DEVENDRA NATH SINGH VERSUS STATE OF BIHAR & ORS.
DEVENDRA NATH SINGH VERSUS STATE OF BIHAR & ORS.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1768 OF 2022
(ARISING OUT OF SLP (CRL.) NO. 9609 OF 2022
@ DIARY NO. 22814 OF 2019)
DEVENDRA NATH SINGH ..……. APPELLANT(S)
VERSUS
STATE OF BIHAR & ORS. ……. RESPONDENT(S)
JUDGMENT
DINESH MAHESHWARI, J.
Delay condoned. Leave granted.
2. The challenge in this appeal is to the order dated 10.09.2018, as
passed by the High Court of Judicature at Patna in Criminal
Miscellaneous No. 649 of 2016.
2.1. The said petition under Section 482 of the Code of Criminal
Procedure, 19731
was filed by respondent No. 3 of the present appeal,
against the order dated 21.06.2014, as passed by the ACJM, Barh,
District Patna2
in Barh Police Station Case No. 115 of 2012 whereby, the
learned Magistrate had taken cognizance of the offences under Sections
409, 467, 468 and 420 of the Indian Penal Code, 18603
on the allegations
1 ‘CrPC’, for short.
2 Hereinafter referred to as ‘the Magistrate’.
3 ‘IPC’, for short.
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against the respondent No. 3 of misappropriation of stocks worth Rs.
16,99,648/- from the godown of the Bihar State Food and Civil Supplies
Corporation4
during the years 2010-11 and 2011-12.
3. The main plank of the submissions before the High Court in the
aforesaid petition by the respondent No. 3 had been that he was only a
Class IV employee of the Corporation and that the ‘entire game was
played’ by the present appellant, who was holding the position of the
District Manager. In that regard, the contents of audit report forming part
of the First Information Report5
were extensively relied upon.
4. The High Court, after taking note of the submissions made on
behalf of the present respondent No. 3, expressed surprise that the then
District Manager of the Corporation (i.e., the present appellant), who was
ultimately responsible for the illegalities, was given a clean chit by the
informant, i.e., the Senior Dy. Collector-cum-District Manager (in-charge
of the godown). It was also observed that the present respondent No. 3, a
Class IV employee, could not have been posted at the godown; and that
he was made an accused in the case ‘as scapegoat to save the skin’ of
the present appellant.
4.1. Having said so, the High Court proceeded to direct the Magistrate
to give directions to the police to further investigate the case in terms of
Section 173(8) CrPC regarding the allegations against the appellant and
to seek the report within a period of three months. The Court, however,
4 Hereinafter referred to as ‘the Corporation’.
5 ‘FIR’, for short.
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expressed its disinclination to interfere with the impugned order taking
cognizance against the present respondent No. 3 and disposed of the
petition while giving liberty to the respondent No. 3 to raise all the points
at the time of framing the charge which, as per the directions of the High
Court, were to be decided by the learned Magistrate after taking into
consideration the material emerging in further investigation against the
appellant.
5. The impugned order dated 10.09.2018 could be usefully
reproduced, in extenso, as under: -
“This petition under Section 482 Cr. P. C. has been filed for
quashing the order dated 21.6.2014 passed by the A.C.J.M. Barh,
Patna in Barh P.S. case no. 115 of 2012 by which learned
Magistrate has taken cognizance for the offence under Sections
409,467, 468 and 420 of the I.P.C. against the petitioner.
Heard learned counsel for the petitioner and State.
Learned counsel for the petitioner has submitted that petitioner
was only a class IV employee in the Bihar State Food and Civil
Supply Corporation Ltd. for short ‘the Corporation”. The entire
game was played by D.N Singh who was District Manager which
has also come in the Audit Report which is part of the FIR and
annexed as Annexure-2. The informant who was Senior Dy.
Collector-cum-District Manager (Incharge) of the Godown has not
lodged any case against said D.N.Singh the then District Manager
who had played entire game in committing misappropriation. The
F.I.R. has been lodged only against the petitioner who was class
IV employee and was made In-charge of the Godown by D.N.
Singh against the Circular and Government policy, which had also
come in detail in Audit Report submitted by the Auditor. The police
submitted charge sheet against this petitioner on the basis of
aforesaid FIR and cognizance has been taken against the
petitioner on the basis of the charge sheet.
This Court is really surprised to find that the then District
Manager of the Corporation, who was ultimately responsible for all
such illegalities, had been given clean chit by the informant. He
was not made accused in the case. The petitioner being the IV
grade employee, was posted by the then District Manager, namely,
D.N. Singh, as Incharge Assistant Godown Manager although he
was not entitled to be posted as such. He has been made accused
3
in the case as scapegoat to save the skin of D.N.Singh, the then
District Manager of Godown.
Learned ACJM, Barh, Patna is directed to give direction to the
police to further reinvestigate the case in terms of provision of
Section 173(8) of the Cr. P.C. with regard to allegation against
D.N.Singh the then District Manager with regard to allegation of
misappropriation of money and appointing the petitioner who was
class IV employee as In-charge Assistant Godown Manager
against the circulars and directions of the Government. The
Magistrate will direct the police to complete the re-investigation
with regard to role of then District Manager Sri D. N.Singh in the
entire game of the misappropriation of the money as mentioned in
detail in the audit report in accordance with law and submit report
before him within a period of three months from the date of
passing of the order by the learned Magistrate.
This Court, at present, is not inclined to interfere with the
impugned order with regard to the petitioner by which cognizance
has been taken against him on the basis of charge sheet
submitted by the police.
This Cr. Misc. petition is, accordingly, disposed off. The
petitioner is given liberty to raise all the points, as raised in the
present application, at the time of framing of charge, which shall
be considered and disposed off by the learned Court below in
accordance with law after taking into consideration the materials
which will come during further investigation with regard to
allegation against D. N. Singh the then District Manager.”
6. The order aforesaid is questioned by the appellant in whose
relation the directions have been issued for further investigation, inter
alia, on the ground that investigation is the prerogative of the investigating
agency/officer and no mandate could be issued to the Magistrate so as to
usurp such powers to investigate. It is also submitted that the impugned
order has been directly in violation of the principles of natural justice
inasmuch as no opportunity of hearing was extended by the High Court to
the appellant.
6.1. While elaborating, learned counsel for the appellant has
contended that the High Court, while exercising its powers under Section
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482 CrPC, could not have issued a specific direction to the Magistrate to
direct the police to investigate the role of the appellant, who was neither
named in the FIR nor was charge-sheeted and was not even a party
before the High Court. With reference to the Constitution Bench decision
in the case of Dharam Pal and Ors. v. State of Haryana and Anr.:
(2014) 3 SCC 306 and the other decisions in Abhinandan Jha & Ors. v.
Dinesh Mishra: (1967) 3 SCR 668 and Vinubhai Haribhai Malaviya
and Ors. v. State of Gujarat and Anr.: (2019) 17 SCC 1, the learned
counsel has submitted that the principles remain settled by this Court that
as per the scheme of CrPC, formation of an opinion as to whether a
person is to be put on trial has been left to the officers in charge of a
police station; and this Court has further held that in a case where the
Magistrate is of the opinion that the final report submitted by the police is
unsatisfactory, he could exercise his powers under Section 156(3) CrPC
and direct the police to make a further investigation or straightaway take
cognizance under section 190(1)(c) CrPC, notwithstanding the contrary
opinion of the police. However, according to the learned counsel,
directions for exercising such power in a particular manner could not have
been issued by the High Court while dealing with the petition filed by the
respondent No. 3. The learned counsel has also referred to the decision
in Madan Mohan v. State of Rajasthan and Ors.: (2018) 12 SCC 30,
wherein this Court has observed that a superior Court could not issue
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directions to any subordinate Court commanding them to pass a
particular order on any application filed by a party.
6.2. Learned counsel for the appellant has also relied upon the
decision in Popular Muthiah v. State: (2006) 7 SCC 296 to submit that
while dealing with a similar issue where the High Court, in an appeal
against conviction under Section 302 IPC, had issued directions to the
investigating agency to investigate the appellant who had not been sent
up for trial, this Court held that the High Court could not have issued such
a direction in exercise of its inherent powers, as the investigation of an
offence was a statutory power of the police and it was for the State to
decide whether it wanted to proceed against an accused or not. It was
observed that the High Court could not issue directions to investigate the
case from a particular angle or by a particular agency and hence, it went
beyond its jurisdiction in directing the prosecution of the appellant.
Therein, the impugned judgment was set aside, and the matter was
remanded to the High Court for fresh consideration after hearing the
appellant.
6.3. In the second limb of submissions, learned counsel for the
appellant has contended that the High Court ought to have given an
opportunity of hearing to the appellant before issuing the impugned
directions. The learned counsel would argue that the test as to whether a
person is entitled to an opportunity of being heard in challenge to an order
passed by a Magistrate is not dependant on whether such person had a
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right to be heard by the Magistrate in the first instance; the entitlement to
hearing has to be assessed independently by considering the
consequences of the proceedings in which a hearing is sought; and a
hearing could be claimed where a substantial right of a person would be
affected. The learned counsel has referred to the decision in Divine
Retreat Centre v. State of Kerala and Ors.: (2008) 3 SCC 542 wherein,
while dealing with the issue whether the High Court could have passed a
judicial order directing an investigation against the appellant therein
without hearing it, this Court held that no judicial order could be passed
by any Court without providing a reasonable opportunity of being heard to
the person who was likely to be affected by such order while
distinguishing the decision in the case of Union of India and Anr. v. W.N.
Chadha: 1993 Supp (4) SCC 260 by observing that the dictum in the
said judgment would not apply where a challenge was to a judicial order
directing an inquiry or investigation against a person or institution. The
learned counsel has also relied upon a 3-Judge Bench decision of this
Court in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai
Mohanbhai Patel and Ors.: (2012) 10 SCC 517, wherein it was
observed that an accused or a person suspected to have committed a
crime has a right to be heard in a criminal revision preferred before the
High Court or Sessions Judge against an order of dismissal of a
complaint under Section 203 CrPC, as an order passed by the superior
Court in revision, overturning the order of dismissal of the complaint
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would, in effect, restore the complaint and hence, cause prejudice to the
accused.
6.3.1. It has been contended that in the absence of the appellant, the
High Court had no occasion to take note of the fact that he had already
been exonerated of all charges after detailed departmental proceedings
and hence, the directions for further investigation were wholly
unwarranted in this case.
6.4. Learned counsel for the appellant has also argued that the High
Court could not have directed for further investigation or reinvestigation in
this the matter in view of the dictum of this Court in Vinay Tyagi v. Irshad
Ali and Ors.: (2013) 5 SCC 762, wherein it was held that fresh/de novo
investigation ought to be directed sparingly and in exceptional
circumstances, like where the investigation already conducted is tainted
by malafides.
6.5. Learned counsel for the appellant would submit that the
Magistrate himself, while taking cognizance, could have proceeded
against the present appellant, if he had been satisfied that the materials
on record implicated the appellant to any extent but, when the Magistrate
opted not to proceed against the appellant, the High Court could not have
issued directions to further reinvestigate the matter qua the appellant,
though it is always open for a Court to proceed against a person not sent
up for trial at the stage of Section 319 CrPC, if the evidence is
forthcoming in that regard.
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7. Learned counsel for the respondent No. 3 has supported the
impugned order with the submissions that the appellant was a highranking officer and he appears to have influenced the other officers in the
internal inquiry so as to give him a clean chit. A copy of the audit report
dated 31.05.2012 forming the basis of the FIR in question has been
placed on record and has been exhaustively referred to during the course
of submissions.
7.1. The learned counsel has underscored the observations of this
Court in the case of Vinubhai Haribhai Malaviya (supra) that the ultimate
aim of investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually committed the crime
are booked and those who have not, are not arraigned to face trial. With
reference to these and other observations that such requirements pertain
to the spirit of Article 21 of the Constitution of India, learned counsel has
argued that the offences in question, relating to defalcation of foodgrains
which caused hardship to the economically weaker sections of the
society, need to be properly investigated not only to book the actual
culprits but also to check the recurrence of such a crime.
7.2. The learned counsel would argue that in the peculiar
circumstances of this case, when it was found that no proper investigation
was carried out against the appellant, who was the District Manager and
overall in-charge of the godowns, the High Court has rightly exercised its
inherent powers to issue the directions so as to ensure further and proper
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investigation in the matter. While relying on the decision of this Court in
the case of State of Punjab v. Central Bureau of Investigation and
Ors.: (2011) 9 SCC 182, the learned counsel has contended that under
Section 482 CrPC, the High Court has the power to order further
investigation as also reinvestigation; and that no illegality or jurisdictional
error could be imputed on the order impugned. The learned counsel has
further submitted that when the High Court has the power to direct further
investigation or reinvestigation directly, it also could do so by issuing
directions to the learned Magistrate, who is in seisin of the matter.
7.3. The learned counsel has further contended that the Magistrate,
before whom a final report is submitted, has the power and authority to
differ with the report and to order further investigation. However, the
existence of this power with the Magistrate does not ipso facto imply that
the High Court, even in exercise of its inherent jurisdiction, cannot direct
further investigation in an appropriate case, when it comes to its notice
that the investigation in a case has not been conducted properly.
7.4. It has further been argued that although the inherent powers
cannot be used by the High Court in a routine manner and can be
exercised only in extreme cases but in the present case, when offence in
question has the consequences for the society at large, the High Court
cannot be faulted in exercising its inherent powers, which are,
nevertheless, exercised ex debito justitiae. The learned counsel has
particularly referred to paragraph 30 of the aforesaid decision in Popular
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Muthiah; and has further relied upon the case of Neetu Kumar Nagaich
v. State of Rajasthan and Ors.: (2020) 16 SCC 777 wherein this Court
has held that when a constitutional Court is satisfied that the investigation
has not been conducted in an objective manner or conducted in a manner
as to help someone escaping the law, it could direct de novo investigation
so as to prevent miscarriage of criminal justice.
7.5. As regards the contention that no notice was issued to the
appellant before passing of the impugned order, the learned counsel has
argued, with reference to the decision of this Court in W.N. Chadha
(supra) that, at the stage of investigation, no such notice is required to be
issued to the accused. Learned counsel has also referred to various other
decisions and has submitted that the said decision in W.N. Chadha has
been consistently followed by this Court. The learned counsel would also
submit that though the referred judgments were rendered in the
applications filed by the victim and not by the co-accused but the
underlying principle remains the same that an accused is not required to
be heard at the stage of investigation. Learned counsel would also submit
that if upon receiving the final report, the learned Magistrate could have
ordered further investigation without prior notice to the accused, so could
the High Court have, in exercise of its inherent jurisdiction, which is, if
anything, much wider.
7.6. In the last leg of contentions, learned counsel for respondent No.
1 has also submitted that before granting of interim stay by this Court, the
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requisite investigation had commenced and was transferred to the
Economic Offences Unit, where the allegations against the appellant have
been found to be prima facie correct but further action was deferred in
view of the stay order of this Court. However, the investigation hitherto
carried out makes it clear that the doubts expressed by the High Court
have been found to be completely justified. Hence, the learned counsel
would submit in the alternative that, in any case, the investigation already
carried out deserves to be protected so that the real culprits like the
appellant do not escape the process of law.
8. Apart from the submissions aforesaid, it is noteworthy that though,
on behalf of the respondent No. 2 - Corporation, the reply submissions
are essentially to the effect that in the departmental proceedings, charges
were not proved against the present appellant but then, in the counter
affidavit on behalf of the respondent No. 1 - State, detailed submissions
have been made, essentially refuting the case of the appellant.
8.1. It has, inter alia, been submitted on behalf of the respondent-State
that apart from the present matter, being Barh P.S. Case No. 115 of 2012,
there had also been another matter, being Bikram P.S. Case No. 129 of
2012 against the respondent No. 3 as also the present appellant; and
after the order passed by the High Court, the investigation in the present
case was also carried out by the Economic Offences Unit, Bihar along
with the aforesaid Bikram P.S. Case No. 129 of 2012. While indicating
prima facie complicity of the appellant, it has also been pointed out that in
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the said Bikram P.S. Case No. 129 of 2012, instituted for offences under
Sections 409, 420, 468, 471 and 474 IPC, after finding prima facie case
against the present appellant, prosecution sanction has also been
obtained. That case relates to misappropriation of the goods worth Rs.
7.69 crores. It is submitted that in the present case, prosecution sanction
has not been obtained for the appellant having been given interim
protection by this Court. A few passages of the counter affidavit filed on
behalf of the State could be usefully reproduced as under: -
“13. In fact, the successor in office District Manager had also
observed for holding a departmental proceeding against this
petitioner and the petitioner was found to have given change of the
go downs to Pramod Ranjan Kumar Sinha even without of the
permission of the Headquarter of the Corporation.
14. Even the petitioner was found to be silent with respect to the
affairs of the go down change whereof was handed over by this
petitioner a Class Iv employee namely Pramod Ranjan Sinha
inasmuch as on 11.02.2010 on truck bearing Registration No. BR
1G 1051 carrying 104.61.650 Quintals of Wheat from Mokama
Depot left Barh Go-down, however, on 12.02.2010 this truck was
apprehended and it was found to be black marketing, but, this
petitioner despite Knowledge did not take any steps against the
employee in charge of the go down by removing him from the post
and only value of the wheat was recovered from the salary of the
employee. In fact, the district office has repeateadly informed
about the irregularities at the procurement centers, however, the
petitioner did not take any steps, nor did he remove the in change
from the procurement center / go down.
15. In fact it has also been reported that despite various
irregularities and Knowledge of such irregularities the petitioner did
not take any pain to atop the some and take corrective measures.
16. It is stated that being a District Manager it was the
responsibility and prime duty of this petitioner to get the lifting of
food grains, store the same and ensure proper distribution from
the go downs, However, the petitioner failed to do so leading to
such huge misappropriation. In fact, as per the report of the SFC,
it was found that there is no proof that this petitioner carried out
inspections / visits to the Go downs.
13
17. During investigation, when statement of the witnesses were
recorded, namely, Radhakant Paswan, Ramashankar Prasad and
Brajkishore Srivastave, the then Assistants, they deposed that the
petitioner was responsible and that he did not discharge his duties
properly.
18. In fact, besides the present criminal case the petitioner has
also been arraigned as a non-FIR accused in connection with
Bikram Police Station Case No. 129 of 2012 dated 12.06.2012
instituted under Sections 409/420/468/471/474 of IPC which is
also a case of identical nature. In fact, in this case the prosecution
sanction has also been received from the Corporation against this
petitioner on 13.01.2012.
19. It is stated that in the present case also there is material
against him as stated above, however, prosecution sanction has
not been obtained as the petitioner has been granted interim
protection.
20. That in the above background, the statement made in Para 1
is opposed and contested and it is prayed that the order impugned
may be upheld.”
9. We have given anxious consideration to the rival submissions and
have scanned through the material placed on record.
10. As could be readily noticed, the present case carries the
peculiarities of its own inasmuch as only the respondent No. 3 was
named in the FIR and was charge-sheeted on the allegations of
defalcation of foodgrains in the godown of Corporation. No investigation
whatsoever was carried out in relation to the role of the appellant in the
matter. When the respondent No. 3 attempted to question the order
passed by the learned Magistrate taking cognizance of the offences
under Sections 409, 467, 468 and 420 IPC, the High Court, though,
remained disinclined to interfere with the order so passed by the learned
Magistrate but, on the other hand, expressed surprise that the appellant,
the then District Manager, was given a clean chit by the informant,
14
another officer of the Corporation; and only the respondent No. 3, a Class
IV employee, was named as an accused. The High Court even
proceeded to observe that the respondent No. 3 had been made accused
in the case ‘as scapegoat to save the skin’ of the appellant. Therefore, the
High Court directed the learned Magistrate to give directions for further
investigation in terms of Section 173(8) CrPC with regard to the
allegations against the appellant, of misappropriation of money and of
appointing the respondent No. 3 as in-charge Assistant Godown Manager
against the circulars and directions of the Government. The High Court
further observed that the directions shall be to complete the investigation
with regard to the role of the appellant in ‘the entire game of the
misappropriation of the money as mentioned in detail in the audit report’.
Indisputably, the order impugned came to be passed by the High Court
without the appellant being a party before it and in the exercise of its
inherent powers under Section 482 CrPC.
10.1. Thus, and in view of the submissions made before us, two
principal questions arise for determination in this appeal: one, as to
whether the High Court, in the exercise of its inherent powers under
Section 482 CrPC, was justified in issuing directions to the Magistrate to
order further investigation though, the Magistrate before whom the
charge-sheet had been filed and who had taken cognizance, did not
adopt any such process; and second, as to whether the High Court was
15
justified in passing the order impugned without affording an opportunity of
hearing to the appellant?
11. While dealing with the first question as to the High Court’s
exercise of its inherent powers under Section 482 CrPC in the manner the
same have been exercised in this matter, we may usefully refer to the
relevant provisions of law, which would be of bearing in the forthcoming
discussion.
11.1. Section 482 CrPC, saving the inherent powers of the High Court,
whereunder and whereby the order impugned has been passed in this
matter, reads as under: -
“482. Saving of inherent power of High Court.- Nothing in this Code
shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under
this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice.”
11.2. It is indisputable that as per the scheme of CrPC, formation of an
opinion as to whether the person is to be put on trial has been left to the
officer in-charge of a police station; and where the Magistrate is of the
opinion that the result of investigation in the form of report filed before him
is not satisfactory, he may also order investigation in terms of Sections
156(3) and/or 173(8) CrPC or he may straightway take cognizance under
Section 190(1)(c).
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11.2.1. Section 156, the relevant parts of Section 173 and Section 190
CrPC read as under: -
“156. Police officer's power to investigate cognizable case.- (1) Any
officer in charge of a police station may, without the order of a Magistrate,
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.
(2) No proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such officer
was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an
investigation as above-mentioned.”
*** *** ***
“173. Report of police officer on completion of investigation.- (1)
Every investigation under this Chapter shall be completed without
unnecessary delay.
*** *** ***
(2) (i) As soon as it 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, stating –
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
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(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170;
(h) whether the report of medical examination of the
woman has been attached where investigation
relates to an offence under Sections 376, 376A,
376AB, 376B, 376C, 376D, 376DA, 376DB or section
376E of the Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by him,
to the person, if any, by whom the information relating to the
commission of the offence was first given.
*** *** ***
(8) 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 subsections (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).”
*** *** ***
“190. Cognizance of offences by Magistrates.- (1) Subject to the
provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence18
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a
police officer, or upon his own knowledge, that such offence
has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the
second class to take cognizance under sub-section (1) of such offences as
are within his competence to inquire into or try.”
11.3. It is hardly a matter of dispute that the Code of Criminal Procedure
contemplates various stages and vests various powers in the Magistrate
to proceed against the persons not named in the charge-sheet like the
provision contained in Section 190(1)(c). These aspects, essentially of
ordinary operation of the general scheme of the Code of Criminal
Procedure, as also underscored in the Constitution Bench decision of this
Court in Dharam Pal (supra) and in another decision in Abhinandan Jha
(supra) do not require much elaboration for the purpose of the present
case.
12. As noticed, the present case carries its unique features that the
learned Magistrate had not exercised any such powers in terms of
Section 156(3) or Section 173(8) or Section 190(1)(c) CrPC but, the High
Court has, while dealing with a petition under Section 482 CrPC, directed
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him to direct the police to investigate further, particularly as regards the
role of the appellant; and such exercise of power by the High Court is in
question. In this regard, we may usefully refer to the relevant of the
decisions cited by the learned counsel for the parties.
12.1. In the case of Vinay Tyagi (supra), this Court dealt with the wide
range of issues relating to the powers of the High Court under Section
482 CrPC as also the powers of the Magistrate under Section 173 CrPC;
and different vistas of the processes of conducting ‘fresh investigation’
and/or ‘further investigation’. This Court observed and held as under: -
“43. At this stage, we may also state another well-settled canon
of the criminal jurisprudence that the superior courts have the
jurisdiction under Section 482 of the Code or even Article 226 of
the Constitution of India to direct “further investigation”, “fresh” or
“de novo” and even “reinvestigation”. “Fresh”, “de novo” and
“reinvestigation” are synonymous expressions and their result in
law would be the same. The superior courts are even vested with
the power of transferring investigation from one agency to another,
provided the ends of justice so demand such action. Of course, it
is also a settled principle that this power has to be exercised by
the superior courts very sparingly and with great circumspection.
44. We have deliberated at some length on the issue that the
powers of the High Court under Section 482 of the Code do not
control or limit, directly or impliedly, the width of the power of the
Magistrate under Section 228 of the Code. Wherever a chargesheet has been submitted to the court, even this Court ordinarily
would not reopen the investigation, 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 Disha v. State of Gujarat6
, Vineet Narain v. Union of
6 (2011) 13 SCC 337: (2012) 2 SCC (Cri) 628.
20
India7
, Union of India v. Sushil Kumar Modi8 and Rubabbuddin
Sheikh v. State of Gujarat9
.
45. 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
Magistrate who, in his wisdom, may or may not accept such a
report. For valid reasons, the court may, by declining to accept
such a report, direct “further investigation”, or even on the basis of
the record of the case and the documents annexed thereto,
summon the accused.
*** *** ***
48. What ultimately is the aim or 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.
49. 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 provisions of Section
173(8) of the Code to conduct “further investigation” or file
supplementary report with the leave of the court, the investigating
agencies have not only understood but also adopted it as a legal
practice to seek permission of the courts to conduct “further
investigation” and file “supplementary report” with the leave of the
court. The courts, in some of the decisions, have also taken a
similar view. The requirement of seeking prior leave of the court to
conduct “further investigation” and/or to file a “supplementary
report” will have to be read into, and is a necessary implication of
the provisions of Section 173(8) of the Code. The doctrine of
7 (1998) 1 SCC 226: 1998 SCC (Cri) 307.
8 (1996) 6 SCC 500.
9 (2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006.
21
contemporanea expositio will fully come to the aid of such
interpretation as the matters which are understood and
implemented for a long time, and such practice that is supported
by law should be accepted as part of the interpretative process.”
(emphasis supplied)
12.2. In the case of State of Punjab v. CBI (supra), this Court had the
occasion to deal with a petition challenging the High Court’s directions for
entrusting investigation relating to multiple FIRs to CBI, where the FIRs
had their genesis in the allegations of rape by the respondent No. 3
against her husband and several other persons. While dismissing the
petition and declining leave to appeal under Article 136 of the Constitution
of India, this Court exposited on the magnitude of power of the High Court
under Section 482 CrPC for securing the ends of justice in the following
passages: -
“22. Section 482 CrPC, however, states that nothing in CrPC
shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as is necessary to give effect to any
order under CrPC or to prevent the abuse of the process of any
court or otherwise to secure the ends of justice. Thus, the
provisions of CrPC do not limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give
effect to any order of the court or to prevent the abuse of any
process of the court or otherwise to secure the ends of justice. The
language of sub-section (8) of Section 173 CrPC, therefore,
cannot limit or affect the inherent powers of the High Court to pass
an order under Section 482 CrPC for fresh investigation or
reinvestigation if the High Court is satisfied that such fresh
investigation or reinvestigation is necessary to secure the ends of
justice.
23. We find support for this conclusion in the following
observations of this Court in Mithabhai Pashabhai Patel v. State of
Gujarat10 cited by Mr Dhavan:
“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
10 (2009) 6 SCC 332: (2009) 2 SCC (Cri) 1047.
22
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.
Udhayakumar11 opined as under:
‘7. At this juncture it would be necessary to
take note of Section 173 of the Code. From
a plain reading of the above section it is
evident that even after completion of
investigation under sub-section (2) of
Section 173 of the Code, the police has
right to further investigate under subsection (8), but not fresh investigation or
reinvestigation.’
A distinction, therefore, exists between a reinvestigation and
further investigation.
***
15. The investigating agency and/or a court exercise
their jurisdiction conferred on them only in terms of the
provisions of the Code. The courts subordinate to the
High Court even do not have any inherent power under
Section 482 of the Code of Criminal Procedure or
otherwise. The precognizance jurisdiction to remand
vested in the subordinate courts, therefore, must be
exercised within the four corners of the Code.”
24. It is clear from the aforesaid observations of this Court that the
investigating agency or the court subordinate to the High Court
exercising powers under CrPC have to exercise the powers within
the four corners of CrPC and this would mean that the
investigating agency may undertake further investigation and the
subordinate court may direct further investigation into the case
where charge-sheet has been filed under sub-section (2) of
Section 173 CrPC and such further investigation will not mean
fresh investigation or reinvestigation. But these limitations in subsection (8) of Section 173 CrPC in a case where charge-sheet has
been filed will not apply to the exercise of inherent powers of the
High Court under Section 482 CrPC for securing the ends of
justice.”
(emphasis supplied)
12.3. The decision of this Court in the case of Popular Muthiah (supra)
has been referred to by the learned counsel for the contesting parties in
support of their respective contentions. Therein, the High Court, while
11 (2008) 5 SCC 413: (2008) 2 SCC (Cri) 631.
23
exercising its appellate jurisdiction against the judgment and order
convicting and sentencing an accused of the offence under Section 302
IPC, opined that no case was made out to interfere with judgment of the
Trial Court in regard to the conviction of the charged accused but then,
there was evidence at every stage implicating the other persons too in the
crime; and the action on the part of the investigating officers leaving them
from the array of accused was not simply a bona fide error. The High
Court felt that the Sessions Judge ought to have exercised his jurisdiction
under Section 319 CrPC and while making adverse comments as regards
conduct of the case, the High Court directed that the prosecution of such
other accused persons be launched. The High Court further directed that
the State shall take the advice of the Public Prosecutor as to under what
Section they were to be charged and tried; and CB, CID shall take over
the matter, reinvestigate, and prosecute such other accused persons. The
question before this Court was about legality and propriety of the
directions so issued by the High Court while exercising appellate
jurisdiction and without extending an opportunity of hearing to the persons
proposed to be prosecuted. In this backdrop, this Court exposited on the
amplitude as also on the limitation of such powers of the High Court and
remitted the matter to the High Court, for consideration afresh and after
notice to the parties concerned, while observing and holding as under: -
“29. The High Court while, thus, exercising its revisional or
appellate power, may exercise its inherent powers. Inherent power
of the High Court can be exercised, it is trite, both in relation to
substantive as also procedural matters.
24
30. In respect of the incidental or supplemental power, evidently,
the High Court can exercise its inherent jurisdiction irrespective of
the nature of the proceedings. It is not trammelled by procedural
restrictions in that:
(i) Power can be exercised suo motu in the interest of justice. If
such a power is not conceded, it may even lead to injustice to an
accused.
(ii) Such a power can be exercised concurrently with the
appellate or revisional jurisdiction and no formal application is
required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under
Section 482 of the Code of Criminal Procedure is not unlimited. It
can inter alia be exercised where the Code is silent, where the
power of the court is not treated as exhaustive, or there is a
specific provision in the Code; or the statute does not fall within
the purview of the Code because it involves application of a
special law. It acts ex debito justitiae. It can, thus, do real and
substantial justice for which alone it exists.
*** *** ***
46. The High Court, however, was not correct in issuing a
direction to the State to take advice of the State Public Prosecutor
as to under what section the appellant has to be charged and tried
or directing CB, CID to take up the matter and reinvestigate and
prosecute the appellant herein. Such a power does not come
within the purview of Section 482 of the Code of Criminal
Procedure. Investigation of an offence is a statutory power of the
police. The State in its discretion may get the investigation done
by any agency unless there exists an extraordinary situation.
*** *** ***
48. The High Court while passing the impugned judgment did not
bear the said principles in mind. It went beyond its jurisdiction in
directing the prosecution of the appellant before us. In a case of
this nature, where a superior court exercises its inherent
jurisdiction, it indisputably should remind itself about the inherent
danger in taking away the right of an accused. The High Court
should have been circumspect in exercising the said jurisdiction.
When a power under sub-section (8) of Section 173 of the Code of
Criminal Procedure is exercised, the court ordinarily should not
interfere with the statutory power of the investigating agency. It
cannot issue directions to investigate the case from a particular
angle or by a particular agency. In the instant case, not only the
High Court had asked reinvestigation into the matter, but also
directed examination of the witnesses who had not been cited as
prosecution witnesses. It furthermore directed prosecution of the
appellant which was unwarranted in law.
*** *** ***
56. So far as inherent power of the High Court is concerned,
indisputably the same is required to be exercised sparingly. The
25
High Court may or may not in a given situation, particularly having
regard to lapse of time, exercise its discretionary jurisdiction. For
the said purpose, it was not only required to apply its mind to the
materials on record but was also required to consider as to
whether any purpose would be served thereby.
57. Having regard to the peculiar facts and circumstances of this
case, we are of the opinion that before issuing the impugned
directions, the High Court should have given an opportunity of
hearing to the appellants herein.
58. For the reasons aforementioned, the impugned judgment is
set aside and the matter is remitted to the High Court for
consideration of the matter afresh. The High Court shall issue
notice to the appellants herein as also the State and pass
appropriate orders as it may deem fit and proper and in
accordance with law. The appeals are allowed with the
aforementioned observations and directions.”
(emphasis supplied)
12.4. The 3-Judge Bench decision of this Court in the case of Vinubhai
Haribhai Malaviya (supra) has also been referred to by the learned
counsel for the parties in support of their respective contentions. Therein,
this Court did not approve the impugned judgment of the High Court
insofar it was stated that post-cognizance, the Magistrate was denuded of
power to order further investigation. However, this Court took note of the
basic facts of the case that the FIR dated 22.12.2009 was concerned with
two criminal acts, namely, preparing of fake and bogus Satakhat and
power of attorney in respect of the agricultural land in question, and
demanding of an amount of Rs. 2.5 crores as an attempt to extort money
by the accused persons. It was also noticed that the facts alleged in the
application for further investigation were pertaining to the revenue entries
made in favour of R and S, and alleging as to how their claim over the
same land was false and bogus. This Court found that the facts alleged in
26
the application for further investigation were in the nature of a cross-FIR,
which had never been registered. A communication of the Commissioner
of Revenue, Gujarat dated 15.03.2011 to the Collector, Surat was also
referred to in this regard. In an overall comprehension of the matter, and
in view of the said communication of the Commissioner of Revenue,
Gujarat dated 15.03.2011, this Court held that no case for further
investigation into the facts alleged in the FIR dated 22.12.2009 was made
out. However, having regard to what was stated by the Commissioner,
this Court directed the police to register an FIR qua those facts, to be
inquired into by a senior police officer; and this Court issued further
directions for appropriate steps on the basis of the police report. In the
course of this decision, this Court exposited on the theory and philosophy
related with the aim of investigation and inquiry as also on the wide range
of powers of the police and the Magistrate as regards investigation and
further investigation, inter alia, in the following passages: -
“18. It is clear that a fair trial must kick off only after an
investigation is itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually committed a
crime are correctly booked, and those who have not are not
arraigned to stand trial. That this is the minimal procedural
requirement that is the fundamental requirement of Article 21 of
the Constitution of India cannot be doubted. It is the hovering
omnipresence of Article 21 over CrPC that must needs inform the
interpretation of all the provisions of CrPC, so as to ensure that
Article 21 is followed both in letter and in spirit.
*** *** ***
25. It is thus clear that the Magistrate's power under Section
156(3) CrPC is very wide, for it is this judicial authority that must
be satisfied that a proper investigation by the police takes place.
To ensure that a “proper investigation” takes place in the sense of
a fair and just investigation by the police—which such Magistrate
27
is to supervise—Article 21 of the Constitution of India mandates
that all powers necessary, which may also be incidental or implied,
are available to the Magistrate to ensure a proper investigation
which, without doubt, would include the ordering of further
investigation after a report is received by him under Section
173(2); and which power would continue to enure in such
Magistrate at all stages of the criminal proceedings until the trial
itself commences. Indeed, even textually, the “investigation”
referred to in Section 156(1) CrPC would, as per the definition of
“investigation” under Section 2(h), include all proceedings for
collection of evidence conducted by a police officer; which would
undoubtedly include proceedings by way of further investigation
under Section 173(8) CrPC.
*** *** ***
42. ……To say that a fair and just investigation would lead to the
conclusion that the police retain the power, subject, of course, to
the Magistrate's nod under Section 173(8) to further investigate an
offence till charges are framed, but that the supervisory jurisdiction
of the Magistrate suddenly ceases midway through the pre-trial
proceedings, would amount to a travesty of justice, as certain
cases may cry out for further investigation so that an innocent
person is not wrongly arraigned as an accused or that a prima
facie guilty person is not so left out. There is no warrant for such a
narrow and restrictive view of the powers of the Magistrate,
particularly when such powers are traceable to Section 156(3)
read with Section 156(1), Section 2(h) and Section 173(8) CrPC,
as has been noticed hereinabove, and would be available at all
stages of the progress of a criminal case before the trial actually
commences. It would also be in the interest of justice that this
power be exercised suo motu by the Magistrate himself,
depending on the facts of each case. Whether further investigation
should or should not be ordered is within the discretion of the
learned Magistrate who will exercise such discretion on the facts
of each case and in accordance with law. If, for example, fresh
facts come to light which would lead to inculpating or exculpating
certain persons, arriving at the truth and doing substantial justice
in a criminal case are more important than avoiding further delay
being caused in concluding the criminal proceeding…….”
12.5. The case of Divine Retreat Centre (supra) has had the peculiarity
of its own. Therein, the Criminal Case bearing No. 381 of 2005 had been
registered at Koratty Police Station on the allegations made by a female
remand prisoner that while taking shelter in the appellant-Centre, she was
subjected to molestation and exploitation and she became pregnant; and
thereafter, when she came out of the Centre to attend her sister’s
28
marriage, she was implicated in a false theft case and lodged in jail.
Parallel to these proceedings, an anonymous petition as also other
petitions were received in the High Court, which were registered as a suo
motu criminal case. In that case, the High Court, while exercising powers
under Section 482 CrPC, directed that the said Criminal Case No. 381 of
2005 be taken away from the investigating officer and be entrusted to the
Special Investigating Team (‘SIT’). The High Court also directed the said
SIT to investigate/inquire into other allegations levelled in the anonymous
petition filed against the appellant-Centre. However, this Court did not
approve the order so passed by the High Court and in that context, while
observing that no unlimited and arbitrary jurisdiction was conferred on the
High Court under Section 482 CrPC, explained the circumstances under
which the inherent jurisdiction may be exercised as also the
responsibilities of the investigating officers, inter alia, in the following
words: -
“27. In our view, there is nothing like unlimited arbitrary jurisdiction
conferred on the High Court under Section 482 of the Code. The power
has to be exercised sparingly, carefully and with caution only where such
exercise is justified by the tests laid down in the section itself. It is well
settled that Section 482 does not confer any new power on the High Court
but only saves the inherent power which the Court possessed before the
enactment of the Code. There are three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect to an order
29
under the Code, ( ii ) to prevent abuse of the process of court, and ( iii) to
otherwise secure the ends of justice.
*** *** ***
39. The sum and substance of the above deliberation and analysis of the
law cited leads us to an irresistible conclusion that the investigation of an
offence is the field exclusively reserved for the police officers whose
powers in that field are unfettered so long as the power to investigate into
the cognizable offences is legitimately exercised in strict compliance with
the provisions under Chapter XII of the Code. However, we may hasten to
add that unfettered discretion does not mean any unaccountable or
unlimited discretion and act according to one's own choice. The power to
investigate must be exercised strictly on the condition of which that power
is granted by the Code itself.
40. In our view, the High Court in exercise of its inherent jurisdiction
cannot change the investigating officer in the midstream and appoint any
agency of its own choice to investigate into a crime on whatsoever basis
and more particularly on the basis of complaints or anonymous petitions
addressed to a named Judge. Such communications cannot be converted
into suo motu proceedings for setting the law in motion. Neither are the
accused nor the complainant or informant entitled to choose their own
investigating agency to investigate a crime in which they may be
interested.
30
41. It is altogether a different matter that the High Court in exercise of its
power under Article 226 of the Constitution of India can always issue
appropriate directions at the instance of an aggrieved person if the High
Court is convinced that the power of investigation has been exercised by
an investigating officer mala fide. That power is to be exercised in the
rarest of the rare case where a clear case of abuse of power and noncompliance with the provisions falling under Chapter XII of the Code is
clearly made out requiring the interference of the High Court. But even in
such cases, the High Court cannot direct the police as to how the
investigation is to be conducted but can always insist for the observance
of process as provided for in the Code.”
(emphasis supplied)
12.6. In the case of Madan Mohan (supra), this Court, of course,
reiterated the settled principles that no superior Court could issue a
direction/mandamus to any subordinate Court commanding them to pass
a particular order but, the questioned directions had been as regards
dealing with a bail application, which were not approved by this Court
while observing, inter alia, as under: -
“15. In our considered opinion, the High Court had no jurisdiction to direct
the Sessions Judge to “allow” the application for grant of bail. Indeed,
once such direction had been issued by the High Court then what was left
for the Sessions Judge to decide except to follow the directions of the High
Court and grant bail to Respondents 2 and 3. In other words, in
compliance to the mandatory directions issued by the High Court, the
31
Sessions Judge had no jurisdiction to reject the bail application but to
allow it.
16. No superior court in hierarchical jurisdiction can issue such
direction/mandamus to any subordinate court commanding them to pass a
particular order on any application filed by any party. The judicial
independence of every court in passing the orders in cases is well settled.
It cannot be interfered with by any court including superior court.”
12.7. In the case of Neetu Kumar Nagaich (supra), this Court issued
directions for de novo investigation in regard to the unnatural death of a
law student. We need not elaborate on the said decision for the fact that
such directions were issued under the writ jurisdiction of this Court.
13. For what has been noticed hereinbefore, we could reasonably cull
out the principles for application to the present case as follows:
(a) The scheme of the Code of Criminal Procedure, 1973 is to ensure
a fair trial and that would commence only after a fair and just
investigation. The ultimate aim of every investigation and inquiry, whether
by the police or by the Magistrate, is to ensure that the actual perpetrators
of the crime are correctly booked and the innocents are not arraigned to
stand trial.
(b) The powers of the Magistrate to ensure proper investigation in
terms of Section 156 CrPC have been recognised, which, in turn, include
the power to order further investigation in terms of Section 173(8) CrPC
after receiving the report of investigation. Whether further investigation
32
should or should not be ordered is within the discretion of the Magistrate,
which is to be exercised on the facts of each case and in accordance with
law.
(c) Even when the basic power to direct further investigation in a case
where a charge-sheet has been filed is with the Magistrate, and is to be
exercised subject to the limitations of Section 173(8) CrPC, in an
appropriate case, where the High Court feels that the investigation is not
in the proper direction and to do complete justice where the facts of the
case so demand, the inherent powers under Section 482 CrPC could be
exercised to direct further investigation or even reinvestigation. The
provisions of Section 173(8) CrPC do not limit or affect such powers of
the High Court to pass an order under Section 482 CrPC for further
investigation or reinvestigation, if the High Court is satisfied that such a
course is necessary to secure the ends of justice.
(d) Even when the wide powers of the High Court in terms of Section
482 CrPC are recognised for ordering further investigation or
reinvestigation, such powers are to be exercised sparingly, with
circumspection, and in exceptional cases.
(e) The powers under Section 482 CrPC are not unlimited or
untrammelled and are essentially for the purpose of real and substantial
justice. While exercising such powers, the High Court cannot issue
directions so as to be impinging upon the power and jurisdiction of other
authorities. For example, the High Court cannot issue directions to the
33
State to take advice of the State Public Prosecutor as to under what
provision of law a person is to be charged and tried when ordering further
investigation or reinvestigation; and it cannot issue directions to
investigate the case only from a particular angle. In exercise of such
inherent powers in extraordinary circumstances, the High Court cannot
specifically direct that as a result of further investigation or reinvestigation,
a particular person has to be prosecuted.
14. Applying the principles aforesaid to the facts of the present case,
what we find is that, in relation to the allegations of defalcation of goods
and misappropriation of stocks from the godown of the Corporation, the
person lodging the FIR with reference to the audit report, i.e., the Senior
Dy. Collector-cum-District Manager, made imputations only against the
respondent No. 3, who was a class IV employee of the Corporation but
was purportedly posted as an in-charge Assistant Godown Manager by
the appellant, who was, at the relevant time, holding the position of the
District Manager. Though several features of the actions and omissions at
the relevant time have been mentioned in the audit report, we do not
propose to dilate on the same. Suffice it to observe for the present
purpose that when all the relevant aspects were duly projected before the
High Court in the petition filed by the respondent No. 3, the High Court
could not have simply ignored the same only for the reasons that the
informant omitted to state them while lodging the FIR, and/or the
investigating officer overlooked them while submitting the result of
34
investigation, and/or the learned Magistrate did not pay requisite attention
to them while taking cognizance.
14.1. In the given set of facts and circumstances, we are satisfied that
the present one had been such a case of exceptional and special features
where the High Court was justified in ordering further investigation,
particularly qua the role of the appellant. Thus, the principal part of the
order impugned, directing further investigation, in our view, calls for no
interference12
.
15. However, there are certain other aspects and features of the order
impugned which are difficult to be appreciated and approved. The High
Court has chosen to use such harsh and severe expressions in the
impugned order which carry all the potential of causing prejudice to the
appellant and even to distract a fair and dispassionate investigation. As
noticed, the High Court has made its comments that the ‘entire game was
played’ by the appellant who was holding the position of District Manager.
The High Court has even stated that the appellant was ‘ultimately
responsible for all such irregularities’. The High Court has gone to the
extent of observing that the respondent No. 3 was made an accused in
the case ‘as scapegoat to save the skin’ of the appellant. These and other
akin observations in the order impugned lead to the position as if the High
Court has already concluded on the result of investigation against the
12 It could be noticed that in the impugned order dated 10.09.2018, the High Court has
employed three different expressions as to the expected course of action where the Magistrate
has been directed to ‘give direction to the police to further reinvestigate’ and to ‘direct the police
to complete the re-investigation’ as also to consider ‘the materials which will come during further
investigation’. However, it is apparent that on the substance of the matter, the directions are to
ensure ‘further investigation’ in the matter, particularly with regard to the role of the appellant.
35
appellant. It is entirely a different matter to order further investigation on
being prima facie satisfied about the requirement to do so in view of
exceptional circumstances pertaining to a given case but, while doing so
in exercise of inherent powers, the High Court has not been justified in
making such observations and remarks which are likely to operate over
and above the investigation and may cause prejudice to the appellant. As
noticed, the principle remains settled that the High Court cannot issue
directions to investigate the case from a particular angle.
16. Thus, we are of the view that in the given set of facts and
circumstances, though the High Court has rightly exercised its powers
under Section 482 CrPC for directing further investigation but, has not
been justified in making such observations, comments, and remarks,
which leave little scope for an independent investigation and which carry
all the potential to cause prejudice to the appellant. The first question in
this appeal is answered accordingly.
17. Adverting to the other question, i.e., as to whether the High Court
was justified in passing the order impugned without affording an
opportunity of hearing to the appellant, we may refer to some of the
relevant decisions cited in this regard.
17.1. The case of Manharibhai Muljibhai Kakadia (supra) had been
concerning the exercise of the powers of revision by the High Court after
dismissal of a complaint under Section 203 CrPC. This Court pointed out
that in such a revision petition, the accused/suspect arraigned in the
36
complaint gets the right of hearing before the Revisional Court, as is
expressly provided in Section 401(2) CrPC. This Court, however, made it
clear that if the complaint is restored for fresh consideration of the
Magistrate, the persons who are alleged to have committed the crime
shall have no right to participate in the proceedings nor would they be
entitled to any hearing until consideration of the matter by the Magistrate
for issuance of process. This Court said, inter alia, as under: -
“53. ….We hold, as it must be, that in a revision petition preferred
by the complainant before the High Court or the Sessions Judge
challenging an order of the Magistrate dismissing the complaint
under Section 203 of the Code at the stage under Section 200 or
after following the process contemplated under Section 202 of the
Code, the accused or a person who is suspected to have
committed the crime is entitled to hearing by the Revisional Court.
In other words, where the complaint has been dismissed by the
Magistrate under Section 203 of the Code, upon challenge to the
legality of the said order being laid by the complainant in a
revision petition before the High Court or the Sessions Judge, the
persons who are arraigned as accused in the complaint have a
right to be heard in such revision petition. This is a plain
requirement of Section 401(2) of the Code. If the Revisional Court
overturns the order of the Magistrate dismissing the complaint and
the complaint is restored to the file of the Magistrate and it is sent
back for fresh consideration, the persons who are alleged in the
complaint to have committed the crime have, however, no right to
participate in the proceedings nor are they entitled to any hearing
of any sort whatsoever by the Magistrate until the consideration of
the matter by the Magistrate for issuance of process. We answer
the question accordingly. The judgments of the High Courts to the
contrary are overruled.”
(emphasis supplied)
17.2. The layout and backdrop of, as also the questions involved in, the
case of W.N. Chadha (supra) were of their own peculiarities. For the
present purpose, suffice it to notice that as regards the process and
manner of investigation, which included the issues relating to a letter of
37
rogatory, this Court, inter alia, pointed out the exclusion of the principle of
audi alteram partem in relation to an accused at the stage of investigation
in the following terms: -
“80. The rule of audi alteram partem is a rule of justice and its application
is excluded where the rule will itself lead to injustice. In S.A. de
Smith's Judicial Review of Administrative Action, (4th Edn.) at page 184, it
is stated that in administrative law, a prima facie right to prior notice and
opportunity to be heard may be held to be excluded by implication in the
presence of some factors, singly or in combination with another. Those
special factors are mentioned under items (1) to (10) under the heading
“Exclusion of the audi alteram partem rule”.
81. Thus, there is exclusion of the application of audi alteram partem rule
to cases where nothing unfair can be inferred by not affording an
opportunity to present and meet a case. This rule cannot be applied to
defeat the ends of justice or to make the law “lifeless, absurd, stultifying
and self-defeating or plainly contrary to the common sense of the
situation” and this rule may be jettisoned in very exceptional
circumstances where compulsive necessity so demands.
*** *** ***
89. Applying the above principle, it may be held that when the
investigating officer is not deciding any matter except collecting the
materials for ascertaining whether a prima facie case is made out or not
and a full enquiry in case of filing a report under Section 173(2) follows in
a trial before the Court or Tribunal pursuant to the filing of the report, it
cannot be said that at that stage rule of audi alteram partem superimposes
38
an obligation to issue a prior notice and hear the accused which the
statute does not expressly recognise. The question is not whether audi
alteram partem is implicit, but whether the occasion for its attraction exists
at all.
90. Under the scheme of Chapter XII of the Code of Criminal Procedure,
there are various provisions under which no prior notice or opportunity of
being heard is conferred as a matter of course to an accused person while
the proceeding is in the stage of an investigation by a police officer.
*** *** ***
92. More so, the accused has no right to have any say as regards the
manner and method of investigation. Save under certain exceptions under
the entire scheme of the Code, the accused has no participation as a
matter of right during the course of the investigation of a case instituted on
a police report till the investigation culminates in filing of a final report
under Section 173(2) of the Code or in a proceeding instituted otherwise
than on a police report till the process is issued under Section 204 of the
Code, as the case may be. Even in cases where cognizance of an offence
is taken on a complaint notwithstanding that the said offence is triable by a
Magistrate or triable exclusively by the Court of Sessions, the accused has
no right to have participation till the process is issued. In case the issue of
process is postponed as contemplated under Section 202 of the Code, the
accused may attend the subsequent inquiry but cannot participate. There
are various judicial pronouncements to this effect but we feel that it is not
necessary to recapitulate those decisions. At the same time, we would like
to point out that there are certain provisions under the Code empowering
39
the Magistrate to give an opportunity of being heard under certain
specified circumstances.”
(emphasis supplied)
17.3. It could also be usefully recapitulated that in the case of Popular
Muthiah (supra), even when not disapproving the exercise of inherent
powers by the High Court irrespective of the nature of proceedings (of
course, while laying down the limitations on such exercise of powers), this
Court also observed that in the peculiar circumstances of the case, where
investigation was being ordered against the persons who were not
investigated earlier, the High Court should have given them an
opportunity of hearing before issuing the impugned directions. Thus, the
impugned judgment was set aside and the matter was remitted to the
High Court for consideration afresh, after notice to the appellants as also
to the State.
18. In an appropriate application of the principles aforesaid, we are
clearly of the view that even though the decision in W.N. Chadha (supra)
shall have no direct application to the present case but then, the
observation concerning opportunity of hearing, as occurring in
Manharibhai Muljibhai Kakadia (supra), also does not enure to the
benefit of the appellant because therein, the matter before the High Court
had been a revision petition governed by Section 401 CrPC and by virtue
of sub-section (2) thereof, opportunity of hearing to the affected party
40
remains a statutory mandate13. In Popular Muthiah (supra), of course,
this Court held that the said appellant against whom the High Court was
issuing directions for investigation should have been given an opportunity
of hearing but, that had been the observation in the unique and peculiar
circumstances of the case where the crime in question had already gone
through one round of trial, with one person having been tried and
convicted. Moreover, while disapproving unwarranted directions of the
High Court as regards prosecution of the appellant, this Court also
indicated that the High Court ought to have considered if any purpose
would be served by its directions. It cannot be said that in Popular
Muthiah, this Court has laid down a rule of universal application that in
every such case of exercise of powers under Section 482 CrPC for
ordering further investigation (which are even otherwise to be invoked
sparingly and in exceptional cases), the Court is obliged to extend an
opportunity of hearing to the person whose actions/omissions are to be
investigated. In our view, the question of opportunity of hearing in such
matters would always depend upon the given set of facts and
circumstances of the case.
19. On the facts and in the circumstances of the present case, we are
clearly of the view that no purpose would be served by adopting the
13 Section 401 CrPC provides for the wide revisional powers of the High Court and its subsection (2) reads as under: -
“(2) No order under this section shall be made to the prejudice of the accused or other
person unless he has had an opportunity of being heard either personally or by pleader in his
own defence.”
41
course of Popular Muthiah (supra) where this Court restored the matter
for reconsideration of the High Court with an opportunity of hearing to the
appellant therein. Some of the prominent and peculiar circumstances of
the present case are that the allegations and imputations have their
genesis in the documentary evidence in the form of departmental
instructions and the audit report; the fact that the appellant was holding
the office of the District Manager at the relevant point of time is not in
dispute; and hereinbefore, we have upheld the exercise of inherent
powers by the High Court in directing further investigation qua the role of
the appellant.
19.1. We have also taken note of the submissions that, according to the
appellant, he had already been exonerated of all charges after detailed
departmental proceedings; and such a fact did not appear before the High
Court for want of notice to him. For the present purpose, suffice it to
observe that even if the appellant had been exonerated in the
departmental proceedings, such a fact, by itself, may not be conclusive of
criminal investigation; and for this fact alone, the High Court could not
have ignored all other features of the case and the material factors that
had surfaced before it.
20. At this juncture, and in the last segment of this discussion, it may
also be observed that we have taken note of another peculiar feature
connected to this case that apart from the subject-matter of the present
appeal, being Barh P.S. Case No. 115 of 2012, there had also been
42
another matter, being Bikram P.S. Case No. 129 of 2012 against the
respondent No. 3 as also the present appellant, pertaining to similar
allegations of misappropriation of goods. As per the submissions made on
behalf of the State, in the said Bikram P.S. Case No. 129 of 2012,
instituted for offences under Sections 409, 420, 468, 471 and 474 IPC,
after finding prima facie case against the present appellant, prosecution
sanction has also been obtained; and after the order passed by the High
Court, the investigation in the present case was also carried out along
with the aforesaid Bikram P.S. Case No. 129 of 2012. According to the
affidavit filed on behalf of the State, prima facie complicity of the appellant
has been found but, in this case, prosecution sanction has not been
obtained for the appellant having been given interim protection by this
Court.
20.1. We would hasten to observe that the aforesaid submissions on
behalf of the State have only been taken note of without pronouncing on
the merits thereof and while leaving every aspect open for examination
and consideration of the respective investigating agency, sanctioning
authority, and the Court at the appropriate stage and in an appropriate
manner. These submissions have been referred to herein only in order to
indicate that viewed from any angle, there does not appear any just and
strong reason to restore the matter for reconsideration of the High Court.
21. In the totality of circumstances and in the larger interest of justice,
we are clearly of the view that in this case, the investigation contemplated
43
by the order impugned should be allowed to be taken to its logical end
but, while effacing the unwarranted and unnecessary observations of the
High Court14, lest there be any prejudice to any party only because of
such observations. In other words, the entire matter is left open for
examination by the investigating agency, by the sanctioning authority, and
by the Court concerned at the relevant stage and in accordance with law.
22. Accordingly and in view of the above, this appeal fails and is,
therefore, dismissed but, with the observations foregoing and while
effacing the unwarranted and unnecessary observations of the High Court
in the order impugned.
……....…………………….J.
(DINESH MAHESHWARI)
……....…………………….J.
(ANIRUDDHA BOSE)
NEW DELHI;
OCTOBER 12, 2022.
14 As discussed in paragraph ‘15’ hereinbefore.
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