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2012 (12) TMI 1130

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....on (for short 'the CBI') is empowered to conduct 'fresh'/'re-investigation' when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Section 173 of the Code? Facts :- 3. Irshad Ali @ Deepak, Respondent No.1, in the present appeal was working as an informer of the Special Cell of Delhi Police in the year 2000. He was also working in a similar capacity for Intelligence Bureau. Primarily, his profession and means of earning his livelihood was working as a rickshaw puller. On 11th December, 2005, it is stated that he had a heated conversation with the Intelligence Bureau officials for whom he was working. It was demanded of him that he should join a militant camp in Jammu & Kashmir in order to give information with respect their activities to the Intelligence Bureau. However, the said respondent refused to do the job and consequently claims that he has been falsely implicated in the present case. In fact, on 12th December, 2005, a report was lodged regarding disappearance of respondent no.2 by his family members at Police Station, Bhajanpura, Delhi. Not only this, the brother of the respondent no.2 also sent a telegram t....

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....d A.li(sic) @ Deepak along with his associate Mohd. Muarif Qamar @ Nawab R/o Bajanpura, Delhi is coming from Jammu in JK SRTC Bus No. JK-02 Y- 0299 with a consignment of explosives, arms & ammunition and will alight at Mukarba Chowk, near Karnal Bypass in the evening. This information was recorded in Daily Dairy (sic) and discussed with senior officers. A team consisting of Insp. Sanjay Dutt, myself, SI Subhash Vats, SI Rahul, SI Ravinder Kumar Tyagi, S.I Dalip Kumar, SI Pawan Kumar, ASI Anil Tyagi, ASI Shahjahan, HC Krishna Ram, HC Nagender, HC Rustam, Ct. Rajiv and Ct. Rajender was constituted to act upon this information. Thereafter the team members in 3 private vehicles and 2 two wheelers armed with official weapons as per Malkhana register, departed from the office of Special Cell, Lodhi Colony at about 4.30 PM and reached G.T. Karnal Depot at 5.30 PM where Insp. Sanjay Dutt met the informer. Insp. Sanjay Dutt asked 6/7 persons to join the police party after disclosing them about the information. All of them went away citing genuine excuses. The police party was briefed by Insp. Sanjay Dutt and was deployed around Mukarba Chowk, Interstate Bus Stand. At about 7.35 PM, above me....

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.... "VKT' marked as 'D'. The recovered Star Mark pistol from the possession of accused Mohd. Muarif @ Nawab and Irshad ali were kept in separate pulindas and marked as M&I respectively and sealed with the seal of "VKT'. The blue coloured airbag and clothes recovered from the possession of accused Mohd. Muarif @ Nawab and kept in a cloth pulinda and sealed with the seal of 'T' and the green-red colour check bag recovered from the possession of accused Irshad Ali containing clothes was kept in a pulinda sealed with the seal of 'VKT' and CFSL forms were filled-up and sealed with the seal of "VKT". Seal after use was handed over to SI Ravinder Kumar Tyagi. During their interrogation, both the accused Irshad Ali @ Deepak S/o Mohd. Yunus Ali R/o F-247-A, Inder Enclave, Phase-II, Sultnpuri, Delhi aged 30 years and Mohd. Muarif Qamar @ Nawab R/o Vill. Deora Bandhoh, P.O.-Jogiara, PS-Jale, Distt.- Darbhanga, Bihar, stated that they brought the recovered consignment of arms, ammunitions and explosives from J&K from their Commanders in J&K and was to be kept in safe custody and was to be used for terrorist activity in Delhi on the directions of their handlers in J&K. Militant Irshad Ali and Nawa....

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....as filed this petition under Article 226 of the Constitution of India read with the Section 482 Cr.P.C. for issuance of Writ, Order or Direction in the nature of Mandamus to the Respondents to transfer the investigation of case FIR No.10/2006 dated 09.02.2006 of the Police Station Special Cell, under Section 121/121-A/122/123/120-B IPC read with the Section 4/5 of Explosive Substance Act and Section 25 of Arms Act to an independent agency like CBI on the allegation that his brother Moarif Qamar @ Nawab was falsely implicated in a serious case like the present one on the basis of a totally cooked up story. The above named brother of the Petitioner was reported to be missing ever since 22.12.2005 and a complaint to that effect was lodged at PS Bhajanpura, Delhi. It appears that usual notices, as provided, were issued on order to search the brother of the Petitioner. Lastly, a notice was got published by SHO, Bhajanpura, Delhi in Delhi Hindustan Times in its edition dated 09.05.2006 which is precisely the date on which it is alleged that the brother of the Petitioner and another person were apprehended by the police when they were returning from Jammu & Kashmir by Jammu & Kashmir Stat....

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....cating therein that the alleged recoveries effected from the accused persons did not inspire confidence and further investigation was needed. After perusing the records, the High Court again on 4th August, 2008 passed the following order: - "However, this relief cannot be claimed at this stage as if there was any error or misconduct or false implication of the accused on the part of any police official or the investigating officer while registering the case and while the investigation of the case is yet to be ascertained by the trial court during the trial of the case. Therefore, this relief being premature cannot be granted." 6. After detailed investigation, the CBI filed the closure report on 11th November, 2008 stating that the accused persons were working as 'informers' of Special Cell of Delhi Police and Intelligence Bureau Officials and that it was a false case. After filing of the report by the CBI, the accused-respondent no.2, namely, Mohd. Muarif Qamar Ali, filed an application before the Trial Court in terms of Section 227 of the Code with a prayer that in view of the 'closure report' submitted by the CBI, he should be discharged. This application was opposed by the Sp....

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....applications moved by the petitioners for discharging them is set aside. The case is remanded back to the Additional Sessions Judge to proceed further in the matter after hearing the parties on the basis of the closure report filed by the CBI dated 11.11.2008 and in accordance with the provisions contained under Section 173 and Section 190 of the Code of Criminal Procedure. In case he accepts the report, then the matter may come to an end, subject to his orders, if any, against the erring officers. However, if he feels that despite the closure report filed by the CBI, it is a case fit for proceeding further against the petitioners, he may pass appropriate orders uninfluenced dby (sic) what this Court has stated while disposing of this case. The only rider would be that while passing the orders the Additional Sessions Judge would not be influenced by the report of the Sepcial (sic) Cell in this matter. Parties to appear before the Trial Judge on 14th September, 2009." 10. It is this order of the High Court which is the subject matter of the present appeals by special leave. 11. It would be appropriate for the Court to examine the relevant provisions and scheme of the Code in relat....

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....formation received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. The Chief Judicial Magistrate is competent to empower any Magistrate of the second class to take cognizance in terms of Section 190. The competence to take cognizance, in a way, discloses the sources upon which the empowered Magistrate can take cognizance. After the investigation has been completed by the Investigating Officer and he has prepared a report without unnecessary delay in terms of Section 173 of the Code, he shall forward his report to a Magistrate who is empowered to take cognizance on a police report. The report so completed should satisfy the requirements stated under clauses (a) to (h) of sub-section (2) of Section 173 of the Code. Upon receipt of the report, the empowered Magistrate shall proceed further in accordance with law. The Investigating Officer has been vested with some definite powers in relation to the manner in which the report should be completed and it is required that all the documents on which the prosecution proposes to rely and the statements of witnesses recorded under Section 161 of the code accompany the report submi....

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....riable by the Court of Sessions, commit the same to the Court of Sessions in terms of Section 228(1)(b). Why the legislature has used the word 'presuming' is a matter which requires serious deliberation. It is a settled rule of interpretation that the legislature does not use any expression purposelessly and without any object. Furthermore, in terms of doctrine of plain interpretation, every word should be given its ordinary meaning unless context to the contrary is specifically stipulated in the relevant provision. Framing of charge is certainly a matter of earnestness. It is not merely a formal step in the process of criminal inquiry and trial. On the contrary, it is a serious step as it is determinative to some extent, in the sense that either the accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to face the complete trial which may prove prejudicial to him, if finally acquitted. These are the courses open to the Court at that stage. Thus, the word 'presuming' must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the....

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....228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases." 12. On analysis of the above discussion, it can safely be concluded that 'presuming' is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution's record, at this stage, has to be examined on ....

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....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 a....

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....r, in the case of R.S. Sodhi, Advocate v. State of U.P. [1994 SCC Supp. (1) 142], where allegations were made against a police officer, the Court ordered the investigation to be transferred to CBI with an intent to maintain credibility of investigation, public confidence and in the interest of justice. Ordinarily, the courts would not exercise such jurisdiction but the expression 'ordinarily' means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. 'Ordinarily' excludes extra- ordinary or special circumstances. In other words, if special circumstances exist, the court may exercise its jurisdiction to direct 'fresh investigation' and even transfer cases to courts of higher jurisdiction which may pass such directions. 17. Here, we will also have to examine the kind of reports that can be filed by an investigating agency under the scheme of the Code. Firstly, the FIR which the investigating agency is required to file before the Magistrate right at the threshold and within the time specified. Secondly, it may file a report in furtherance to a direction issued under Section 156(3) of the Code. Thirdly, it can also file a....

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....tion 173 of the Code, the Court observed that the police has the power to conduct further investigation in terms of Section 173(8) of the Code but also opined that even the Trial Court can direct further investigation in contradistinction to fresh investigation, even where the report has been filed. It will be useful to refer to the following paragraphs of the judgment wherein the Court while referring to the case of Mithabhai Pashabhai Patel v. State of Gujarat (supra) held as under: "13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar (2008) 5 SCC 513 opined as under: (SCC p. 415, para 7) '7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading....

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....guity, that the magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation. 24. In support of these principles reference can be made to the judgments of this Court in the cases of Union Public Service Commission v. S. Papaiah & Ors [(1997) 7 SCC 614], State of Orissa v. Mahima [(2003) 5 SCALE 566], Kishan Lal v. Dharmendra Bhanna & Anr. [(2009) 7 SCC 685], State of Maharashtra v. Sharat Chandra Vinayak Dongre [(1995) 1 SCC 42]. 25. We may also notice here that in the case of S. Papaia....

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....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. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the first information report, the informant would certainly be prejudiced because the first information report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the first information report lodged by him is clearly recognised by the provisions....

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....2009) 11 SCC 299] and Randhir Singh Rana v. State (Delhi Administration) [(1997) 1 SCC 361]), that a Magistrate cannot suo moto direct further investigation under Section 173(8) of the Code or direct re-investigation into a case on account of the bar contained in Section 167(2) of the Code, and that a Magistrate could direct filing of a charge sheet where the police submits a report that no case had been made out for sending up an accused for trial. The gist of the view taken in these cases is that a Magistrate cannot direct reinvestigation and cannot suo moto direct further investigation. 28. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct 'further investigation' and require the police to submit a further or a supplementary report. A three Judge Bench of this Court in the case of Bhagwant Singh (supra) has, in no uncertain terms, stated that principle, as afore-noticed. 29. The contrary view taken by the Court in the cases of Reeta Nag (supra) and Randhir Singh (supra) do not consider the view of this Court....

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....on its own. 6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case. 31. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore-noticed. Out of the stated options with the Court, the jurisdiction....

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....especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in the case of Disha v. State of Gujarat & Ors. [(2011) 13 SCC 337]. Vineet Narain & Ors. v. Union of India & Anr.[(1998) 1 SCC 226], Union of India & Ors. v. Sushil Kumar Modi & Ors. [1996 (6) SCC 500] and Rubabbuddin Sheikh v. State of Gujarat & Ors. [(2010) 2 SCC 200]. 35. The power to order/direct 'reinvestigation' or 'de novo' investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Mag....

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.... significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons. 38. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisio....

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....ase to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a ....

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....2006. The High Court granted no order either staying the further investigation by the agency, or the proceedings before the court of competent jurisdiction. The Delhi Police itself filed a status report before the High Court on 4th April, 2006 and the Special Cell of Delhi Police filed the charge sheet before the trial court on 6th May, 2006. After perusing the status report submitted to the High Court, the High Court vide its Order dated 9th May, 2006 had noticed that the circumstances of the case had cast a suspicion on the case of the prosecution, in regard to the manner in which the accused were apprehended and recoveries alleged to have been made from them of articles like explosives and detonators. After noticing this, the Court directed that without commenting on the merits of the matter, it was of the opinion that this was a case where inquiry by some independent agency is called for, and directed the CBI to undertake an inquiry into the matter and submit its report within four weeks. Obviously, it would have been brought to the notice of the High Court that the Delhi Police had filed a report before the trial court. The status report had also been placed before the High Co....

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....ation was completed, permitted the applicants to move bail applications as well. 45. The application for discharge filed by the accused persons on the strength of the closure report filed by the CBI was rejected by the trial court vide its order dated 13th February, 2009 on the ground that it had to examine the entire record including the report filed by the Delhi Police under Section 173(2) of the Code. The High Court, however, took the contrary view and stated that it was only the closure report filed by the CBI which could be taken into consideration, and then the matter shall proceed in accordance with law. In this manner, the writ petition was finally disposed of, directing the parties to appear before the trial court on 14th September, 2009. The High Court had relied upon the judgment of this Court in the case of K. Chandrasekhar v. State of Kerala and Others (supra) to say that once investigation stands transferred to CBI, it is that agency only which has to proceed with the investigation and not the Special Cell of the Delhi Police. 46. We are unable to accord approval to the view taken by the High Court. The judgment in the case of K. Chandrasekhar (supra), firstly does ....