The division judge bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose of the apex court in the case of Devendra Nath Singh Vs State of Bihar & Ors held that the provisions of Section 173(8) CrPC do not limit or affect such powers of the High Court to pass an order under Section 482 CrPC for further investigation or reinvestigation if the High Court is satisfied that such a course is necessary to secure the ends of justice.
BRIEF FACTS
The factual matrix of the case is that the petition was filed under Section 482 of the code of criminal procedure, 1973 by respondent no. 3 against the order in which the magistrate had taken cognizance of the offences under Sections 409, 467, 468 and 420 of the Indian Penal Code, 18603 on the allegations against the respondent No. 3 of misappropriation of stocks worth Rs. 16,99,648/- from the godown of the Bihar State Food and Civil Supplies Corporation. Thereafter, the High Court proceeded to direct the Magistrate to give directions to the police to further investigate the case in terms of Section 173(8) CrPC regarding the allegations against the appellant and to seek the report within a period of three months. The Court, however, expressed its disinclination to interfere with the impugned order taking cognizance against the present respondent No. 3 and disposed of the petition while giving liberty to the respondent No. 3 to raise all the points at the time of framing the charge which, as per the directions of the High Court, were to be decided by the learned Magistrate after taking into consideration the material emerging in further investigation against the appellant.
The learned counsel appearing on behalf of the appellant has contended that the high court could not have issued the specific direction to the magistrate to direct the police to investigate the role of the appellant, who was neither named in the F.I.R and even not in the charge-sheet. It was also submitted that in a case where the Magistrate is of the opinion that the final report submitted by the police is unsatisfactory, he could exercise his powers under Section 156(3) CrPC and direct the police to make a further investigation or straightaway take cognizance under section 190(1)(c) CrPC, notwithstanding the contrary opinion of the police. Further, it was submitted that the high court ought to have given an opportunity of hearing to the appellant before issuing the order.
The learned counsel appearing on behalf of the appellant relied upon the judgments titled Dharam Pal and Ors. v. State of Haryana and Anr, Abhinandan Jha & Ors. v. Dinesh Mishra, Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat and Anr, Madan Mohan v. State of Rajasthan and Ors, Popular Muthiah v. State, Divine Retreat Centre v. State of Kerala and Ors, Union of India and Anr. v. W.N. Chadha, Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and Ors, and Vinay Tyagi v. Irshad Ali and Ors.
The learned counsel appearing on behalf of the respondents has contended that the appellant is the high-ranking officer and he appears to have influenced the police officer. It is further contended that the High Court correctly exercised its inherent powers to issue the directions to ensure further and proper investigation in the peculiar circumstances of this case when it was discovered that no proper investigation was carried out against the appellant, who was the District Manager and overall in-charge of the godowns. It is further submitted that the final report is presented to the magistrate, who has the right and ability to disagree with it and require additional research. However, the fact that the Magistrate has this authority does not automatically mean that the High Court cannot employ its inherent jurisdiction to order further inquiry in a suitable case where it becomes apparent that the investigation in a matter has not been done properly. It is also submitted that the necessary investigation had already started before this Court granted an interim stay. It was then transferred to the Economic Offences Unit, where the claims against the appellant were deemed to be presumptively true, but further action was postponed due to the stay order of this Court. However, it is evident from the research that has been done so far that the High Court's concerns were fully justified.
The learned counsel further relied upon the judgments titled State of Punjab v. Central Bureau of Investigation and Ors, and Neetu Kumar Nagaich v. State of Rajasthan and Ors.
ISSUES BEFORE THE COURT
- whether the High Court, in the exercise of its inherent powers under Section 48 CrPC, was justified in issuing directions to the Magistrate to order further investigate though, the Magistrate before whom the charge-sheet had been filed and who had taken cognizance, did not adopt any such process.
- whether the High Court was justified in passing the order impugned without affording an opportunity of hearing to the appellant?
COURT’S OBSERVATION
The hon’ble apex court while determining the first issue held that
(a) The scheme of the Code of Criminal Procedure, 1973 is to ensure a fair trial and that would commence only after a fair and just investigation. The ultimate aim of every investigation and inquiry, whether by the police or by the Magistrate, is to ensure that the actual perpetrators of the crime are correctly booked and the innocents are not arraigned to stand trial.
(b) The powers of the Magistrate to ensure proper investigation in terms of Section 156 CrPC have been recognised, which, in turn, include the power to order further investigation in terms of Section 173(8) CrPC after receiving the report of investigation. Whether further investigation should or should not be ordered is within the discretion of the Magistrate, which is to be exercised on the facts of each case and in accordance with law.
(c) Even when the basic power to direct further investigation in a case where a charge-sheet has been filed is with the Magistrate, and is to be exercised subject to the limitations of Section 173(8) CrPC, in an appropriate case, where the High Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482 CrPC could be exercised to direct further investigation or even reinvestigation. The provisions of Section 173(8) CrPC do not limit or affect such powers of the High Court to pass an order under Section 482 CrPC for further investigation or reinvestigation, if the High Court is satisfied that such a course is necessary to secure the ends of justice.
(d) Even when the wide powers of the High Court in terms of Section 482 CrPC are recognised for ordering further investigation or reinvestigation, such powers are to be exercised sparingly, with circumspection, and in exceptional cases.
(e) The powers under Section 482 CrPC are not unlimited or untrammelled and are essentially for the purpose of real and substantial justice. While exercising such powers, the High Court cannot issue directions so as to be impinging upon the power and jurisdiction of other authorities. For example, the High Court cannot issue directions to the State to take advice of the State Public Prosecutor as to under what provision of law a person is to be charged and tried when ordering further investigation or reinvestigation; and it cannot issue directions to investigate the case only from a particular angle. In exercise of such inherent powers in extraordinary circumstances, the High Court cannot specifically direct that as a result of further investigation or reinvestigation, a particular person has to be prosecuted.
The hon’ble apex court held that the high court is justified in the present case in ordering further investigation, particularly qua the role of the appellant.
In determining the other question, the apex court held that the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
CASE NAME- Devendra Nath Singh Vs State of Bihar & Ors
CITATION- CRIMINAL APPEAL NO. 1768 OF 2022
CORUM- Justice Dinesh Maheshwari and Justice Aniruddha Bose
DATE- 12.10.22
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