Union Public Service Commission Vs. S. Papaiah
& Ors [1997] INSC 725 (11 September 1997)
A.S.
ANAND, K. VENKATASWAMI
ACT:
HEADNOTE:
DR.ANAND
J Special leave grated.
Union
Public Service Commission (hereinafter the UPSC), appellant herein, conducted
Indian Forest Service Examination for 1992. One of the centres for the
examination was the Urdu-Hall sub-centre at Hyderabad.
Respondent
No.1 appeared as a candidate and took the examination from the said hall. On September 27, 1993 the UPSC sent to the joint Director,
CBI, a complaint alleging the use of unfair means at the examination by
respondent No.1 in collusion with the supervisor incharge of the said
centre-respondent No.2. It was pointed out by the UPSC in the complaint that it
had received a pseudonymous letter disclosing that answer sheets were written
by the candidate- respondent No.1 at a specified address in Gandhi Nagar, Hyderabad, outside the examination hall. It
was also stated that the UPSC had found certain factors suggesting a nexus
between the candidate-respondent No.1 and the supervisor incharge, after an
examination of answer books, answer and certain other documents. It was then
stated that respondent No.1 appears to have adopted the same modus-operandi on
an earlier occasion too by appearing at the Urdu-Hall sub- centre instead of at
the allotted centre for 1993 Civil Services (Preliminary) exam held on June 13,
1993. The UPSC requested the CBI to investigate the case on a priority basis
and to intimate the results of the investigation to it. The CBI on receipt of
the complaint registered it as complaint No.17/14/93-C.IV and on October 19,
19, 1993, a regular case was registered by the CBI on the basis of the
aforesaid complaint being Crime No. 3(S)/93-SIU.II against respondent Nos. 1,2
and 3 for offences under Sections 120-B, 420, 381, 468 and 478 I.P.C. The
investigation was entrusted to Shri T.N. Rao, S.P. It transpires from the
record that on September
12, 1994, the CBI
filed a final report under Section 173 Cr.p.c.
in the
court of the Vth Metropolitan Magistrate, Hyderabad, before whom the FIR had been lodged, seeking closure of the case. The
CBI inspite of the request to it by the UPSC did not inform it about the filing
of the final report seeking closure of the case. On December 5, 1994, the Vth Metropolitan Magistrate returned the final report
because copy of the notice required to be issued to the complainant by the CBI
had not been filed along with it, though on behalf of the CBI it was asserted
that it had informed the UPSC regarding the filing of the closure report. On December 24, 1994, final report was resubmitted by
the CBI to the Court of Vth Metropolitan Magistrate along with a copy of the
notice sent by the CBI to the appellant-complainant.
Once
again, on December 31. 1994 the Vth Metropolitan Magistrate returned the final
report to the CBI, seeking proof of service of notice on the de-facto
complainant. In his order the learned Metropolitan Magistrate further directed
the CBI that in the notice to be served upon the UPSC, it should be clearly
indicated that the UPSC may file its objections to the final report. On January 6, 1995 the CBI, it appears, resubmitted
the final report together with an acknowledgment of the receipt of notice from
the UPSC dated December
19, 1994. In the
notice, the receipt of which was acknowledge by the UPSC on December 19, 1994
and copy whereof was filed by the CBI in the Court on January 6, 1995, the CBI
had not informed the UPSC that it could file objections to the final report as
directed by the learned Magistrate. The CBI, for reasons best known to it, did
not comply with the order of the Vth Metropolitan Magistrate dated December 31, 1994. Neither a fresh notice was issued
nor was the UPSC told that under orders of the learned Metropolitan Magistrate
it could file its objections. The final report was once again returned by the Vth
Metropolitan Magistrate to the CBI on January 12, 1995, as the statements of the
witnesses, copies of the documents including the reports of the hand writing
experts etc. had not been filed by the CBI along with the closure report. While
matters rested thus, the UPSC addressed a letter to Shri K Vijaya Rama Rao,
Director, central Bureau of Investigation, New Delhi, on January 13, 1995
pointing out that CBI had informed it (vide its letter dated December 14, 1994)
that it had decided to close the case under Section 173 cr. P.C.
and
that the closure report had been filed in the court.
The
UPSC pointed out that the investigation had not been carried out properly and
the filing of the closure report was therefore not justified. The UPSC asserted
that there was need for reinvestigation because some of the vital points raised
in its complaint had not been touched at all by the investigating officer
during the investigation. As many as six such points were brought to the notice
of the Director, CBI. It was requested that the case be reinvestigated by the
CBI at some "higher level". This communication was in the nature of a
"protest petition" to the CBI in response to the notice from the CBI
to the UPSC dated December
14, 1995 informing it
that the CBI had filed closure report of the case before the learned
Magistrate.
While
the UPSC was awaiting further communication from the CBI in that behalf, the
CBI it appears resubmitted the closure report on February 24, 1995. On March
16, 1995, the Vth
Metropolitan Magistrate, accepted the final report submitted by the CBI and
closed the file without any opportunity being provided to the UPSC to have its
say.
Labouring
under the impression that the CBI would have started further investigation in
the case in view of its letter dated January 23, 1995 and oblivious of the fact
that the CBI had resubmitted the closure report, the UPSC on April 6, 1995
issued a reminder to the Director, CBI vide D.O.N.F.17/14/93-CI enquiring about
the "reinvestigation" of the case. On April 26, 1995, the Deputy
Inspector General of Police, CBI wrote a letter to the Secretary, UPSC, bearing
No.1881/3/(S)/93-SIU.II in which it was stated that the closure report had
since been filed in the court of the Vth Metropolitan Magistrate on February
24, 1995 under Section 173 Cr.P.C. along with all the original documents
including the statements of the witnesses and that the Court had accepted the
closure report and had closed the file. A copy of the order of the Court
accepting the file. A copy of the order of the court accepted the closure
report and has closed the file. A copy of the order of the Court accepting the
closure report was enclosed with the communication. Referring to the grievance
of the UPSC, as detailed in its letter dated January 23, 1995 addressed to the Director, the communication stated:
"Regarding
your queries raised vide your DO letter No.F 17/14/93-C.VI dt/ 23.1.95, it is
submitted that in case the UPSC desires that the case should be re-investigated
on the points raised by them, the concerned court has to be moved accordingly,
as the CBI's Closure Report has already been accepted by the Court." On
receipt of the above communication from the CBI, the UPSC filed a Criminal
Misc. Petition No.2040 of 1995 in R.C. No.2 of 1995 in the Court of the Vth
Metropolitan Magistrate at Hyderabad. In
the petition, after detailing the facts, it was submitted that the
investigation carried out by the CBI had been sketchy and that many vital
points mentioned in the complaint and high lighted in its letter dated January
23, 1995 addressed to the Director, had not been investigated properly. The
UPSC submitted that no notice had been issued by the learned Metropolitan
Magistrate to the UPSC before accepting the final report and therefore the
order of acceptance of the final report was vitiated. It was requested that
further high level investigation was necessary, as the case involved alleged
cheating during an All India Services Examination and was a matter of general
public Examination and was a matter of general public interest. The court was
requested to order re-investigation of the case in the interest of justice. In
response to the petition, the CBI filed its reply stating that since the UPSC
had not filed its objections to the final report, it could not be now permitted
to make any grievance about the acceptance of the final report and that the
petition be rejected. The court rejected the petition of the UPSC observing
that it has accepted the final report filed by the CBI on March 16, 1995, since the appellant had not filed
its objections to the acceptance of the final report and as such it could not
complain. Even though the Court, recorded in its order that it had not given
any notice to the appellant before accepting the final report filed by the CBI
on March 16, 1995 yet in declined to order
"reinvestigation" or further investigation. The Court opined that
since an order accepting final report was a judicial order and not an
administrative order, therefore, it had no power to review such an order passed
by it "rightly or wrongly" and that the UPSC could file a revision
petition seeking appropriate order against the acceptance of final report from
the revisional court. The UPSC then filed a revision petition before the 1st
additional Metropolitan Sessions Judge at Hyderabad on December 11,
1995. Vide order dated
March 8, 1996 Criminal Revision Petition No.2 of
1995 was dismissed by the revisional court. The learned Ist Additional
Metropolitan Session Judge agreed with the Vth Metropolitan Magistrate that the
Magistrate had no power to review its order dated March 16, 1995 and observed
that since the learned Magistrate had accepted the final report by following
proper procedure it did not require any interference. Referring to the
observations of this Court reported in AIR 1985 SC 1285 to the effect that an
opportunity is required to be given to both sides by the court before dropping
criminal proceedings against persons mentioned in the FIR, it was observed:
"In
the present case, notice was given to the petitioner as directed by the Lower
Court and the petitioner having not filed nay objections to the Final Report,
came up with a review application subsequently, which is not maintainable".
It is
this order of the learned Ist Additional Metropolitan Session Judge which has
been put in issue in the present appeal.
We
have traced the detailed facts of the case with a view to test the correctness
of the orders of the Magistrate dated March 16, 1995 and November 4, 1995 and that of the revisional court dated March 8, 1996 since facts assume great
significance in this case.
Mr. Altaf
Ahmad, the learned ASG appearing for the UPSC submitted that the observations
of the learned Sessions Judge that notice had been issued to the appellant
"as directed by the lower court" and inspite of that notice, the
appellant had not filed any objections was clearly erroneous and against the
record. Learned counsel submitted that the Vth Metropolitan Magistrate did not
call upon the appellant at any point of time to file objections to closure
report and notice whatsoever was issued by the Court to the appellant before
accepting the final report and though this factual position had been noticed by
the though this factual position had been noticed by the learned Magistrate
himself in its order in Cr.M.P.No. 2040 of 1995, the revisional court based its
order on wrong factual assumptions. The omission to issue notice to the
appellant before accepting the final report and closing the case, argued the
learned ASG, vitiates the order of the court accepting the final report and the
case requires to be further investigated.
In the
present case, admittedly, no notice was issued by the Vth Metropolitan
Magistrate to the appellant before accepting the final report submitted by the
CBI and deciding not to take cognizance and drop the proceedings. This omission
vitiates the order of the learned court accepting the final report. The issue
is no longer res-integra. A three Judge Bench of this Court in the case of Bhagwant
Singh vs. commissioner of Police & Anr. 91985) 2 SCC 537 speaking through Bhagwati,
J while dealing with a situation arising out of the report being forwarded by
an officer-in- charge of a police station to the Magistrate under sub- section
2(i) of Section 173, stating the no offence appears to have been committed,
opined that on receipt of such a report the Magistrate can adopt one of the
three courses i.e. (1) he may accept the report and drop the proceedings or (2)
he may disagree with the report and taking the view that there is sufficient
ground for proceeding further, take cognizance of the offence and issue process
or (3) he may direct further investigation to be made by the police under
sub-section 3 of Section 156. The bench, dealing with the first option of
dropping the proceedings went on to say:
"There
can, therefore, be no doubt that when, on a consideration of the report made by
he officer-in- charge of a police station under sub-section (2) (i) of Section
173, the Magistrate is and issue process, the informant must be given an
opportunity of being heard so that he can make his submissions to persuade the
Magistrate to take congnizance of the office and issue process. We are
accordingly of the view that in a case where the Magistrate to whom a report is
forwarded under sub-section (2)(i) of Section 173 decides no to take congnizance
of the offence and to drop the proceeding or takes the view that there is no
sufficient ground for proceeding against some of the persons mentioned in the
First Information Report, the Magistrate must give notice to the informant and
provide him an opportunity to be heard at the time of consideration of the
report." (emphasis supplied) As per the law laid down in Bhagwant Singh's
case (supra), the issuance of a notice by the Magistrate to the informant at
the time of consideration of the final report is a "must". This
binding precedent which is the law of the land, has not been followed by the vth
Metropolitan Magistrate and was wrongly ignored by the revisional court also.
The
argument of learned counsel for the respondent that since the CBI had issued a
notice to the appellant, it should be deemed to be sufficient compliance with
the requirement of law does not appeal to us. In the first place the issuance
of notice by the CBI to the appellant was not a substitute for the notice which
was required to be given by the Magistrate in terms of the judgment in Bhagwant
Singh's case (supra). The CBI also did not issue any fresh notice to UPSC
before it resubmitted the final report to the learned Magistrate on February 24, 1995. Learned Magistrate could not in
any event 'delegate' to the investigating agency its function of issuing
notice.
Moreover,
when law requires a particular thing to be done in a particular manner, it must
be done in that manner and in no other manner. That part, we find that the
order of the learned Magistrate accepting the closure report suffers from
another serious infirmity.
The
appellant had communicated to the Director, CBI certain defects in the
investigation on January 23, 1995 and had pointed out as many as six short
comings necessitating reinvestigation but the CBI did not bring that fact to
the notice of the Vth Metropolitan Magistrate while submitting the final report
on February 24, 1995 before the Magistrate decided to accept the final report
submitted by the CBI and close the file on March 16, 1955. It was, to say the least,
improper on the part of the investigating officer of the CBI to have withheld a
vital document dated January
23, 1995, addressed to
the Director, CBI which communication in our view was in the nature of a
"protest petition", from the learned Magistrate while resubmitting
the report on February
24, 1995. In all
fairness, the investigating agency should have brought that communication tot
he notice of the learned Metropolitan Magistrate before resubmitting the final
report for its acceptance. The withholding of vital information from the
learned Metroplitan Magistrate while resubmitting the final report along with
various documents on February 24, 1995, for reasons best known to the
investigating officer, has created a doubt in our minds about the fairness on
the part of the investigating officer while undertaking the investigations. Had
the contents of the communication of the appellant dated January 23, 1995 been brought to the notice of the
learned Magistrate, the possibility that be may not have agreed to drop the
proceedings cannot be ruled out. This 'lapse', deliberate or inadvertent, also
renders the order of March
16, 1995 bad.
The
appellant brought the contents of its communication dated January 23, 1995 to
the notice of the learned Metropolitan Magistrate through its Misc.Petition
No.2040 of 1995 seeking "reinvestigation" but the learned Magistrate,
rejected the petition vide order dated November 4, 1995 observing that
"rightly or wrongly that Court had passed an order and it had no power to
review the earlier order".
Here
again the learned Magistrate fell into an error. He was not required to
"review" his order. He could have ordered "further
investigation" into the case. it appears that the learned Metropolitan
Magistrate over-looked the provisions of Section 173(8) which have been enacted
to take care of such like situations also. That provision reads:- "173(8)
- Nothing in this section shall be deemed to preclude further investigation in
section (2) has been forwarded to the Magistrate and, where upon 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-sections (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 Magistrate could, thus in exercise
of the powers under Section 173(8) Cr.P.C. direct the CBI to "further
investigate" the case and collect further evidence keeping in view the
objections raised by the appellant to the investigation and the 'new' report to
be submitted by the investigating officer would be governed by sub-section (2)
to (6) of Section 173 Cr.P.C. The learned Magistrate, failed to exercise the
jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained.
The
learned Sessions Judge also committed an error in dismissing the revision
petition filed by the appellant. He also failed to take into consideration the
provisions of Section 173(8) Cr.P.C. The revisional court also committed errors
on questions of fact. The learned Sessions Judge erroneously observed that
notice regarding the filing of final report had been issued to the appellant
along with a copy of the final report calling upon it to file objections.
On
facts these observations are incorrect. Neither any notice was issued to the
appellant by the Court nor was the appellant ever called upon to file
objections to the final report by the Court. Even in the notice issued by the CBI
on December 14, 1994 for whatever it is worth, the UPSC was not called upon to
file objections, if it so desired.
Besides
the learned Sessions Judge also failed to consider the effect of withholding by
the investigating agency of the "objections" of the appellant
contained it its communication dated January 23, 1995 at the time of resubmission of the
closure report in February 1995. The learned Sessions Judge, thus, failed to
exercise his revisional jurisdiction properly and his order dismissing the revision
petition filed by the appellant in the established facts and circumstances of
the case cannot be sustained.
Thus,
for what we have said above we are of the opinion that the learned Magistrate
was not justified in accepting the final report of the CBI and closing the case
without any notice to the appellant and behind its back. The order of the
learned Magistrate dated March 16, 1995 closing the case and of November 4,
1995 dismissing the petition filed by the appellant as well as the order of the
learned Sessions Judge dated March 8, 1996 dismissing the revision petition are
set aside. The matter is remitted to the learned Metropolitan Magistrate for
its disposal in accordance with law. The learned Metropolitan Magistrate shall,
in the larger public interest to ensure the purity of the examination conducted
by the UPSC for All India Services, to select the best talent, issue directions
under Section 173(8) Cr.P.C. to the CBI to further investigate the case and
collect further evidence keeping in view the points raised by the appellant in
its communication addressed to the Director, CBI dated January 23, 1995 (supra)
(treating it as a 'protest petition') and then proceed further in the matter,
It would be appropriate that further investigation to be carried out by the CBI
under Section 173 (8) Cr.P.C. is directed to be carried out by an officer,
other than the officer who had earlier investigated the case and filed the
final report seeking closure of the case. The learned Metropolitan Magistrate
shall issue directions to that effect also to the investigating agency when
calling upon them to undertake further investigation under Section 173 (8) Cr.P.C.
The CBI shall be directed to complete the investigation expeditiously and
proceed in the matter in accordance with law in the light of the observations
made by us above.
Before
parting with the case, we wish to clarify that nothing said hereinabove shall
be construed as any expression of opinion on the merits of complaint filed by
the appellant.
The
appeal accordingly succeeds and is allowed but without any order as to costs.
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