Asoka Kumar S vs State Of Kerala

R.Narayana Pisharadi, J

The petitioner is an Excise Inspector. He is the first accused in the case registered by the Vigilance and Anti-Corruption Bureau (VACB), Pathanamthitta as V.C.No.02/2017/PTA under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). The second and the third accused in the case are Preventive Officers of the Excise Department.

On 20.04.2016, the accused, while working in the Excise Enforcement and Anti-Narcotic Special Cell, Pathanamthitta had allegedly seized 27 cans, each containing 33 litres of spirit, unauthorisedly kept in the rented house in which the third respondent was residing. A case was registered in that matter as O.R No.40/2016.

On 21.04.2016, the third respondent was produced before the Judicial First Class Magistrate, Thiruvalla, in the case registered against her. The third respondent then made Annexure-I written complaint before the learned Magistrate.

The crux of the allegations in Annexure-I complaint made by the third respondent before the learned Magistrate was that, the accused, who were Excise Officers, obtained Rs.4,62,000/-from her on the promise that they would exclude her from the Abkari case and that they produced only Rs.2,25,000/- in the Magistrate's Court.

Learned Magistrate forwarded Annexure-I complaint to the Enquiry Commissioner and Special Judge, Thiruvananthapuram. The learned Special Judge directed the VACB to conduct a preliminary enquiry in the matter.

The Dy.S.P VACB, Pathanamthitta conducted a preliminary enquiry into the allegations in Annexure-I complaint and filed a report before the Special Court that no criminal action was required to be taken against the accused persons.

The Special Court did not accept the findings in the preliminary enquiry report. The Special Court directed the VACB to conduct a further enquiry. After conducting further verification, the Dy.S.P, VACB, Southern Circle, Thiruvananthapuram filed a report that there was no acceptable evidence to find that the accused had obtained Rs.4,62,000/-from the third respondent.

The third respondent filed objection to the verification report filed by the VACB. She filed additional documents in the Special Court to prove the source of Rs.4,62,000/- allegedly given by her to the accused.

As per Annexure-II order dated 30.10.2017, the Special Court directed the VACB to register a case against the accused and to conduct investigation.

Pursuant to the direction made by the Special Court in Annexure-II order, the VACB registered Annexure-III FIR against the petitioner and the two other Excise Officers.

After conducting investigation, the Dy.S.P, VACB filed Annexure-V final report in the Special Court stating "Further Action Dropped".

The Special Court did not accept Annexure-V final report. As per Annexure-VII order dated 22.05.2020, the Special Court directed the investigating officer to conduct further investigation in the case. The relevant portion of Annexure-VII order reads as follows:

"17. Therefore, the final report filed by the investigating officer to treat the case as "further action dropped" is not accepted. The investigating officer is directed to obtain necessary approval/sanction as required under the provisions of the Prevention of Corruption Act, 1988 and to conduct a meaningful and effective investigation as indicated above and shall file report."

This application is filed by the first accused under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for setting aside Annexure-VII order and to accept Annexure-V final report.

The investigating officer has filed a statement before this Court. It is mentioned in this statement that the point which has been ordered to be investigated further by the Special Court has already been investigated by the VACB.

Inspite of service of notice on the third respondent, there was no representation for her at the time of hearing this case. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner contended that the matters which have been ordered to be further investigated by the Special Court are matters which have already been thoroughly investigated by the VACB and there is no scope for conducting any further investigation on those aspects. Learned counsel further contended that, when the investigating officer has based his opinion on the materials collected during the investigation and when such opinion depicts a reasonable view of the matter, the Special Court would not be justified in issuing a direction to conduct further investigation.

The allegations in Annexure-I complaint made by the third respondent before the learned Magistrate are as follows: When spirit was seized from the rented house in which she was residing, the three Excise Officers (A1 to A3), who had come to her house for detecting the case, obtained Rs.4,62,000/- from her, on the promise that she would not be made an accused in the case. She had raised Rs.3,62,000/- from Muthoot Finance and Rs.1,00,000/- from Kavadaparambil Finance by pledging (gold ornaments?) and she had receipt with her to prove the same. It was this amount which she gave the accused and only Rs.2,25,000/- was produced before the court.

One cannot ignore the fact that the complaint against the Excise Officers was made by the third respondent at the first and the earliest opportunity, that is, when she was produced before the learned Magistrate. But, the question looms large why the Excise Officers shall produce Rs.2,25,000/- in the Magistrate's Court as money seized from the house of the third respondent, if it was part of the money obtained by them as bribe from the third respondent.

Annexure-V final report shows that the investigating officer had produced before the Special Court 36 documents which had been seized or collected and verified by him during the investigation.

What courses are left open to a Magistrate in a situation where the investigating agency submits final report (refer report or closure report) stating that no case is made out against the accused on account of lack of evidence or for any other reason?

In such a situation, the Magistrate may adopt any of the following courses: (1) If he agrees with the final report, he may accept it and close the proceedings (2) He may find, on a consideration of the final report, that the opinion formed by the investigating officer is not based on a full and complete investigation. Then, he has ample jurisdiction under Section 156(3) of the Code to direct a further investigation. (3) If the Magistrate forms the opinion that, the facts set out in the final report, constitute an offence, he may take cognizance of the offence under Section 190(1)(b) of the Code, notwithstanding the contrary opinion of the investigating officer (See Abhinandan Jha v. Dinesh Mishra : AIR 1968 SC 117).

In addition to the above courses, if it it is a case in which a private complaint within the meaning of Section 190(1)(a) of the Code was referred to the police under Section 156(3) of the Code and if the investigating officer has filed a refer report, the Magistrate could also fall back upon the private complaint which was initially lodged. The Magistrate may take cognizance of the offence under Section 190(1)(a) of the Code on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts this course, he may hold or direct an inquiry under Section 202 of the Code if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be (See H.S.Bains v. State : AIR 1980 SC 1883)

Therefore, inspite of the opinion of the investigating officer that there is no sufficient evidence to send the accused for trial, the Special Court may decline to accept the police report. The Special Court may find that the opinion formed by the police is not based on a full and complete investigation and that there is scope for conducting further investigation. Then, the Court has ample power to direct further investigation under Section 156(3) of the Code.

However, the Court has to scrupulously scrutinize the final report and the accompaniments by applying its judicial mind before it takes a decision to disagree with the opinion of the investigating officer (See Sampat Singh v. State of Haryana : (1993) 1 SCC 561).

The Court has to independently apply its mind to the facts emerging from the investigation. Once the conscience of the court is satisfied, from the materials on record, that the police has not conducted proper investigation, it is the duty of the Court to ensure that the investigation is conducted in accordance with law. If deficiency in investigation is visible or can be perceived by lifting the veil hiding the realities, the Court shall order further investigation but it shall then point out what is the deficiency in the investigation already conducted. When the Court disagrees with the closure report and orders further investigation, the Court shall specifically point out the matters left out and not investigated. The Court shall pinpoint what all matters were not investigated by the police and what aspects require further investigation. It is not enough to make a general observation that the investigation conducted was incomplete or defective. If in the opinion of the Court the investigation conducted was not fair, the Court shall state the reasons for coming to such conclusion.

In Nupur Talwar v. C.B.I : AIR 2012 SC 1921, the Supreme Court had occasion to observe as follows:

"Since the CBI wanted the matter to be closed, it was appropriate though not imperative for the Magistrate to record reasons, for differing with the prayer made in the closure report. After all, the CBI would have surely wished to know, how it went wrong".

In the instant case, the investigating officer had formed opinion that the complaint made against the accused by the third respondent cannot be true because the materials collected during the investigation showed that her version that she raised the amount by pledging gold ornaments in two finance companies was not true. The version of the third respondent was that she obtained Rs.3,62,000/- from Muthoot Finance, Chengannoor and Rs.1,00,000/- from Kavadaparambil Finance, Eramallikkara by pledging gold ornaments on 20.04.2016. It was found out during the investigation that the third respondent had pledged gold ornaments in Kavadaparambil Finance on 14.03.2016 and obtained Rs.3,40,000/- from there. It was found out from records that, the third respondent obtained an advance amount of Rs.3,50,000/- from Muthoot Finance on 20.04.2016 and by using that amount, she closed the gold loan in Kavadaparambil Finance. She pledged the gold ornaments on the same day in Muthoot Finance for Rs.3,62,000/- and obtained Rs.12,000/- in cash after deducting the amount of Rs.3,50,000/-which she had received as advance. The investigating officer also found out from records that, on 20.04.2016, the third respondent had obtained Rs.1,00,000/- from Kavadaparambil Finance by pledging other gold ornaments. The statements of witnesses also revealed the above transactions.

There is no doubt that the learned Special Judge was not bound by the above opinion of the investigating officer. The learned Special Judge is competent to disagree with the final report and direct further investigation. However, existence of valid and good reasons is a prerequisite for issuing such a direction. In the instant case, the learned Special Judge has passed an order in detail, stating the reasons for directing further investigation. But, the question is, whether the reasons stated are valid or not.

With regard to the investigation conducted, as to the source of the amount given as bribe, the Special Court has stated in the impugned order as follows:

"In the above circumstances, the Investigating officer was duty bound to probe the said matter thoroughly with reference to all the records maintained at 'Muthoot Finance, Chenganoor' viz., the Trial Balance, account books and the account books and records of 'Kavadaparambil Finance.' It is to be noted that the investigating officer had not done any effective investigation regarding the said aspect with the object of finding truth rather he simply arrived at a conclusion that the accused have seized only an amount of Rs.2,25,000/- from the house of the complainant."

The Special Court has further observed as follows:

" Upon going through the entire materials produced before the court, this court finds that the investigation done by the Investigating officer is incomplete. The veracity of the version regarding takeover of gold loan of complainant from 'Kavadaparambil Finance' by 'Muthoot Finance' is to be probed thoroughly to bring out the truth regarding the allegations of demand and acceptance of bribe leveled against the accused by the complainant. A meaningful and purposeful investigation has to be conducted as to the time at which the accused Excise officials reached at the house of the complainant on 20.04.2016 as well as about the alleged demand and acceptance of Rs.4,62,000/- from the complainant."

Learned Special Judge has directed further investigation mainly on two aspects. (1) The veracity of the version of "take over transaction" of gold loan (2) The time at which the Excise Officers reached the house of the third respondent.

Regarding the "take over transaction" of gold loan by the Muthoot Finance from Kavadaparambil Finance, the final report reveals that the investigating officer had seized or collected and verified the relevant registers and records in the above two finance companies. The details of the gold loan transactions made by the third respondent in the two finance companies are explained in the final report. The relevant registers and records were also produced in the Special Court alongwith the final report. In such circumstances, the learned Special Judge was not justified in directing to conduct further investigation with reference to such records kept in the two finance companies.

Learned Special Judge has disagreed with the opinion of the investigating officer with regard to the "take over transaction" of gold loan for the reason that there were material omissions in the statements made by some witnesses during the preliminary enquiry conducted in this case and also during the departmental enquiry conducted by the Excise Department.

The statements given by the witnesses in the departmental enquiry conducted by the Excise Department should not have been considered by the Special Court in forming an opinion on the final report filed by the investigating officer. The statements, if any, given by such witnesses to the investigating officer could only have been considered by the Special Court in this regard.

Learned Special Judge has also highlighted the omissions in the statements given by the witnesses during the preliminary enquiry conducted by the VACB with reference to the statements given by them during the investigation of the case and found that the witnesses have, during the investigation, come up with a new story regarding the gold loan availed of by the third respondent.

In Gian Prakash Sharma v. Central Bureau of Investigation :2004 Cri.L.J 3817, in a corruption case, the Punjab and Haryana High Court had occasion to observe as follows:

"Similarly, the learned Special Judge has also placed reliance on the pre-investigation statements allegedly made by the shadow witness, Sukhwant Singh and another alleged independent witness, namely, Surjeet Singh. In my view, their alleged statements recorded prior to the initiation of investigation of this case by the C.B.I. are of no legal consequence".

(emphasis supplied)

The purpose of the preliminary enquiry is only to find out whether the information received discloses any cognizable or not. The statement given by a witness or an accused during such enquiry cannot be said to be a statement under Section 160 of the Code and/or a statement recorded during the course of investigation (See Charansingh v. State of Maharashtra : AIR 2021 SC 1620).

Since the purpose of the preliminary enquiry is only to ascertain whether the information received discloses any cognizable offence or not, the statements of witnesses recorded during the preliminary enquiry may not be exhaustive and such statements may not contain all details. Therefore, omissions in such statements, cannot be a reason to find that the witnesses have created a new story at the time of investigation of the case. Further investigation cannot be ordered merely for the reason that there are contradictions in the statements made by the witnesses with reference to the statement given by them during the preliminary enquiry.

Of course, the time at which the Excise Officers reached the house of the third respondent on 20.04.2016 has got significance. It is relevant here to note that, as per the statement given by the third respondent during the investigation, the second and the third accused were the persons who demanded bribe from her and it was the second accused with whom she entrusted the amount. There is allegation that the second and the third accused had reached the house of the third respondent much before the time mentioned in the records relating to the case registered against her and that they demanded bribe from her. The investigating officer has verified the call data records of the mobile phones of the second and the third accused. However, it is not proper to mention anything here in that regard because they are not parties to the present case before this Court.

In the above circumstances, the reasons stated by the learned Special Judge for directing further investigation, at least as against the petitioner, cannot be found to be valid. Even when there is suspicion against a person, during the investigation, if sufficient evidence cannot be collected against him to send him for trial, it would be a futile exercise to conduct further investigation into the same aspects. As noticed earlier, there is no specific allegation against the petitioner that he had demanded bribe from the third respondent or her husband.

The discussion above leads to the conclusion that there is no scope for conducting any further investigation in the matter as against the petitioner.

Consequently, the petition is allowed as follows: Annexure-VII order is set aside and Annexure-V final report (closure report) is ordered to be accepted, only as far as they pertain to the petitioner.

All pending interlocutory applications are closed.