Rajeshwar Das vs State of Jharkhand and others

R.R. Prasad

This application has been filed for quashing of the order dated 2.6.2011 passed by the learned Chief Judicial Magistrate, Gumla in connection with Gumla P.S case no.316 of 2008 (G.R.No.1073 of 2008) registered under Sections 467, 468, 406, 420, 419/34 of the Indian Penal Code whereby and whereunder he accorded permission to the Investigating Officer to go for further investigation of the case. Before coming to the issue involved in this case, case of the prosecution needs to be taken notice of.

A case was lodged by the Block Development Officer, Bharno stating therein that one Devendra R. Purohit, one of the partners of M/s. Brahman and Firm and Resarch Centre, Jamshedpur entered into an agreement with the District Administration, Gumla whereby said Devendra R. Purohit was supposed to grow Safed Musli for commercial purposes over the land of 34 beneficiaries situated at village Kolebira and Chatakpuri under Gumla Block and against the estimated amount a sum of Rs.83,94,277/-was released in his favour. Under the agreement, Devendra R. Purohit was supposed to sell it after three years for the benefit of the beneficiaries but during enquiry held by a committee, Safed Musli was never found to have been grown on the plots which were there under the agreement and thus, it was alleged that the said Devendra R. Purohit breached the terms and conditions of the agreement and misappropriated the amount, upon which, a case was registered as Gumla P.S. case no.316 of 2008 under Sections 467, 468, 406, 420, 419/34 of the Indian Penal Code against the Devendra R. Purohit.

The matter was taken up for investigation. On completion of the investigation, police submitted charge sheet on 27.4.2010 against Devendra R. Purohit showing Denial Ekka absconder. On 7.9.2010 Denial Ekka was arrested who confessed his guilt and also disclosed about the complicity of other accused.

However, supplementary charge sheet was submitted against Denial Ekka. Thereupon Superintendent of Police, Gumla, vide its letter as contained in Memo No.845/CR dated 1.6.2011 directed the Investigating Officer to file an application before the Chief Judicial Magistrate for having permission for further investigation. Accordingly, the Investigating Officer filed an application on 2.6.2011 wherein prayer was made to accord permission for reinvestigation of the case. On that application, the Chief Judicial Magistrate, Gumla vide its order dated 2.6.2011 accorded permission to the Investigating Officer to reopen the case for further investigation u/s 173(8) of the Code of Criminal Procedure. That order is under challenge.

Mr. A.K. Kashyap, learned Sr. Counsel appearing for the petitioner submitted that upon case being registered against Devendra R. Purohit, the matter was investigated by the police and after completion of the investigation, it submitted charge sheet on 27.4.2010 against the said Devendra R. Purohit. After the arrest of Denial Ekka a supplementary charge sheet was submitted against him who is said to have disclosed in his confessional statement about the complicity of other persons but against the other accused, nothing was found, as per the report submitted by the Superintendent of Police, Gumla on 30.1.2011 disclosing therein that investigation is complete. However, while the matter was pending for trial before the learned Additional Chief Judicial Magistrate, Gumla, an application was filed on 2.6.2011 praying therein to accord permission for reinvestigation of the case as according to the letter of the Superintendent of Police, the matter is to be investigated against the persons whose name got transpired in confessional statement but whatever had transpired, that had transpired much before submission of the supplementary charge sheet against Denial Ekka. After submission of the supplementary charge sheet against him, nothing new came to light, still an application was filed by the Investigating Officer for reinvestigation of the case, upon which permission was accorded by the learned Chief Judicial Magistrate, vide its order dated 2.6.2011 which is quite illegal as further investigation can be taken only when new fact comes to light or that investigation which has been made earlier was tainted or otherwise unfair.

Learned counsel in support of his submission has relied upon decisions rendered in a case of State of A.P. Vs. A.S. Peter, and also in a case of Krishna Lal v. Dharmendra Bafna 2010 (1) East Cr.C.271 (SC).

It was also submitted that Devendra R. Purohit under original MOU had been allotted certain plots for growing Safed Musli/Stevia. Subsequently, the plots which were there in original MOU got changed whereby the other plots were allotted and accordingly, said Devendra R. Purohit was directed to grow Safed Musli/Stevia over the same plots on the plea that post facto sanction would be granted later on but post facto sanction was never granted and thereby before completion of three years, three separate cases were lodged under misconception of the fact that Devendra R. Purohit has not grown Safed Musli/Stevia over those plots which were there in MOU but when the matter was taken up for investigation, it was found by the Investigating Officer that Devendra R. Purohit had grown Safed Musli/Stevia over 100 acres of the land but not over the plots which were there in the original MOU but over other plots and as such, first information report can be said to have been lodged under misconception of the fact.

Thus, it was submitted that the impugned order is fit tobe set aside.

A counter affidavit has been filed on behalf of the State wherein it has been stated that since investigation over the role which was played by the persons whose name got transpired in the confessional statement of Denial Ekka was not made earlier, an application was filed by the Investigating Officer in the light of the direction given by the Superintendent of Police, Gumla for reinvestigation.

It has also been stated that after submission of the supplementary charge sheet, a letter was received from the Superintendent of Police, Gumla that investigation needs to be closed but thereafter interrogatory was sent by Zonal Inspector General, South Chotanagpur wherein he highlighted 19 points, upon which investigation is to be done and under this situation, an application was filed for reopening of the investigation whereby permission was granted by the Chief Judicial Magistrate, Gumla.

Upon these facts, it was submitted by Mr. Mukhopadhyay, learned counsel appearing for the State that the matter relating to further investigation can be taken up at any stage of the case after submission of the charge sheet and even during trial and as such, learned Magistrate has not committed any illegality in giving permission for further investigation on the application of the Investigating Officer.

Having heard learned counsel appearing for the parties it does appear that after the case was registered against Devendra R. Purohit, the matter was investigated upon and the police submitted charge sheet against Devendra R. Purohit showing other accused Denial Ekka absconder. However, he was arrested later on and it is said that he confessed his guilt and also disclosed about the complicity of the other accused. Thereupon supplementary charge sheet was filed on 5.11.2010. After more than eight months, an application was filed by the Investigating Officer before the learned Chief Judicial Magistrate, Gumla seeking permission for reinvestigation. However, learned court vide impugned order accorded permission for further investigation in terms of Section 173(8) of the Code of Criminal Procedure.

No doubt Section 173(8) speaks about further investigation and the same could only be done on fresh material which in my opinion, must be shown to have not been available or obtainable earlier. It would be significant to be noted here that the provision contained in said section does not stipulate about according permission to the Investigating Officer for further investigation but it has been held by the Hon''ble Supreme Court in several decisions that it is desirable for the investigating agency to seek formal permission to make further investigation. In this regard case of Ram Lal Narang Vs. State (Delhi Administration), may be referred to where it has been observed by the Lordship which is as follows:

we think that in the interest of independence of the magistracy and the judiciary, in the interest of purity of the administration of criminal justice and in the interest of comity of the various agencies and institution entrusted with different stages of such administration it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh acts come to light.

(emphasis put by me).

Further the Hon''ble Supreme Court in a case of Krishna Lal vs. Dharmendra Bafna (supra) has been pleased to hold as under:

The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when certain new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice.

Thus, the question which has cropped up is as to whether learned Magistrate was justified in according permission for further investigation in the facts and circumstances of the case?

It has already been noticed that upon investigation of a case, charge sheet was submitted against Devendra R. Purohit and the investigation was kept pending against Denial Ekka. However, subsequently, he was arrested and is said to have confessed his guilt and at the same time, he is said to have disclosed about the complicity of the other accused. After recording his confessional statement, supplementary charge sheet was submitted. Thereupon, it was intimated by the Superintendent of Police, Gumla that no further investigation is required and the investigation is complete. Much after submission of the supplementary charge sheet, the Investigating Officer comes forward with an application seeking permission of the court for further investigation on the plea that name of some persons got transpired in the confessional statement of Denial Ekka which needs to be investigated upon but that cannot be taken as a fresh material as those facts were there before the supplementary charge sheet was submitted against Denial Ekka. It is never the case of the prosecution that after submission of the supplementary charge sheet any new fact came to light. Nothing seems to be thre in this regard in the application submitted by the Investigating Officer. In spite of that, application was filed for seeking permission for further investigation.

Under the circumstances, factum of disclosure of the materials in the confessional statement of Denial Ekka cannot be considered to be a fresh or further material nor there appears to be a case of prosecution that investigation which was made was tainted or unfair nor anything was placed to show that further investigation is otherwise necessary for the ends of justice.

In that view of the matter, learned Magistrate certainly committed illegality in according permission to the Investigating Officer to go for further investigation. Hence, the order dated 2.6.2011 is hereby quashed. Consequently, further investigation in the circumstances stated above never warrants to be gone into. In the result, this application is allowed.