Surindra Nath vs State of Raj. and Others

Vineet Kothari, J.—These three petitions filed u/s 482 Cr.P.C. seek to challenge the order dated 17.11.2005 passed by the learned Chief Judicial Magistrate, Jaipur City, Jaipur sending the three cases for further investigation to C.I.D. (CB), Jaipur u/s 173(8) of the Cr.P.C.

The facts of Criminal Misc. Petition No. 62/2006 are taken as leading case. The F.I.R. No. 385/2004 on 13.10.2004 in the aforesaid case was filed by one Mahesh Kumar Choudhary alleging the offences under Sections 406, 420, 467, 468 and 471 IPC and also Sections 63, 64 and 67 of the Copyright Act against the accused petitioners. The complaint in the aforesaid FIR was; that the complainant Mahesh Kumar Choudhary being partner of M/s. Saraswati Export, Jaipur had entered into some business agreement with the Firm of accused persons Mr. Surindra Nath Kapoor and Mr. Vikram Kapoor partners of M/s. S.N. Kapoor Export, Jaipur who were engaged in the business of export of carpets. The said agreement envisaged the manufacture of carpets as per the designs provided by the Firm of the accused persons and they had good marketing in the foreign countries for such carpets and therefore, the complainant agreed to undertake manufacturing activities as per the consultancy and designs etc. provided by the accused petitioners and in consideration of the same, the complainant was to pay consultancy charges/share in the profit. Under the revised agreement between the parties from 1.4.2003 instead of 10% of the sale value, the complainant was to pay Rs. Seventeen lacks per month to the accused petitioners. Later on certain disputes developed between the parties and the advance cheques given by the complainant to accused petitioners were dishonoured. It is the case of the complainant that by manipulating the dates in the cheques the accused petitioners committed the alleged offences and accordingly the said FIR was filed.

The police after investigation, however, did not find any offence to have been committed by the accused petitioners and submitted failure reports in the four FIRs bearomng Mp/357/2004, 384/2004 and 386/2004 filed at Police Station, Brahmpuri, Jaipur arid also F.I.R. No. 168/2004 at Police Station, Vidhayakpuri, Jaipur. These failure reports were respectively bearing No. 107 dated 28.10.2004, 108/28.10.2004, 109/28.10.2004 and 288/2.12.2004. The said failure report Annexure-2 is on record. Ultimately, police concluded that the allegations levelled against the accused petitioners were false and without any foundation and the complaint u/s 182 and 211 IPC for malicious prosecution was directed to be filed against the accused petitioners which is said to be pending.

Vide order dated 4.3.2005 Annexure-3 on record the Superintendent of Police (Investigation), CID (CB), Jaipur passed an order in pursuance of order passed by the Home Minister, Government of Rajasthan, Jaipur for further investigation of the aforesaid FIRs were transferred from local police to ''Addl. S.P. CID (CB)(Range Cell), Jaipur, thereupon vide letter dated 17.3.2005 Annexure-4 Additional S.P. CID (CB), Jaipur addressed the letter to the learned Chief Judicial Magistrate, Jaipur City, Jaipur to hand over the filed relating to the aforesaid cases which were pending before the said Court for approval of the failure reports given the local police as the same were required for further investigation in the matter. The learned Magistrate made and order on 18.3.2005 to return back the original filed to the said l.O. The said order of the learned CJM dated 18.3.2005 came to be challenged by the present petitioners before this Court by way of criminal misc. petition No. 573/2005 which was disposed of by this Court on 16.9.2005 directing the learned CJM to decide the application of the Addl. S.P. CID (CB) dated 17.3.2005 (Annex.4) afresh after considering all the material placed on record including the failure report and the recommendation of the police.

It is in pursuance of the said order of High Court that the present impugned order was passed by the learned CJM on 17.11.2005 after hearing the parties concerned, and by the impugned order the learned Magistrate has again arrived at the conclusion that for ''further'' investigation in accordance with Section 173(8) of the Cr.P.C. the original case files of the aforesaid four FIRs be returned to the Addl. S.P. CID (CB), Jaipur. Being aggrieved by the said order, the present Misc. Petitions have been filed in this Court and these petitions are disposed of by this common order.

Mr. S.R. Bajwa, Senior Advocate, learned Counsel appearing for the petitioners urged before this Court that, Section 173(8) Cr.P.C. only permits ''further investigation'' in respect of an offence after a report submitted under Sub-section (2) has been forwarded to the Magistrate and the said further investigation is permitted by "the officer-in-charge of the Police Station "and submitted that in present case, since the investigation was already over and a failure report has already been given by the police, there was no question of allowing the ''re-investigation'' under the garb of ''further investigation'' and since the fact of earlier investigation being over and having resulted in a failure report was not possibly brought before the Hon''ble Home Minister who directed the transfer of investigation to the Investigating Officer CID (CB), Jaipur assuming, albeit wrongly, that the investigation was still pending and therefore, there was no question of invoking Section 173(8) Cr.P.C. or allowing the reinvestigation in the matter and it would amount to abuse of the process of the law.

He further contended that the learned Magistrate has not complied with the direction given by this Court in the judgment dated 16.9.2005 as he has not considered the effect of failure report filed u/s 173(2) Cr.P.C. and also the fact that a complaint for malicious prosecution had already been filed against the complainant Mahesh Choudhary and same was pending. He further submitted that whatever is now sought to be dished out in the name of ''further investigation'' is nothing but the possible defence of the present complainant in proceedings against him for malicious prosecution pending in the Court u/s 182/211 IPC. He, therefore, prayed for quashing of the order of learned CJM dated 17.11.2005. He relied upon the following judgments in support of his submissions (i) K. Chandrasekhar Vs. The State of Kerala and Others, ; (ii) Vijayakumar v. Kamarudhin and Ors. 1999 Cr.L.J. 1294; (iii) Mahant Ram Saran Dass v. Harish Mohan and another, (2001) 10 SCC 758

As against this, Mr. Ashok Mehta and Mr. Biri Singh, learned Counsel for the respondents submitted that the learned Magistrate has not committed any error in directing the further investigation and in returning the original files to the Addl. S.P., CID (CB), Jaipur for such further investigation in terms of Section 173(8) Cr.P.C. Which in fact, does not even require the Court''s order for further investigation in the offence, after the final report is submitted by the police u/s 173(2) Cr.P.C. Mr. Mehta, contended that the dates on the cheques were forged by the accused petitioners and when carbon copies of the cheques maintained by the complainant were furnished before the local police at the time of earlier investigation, they even did not take cognizance of the same and therefore, further investigation in the matter was necessary which was rightly ordered by the Home Minister and since the law does not prohibit such further investigation by the police and no prejudice can be said to have been caused to the accused petitioners by the impugned order of the learned CJM, the present petitions filed by the petitioners u/s 482 Cr.P.C. is abuse of process of law and these petitions being misconceived deserve to be dismissed by this Court. He relied upon the following judgments in support of his submissions (i) Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, ; (ii) State of Bihar and Another Vs. J.A.C. Saldanha and Others, (iii) Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, and (iv) Ram Lal Narang Vs. State (Delhi Administration), . Learned Counsel for the complainant further submitted that even upon change of Investigating Agency like in those cases from local police to CBI, Jaipur and in the present case from local Police to CID (CB), the Addl. S.P. who is also a superior officer and therefore, with reference to Section 36 IPC, learned Counsel contended that further investigation cannot be stopped or pre-empted in this manner and a there is no question of re-investigation or taking a U-turn as alleged by the petitioners. They also supported the order of learned CJM that it fully complies with the letter and spirit of the judgment of this Court passed on 16.9.2005.

Having considered the rival submissions made by the learned Counsel for the parties and upon perusal of the judgments cited at bar, this Court is of the opinion, that these misc. petitions deserves to be dismissed.

Section 173(8) of Cr.P.C. clearly permits further Investigation even after the failure report is given by the police either positive report or a negative report as the case may be. Sub-section (8) is an enabling provision to permit further evidence oral or documentary to be taken before the Court upon further Investigation in respect of offences after a report under Sub-section (2) has been forwarded to the learned Magistrate. Obviously, with a view to assist the Court with the complete evidence in relation to the offences alleged to have been committed, the report under Sub-section (2) filed by the police whether it is a positive report seeking initiation of the trial or a negative report seeking approval of the Court thereupon is not a bar u/s 173(8) Cr.P.C. Sub-section (8) of Section 173 of Cr.P.C. reads as under:

Section 173(8). Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate, a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-section (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

The words "further investigation in respect of an offence after a report under Sub-section (2)...the officer-in-charge of the police station" used in Section 173(8) Cr.P.C. does not mean further investigation by the same investigating agency. Further investigation by a different investigating agency cannot be pre-empted on the ground of investigation already made by the earlier I.O. The law must be allowed to take its own course and injuncting such process prematurely by invoking extra ordinary powers conferred u/s 482 Cr.P.C. cannot sub serve the ends of justice and the offence as alleged are liable to be fully and thoroughly investigated and that is why the enabling powers like contained in Section 173(8) Cr.P.C. have been incorporated in the law. The words "further investigation" in Section 173(8) Cr.P.C. are not linked with the words "the officer-in-charge of the police station by the word ''by''." The words "further investigation" have suffixed by the words "in respect of an offence". Therefore, further investigation by a different investigation agency is not ruled out u/s 173(8) Cr.P.C. The arguments of the learned Counsel for the petitioners proceed on the presumption that upon further investigation the things are bound to take a U-turn against the accused petitioners only. There is no place for such presumption to accept or pre-empt the further investigation.

Therefore, this Court is inclined to hold that there is no error in the impugned order dated 17.11.2005 passed by the learned Chief Judicial Magistrate, Jaipur City, Jaipur and the same is not liable to be quashed and set aside by this Court.

Accordingly, the present Misc. Petitions are dismissed.