Supreme Court Observes That Power To Order Further Investigation In Cognizable Offences Rests With Judicial Authorities Alone, Not Executive.

Case title:

Peethambaran v State of Kerala and Anr 

Date of Order:

3 May 2023

Bench:

Hon’ble Justice Krishna Murari and Hon’ble Justice Sanjay Karol

Parties:

Appellant: Peethambaran

Respondent: State of Kerala and Anr

SUBJECT:

The current appeal is against an order by the High Court of Kerala in Crl. MC No. 6314 of 2018 which disallowed a request to exercise powers under Section 482 CrPC. Based on the facts of the case, the Supreme Court held that the non-exercise of power under Section 482 was unreasonable as only one of the elements of Section 420 IPC has been satisfied which is that, in the normal run of things, none of the parties involved would have paid the accused any money. As a result, they were persuaded to provide property that they otherwise would not have. No proof of any financial transaction is on record as evidence as well. Secondly that the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the concerned magistrate or with a higher court and not with an investigating agency.

IMPORTANT PROVISIONS:

Code of Criminal Procedure, 1973

• Section 173(2)(i): “Report of police officer on completion of investigation- 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; (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, weather with or without sureties; (g) whether he has been forwarded in custody under section 170.”
• Section 173(8): “Report of police officer on completion of investigation- 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).”
• Section 482: “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.” Inherent powers under this section include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification.

Indian Penal Code, 1860

• Section 420: “Cheating and dishonestly inducing delivery of property-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable fine.” Cheating is defined in section 415 of the IPC. Section 420 lays down the punishment for aggravated forms of cheating where the offender dishonestly induces a person so deceived to deliver any property or interfere with any valuable security.  In other words, Section 420 specifically punishes aggravated cases of cheating. Any act of cheating, whether fraudulently or dishonestly, is punishable under Section 417. In contrast, Section 420 specifically punishes a case where cheating is done by dishonest inducement and its subject matter is property or valuable security.

OVERVIEW:

• The Appellant has been accused of violating Section 420 of the Indian Penal Code, 1860, by defrauding Sunesh, the de facto complainant, and seven other individuals of a total of Rs 3,83,583 in exchange for securing jobs for them or their wives as clerks at the Kottayam Rubber Board. This offence was committed alongside accused No. 1, who is now deceased. An FIR was registered bearing number 1838 of 2015 under the above stated section on 24th October 2015. The accused No.2 is the uncle of the de facto complainant.
• The complainant was ordered to present documentation in this regard, according to the First Final Report (FRI) entered into the record on December 30, 2015, but despite notice, neither those documents nor any others pertaining to any financial transaction were produced. Due to the lack of evidence presented, it was determined that the case was fictitious. A different Final Report (FRII) is included in the record. According to the document, witness number 10 (S. Anilkumar, Inspector of Police in Viakom) conducted further investigation in accordance with Order No. D243642/16/K issued by District Police Chief Kottayam. 

ISSUES RAISED:

• Is the non-exercise of power in this case reasonable in light of the established standards for exercising power under Section 482?
• Whether the District Police Chief, Kottayam could have ordered the further investigation that resulted to the filing of the second final report?

ARGUMENTS ADVANCED BY THE APPELLANT

1. The Appellant contends that in effect, a reinvestigation had been ordered, in violation of the procedure laid down in law. Further it has been argued that the ingredients of Section 420 IPC have not been met and therefore the High court has erred in not quashing the proceedings subject of the petition under Section 482. Reference to all of the witness statements shows that only the name mentioned is of the de facto complainant who gave the money to the deceased accused number 1 namely, Babu who similarly instigated other people giving the money to him. 
2. The Appellant places reliance on the following case laws to substantiate his arguments: 

• Vinay Tyagi v. Irshad Ali; T.T Antony v. State of Kerala
• Vinubhai Haribhai Malviya and Ors v. State of Gujarat
• Randhir Singh Rana v. State (NCT of Delhi) 
• Hari Prasad Chamaria v. Bishun Kumar Surekha

JUDGEMENT ANALYSIS

1. The evolution of Section 173 CrPC has been noted by this Court in Vinubhai Haribhai Malaviya and Ors v. State of Gujarat where it was held that investigation after the Cr.PC, 1973 came into effect will include all proceedings under CrPC for collection of evidence conducted by a police officer. "All" would then definitely also refer to Section 173 (8). Therefore, the ability of a Magistrate to order such an investigation under Section 190 would also cover further investigation under Section 173 (8). 
2. The Court in Vinay Tyagi considered the powers under Section 173 and Section 482 of CrPC where it said 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/reinvestigation are synonymous expressions and their result in law would be the same. The higher courts must, of course, use this function very sparingly and with extreme caution. Examining the Code's provisions reveals that there is no cancellation of the reports except for the investigating agency's power to file a closure report in cases where it deems no offence has been shown. Even this kind of report is open to the learned Magistrate's approval, which he may or may not do in his wisdom. By refusing to accept such a report, the court may, for good cause, order "further investigation," or even, based on the case file and the papers attached to it, summon the accused. With respect to further investigation, the court observed that “Further investigation” is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8), is restrictive. It is the continuation of previous investigation and, therefore, is understood and described as further investigation. It is commonly described as supplementary report as it is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. The foundation is the finding of new evidence, the continuance of the same offence, and the series of circumstances around the same incident that occurred incidentally to it. In other words, it must be understood in contrast to a "reinvestigation", "fresh" or "de novo" investigation. While the former is solely an executive action, the later can only be carried out when there is a court ruling that explains why the prior inquiry cannot be acted upon. 
3. In Minu Kumari v. State of Bihar, it was observed that upon submission of a report in terms of Section 173 (2) (i) the Magistrate has three courses of action of to accept it or disagree and drop proceedings or direct further investigation under Section 156 (3) CrPC. It is clear that a magistrate has the power to order further investigation and the cases referred to earlier make clear that fresh investigation/reinvestigation/de novo investigation fall into the purview of the jurisdiction of a higher court.
4. In the instant case, further investigation was conducted as per Order passed by a police officer and not by any duly empowered judicial officer.
5. In Devendra Nath Singh v. State of Bihar and Ors., the court noted that there is no explicit requirement to ask the court for permission to conduct further investigation or to submit a supplemental report, but investigation agencies have not only accepted this as true but have also made it a legal requirement. The doctrine of contemporanea exposito however says that since the requirement of permission for further investigation or to file a supplementary report is accepted within law and is therefore required to be complied with. In the facts at hand, such a permission was never taken, granted or ordered. Consequently, FRII is without basis. 
6. In Paramjit Batra v. State of Uttarakhand, it was held that the High Court must use its powers under Section 482 only sparingly and to facilitate the ends of justice. It was also observed that the court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.
7. In State of Haryana v. Bhajan Lal and Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra12, the principles in respect of the exercise of power under Section 482 CrPC have been summarized as under:

• The Police has a statutory right as well as a duty under the Code of Criminal Procedure to investigate cognizable offences.
• Courts are not to hinder any investigation into a cognizable offence.
• When FIR does not disclose any offense of any nature, the court is not to allow the investigation to proceed.
• The powers under this section are to be used ‘sparingly’ and with due circumspection. The Court ought to consider whether the allegations in the FIR confirm occurence of a cognizable offence or not, without going into the merits of the case.
• In exercise of this power, court shall not go into questions of legitimacy or reliability of the allegations made in the FIR/Complaint.
• Quashing of a complaint should be a rarity not commonplace, and exercise of such power, an investigation mustn’t be unnecessarily cut short.
• The Police and the Courts are two separate State entities with clearly defined areas of responsibility, with complementary functions, and so, unwarranted interference by the latter into the former’s work must be avoided unless it is in the interest of securing justice and preventing its miscarriage.
• It should be noted that if a FIR's validity is questioned after an inquiry, the officer can file the appropriate application to that effect, which would be reviewed by the learned Magistrate assigned to the case.

CONCLUSION

There is no evidence to support the assertions made by Accused No. 1, the current appellant, or the de facto complainant that they were untrue or that they knew they were false and made them only with the goal of misleading. There are simply remarks to the effect that, despite the seven individuals' reminders, neither their spouses nor themselves were able to get employment. The only one of the four necessary components of Section 420 that has been satisfied is that, in the normal run of things, none of the parties involved would have paid the accused any money. As a result, they were persuaded to provide property that they otherwise would not have. No proof of any financial transaction is on record, much less concerning the present appellant. Hence the threshold of Section 420 is not breached, constituting the offence. Therefore, the first issue is answered in the negative. In terms of second issue, the above discussion makes clear that the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the concerned magistrate or with a higher court and not with an investigating agency.

The order passed by the High Court of Kerala is set aside and Criminal Case No.132 of 2017 is quashed. This appeal is allowed.

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