TMI Blog2012 (12) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal : Question No.1 : Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short, the Code ), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a Court? If so, to what effect? Question No.2 : Whether the Central Bureau of Investigation (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 convers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t came to knowledge that above noted Irshad Ali @ Deepak is resident of Inder Enclave, Phase-II, Sultanpuri, Delhi. It also came to notice that one Mohd. Muarif Qamar @ Nawab r/o Bhajanpura, Delhi is also associated with the militant organization. During the development of this information, it was revealed that both Irshad Ali and nawab had gone to J K on the directions of their handlers to receive a consignment of arms and explosives. Today on February 09, 2006 at about 4 PM, one of these sources telephonically informed SI Vinay Tyagi in the office of Special Cell, Lodhi Colony that Irshad 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neath the layers of clothes. On weighing the explosive was found to be 2 kg. Out of this two samples of 10 gms each were taken out in white plastic small jars. The remaining recovered explosive kept back in black polythene, pulinda prepared and sealed with the seal of VKT . Sample explosive were marked as S1 and S2 and sealed with the seal of VKT . The ABCD timer and AB Timer were kept in a plastic jar and sealed with the seal of VKT marked as T and 3 non electric detonators along with envelope were kept in a transparent plastic jar with the help of cotton and sealed with the seal of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the fact that the accused persons were working as informers of the police. While issuing the notice, the High Court did not grant any stay of the investigation and/or the proceedings before the court of competent jurisdiction, despite the fact that a prayer to that effect had been made. The Special Cell of the Delhi Police, filed a chargesheet before the trial court on 6th May, 2006 when the matter was pending before the High Court. In the writ petition, it was stated to be a mala fide exercise of power. The High Court on 9th May, 2006 passed the following order : The Petitioner has 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 cooke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges are established. Therefore, without commenting any further on the merits of the matter, this Court is of the considered opinion that it is a fit case where an inquiry by some independent agency is called for the allegations made in the present petition. Accordingly, the CBI, in the first instance, is called upon to undertake an inquiry into the matter and submit a report to this Court within four weeks. List on 17th July, 2006. Copy of the Order be forwarded to the Director, CBI for taking necessary action in the matter. 5. The CBI also filed its report before the High Court indicating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous Petition No.781 of 2009 and the application for stay was registered as Crl. Misc. Application No.286/2009. As already noticed, the Court had not granted any stay but had finally disposed of the petition vide its order dated 28th August, 2009. The High Court observed that once the report was filed by the CBI, that agency has to be treated as the investigating agency in the case and the closure report ought to have been considered by the trial court. It remanded the case to the trial court while passing the following order: 12. In these circumstances, the impugned order dated 13.02.2009 dismissing the 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion at any stage on the ground that he was not empowered to conduct such investigation. The provisions of Section 156(3) empower the Magistrate, who is competent to take cognizance in terms of Section 190, to order investigation as prescribed under Section 156(1) of the Code. Section 190 provides that subject to the provisions of Chapter XIV of the Code, any Magistrate of the first class and any magistrate of the second class specifically empowered in this behalf may take cognizance of any offence upon receipt of a complaint, facts of which constitute such offence, upon a police report of such facts or upon information 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 228 of the Code unless the Court finds, upon consideration of the record of the case and the documents submitted therewith, that there exists no sufficient ground to proceed against the accused, in which case it shall discharge him for reasons to be recorded in terms of Section 227 of the Code. It may be noticed that the language of Section 228 opens with the words, if after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence , he may frame a charge and try him in terms of Section 228(1)(a) and if exclusively triable 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, is understood and described as a further investigation . Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as supplementary report . Supplementary report would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a reinvestigation , fresh or de novo investigation. 16. However, in the case of a fresh investigation , reinvestigation or de novo investigation there has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of powers by the courts while granting approval or declining to accept the report. In the case of Gudalure M.J. Cherian Ors. v. Union of India Ors. [(1992) 1 SCC 397], this Court stated the principle that in cases where charge-sheets have been filed after completion of investigation and request is made belatedly to reopen the investigation, such investigation being entrusted to a specialized agency would normally be declined by the court of competent jurisdiction but nevertheless in a given situation to do justice between the parties and to instil confidence in public mind, it may become necessary to pass such orders. Further, 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not diametrically opposite views in this regard. Such views can be reconciled and harmoniously applied without violation of the rule of precedence. In the case of State of Punjab v. Central Bureau of Investigation [(2011) 9 SCC 182], the Court noticed the distinction that exists between reinvestigation and further investigation . The Court also noticed the settled principle that the courts subordinate to the High Court do not have the statutory inherent powers as the High Court does under Section 482 of the Code and therefore, must exercise their jurisdiction within the four corners of the Code. 21. Referring to the provisions of Section 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 investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC 536] where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court s revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplied to him under sub-section (2)(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate. 27. In some judgments of this Court, a view has been advanced, (amongst others in the case of Reeta Nag v State of West Bengal Ors. [(2009) 9 SCC 129] Ram Naresh Prasad v. State of Jharkhand and Others [(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 34. 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 Magistrate under Section 228 of the Code. Wherever a charge sheet 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 the case of Disha v. State of Gujarat Ors. [(20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 173(6) of the Code, which empowers the investigating agency to make a request to the Court to exclude that part of the statement or record and from providing the copies thereof to the accused, which are not essential in the interest of justice, and where it will be inexpedient in the public interest to furnish such statement. The framers of the law, in their wisdom, have specifically provided a limited mode of exclusion, the criteria being no injustice to be caused to the accused and greater public interest being served. This itself is indicative of the need for a fair and proper investigation by the concerned agency. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law as afore-stated, we revert to the facts of the case in hand. As already noticed, the petitioner had filed the writ petition before the High Court that the investigation of FIR No. 10/2006 dated 9th February, 2006 be transferred to CBI or any other independent investigating agency providing protection to the petitioners, directing initiation of appropriate action against the erring police officers who have registered the case against the petitioner and such other orders that the court may deem fit and proper in the facts and circumstances of the case. This petition was filed under Article 226 of the Constitution read with Section 482 of the Code on 25th February, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 173(2) of the Code by the Delhi Police. 44. On 28th November, 2007, the case came up for hearing before the High Court. Then CBI filed its closure report making a request that both the accused be discharged. The case came up for hearing before the High Court on 4th August, 2008, when the Court noticed that CBI had filed a report in the sealed cover and the Court had perused it. Herein, the Court noticed the entire facts in great detail. The High Court disposed of the writ petition and while noticing the earlier order dated 4th July, 2007 wherein the accused persons had assured the court that they would not move bail application before the trial court, till CBI investigation 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, in accordance with law. It is also interesting to note that the CBI itself understood the order of the court and conducted only further investigation as is evident from the status report filed by the CBI before the High Court on 28th November, 2007. 51. In our considered view, the trial court has to consider the entire record, including both the Delhi Police Report filed under Section 173(2) of the Code as well as the Closure Report filed by the CBI and the documents filed along with these reports. 52. It appears, the trial court may have three options, firstly, it may accept the application of accused for discharge. Secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct further investigation , it may do so. 53. Ergo, for the reasons recorded above, we modify the order of the High Court impugned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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