Full Judgment Text
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PETITIONER:
UNION PUBLIC SERVICE COMMISSION
Vs.
RESPONDENT:
S. PAPAIAH & ORS.
DATE OF JUDGMENT: 11/09/1997
BENCH:
A.S. ANAND, K. VENKATASWAMI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
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
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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
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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
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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:
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"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
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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
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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.