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Judgment
Rajendra Chandra Singh Samant, J
This petition has been brought under Article 226 of Constitution of India praying to quash the order of Special Judge (Prevention of Corruption Act)
Raipur, in Closure Case No.06/2010 vide order dated 05.10.2017.
Learned Senior counsel for the petitioner submits that F.I.R. was lodged against the petitioner on 19.02.2010 by E.O.W./A.C.B., Raipur. On this
basis, that this petitioner had misused his position as public servant and amassed wealth which was disproportionate to the income which he had
received from lawful sources. The F.I.R. was lodged on the basis of communication received from Brijesh Gupta, Directorate of Income
(Investigation) M.P. & C.G., Bhopal, it was mentioned in the said communication that a company styled as Prime Ispat Ltd. was formed in the year
2004, in which all the brothers of the petitioner and their wives were made Directors. A share capital of about Rs.60 crores was laundered over a
period of five years by this company. In the raid conducted by Income Tax Department, 230 Bank passbooks were recovered from the possession of
Chartered Accountant of the petitioner, in which huge cash deposits had been made in the name of Benami persons and the said deposits were used
for purchasing the share of the company. It was found in the investigation made by Income Tax Department that the said Benami account holder
persons were of economically weaker class, therefore, they had no resources to make such deposits and purchase such shares. Further, the
documents relating to the business activities and investments of Prime Ispat Ltd. were recovered from the residence of the petitioner which shows this
connection. Apart from that, cash of Rs.68.10 crores and jewelery of Rs.70.20 crores were found from the various premises and lockers connected
with the petitioner. Cash of Rs.23.73 crores and jewelery of Rs.3.76 crores were found in the residence and lockers of the petitioner. It was also
found by Income Tax Departments that huge investment was made in movable assets in the name of petitioner, his family members, his parents,
brothers and their wives in mutual funds, fixed deposits, L.I.C. policies, public provident fund and real estate etc. and these investments were not
intimated to the Government Department by the petitioner. Similarly, 140 land documents were found showing investment in landed property in and
around Raipur, which is estimated worth crores of Rupees. Huge cash deposits were found in the various bank accounts held in the name of petitioner
and his relatives to the tune of Rs.12.50 crores including cash deposit of Rs.10.64 crores in the account and the name of petitioner himself. The
lifestyle of the petitioner were also taken into consideration by the Income Tax Department. Five keys were found in the premises of the petitioner
during raid which were the keys of bank lockers. In one of the lockers held in Bank of Baroda, Raipur, cash Rs.15 lakhs was recovered and seized.
The locker was originally held in the name of the petitioner and one another but later on the bank documents were Manipulated and the petitioner was
replaced by his brother Pawan Kumar Agrawal, on this basis, the Income Tax Department had made a request to A.C.B./E.O.W. to investigate the
case, on the basis of which offences under Section 13(1) E/ Rule 32 of Prevention of Corruption Act and Section 3 of Benami Transactions
(Prohibition) Act, 1988 were registered.
It is submitted that against the raid conducted by the Income Tax Department, the petitioner preferred an appeal before the Commissioner of
Income Tax Department. In the order of this Appellate Authorities vide annexure P/4, it was held in the Appellate order that the Assessment Officer
had committed error in making addition of the cash amount found in the bank lockers and in the account of the brother of the petitioner Mr. Ashok
Kumar Agrawal. This means that the petitioner had given satisfactory explanation as is required under Section 69A of Income Tax Act. An appeal
was preferred by Income Tax Department before the Income Tax Appellate Tribunal against the order passed by appellate Authority, in the order of
Tribunal, it was held that the additional evidence presented by the petitioner had not been examined on merits by the Assessment Officer, therefore,
the matter was remitted back to Assessment Officer directing him to examine the veracity of additional evidence and decide accordingly. The
petitioner was then proceeded against departmentally and departmental charges were framed against him. Further, vide order dated 13.03.2012 which
is annexed at 132 of the petition, the State Government has withdrawn all the departmental charges against the petitioner. Therefore, he has been
exonerated from the departmental proceeding. It is further submitted that petitioner has been exonerated by the Income Tax Department and this
finding is binding which has to be taken into consideration in the criminal case registered against him.
It is submitted that Annexure P/1 filed with reply that respondents filed letter on Directorate of Enforcement which is a repetition of the contents of
F.I.R. lodged against the petitioner seeking investigation of the case which is not permitted under law. Subsequent to inquiry, exoneration from
departmental proceeding and exoneration by the Income Tax appellate Authorities, no such request can be made to re-investigate the case or such
request can be entertained as there is no fresh material for additional investigation. The prosecution in this case is acting on the dictates of Directorate
of Enforcement. In the Crime No.06/2010 registered against the petitioner, the E.O.W./A.C.B. had already investigated the case and filed a closure
report before the Court, which was pending for consideration before the Special Court, in which an application was filed by respondents on 05.10.2017
making a prayer for withdrawal of closure report on pretext of making reinvestigation in the case. This application was allowed and the closure report
submitted was returned to the respondent by the Special Court. It is submitted that this order of the Special Court permitting fresh investigation in the
case in which closure report was filed is without the authority of law.
Placing reliance on the judgment of Supreme Court in Chandra Babu Alias Moses Vs. State Through Inspector of Police And Others reported in
(2015) 8 SCC 774, Rama Chaudhary Vs. State of Bihar reported in 2009 (6) SCC 34,6 Vinay Tyagi Vs. Irshad Ali & Ors. reported in (2013) 5 SCC
762 and Lokesh Kumar Jain Vs. State of Rajasthan reported in (2013) 11 SCC 130, it is submitted that there is a clear mandate that Section 173 (8) of
Cr.P.C. directs only further investigation. Therefore, the magistrate has no authority to pass any order of de novo/fresh investigation/re-investigation
of the case. It is submitted that reinvestigation in any case is prohibited which would imply recording of statement of witnesses again and conducting
raid and making seizure again under the provisions of Cr.P.C. which is not at all permissible under any law. Hence, it is prayed that order dated
05.10.2017 passed by the Special Court is against the provisions of law, therefore, this order may be set aside and the relief may also be granted to the
petitioner.
Learned counsel appearing for respondent submits that the impugned order passed by the learned Judge of Special Court is an order on the
application filed by respondent, in which the closure report and documents were prayed to be withdrawn, making a mention of need for further
investigation. There is no such order passed by the Court directing the respondent to re-investigate the case. The application that was filed by the
respondent on 05.10.2017 mentioned that offence and the crime was registered against the petitioner on the basis of the communication received from
Income Tax Department and the preliminary report in that respect. Subsequently, on the basis that, the Income Tax Department had closed its
proceedings against the petitioner and the closure report was filed. Thereafter, on the basis of the letter received from the Directorate of Enforcement
dated 08.09.2017, the prayer was made to withdraw the closure report with permission to re-investigate the case.
It is submitted by the learned counsel for the State that the word 're- investigation' has been erroneously mentioned, in fact it had to be 'further
investigation' which is clearly permitted under Section 173 (8) of Cr.P.C.
Placing reliance on the judgment of Supreme Court in Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel And Ors. reported in (2017) 4
SCC 177, it was held that there is no requirement of any permission or direction from the Court under Section 173(8) of Cr.P.C. this provision very
clearly authorizes the Investigating Officer to do further investigation by collecting further evidence oral or documentary as may be available or
required and this is a stage subsequent to filing of final report. Relying on the judgment of Rajasthan High Court in Dalpat Singh Vs. State of
Rajasthan And Anr. reported in 2006 SCC OnLine Raj 1628, it is submitted that the learned Single Judge has very clearly held that on the basis of an
application made by the Investigating Officer for returning of final report with records for further investigation, the order passed by the trial Court for
returning the final report and record cannot be said to be erroneous or without jurisdiction.
It is submitted that as further investigation is permitted under Section 173(8) of Cr.P.C., there is nothing wrong if the trial Court makes an order for
such further investigation to apprise the Investigating Officer for his power under Section 173(8) of Cr.P.C. It is also submitted that the petitioner has
not been exonerated by the Income Tax Department. On plain reading of the order of Appellate Tribunal, it can be found that the matter has been
remitted back for making assessment afresh by the Assessment Officer. The Income Tax Department has limitation to the extent of making
Assessment of Income Tax. Offence that are defined under the provisions of Prevention of Corruption Act, for which only the respondent has the
authority to lodge F.I.R., investigate and prosecute the person concerned. Therefore, it is a case which has not been investigated properly on account
of erroneous interpretation of the orders passed by the Income Tax Appellate Authorities and further the exoneration from departmental proceeding
by itself is not a sufficient ground to close the investigation of a case established, when there is evidence present to be collected and further
investigation can be made. Therefore, the petition is without any substance which may be dismissed.
In reply, it is submitted by the learned Senior counsel for petitioner that it was by the information given by Directorate General Income Tax
(Investigation), the F.I.R. was lodged in the year 2010. Thereafter, on the basis of the orders passed by the Income Tax Appellate Authorities, the
closure report was completed and filed in the year 2016 and thereafter, there is nothing mentioned in the application that is filed on 05.10.2017 by the
respondent as to what is the substance and material present to make further investigation of this case and the only mention is the memo given by the
Directorate of Enforcement, which mentioned only to this extent that the matter is to be looked into again. Therefore, there is no idea present as to
what kind of further investigation is to be made by the respondents therefore no permission can be granted to the respondent to continue with the
investigation.
Placing reliance on the judgment of Lokesh Kumar Jain Vs. State of Rajasthan (Supra), the facts of the case were these that the appellant was
booked for offence of embezzlement in the year 2000 in which the final report was submitted before the Court of C.J.M. Dausa, later on the
complainant filed an application requesting to submit the matter to police for further investigation, which was allowed by the Magistrate and matter
was sent back for further investigation. In the meantime, the appellant was exonerated from the charges in departmental proceeding. As the appellant
was suffering from harassment from more than 13 years because of incompletion of further investigation, the Court found it a fit case to quash the
F.I.R. against the petitioner.
It is further submitted in reply by the learned senior counsel for petitioner that there is no such allegation that petitioner is the proprietor of Director
of the Prime Ispat Company. There is clear evidence that the brothers of this petitioner and their wives are the Directors of the company. Therefore,
this petitioner has no connection with the affairs and the business of that company. Hence, he is entitled for relief.
I have heard learned counsel for the both the parties and perused the documents placed on records.
The submissions made that the learned Special Judge has directed to reinvestigation of the case does not appear to be a correct submission. The
order passed by the learned Special Judge (Prevention of Corruption Act) is reproduced below:-
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There is no confusion that Section 173(8) of Cr.P.C. empowers the Investigating Officer to make further investigation which has been observed and
held in Chandra Babu Alias Moses Vs. State Through Inspector of Police And Others (Supra), Rama Chaudhary Vs. State of Bihar (SupraK),. C.
Builders And Anr. Vs. Assistant Commissioner of Income Tax reported in (2004) 2 SCC 731 and Vinay Tyagi Vs. Irshad Ali & Ors. (Supra). In this
particular case, the learned Special Judged has not taken any decision on the closure report which was filed before him, agreeing with the report or
disagreeing with the report or directing further investigation in the case. Therefore, it is a case of simple withdrawal of the closure report and there is
no direction by the Special Court for making any further investigation. However, the Special Judge has agreed with the reasons mentioned in the
application. There is no hindrance on the part of the respondent side to make any further investigation as may be required in this case. It has to be
made clear that reinvestigation in such a case is not permissible under law because it implies re-recording of statement of the same witnesses and
conducting raid and making seizures again. Whatever has been done in the investigation previously cannot be repeated and investigation can be made
only as it is permitted under Section 173(8) of Cr.P.C. that means further investigation.
The search and seizure procedures were already carried out by the Income Tax Department on the basis of which assessment of Income Tax
was made against the petitioner. The petitioner had challenged the assessment made against him with respect to cash Rs.15 lakhs which was
recovered from the locker of bank of Baroda held in the name of his brother Pawan Kumar Agrawal, the additional cash of Rs.3 crores which was
found in the locker of the appellant himself held in H.D.F.C. bank and the addition of cash Rs.14 crores which may have been withdrawn through
debit cards belonging to the bank account of brother of petitioner Shri Ashok Kumar Agrawal and the same has been entertained in the appeal before
Commissioner of Income Tax Appeals and before the Income Tax Appellate Tribunal. The order of Income Tax Appellate Tribunal clearly mentions
that the matter was remitted back to Assessment Officer for reassessment. This order for reassessment does not amount to exoneration from the
proceeding before the Income Tax Authorities. Further the other complaints against the petitioner regarding laundering of tainted money, cash and
jewelery found in his possession, huge investment in movable assets, huge investment in immovable assets, huge cash deposits in bank, lavish and
luxurious life style etc. have not been dealt within the another proceeding before Income Tax Authorities. Apart from that the exoneration of the
petitioner from the departmental proceedings by the order of state Government dated 13.03.2012 cannot be made a ground to close the investigation
against him. The closure report filed by the respondent had been kept pending without any decision of the Special Court, therefore, withdrawal of such
closure report is not against the provisions of any law, because Section 173(8) of Cr.P.C. empowers the Investigation Officer to make further
investigation even after filing of final report. On the cost of repetition, it is again observed that the word 're-investigation' is a misnomer and inaccurate
word to be used by the respondent in the application. The respondent should be well-aware of this authority which is present only to make further
investigation. Therefore, I do not find any reason to interfere with the order passed by the Special Judge and further the quashing of F.I.R. at the
stage when the investigation is yet to be made is not possible and permissible for the reasons, that on plain reading of the F.I.R. lodged by the
petitioner, it cannot be said that there is no material to disclose that any cognizable offence has not been committed by the petitioner. Therefore, I do
not find any substance in this petition. Hence, the petition is dismissed.