Excerpt
The Petitioner filed the present petition against the order passed by the learned Court of Special Judge, Anti-corruption, Srinagar, directing the SSP VOK Srinagar (now ACB) to conduct a further investigation on the aspects stated in the order. The Court, however, dismissed the petition saying that if the investigation conducted by the investigating officer (IO) is defective, then the Trial Court is well within the power to order further investigation.
Background
A charge sheet for the commission of an offense under Section 5(2) PC Act read with 109 RPC was filed against the Petitioner and the other accused on the ground that the Petitioner was in possession of disproportionate assets to the extent of Rs. 67,88,189/-. The prosecution alleged that the Petitioner had acquired the impugned immovable assets through various deeds/mutations either in his name or in the names of his relatives. Details of the same were reproduced before the Court. The matter was heard by the learned trial court for charge and discharge, and the learned trial court passed the impugned order directing the further investigation. The Petitioner has challenged the same on the following grounds: – (i) That since the Court had already taken cognizance of the offense under Section 5(2) PC Act, it was not competent to switch back to the pre-cognizance stage by invoking the power to order further investigation. (ii) That the order impugned must be quashed as the learned trial court had no power to order further investigation on its own, without any motion or application on the part of the investigating/prosecuting agency. The trial court, in fact, had passed the order impugned so as to enable the prosecution to fill up the lacunas in their case, and the order impugned amounted to ordering reinvestigation. (iii) That the learned trial court had not heard the Petitioner for the purposes of passing orders on the issue of further investigation as the trial court had simply heard the arguments on charge/discharge of the accused.
Arguments Before the Court
Mr. Altaf Haqani, the learned senior counsel for the Petitioner, argued that the order of further investigation could only be passed when the new facts were brought to the notice of the trial court after the filing of the charge sheet. He further contended that the learned Magistrate had only three options when the challan was filed, i.e. (1) accept the report, takes cognizance of the offenses, and issue process, (2) may disagree with the report and drop the proceedings or (3) may direct further investigation under Section 156 (3) and require the police to make a further report.
Per contra, Mr. B. A. Dar, learned Sr. AAG appearing for Respondents, argued that the learned Magistrate has powers to order further investigation under Section 156 Cr. P.C even at the post-cognizance stage.
Court’s Observations
The Court referred to the landmark judgment of Vinubhai Haribhai Malviya v. The State of Gujarat reported in (2019) 17 SCC 1. The Court observed that it was evident from the decision of the Apex Court that further investigation could be ordered, Suo-Motu by the Magistrate, depending upon the facts of each case. Whether further investigation should be ordered is within the discretion of the learned Magistrate who can exercise such discretion on the facts of each case and in accordance with the law. So, the first contention of the Petitioner that once the process has been issued, the Court had no jurisdiction to order further investigation was found to be bereft of any merit, and the same was rejected. The second contention raised by the Petitioner that no application was made by the prosecution agency was also rejected in view of the law laid down by the Apex Court in the judgment (supra). The third contention raised by the Petitioner that the further investigation can be ordered only on the discovery of new facts and not on the basis of the facts already placed before the learned Magistrate was also rejected, relying on the case of H.N. Rishbud v. State of Delhi (AIR 1955 SC 196). The ultimate contention raised by the Petitioner was that the Petitioner was heard on the issue of charge as well as discharge only and not on the issue of further investigation. The perusal of the order revealed certain crucial aspects that the learned trial court, while ordering the further investigation, has pointed out, and those were required to be considered for the purpose of further investigation. The Court further observed that the investigating officer had not conducted any investigation as to whether any permission had been taken by the accused being a public-servant from the Government or the competent authority for the acquisition of these properties. Furthermore, it observed that the learned trial court had given the cogent reasons while ordering the further investigation and from the perusal of the order impugned, it was revealed that the Petitioner had raised these issues during the course of his arguments on charge and discharge. So, there was no substance that the Petitioner was not heard of on the said issue once the Petitioner had raised the issue, those pointed towards the defective investigation conducted by the investigating officer. Therefore, the trial court was well within the power to order further investigation.
Court’s Decision
After going through the facts and precedents, the Court held that there was no merit in the present petition and dismissed the same. It held that owing to the defective investigation conducted by the investigating officer, the Trial Court was well within the power to order further investigation. Further, the Court directed the SSP VOK Srinagar (now ACB) to complete the further investigation of the case within a period as prescribed by the trial court in its order dated 10th April 2017.
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