code will decide, whether the first report was right or the second report was right? In addition to that, it had been contended that the whole process is a malafide exercise of power by the police, inasmuch as, the then D.G. was connected with the informant. This Court feels that in exercise of power under Section 482 of the Code, this Court is not competent to decide, which of the report was correct, nor it can go into the question, whether the first Investigating Officer was changed at the instance of the then D.G. and whether the informant was close to the D.G. 2. The applications, accordingly, fail and the same are dismissed. The applications, accordingly, fail and the same are dismissed. In the event, as entitled in law, applicants seek discharge before the Magistrate concerned, the Magistrate is directed to consider their plea for discharge and decide the same in accordance with law on merits.” 6. This order dated 17.08.2012 was further challenged by the private respondents before the Hon’ble Supreme Court but, it was also dismissed by an order dated 03.12.2012, passed in SLP (Criminal) No.8751 of 2012. The Hon’ble Supreme Court passed the following order:- “Dismissed. However, when an application is made for discharge, the learned Trial Judge would consider the same in accordance with law, without being influenced by any one of the observations made by the High Court while disposing of the petition filed under Section 482 of the Criminal Procedure Code. Order accordingly. ” 7. During the trial of the case on 29.11.2014, the Court heard the parties on the question of framing of charge and by the impugned order dated 29.11.2014, discharged the private respondents. As stated, the order dated 29.11.2014, passed in the case has unsuccessfully been challenged by the State in the revision. Aggrieved by it the petitioners are before this Court now. 8. On behalf of the petitioner K.N. Bhalla, learned Senior Counsel placed only one legal point. He would submit that the Court had ordered for further investigation under Section 173(8) of the Code. In such circumstances, without waiting for the report of Investigating Officer, order at the stage of discharge could not have been passed. Therefore, it is argued that both these impugned orders are not in accordance with law. They deserve to be set aside and the case may proceed only once the Investigating Officer file report after further investigating the matter pursuant to the orders dated 16.08.2007, 26.02.2009 and 25.03.2009, passed in the case. 9. Learned State counsel would also argue that the order for discharge has been passed merely on the ground that the matter is civil in nature. But, it is argued that since the matter was still under further investigation, an order for discharge could not have been passed. 10. On the other hand, learned counsel appearing for the private respondents would submit that both the orders impugned in these petitions are in accordance with law and they do not require any interference. But, it is argued that since the matter was still under further investigation, an order for discharge could not have been passed. 10. On the other hand, learned counsel appearing for the private respondents would submit that both the orders impugned in these petitions are in accordance with law and they do not require any interference. He would raise the following points in his submissions:- (i) In the instant matter, the dispute is with regard to the hand writing and signature. But, the Investigating Officer had already obtained a Forensic Report from a State Laboratory dated 08.08.2006, which has preference over any private report procured by the private respondents. Therefore, there was no occasion to direct for further investigation for the purposes of verification of signature and hand writing. (ii) There have been no circumstances or no reason for ordering further investigation. (iii) The order dated 26.02.2009 reveals that, in fact, the Investigating Officer had then moved application under Section 173(8) of the Code at the behest of Inspector General of Police. It is argued that the Inspector General of Police had no authority to initiate such action. It is not permissible in law. (iv) At the time of arguments on charge, neither the State nor the informant brought it to the notice of the Court that order for further investigation had been made and the report had not been filed by the Investigating Officer. 11. It is argued that the court proceeded with the case to consider the discharge of the private respondents under the directions of the Hon’ble Supreme Court and High Court. 12. This Court had already quoted the orders of the Hon’ble Supreme Court and High Court whereby, the petitions filed by the private respondents have been dismissed. Hon’ble High Court in its order dated 17.08.2012, passed in Criminal Misc. Application No.195 of 2007 and Criminal Misc. Application No.492 of 2007 directed the Magistrate concerned, to consider the plea for discharge and decide the same, in accordance with law. The Hon’ble Supreme Court also, in its order dated 03.12.2012, passed in SLP (Crl.) No.8751 of 2012, issued directions to decide the matter, in accordance with law. The plea for discharge was to be decided in accordance with law. If there had been any impediment to decide the plea of discharge, the Court could not have proceeded to decide such plea. 13. The plea for discharge was to be decided in accordance with law. If there had been any impediment to decide the plea of discharge, the Court could not have proceeded to decide such plea. 13. On behalf of the private respondents, much emphasis has been laid about the circumstances to argue that they had been no circumstances for ordering further investigation. This Court is afraid to examine the validity of the orders for further investigation, passed in the case on 16.08.2007, 26.02.2009 and 25.03.2009. That chapter had already been closed. In fact, directions were given by the court while ordering for further investigation that parties shall remain present before the court on a particular date at a particular time to give their specimen signatures. 14. An illegality cannot be cured by the acquiesence of the parties. Even if, the State or the informant did not bring it to the notice of the Court that further investigation is underway, it cannot be said that now the order for discharge cannot be impugned. It was equally the duties of the private respondents to bring it to the notice of the Court that the matter was under further investigation. 15. The fact remains that, in this matter, the Court had repeatedly issued directions for further investigation. The fact remains that there were two expert reports before the Court when order of discharge was passed. Fact also remains that the day when the order for further investigation was passed, on that date also there were two experts opinion before the Court, despite all that, directions for further investigation had been given. 16. Learned Senior Counsel appearing for the informant K.N. Bhalla would submit that the informant had already given his specimen signature and writing. 17. Learned State counsel gives a statement that the Investigating Officer did not file report after further investigation. 18. In the case of Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another, (2019)17 SCC 1 , the Hon’ble Supreme Court discussed the power of a Magistrate for ordering further investigation. Under Section 173(8) of the Code, the Investigating Officer may further investigate the matter post cognizance, but in the case of Vinubhai (supra), the Hon’ble Supreme Court held that even Magistrate can order for further investigate the matter post cognizance. Under Section 173(8) of the Code, the Investigating Officer may further investigate the matter post cognizance, but in the case of Vinubhai (supra), the Hon’ble Supreme Court held that even Magistrate can order for further investigate the matter post cognizance. In the instant case, it is not the court which ordered for further investigation suo moto instead it is the Investigating Officer, who moved an application seeking permission for further investigation. 19. In the case of Vinubhai (supra), the Hon’ble Supreme Court held that such directions may be issued till charges are framed. In the instant case also order for further investigation had been passed prior to the stage of charge/discharging. The matter was still under investigation, but this fact was not brought to the notice of the Court when the matter was heard at the stage of discharge. Without waiting for the report of further investigation the case could not have proceeded further. The impugned orders make the further investigation redundant. It is not permissible and it is not intention of the law. Therefore, this Court is of the view that the court below ought to have waited for the report of the Investigating Officer after further investigation before hearing the parties on discharge. 20. In view thereof, both the orders dated 29.11.2014, passed in the case and the judgment and order dated 25.07.2015, passed in the revision, are set aside. The court below is directed to seek the report after further investigation form the Investigating Officer and thereafter, proceed with the case in accordance with law. 21. Let a copy of this order along with the lower court record be sent back to the court concerned for compliance.