S.B. Criminal Misc(Pet.) No. 1953/2014
1. This criminal misc. petition is preferred against the order dated 08.07.2014 passed by learned Special Judge, Anti Corruption Act Cases, Bikaner (hereinafter referred to as the ‘trial Judge’) in FR No. 23/2013 in FIR No. 220/2010, Police Station Churu, CPS Jaipur for the offenes under Sections 13(1)(D) & 13(2) of the Prevention of Corruption Act, 1988 and under Sections 420 and 120-B IPC, whereby, the learned Judge has directed the investigating agency for further investigation.
2. Brief facts of the case are that the complainant respondent No.2 filed a complaint stating therein that on 22.06.2007 a committee was constituted by the District Collector as ex-officio Chairman of Sainik Basti, Churu for allotment of certain plots in Sainik Basti, Churu. At that time the petitioner was holding the post of District Collector, Churu and the said committee was comprising of Additional Collector, Sub Divisional Officer, Tehsildar, Chairman District Ex-soldiers Association and District Sainik Welfare Officer. In this regard the Collector has framed guidelines for allotment of plots/lands for commercial purpose and their conversion & regularization.
3. It is alleged that the Collector was final authority for allotment of plots. In the guidelines it is provided that 75% plots should be allotted to Ex-soldiers, widows of soldiers, gallantry award holders and the soldiers who have participated in national & state level tournaments and rest 25% plots should be allotted to State & Central Government employees and citizens, who have been honoured at the state level. The rats of plots were also prescribed @ Rs.340 per sq. mtr. for officer level, Rs.240/- per sq. mtr. for junior commissioned officers and Rs.140/- per sq. mtr. for non commissioned and low paid employees. It is further alleged that when the petitioner was holding the post of Collector, Churu cum Chairman, Sainik Basti, in utter violation of the guidelines, plots have been allotted.
4. On the said complaint, a preliminary inquiry was conducted and the Preliminary Inquiry Officer verified the contents of the allegation and thereafter an FIR was instituted against the present petitioner and other co-accused. On the aforesaid allegations, the Anti Corruption Bureau carried out the investigation and after investigation negative final report was submitted before the learned trial Judge and vide order dated 25.10.2013 the learned Judge sent the matter for re-investigation to the A.C.B.
5. Pursuant to the order dated 25.10.2013 the matter was re- investigated and again final report, exonerating the present petitioner, was submitted before the learned trial Judge.
6. Learned trial Judge on the protest petition filed by respondent No.2 passed the impugned order dated 08.07.2014, which is under challenge in this criminal misc. petition.
7. It is contended that the learned trial Judge has exceeded his jurisdiction and passed the order impugned against the well settled principles of law. The direction issued to the investigating agency in a particular manner or to collect a particular evidence is against the proposition of settled law. It is also contended that in the present matter detailed investigation was conducted by the Additional Superintendent of Police, Anti Corruption Bureau and a final report stating that no offence is made out against the present petitioner was submitted before the learned trial court.
8. It is further contended that after passing the order by the learned trial court on 25.10.2013 again the investigation was carried out and second negative final report was submitted before the learned trial Judge. It is contended that the learned trial Judge has failed to appreciate that prima facie no offence is made out against the present petitioner. A perusal of the FIR indicates that the FIR was lodged just to harass & humiliate the present petitioner. It is contended that the guidelines were framed by the petitioner and the same were followed while making allotment of the plots. It is contended that respondent No.2 himself was encroacher and petitioner as the then Collector ordered for removal of his encroachment. In the investigation it was found that these plots were to be allotted to the persons, who were residence of Churu District but due to typographical error in the minutes of the meeting Tehsildar, Churu was written. No allotment was made to a person, who was not resident of Churu District, therefore, the present criminal misc. petition may kindly be allowed and the order dated 08.07.2014 may be quashed & set aside as well as the FIR No.220/2010 lodged by complainant may also be quashed & set aside.
9. Learned counsel for the petitioner fervently argued that the impugned order directing the police for exhaustive investigation falls within the ambit of re-investigation and such an order by the learned trial Judge transgresses the statutory powers conferred under the provisions of Section 173 Cr.PC. Admittedly the matter has been exhaustively investigated twice by the police authorities categorically concluding that no case is made out against the petitioner under Sections 13(1)(D) & 13(2) of the Prevention of Corruption Act, 1988.
10. Learned counsel for the petitioner further argued that earlier the learned trial Judge after submission of the first negative report vide order dated 25.10.2013 directed the police to investigate the matter on certain points and vide impugned order dated 08.07.2014 again formulated the points for which investigation has already been conducted twice, therefore, the impugned order is perse illegal and against the settled canons of the law enunciated by the Hon'ble Apex Court. Therefore the impugned order may be set aside.
11. Learned Additional Advocate General appearing on behalf of the state justified the impugned order and submitted that the impugned order falls within the precinct of the powers conferred to the Magistrate under Section 173(8) Cr.P.C., the criminal petition may be dismissed.
12. Before dealing with the present controversy it would be relevant to mention the powers of a Magistrate directing an investigation.
13. Section 173(8) Cr.P.C. contemplates that:-
“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).”
14. In Rama Chaudhary Vs. State of Bihar : (2009) 6 SCC 346, [LQ/SC/2009/755] Hon’ble the Apex Court discerned that “further investigation” referred to additional, supplemental investigation.
15. In Hasanbhai Valibhai Qureshi Vs. State of Gujarat : (2004) 5 SCC 347, [LQ/SC/2004/471] Hon’ble the Apex Court held that further investigation was necessary to arrive at the truth and achieve justice.
16. In Ramachandran Vs. R. Udhayakumar : (2008) 5 SCC 413, [LQ/SC/2008/1193] “further investigation” was distinguished from “re-investigation”, as the latter wiped out earlier investigations. Hon'ble the Apex Court deduced that further investigation could be carried out if required under Section 173(8) Cr.P.C..
17. In the case of – Vinubhai Haribhai Malviya Vs. State of Gujarat : Criminal Appeal Nos. 478-479 of 2017 it was held that a fair trial is a dimension of the right to life and personal liberty under Article 21 and thus investigating officer should collect all the evidence to find the real truth and to serve the ends of justice, and therefore even after filing the police report if there is a chance of collection of more evidence then the investigating officer shall continue with the investigation to collect those evidence and if he does not do so then the Magistrate has the power to order such ‘Further Investigation’ in the interest of justice. The court held that Article 21 is omnipresent and CrPC shall be interpreted in light of Article 21.
18. Hon'ble the Apex Court in the matter of Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors : CRIMINAL APPEAL NOS.2040-2041 OF 2012 ( Arising out of SLP (Crl.) Nos.9185-9186 of 2009), decided on 13 December 2012 categorically specified the terms “Further investigation” viz a viz to reinvestigation / denovo investigation / fresh investigation in following terms :-
“15. ‘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 a previous investigation and, therefore, is understood and described as a ‘further investigation’. 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.
16. 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. 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 Articles 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 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’.”
19. Thus from the above law, it is obvious that the Magistrate has ample power under Section 173 Cr.P.C. to send the matter for further investigation but he cannot direct the police to re- investigate or investigate the matter denovo. Such powers can only be exercised by the High Court under Section 482 Cr.P.C..
20. On the touchstone of the above law, it is to be seen whether the impugned order directing the police falls within the precinct of further investigation or virtually amounts to re-investigation. If the points formulated for investigation have already been investigated then certainly the order of the Magistrate cannot be sustained.
21. The learned trial Judge after submission of the second negative final report on the protest petition filed by the complainant passed the following operative order while formulating certain points for the investigation:-
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22. It is admitted position that on submission of the first negative report, the learned trial Judge vide order dated 25.10.2013 formulated certain questions and pursuant to the directions investigation was conducted on the points formulated by the learned trial Judge and the police did not find commission of any offence against the present petitioner and other co-accused under Prevention of Corruption Act.
23. This Court also called for a factual report. The learned Public Prosecutor procured the report dated 17.09.2014 from the Directorate Anti Corruption Bureau and submitted it for perusal.
24. Pursuant to learned trial Judge’s directions dated 25.10.2023 the second investigation officer arrived at the following conclusions:-
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25. After going through the impugned order dated 08.07.2014 and perusing the contents of the first and the second final reports it is apparent that point No. 1 formulated by the learned trial Judge has already been investigated and police concluded that the said registers were being properly maintained having entries of all the application forms since 1986 and the second register was opened as the first register has become a rag. Similarly for point No.4 the investigation has already been conducted and it is specifically stated in the report as under:-
26. Similarly for point No.5 formulated by the learned trial Judge the investigation has already been conducted.
27. In the first investigation conducted by the ACB the investigating officer categorically reached to the conclusion that allottee Smt.Kadar Bano was residing at Churu and she produced her affidavit. Similarly Smt. Suresh Kanwar, Smt. Phul Kanwar, Captain Mukesh Panwar, Captain Navratna Singh, Smt. Jaitun Bano, Smt. Santosh Kanwar, Devendra Singh, Hameer Singh and Bhom Singh were also residing at Churu and they were allotted plots as per the guidelines framed by the Collector by the concerned committee.
28. In the first investigation report it is also pointed out that allottee Deelip Kumar, Girdhari Lal, Chaukh Ram, Kashi Ram, Sudhir Ranjan, Om Prakash & Chandra Bhan were also allotted plots and they were also residing in Churu. Thus, the first investigation report clearly indicates that regarding point No.5 detailed investigation was conducted. The learned trial Judge without minutely examining the first & second negative final reports directed the police to investigate the fact which were already investigated, thus such directions clearly fall within the precinct of re-investigation.
29. Similarly, the learned trial Judge framed point No.6, directing the police agency to investigate that how Dr. F.H. Gauri was allotted strip of plot With regard to the said point in the first investigation report it has been specifically mentioned that Dr. F.H. Gauri was living for last 12 years in Churu and was State level awardee in the field of medicine. He filed an application before the Chief Minister for allotting the plot at concessional rate in the Sainik Basti.
30. It has been categorically pointed out by the investigating officer that allotment of plot was made to Dr. F.H. Gauri for his excellent services in the field of medicine. It is also stated in the second investigation report that in the year 1996 also Shri Chauth Mal, who was an Artisan & state awardee was also allotted plot in the Sainik Basti. It is also stated in the investigation report that prior to the alleged allotments such allotments were being made by the different Collectors in the Sainik Basti, Churu. It is clearly stated in the investigation report that in pursuant to State Govt. order No.64/ 06.11.65 the plots were allotted to the soldiers and state government officers in the Sainik Basti. In the year 1995 the plots were allotted to ten persons. In the year 1996 plots were allotted to the persons belonging to other categories in the Sainik Basti.
31. In the first negative final report also, it has been clearly mentioned that for the allotment of the land no rules were framed and only guidelines for allotment were framed by the present petitioner. Therefore, in both the investigations conducted by the ACB, specific findings have been arrived and it was opined that allotment of the land to Dr. F.H. Gauri was made in accordance to the order issued in the year 1965.
32. The learned trial Judge did not consider the reports submitted by the first investigating officer as well as second investigating officer and in a cursory manner has framed the questions, whereas, the police has already conducted the investigation on the above points. Thus, it is obvious that the learned trial Judge has exceeded its jurisdiction and directed the police authority to again investigate the matter.
33. The learned trial Judge framed point No.10 as follows:-
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34. The first investigation conducted by the ACB clearly reveals that on this point also a detailed investigation was conducted and in the final report it has been specifically mentioned that Smt. Kadar Bano, Smt. Suresh Kanwar, Smt. Phul Kanwar, Smt. Jaitun Bano and Smt. Santosh Kanwar are widows of ex-soldiers and similarly Captain Mukesh Panwar, Havaldar Hameer Singh, Bhom Singh and Captain Navratna Singh were ex-soldiers and residents of Churu District. It is also stated in the first negative final report that allotments to Shri Devendra Singh Jhajhadiya and Dr. F.H. Gauri were made from non military category. Devendra Singh Jhajhadiya was Arjun awardee. It has been further narrated in the first negative final report that out of 31 plots, 25 plots were allotted, out of which, 15 plots were allotted to soldiers and rest 10 plots to the government servants.
35. Despite the above specific finding, the learned trial Judge again directed the police to conduct the investigation. Certainly the action of the learned trial Judge is not in accordance with the settled principles of law and does not fall within the ambit of further investigation.
36. Learned trial Judge framed point No.3, that no such affidavits were taken from the allottees. The police after investigation concluded that affidavits were duly obtained from all the allottees before making the allotment of the plots. Thus, the learned trial Judge ignored the first investigation report and reiterated the directions, which have already been issued vide order dated 25.10.2013.
37. Similarly, learned trial Judge formulated point No.9 as under:-
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38. There was no specific allegation with regard to involvement of petitioner in undesirable activities. Such a vague allegation, without specifying the facts cannot be ascertained or investigated.
39. Therefore, after going through the entire material available on record, I am of the considered opinion that the learned trial Judge did not appraise the material available on record and without examining the conclusions of first and second negative final reports, passed a vague and cryptic order. The contents of the first & second negative final reports show that on most of the points, formulated by the learned trial Judge, specific findings & conclusions have already been arrived and police did not find any culpability of the present petitioner. The directions passed by the learned trial Judge do not fall within the ambit of further investigation & rather amounts to denovo investigation or re- investigation.
40. As far as quashing of FIR is concerned, Hon’ble Apex Court in the matter of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors. (supra) broadly laid down the following principles:-
“(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
41. In the instant matter, the FIR was registered in the year 2010 and after its registration first negative final report was submitted in the year 2013. Thereafter, pursuant to the directions of the trial court again investigation was carried out resulting in another (second) closure report and finally passing of the impugned order directing the investigation. The chequered history is suffice to demonstrate that the concerned trial Judge is competent to act upon the closure report and it is in the realm of it to consider whether to accept the closure report or to proceed.
42. In view of the above, the order impugned dated 08.07.2014 passed by the learned Special Judge, Anti Corruption Act Cases, Bikaner is set aside and matter is remanded to the learned trial Judge for reconsideration in accordance with the law. The prayer for quashing the FIR is disallowed.
43. In view of the above discussion, the criminal misc. petition is partly allowed.
S.B. Criminal Misc(Pet.) No. 4070/2019
1. This criminal misc. petition is preferred against the order dated 27.09.2018 passed by learned Sessions Judge, Anti Corruption Cases, Bikaner, whereby, the learned Judge took suo moto cognizance and directed the Anti Corruption Bureau Chowki Bikaner to proceed with the investigation, as the interim order dated 06.08.2014 granted by this court in S.B. Criminal Misc. Petition No. 1953/2014 has not been extended by a speaking order.
2. The criminal misc. petition challenging the order dated 08.07.2014 passed by learned Special Judge, Anti Corruption Act Cases, Bikaner has been decided, therefore, this criminal misc. petition is rendered infructuous.
3. In view of the above, the criminal misc. petition is dismissed as having become infructuous.
