Full Judgment Text
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: April 22, 2009
DATE OF DECISION: May 6, 2009
+ CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008
JAVA SINGH ..... Petitioner
Through: Mr. Sidharth Luthra, Sr. Advocate with
Mr. Siddharth Aggarwal and Mr. Simon
Benjamin, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. P.P. Malhotra, ASG with Mr. Chetan
Chawla, Advocate
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. The present petition under Section 482 of the Code of the Criminal
Procedure has been filed challenging the summoning order issued by the
st
learned Special Judge, New Delhi dated 21 July, 2008 as well as the challan
under Section 173 Cr.P.C., which is alleged to be “incomplete” and in
contravention of the provisions of Section 190 Cr.P.C.
2. The facts leading to the filing of the petition are that FIR bearing No.RC
CRL.M.C. 2525/2008 Page No. 1 of 19
th
2(A)/2005 ACU (V) dated 19 March, 2005 under Sections 13(2) read with
13(1)(e) of the Prevention of Corruption Act came to be registered at P.S.
C.B.I./SPE/ACU(V), New Delhi. The aforesaid FIR was initially registered
against one Shri Akhand Pratap Singh (Retd. IAS), the father of the petitioner
herein, and was registered on the allegation that he possessed assets
disproportionate to his known sources of income almost two years after his
retirement. The period of commission of the offence was set out as 01.01.1978
to 31.05.1991 in the FIR and it was alleged that the acquisition of the
disproportionate assets were to the tune of Rs.21,45,872/- (Rupees Twenty
One Lakhs Forty Five Thousand Eight Hundred and Seventy Two only) during
the said period. The investigating agency conducted investigation and after a
th th
period of three years, on 27 / 28 March, 2008, it submitted a report under
Section 173 Cr.P.C. before the Court of the learned Special Judge, New Delhi.
th th
In the said report filed by the CBI on 27 / 28 March, 2008, it was submitted
that and that
“Further investigation on certain aspects is going on” “The
report in respect of the same will be submitted in due course” .
3. The grievance of the petitioner is that on the basis of the said report
filed under Section 173 Cr.P.C., the learned Special Judge by his order dated
st
21 July, 2008 took cognizance of the offences under Sections 13(2) read with
13(1)(e) of the Prevention of Corruption Act, 1988 and Sections 109, 120-B,
CRL.M.C. 2525/2008 Page No. 2 of 19
467 and 471 of the Penal Code and ordered issuance of summons to the
accused persons, including the petitioner.
th th
4. Aggrieved by the filing of the report dated 27 / 28 March, 2008 and
the consequent taking of cognizance and issuance of summons by means of
order dated July 21, 2008, the petitioner instituted the present petition seeking
quashing of the impugned order and the report under Section 173 Cr.P.C.
which, according to the petitioner, is an “incomplete” report irrespective of the
nomenclature sought to be given to it.
5. I have heard Mr. Sidharth Luthra, the learned senior counsel for the
petitioner and Mr. P.P. Malhotra, the learned Additional Solicitor General for
the respondent/Central Bureau of Investigation and gone through the impugned
order as well as the relevant provisions of law adverted to by the parties.
6. The principal contention of Mr. Luthra, the learned senior counsel for
the petitioner is that the filing of a temporary report during the course of an
on-going investigation is an act not contemplated by the legislators as
evidenced by the relevant provisions of the Cr.P.C. and as such, the report
th th
dated 27 / 28 March, 2008 which is not a “police report” within the meaning
of Section 173 Cr.P.C. ought to be rejected. Mr. Luthra vehemently contended
that there was a vital difference between the terms “investigation”, “further
investigation” and “re-investigation”. He urged that admittedly in the instant
CRL.M.C. 2525/2008 Page No. 3 of 19
case, the investigation itself had not been completed on the date of the filing of
the report, and that taking of cognizance and issuance of summons to the
accused persons whilst the investigative process is still on-going is unknown to
law and in violation of the basic jurisprudential tenents of criminal law. Thus,
the cognizance taken in the instant case under Section 190(1)(b) is illegal and
liable to be set aside, since the very foundation or basis of the said cognizance,
being a police report, does not exist.
7. Mr. Luthra submitted that further investigation predicates the existence
and discovery of fresh material and necessarily implies the exhaustion of the
material already in possession of the investigating agency. While sub-section
(2) of Section 173 deals with the forwarding of the police report on
completion of the investigation , sub-section (8) of Section 173, which has been
subsequently incorporated in the Code, deals with further investigation. Re-
investigation, on the one hand, is quite different and distinct from further
investigation and predicates investigation anew, which may be necessitated on
account of the earlier investigation having been found to be faulty on account
of one reason or the other.
8. According to Mr. Luthra, the principal requirement for invoking sub-
section (8) of Section 173 is that there must be a report filed in terms of sub-
section (2) of Section 173. In the instant case, Mr. Luthra submitted that the
CRL.M.C. 2525/2008 Page No. 4 of 19
police report was an “incomplete” report, and, accordingly could not be taken
into consideration by the learned Special Judge, CBI for the purpose of taking
cognizance of the the offences alleged to have been committed by the
petitioner and others.
9. Mr. Luthra, the learned senior counsel for the petitioner placed strong
reliance on a Single Bench judgment of the Delhi High Court in Hari Chand
& Raj Pal vs. State reported in ILR (1977) II Delhi 367 and on a judgment of
a Single Judge of the Andhra Pradesh High Court rendered in
T.V. Sarma vs.
Smt. Turgakamala Devi and others reported in 1976 Crl. L.J. 1247 to contend
that if the investigation is not complete, there is no police report, and
consequently there is no question of the Court taking cognizance of the case on
an incomplete challan.
10. Mr. P.P. Malhotra, the learned Additional Solicitor General urged on
behalf of the respondent that the contention of the petitioner that the challan
was “incomplete” , merely on account of the fact that it was incorporated in the
charge-sheet that further investigation was going on, was specious. In the
instant case, after three years of investigation a challan had been filed by the
investigating agency, which challan, by no stretch of imagination, could be
labelled as an “incomplete challan”, as was evident from a bare reading of the
same. Mr. Malhotra further contended that the challan on all the aspectes
CRL.M.C. 2525/2008 Page No. 5 of 19
investigated upon was in form and substance a complete challan, and the
investigating agency could not be precluded from carrying on further
investigation. In any case, it was not incumbent upon the investigating agency
to have stated in the report that further investigation would be undertaken. It
was only as a matter of courtesy to the Court that it was brought to the notice
of the Court that further investigation was being carried on, though in view of
the provisions of sub-section (8) of Section 173 it was neither incumbent upon
the investigating agency nor from any angle necessary for the investigating
agency to place on record the said fact.
11. The learned Additional Solicitor General, Mr. P.P. Malhotra also placed
reliance, in the above context, upon the judgments of the Hon'ble Supreme
Court in Ram Lal Narang vs. State (Delhi Administration) reported in (1979)
2 SCC 322, Upkar Singh vs. Ved Prakash and Others reported in ( 2004) 13
reported in
SCC 292, State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC
383 and Rama Chaudhary vs. State of Bihar reported in JT 2009 (5) SC 14 ,
to which I shall presently advert, but before I do so, a look at the relevant
provisions of the Code in my view is necessary to examine the sustainability of
the impugned summoning order passed by the learned Special Judge, CBI.
12. The term 'police report' has been defined in clause (r) of Section 2 of the
Code as follows:-
CRL.M.C. 2525/2008 Page No. 6 of 19
“Police report means a report forwarded by a police officer
to a Magistrate under sub-section (2) of Section 173.”
13. Sub-section (2) of Section 173 provides that
as soon as investigation
, the officer in-charge of the
under Chapter XII of the Code is completed
Police Station shall forward to a Magistrate empowered to take cognizance of
the offence on a police report, a report in the form prescribed by the State
Government. Sub-section (2) thus envisages the dual process of the
completion of the investigation and the forwarding of the police report to the
Magistrate for taking cognizance of the offence.
14. A look at Sections 173(1) and 173(2)(i) is warranted at this juncture in
view of the emphasis laid by Mr. Sidharth Luthra on the completion of
investigation being the sine qua non for the forwarding of the report under
Section 173, but before doing so, it is proposed to advert to the definition of
term “investigation” as defined in Section 2(h) of the Code. The said
definition reads:-
“h. 'Investigation' includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf.”
15. Section 173 which is contained in Chapter XII of the Code under the
heading “Information to the police and their power to investigate” is as
follows:-
CRL.M.C. 2525/2008 Page No. 7 of 19
“
173. Report of police officer on completion of
investigation.– (1) Every investigation under this Chapter
shall be completed without unnecessary delay.
(2) (i) the officer in charge of the
As soon as it is completed,
police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating–
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if
so, whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170.
(ii) The officer shall also communicate, in such manner
as may be prescribed by the State Government, the action
taken by him, to the person, if any whom the information
relating to the commission of the offence was first given.
(3) ...............................................................................
(4) ...............................................................................
(5) ...............................................................................
(6) ...............................................................................
(7) ...............................................................................
(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, 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).”
16. It may be noticed at this juncture that there was no provision in the 1898
CRL.M.C. 2525/2008 Page No. 8 of 19
Code prescribing the procedure to be followed by the police, where, after the
submission of the challan under Section 173(2) Cr.P.C. and after the
Magistrate had taken cognizance of the same, fresh facts came to light which
required further investigation, though, of course, there was no express
provision prohibiting the police from launching upon further investigation
st
upon fresh facts coming to light. The Law Commission in its 41 report
decided to place matters beyond the pale of controversy by a statutorily
affirming the right of the police to launch upon further investigation.
Accordingly, in the 1973 Cr.P.C., a new provision by way of Section 173(8)
was introduced as reproduced hereinabove, affirming the right of the police to
make repeated investigations.
17. It is pertinent also to note at this juncture that the Hon'ble Supreme
Court in the case of H.N. Rishbud vs. State of Delhi 1955 Crl. L.J. 526 held
that further investigation was not ruled out merely because cognizance of the
case had been taken by the Court, and that defective investigation coming to
light during the course of a trial may be cured by such further investigation as
the circumstances of the individual case may call for.
18. In the case of , while approving of its earlier
Ram Lal Narang (supra)
decision in Rishbud's case, the following pertinent observations were made by
the Supreme Court:-
CRL.M.C. 2525/2008 Page No. 9 of 19
“21. ....................................... Neither Section 173 nor
Section 190 lead us to hold that the power of the police to
further investigate was exhausted by the Magistrate taking
cognizance of the offence. Practice, convenience and
preponderance of authority, permitted repeated
investigations on discovery of fresh facts. In our view,
notwithstanding that a Magistrate had taken cognizance of
the offence upon a police report submitted under Section
173 of the 1898 Code, the right of the police to further
investigate was not exhausted and the police could exercise
such right as often as necessary when fresh information
came to light. Where the police desired to make a further
investigation, the police could express their regard and
respect for the court by seeking its formal permission to
make further investigation.”
19. The aforesaid decision, in my view, unequivocally upholds the statutory
right of the police to further investigate the matter after submission of the
report under Section 173(2) and even where the Magistrate has already taken
cognizance of the offence. The scheme of the Code thus is that the registration
of the FIR in the prescribed form under Section 154 is to be followed by
investigation by the police under Section 156 of the Code (which invests the
police with the power to investigate into cognizable offences without the order
of a Court). The investigation leads to the submission of a report to the
Magistrate under sub-section (2) of Section 173 of the Code and, on
submission thereof the Magistrate may take cognizance of the offence under
Section 190(1)(b) and issue process to the accused under Section 204 of the
Code. Thereafter the police on discovery of fresh information may submit a
CRL.M.C. 2525/2008 Page No. 10 of 19
further report or reports regarding the further investigation in the form
prescribed under Section 173(8) of the Code. In other words, the power of the
police to conduct further investigation even after laying the final report has
been clearly adumbrated and statutorily recognised in the new Code [See also
Sri B.S.S. V.V.V. Maharaj vs. State of Uttar Pradesh, 1999 Crl. L.J. 3661
(SC)] .
20. Looked at it from another angle, unless a report is forwarded under
Section 173(2) to the Magistrate, sub-section (8) cannot be pressed into service
for the purpose of further investigation and submission of further report or
reports. When no report is forwarded as required by the Code, there is no
question of “a further report or reports”.
21. A three-Judge Bench of the Supreme Court in Upkar Singh's case
(supra), after referring with approval to its earlier decision in State of Bihar
wherein it had considered the width of
vs. J.A.C. Saldanha (1980) 1 SCC 554
the scope and ambit of Section 173(8) of the Code, held: (SCC, page 299,
para 21)
“..............It is clear that even in regard to a complaint
arising out of a complaint on further investigation if it was
found that there was a larger conspiracy than the one
referred to in the previous complaint, then a further
investigation under the court culminating in another
complaint is permissible.”
22. In the case of A.S. Peter (supra) , the following important distinction
CRL.M.C. 2525/2008 Page No. 11 of 19
between further investigation and re-investigation was succinctly laid down by
the Supreme Court in paragraph 9 of its judgment, which is apposite:-
“9. Indisputably, the law does not mandate taking of
prior permission from the Magistrate for further
investigation. Carrying out of a further investigation even
after filing of the charge-sheet is a statutory right of the
police. A distinction also exists between further
investigation and reinvestigation. Whereas reinvestigation
without prior permission is necessarily forbidden, further
investigation is not.”
23. In the aforesaid case, the Supreme Court unequivocally held that it was
permissible for the investigating authority to carry out and direct further
investigation in the matter even without the prior permission of the Magistrate,
and the High Court of Andhra Pradesh had committed a manifest error in
taking the view that the investigation in question was a fresh investigation and
it was an imperative on the part of the investigating agency to have obtained
the express permission of the Magistrate concerned.
24. More recently, in the case of Rama Chaudhary vs. State of Bihar JT
2009 (5) SC 14 , the Hon'ble Supreme Court while rejecting the contention of
the counsel for the appellant, Rama Chaudhary that as the trial had commenced
and 21 witnesses had already been examined, the request of the prosecution for
further investigation could not be allowed in relation to the very same offence
and in relation to the very same accused, more so, as it would lead to the
summoning of eight new witnesses which would prejudice the defence of the
CRL.M.C. 2525/2008 Page No. 12 of 19
accused in the trial, and relying upon its earlier decisions in
Hasanbhai
Valibhai Qureshi vs. State of Gujarat and Others 2004 (5) SCC 347, held that
there was no valid ground for interference and dismissed the appeal. In
paragraphs 8 to 11, the legal position was summarised as follows:-
“ 8. A mere reading of the above provision makes it clear
that irrespective of report under sub-section (2) forwarded
to the Magistrate, if the officer in-charge of the police
station obtains further evidence, it is incumbent on his part
to forward the same to the Magistrate with a further report
with regard to such evidence in the form prescribed.
The above said provision also makes it clear that
9.
further investigation is permissible, however,
reinvestigation is prohibited. The law does not mandate
taking of prior permission from the Magistrate for further
investigation. Carrying out a further investigation even
after filing of the charge-sheet is a statutory right of the
police. Reinvestigation without prior permission is
prohibited. On the other hand, further investigation is
permissible.
From a plain reading of sub-section (2) and sub-
10.
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. Sub-section (8) of Section 173
clearly envisages that on completion of further
investigation, the investigating agency has to forward to the
Magistrate a “further” report and not fresh report
regarding the “further” evidence obtained during such
investigation.
11. As observed in Hasanbhai Valibhai Qureshi v. State
CRL.M.C. 2525/2008 Page No. 13 of 19
, [JT 2004 (4) SC 305; 2004 (5) SCC
of Gujarat and Others
347], the prime consideration for further investigation is to
arrive at the truth and do real and substantial justice. The
hands of investigating agency for further investigation
should not be tied down on the ground of mere delay. In
other words, the mere fact that there may be further delay in
concluding the trial should not stand in the way of further
investigation if that would help the court in arriving at the
truth and do real and substantial as well as effective
justice.”
25. In view of the aforesaid law reiterated by the Supreme Court time and
again, in my opinion, it is not possible for this Court to interfere with the
summoning order passed by the learned Special Judge, CBI on the basis that an
“incomplete challan” has been filed by the CBI. No basis or justification has
been put forth to enable this Court to return the finding that the challan in the
instant case is an “incomplete challan”. Merely because the investigating
agency, in the ultimate paragraph of the challan, has reserved its right to
submit a report with respect to further investigation in due course, cannot
enable this Court to hold that an incomplete charge-sheet has been filed by the
investigating agency. The learned senior counsel for the petitioner has not
been able to demonstrate to this Court in what manner or for what reason the
charge-sheet can be rejected as “incomplete”, and this Court after carefully
examining the same is not inclined to hold that an incomplete charge-sheet has
been filed by the respondent, nor, in view of the provisions of Section 173(8),
in my view, is this Court empowered to shut out further investigation in the
CRL.M.C. 2525/2008 Page No. 14 of 19
case, which has always been and will continue to be the terrain of the
investigating agency. Indeed, it is not discernible as to how fresh inputs
received during the pendency of the matter can be brushed aside and ignored
by the investigating agency. As far as the present charge-sheet is concerned,
therefore, I have no hesitation in opining it to be final and complete in every
sense of the word.
26. The reliance placed by the learned senior counsel for the petitioner upon
the judgment of this Court rendered in and of
Hari Chand & Raj Pal (supra)
a learned Single Judge of the Andhra Pradesh High Court in T.V. Sarma
(supra), is also misplaced. On a careful reading of the decision rendered in
, it becomes evident that the Court was dealing
Hari Chand & Raj Pal (supra)
with the application for grant of bail to the petitioner on the ground that no
police report as contemplated in sub-section (2) of Section 173 of the Criminal
Procedure had been filed by the officer in-charge of the Police Station and that
failure to complete the investigation within sixty days as required under sub-
section (2) of Section 167 of the new Code entitled the petitioner to be
released on bail. A learned Single Judge of this Court (Hon'ble Mr. Justice
F.S. Gill as His Lordship then was) held that in the body of the incomplete
challan filed in the Court, it had been clearly indicated that investigation was
still continuing, i.e., it had not been completed. Rejecting the contention raised
CRL.M.C. 2525/2008 Page No. 15 of 19
on behalf of the State that forwarding of the incomplete challan satisfied the
requirement of sub-section (2) of Section 173 of the Code and, therefore, the
petitioners could not derive any benefit of sub-section (2) of Section 167, the
Court held that police report as defined in Section 2(r) of the Code can only be
filed “as soon as the investigation is completed” and if it is not complete, no
such report can be filed and consequently, no cognizance can be taken by the
Magistrate nor sub-section (8) can be set in motion. It was further held that an
incomplete report or incomplete challan, with whatever expression it may be
called, does not meet the obligatory requirements of law, and to accept the
same would tantamount to profaning the express provision engrafted in Section
167(2) of the Code.
27. Likewise, in the case of T.V. Sarma (supra) , (which was relied upon in
Hari Chand & Raj Pal ), the Andhra Pradesh High Court taking note of the
fact that only a “preliminary charge-sheet” had been filed and it had been
specifically stated therein that the investigation had not yet been completed,
held that the same could not be treated as a “police report” within the meaning
of sub-section (2) of Section 173 Cr.P.C. and since no report under sub-section
(2) had been forwarded, sub-section (8) did not come into play at all. There
was also no question of the Magistrate taking cognizance of the case and for
the aforesaid reasons the Magistrate was justified in releasing the accused on
CRL.M.C. 2525/2008 Page No. 16 of 19
bail after the lapse of the sixty days period of detention under Section 167 sub-
section (2), Criminal Procedure Code.
28. Both the aforesaid decisions, in my view, were dealing with the
beneficial provision in proviso (a) of sub-section (2) of Section 167 of the New
Code, designed to cure the mischief of indefinitely prolonging the investigation
unmindful of its effect on the personal liberty of the citizen, and have no
application to the facts of the present case where a detailed challan has been
filed, after investigations spanning a period of three years, and no haste has
been shown by the prosecution to file a challan with a view to short-circuit the
right of the accused to bail. At all events, the instant case is not one in which
there are poised on opposite sides, the conflicting interests of the right of the
investigators to investigate and the right of the accused to personal liberty, in
the event of the investigators proceeding with the investigation at a tardy pace
or adopting a stance of procrastination.
29. Before parting with the case, I also deem it expedient to record the
contention of the learned counsel for the petitioner that the petitioner having
filed an application seeking “Release of un-relied upon documents before
and the Special Judge having rejected the same by
the Special Judge, CBI”
his order dated 18.09.2008, the CBI is estopped from further investigating the
matter on the basis of the aforesaid “un-relied upon documents”. This
CRL.M.C. 2525/2008 Page No. 17 of 19
contention is being noted for the purpose of being rejected. The impugned
st
order taking cognizance of the case was passed on 21 July, 2008 while the
th
application of the petitioner for return of the documents was rejected on 18
September, 2008 and cannot, therefore, form the basis of assailing the earlier
st
order passed on 21 July, 2008. In case the petitioner was aggrieved by the
th
order dated 18 September, 2008, it was open to him to assail the same before
the higher court, if warranted, but it is certainly not open to him to circuitously
st
challenge the order dated 21 July, 2008, which was passed prior in point of
time.
30. Then again, the ultimate test is: In case the documents which were not
relied upon in the challan subsequently become relevant on account of further
evidence garnered/received by the investigating agency, can it be said that the
said documents cannot form the basis of a supplementary or further challan to
be filed by the respondent? The answer must, in my view, be in the negative.
Further investigation may unravel further facts about the existential documents
(not relied upon by the prosecution so far) or may throw up further documents
bearing a linkage to the earlier documents, already relied upon. The shutting
out of such evidence may present a distorted or lopsided or blurred picture of
the case, and may lead to total travesty of justice even in a case where the true
and focussed picture with sharply etched lines can easily be placed before the
CRL.M.C. 2525/2008 Page No. 18 of 19
Court to enable the Court to do complete justice to the parties. In such a
situation, can any estoppel be put on the investigator's right to investigate
further, and the Court's right to know the unmitigated truth? The answer must
be a clear 'No'.
31. In the light of the aforesaid, the prayer of the petitioner for quashing and
setting aside of the order dated July 21, 2008 as well as the further prayer of
th th
the petitioner to quash and set aside the report dated 27 / 28 March, 2008
filed by the respondent before the learned Special Judge are declined. The
interim orders passed by this Court on 19.08.2008 stand vacated.
CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008 stand disposed of
accordingly.
REVA KHETRAPAL, J.
MAY 06, 2009
km
CRL.M.C. 2525/2008 Page No. 19 of 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: April 22, 2009
DATE OF DECISION: May 6, 2009
+ CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008
JAVA SINGH ..... Petitioner
Through: Mr. Sidharth Luthra, Sr. Advocate with
Mr. Siddharth Aggarwal and Mr. Simon
Benjamin, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. P.P. Malhotra, ASG with Mr. Chetan
Chawla, Advocate
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. The present petition under Section 482 of the Code of the Criminal
Procedure has been filed challenging the summoning order issued by the
st
learned Special Judge, New Delhi dated 21 July, 2008 as well as the challan
under Section 173 Cr.P.C., which is alleged to be “incomplete” and in
contravention of the provisions of Section 190 Cr.P.C.
2. The facts leading to the filing of the petition are that FIR bearing No.RC
CRL.M.C. 2525/2008 Page No. 1 of 19
th
2(A)/2005 ACU (V) dated 19 March, 2005 under Sections 13(2) read with
13(1)(e) of the Prevention of Corruption Act came to be registered at P.S.
C.B.I./SPE/ACU(V), New Delhi. The aforesaid FIR was initially registered
against one Shri Akhand Pratap Singh (Retd. IAS), the father of the petitioner
herein, and was registered on the allegation that he possessed assets
disproportionate to his known sources of income almost two years after his
retirement. The period of commission of the offence was set out as 01.01.1978
to 31.05.1991 in the FIR and it was alleged that the acquisition of the
disproportionate assets were to the tune of Rs.21,45,872/- (Rupees Twenty
One Lakhs Forty Five Thousand Eight Hundred and Seventy Two only) during
the said period. The investigating agency conducted investigation and after a
th th
period of three years, on 27 / 28 March, 2008, it submitted a report under
Section 173 Cr.P.C. before the Court of the learned Special Judge, New Delhi.
th th
In the said report filed by the CBI on 27 / 28 March, 2008, it was submitted
that and that
“Further investigation on certain aspects is going on” “The
report in respect of the same will be submitted in due course” .
3. The grievance of the petitioner is that on the basis of the said report
filed under Section 173 Cr.P.C., the learned Special Judge by his order dated
st
21 July, 2008 took cognizance of the offences under Sections 13(2) read with
13(1)(e) of the Prevention of Corruption Act, 1988 and Sections 109, 120-B,
CRL.M.C. 2525/2008 Page No. 2 of 19
467 and 471 of the Penal Code and ordered issuance of summons to the
accused persons, including the petitioner.
th th
4. Aggrieved by the filing of the report dated 27 / 28 March, 2008 and
the consequent taking of cognizance and issuance of summons by means of
order dated July 21, 2008, the petitioner instituted the present petition seeking
quashing of the impugned order and the report under Section 173 Cr.P.C.
which, according to the petitioner, is an “incomplete” report irrespective of the
nomenclature sought to be given to it.
5. I have heard Mr. Sidharth Luthra, the learned senior counsel for the
petitioner and Mr. P.P. Malhotra, the learned Additional Solicitor General for
the respondent/Central Bureau of Investigation and gone through the impugned
order as well as the relevant provisions of law adverted to by the parties.
6. The principal contention of Mr. Luthra, the learned senior counsel for
the petitioner is that the filing of a temporary report during the course of an
on-going investigation is an act not contemplated by the legislators as
evidenced by the relevant provisions of the Cr.P.C. and as such, the report
th th
dated 27 / 28 March, 2008 which is not a “police report” within the meaning
of Section 173 Cr.P.C. ought to be rejected. Mr. Luthra vehemently contended
that there was a vital difference between the terms “investigation”, “further
investigation” and “re-investigation”. He urged that admittedly in the instant
CRL.M.C. 2525/2008 Page No. 3 of 19
case, the investigation itself had not been completed on the date of the filing of
the report, and that taking of cognizance and issuance of summons to the
accused persons whilst the investigative process is still on-going is unknown to
law and in violation of the basic jurisprudential tenents of criminal law. Thus,
the cognizance taken in the instant case under Section 190(1)(b) is illegal and
liable to be set aside, since the very foundation or basis of the said cognizance,
being a police report, does not exist.
7. Mr. Luthra submitted that further investigation predicates the existence
and discovery of fresh material and necessarily implies the exhaustion of the
material already in possession of the investigating agency. While sub-section
(2) of Section 173 deals with the forwarding of the police report on
completion of the investigation , sub-section (8) of Section 173, which has been
subsequently incorporated in the Code, deals with further investigation. Re-
investigation, on the one hand, is quite different and distinct from further
investigation and predicates investigation anew, which may be necessitated on
account of the earlier investigation having been found to be faulty on account
of one reason or the other.
8. According to Mr. Luthra, the principal requirement for invoking sub-
section (8) of Section 173 is that there must be a report filed in terms of sub-
section (2) of Section 173. In the instant case, Mr. Luthra submitted that the
CRL.M.C. 2525/2008 Page No. 4 of 19
police report was an “incomplete” report, and, accordingly could not be taken
into consideration by the learned Special Judge, CBI for the purpose of taking
cognizance of the the offences alleged to have been committed by the
petitioner and others.
9. Mr. Luthra, the learned senior counsel for the petitioner placed strong
reliance on a Single Bench judgment of the Delhi High Court in Hari Chand
& Raj Pal vs. State reported in ILR (1977) II Delhi 367 and on a judgment of
a Single Judge of the Andhra Pradesh High Court rendered in
T.V. Sarma vs.
Smt. Turgakamala Devi and others reported in 1976 Crl. L.J. 1247 to contend
that if the investigation is not complete, there is no police report, and
consequently there is no question of the Court taking cognizance of the case on
an incomplete challan.
10. Mr. P.P. Malhotra, the learned Additional Solicitor General urged on
behalf of the respondent that the contention of the petitioner that the challan
was “incomplete” , merely on account of the fact that it was incorporated in the
charge-sheet that further investigation was going on, was specious. In the
instant case, after three years of investigation a challan had been filed by the
investigating agency, which challan, by no stretch of imagination, could be
labelled as an “incomplete challan”, as was evident from a bare reading of the
same. Mr. Malhotra further contended that the challan on all the aspectes
CRL.M.C. 2525/2008 Page No. 5 of 19
investigated upon was in form and substance a complete challan, and the
investigating agency could not be precluded from carrying on further
investigation. In any case, it was not incumbent upon the investigating agency
to have stated in the report that further investigation would be undertaken. It
was only as a matter of courtesy to the Court that it was brought to the notice
of the Court that further investigation was being carried on, though in view of
the provisions of sub-section (8) of Section 173 it was neither incumbent upon
the investigating agency nor from any angle necessary for the investigating
agency to place on record the said fact.
11. The learned Additional Solicitor General, Mr. P.P. Malhotra also placed
reliance, in the above context, upon the judgments of the Hon'ble Supreme
Court in Ram Lal Narang vs. State (Delhi Administration) reported in (1979)
2 SCC 322, Upkar Singh vs. Ved Prakash and Others reported in ( 2004) 13
reported in
SCC 292, State of Andhra Pradesh vs. A.S. Peter (2008) 2 SCC
383 and Rama Chaudhary vs. State of Bihar reported in JT 2009 (5) SC 14 ,
to which I shall presently advert, but before I do so, a look at the relevant
provisions of the Code in my view is necessary to examine the sustainability of
the impugned summoning order passed by the learned Special Judge, CBI.
12. The term 'police report' has been defined in clause (r) of Section 2 of the
Code as follows:-
CRL.M.C. 2525/2008 Page No. 6 of 19
“Police report means a report forwarded by a police officer
to a Magistrate under sub-section (2) of Section 173.”
13. Sub-section (2) of Section 173 provides that
as soon as investigation
, the officer in-charge of the
under Chapter XII of the Code is completed
Police Station shall forward to a Magistrate empowered to take cognizance of
the offence on a police report, a report in the form prescribed by the State
Government. Sub-section (2) thus envisages the dual process of the
completion of the investigation and the forwarding of the police report to the
Magistrate for taking cognizance of the offence.
14. A look at Sections 173(1) and 173(2)(i) is warranted at this juncture in
view of the emphasis laid by Mr. Sidharth Luthra on the completion of
investigation being the sine qua non for the forwarding of the report under
Section 173, but before doing so, it is proposed to advert to the definition of
term “investigation” as defined in Section 2(h) of the Code. The said
definition reads:-
“h. 'Investigation' includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf.”
15. Section 173 which is contained in Chapter XII of the Code under the
heading “Information to the police and their power to investigate” is as
follows:-
CRL.M.C. 2525/2008 Page No. 7 of 19
“
173. Report of police officer on completion of
investigation.– (1) Every investigation under this Chapter
shall be completed without unnecessary delay.
(2) (i) the officer in charge of the
As soon as it is completed,
police station shall forward to a Magistrate empowered to
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating–
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if
so, whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170.
(ii) The officer shall also communicate, in such manner
as may be prescribed by the State Government, the action
taken by him, to the person, if any whom the information
relating to the commission of the offence was first given.
(3) ...............................................................................
(4) ...............................................................................
(5) ...............................................................................
(6) ...............................................................................
(7) ...............................................................................
(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, 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).”
16. It may be noticed at this juncture that there was no provision in the 1898
CRL.M.C. 2525/2008 Page No. 8 of 19
Code prescribing the procedure to be followed by the police, where, after the
submission of the challan under Section 173(2) Cr.P.C. and after the
Magistrate had taken cognizance of the same, fresh facts came to light which
required further investigation, though, of course, there was no express
provision prohibiting the police from launching upon further investigation
st
upon fresh facts coming to light. The Law Commission in its 41 report
decided to place matters beyond the pale of controversy by a statutorily
affirming the right of the police to launch upon further investigation.
Accordingly, in the 1973 Cr.P.C., a new provision by way of Section 173(8)
was introduced as reproduced hereinabove, affirming the right of the police to
make repeated investigations.
17. It is pertinent also to note at this juncture that the Hon'ble Supreme
Court in the case of H.N. Rishbud vs. State of Delhi 1955 Crl. L.J. 526 held
that further investigation was not ruled out merely because cognizance of the
case had been taken by the Court, and that defective investigation coming to
light during the course of a trial may be cured by such further investigation as
the circumstances of the individual case may call for.
18. In the case of , while approving of its earlier
Ram Lal Narang (supra)
decision in Rishbud's case, the following pertinent observations were made by
the Supreme Court:-
CRL.M.C. 2525/2008 Page No. 9 of 19
“21. ....................................... Neither Section 173 nor
Section 190 lead us to hold that the power of the police to
further investigate was exhausted by the Magistrate taking
cognizance of the offence. Practice, convenience and
preponderance of authority, permitted repeated
investigations on discovery of fresh facts. In our view,
notwithstanding that a Magistrate had taken cognizance of
the offence upon a police report submitted under Section
173 of the 1898 Code, the right of the police to further
investigate was not exhausted and the police could exercise
such right as often as necessary when fresh information
came to light. Where the police desired to make a further
investigation, the police could express their regard and
respect for the court by seeking its formal permission to
make further investigation.”
19. The aforesaid decision, in my view, unequivocally upholds the statutory
right of the police to further investigate the matter after submission of the
report under Section 173(2) and even where the Magistrate has already taken
cognizance of the offence. The scheme of the Code thus is that the registration
of the FIR in the prescribed form under Section 154 is to be followed by
investigation by the police under Section 156 of the Code (which invests the
police with the power to investigate into cognizable offences without the order
of a Court). The investigation leads to the submission of a report to the
Magistrate under sub-section (2) of Section 173 of the Code and, on
submission thereof the Magistrate may take cognizance of the offence under
Section 190(1)(b) and issue process to the accused under Section 204 of the
Code. Thereafter the police on discovery of fresh information may submit a
CRL.M.C. 2525/2008 Page No. 10 of 19
further report or reports regarding the further investigation in the form
prescribed under Section 173(8) of the Code. In other words, the power of the
police to conduct further investigation even after laying the final report has
been clearly adumbrated and statutorily recognised in the new Code [See also
Sri B.S.S. V.V.V. Maharaj vs. State of Uttar Pradesh, 1999 Crl. L.J. 3661
(SC)] .
20. Looked at it from another angle, unless a report is forwarded under
Section 173(2) to the Magistrate, sub-section (8) cannot be pressed into service
for the purpose of further investigation and submission of further report or
reports. When no report is forwarded as required by the Code, there is no
question of “a further report or reports”.
21. A three-Judge Bench of the Supreme Court in Upkar Singh's case
(supra), after referring with approval to its earlier decision in State of Bihar
wherein it had considered the width of
vs. J.A.C. Saldanha (1980) 1 SCC 554
the scope and ambit of Section 173(8) of the Code, held: (SCC, page 299,
para 21)
“..............It is clear that even in regard to a complaint
arising out of a complaint on further investigation if it was
found that there was a larger conspiracy than the one
referred to in the previous complaint, then a further
investigation under the court culminating in another
complaint is permissible.”
22. In the case of A.S. Peter (supra) , the following important distinction
CRL.M.C. 2525/2008 Page No. 11 of 19
between further investigation and re-investigation was succinctly laid down by
the Supreme Court in paragraph 9 of its judgment, which is apposite:-
“9. Indisputably, the law does not mandate taking of
prior permission from the Magistrate for further
investigation. Carrying out of a further investigation even
after filing of the charge-sheet is a statutory right of the
police. A distinction also exists between further
investigation and reinvestigation. Whereas reinvestigation
without prior permission is necessarily forbidden, further
investigation is not.”
23. In the aforesaid case, the Supreme Court unequivocally held that it was
permissible for the investigating authority to carry out and direct further
investigation in the matter even without the prior permission of the Magistrate,
and the High Court of Andhra Pradesh had committed a manifest error in
taking the view that the investigation in question was a fresh investigation and
it was an imperative on the part of the investigating agency to have obtained
the express permission of the Magistrate concerned.
24. More recently, in the case of Rama Chaudhary vs. State of Bihar JT
2009 (5) SC 14 , the Hon'ble Supreme Court while rejecting the contention of
the counsel for the appellant, Rama Chaudhary that as the trial had commenced
and 21 witnesses had already been examined, the request of the prosecution for
further investigation could not be allowed in relation to the very same offence
and in relation to the very same accused, more so, as it would lead to the
summoning of eight new witnesses which would prejudice the defence of the
CRL.M.C. 2525/2008 Page No. 12 of 19
accused in the trial, and relying upon its earlier decisions in
Hasanbhai
Valibhai Qureshi vs. State of Gujarat and Others 2004 (5) SCC 347, held that
there was no valid ground for interference and dismissed the appeal. In
paragraphs 8 to 11, the legal position was summarised as follows:-
“ 8. A mere reading of the above provision makes it clear
that irrespective of report under sub-section (2) forwarded
to the Magistrate, if the officer in-charge of the police
station obtains further evidence, it is incumbent on his part
to forward the same to the Magistrate with a further report
with regard to such evidence in the form prescribed.
The above said provision also makes it clear that
9.
further investigation is permissible, however,
reinvestigation is prohibited. The law does not mandate
taking of prior permission from the Magistrate for further
investigation. Carrying out a further investigation even
after filing of the charge-sheet is a statutory right of the
police. Reinvestigation without prior permission is
prohibited. On the other hand, further investigation is
permissible.
From a plain reading of sub-section (2) and sub-
10.
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. Sub-section (8) of Section 173
clearly envisages that on completion of further
investigation, the investigating agency has to forward to the
Magistrate a “further” report and not fresh report
regarding the “further” evidence obtained during such
investigation.
11. As observed in Hasanbhai Valibhai Qureshi v. State
CRL.M.C. 2525/2008 Page No. 13 of 19
, [JT 2004 (4) SC 305; 2004 (5) SCC
of Gujarat and Others
347], the prime consideration for further investigation is to
arrive at the truth and do real and substantial justice. The
hands of investigating agency for further investigation
should not be tied down on the ground of mere delay. In
other words, the mere fact that there may be further delay in
concluding the trial should not stand in the way of further
investigation if that would help the court in arriving at the
truth and do real and substantial as well as effective
justice.”
25. In view of the aforesaid law reiterated by the Supreme Court time and
again, in my opinion, it is not possible for this Court to interfere with the
summoning order passed by the learned Special Judge, CBI on the basis that an
“incomplete challan” has been filed by the CBI. No basis or justification has
been put forth to enable this Court to return the finding that the challan in the
instant case is an “incomplete challan”. Merely because the investigating
agency, in the ultimate paragraph of the challan, has reserved its right to
submit a report with respect to further investigation in due course, cannot
enable this Court to hold that an incomplete charge-sheet has been filed by the
investigating agency. The learned senior counsel for the petitioner has not
been able to demonstrate to this Court in what manner or for what reason the
charge-sheet can be rejected as “incomplete”, and this Court after carefully
examining the same is not inclined to hold that an incomplete charge-sheet has
been filed by the respondent, nor, in view of the provisions of Section 173(8),
in my view, is this Court empowered to shut out further investigation in the
CRL.M.C. 2525/2008 Page No. 14 of 19
case, which has always been and will continue to be the terrain of the
investigating agency. Indeed, it is not discernible as to how fresh inputs
received during the pendency of the matter can be brushed aside and ignored
by the investigating agency. As far as the present charge-sheet is concerned,
therefore, I have no hesitation in opining it to be final and complete in every
sense of the word.
26. The reliance placed by the learned senior counsel for the petitioner upon
the judgment of this Court rendered in and of
Hari Chand & Raj Pal (supra)
a learned Single Judge of the Andhra Pradesh High Court in T.V. Sarma
(supra), is also misplaced. On a careful reading of the decision rendered in
, it becomes evident that the Court was dealing
Hari Chand & Raj Pal (supra)
with the application for grant of bail to the petitioner on the ground that no
police report as contemplated in sub-section (2) of Section 173 of the Criminal
Procedure had been filed by the officer in-charge of the Police Station and that
failure to complete the investigation within sixty days as required under sub-
section (2) of Section 167 of the new Code entitled the petitioner to be
released on bail. A learned Single Judge of this Court (Hon'ble Mr. Justice
F.S. Gill as His Lordship then was) held that in the body of the incomplete
challan filed in the Court, it had been clearly indicated that investigation was
still continuing, i.e., it had not been completed. Rejecting the contention raised
CRL.M.C. 2525/2008 Page No. 15 of 19
on behalf of the State that forwarding of the incomplete challan satisfied the
requirement of sub-section (2) of Section 173 of the Code and, therefore, the
petitioners could not derive any benefit of sub-section (2) of Section 167, the
Court held that police report as defined in Section 2(r) of the Code can only be
filed “as soon as the investigation is completed” and if it is not complete, no
such report can be filed and consequently, no cognizance can be taken by the
Magistrate nor sub-section (8) can be set in motion. It was further held that an
incomplete report or incomplete challan, with whatever expression it may be
called, does not meet the obligatory requirements of law, and to accept the
same would tantamount to profaning the express provision engrafted in Section
167(2) of the Code.
27. Likewise, in the case of T.V. Sarma (supra) , (which was relied upon in
Hari Chand & Raj Pal ), the Andhra Pradesh High Court taking note of the
fact that only a “preliminary charge-sheet” had been filed and it had been
specifically stated therein that the investigation had not yet been completed,
held that the same could not be treated as a “police report” within the meaning
of sub-section (2) of Section 173 Cr.P.C. and since no report under sub-section
(2) had been forwarded, sub-section (8) did not come into play at all. There
was also no question of the Magistrate taking cognizance of the case and for
the aforesaid reasons the Magistrate was justified in releasing the accused on
CRL.M.C. 2525/2008 Page No. 16 of 19
bail after the lapse of the sixty days period of detention under Section 167 sub-
section (2), Criminal Procedure Code.
28. Both the aforesaid decisions, in my view, were dealing with the
beneficial provision in proviso (a) of sub-section (2) of Section 167 of the New
Code, designed to cure the mischief of indefinitely prolonging the investigation
unmindful of its effect on the personal liberty of the citizen, and have no
application to the facts of the present case where a detailed challan has been
filed, after investigations spanning a period of three years, and no haste has
been shown by the prosecution to file a challan with a view to short-circuit the
right of the accused to bail. At all events, the instant case is not one in which
there are poised on opposite sides, the conflicting interests of the right of the
investigators to investigate and the right of the accused to personal liberty, in
the event of the investigators proceeding with the investigation at a tardy pace
or adopting a stance of procrastination.
29. Before parting with the case, I also deem it expedient to record the
contention of the learned counsel for the petitioner that the petitioner having
filed an application seeking “Release of un-relied upon documents before
and the Special Judge having rejected the same by
the Special Judge, CBI”
his order dated 18.09.2008, the CBI is estopped from further investigating the
matter on the basis of the aforesaid “un-relied upon documents”. This
CRL.M.C. 2525/2008 Page No. 17 of 19
contention is being noted for the purpose of being rejected. The impugned
st
order taking cognizance of the case was passed on 21 July, 2008 while the
th
application of the petitioner for return of the documents was rejected on 18
September, 2008 and cannot, therefore, form the basis of assailing the earlier
st
order passed on 21 July, 2008. In case the petitioner was aggrieved by the
th
order dated 18 September, 2008, it was open to him to assail the same before
the higher court, if warranted, but it is certainly not open to him to circuitously
st
challenge the order dated 21 July, 2008, which was passed prior in point of
time.
30. Then again, the ultimate test is: In case the documents which were not
relied upon in the challan subsequently become relevant on account of further
evidence garnered/received by the investigating agency, can it be said that the
said documents cannot form the basis of a supplementary or further challan to
be filed by the respondent? The answer must, in my view, be in the negative.
Further investigation may unravel further facts about the existential documents
(not relied upon by the prosecution so far) or may throw up further documents
bearing a linkage to the earlier documents, already relied upon. The shutting
out of such evidence may present a distorted or lopsided or blurred picture of
the case, and may lead to total travesty of justice even in a case where the true
and focussed picture with sharply etched lines can easily be placed before the
CRL.M.C. 2525/2008 Page No. 18 of 19
Court to enable the Court to do complete justice to the parties. In such a
situation, can any estoppel be put on the investigator's right to investigate
further, and the Court's right to know the unmitigated truth? The answer must
be a clear 'No'.
31. In the light of the aforesaid, the prayer of the petitioner for quashing and
setting aside of the order dated July 21, 2008 as well as the further prayer of
th th
the petitioner to quash and set aside the report dated 27 / 28 March, 2008
filed by the respondent before the learned Special Judge are declined. The
interim orders passed by this Court on 19.08.2008 stand vacated.
CRL.M.C. 2525/2008 and CRL. M.A. 9326/2008 stand disposed of
accordingly.
REVA KHETRAPAL, J.
MAY 06, 2009
km
CRL.M.C. 2525/2008 Page No. 19 of 19