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Judgment
The petitioner in this petition filed under Section 482 of Cr.P.C. has questioned the investigation as conducted by the investigating agency i.e. EOW after the order of the Apex Court passed in Criminal Appeal No.511 of 2006 dated 03.02.2011. The petitioner pleaded that the investigating agency has not followed the mandate of the Apex Court and sought permission from the Government of India to prosecute the petitioner in a case registered against the petitioner and other accused persons vide Crime No. 25/2004. The actions of the authorities and the investigating agency are contrary to law as well as the directions issued by the Apex Court.
The petitioner was appointed in Indian Administrative Services in the year of 1982. He was allocated Madhya Pradesh cadre. He served as Managing Director of Madhya Pradesh Industrial Development Corporation (hereinafter referred as ''Corporation'') from 20.01.2000 to 08.01.2004. The Corporation is a government company incorporated under the provisions of the Companies Act, 1956. The Board of Directors of the company includes Principal Secretary of Commerce and Industry, Finance Ministry representatives from the Government of India, I.D.B.I., Commissioner Industries. Chairman of the Corporation was Minister of Commerce and Industry. The petitioner was working as Managing Director of the Corporation. The Corporation in pursuance to decision taken by the Board of Directors entered into business of inter corporate deposits (ICD) in the year of 1995. The Corporation had been borrowing money from various sources on certain rate of interest and, thereafter, advancing the same in the shape of inter corporate deposits to various companies in order to facilitate industrial development in the State of Madhya Pradesh. After some time, corporation suffered loss. After inquiry, it was observed that Directors, Managing Directors of the Corporation had not acted bonafide and they had given inter corporate deposits (ICD) to various companies who were not eligible, due to which, there was loss to the Corporation.
A FIR was lodged at the Police Station State Economic Offices Investigation Bureau, Bhopal on 24.07.2004 leveling following allegations:
No project report was received from the companies before giving deposits.
The economic status of the Directors of the companies and the status of the companies in the market were not received from the bankers of the companies and other financial institutions.
There was no co-lateral security obtained from the banks.
In the FIR, 65 persons including the petitioner were made accused. On the basis of aforesaid FIR, EOW registered an offence vide Crime No.25/2004.
The petitioner challenged the registration of FIR against him for commission of offences punishable under Sections 409, 420, 467, 468 and 120-B of IPC in a petition filed under Section 482 of Cr.P.C. before this Court. The case was registered as M.Cr.C. No.8235/2005. This Court vide order dated 19.01.2006 quashed the criminal proceedings by holding that the FIR registered against the petitioner was illegal because the petitioner had not committed any offence. Against the aforesaid order, the S.B.I.A.E. Offences of M.P (SBIEO) filed a special leave petition before the Hon''ble Apex Court. It was registered as Criminal Appeal No.511 of 2006. The Apex Court vide order dated 03.02.2011 allowed the appeal with certain directions. The Apex Court passed following order:
"Heard learned counsel for the parties at length.
We feel that the order of the High Court quashing the F.I.R cannot be sustained but we decline to give reasons as the learned counsel for the parties apprehend that this may prejudice either of the parties during the course of the proceedings hereinafter. We, however, direct that the matter be investigated afresh and Mr. S.K. Dubey, the learned senior counsel for the appellant State assures that the investigation will be completed within three months. We also state that the Investigating Officer will keep in mind that every mistake or error committed by an officer need not amount to a criminal act and that in the normal course of official duties mistakes may and do occur. We direct that this aspect will be examined by the Investigating Officer very carefully. We also direct that the respondent will be given all opportunity to project his views and will also be permitted to furnish such documents as are necessary during the course of the investigation. We accordingly, allow this appeal and set aside the impugned order."
In pursuance to the order passed by the Apex Court, the EOW conducted investigation and sent the matter to the disciplinary authority i.e. Union of India for grant of sanction to prosecute the petitioner. At this stage, the petitioner again approached this Court.
Learned Senior Counsel appearing on behalf of the petitioner has contended that the investigating agency has not followed the mandate of the Apex Court. It has not conducted any ''afresh investigation'' and relying on the earlier investigation, completed some formalities and forwarded the matter to the Union Government to accord sanction which is contrary to law and the mandate of the Apex Court. Hence, it is liable to be quashed. He further submitted that as per observations made by the Apex Court, it was necessary for the investigating agency to conduct a de-novo investigation against the petitioner after taking into account observations made by the Hon''ble Apex Court. Nothing has been done by the investigating agency in the matter. Hence, the proceedings are liable to be quashed. In support of his contentions, learned Senior Counsel placed reliance on a decision of the Apex Court passed in the case of Vinay Tyagi vs Irshad Ali, reported in (2013) 5 SCC 762.
The learned Additional Advocate General has contented that the mandate of the Apex Court is not de-novo investigation. As per the order passed by the Apex Court, the investigating agency had conducted further investigation and the objections raised by the petitioner in regard to investigation and material placed by him have also been considered by the investigating agency and after taking into consideration the evidence collected during investigation, the investigating agency came on a conclusion that the petitioner has committed an offence. Consequently, the case was sent to the appointing authority i.e. Union of India for grant of sanction. There is no merit in this petition. The learned Additional Advocate General also relied on the same judgment of the Apex Court passed in the case of Vinay Tyagi vs Irshad Ali reported in (2013) 5 SCC 762.
The question arises for consideration before this Court is that whether investigating agency conducted investigation in accordance with the mandate of the Hon''ble Apex Court or not.
The order passed by the Apex Court has been quoted above in this order. The Apex Court mandated that ''the matter be investigated afresh.'' The Apex Court further observed that "the Investigating Officer will keep in mind that every mistake or error committed by an officer need not amount to a criminal act and that in the normal course of official duties mistakes may and do occur. We direct that this aspect will be examined by the Investigating Officer very carefully."
The Apex Court in the case of Vinay Tyagi vs Irshad Ali reported in (2013) 5 SCC 762 has considered the meaning of ''fresh'' or ''afresh'' investigation and has held as under:
"15. Further investigation is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, 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 to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ''fresh investigation''. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ''fresh''/''de novo'' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly."
The Apex Court has clearly observed that fresh investigation and de novo investigation could be ordered by the higher courts and if and while ordering fresh and de novo investigation there may be mention about the fate of earlier investigation conducted by the authority. In the present case, there is no mention by the Apex Court that what would be the fate of earlier investigation conducted by the investigating agency. However, the Hon''ble Apex Court has used the word ''afresh investigation'' with certain guidelines to the Investigating Officer.
The Apex Court in the case of Rama Chaudhary vs State of Bihar reported in (2009) 6 SCC 346 has considered ''afresh investigation'' and ''further investigation'' and held as under :
"17. From a plain reading of sub- section (2) and sub-section (8) of Section 173, it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right to "further" investigation under sub- section (8) of Section 173 but not "fresh investigation" or "reinvestigation". The meaning of "Further" is additional; more; or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether."
The Apex Court has clearly held that fresh investigation or re-investigation to be started ab-initio wiping out the earlier investigation altogether and has specifically held that re-investigation or further investigation means additional more or supplementary investigation. In the present case, as admitted by the investigating agency, it has conducted further investigation or supplementary investigation in continuation of earlier investigation. It is not ''afresh investigation'' as mandated by the Apex Court. This fact is clear from the pleadings and the list of chronological events of investigation, as pleaded by the prosecuting agency, done after 03.02.2011. The aforesaid list of documents of chronological events of investigation has been filed by the State alongwith additional return in W.P. No.874/2016.
On the basis of aforesaid investigation, a letter was sent to the petitioner on 31.01.2014 by the S.P., EOW to file his reply on the specific charges. The petitioner filed a detailed reply against 24 charges. There is no record that the investigating agency has conducted the investigation or verified the truth of the reply filed by the petitioner. It is also a fact, which is clear from the reply of the respondents, that the inter corporate deposits advanced to private companies were returned back by them either under OTS scheme or by compromise. The petitioner also pleaded in the petition that out of 18 companies, 14 companies had fully paid inter corporate dues (ICD) and there was no illegality in providing the said facility to the companies on the part of the petitioner. The investigating agency has considered and has investigated the matter in regard to three companies only. The investigating agency in para 16 of its reply filed before this Court admitted the fact that it has taken into consideration the earlier statements of the witnesses and the earlier investigation. The relevant pleadings are as under :
"16. That, it is specifically stated that during investigation conducted prior to 3/2/2011, the examined witnesses implicated Applicant in the crime. As there was no reason to come to the conclusion that falsehood was stated by these witnesses, it was neither legal nor prudent for investigating agency to resort the re-record their statements. Even the Hon''ble Apex Court did not observe in its order dated 3/2/2011 that statements recorded that for suffered some falsehood nor it directed their re-recording. Post 03/02/2011, afresh investigation was conducted and case diary was maintained. As the time for afresh investigation was limited to 3 months only and it was to be ascertained whether accused had any role in commission of crime, therefore 3 companies were selected randomly and every fact connected with crime was investigated afresh in their context including the examination of new witnesses. Thus, afresh investigation was in no perspective influenced by investigation conducted prior to 03/02/2011."
In para 17 of the reply, the investigating agency further admitted the fact that the legality and sanctity of evidence collected in earlier investigation was not cast aside by the Supreme Court. Hence, it was not obligatory on the part of the respondent i.e. investigating agency to discard it and collect evidence after 03/02/2011. Relevant pleadings of the respondent i.e. investigating agency in this regard reads as under:
"17. That, it is categorically denied that Respondent No.3 has adopted malicious tactics and is playing hide and seek. The legal sanctity of evidence collected in earlier investigation was not cast aside by the Hon''ble Supreme Court, therefore it was judicious, righteous and equitable on the part of Respondent no. 3 not to discard it and to collect evidence after 3/2/2011 to examine whether it gave corroboration to already collected material or dislodged the same completely or even partially for that matter. No unbecoming motive can be attributed to Respondent no. 3 for adopting this fair and legitimate investigation."
From the pleadings of investigating agency, it is clear that the investigating agency has conducted further investigation. However, the further investigation is contrary to fresh investigation as held by the Apex Court in the case of Rama Choudhary (supra) quoted above, where the Apex Court has clearly held that further investigation is continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio. In the opinion of this Court, continuation of further investigation by the investigating agency was contrary to the mandate given by the Apex Court in earlier order.
Learned Additional Advocate General has relied on para 46 of the judgment delivered in the case of Vinay Tyagi (supra) where the Hon''ble Supreme Court has observed that superior Courts can direct to conduct fresh/de-novo investigation but unless it specifically direct that the report already prepared or the investigation so far conducted will not form part of the record of the case. Such report may not be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case.
These observations have been made by the Hon''ble Apex Court in a situation where a report was submitted to the Magistrate and, thereafter, fresh investigation was ordered. In that context, the Hon''ble Court has observed that report so submitted earlier could not be brushed aside because it was a part of the record and the Magistrate has no jurisdiction to exclude the same. However, in the present case, the facts are quite different. The charge-sheet has not been filed before the competent Court of jurisdiction. The investigating agency is still investigating the matter. The case is under investigation stage. The investigating agency is not bound by the earlier investigation when a superior Court has ordered investigation ''afresh''. Hence, the arguments advanced by the learned Additional Advocate General could not be accepted.
On the basis of above discussions, in our opinion, the investigating agency has committed an error in concluding the investigation and the process of investigation adopted by the investigating agency is also contrary to the mandate of the Hon''ble Apex Court. The letter sent by the State Government to Union of India for grant of sanction against the petitioner to prosecute the petitioner is also contrary to law. Consequently, the petition is disposed of with the following directions :
(a) The letter of prosecution dated 12.09.2016 (Annexure- P/16) sent by the State Government to the Union of India for grant of sanction to prosecute the petitioner is hereby quashed.
(b) The investigating agency is directed to conduct investigation in accordance with the mandate of the Supreme Court, which means that the investigating agency would not take into consideration the prior investigation conducted by it before 03.02.2011 i.e. before the date of passing of the order by the Hon''ble Apex Court.
(c) The investigating agency is at liberty to conduct the investigation accordingly, as early as possible.
It is hereby made clear that this Court has not opined about the merits of the case.