DEVENDRA NATH SINGH versus STATE OF BIHAR & ORS.

[2022] 15 S.C.R.

ADEVENDRA NATH SINGH

STATE OF BIHAR & ORS.

(Criminal Appeal No. 1768 of 2022)

BOCTOBER 12, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Code of Criminal Procedure, 1973 – s. 482 – Allegations ofdefalcation of goods and misappropriation of stocks from thegodown of the Corporation – FIR was registered – Magistrate tookCcognizance of offences u/ss. 409, 467, 468 and 420 of IPC againstrespondent no.3 – Respondent no.3 filed petition u/s. 482 Cr.PC –High Court observed that an accused in the case ‘as scapegoat tosave the skin’ of the present appellant – Having said so, the HighCourt proceeded to direct the Magistrate to give directions to theDpolice to further investigate the case in terms of s.173(8) CrPCregarding the allegations against the appellant – On appeal, held:The person lodging the FIR with reference to the audit report, i.e.,the Senior Dy. Collector-cum-District Manager, made imputationsonly against the respondent No. 3, who was class IV employee ofthe Corporation but was purportedly posted as an in-charge AssistantEGodown Manager by the appellant, who was, at the relevant time,holding the position of the District Manager – Suffice it to observefor the present purpose that when all the relevant aspects were dulyprojected before the High Court in the petition filed by the respondentNo. 3, the High Court could not have simply ignored the same onlyFfor the reasons that the informant omitted to state them while lodgingthe FIR, and/or the investigating officer overlooked them whilesubmitting the result of 34 investigation, and/or the Magistrate didnot pay requisite attention to them while taking cognizance – Instantcase is case of exceptional and special features where the HighCourt was justified in ordering further investigation, particularlyGqua the role of the appellant – Thus, the principal part of the orderimpugned, directing further investigation, calls for no interference– However, High Court was not justified in making suchobservations, comments, and remarks, which leave little scope foran independent investigation and which carry all the potential toHcause prejudice to the appellant.

Dismissing the appeal, the court

HELD: 1. For what has been noticed various judgments ofSupreme Court, this Court could reasonably cull out theprinciples for application to the present case as follows: (a) Thescheme of the Code of Criminal Procedure, 1973 is to ensure afair trial and that would commence only after fair and justinvestigation. The ultimate aim of every investigation and inquiry,whether by the police or by the Magistrate, is to ensure that theactual perpetrators of the crime are correctly booked and theinnocents are not arraigned to stand trial. (b) The powers of theMagistrate to ensure proper investigation in terms of Section156 CrPC have been recognised, which, in turn, include the powerto order further investigation in terms of Section 173(8) CrPCafter receiving the report of investigation. Whether furtherinvestigation should or should not be ordered is within thediscretion of the Magistrate, which is to be exercised on the factsof each case and in accordance with law. (c) Even when the basicpower to direct further investigation in case where charge-sheet has been filed is with the Magistrate, and is to be exercisedsubject to the limitations of Section 173(8) CrPC, in an appropriatecase, where the High Court feels that the investigation is not inthe proper direction and to do complete justice where the factsof the case so demand, the inherent powers under Section 482CrPC could be exercised to direct further investigation or evenreinvestigation. The provisions of Section 173(8) CrPC do notlimit or affect such powers of the High Court to pass an orderunder Section 482 CrPC for further investigation orreinvestigation, if the High Court is satisfied that such courseis necessary to secure the ends of justice. (d) Even when thewide powers of the High Court in terms of Section 482 CrPC arerecognised 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 CrPCare not unlimited or untrammelled and are essentially for thepurpose of real and substantial justice. While exercising suchpowers, the High Court cannot issue directions so as to beimpinging upon the power and jurisdiction of other authorities.For example, the High Court cannot issue directions to the Stateto take advice of the State Public Prosecutor as to under whatprovision of law person is to be charged and tried when ordering

Afurther investigation or reinvestigation; and it cannot issuedirections to investigate the case only from particular angle. Inexercise of such inherent powers in extraordinary circumstances,the High Court cannot specifically direct that as result of furtherinvestigation or reinvestigation, particular person has to beprosecuted. [Para 13][721-G-H; 722-A-G]B

2. Applying the principles aforesaid to the facts of thepresent case, what we find is that, in relation to the allegations ofdefalcation of goods and misappropriation of stocks from thegodown of the Corporation, the person lodging the FIR withreference to the audit report, i.e., the Senior Dy. Collector-cum-CDistrict Manager, made imputations only against the respondentNo. 3, who was class IV employee of the Corporation but waspurportedly posted as an in-charge Assistant Godown Managerby the appellant, who was, at the relevant time, holding theposition of the District Manager. Though several features of theDactions and omissions at the relevant time have been mentionedin the audit report, we do not propose to dilate on the same.Suffice it to observe for the present purpose that when all therelevant aspects were duly projected before the High Court inthe petition filed by the respondent No. 3, the High Court couldnot have simply ignored the same only for the reasons that theEinformant omitted to state them while lodging the FIR, and/orthe investigating officer overlooked them while submitting theresult of investigation, and/or the learned Magistrate did not payrequisite attention to them while taking cognizance. [Para14][722-G-H; 723-A-C]F

3. In the given set of facts and circumstances, this Court issatisfied that the present one had been such case of exceptionaland special features where the High Court was justified in orderingfurther investigation, particularly qua the role of the appellant.Thus, the principal part of the order impugned, directing furtherGinvestigation, calls for no interference. [Para 14.1][723-D-E]

4. However, there are certain other aspects and featuresof the order impugned which are difficult to be appreciated andapproved. The High Court has chosen to use such harsh andsevere expressions in the impugned order which carry all the

potential of causing prejudice to the appellant and even to distracta fair and dispassionate investigation. As noticed, the High Courthas made its comments that the ‘entire game was played’ by theappellant who was holding the position of District Manager. TheHigh Court has even stated that the appellant was ‘ultimatelyresponsible for all such irregularities’. The High Court has goneto the extent of observing that the respondent No. 3 was madean accused in the case ‘as scapegoat to save the skin’ of theappellant. These and other akin observations in the orderimpugned lead to the position as if the High Court has alreadyconcluded on the result of investigation against the appellant. Itis entirely different matter to order further investigation onbeing prima facie satisfied about the requirement to do so in viewof exceptional circumstances pertaining to given case but, whiledoing so in exercise of inherent powers, the High Court has notbeen justified in making such observations and remarks whichare likely to operate over and above the investigation and maycause prejudice to the appellant. As noticed, the principle remainssettled that the High Court cannot issue directions to investigatethe case from particular angle. [Para 15][723-E-G; 724-A-C]

5. Thus, this Court is of the view that in the given set offacts and circumstances, though the High Court has rightlyexercised its powers under Section 482 CrPC for directing furtherinvestigation but, has not been justified in making suchobservations, comments, and remarks, which leave little scopefor an independent investigation and which carry all the potentialto cause prejudice to the appellant. [Para 16][724-C-D]

Dharam Pal and Ors. v. State of Haryana and Anr.(2014) 3 SCC 306 : [2013] 13 SCR 1052; AbhinandanJha & Ors. v. Dinesh Mishra [1967] 3 SCR 668;Vinubhai Haribhai Malaviya and Ors. v. State ofGujarat and Anr. (2019) 17 SCC 1 : [2019] 15 SCR936; Madan Mohan v. State of Rajasthan and Ors.(2018) 12 SCC 30 : [2017] 12 SCR 222; PopularMuthiah v. State (2006) 7 SCC 296 : [2006] 3 Suppl.SCR 100; Divine Retreat Centre v. State of Kerala and

ABC

AOrs. (2008) 3 SCC 542 : [2008] 4 SCR 701; Union ofIndia and Anr. v. W.N. Chadha (1993) 4 Supp SCC 260: [1992] 3 Suppl. SCR 594; Manharibhai MuljibhaiKakadia and Anr. v. Shaileshbhai Mohanbhai Patel andOrs. (2012) 10 SCC 517 : [2012] 8 SCR 1015; VinayTyagi v. Irshad Ali and Ors. (2013) 5 SCC 762 : [2012]B13 SCR 1005; State of Punjab v. Central Bureau ofInvestigation and Ors. (2011) 9 SCC 182 : [2011] 11SCR 281; Neetu Kumar Nagaich v. State of Rajasthanand Ors. (2020) 16 SCC 777 : [2020] 6 SCR 1015 –referred to.

Case Law Reference

From the Judgment and Order dated 10.09.2018 of the High Courtof Judicature at Patna in Criminal Miscellaneous No. 649 of 2016.

Siddharth Dave, Sr. Adv., Aditya Singh, Ms. Manisha Ambwani,Advs. for the Appellant.

Garvesh Kabra, Samir Ali Khan, Aman Pathak, Manish Kumar,Amit Pawan, Prasanna Mohan, Ms. Ishita Sinha, Sameer Shrivastava,Hussan Zubair Waris, Dr. Sangeeta Verma, Ms. Shivangi, Aakarsh, Advs.Hfor the Respondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

Delay condoned. Leave granted.

2. The challenge in this appeal is to the order dated 10.09.2018, aspassed by the High Court of Judicature at Patna in Criminal MiscellaneousNo. 649 of 2016.

2.1. The said petition under Section 482 of the Code of CriminalProcedure, 1973[1] was filed by respondent No. 3 of the present appeal,against the order dated 21.06.2014, as passed by the ACJM, Barh, DistrictPatna[2] in Barh Police Station Case No. 115 of 2012 whereby, the learnedMagistrate had taken cognizance of the offences under Sections 409,467, 468 and 420 of the Indian Penal Code, 1860[3] on the allegationsagainst the respondent No. 3 of misappropriation of stocks worth Rs.16,99,648/- from the godown of the Bihar State Food and Civil SuppliesCorporation[4] during the years 2010-11 and 2011-12.

3. The main plank of the submissions before the High Court in theaforesaid petition by the respondent No. 3 had been that he was only aClass IV employee of the Corporation and that the ‘entire game wasplayed’ by the present appellant, who was holding the position of theDistrict Manager. In that regard, the contents of audit report formingpart of the First Information Report[5] were extensively relied upon.

4. The High Court, after taking note of the submissions made onbehalf of the present respondent No. 3, expressed surprise that the thenDistrict Manager of the Corporation (i.e., the present appellant), whowas ultimately responsible for the illegalities, was given clean chit bythe informant, i.e., the Senior Dy. Collector-cum-District Manager (in-charge of the godown). It was also observed that the present respondentNo. 3, Class IV employee, could not have been posted at the godown;and that he was made an accused in the case ‘as scapegoat to savethe skin’ of the present appellant.

4.1. Having said so, the High Court proceeded to direct theMagistrate to give directions to the police to further investigate the case

1 ‘CrPC’, for short.

2 Hereinafter referred to as ‘the Magistrate’.

3 ‘IPC’, for short.

4 Hereinafter referred to as ‘the Corporation’.

5 ‘FIR’, for short.

Ain terms of Section 173(8) CrPC regarding the allegations against theappellant and to seek the report within period of three months. TheCourt, however, expressed its disinclination to interfere with the impugnedorder taking cognizance against the present respondent No. 3 and disposedof the petition while giving liberty to the respondent No. 3 to raise all thepoints at the time of framing the charge which, as per the directions ofBthe High Court, were to be decided by the learned Magistrate aftertaking into consideration the material emerging in further investigationagainst the appellant.

5. The impugned order dated 10.09.2018 could be usefullyreproduced, in extenso, as under: -C

“This petition under Section 482 Cr. P. C. has been filed forquashing 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 learnedMagistrate has taken cognizance for the offence under Sections409,467, 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 thatpetitioner was only class IV employee in the Bihar State Foodand Civil Supply Corporation Ltd. for short ‘the Corporation”.The entire game was played by D.N Singh who was DistrictManager which has also come in the Audit Report which is partof the FIR and annexed as Annexure-2. The informant who wasSenior Dy. Collector-cum-District Manager (Incharge) of theGodown has not lodged any case against said D.N.Singh the thenDistrict Manager who had played entire game in committingmisappropriation. The F.I.R. has been lodged only against thepetitioner who was class IV employee and was made In-chargeof the Godown by D.N. Singh against the Circular and Governmentpolicy, which had also come in detail in Audit Report submitted bythe Auditor. The police submitted charge sheet against this petitioneron the basis of aforesaid FIR and cognizance has been takenagainst the petitioner on the basis of the charge sheet.

This Court is really surprised to find that the then DistrictManager of the Corporation, who was ultimately responsible forall such illegalities, had been given clean chit by the informant. Hewas 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 hewas not entitled to be posted as such. He has been made accusedin the case as scapegoat to save the skin of D.N.Singh, the thenDistrict Manager of Godown.

Learned ACJM, Barh, Patna is directed to give direction tothe police to further reinvestigate the case in terms of provision ofSection 173(8) of the Cr. P.C. with regard to allegation againstD.N.Singh the then District Manager with regard to allegation ofmisappropriation of money and appointing the petitioner who wasclass IV employee as In-charge Assistant Godown Manageragainst the circulars and directions of the Government. TheMagistrate will direct the police to complete the re-investigationwith regard to role of then District Manager Sri D. N.Singh in theentire game of the misappropriation of the money as mentioned indetail in the audit report in accordance with law and submit reportbefore him within period of three months from the date of passingof the order by the learned Magistrate.

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

This Cr. Misc. petition is, accordingly, disposed off. Thepetitioner is given liberty to raise all the points, as raised in thepresent application, at the time of framing of charge, which shallbe considered and disposed off by the learned Court below inaccordance with law after taking into consideration the materialswhich will come during further investigation with regard toallegation against D. N. Singh the then District Manager.”

6. The order aforesaid is questioned by the appellant in whoserelation the directions have been issued for further investigation, interalia, on the ground that investigation is the prerogative of the investigatingagency/officer and no mandate could be issued to the Magistrate so asto usurp such powers to investigate. It is also submitted that the impugnedorder has been directly in violation of the principles of natural justiceinasmuch as no opportunity of hearing was extended by the High Courtto the appellant.

A6.1. While elaborating, learned counsel for the appellant hascontended that the High Court, while exercising its powers under Section482 CrPC, could not have issued specific direction to the Magistrate todirect the police to investigate the role of the appellant, who was neithernamed in the FIR nor was charge-sheeted and was not even partybefore the High Court. With reference to the Constitution Bench decisionBin 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 HaribhaiMalaviya and Ors. v. State of Gujarat and Anr.: (2019) 17 SCC 1,the learned counsel has submitted that the principles remain settled byCthis Court that as per the scheme of CrPC, formation of an opinion as towhether person is to be put on trial has been left to the officers incharge of police station; and this Court has further held that in casewhere the Magistrate is of the opinion that the final report submitted bythe police is unsatisfactory, he could exercise his powers under Section156(3) CrPC and direct the police to make further investigation orDstraightaway take cognizance under section 190(1)(c) CrPC,notwithstanding the contrary opinion of the police. However, accordingto the learned counsel, directions for exercising such power in particularmanner could not have been issued by the High Court while dealing withthe petition filed by the respondent No. 3. The learned counsel has alsoEreferred to the decision in Madan Mohan v. State of Rajasthan andOrs.: (2018) 12 SCC 30, wherein this Court has observed that superiorCourt could not issue directions to any subordinate Court commandingthem to pass particular order on any application filed by party.

6.2. Learned counsel for the appellant has also relied upon theFdecision in Popular Muthiah v. State: (2006) 7 SCC 296 to submitthat while dealing with similar issue where the High Court, in an appealagainst conviction under Section 302 IPC, had issued directions to theinvestigating agency to investigate the appellant who had not been sentup for trial, this Court held that the High Court could not have issued

such direction in exercise of its inherent powers, as the investigation ofGan offence was statutory power of the police and it was for the Stateto decide whether it wanted to proceed against an accused or not. Itwas observed that the High Court could not issue directions to investigatethe case from particular angle or by particular agency and hence, itwent beyond its jurisdiction in directing the prosecution of the appellant.HTherein, the impugned judgment was set aside, and the matter was

remanded to the High Court for fresh consideration after hearing theappellant.

6.3. In the second limb of submissions, learned counsel for theappellant has contended that the High Court ought to have given anopportunity of hearing to the appellant before issuing the impugneddirections. The learned counsel would argue that the test as to whethera person is entitled to an opportunity of being heard in challenge to anorder passed by Magistrate is not dependant on whether such personhad right to be heard by the Magistrate in the first instance; theentitlement to hearing has to be assessed independently by consideringthe consequences of the proceedings in which hearing is sought; and ahearing could be claimed where substantial right of person would beaffected. The learned counsel has referred to the decision in DivineRetreat Centre v. State of Kerala and Ors.: (2008) 3 SCC 542wherein, while dealing with the issue whether the High Court could havepassed judicial order directing an investigation against the appellanttherein without hearing it, this Court held that no judicial order could bepassed by any Court without providing reasonable opportunity of beingheard to the person who was likely to be affected by such order whiledistinguishing the decision in the case of Union of India and Anr. v.W.N. Chadha: 1993 Supp (4) SCC 260 by observing that the dictumin the said judgment would not apply where challenge was to judicialorder directing an inquiry or investigation against person or institution.The learned counsel has also relied upon 3-Judge Bench decision ofthis Court in Manharibhai Muljibhai Kakadia and Anr. v. ShaileshbhaiMohanbhai Patel and Ors.: (2012) 10 SCC 517, wherein it wasobserved that an accused or person suspected to have committed acrime has right to be heard in criminal revision preferred before theHigh Court or Sessions Judge against an order of dismissal of complaintunder Section 203 CrPC, as an order passed by the superior Court inrevision, overturning the order of dismissal of the complaint would, ineffect, 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 hadalready been exonerated of all charges after detailed departmentalproceedings and hence, the directions for further investigation were whollyunwarranted in this case.

A6.4. Learned counsel for the appellant has also argued that theHigh Court could not have directed for further investigation orreinvestigation in this the matter in view of the dictum of this Court inVinay Tyagi v. Irshad Ali and Ors.: (2013) 5 SCC 762, wherein itwas held that fresh/de novo investigation ought to be directed sparinglyand in exceptional circumstances, like where the investigation alreadyBconducted is tainted by malafides.

6.5. Learned counsel for the appellant would submit that theMagistrate himself, while taking cognizance, could have proceededagainst the present appellant, if he had been satisfied that the materialson record implicated the appellant to any extent but, when the MagistrateCopted not to proceed against the appellant, the High Court could nothave issued directions to further reinvestigate the matter qua the appellant,though it is always open for Court to proceed against person not sentup for trial at the stage of Section 319 CrPC, if the evidence is forthcomingin that regard.D

7. Learned counsel for the respondent No. 3 has supported theimpugned order with the submissions that the appellant was high-rankingofficer and he appears to have influenced the other officers in the internalinquiry so as to give him clean chit. copy of the audit report dated31.05.2012 forming the basis of the FIR in question has been placed onErecord and has been exhaustively referred to during the course ofsubmissions.

7.1. The learned counsel has underscored the observations of thisCourt in the case of Vinubhai Haribhai Malaviya (supra) that theultimate aim of investigation and inquiry, whether by the police or by theFMagistrate, is to ensure that those who have actually committed thecrime are booked and those who have not, are not arraigned to facetrial. With reference to these and other observations that suchrequirements pertain to the spirit of Article 21 of the Constitution ofIndia, learned counsel has argued that the offences in question, relatingto defalcation of foodgrains which caused hardship to the economicallyGweaker sections of the society, need to be properly investigated not onlyto book the actual culprits but also to check the recurrence of such acrime.

7.2. The learned counsel would argue that in the peculiarcircumstances of this case, when it was found that no proper investigationHwas carried out against the appellant, who was the District Manager

and overall in-charge of the godowns, the High Court has rightly exercisedits inherent powers to issue the directions so as to ensure further andproper investigation in the matter. While relying on the decision of thisCourt in the case of State of Punjab v. Central Bureau of Investigationand Ors.: (2011) 9 SCC 182, the learned counsel has contended thatunder Section 482 CrPC, the High Court has the power to order furtherinvestigation as also reinvestigation; and that no illegality or jurisdictionalerror could be imputed on the order impugned. The learned counsel hasfurther submitted that when the High Court has the power to directfurther investigation or reinvestigation directly, it also could do so byissuing 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 final report is submitted, has the power and authority todiffer with the report and to order further investigation. However, theexistence of this power with the Magistrate does not ipso facto implythat the High Court, even in exercise of its inherent jurisdiction, cannotdirect further investigation in an appropriate case, when it comes to itsnotice that the investigation in case has not been conducted properly.

7.4. It has further been argued that although the inherent powerscannot be used by the High Court in routine manner and can beexercised only in extreme cases but in the present case, when offencein question has the consequences for the society at large, the High Courtcannot be faulted in exercising its inherent powers, which are,nevertheless, exercised ex debito justitiae. The learned counsel hasparticularly referred to paragraph 30 of the aforesaid decision in PopularMuthiah; and has further relied upon the case of Neetu Kumar Nagaichv. State of Rajasthan and Ors.: (2020) 16 SCC 777 wherein thisCourt has held that when constitutional Court is satisfied that theinvestigation has not been conducted in an objective manner or conductedin manner as to help someone escaping the law, it could direct de novoinvestigation so as to prevent miscarriage of criminal justice.

7.5. As regards the contention that no notice was issued to theappellant before passing of the impugned order, the learned counsel hasargued, 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 beissued to the accused. Learned counsel has also referred to variousother decisions and has submitted that the said decision in W.N. Chadhahas been consistently followed by this Court. The learned counsel would

Aalso submit that though the referred judgments were rendered in theapplications filed by the victim and not by the co-accused but theunderlying principle remains the same that an accused is not required tobe heard at the stage of investigation. Learned counsel would also submitthat if upon receiving the final report, the learned Magistrate could haveordered further investigation without prior notice to the accused, so couldBthe High Court have, in exercise of its inherent jurisdiction, which is, ifanything, much wider.

7.6. In the last leg of contentions, learned counsel for respondentNo. 1 has also submitted that before granting of interim stay by thisCourt, the requisite investigation had commenced and was transferredCto the Economic Offences Unit, where the allegations against theappellant have been found to be prima facie correct but further actionwas deferred in view of the stay order of this Court. However, theinvestigation hitherto carried out makes it clear that the doubts expressedby the High Court have been found to be completely justified. Hence,Dthe learned counsel would submit in the alternative that, in any case, theinvestigation already carried out deserves to be protected so that thereal culprits like the appellant do not escape the process of law.

8. Apart from the submissions aforesaid, it is noteworthy thatthough, on behalf of the respondent No. 2 - Corporation, the replyEsubmissions are essentially to the effect that in the departmentalproceedings, charges were not proved against the present appellant butthen, in the counter affidavit on behalf of the respondent No. 1 - State,detailed submissions have been made, essentially refuting the case ofthe appellant.F8.1. It has, inter alia, been submitted on behalf of the respondent-State that apart from the present matter, being Barh P.S. Case No. 115of 2012, there had also been another matter, being Bikram P.S. CaseNo. 129 of 2012 against the respondent No. 3 as also the presentappellant; and after the order passed by the High Court, the investigationin the present case was also carried out by the Economic OffencesGUnit, Bihar along with the aforesaid Bikram P.S. Case No. 129 of 2012.While indicating prima facie complicity of the appellant, it has also beenpointed out that in the said Bikram P.S. Case No. 129 of 2012, institutedfor offences under Sections 409, 420, 468, 471 and 474 IPC, after findingprima facie case against the present appellant, prosecution sanctionHhas 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 beengiven interim protection by this Court. few passages of the counteraffidavit filed on behalf of the State could be usefully reproduced asunder: -

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

14. Even the petitioner was found to be silent with respect to theaffairs of the go down change whereof was handed over by thispetitioner Class Iv employee namely Pramod Ranjan Sinhainasmuch as on 11.02.2010 on truck bearing Registration No. BR1G 1051 carrying 104.61.650 Quintals of Wheat from MokamaDepot left Barh Go-down, however, on 12.02.2010 this truck wasapprehended and it was found to be black marketing, but, thispetitioner despite Knowledge did not take any steps against theemployee in charge of the go down by removing him from thepost and only value of the wheat was recovered from the salaryof the employee. In fact, the district office has repeateadlyinformed about the irregularities at the procurement centers,however, the petitioner did not take any steps, nor did he removethe in change from the procurement center/go down.

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

16. It is stated that being District Manager it was the responsibilityand 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 hugemisappropriation. In fact, as per the report of the SFC, it wasfound that there is no proof that this petitioner carried outinspections/visits to the Go downs.

17. During investigation, when statement of the witnesses wererecorded, namely, Radhakant Paswan, Ramashankar Prasad andBrajkishore Srivastave, the then Assistants, they deposed that the

Apetitioner was responsible and that he did not discharge his dutiesproperly.

18. In fact, besides the present criminal case the petitioner hasalso been arraigned as non-FIR accused in connection withBikram Police Station Case No. 129 of 2012 dated 12.06.2012Binstituted under Sections 409/420/468/471/474 of IPC which isalso case of identical nature. In fact, in this case the prosecutionsanction has also been received from the Corporation against thispetitioner on 13.01.2012.

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

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

D9. We have given anxious consideration to the rival submissionsand have scanned through the material placed on record.

10. As could be readily noticed, the present case carries thepeculiarities of its own inasmuch as only the respondent No. 3 was namedin the FIR and was charge-sheeted on the allegations of defalcation ofEfoodgrains in the godown of Corporation. No investigation whatsoeverwas carried out in relation to the role of the appellant in the matter.When the respondent No. 3 attempted to question the order passed bythe learned Magistrate taking cognizance of the offences under Sections409, 467, 468 and 420 IPC, the High Court, though, remained disinclinedFto interfere with the order so passed by the learned Magistrate but, onthe other hand, expressed surprise that the appellant, the then DistrictManager, was given clean chit by the informant, another officer of theCorporation; and only the respondent No. 3, Class IV employee, wasnamed as an accused. The High Court even proceeded to observe thatthe respondent No. 3 had been made accused in the case ‘as scapegoatGto save the skin’ of the appellant. Therefore, the High Court directedthe learned Magistrate to give directions for further investigation in termsof Section 173(8) CrPC with regard to the allegations against theappellant, of misappropriation of money and of appointing the respondentNo. 3 as in-charge Assistant Godown Manager against the circulars anddirections of the Government. The High Court further observed that theH

directions shall be to complete the investigation with regard to the role ofthe appellant in ‘the entire game of the misappropriation of the moneyas mentioned in detail in the audit report’. Indisputably, the orderimpugned came to be passed by the High Court without the appellantbeing party before it and in the exercise of its inherent powers underSection 482 CrPC.

10.1. Thus, and in view of the submissions made before us, twoprincipal questions arise for determination in this appeal: one, as to whetherthe High Court, in the exercise of its inherent powers under Section 482CrPC, was justified in issuing directions to the Magistrate to order furtherinvestigation though, the Magistrate before whom the charge-sheet hadbeen filed and who had taken cognizance, did not adopt any such process;and second, as to whether the High Court was justified in passing theorder impugned without affording an opportunity of hearing to theappellant?

11. While dealing with the first question as to the High Court’sexercise of its inherent powers under Section 482 CrPC in the mannerthe same have been exercised in this matter, we may usefully refer tothe relevant provisions of law, which would be of bearing in theforthcoming discussion.

11.1. Section 482 CrPC, saving the inherent powers of the HighCourt, whereunder and whereby the order impugned has been passed inthis matter, reads as under: -

“482. Saving of inherent power of High Court.- Nothing inthis Code shall be deemed to limit or affect the inherent powersof the High Court to make such orders as may be necessary togive effect to any order under this Code, or to prevent abuse ofthe process of any Court or otherwise to secure the ends ofjustice.”

11.2. It is indisputable that as per the scheme of CrPC, formationof an opinion as to whether the person is to be put on trial has been leftto the officer in-charge of police station; and where the Magistrate isof the opinion that the result of investigation in the form of report filedbefore him is not satisfactory, he may also order investigation in terms ofSections 156(3) and/or 173(8) CrPC or he may straightway takecognizance under Section 190(1)(c).

A11.2.1. 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 police station may, without the orderof Magistrate, investigate any cognizable case which CourtBhaving jurisdiction over the local area within the limits of suchstation would have power to inquire into or try under the provisionsof Chapter XIII.

(2)No proceeding of police officer in any such case shall at anystage be called in question on the ground that the case was oneCwhich such officer was not empowered under this section toinvestigate.

(3)Any Magistrate empowered under section 190 may order suchan investigation as above-mentioned.”

*********

“173. Report of police officer on completion ofinvestigation.- (1) Every investigation under this Chapter shallbe completed without unnecessary delay.

*********

E(2) (i) As soon as it is completed, the officer in charge of thepolice station shall forward to Magistrate empowered to takecognizance of the offence on police report, report in the formprescribed by the State Government, stating –

(a) the names of the parties;F(b) the nature of the information;

(c) the names of the persons who appear to be acquainted withthe circumstances of the case;

(d) whether any offence appears to have been committed and, ifGso, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whetherwith or without sureties;

(g) whether he has been forwarded in custody under section 170;H

(h) whether the report of medical examination of the woman hasbeen attached where investigation relates to an offence underSections 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 maybe prescribed by the State Government, the action taken by him,to the person, if any, by whom the information relating to thecommission of the offence was first given.

*********

(8) Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after report under sub-section (2) has been forwarded to the Magistrate and, where uponsuch investigation, the officer in charge of the police station obtainsfurther evidence, oral or documentary, he shall forward to theMagistrate further report or reports regarding such evidence inthe form prescribed; and the provisions of sub-sections (2) to (6)shall, as far as may be, apply in relation to such report or reportsas they apply in relation to report forwarded under sub-section(2).”

*********

“-190. Cognizance of offences by Magistrates. (1)Subject tothe provisions of this Chapter, any Magistrate of the first class,and any Magistrate of the second class specially empowered inthis behalf under sub-section (2), may take cognizance of anyoffence-

(a)upon receiving complaint of facts which constitute suchoffence;

(b)upon police report of such facts;

(c)upon information received from any person other than policeofficer, or upon his own knowledge, that such offence has beencommitted.

(2) The Chief Judicial Magistrate may empower any Magistrateof the second class to take cognizance under sub-section (1) ofsuch offences as are within his competence to inquire into or try.”

A11.3. It is hardly matter of dispute that the Code of CriminalProcedure contemplates various stages and vests various powers in theMagistrate 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 ofCriminal Procedure, as also underscored in the Constitution BenchBdecision of this Court in Dharam Pal (supra) and in another decision inAbhinandan Jha (supra) do not require much elaboration for the purposeof the present case.

12. As noticed, the present case carries its unique features thatthe learned Magistrate had not exercised any such powers in terms ofCSection 156(3) or Section 173(8) or Section 190(1)(c) CrPC but, theHigh Court has, while dealing with petition under Section 482 CrPC,directed him to direct the police to investigate further, particularly asregards the role of the appellant; and such exercise of power by theHigh Court is in question. In this regard, we may usefully refer to theDrelevant of the decisions cited by the learned counsel for the parties.

12.1. In the case of Vinay Tyagi (supra), this Court dealt withthe wide range of issues relating to the powers of the High Court underSection 482 CrPC as also the powers of the Magistrate under Section173 CrPC; and different vistas of the processes of conducting ‘freshEinvestigation’ and/or ‘further investigation’. This Court observed andheld as under: -

“43. At this stage, we may also state another well-settled canonof the criminal jurisprudence that the superior courts have thejurisdiction under Section 482 of the Code or even Article 226 ofFthe 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 inlaw would be the same. The superior courts are even vested withthe power of transferring investigation from one agency to another,provided the ends of justice so demand such action. Of course, itGis also settled principle that this power has to be exercised bythe superior courts very sparingly and with great circumspection.

44. We have deliberated at some length on the issue that thepowers of the High Court under Section 482 of the Code do notcontrol or limit, directly or impliedly, the width of the power of the

-Magistrate under Section 228 of the Code. Wherever chargesheet has been submitted to the court, even this Court ordinarilywould not reopen the investigation, especially by entrusting thesame to specialised agency. It can safely be stated and concludedthat in an appropriate case, when the Court feels that theinvestigation by the police authorities is not in the proper directionand that in order to do complete justice and where the facts of thecase demand, it is always open to the Court to hand over theinvestigation to specialised agency.These principles have beenreiterated with approval in the judgments of this Courtin Disha v. State of Gujarat[6], Vineet Narain v. Union ofIndia[7], Union of India v. Sushil Kumar Modi[8]and RubabbuddinSheikh v. State of Gujarat[9] .45.The power to order/direct “reinvestigation” or “de novo”investigation falls in the domain of higher courts, that too inexceptional cases.If one examines the provisions of the Code,there is no specific provision for cancellation of the reports, exceptthat the investigating agency can file closure report (whereaccording to the investigating agency, no offence is made out).Even such report is subject to acceptance by the learnedMagistrate who, in his wisdom, may or may not accept such areport. For valid reasons, the court may, by declining to acceptsuch report, direct “further investigation”, or even on the basisof 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 atwin purpose: Firstly, the investigation must be unbiased, honest,just and in accordance with law; secondly, the entire emphasis ona fair investigation has to be to bring out the truth of the casebefore the court of competent jurisdiction. Once these twinparadigms of fair investigation are satisfied, there will be the leastrequirement for the court of law to interfere with the investigation,

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

7 (1998) 1 SCC 226: 1998 SCC (Cri) 307.

8 (1996) 6 SCC 500.

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

Amuch less quash the same, or transfer it to another agency. Bringingout the truth by fair and investigative means in accordance withlaw would essentially repel the very basis of an unfair, taintedinvestigation or cases of false implication. Thus, it is inevitable fora court of law to pass specific order as to the fate of theinvestigation, which in its opinion is unfair, tainted and in violationBof the settled principles of investigative canons.

49. Now, we may examine another significant aspect which ishow the provisions of Section 173(8) have been understood andapplied by the courts and investigating agencies. It is true thatthough there is no specific requirement in the provisions of SectionC173(8) of the Code to conduct “further investigation” or filesupplementary report with the leave of the court, the investigatingagencies have not only understood but also adopted it as legalpractice to seek permission of the courts to conduct “furtherinvestigation” and file “supplementary report” with the leave ofDthe court. The courts, in some of the decisions, have also taken asimilar view. The requirement of seeking prior leave of the courtto conduct “further investigation” and/or to file “supplementaryreport” will have to be read into, and is necessary implication ofthe provisions of Section 173(8) of the Code. The doctrine ofcontemporanea expositio will fully come to the aid of suchEinterpretation as the matters which are understood andimplemented for long time, and such practice that is supportedby law should be accepted as part of the interpretative process.”

(emphasis supplied)

F12.2. In the case of State of Punjab v. CBI (supra), this Courthad the occasion to deal with petition challenging the High Court’sdirections for entrusting investigation relating to multiple FIRs to CBI,where the FIRs had their genesis in the allegations of rape by therespondent No. 3 against her husband and several other persons. Whiledismissing the petition and declining leave to appeal under Article 136 ofGthe Constitution of India, this Court exposited on the magnitude of powerof the High Court under Section 482 CrPC for securing the ends ofjustice in the following passages: -

“22. Section 482 CrPC, however, states that nothing in CrPCshall be deemed to limit or affect the inherent powers of the High

Court to make such orders as is necessary to give effect to anyorder under CrPC or to prevent the abuse of the process of anycourt or otherwise to secure the ends of justice. Thus, the provisionsof CrPC do not limit or affect the inherent powers of the HighCourt to make such orders as may be necessary to give effect toany order of the court or to prevent the abuse of any process ofthe court or otherwise to secure the ends of justice. The languageof sub-section (8) of Section 173 CrPC, therefore, cannot limit oraffect the inherent powers of the High Court to pass an orderunder Section 482 CrPC for fresh investigation or reinvestigationif the High Court is satisfied that such fresh investigation orreinvestigation is necessary to secure the ends of justice.

23. We find support for this conclusion in the following observationsof this Court in Mithabhai Pashabhai Patel v. State of Gujarat[10]cited by Mr Dhavan:

“13. It is, however, beyond any cavil that ‘further investigation’and ‘reinvestigation’ stand on different footing. It may be thatin given situation superior court in exercise of itsconstitutional power, namely, under Articles 226 and 32 of theConstitution of India could direct ‘State’ to get an offenceinvestigated and/or further investigated by different agency.Direction of reinvestigation, however, being forbidden in law,no superior court would ordinarily issue such direction.Pasayat, J. in Ramachandran v. R. Udhayakumar[11]opinedas under:

‘7. At this juncture it would be necessary to take note ofSection 173 of the Code. From plain reading of the abovesection it is evident that even after completion ofinvestigation under sub-section (2) of Section 173 of theCode, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.’

distinction, therefore, exists between reinvestigation andfurther investigation.

10 (2009) 6 SCC 332: (2009) 2 SCC (Cri) 1047.

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

A15. The investigating agency and/or court exercise theirjurisdiction conferred on them only in terms of the provisionsof the Code. The courts subordinate to the High Court even donot have any inherent power under Section 482 of the Code ofCriminal Procedure or otherwise. The precognizance jurisdictionto remand vested in the subordinate courts, therefore, must beBexercised within the four corners of the Code.”

24. It is clear from the aforesaid observations of this Court thatthe investigating agency or the court subordinate to the High Courtexercising powers under CrPC have to exercise the powers withinthe four corners of CrPC and this would mean that the investigatingCagency may undertake further investigation and the subordinatecourt may direct further investigation into the case where charge-sheet has been filed under sub-section (2) of Section 173 CrPCand such further investigation will not mean fresh investigation orreinvestigation. But these limitations in sub-section (8) of SectionD173 CrPC in case where charge-sheet has been filed will notapply 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 MuthiahE(supra) has been referred to by the learned counsel for the contestingparties in support of their respective contentions. Therein, the High Court,while exercising its appellate jurisdiction against the judgment and orderconvicting and sentencing an accused of the offence under Section 302IPC, opined that no case was made out to interfere with judgment of theFTrial Court in regard to the conviction of the charged accused but then,there was evidence at every stage implicating the other persons too inthe crime; and the action on the part of the investigating officers leavingthem from the array of accused was not simply bona fide error. TheHigh Court felt that the Sessions Judge ought to have exercised hisjurisdiction under Section 319 CrPC and while making adverse commentsGas regards conduct of the case, the High Court directed that theprosecution of such other accused persons be launched. The High Courtfurther directed that the State shall take the advice of the PublicProsecutor as to under what Section they were to be charged and tried;and CB, CID shall take over the matter, reinvestigate, and prosecuteHsuch other accused persons. The question before this Court was about

legality and propriety of the directions so issued by the High Court whileexercising appellate jurisdiction and without extending an opportunity ofhearing to the persons proposed to be prosecuted. In this backdrop, thisCourt exposited on the amplitude as also on the limitation of such powersof the High Court and remitted the matter to the High Court, forconsideration afresh and after notice to the parties concerned, whileobserving and holding as under: -

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

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

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

(ii) Such power can be exercised concurrently with theappellate or revisional jurisdiction and no formal application isrequired to be filed therefor.

(iii) It is, however, beyond any doubt that the power underSection 482 of the Code of Criminal Procedure is not unlimited. Itcan inter alia be exercised where the Code is silent, where thepower of the court is not treated as exhaustive, or there is specificprovision in the Code; or the statute does not fall within the purviewof the Code because it involves application of special law. Itacts ex debito justitiae. It can, thus, do real and substantial justicefor which alone it exists.

46.The High Court, however, was not correct in issuing directionto the State to take advice of the State Public Prosecutor as tounder what section the appellant has to be charged and tried ordirecting CB, CID to take up the matter and reinvestigate andprosecute the appellant herein. Such power does not come withinthe purview of Section 482 of the Code of Criminal Procedure.

Investigation of an offence is statutory power of the police. TheState in its discretion may get the investigation done by any agencyunless there exists an extraordinary situation.

48. The High Court while passing the impugned judgment did notBbear the said principles in mind. It went beyond its jurisdiction indirecting the prosecution of the appellant before us. In case ofthis nature, where superior court exercises its inherent jurisdiction,it indisputably should remind itself about the inherent danger intaking away the right of an accused. The High Court should haveCbeen circumspect in exercising the said jurisdiction. When powerunder sub-section (8) of Section 173 of the Code of CriminalProcedure is exercised, the court ordinarily should not interferewith the statutory power of the investigating agency. It cannotissue directions to investigate the case from particular angle orby particular agency. In the instant case, not only the High CourtDhad asked reinvestigation into the matter, but also directedexamination of the witnesses who had not been cited as prosecutionwitnesses. It furthermore directed prosecution of the appellantwhich 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.TheHigh Court may or may not in given situation, particularly havingregard to lapse of time, exercise its discretionary jurisdiction. Forthe said purpose, it was not only required to apply its mind to theFmaterials on record but was also required to consider as to whetherany purpose would be served thereby.

57.Having regard to the peculiar facts and circumstances of thiscase, we are of the opinion that before issuing the impugneddirections, the High Court should have given an opportunity ofGhearing to the appellants herein.

58. For the reasons aforementioned, the impugned judgment isset aside and the matter is remitted to the High Court forconsideration of the matter afresh. The High Court shall issuenotice to the appellants herein as also the State and pass appropriateHorders as it may deem fit and proper and in accordance with law.

The appeals are allowed with the aforementioned observationsand directions.”

(emphasis supplied)

12.4. The 3-Judge Bench decision of this Court in the case ofVinubhai Haribhai Malaviya (supra) has also been referred to by thelearned counsel for the parties in support of their respective contentions.Therein, this Court did not approve the impugned judgment of the HighCourt insofar it was stated that post-cognizance, the Magistrate wasdenuded of power to order further investigation. However, this Courttook note of the basic facts of the case that the FIR dated 22.12.2009was concerned with two criminal acts, namely, preparing of fake andbogus Satakhat and power of attorney in respect of the agriculturalland in question, and demanding of an amount of Rs. 2.5 crores as anattempt to extort money by the accused persons. It was also noticedthat the facts alleged in the application for further investigation werepertaining to the revenue entries made in favour of R and S, and allegingas to how their claim over the same land was false and bogus. ThisCourt found that the facts alleged in the application for furtherinvestigation were in the nature of cross-FIR, which had never beenregistered. communication of the Commissioner of Revenue, Gujaratdated 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 saidcommunication of the Commissioner of Revenue, Gujarat dated15.03.2011, this Court held that no case for further investigation into thefacts alleged in the FIR dated 22.12.2009 was made out. However, havingregard to what was stated by the Commissioner, this Court directed thepolice to register an FIR qua those facts, to be inquired into by seniorpolice officer; and this Court issued further directions for appropriatesteps on the basis of the police report. In the course of this decision, thisCourt exposited on the theory and philosophy related with the aim ofinvestigation and inquiry as also on the wide range of powers of thepolice and the Magistrate as regards investigation and furtherinvestigation, inter alia, in the following passages: -

“18. It is clear that fair trial must kick off only after aninvestigation is itself fair and just. The ultimate aim of allinvestigation and inquiry, whether by the police or by the Magistrate,is to ensure that those who have actually committed crime arecorrectly booked, and those who have not are not arraigned to

stand trial. That this is the minimal procedural requirement that isthe fundamental requirement of Article 21 of the Constitution ofIndia cannot be doubted. It is the hovering omnipresence of Article21 over CrPC that must needs inform the interpretation of all theprovisions of CrPC, so as to ensure that Article 21 is followedboth in letter and in spirit.

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25. It is thus clear that the Magistrate’s power under Section156(3) CrPC is very wide, for it is this judicial authority that mustbe satisfied that proper investigation by the police takes place.To ensure that “proper investigation” takes place in the sense ofa fair and just investigation by the police—which such Magistrateis to supervise—Article 21 of the Constitution of India mandatesthat all powers necessary, which may also be incidental or implied,are available to the Magistrate to ensure proper investigationwhich, without doubt, would include the ordering of furtherinvestigation after report is received by him under Section 173(2);and which power would continue to enure in such Magistrate atall stages of the criminal proceedings until the trial itselfcommences. Indeed, even textually, the “investigation” referredto in Section 156(1) CrPC would, as per the definition of“investigation” under Section 2(h), include all proceedings forcollection of evidence conducted by police officer; which wouldundoubtedly include proceedings by way of further investigationunder Section 173(8) CrPC.

*********F42.

42. ……To say that fair and just investigation would lead to theconclusion that the police retain the power, subject, of course, tothe Magistrate’s nod under Section 173(8) to further investigatean offence till charges are framed, but that the supervisoryjurisdiction of the Magistrate suddenly ceases midway throughthe pre-trial proceedings, would amount to travesty of justice,as certain cases may cry out for further investigation so that aninnocent person is not wrongly arraigned as an accused or that aprima facie guilty person is not so left out. There is no warrant forsuch 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 allstages of the progress of criminal case before the trial actuallycommences. It would also be in the interest of justice that thispower be exercised suo motu by the Magistrate himself, dependingon the facts of each case. Whether further investigation should orshould not be ordered is within the discretion of the learnedMagistrate who will exercise such discretion on the facts of eachcase and in accordance with law. If, for example, fresh factscome to light which would lead to inculpating or exculpating certainpersons, arriving at the truth and doing substantial justice in acriminal case are more important than avoiding further delay beingcaused in concluding the criminal proceeding…….”12.5. The case of Divine Retreat Centre (supra) has had thepeculiarity of its own. Therein, the Criminal Case bearing No. 381 of2005 had been registered at Koratty Police Station on the allegationsmade by female remand prisoner that while taking shelter in theappellant-Centre, she was subjected to molestation and exploitation andshe became pregnant; and thereafter, when she came out of the Centreto attend her sister’s marriage, she was implicated in false theft caseand lodged in jail. Parallel to these proceedings, an anonymous petitionas also other petitions were received in the High Court, which wereregistered as suo motu criminal case. In that case, the High Court,while exercising powers under Section 482 CrPC, directed that the saidCriminal Case No. 381 of 2005 be taken away from the investigatingofficer and be entrusted to the Special Investigating Team (‘SIT’). TheHigh Court also directed the said SIT to investigate/inquire into otherallegations levelled in the anonymous petition filed against the appellant-Centre. However, this Court did not approve the order so passed by theHigh Court and in that context, while observing that no unlimited andarbitrary jurisdiction was conferred on the High Court under Section482 CrPC, explained the circumstances under which the inherentjurisdiction may be exercised as also the responsibilities of theinvestigating officers, inter alia, in the following words: -

“27. In our view, there is nothing like unlimited arbitrary jurisdictionconferred on the High Court under Section 482 of the Code. Thepower has to be exercised sparingly, carefully and with cautiononly where such exercise is justified by the tests laid down in the

section itself.It is well settled that Section 482 does not conferany new power on the High Court but only saves the inherentpower which the Court possessed before the enactment of theCode. There are three circumstances under which the inherentjurisdiction may be exercised, namely, (i) to give effect to an orderunder 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 analysisof the law cited leads us to an irresistible conclusion that theinvestigation of an offence is the field exclusively reserved forthe police officers whose powers in that field are unfettered solong as the power to investigate into the cognizable offences islegitimately exercised in strict compliance with the provisions underChapter XII of the Code. However, we may hasten to add thatunfettered discretion does not mean any unaccountable or unlimiteddiscretion and act according to one’s own choice. The power toinvestigate must be exercised strictly on the condition of whichthat power is granted by the Code itself.

40. In our view, the High Court in exercise of its inherent jurisdictioncannot change the investigating officer in the midstream andappoint any agency of its own choice to investigate into crimeon whatsoever basis and more particularly on the basis ofcomplaints or anonymous petitions addressed to named Judge.Such communications cannot be converted into suo motuproceedings for setting the law in motion. Neither are the accusednor the complainant or informant entitled to choose their owninvestigating agency to investigate crime in which they may beinterested.

41. It is altogether different matter that the High Court in exerciseof its power under Article 226 of the Constitution of India canalways issue appropriate directions at the instance of an aggrievedperson if the High Court is convinced that the power ofinvestigation has been exercised by an investigating officer malafide. That power is to be exercised in the rarest of the rare casewhere clear case of abuse of power and non-compliance withthe provisions falling under Chapter XII of the Code is clearlymade out requiring the interference of the High Court. But evenin such cases, the High Court cannot direct the police as to howthe 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 adirection/mandamus to any subordinate Court commanding them to passa particular order but, the questioned directions had been as regardsdealing with bail application, which were not approved by this Courtwhile observing, inter alia, as under: -

“15. In our considered opinion, the High Court had no jurisdictionto direct the Sessions Judge to “allow” the application for grant ofbail. Indeed, once such direction had been issued by the HighCourt then what was left for the Sessions Judge to decide exceptto follow the directions of the High Court and grant bail toRespondents 2 and 3. In other words, in compliance to themandatory directions issued by the High Court, the Sessions Judgehad no jurisdiction to reject the bail application but to allow it.

16. No superior court in hierarchical jurisdiction can issue suchdirection/mandamus to any subordinate court commanding themto pass particular order on any application filed by any party.The judicial independence of every court in passing the orders incases is well settled. It cannot be interfered with by any courtincluding superior court.”

12.7. In the case of Neetu Kumar Nagaich (supra), this Courtissued directions for de novo investigation in regard to the unnaturaldeath of law student. We need not elaborate on the said decision forthe fact that such directions were issued under the writ jurisdiction ofthis Court.

13. For what has been noticed hereinbefore, we could reasonablycull out the principles for application to the present case as follows:

(a) The scheme of the Code of Criminal Procedure, 1973 is toensure fair trial and that would commence only after fair and justinvestigation. The ultimate aim of every investigation and inquiry, whetherby the police or by the Magistrate, is to ensure that the actual perpetratorsof the crime are correctly booked and the innocents are not arraigned tostand trial.

A(b) The powers of the Magistrate to ensure proper investigationin 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 furtherinvestigation should or should not be ordered is within the discretion ofthe Magistrate, which is to be exercised on the facts of each case and inBaccordance with law.

(c) Even when the basic power to direct further investigation in acase where charge-sheet has been filed is with the Magistrate, and isto be exercised subject to the limitations of Section 173(8) CrPC, in anappropriate case, where the High Court feels that the investigation is notCin the proper direction and to do complete justice where the facts of thecase so demand, the inherent powers under Section 482 CrPC could beexercised to direct further investigation or even reinvestigation. Theprovisions of Section 173(8) CrPC do not limit or affect such powers ofthe High Court to pass an order under Section 482 CrPC for furtherDinvestigation or reinvestigation, if the High Court is satisfied that such acourse is necessary to secure the ends of justice.

(d) Even when the wide powers of the High Court in terms ofSection 482 CrPC are recognised for ordering further investigation orreinvestigation, such powers are to be exercised sparingly, withEcircumspection, and in exceptional cases.

(e) The powers under Section 482 CrPC are not unlimited oruntrammelled and are essentially for the purpose of real and substantialjustice. While exercising such powers, the High Court cannot issuedirections so as to be impinging upon the power and jurisdiction of otherFauthorities. For example, the High Court cannot issue directions to theState to take advice of the State Public Prosecutor as to under whatprovision of law person is to be charged and tried when ordering furtherinvestigation or reinvestigation; and it cannot issue directions to investigatethe case only from particular angle. In exercise of such inherent powersin extraordinary circumstances, the High Court cannot specifically directGthat as result of further investigation or reinvestigation, particularperson has to be prosecuted.

14. Applying the principles aforesaid to the facts of the presentcase, what we find is that, in relation to the allegations of defalcation ofgoods and misappropriation of stocks from the godown of the Corporation,Hthe person lodging the FIR with reference to the audit report, i.e., the

Senior Dy. Collector-cum-District Manager, made imputations onlyagainst the respondent No. 3, who was class IV employee of theCorporation but was purportedly posted as an in-charge Assistant GodownManager by the appellant, who was, at the relevant time, holding theposition of the District Manager. Though several features of the actionsand omissions at the relevant time have been mentioned in the auditreport, we do not propose to dilate on the same. Suffice it to observe forthe present purpose that when all the relevant aspects were duly projectedbefore the High Court in the petition filed by the respondent No. 3, theHigh Court could not have simply ignored the same only for the reasonsthat the informant omitted to state them while lodging the FIR, and/orthe investigating officer overlooked them while submitting the result ofinvestigation, and/or the learned Magistrate did not pay requisite attentionto them while taking cognizance.

14.1. In the given set of facts and circumstances, we are satisfiedthat the present one had been such case of exceptional and specialfeatures where the High Court was justified in ordering furtherinvestigation, particularly qua the role of the appellant. Thus, the principalpart of the order impugned, directing further investigation, in our view,calls for no interference[12].

15. However, there are certain other aspects and features of theorder impugned which are difficult to be appreciated and approved. TheHigh Court has chosen to use such harsh and severe expressions in theimpugned order which carry all the potential of causing prejudice to theappellant and even to distract fair and dispassionate investigation. Asnoticed, the High Court has made its comments that the ‘entire gamewas played’ by the appellant who was holding the position of DistrictManager. The High Court has even stated that the appellant was‘ultimately responsible for all such irregularities’. The High Courthas gone to the extent of observing that the respondent No. 3 was madean 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

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

Aposition as if the High Court has already concluded on the result ofinvestigation against the appellant. It is entirely different matter toorder further investigation on being prima facie satisfied about therequirement to do so in view of exceptional circumstances pertaining toa given case but, while doing so in exercise of inherent powers, the HighCourt has not been justified in making such observations and remarksBwhich are likely to operate over and above the investigation and maycause prejudice to the appellant. As noticed, the principle remains settledthat the High Court cannot issue directions to investigate the case froma particular angle.

16. Thus, we are of the view that in the given set of facts andCcircumstances, though the High Court has rightly exercised its powersunder Section 482 CrPC for directing further investigation but, has notbeen justified in making such observations, comments, and remarks, whichleave little scope for an independent investigation and which carry allthe potential to cause prejudice to the appellant. The first question in thisDappeal is answered accordingly.

17. Adverting to the other question, i.e., as to whether the HighCourt was justified in passing the order impugned without affording anopportunity of hearing to the appellant, we may refer to some of therelevant decisions cited in this regard.

17.1. The case of Manharibhai Muljibhai Kakadia (supra) hadbeen concerning the exercise of the powers of revision by the HighCourt after dismissal of complaint under Section 203 CrPC. This Courtpointed out that in such revision petition, the accused/suspect arraignedin the complaint gets the right of hearing before the Revisional Court, asFis expressly provided in Section 401(2) CrPC. This Court, however, madeit clear that if the complaint is restored for fresh consideration of theMagistrate, the persons who are alleged to have committed the crimeshall have no right to participate in the proceedings nor would they beentitled to any hearing until consideration of the matter by the Magistratefor issuance of process. This Court said, inter alia, as under: -G

“53. ….We hold, as it must be, that in revision petition preferredby the complainant before the High Court or the Sessions Judgechallenging an order of the Magistrate dismissing the complaintunder Section 203 of the Code at the stage under Section 200 orafter following the process contemplated under Section 202 of

the Code, the accused or person who is suspected to havecommitted the crime is entitled to hearing by the Revisional Court.In other words, where the complaint has been dismissed by theMagistrate under Section 203 of the Code, upon challenge to thelegality of the said order being laid by the complainant in revisionpetition before the High Court or the Sessions Judge, the personswho are arraigned as accused in the complaint have right to beheard in such revision petition. This is plain requirement of Section401(2) of the Code. If the Revisional Court overturns the order ofthe Magistrate dismissing the complaint and the complaint isrestored to the file of the Magistrate and it is sent back for freshconsideration, the persons who are alleged in the complaint tohave committed the crime have, however, no right to participatein the proceedings nor are they entitled to any hearing of any sortwhatsoever by the Magistrate until the consideration of the matterby the Magistrate for issuance of process. We answer the questionaccordingly. The judgments of the High Courts to the contraryare overruled.”

(emphasis supplied)

17.2. The layout and backdrop of, as also the questions involvedin, the case of W.N. Chadha (supra) were of their own peculiarities.For the present purpose, suffice it to notice that as regards the processand manner of investigation, which included the issues relating to letterof rogatory, this Court, inter alia, pointed out the exclusion of the principleof audi alteram partem in relation to an accused at the stage ofinvestigation in the following terms: -

“80. The rule of audi alteram partem is rule of justice and itsapplication 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, aprima facie right to prior notice and opportunity to be heard maybe held to be excluded by implication in the presence of somefactors, singly or in combination with another. Those special factorsare mentioned under items (1) to (10) under the heading “Exclusionof the audi alteram partem rule”.

81. Thus, there is exclusion of the application of audi alterampartem rule to cases where nothing unfair can be inferred by not

ABC

affording an opportunity to present and meet case. This rulecannot be applied to defeat the ends of justice or to make the law“lifeless, absurd, stultifying and self-defeating or plainly contraryto the common sense of the situation” and this rule may bejettisoned in very exceptional circumstances where compulsivenecessity so demands.

89. Applying the above principle, it may be held that when theinvestigating officer is not deciding any matter except collectingthe materials for ascertaining whether prima facie case is madeout or not and full enquiry in case of filing report under Section173(2) follows in trial before the Court or Tribunal pursuant tothe filing of the report, it cannot be said that at that stage rule ofaudi alteram partem superimposes an obligation to issue priornotice and hear the accused which the statute does not expresslyrecognise. The question is not whether audi alteram partem isimplicit, but whether the occasion for its attraction exists at all.

90.Under the scheme of Chapter XII of the Code of CriminalProcedure, there are various provisions under which no prior noticeor opportunity of being heard is conferred as matter of courseto an accused person while the proceeding is in the stage of aninvestigation by police officer.

*********

92. More so, the accused has no right to have any say as regardsthe manner and method of investigation. Save under certainexceptions under the entire scheme of the Code, the accused hasno participation as matter of right during the course of theinvestigation of case instituted on police report till theinvestigation culminates in filing of final report under Section173(2) of the Code or in proceeding instituted otherwise than ona police report till the process is issued under Section 204 of theCode, as the case may be. Even in cases where cognizance of anoffence is taken on complaint notwithstanding that the saidoffence is triable by Magistrate or triable exclusively by theCourt of Sessions, the accused has no right to have participationtill the process is issued. In case the issue of process is postponedas contemplated under Section 202 of the Code, the accused may

attend the subsequent inquiry but cannot participate. There arevarious judicial pronouncements to this effect but we feel that it isnot necessary to recapitulate those decisions. At the same time,we would like to point out that there are certain provisions underthe Code empowering the Magistrate to give an opportunity ofbeing heard under certain specified circumstances.”

(emphasis supplied)

17.3. It could also be usefully recapitulated that in the case ofPopular Muthiah (supra), even when not disapproving the exercise ofinherent powers by the High Court irrespective of the nature ofproceedings (of course, while laying down the limitations on such exerciseof powers), this Court also observed that in the peculiar circumstancesof the case, where investigation was being ordered against the personswho were not investigated earlier, the High Court should have giventhem an opportunity of hearing before issuing the impugned directions.Thus, the impugned judgment was set aside and the matter was remittedto the High Court for consideration afresh, after notice to the appellantsas also to the State.

18. In an appropriate application of the principles aforesaid, weare 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, theobservation concerning opportunity of hearing, as occurring inManharibhai Muljibhai Kakadia (supra), also does not enure to thebenefit of the appellant because therein, the matter before the HighCourt had been revision petition governed by Section 401 CrPC andby virtue of sub-section (2) thereof, opportunity of hearing to the affectedparty remains statutory mandate[13]. In Popular Muthiah (supra), ofcourse, this Court held that the said appellant against whom the HighCourt was issuing directions for investigation should have been given anopportunity of hearing but, that had been the observation in the uniqueand peculiar circumstances of the case where the crime in question hadalready gone through one round of trial, with one person having beentried and convicted. Moreover, while disapproving unwarranted directions

13 Section 401 CrPC provides for the wide revisional powers of the High Court and itssub-section (2) reads as under: -

“(2) No order under this section shall be made to the prejudice of the accused orother person unless he has had an opportunity of being heard either personally or bypleader in his own defence.”

Aof the High Court as regards prosecution of the appellant, this Court alsoindicated that the High Court ought to have considered if any purposewould be served by its directions. It cannot be said that in PopularMuthiah, this Court has laid down rule of universal application that inevery such case of exercise of powers under Section 482 CrPC forordering further investigation (which are even otherwise to be invokedBsparingly and in exceptional cases), the Court is obliged to extend anopportunity of hearing to the person whose actions/omissions are to beinvestigated. In our view, the question of opportunity of hearing in suchmatters would always depend upon the given set of facts andcircumstances of the case.C

19. On the facts and in the circumstances of the present case, weare clearly of the view that no purpose would be served by adopting thecourse of Popular Muthiah (supra) where this Court restored the matterfor reconsideration of the High Court with an opportunity of hearing tothe appellant therein. Some of the prominent and peculiar circumstancesDof the present case are that the allegations and imputations have theirgenesis in the documentary evidence in the form of departmentalinstructions and the audit report; the fact that the appellant was holdingthe office of the District Manager at the relevant point of time is not indispute; and hereinbefore, we have upheld the exercise of inherent powersby the High Court in directing further investigation qua the role of theEappellant.19.1. We have also taken note of the submissions that, accordingto the appellant, he had already been exonerated of all charges afterdetailed departmental proceedings; and such fact did not appear beforethe High Court for want of notice to him. For the present purpose, sufficeFit to observe that even if the appellant had been exonerated in thedepartmental proceedings, such fact, by itself, may not be conclusiveof criminal investigation; and for this fact alone, the High Court couldnot have ignored all other features of the case and the material factorsthat had surfaced before it.G

20. At this juncture, and in the last segment of this discussion, itmay also be observed that we have taken note of another peculiar featureconnected to this case that apart from the subject-matter of the presentappeal, being Barh P.S. Case No. 115 of 2012, there had also beenanother matter, being Bikram P.S. Case No. 129 of 2012 against theHrespondent No. 3 as also the present appellant, pertaining to similar

allegations of misappropriation of goods. As per the submissions madeon 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, prosecutionsanction has also been obtained; and after the order passed by the HighCourt, the investigation in the present case was also carried out alongwith the aforesaid Bikram P.S. Case No. 129 of 2012. According to theaffidavit filed on behalf of the State, prima facie complicity of the appellanthas been found but, in this case, prosecution sanction has not beenobtained for the appellant having been given interim protection by thisCourt.

20.1. We would hasten to observe that the aforesaid submissionson behalf of the State have only been taken note of without pronouncingon the merits thereof and while leaving every aspect open for examinationand consideration of the respective investigating agency, sanctioningauthority, and the Court at the appropriate stage and in an appropriatemanner. These submissions have been referred to herein only in order toindicate that viewed from any angle, there does not appear any just andstrong reason to restore the matter for reconsideration of the High Court.

21. In the totality of circumstances and in the larger interest ofjustice, we are clearly of the view that in this case, the investigationcontemplated by the order impugned should be allowed to be taken to itslogical end but, while effacing the unwarranted and unnecessaryobservations of the High Court[14], lest there be any prejudice to anyparty only because of such observations. In other words, the entire matteris left open for examination by the investigating agency, by the sanctioningauthority, and by the Court concerned at the relevant stage and inaccordance with law.

22. Accordingly and in view of the above, this appeal fails and is,therefore, dismissed but, with the observations foregoing and whileeffacing the unwarranted and unnecessary observations of the HighCourt in the order impugned.

Ankit Gyan

Appeal dismissed.

14 As discussed in paragraph ‘15’ hereinbefore.