Kishan
Lal Vs. Dharmendra Bafna & ANR. [2009] INSC 1254 (21 July 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1283
OF 2009 (Arising out of SLP (CRL.) No. 2703 of 2008) KISHAN LAL ... APPELLANT
Versus
S.B.
Sinha, J.
1.
Leave granted.
2.
Jurisdiction of a Magistrate to direct reinvestigation of a case
from time to time as laid down under sub-section (8) of Section 173 of the Code
of Criminal Procedure, 1973 (for short, "the Code") is the question
involved in this appeal. It arises out of a judgment and order dated 13th
March, 2008 passed by a learned single judge of the High Court of Judicature at
Madras in Crl. R.C. No. 245 of 2008 allowing the criminal revision application
filed 2 by the respondent No.1 from an order dated 13th February, 2008 passed
by the learned III Metropolitan Magistrate, George Town, Chennai.
3.
Indisputably, on or about 30th December 2005, a complaint was
lodged by the appellant against Accused Nos. 1 to 9, namely, Lakshmichand Bafna
(Accused No.1), Dharmendra Bafna (Accused No.2), Mahendar Bafna (Accused No.3),
Rakesh Bafna (Accused No.4), G.R. Surana (Accused No.5), Shantilal Surana
(Accused No.6), Vijayaraj Surana (Accused No.7), Dinesh Chand Surana (Accused
No.8) and Maran (Accused No.9) before the Commissioner of Police, Chennai City,
Chennai inter alia alleging that they connived together from the beginning and
cheated him a sum of Rs.4.65 crores by denying to return the money which was
given to them for purchase of gold. It was alleged that the amount was
entrusted on various dates from 06th October 2005 to 17th November 2005.
Although they have admitted the liability to the extent of 4.95 crores, but did
not return either any gold or money to the complainant.
4.
On or about 12th January 2006, an application for grant of
anticipatory bail before the High Court of Madras was filed by all the accused
stating that the Accused Nos. 5 to 8 are brothers and are the directors of
their family business known as M/s Surana Corporation Limited. It was admitted
that 3 the Accused No.2 is the sub-agent of Surana Corporation Limited who
introduces investors.
5.
A First Information Report ("FIR") was lodged by the
appellant against all the accused on or about 22nd January, 2006 in the Central
Crime Branch Station.
Allegedly,
on or about 27th January 2006, in the aforementioned bail application, the said
accused filed statement of accounts of the appellant/de facto complainant
mentioned in the Multi Commodity Exchange of India Limited ("MCX")
which is a Government approved On-Line Trading Exchange of Bullion, Energy,
Metal and Oil, admitting that they had undertaken bullion trade with MCX by
using the appellant's money.
Apart
from the said FIR, the parties have filed some Civil Suits also.
Indisputably,
however, Banwarlal Sharma (Accused No.10) was subsequently added. It is
furthermore not in dispute that the investigation was transferred to CBCID,
Chennai by the Director General of Police, Tamil Nadu.
On or
about 8th October, 2007, a charge-sheet was filed before the learned III
Metropolitan Magistrate, George Town, Chennai only against 4 Accused Nos. 1 and
2 under Sections 406, 420 and 120B of the Indian Penal Code ("IPC").
The learned Magistrate took cognizance against the said accused.
On or
about 29th October 2007, on the premise that the learned Magistrate had not
taken cognizance against the other accused, the appellant filed an application
under Section 482 of the Code before the High Court for setting aside the said
order. The said application was disposed of by the learned single judge of the
High Court in the following terms:
"8.
Therefore in the considered view of this order, the above criminal original
petition can be disposed of with the following directions:- The petitioner is
at liberty to file an appropriate petition before the III Metropolitan
Magistrate,George Town, Chennai, incorporating his grievances and the alleged
lapses on the part of the investigating agency and seek further investigation
in the case. On such petition being filed, the learned Magistrate, shall
consider the same in accordance with law and if the learned Magistrate is
satisfied that a case has been made out by the petitioner for ordering further
investigation under Section 173(8) of the Criminal Procedure Code, the learned
Magistrate is entitled to invoke the powers under Sections 173(8) of the
Criminal Procedure Code and direct the respondent to further investigate into
the matter."
5
Pursuant to or in furtherance of the said observations, appellant filed an
application for further investigation before the learned Magistrate and by an
order dated 13th February 2008, a direction for further investigation was
issued, observing:
"While
considering the averments made in this petition, this Court holds that several
kinds of issues were not undisclosed and beyond from knots of doubts. If those
doubts were not cleared through suitable investigation, no opportunity could be
given to get it revealed the true picture.
While
considering the nature of the case, it is important to find out how the amount
given by the petitioner utilized, when it was utilized and on which state the
amount has been kept. But, as alleged on behalf of the petitioner, it is the
duty of this Court to find out the truth by holding suitable investigation of
the matters which were unearthed.
In the
event of this court refusing to find out the true picture by ordering a
reinvestigation, either party is likely to get hardships and losses. If the
reinvestigation is ordered, a situation for handing out an opportunity for both
the parties to bring out the hidden truths in this case and the facts in this
case and this Court holds that it would pave a way for conducting a trial in
the proper direction.
As this
court holds that certain cause of actions available in this case, and in view
of the necessity to find out several facts in this case and in accordance of
the orders of the High Court of Madras in CRL.O.P. 33354 of 2007, it is to meet
the ends of justice, the case could be ordered for reinvestigation and thereby
the petition presented by the Petitioner/complainant u/s 173(8) is
allowed."
6 Accused
No.2 filed revisional application thereagainst before the High Court. By reason
of the impugned judgment, as noticed hereinbefore, the said revision
application has been allowed.
6.
Mr.K.T.S. Tulsi, learned Senior Counsel appearing on behalf of the
appellant would contend:
(i) The
High Court committed a serious error in opining that no direction for further
investigation or reinvestigation can be directed after cognizance of an offence
is taken.
(ii) The
application for a direction for further investigation having been filed only in
terms of the order of the High Court dated 17th December 2007, another learned
judge of the same High Court could not have taken a contrary view.
(iii)
Direction for further investigation having been made by the learned Magistrate
upon taking into consideration all aspects of the matter, the High Court
committed a serious error in interfering therewith.
(iv) The
High Court committed a serious error in passing the impugned judgment insofar
as it failed to take into consideration that Accused No.6 being father of
Accused No.2 and Accused Nos. 5, 7 and 8 being his brothers; were running and
operating Surana Corporation Limited and having admittedly invested the said
amount in MCX, they must be held to have conspired together for
misappropriation of the aforementioned amount of Rs.4.65 crores entrusted by
the appellant to the accused No.2, and consequent refusal on their part to
return the amount on the ground that they have suffered a huge loss.
7.
Mr. U.U. Lalit, the learned Senior Counsel appearing on behalf of
the accused other than accused Nos. 2 and 6, on the other hand, urged:
(i)
Despite the fact that the learned Magistrate had the requisite jurisdiction to
direct further investigation, such order could not have been passed in the
instant case as all aspects of the matter had been taken into consideration by
the Investigating Officers.
(ii)
Further investigation, the learned counsel would urge, could be directed only
in the event where investigation was not carried in respect of certain aspects
of the matter or where during trial it came to the notice to the court that
some facts which were relevant for arriving at the truth had not been gone
into.
8.
Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the
State would take us through the detailed counter affidavit filed on behalf of
the State to contend that the investigation had been carried out in a fair and
diligent manner touching all aspects of the matter.
9.
It is now a well settled principle of law that when a final form
is filed by any Investigating Officer in exercise of his power under
sub-section (2) of Section 173 of the Code, the first informant has to be given
notice. He may file a protest petition which in a given case may be treated to
be a complaint petition, on the basis whereof after fulfilling the other
statutory requirements cognizance may be taken. The learned Magistrate can also
take cognizance on the basis of the materials placed on record by the
investigating agency. It is also permissible for a learned Magistrate to direct
further investigation.
9 The
Investigating Officer when an FIR is lodged in respect of a cognizable offence,
upon completion of the investigation would file a police report. The power of
investigation is a statutory one and ordinarily and save and except some
exceptional situations, no interference therewith by any court is permissible.
In Naresh
Kavarchand Khatri vs. State of Gujarat & Anr. [(2008) 8 SCC 300], this
Court held:
"6.
The power of the court to interfere with an investigation is limited. The
police authorities, in terms of Section 156 of the Code of Criminal Procedure,
exercise a statutory power. The Code of Criminal procedure has conferred power
on the statutory authorities to direct transfer of an investigation from one
Police Station to another in the event it is found that they do not have any
jurisdiction in the matter. The Court should not interfere in the matter at an
initial stage in regard thereto. If it is found that the investigation has been
conducted by an Investigating Officer who did not have any territorial
jurisdiction in the matter, the same should be transferred by him to the police
station having the requisite jurisdiction.
In
Dharmeshbhai Vasudevbhai & Ors. vs. State of Gujarat & Ors.
[2009 (7)
SCALE 214], this Court held:
10
"9. Interference in the exercise of the statutory power of investigation
by the Police by the Magistrate far less direction for withdrawal of any
investigation which is sought to be carried out is not envisaged under the Code
of Criminal Procedure. The Magistrate's power in this regard is limited. Even
otherwise, he does not have any inherent power. Ordinarily, he has no power to
recall his order.
This
aspect of the matter has been considered by this Court in S.N. Sharma v. Bipen
Kumar Tiwari & Ors. [(1970) 1 SCC 653], wherein the law has been stated as
under :
"6.
Without the use of the expression "if he thinks fit", the second
alternative could have been held to be independent of the first; but the use of
this expression, in our opinion, makes it plain that the power conferred by the
second clause of this section is only an alternative to the power given by the
first clause and can, therefore, be exercised only in those cases in which the
first clause is applicable.
7. It may
also be further noticed that, even in sub-section (3) of Section 156, the only
power given to the Magistrate, who can take cognizance of an offence under
Section 190, is to order an investigation; there is no mention of any power to
stop an investigation by the police. The scheme of these 11 sections, thus,
clearly is that the power of the police to investigate any cognizable offence
is uncontrolled by the Magistrate, and it is only in cases where the police
decide not to investigate the case that the Magistrate can intervene and either
direct an investigation, or, in the alternative, himself proceed or depute a
Magistrate subordinate to him to proceed to enquire into the case. The power of
the police to investigate has been made independent of any control by the
Magistrate."
Interpreting
the aforementioned provisions vis-a-vis the lack of inherent power in the
Magistrate in terms of Section 561-A of the Old Criminal procedure Code
(equivalent to Section 482 of the new Code of Criminal procedure), it was held
:
"10.
This interpretation, to some extent, supports the view that the scheme of the
Criminal Procedure Code is that the power of the police to investigate a
cognizable offence is not to be interfered with by the judiciary. Their
Lordships of the Privy Council were, of course, concerned only with the powers
of the High Court under Section 561-A CrPC, while we have to interpret Section
159 of the 12 Code which defines the powers of a Magistrate which he can
exercise on receiving a report from the police of the cognizable offence under
Section 157 of the Code. In our opinion, Section 159 was really intended to
give a limited power to the Magistrate to ensure that the police investigate
all cognizable offences and do not refuse to do so by abusing the right granted
for certain limited cases of not proceeding with the investigation of the
offence."
Yet again
in Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors.
[(1976) 3
SCC 252], this Court, upon comparison of the provision of the old Code and the
new Code, held as under :
"7.
Section 156(3) occurs in Chapter XII, under the caption :
"Information
to the Police and their powers to investigate";
while
Section 202 is in Chapter XV which bears the heading:
"Of
complaints to Magistrates".
The power
to order police investigation under Section 156(3) is different from the power
to direct investigation conferred by Section 202(1).
The two
operate in distinct spheres at different stages. The first is exercisable at
the pre- cognizance stage, the second at 13 the post-cognizance stage when the
Magistrate is in seisin of the case. That is to say in the case of a complaint
regarding the commission of a cognizable offence, the power under Section
156(3) can be invoked by the Magistrate before he takes cognizance of the
offence under Section 190(l)(a). But if he once takes such cognizance and
embarks upon the procedure embodied in Chapter XV, he is not competent to
switch back to the pre- cognizance stage and avail of Section 156(3). It may be
noted further that an order made under sub-section (3) of Section 156, is in
the nature of a peremptory reminder or intimation to the police to exercise
their plenary powers of investigation under Section 156(1). Such an
investigation embraces the entire continuous process which begins with the
collection of evidence under Section 156 and ends with a report or charge-sheet
under Section 173. On the other hand, Section 202 comes in at a stage when some
evidence has been collected by the Magistrate in proceedings under Chapter XV,
but the same is deemed insufficient to take a decision as to the next step in
the prescribed procedure. In such a situation, the Magistrate is 14 empowered
under Section 202 to direct, within the limits circumscribed by that section an
investigation "for the purpose of deciding whether or not there is
sufficient ground for proceeding". Thus the object of an investigation
under Section 202 is not to initiate a fresh case on police report but to
assist the Magistrate in completing proceedings already instituted upon a
complaint before him."
We are,
however, not oblivious of the fact that recently a Division Bench of this Court
in Sakiri Vasu vs. State of Uttar Pradesh & Ors. [(2008) 2 SCC 409] while
dealing with the power of the court to direct the police officer to record an
FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate
had also a duty to see that the investigation is carried out in a fair manner
(correctness whereof is open to question).
10.
An order of further investigation can be made at various stages
including the stage of the trial, that is, after taking cognizance of the
offence.
Although
some decisions have been referred to us, we need not dilate thereupon as the
matter has recently been considered by a Division Bench of 15 this Court in
Mithabhai Pashabhai Patel & Ors. vs. State of Gujarat [2009 (7) SCALE 559]
in the following terms:
"16.
This Court while passing the order in exercise of its jurisdiction under
Article 32 of Constitution of India did not direct re- investigation. This
court exercised its jurisdiction which was within the realm of the Code.
Indisputably
the investigating agency in terms of sub-section (8) of Section 173 of the Code
can pray before the Court and may be granted permission to investigate into the
matter further.
There
are, however, certain situations, where such a formal request may not be
insisted upon.
17. It
is, however, beyond any cavil that `further investigation' and
`re-investigation' stand on different footing. It may be that in a given
situation a superior court in exercise of its constitutional power, namely
under Articles 226 and 32 of the Constitution of India could direct a `State'
to get an offence investigated and/or further investigated by a different
agency. Direction of a re-investigation, however, being forbidden in law, no
superior court would ordinarily issue such a direction.
Pasayat,
J. in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413], opined as under :-
"7. At this juncture it would be necessary to take note of Section 173 of
the Code. From a plain reading of the above section it is evident that even
after completion of 16 investigation under sub-section (2) of Section 173 of
the Code, the police has right to further investigate under sub-section (8),
but not fresh investigation or reinvestigation..."
11.
We have referred to the aforementioned decision only because Mr. Tulsi
contends that in effect and substance the prayer of the appellant before the
learned Magistrate was for reinvestigation but the learned Magistrate had
directed further investigation by the Investigating Officer inadvertently.
The
Investigating Officer may exercise his statutory power of further investigation
in several situations as, for example, when 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.
12.
The question, however, is as to whether in a case of this nature a
direction for further investigation would be necessary.
17 Mr. Dhayalan,
Inspector of Police, Crime Branch CID, Metro Wing, Chennai in his counter
affidavit inter alia brought to this Court's notice that the matter was
investigated by (1) Tr. S. Saravana Brabu, Inspector of Police, Chennai CCB,
(2) Tr. Salathraj, Assistant Commissioner of Police, CCB Chennai (3) Tr. S.
Veiladurai, Assistant Commissioner of Police, Job Rocket and Video Piracy,
Chennai City, (4) Tr. C. Edward, Inspector of Police, CCB, Chennai and (5) Tr.
K.G. Rajakumar, Assistant Commissioner of Police, CCB, Egmore, Chennai apart
from him.
We have
noticed hereinbefore that the investigation was transferred to CBCID by an
order dated 29th March 2007 passed by the DGP, Tamil Nadu.
The
matter, thus, has been investigated by two specialized agencies. The deponent
of the counter affidavit categorically stated that he had made a thorough
investigation and upon consideration of the materials gathered during
investigation identified that there was no connection between the money of the
de facto complainant and Accused Nos. 3 to 10 and hence the final form was
filed in their favour. It was pointed out that the complainant had filed the
aforementioned application under Section 173(8) of the Code principally on the
premise that no investigation had been carried out in respect of three
documents being (1) The additional grounds raised in the 18 anticipatory bail
application, (2) The plaint filed by Accused No.2 in the Civil Suit filed by
him and (3) the letter written by Mahaveer Surana, the authorized signatory of Surana
Corporation Ltd., to the Chief Minister's cell.
It was
furthermore pointed out:
"(b)
The second accused came forward with improbable stories for him to escape from
prosecution. The version of the accused in his anticipatory bail application is
without any material to support the same and was not believed.
Similarly,
the version of A2 in the suit filed by him was also not believed as it was not
borne out by any documentary evidence. Similarly, the letter written by
Mahaveer Surana to the Chief Minister's Cell is also a document intended to
save A-1 and A-2 from the crime and hence not to be believed. The version of
the de facto complainant, the petitioner herein and also of A-2 to establish
the connection between the money paid by the de facto complainant to A-2 with
A-3 to A-10 is not borne out by any documentary evidence. Hence, the case
against A-3 to A-10 were dropped. All the three documents are that of the
accused. The documents cannot be proved through accused. No accused can be
compelled to be a witness against himself. The documents could be hit by under
Article 20(3) of the Constitution of India."
The
investigating officer was of the opinion that the amount of Rs.4.65 crores was
given to Accused No.2 for both trading in gold and silver 19 on the basis of
orally agreed terms. Accused No. 2 was introduced by Accused No.1. Accused No.2
had given the said amount on 18th November 2005 to M/s Vinayaga Vyapar Limited
on various dates on its own risks and on the basis whereof M/s Vinayaga Vyapar
Ltd. entered transactions with M/s Surana Corporation Ltd. on 17th November
2005 and all payments had been made through cheques only. Upon giving the
details, the Investigating Officer had come to the following conclusion:
"These
transactions were for speculative trading only. It is stated in the FIR filed
by the petitioner that the transaction between the petitioner and the A-2
Dharmendra Bafna are independent transaction between themselves and no third
party was involved. The petitioner did not make any agreement or contract with
the A-2 Dharmendra Bafna for doing gold bullion forward trade business and
failed to obtain the trade order, trade execution order and trade confirmation
order from the A-2 Dharmendra Bafna and did not deal in cheque transactions. The
petitioner has given Rs.4.65 crores by cash and entered upon a shady
transaction with the A4 Dharmendra Bafna."
In regard
to the statements made by the accused in their application for anticipatory
bail with regard to account with M/s MEGHA GG, it has been contended that the
same cannot be construed to be an admission on the part of the Accused Nos. 3
to 10 especially when the petition had not been 20 signed by any of the accused
and all the documentary evidence and material gathered during the investigation
were to the contrary. The said Shri Dhayalan had also stated in great details
as to why Accused Nos. 3 to 10 were dropped. He had also taken into
consideration the dealings by and between the parties inter se as also the
litigations filed by them against each other. It is neither necessary nor
desirable to notice the statements made therein by us as we are concerned with
a question of law.
13.
It is correct that the revisional court should not interfere with
the discretionary jurisdiction exercised by the learned Magistrate unless a
jurisdictional error or an error of law is noticed.
We have
noticed hereinbefore the order passed by the learned Magistrate. His order that
"several kinds of issues were not disclosed and beyond from knots of
doubts" is vague in nature. It has not been pointed out that in what
respect the investigation has not been carried out. What are hidden truths
required to be unearthed had also not been pointed out. The learned Magistrate
did not consider the fact that the investigation had been carried out by two
different agencies and by responsible police officers. It has not been found
that the Investigating Officer was in any way biased towards the complainant.
Furthermore, if the contention of Mr. Tulsi is 21 correct, the question as to
whether Accused Nos. 3 to 10 were involved in the matter could be pointed out
from the materials which had already been brought on record. Furthermore,
whether the admissions made in the application for anticipatory bail were
binding on them, the same being a matter of inference can also be urged. The
other and further remedies as pointed out can be resorted to as also invocation
of the provisions of Section 319 of the Code at the stage of trial is also
permissible in law, if an appropriate case is made out there for. We
furthermore clarify that any observations made by the High Court or by us
should not prejudice the either party and the learned Magistrate should
consider the matter on its own merit and without in any way being influenced by
the same, if any occasion arises in this behalf in future.
14.
For the reasons aforementioned, we do not find any merit in this
appeal. The appeal is dismissed accordingly.
......................................J. [S.B. Sinha]
......................................J. [Deepak Verma]
New Delhi;
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