Devendra Nath Singh vs The State Of Bihar

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1768 OF 2022 (ARISING OUT OF SLP (CRL.) NO. 9609 OF 2022 @ DIARY NO. 22814 OF 2019)

DEVENDRA NATH SINGH ..……. APPELLANT(S)

VERSUS

STATE OF BIHAR & ORS. ……. RESPONDENT(S)

JUDGMENT

DINESH MAHESHWARI, J.

Delay condoned. Leave granted.

2. The challenge in this appeal is to the order dated 10.09.2018, as

passed by the High Court of Judicature at Patna in Criminal

Miscellaneous No. 649 of 2016.

2.1. The said petition under Section 482 of the Code of Criminal

Procedure, 19731 was filed by respondent No. 3 of the present appeal,

against the order dated 21.06.2014, as passed by the ACJM, Barh,

District Patna2 in Barh Police Station Case No. 115 of 2012 whereby, the

learned Magistrate had taken cognizance of the offences under Sections Signature Not Verified NEETA SAPRA Date: 2022.10.12 409, 467, 468 and 420 of the Indian Penal Code, 1860 3 on the allegations Digitally signed by

17:49:20 IST Reason:

1 ‘CrPC’, for short.

2 Hereinafter referred to as ‘the Magistrate’.

3 ‘IPC’, for short.

1 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

Corporation4 during the years 2010-11 and 2011-12.

3. The main plank of the submissions before the High Court in the

aforesaid petition by the respondent No. 3 had been that he was only a

Class IV employee of the Corporation and that the ‘entire game was

played’ by the present appellant, who was holding the position of the

District Manager. In that regard, the contents of audit report forming part

of the First Information Report5 were extensively relied upon.

4. The High Court, after taking note of the submissions made on

behalf of the present respondent No. 3, expressed surprise that the then

District Manager of the Corporation (i.e., the present appellant), who was

ultimately responsible for the illegalities, was given a clean chit by the

informant, i.e., the Senior Dy. Collector-cum-District Manager (in-charge

of the godown). It was also observed that the present respondent No. 3, a

Class IV employee, could not have been posted at the godown; and that

he was made an accused in the case ‘as scapegoat to save the skin’ of

the present appellant.

4.1. Having said so, 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,

4 Hereinafter referred to as ‘the Corporation’.

5 ‘FIR’, for short.

2 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.

5. The impugned order dated 10.09.2018 could be usefully

reproduced, in extenso, as under: -

“This petition under Section 482 Cr. P. C. has been filed for quashing the order dated 21.6.2014 passed by the A.C.J.M. Barh, Patna in Barh P.S. case no. 115 of 2012 by which learned Magistrate has taken cognizance for the offence under Sections 409,467, 468 and 420 of the I.P.C. against the petitioner.

Heard learned counsel for the petitioner and State. Learned counsel for the petitioner has submitted that petitioner was only a class IV employee in the Bihar State Food and Civil Supply Corporation Ltd. for short ‘the Corporation”. The entire game was played by D.N Singh who was District Manager which has also come in the Audit Report which is part of the FIR and annexed as Annexure-2. The informant who was Senior Dy. Collector-cum-District Manager (Incharge) of the Godown has not lodged any case against said D.N.Singh the then District Manager who had played entire game in committing misappropriation. The F.I.R. has been lodged only against the petitioner who was class IV employee and was made In-charge of the Godown by D.N. Singh against the Circular and Government policy, which had also come in detail in Audit Report submitted by the Auditor. The police submitted charge sheet against this petitioner on the basis of aforesaid FIR and cognizance has been taken against the petitioner on the basis of the charge sheet.

This Court is really surprised to find that the then District Manager of the Corporation, who was ultimately responsible for all such illegalities, had been given clean chit by the informant. He was not made accused in the case. The petitioner being the IV grade employee, was posted by the then District Manager, namely, D.N. Singh, as Incharge Assistant Godown Manager although he was not entitled to be posted as such. He has been made accused

3 in the case as scapegoat to save the skin of D.N.Singh, the then District Manager of Godown.

Learned ACJM, Barh, Patna is directed to give direction to the police to further reinvestigate the case in terms of provision of Section 173(8) of the Cr. P.C. with regard to allegation against D.N.Singh the then District Manager with regard to allegation of misappropriation of money and appointing the petitioner who was class IV employee as In-charge Assistant Godown Manager against the circulars and directions of the Government. The Magistrate will direct the police to complete the re-investigation with regard to role of then District Manager Sri D. N.Singh in the entire game of the misappropriation of the money as mentioned in detail in the audit report in accordance with law and submit report before him within a period of three months from the date of passing of the order by the learned Magistrate.

This Court, at present, is not inclined to interfere with the impugned order with regard to the petitioner by which cognizance has been taken against him on the basis of charge sheet submitted by the police.

This Cr. Misc. petition is, accordingly, disposed off. The petitioner is given liberty to raise all the points, as raised in the present application, at the time of framing of charge, which shall be considered and disposed off by the learned Court below in accordance with law after taking into consideration the materials which will come during further investigation with regard to allegation against D. N. Singh the then District Manager.”

6. The order aforesaid is questioned by the appellant in whose

relation the directions have been issued for further investigation, inter

alia, on the ground that investigation is the prerogative of the investigating

agency/officer and no mandate could be issued to the Magistrate so as to

usurp such powers to investigate. It is also submitted that the impugned

order has been directly in violation of the principles of natural justice

inasmuch as no opportunity of hearing was extended by the High Court to

the appellant.

6.1. While elaborating, learned counsel for the appellant has

contended that the High Court, while exercising its powers under Section

4 482 CrPC, could not have issued a specific direction to the Magistrate to

direct the police to investigate the role of the appellant, who was neither

named in the FIR nor was charge-sheeted and was not even a party

before the High Court. With reference to the Constitution Bench decision

in the case of Dharam Pal and Ors. v. State of Haryana and Anr.:

(2014) 3 SCC 306 and the other decisions in Abhinandan Jha & Ors. v.

Dinesh Mishra: (1967) 3 SCR 668 and Vinubhai Haribhai Malaviya

and Ors. v. State of Gujarat and Anr.: (2019) 17 SCC 1, the learned

counsel has submitted that the principles remain settled by this Court that

as per the scheme of CrPC, formation of an opinion as to whether a

person is to be put on trial has been left to the officers in charge of a

police station; and this Court has further held 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. However, according to the learned counsel,

directions for exercising such power in a particular manner could not have

been issued by the High Court while dealing with the petition filed by the

respondent No. 3. The learned counsel has also referred to the decision

in Madan Mohan v. State of Rajasthan and Ors.: (2018) 12 SCC 30,

wherein this Court has observed that a superior Court could not issue

5 directions to any subordinate Court commanding them to pass a

particular order on any application filed by a party.

6.2. Learned counsel for the appellant has also relied upon the

decision in Popular Muthiah v. State: (2006) 7 SCC 296 to submit that

while dealing with a similar issue where the High Court, in an appeal

against conviction under Section 302 IPC, had issued directions to the

investigating agency to investigate the appellant who had not been sent

up for trial, this Court held that the High Court could not have issued such

a direction in exercise of its inherent powers, as the investigation of an

offence was a statutory power of the police and it was for the State to

decide whether it wanted to proceed against an accused or not. It was

observed that the High Court could not issue directions to investigate the

case from a particular angle or by a particular agency and hence, it went

beyond its jurisdiction in directing the prosecution of the appellant.

Therein, the impugned judgment was set aside, and the matter was

remanded to the High Court for fresh consideration after hearing the

appellant.

6.3. In the second limb of submissions, learned counsel for the

appellant has contended that the High Court ought to have given an

opportunity of hearing to the appellant before issuing the impugned

directions. The learned counsel would argue that the test as to whether a

person is entitled to an opportunity of being heard in challenge to an order

passed by a Magistrate is not dependant on whether such person had a

6 right to be heard by the Magistrate in the first instance; the entitlement to

hearing has to be assessed independently by considering the

consequences of the proceedings in which a hearing is sought; and a

hearing could be claimed where a substantial right of a person would be

affected. The learned counsel has referred to the decision in Divine

Retreat Centre v. State of Kerala and Ors.: (2008) 3 SCC 542 wherein,

while dealing with the issue whether the High Court could have passed a

judicial order directing an investigation against the appellant therein

without hearing it, this Court held that no judicial order could be passed

by any Court without providing a reasonable opportunity of being heard to

the person who was likely to be affected by such order while

distinguishing the decision in the case of Union of India and Anr. v. W.N.

Chadha: 1993 Supp (4) SCC 260 by observing that the dictum in the

said judgment would not apply where a challenge was to a judicial order

directing an inquiry or investigation against a person or institution. The

learned counsel has also relied upon a 3-Judge Bench decision of this

Court in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai

Mohanbhai Patel and Ors.: (2012) 10 SCC 517, wherein it was

observed that an accused or a person suspected to have committed a

crime has a right to be heard in a criminal revision preferred before the

High Court or Sessions Judge against an order of dismissal of a

complaint under Section 203 CrPC, as an order passed by the superior

Court in revision, overturning the order of dismissal of the complaint

7 would, in effect, restore the complaint and hence, cause prejudice to the

accused.

6.3.1. It has been contended that in the absence of the appellant, the

High Court had no occasion to take note of the fact that he had already

been exonerated of all charges after detailed departmental proceedings

and hence, the directions for further investigation were wholly

unwarranted in this case.

6.4. Learned counsel for the appellant has also argued that the High

Court could not have directed for further investigation or reinvestigation in

this the matter in view of the dictum of this Court in Vinay Tyagi v. Irshad

Ali and Ors.: (2013) 5 SCC 762, wherein it was held that fresh/de novo

investigation ought to be directed sparingly and in exceptional

circumstances, like where the investigation already conducted is tainted

by malafides.

6.5. Learned counsel for the appellant would submit that the

Magistrate himself, while taking cognizance, could have proceeded

against the present appellant, if he had been satisfied that the materials

on record implicated the appellant to any extent but, when the Magistrate

opted not to proceed against the appellant, the High Court could not have

issued directions to further reinvestigate the matter qua the appellant,

though it is always open for a Court to proceed against a person not sent

up for trial at the stage of Section 319 CrPC, if the evidence is

forthcoming in that regard.

8

7. Learned counsel for the respondent No. 3 has supported the

impugned order with the submissions that the appellant was a high-

ranking officer and he appears to have influenced the other officers in the

internal inquiry so as to give him a clean chit. A copy of the audit report

dated 31.05.2012 forming the basis of the FIR in question has been

placed on record and has been exhaustively referred to during the course

of submissions.

7.1. The learned counsel has underscored the observations of this

Court in the case of Vinubhai Haribhai Malaviya (supra) that the ultimate

aim of investigation and inquiry, whether by the police or by the

Magistrate, is to ensure that those who have actually committed the crime

are booked and those who have not, are not arraigned to face trial. With

reference to these and other observations that such requirements pertain

to the spirit of Article 21 of the Constitution of India, learned counsel has

argued that the offences in question, relating to defalcation of foodgrains

which caused hardship to the economically weaker sections of the

society, need to be properly investigated not only to book the actual

culprits but also to check the recurrence of such a crime.

7.2. The learned counsel would argue that in the peculiar

circumstances of this case, when it was found that no proper investigation

was carried out against the appellant, who was the District Manager and

overall in-charge of the godowns, the High Court has rightly exercised its

inherent powers to issue the directions so as to ensure further and proper

9 investigation in the matter. While relying on the decision of this Court in

the case of State of Punjab v. Central Bureau of Investigation and

Ors.: (2011) 9 SCC 182, the learned counsel has contended that under

Section 482 CrPC, the High Court has the power to order further

investigation as also reinvestigation; and that no illegality or jurisdictional

error could be imputed on the order impugned. The learned counsel has

further submitted that when the High Court has the power to direct further

investigation or reinvestigation directly, it also could do so by issuing

directions to the learned Magistrate, who is in seisin of the matter.

7.3. The learned counsel has further contended that the Magistrate,

before whom a final report is submitted, has the power and authority to

differ with the report and to order further investigation. However, the

existence of this power with the Magistrate does not ipso facto imply that

the High Court, even in exercise of its inherent jurisdiction, cannot direct

further investigation in an appropriate case, when it comes to its notice

that the investigation in a case has not been conducted properly.

7.4. It has further been argued that although the inherent powers

cannot be used by the High Court in a routine manner and can be

exercised only in extreme cases but in the present case, when offence in

question has the consequences for the society at large, the High Court

cannot be faulted in exercising its inherent powers, which are,

nevertheless, exercised ex debito justitiae. The learned counsel has

particularly referred to paragraph 30 of the aforesaid decision in Popular

10 Muthiah; and has further relied upon the case of Neetu Kumar Nagaich

v. State of Rajasthan and Ors.: (2020) 16 SCC 777 wherein this Court

has held that when a constitutional Court is satisfied that the investigation

has not been conducted in an objective manner or conducted in a manner

as to help someone escaping the law, it could direct de novo investigation

so as to prevent miscarriage of criminal justice.

7.5. As regards the contention that no notice was issued to the

appellant before passing of the impugned order, the learned counsel has

argued, with reference to the decision of this Court in W.N. Chadha

(supra) that, at the stage of investigation, no such notice is required to be

issued to the accused. Learned counsel has also referred to various other

decisions and has submitted that the said decision in W.N. Chadha has

been consistently followed by this Court. The learned counsel would also

submit that though the referred judgments were rendered in the

applications filed by the victim and not by the co-accused but the

underlying principle remains the same that an accused is not required to

be heard at the stage of investigation. Learned counsel would also submit

that if upon receiving the final report, the learned Magistrate could have

ordered further investigation without prior notice to the accused, so could

the High Court have, in exercise of its inherent jurisdiction, which is, if

anything, much wider.

7.6. In the last leg of contentions, learned counsel for respondent No.

1 has also submitted that before granting of interim stay by this Court, the

11 requisite investigation had commenced and was transferred to the

Economic Offences Unit, where the allegations against the appellant have

been found to be prima facie correct but further action was deferred in

view of the stay order of this Court. However, the investigation hitherto

carried out makes it clear that the doubts expressed by the High Court

have been found to be completely justified. Hence, the learned counsel

would submit in the alternative that, in any case, the investigation already

carried out deserves to be protected so that the real culprits like the

appellant do not escape the process of law.

8. Apart from the submissions aforesaid, it is noteworthy that though,

on behalf of the respondent No. 2 - Corporation, the reply submissions

are essentially to the effect that in the departmental proceedings, charges

were not proved against the present appellant but then, in the counter

affidavit on behalf of the respondent No. 1 - State, detailed submissions

have been made, essentially refuting the case of the appellant.

8.1. It has, inter alia, been submitted on behalf of the respondent-State

that apart from the present matter, being Barh P.S. Case No. 115 of 2012,

there had also been another matter, being Bikram P.S. Case No. 129 of

2012 against the respondent No. 3 as also the present appellant; and

after the order passed by the High Court, the investigation in the present

case was also carried out by the Economic Offences Unit, Bihar along

with the aforesaid Bikram P.S. Case No. 129 of 2012. While indicating

prima facie complicity of the appellant, it has also been pointed out that in

12 the said Bikram P.S. Case No. 129 of 2012, instituted for offences under

Sections 409, 420, 468, 471 and 474 IPC, after finding prima facie case

against the present appellant, prosecution sanction has also been

obtained. That case relates to misappropriation of the goods worth Rs.

7.69 crores. It is submitted that in the present case, prosecution sanction

has not been obtained for the appellant having been given interim

protection by this Court. A few passages of the counter affidavit filed on

behalf of the State could be usefully reproduced as under: -

“13. In fact, the successor in office District Manager had also observed for holding a departmental proceeding against this petitioner and the petitioner was found to have given change of the go downs to Pramod Ranjan Kumar Sinha even without of the permission of the Headquarter of the Corporation.

14. Even the petitioner was found to be silent with respect to the affairs of the go down change whereof was handed over by this petitioner a Class Iv employee namely Pramod Ranjan Sinha inasmuch as on 11.02.2010 on truck bearing Registration No. BR 1G 1051 carrying 104.61.650 Quintals of Wheat from Mokama Depot left Barh Go-down, however, on 12.02.2010 this truck was apprehended and it was found to be black marketing, but, this petitioner despite Knowledge did not take any steps against the employee in charge of the go down by removing him from the post and only value of the wheat was recovered from the salary of the employee. In fact, the district office has repeateadly informed about the irregularities at the procurement centers, however, the petitioner did not take any steps, nor did he remove the in change from the procurement center / go down.

15. In fact it has also been reported that despite various irregularities and Knowledge of such irregularities the petitioner did not take any pain to atop the some and take corrective measures.

16. It is stated that being a District Manager it was the responsibility and prime duty of this petitioner to get the lifting of food grains, store the same and ensure proper distribution from the go downs, However, the petitioner failed to do so leading to such huge misappropriation. In fact, as per the report of the SFC, it was found that there is no proof that this petitioner carried out inspections / visits to the Go downs.

13 17. During investigation, when statement of the witnesses were recorded, namely, Radhakant Paswan, Ramashankar Prasad and Brajkishore Srivastave, the then Assistants, they deposed that the petitioner was responsible and that he did not discharge his duties properly.

18. In fact, besides the present criminal case the petitioner has also been arraigned as a non-FIR accused in connection with Bikram Police Station Case No. 129 of 2012 dated 12.06.2012 instituted under Sections 409/420/468/471/474 of IPC which is also a case of identical nature. In fact, in this case the prosecution sanction has also been received from the Corporation against this petitioner on 13.01.2012.

19. It is stated that in the present case also there is material against him as stated above, however, prosecution sanction has not been obtained as the petitioner has been granted interim protection.

20. That in the above background, the statement made in Para 1 is opposed and contested and it is prayed that the order impugned may be upheld.”

9. We have given anxious consideration to the rival submissions and

have scanned through the material placed on record.

10. As could be readily noticed, the present case carries the

peculiarities of its own inasmuch as only the respondent No. 3 was

named in the FIR and was charge-sheeted on the allegations of

defalcation of foodgrains in the godown of Corporation. No investigation

whatsoever was carried out in relation to the role of the appellant in the

matter. When the respondent No. 3 attempted to question the order

passed by the learned Magistrate taking cognizance of the offences

under Sections 409, 467, 468 and 420 IPC, the High Court, though,

remained disinclined to interfere with the order so passed by the learned

Magistrate but, on the other hand, expressed surprise that the appellant,

the then District Manager, was given a clean chit by the informant,

14 another officer of the Corporation; and only the respondent No. 3, a Class

IV employee, was named as an accused. The High Court even

proceeded to observe that the respondent No. 3 had been made accused

in the case ‘as scapegoat to save the skin’ of the appellant. Therefore, the

High Court directed the learned Magistrate to give directions for further

investigation in terms of Section 173(8) CrPC with regard to the

allegations against the appellant, of misappropriation of money and of

appointing the respondent No. 3 as in-charge Assistant Godown Manager

against the circulars and directions of the Government. The High Court

further observed that the directions shall be to complete the investigation

with regard to the role of the appellant in ‘the entire game of the

misappropriation of the money as mentioned in detail in the audit report’.

Indisputably, the order impugned came to be passed by the High Court

without the appellant being a party before it and in the exercise of its

inherent powers under Section 482 CrPC.

10.1. Thus, and in view of the submissions made before us, two

principal questions arise for determination in this appeal: one, as to

whether the High Court, in the exercise of its inherent powers under

Section 482 CrPC, was justified in issuing directions to the Magistrate to

order further investigation though, the Magistrate before whom the

charge-sheet had been filed and who had taken cognizance, did not

adopt any such process; and second, as to whether the High Court was

15 justified in passing the order impugned without affording an opportunity of

hearing to the appellant?

11. While dealing with the first question as to the High Court’s

exercise of its inherent powers under Section 482 CrPC in the manner the

same have been exercised in this matter, we may usefully refer to the

relevant provisions of law, which would be of bearing in the forthcoming

discussion.

11.1. Section 482 CrPC, saving the inherent powers of the High Court,

whereunder and whereby the order impugned has been passed in this

matter, reads as under: -

“482. Saving of inherent power of High Court.- Nothing in this Code

shall be deemed to limit or affect the inherent powers of the High Court to

make such orders as may be necessary to give effect to any order under

this Code, or to prevent abuse of the process of any Court or otherwise to

secure the ends of justice.”

11.2. It is indisputable that as per the scheme of CrPC, formation of an

opinion as to whether the person is to be put on trial has been left to the

officer in-charge of a police station; and where the Magistrate is of the

opinion that the result of investigation in the form of report filed before him

is not satisfactory, he may also order investigation in terms of Sections

156(3) and/or 173(8) CrPC or he may straightway take cognizance under

Section 190(1)(c).

16 11.2.1. Section 156, the relevant parts of Section 173 and Section 190

CrPC read as under: -

“156. Police officer's power to investigate cognizable case.- (1) Any

officer in charge of a police station may, without the order of a Magistrate,

investigate any cognizable case which a Court having jurisdiction over the

local area within the limits of such station would have power to inquire into

or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be

called in question on the ground that the case was one which such officer

was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an

investigation as above-mentioned.”

*** *** ***

“173. Report of police officer on completion of investigation.- (1)

Every investigation under this Chapter shall be completed without

unnecessary delay.

*** *** ***

(2) (i) As soon as it is completed, the officer in charge of the 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;

17

(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;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(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, by whom the information relating to the commission of the offence was first given.

*** *** ***

(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).”

*** *** ***

“190. Cognizance of offences by Magistrates.- (1) Subject to the

provisions of this Chapter, any Magistrate of the first class, and any

Magistrate of the second class specially empowered in this behalf under

sub-section (2), may take cognizance of any offence-

18

(a) upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a

police officer, or upon his own knowledge, that such offence

has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the

second class to take cognizance under sub-section (1) of such offences as

are within his competence to inquire into or try.”

11.3. It is hardly a matter of dispute that the Code of Criminal Procedure

contemplates various stages and vests various powers in the Magistrate

to proceed against the persons not named in the charge-sheet like the

provision contained in Section 190(1)(c). These aspects, essentially of

ordinary operation of the general scheme of the Code of Criminal

Procedure, as also underscored in the Constitution Bench decision of this

Court in Dharam Pal (supra) and in another decision in Abhinandan Jha

(supra) do not require much elaboration for the purpose of the present

case.

12. As noticed, the present case carries its unique features that the

learned Magistrate had not exercised any such powers in terms of

Section 156(3) or Section 173(8) or Section 190(1)(c) CrPC but, the High

Court has, while dealing with a petition under Section 482 CrPC, directed

19 him to direct the police to investigate further, particularly as regards the

role of the appellant; and such exercise of power by the High Court is in

question. In this regard, we may usefully refer to the relevant of the

decisions cited by the learned counsel for the parties.

12.1. In the case of Vinay Tyagi (supra), this Court dealt with the wide

range of issues relating to the powers of the High Court under Section

482 CrPC as also the powers of the Magistrate under Section 173 CrPC;

and different vistas of the processes of conducting ‘fresh investigation’

and/or ‘further investigation’. This Court observed and held as under: -

“43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct “further investigation”, “fresh” or “de novo” and even “reinvestigation”. “Fresh”, “de novo” and “reinvestigation” are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.

44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of the Magistrate under Section 228 of the Code. Wherever a charge-

sheet has been submitted to the court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in Disha v. State of Gujarat6, Vineet Narain v. Union of

6 (2011) 13 SCC 337: (2012) 2 SCC (Cri) 628.

20 India7, Union of India v. Sushil Kumar Modi8 and Rubabbuddin Sheikh v. State of Gujarat9 .

45. The power to order/direct “reinvestigation” or “de novo” investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the court may, by declining to accept such a report, direct “further investigation”, or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

*** *** ***

48. What ultimately is the aim or significance of the expression “fair and proper investigation” in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.

49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct “further investigation” or file supplementary report with the leave of the court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct “further investigation” and file “supplementary report” with the leave of the court. The courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the court to conduct “further investigation” and/or to file a “supplementary report” will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of 7 (1998) 1 SCC 226: 1998 SCC (Cri) 307.

8 (1996) 6 SCC 500.

9 (2010) 2 SCC 200: (2010) 2 SCC (Cri) 1006.

21 contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.” (emphasis supplied)

12.2. In the case of State of Punjab v. CBI (supra), this Court had the

occasion to deal with a petition challenging the High Court’s directions for

entrusting investigation relating to multiple FIRs to CBI, where the FIRs

had their genesis in the allegations of rape by the respondent No. 3

against her husband and several other persons. While dismissing the

petition and declining leave to appeal under Article 136 of the Constitution

of India, this Court exposited on the magnitude of power of the High Court

under Section 482 CrPC for securing the ends of justice in the following

passages: -

“22. Section 482 CrPC, however, states that nothing in CrPC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under CrPC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of CrPC do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 CrPC, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 CrPC for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice.

23. We find support for this conclusion in the following observations of this Court in Mithabhai Pashabhai Patel v. State of Gujarat10 cited by Mr Dhavan:

“13. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India 10 (2009) 6 SCC 332: (2009) 2 SCC (Cri) 1047.

22

could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. 11 Udhayakumar opined as under:

‘7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-

section (8), but not fresh investigation or reinvestigation.’ A distinction, therefore, exists between a reinvestigation and further investigation.

***

15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court even do not have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The precognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four corners of the Code.”

24. It is clear from the aforesaid observations of this Court that the investigating agency or the court subordinate to the High Court exercising powers under CrPC have to exercise the powers within the four corners of CrPC and this would mean that the investigating agency may undertake further investigation and the subordinate court may direct further investigation into the case where charge-sheet has been filed under sub-section (2) of Section 173 CrPC and such further investigation will not mean fresh investigation or reinvestigation. But these limitations in sub-

section (8) of Section 173 CrPC in a case where charge-sheet has been filed will not apply to the exercise of inherent powers of the High Court under Section 482 CrPC for securing the ends of justice.” (emphasis supplied)

12.3. The decision of this Court in the case of Popular Muthiah (supra)

has been referred to by the learned counsel for the contesting parties in

support of their respective contentions. Therein, the High Court, while

11 (2008) 5 SCC 413: (2008) 2 SCC (Cri) 631.

23 exercising its appellate jurisdiction against the judgment and order

convicting and sentencing an accused of the offence under Section 302

IPC, opined that no case was made out to interfere with judgment of the

Trial Court in regard to the conviction of the charged accused but then,

there was evidence at every stage implicating the other persons too in the

crime; and the action on the part of the investigating officers leaving them

from the array of accused was not simply a bona fide error. The High

Court felt that the Sessions Judge ought to have exercised his jurisdiction

under Section 319 CrPC and while making adverse comments as regards

conduct of the case, the High Court directed that the prosecution of such

other accused persons be launched. The High Court further directed that

the State shall take the advice of the Public Prosecutor as to under what

Section they were to be charged and tried; and CB, CID shall take over

the matter, reinvestigate, and prosecute such other accused persons. The

question before this Court was about legality and propriety of the

directions so issued by the High Court while exercising appellate

jurisdiction and without extending an opportunity of hearing to the persons

proposed to be prosecuted. In this backdrop, this Court exposited on the

amplitude as also on the limitation of such powers of the High Court and

remitted the matter to the High Court, for consideration afresh and after

notice to the parties concerned, while observing and holding as under: -

“29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.

24 30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that:

(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.

(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.

(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.

*** *** ***

46. The High Court, however, was not correct in issuing a direction to the State to take advice of the State Public Prosecutor as to under what section the appellant has to be charged and tried or directing CB, CID to take up the matter and reinvestigate and prosecute the appellant herein. Such a power does not come within the purview of Section 482 of the Code of Criminal Procedure. Investigation of an offence is a statutory power of the police. The State in its discretion may get the investigation done by any agency unless there exists an extraordinary situation.

*** *** ***

48. The High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away the right of an accused. The High Court should have been circumspect in exercising the said jurisdiction.

When a power under sub-section (8) of Section 173 of the Code of Criminal Procedure is exercised, the court ordinarily should not interfere with the statutory power of the investigating agency. It cannot issue directions to investigate the case from a particular angle or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore directed prosecution of the appellant which was unwarranted in law.

*** *** ***

56. So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The

25 High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on record but was also required to consider as to whether any purpose would be served thereby.

57. Having regard to the peculiar facts and circumstances of this case, we are of the opinion that before issuing the impugned directions, the High Court should have given an opportunity of hearing to the appellants herein.

58. For the reasons aforementioned, the impugned judgment is set aside and the matter is remitted to the High Court for consideration of the matter afresh. The High Court shall issue notice to the appellants herein as also the State and pass appropriate orders as it may deem fit and proper and in accordance with law. The appeals are allowed with the aforementioned observations and directions.” (emphasis supplied)

12.4. The 3-Judge Bench decision of this Court in the case of Vinubhai

Haribhai Malaviya (supra) has also been referred to by the learned

counsel for the parties in support of their respective contentions. Therein,

this Court did not approve the impugned judgment of the High Court

insofar it was stated that post-cognizance, the Magistrate was denuded of

power to order further investigation. However, this Court took note of the

basic facts of the case that the FIR dated 22.12.2009 was concerned with

two criminal acts, namely, preparing of fake and bogus Satakhat and

power of attorney in respect of the agricultural land in question, and

demanding of an amount of Rs. 2.5 crores as an attempt to extort money

by the accused persons. It was also noticed that the facts alleged in the

application for further investigation were pertaining to the revenue entries

made in favour of R and S, and alleging as to how their claim over the

same land was false and bogus. This Court found that the facts alleged in

26 the application for further investigation were in the nature of a cross-FIR,

which had never been registered. A communication of the Commissioner

of Revenue, Gujarat dated 15.03.2011 to the Collector, Surat was also

referred to in this regard. In an overall comprehension of the matter, and

in view of the said communication of the Commissioner of Revenue,

Gujarat dated 15.03.2011, this Court held that no case for further

investigation into the facts alleged in the FIR dated 22.12.2009 was made

out. However, having regard to what was stated by the Commissioner,

this Court directed the police to register an FIR qua those facts, to be

inquired into by a senior police officer; and this Court issued further

directions for appropriate steps on the basis of the police report. In the

course of this decision, this Court exposited on the theory and philosophy

related with the aim of investigation and inquiry as also on the wide range

of powers of the police and the Magistrate as regards investigation and

further investigation, inter alia, in the following passages: -

“18. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over CrPC that must needs inform the interpretation of all the provisions of CrPC, so as to ensure that Article 21 is followed both in letter and in spirit.

*** *** ***

25. It is thus clear that the Magistrate's power under Section 156(3) CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place.

To ensure that a “proper investigation” takes place in the sense of a fair and just investigation by the police—which such Magistrate

27 is to supervise—Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the “investigation” referred to in Section 156(1) CrPC would, as per the definition of “investigation” under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) CrPC.

*** *** ***

42. ……To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding…….” 12.5. The case of Divine Retreat Centre (supra) has had the peculiarity

of its own. Therein, the Criminal Case bearing No. 381 of 2005 had been

registered at Koratty Police Station on the allegations made by a female

remand prisoner that while taking shelter in the appellant-Centre, she was

subjected to molestation and exploitation and she became pregnant; and

thereafter, when she came out of the Centre to attend her sister’s 28 marriage, she was implicated in a false theft case and lodged in jail.

Parallel to these proceedings, an anonymous petition as also other

petitions were received in the High Court, which were registered as a suo

motu criminal case. In that case, the High Court, while exercising powers

under Section 482 CrPC, directed that the said Criminal Case No. 381 of

2005 be taken away from the investigating officer and be entrusted to the

Special Investigating Team (‘SIT’). The High Court also directed the said

SIT to investigate/inquire into other allegations levelled in the anonymous

petition filed against the appellant-Centre. However, this Court did not

approve the order so passed by the High Court and in that context, while

observing that no unlimited and arbitrary jurisdiction was conferred on the

High Court under Section 482 CrPC, explained the circumstances under

which the inherent jurisdiction may be exercised as also the

responsibilities of the investigating officers, inter alia, in the following

words: -

“27. In our view, there is nothing like unlimited arbitrary jurisdiction

conferred on the High Court under Section 482 of the Code. The power

has to be exercised sparingly, carefully and with caution only where such

exercise is justified by the tests laid down in the section itself. It is well

settled that Section 482 does not confer any new power on the High Court

but only saves the inherent power which the Court possessed before the

enactment of the Code. There are three circumstances under which the

inherent jurisdiction may be exercised, namely, ( i) to give effect to an order

29 under the Code, (ii) to prevent abuse of the process of court, and ( iii) to

otherwise secure the ends of justice.

*** *** ***

39. The sum and substance of the above deliberation and analysis of the

law cited leads us to an irresistible conclusion that the investigation of an

offence is the field exclusively reserved for the police officers whose

powers in that field are unfettered so long as the power to investigate into

the cognizable offences is legitimately exercised in strict compliance with

the provisions under Chapter XII of the Code. However, we may hasten to

add that unfettered discretion does not mean any unaccountable or

unlimited discretion and act according to one's own choice. The power to

investigate must be exercised strictly on the condition of which that power

is granted by the Code itself.

40. In our view, the High Court in exercise of its inherent jurisdiction

cannot change the investigating officer in the midstream and appoint any

agency of its own choice to investigate into a crime on whatsoever basis

and more particularly on the basis of complaints or anonymous petitions

addressed to a named Judge. Such communications cannot be converted

into suo motu proceedings for setting the law in motion. Neither are the

accused nor the complainant or informant entitled to choose their own

investigating agency to investigate a crime in which they may be

interested.

30 41. It is altogether a different matter that the High Court in exercise of its

power under Article 226 of the Constitution of India can always issue

appropriate directions at the instance of an aggrieved person if the High

Court is convinced that the power of investigation has been exercised by

an investigating officer mala fide. That power is to be exercised in the

rarest of the rare case where a clear case of abuse of power and non-

compliance with the provisions falling under Chapter XII of the Code is

clearly made out requiring the interference of the High Court. But even in

such cases, the High Court cannot direct the police as to how the

investigation is to be conducted but can always insist for the observance

of process as provided for in the Code.”

(emphasis supplied)

12.6. In the case of Madan Mohan (supra), this Court, of course,

reiterated the settled principles that no superior Court could issue a

direction/mandamus to any subordinate Court commanding them to pass

a particular order but, the questioned directions had been as regards

dealing with a bail application, which were not approved by this Court

while observing, inter alia, as under: -

“15. In our considered opinion, the High Court had no jurisdiction to direct

the Sessions Judge to “allow” the application for grant of bail. Indeed,

once such direction had been issued by the High Court then what was left

for the Sessions Judge to decide except to follow the directions of the High

Court and grant bail to Respondents 2 and 3. In other words, in

compliance to the mandatory directions issued by the High Court, the

31 Sessions Judge had no jurisdiction to reject the bail application but to

allow it.

16. No superior court in hierarchical jurisdiction can issue such

direction/mandamus to any subordinate court commanding them to pass a

particular order on any application filed by any party. The judicial

independence of every court in passing the orders in cases is well settled.

It cannot be interfered with by any court including superior court.”

12.7. In the case of Neetu Kumar Nagaich (supra), this Court issued

directions for de novo investigation in regard to the unnatural death of a

law student. We need not elaborate on the said decision for the fact that

such directions were issued under the writ jurisdiction of this Court.

13. For what has been noticed hereinbefore, we could reasonably cull

out the principles for application to the present case as follows:

(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

32 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

33 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.

14. Applying the principles aforesaid to the facts of the present case,

what we find is that, in relation to the allegations of defalcation of goods

and misappropriation of stocks from the godown of the Corporation, the

person lodging the FIR with reference to the audit report, i.e., the Senior

Dy. Collector-cum-District Manager, made imputations only against the

respondent No. 3, who was a class IV employee of the Corporation but

was purportedly posted as an in-charge Assistant Godown Manager by

the appellant, who was, at the relevant time, holding the position of the

District Manager. Though several features of the actions and omissions at

the relevant time have been mentioned in the audit report, we do not

propose to dilate on the same. Suffice it to observe for the present

purpose that when all the relevant aspects were duly projected before the

High Court in the petition filed by the respondent No. 3, the High Court

could not have simply ignored the same only for the reasons that the

informant omitted to state them while lodging the FIR, and/or the

investigating officer overlooked them while submitting the result of

34 investigation, and/or the learned Magistrate did not pay requisite attention

to them while taking cognizance.

14.1. In the given set of facts and circumstances, we are satisfied that

the present one had been such a case of exceptional and special features

where the High Court was justified in ordering further investigation,

particularly qua the role of the appellant. Thus, the principal part of the

order impugned, directing further investigation, in our view, calls for no

interference12.

15. However, there are certain other aspects and features of the order

impugned which are difficult to be appreciated and approved. The High

Court has chosen to use such harsh and severe expressions in the

impugned order which carry all the potential of causing prejudice to the

appellant and even to distract a fair and dispassionate investigation. As

noticed, the High Court has made its comments that the ‘entire game was

played’ by the appellant who was holding the position of District Manager.

The High Court has even stated that the appellant was ‘ultimately

responsible for all such irregularities’. The High Court has gone to the

extent of observing that the respondent No. 3 was made an accused in

the case ‘as scapegoat to save the skin’ of the appellant. These and other

akin observations in the order impugned lead to the position as if the High

Court has already concluded on the result of investigation against the

12 It could be noticed that in the impugned order dated 10.09.2018, the High Court has employed three different expressions as to the expected course of action where the Magistrate has been directed to ‘give direction to the police to further reinvestigate’ and to ‘direct the police to complete the re-investigation’ as also to consider ‘the materials which will come during further investigation’. However, it is apparent that on the substance of the matter, the directions are to ensure ‘further investigation’ in the matter, particularly with regard to the role of the appellant.

35 appellant. It is entirely a different matter to order further investigation on

being prima facie satisfied about the requirement to do so in view of

exceptional circumstances pertaining to a given case but, while doing so

in exercise of inherent powers, the High Court has not been justified in

making such observations and remarks which are likely to operate over

and above the investigation and may cause prejudice to the appellant. As

noticed, the principle remains settled that the High Court cannot issue

directions to investigate the case from a particular angle.

16. Thus, we are of the view that in the given set of facts and

circumstances, though the High Court has rightly exercised its powers

under Section 482 CrPC for directing further investigation but, has not

been justified in making such observations, comments, and remarks,

which leave little scope for an independent investigation and which carry

all the potential to cause prejudice to the appellant. The first question in

this appeal is answered accordingly.

17. Adverting to the other question, i.e., as to whether the High Court

was justified in passing the order impugned without affording an

opportunity of hearing to the appellant, we may refer to some of the

relevant decisions cited in this regard.

17.1. The case of Manharibhai Muljibhai Kakadia (supra) had been

concerning the exercise of the powers of revision by the High Court after

dismissal of a complaint under Section 203 CrPC. This Court pointed out

that in such a revision petition, the accused/suspect arraigned in the

36 complaint gets the right of hearing before the Revisional Court, as is

expressly provided in Section 401(2) CrPC. This Court, however, made it

clear that if the complaint is restored for fresh consideration of the

Magistrate, the persons who are alleged to have committed the crime

shall have no right to participate in the proceedings nor would they be

entitled to any hearing until consideration of the matter by the Magistrate

for issuance of process. This Court said, inter alia, as under: -

“53. ….We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” (emphasis supplied)

17.2. The layout and backdrop of, as also the questions involved in, the

case of W.N. Chadha (supra) were of their own peculiarities. For the

present purpose, suffice it to notice that as regards the process and

manner of investigation, which included the issues relating to a letter of

37 rogatory, this Court, inter alia, pointed out the exclusion of the principle of

audi alteram partem in relation to an accused at the stage of investigation

in the following terms: -

“80. The rule of audi alteram partem is a rule of justice and its application

is excluded where the rule will itself lead to injustice. In S.A. de

Smith's Judicial Review of Administrative Action, (4th Edn.) at page 184, it

is stated that in administrative law, a prima facie right to prior notice and

opportunity to be heard may be held to be excluded by implication in the

presence of some factors, singly or in combination with another. Those

special factors are mentioned under items (1) to (10) under the heading

“Exclusion of the audi alteram partem rule”.

81. Thus, there is exclusion of the application of audi alteram partem rule

to cases where nothing unfair can be inferred by not affording an

opportunity to present and meet a case. This rule cannot be applied to

defeat the ends of justice or to make the law “lifeless, absurd, stultifying

and self-defeating or plainly contrary to the common sense of the

situation” and this rule may be jettisoned in very exceptional

circumstances where compulsive necessity so demands.

*** *** ***

89. Applying the above principle, it may be held that when the

investigating officer is not deciding any matter except collecting the

materials for ascertaining whether a prima facie case is made out or not

and a full enquiry in case of filing a report under Section 173(2) follows in

a trial before the Court or Tribunal pursuant to the filing of the report, it

cannot be said that at that stage rule of audi alteram partem superimposes

38 an obligation to issue a prior notice and hear the accused which the

statute does not expressly recognise. The question is not whether audi

alteram partem is implicit, but whether the occasion for its attraction exists

at all.

90. Under the scheme of Chapter XII of the Code of Criminal Procedure,

there are various provisions under which no prior notice or opportunity of

being heard is conferred as a matter of course to an accused person while

the proceeding is in the stage of an investigation by a police officer.

*** *** ***

92. More so, 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

39 the Magistrate to give an opportunity of being heard under certain

specified circumstances.”

(emphasis supplied)

17.3. It could also be usefully recapitulated that in the case of Popular

Muthiah (supra), even when not disapproving the exercise of inherent

powers by the High Court irrespective of the nature of proceedings (of

course, while laying down the limitations on such exercise of powers), this

Court also observed that in the peculiar circumstances of the case, where

investigation was being ordered against the persons who were not

investigated earlier, the High Court should have given them an

opportunity of hearing before issuing the impugned directions. Thus, the

impugned judgment was set aside and the matter was remitted to the

High Court for consideration afresh, after notice to the appellants as also

to the State.

18. In an appropriate application of the principles aforesaid, we are

clearly of the view that even though the decision in W.N. Chadha (supra)

shall have no direct application to the present case but then, the

observation concerning opportunity of hearing, as occurring in

Manharibhai Muljibhai Kakadia (supra), also does not enure to the

benefit of the appellant because therein, the matter before the High Court

had been a revision petition governed by Section 401 CrPC and by virtue

of sub-section (2) thereof, opportunity of hearing to the affected party

40 remains a statutory mandate13. In Popular Muthiah (supra), of course,

this Court held that the said appellant against whom the High Court was

issuing directions for investigation should have been given an opportunity

of hearing but, that had been the observation in the unique and peculiar

circumstances of the case where the crime in question had already gone

through one round of trial, with one person having been tried and

convicted. Moreover, while disapproving unwarranted directions of the

High Court as regards prosecution of the appellant, this Court also

indicated that the High Court ought to have considered if any purpose

would be served by its directions. It cannot be said that in Popular

Muthiah, this Court has laid down a rule of universal application that in

every such case of exercise of powers under Section 482 CrPC for

ordering further investigation (which are even otherwise to be invoked

sparingly and in exceptional cases), the Court is obliged to extend an

opportunity of hearing to the person whose actions/omissions are to be

investigated. In our view, the question of opportunity of hearing in such

matters would always depend upon the given set of facts and

circumstances of the case.

19. On the facts and in the circumstances of the present case, we are

clearly of the view that no purpose would be served by adopting the

13 Section 401 CrPC provides for the wide revisional powers of the High Court and its sub-

section (2) reads as under: -

“(2) No order under this section shall be made to the prejudice of the accused or other

person unless he has had an opportunity of being heard either personally or by pleader in his

own defence.”

41 course of Popular Muthiah (supra) where this Court restored the matter

for reconsideration of the High Court with an opportunity of hearing to the

appellant therein. Some of the prominent and peculiar circumstances of

the present case are that the allegations and imputations have their

genesis in the documentary evidence in the form of departmental

instructions and the audit report; the fact that the appellant was holding

the office of the District Manager at the relevant point of time is not in

dispute; and hereinbefore, we have upheld the exercise of inherent

powers by the High Court in directing further investigation qua the role of

the appellant.

19.1. We have also taken note of the submissions that, according to the

appellant, he had already been exonerated of all charges after detailed

departmental proceedings; and such a fact did not appear before the High

Court for want of notice to him. For the present purpose, suffice it to

observe that even if the appellant had been exonerated in the

departmental proceedings, such a fact, by itself, may not be conclusive of

criminal investigation; and for this fact alone, the High Court could not

have ignored all other features of the case and the material factors that

had surfaced before it.

20. At this juncture, and in the last segment of this discussion, it may

also be observed that we have taken note of another peculiar feature

connected to this case that apart from the subject-matter of the present

appeal, being Barh P.S. Case No. 115 of 2012, there had also been

42 another matter, being Bikram P.S. Case No. 129 of 2012 against the

respondent No. 3 as also the present appellant, pertaining to similar

allegations of misappropriation of goods. As per the submissions made on

behalf of the State, in the said Bikram P.S. Case No. 129 of 2012,

instituted for offences under Sections 409, 420, 468, 471 and 474 IPC,

after finding prima facie case against the present appellant, prosecution

sanction has also been obtained; and after the order passed by the High

Court, the investigation in the present case was also carried out along

with the aforesaid Bikram P.S. Case No. 129 of 2012. According to the

affidavit filed on behalf of the State, prima facie complicity of the appellant

has been found but, in this case, prosecution sanction has not been

obtained for the appellant having been given interim protection by this

Court.

20.1. We would hasten to observe that the aforesaid submissions on

behalf of the State have only been taken note of without pronouncing on

the merits thereof and while leaving every aspect open for examination

and consideration of the respective investigating agency, sanctioning

authority, and the Court at the appropriate stage and in an appropriate

manner. These submissions have been referred to herein only in order to

indicate that viewed from any angle, there does not appear any just and

strong reason to restore the matter for reconsideration of the High Court.

21. In the totality of circumstances and in the larger interest of justice,

we are clearly of the view that in this case, the investigation contemplated

43 by the order impugned should be allowed to be taken to its logical end

but, while effacing the unwarranted and unnecessary observations of the

High Court14, lest there be any prejudice to any party only because of

such observations. In other words, the entire matter is left open for

examination by the investigating agency, by the sanctioning authority, and

by the Court concerned at the relevant stage and in accordance with law.

22. Accordingly and in view of the above, this appeal fails and is,

therefore, dismissed but, with the observations foregoing and while

effacing the unwarranted and unnecessary observations of the High Court

in the order impugned.

……....…………………….J. (DINESH MAHESHWARI)

……....…………………….J. (ANIRUDDHA BOSE)

NEW DELHI;

OCTOBER 12, 2022.

14 As discussed in paragraph ‘15’ hereinbefore.

44