IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Revision Petition No.913 of 2009 Date of Decision: 24.10.2009 State of Punjab. ....... Petitioner. Versus Rattan Singh Ajnala. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Ms.Rita Kohli, Additional Advocate General, Punjab for the petitioner. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against order dated 10.3.2009 passed by Additional Sessions Judge -cum- Special Judge, Amritsar (hereinafter referred to as `the trial Court') vide which, after considering material on record including the report under Section 173(8) of the Code of Criminal Procedure,1973 (for brevity, `the Cr.P.C.'), it has been concluded that a prima facie case for offence punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act,1988 (for short, `the Act') has been made out against the respondent for framing a charge. Crl.Revision Petition No.913 of 2009 -2- .... Respondent-Rattan Singh Ajnala son of late Shri Sardar Singh is facing proceedings before the trial Court pursuant to a case registered vide F.I.R.No.2 dated 19.1.2003 under Section 13(1)(c) read with Section 13(2) of the Act at Police Station, Vigilance Bureau, Amritsar. It was alleged that he had assets beyond his known sources of income. The investigation was carried out by the Vigilance Bureau, Punjab, who submitted a report under Section 173 of the Cr.P.C. against him. The challan was presented on 27.2.2004 and on 12.5.2004, and the case was entrusted to the trial Court by the Sessions Judge, Amritsar. Initially, the respondent preferred various applications questioning the jurisdiction of the trial Court to conduct the trial and also raised the issue of grant of sanction since he was presently a Member of Parliament. He also approached this Court earlier by way of Crl. Misc.34330-M of 2005 with the aforesaid grievance of the proceedings continuing without lack of sanction. This Court, on 27.7.2005, had directed the trial Court to decide the issue of sanction and jurisdiction. A writ petition also came to be filed by the respondent bearing no.19891 of 2005 seeking to restrain the trial Court from continuing with the proceedings on the ground that the said Court lacked jurisdiction. It was sought to be contended before the Division Bench that the issue which had been raised in the writ petition was in question before the Supreme Court in Parkash Singh Badal and others Versus State of Punjab and others, SLP(C) Crl.Revision Petition No.913 of 2009 -3- .... No. 19640, 20000 and 20010 of 2004. The Division Bench disposed of the said writ petition on 31.5.2006. However, taking note of the directions given in Crl.Misc. No.34330-M of 2005, it directed the trial Court to proceed with the trial in accordance with law, but not to pronounce the final order until the decision of the Supreme Court in Parkash Singh Badal's case (supra). Thereafter, before the charge could be framed, a supplementary challan under Section 173(8) of the Cr.P.C. was presented before the trial Court in which it was stated that no case against the respondent was made out and that the proceedings against him should be dropped. The said report has, however, been rejected by the trial Court by holding that according to the first report, the respondent was found liable to be prosecuted while the second one reiterated the same thing and was filed along with the sanction of the government to prosecute him, but the third report filed under Section 173(8) of the Cr.P.C. exonerated him completely and proposed that the case against him be cancelled. The trial Court has discarded the last report on the premise that the supplementary challan is to enable the prosecution to enhance the cause of justice by bringing additional evidence for the success of the case and not to exonerate the person found prima facie liable to be prosecuted. In the instant revision petition, which has been preferred by the State, the grievance highlighted by the learned counsel for the petitioner is that the aforementioned observation of the trial Court that the report under Crl.Revision Petition No.913 of 2009 -4- .... Section 173(8) of the Cr.P.C. are to be meant only to enhance the case of the prosecution and to ensure its success and not to exonerate a person completely is erroneous and as such, the entire order is liable to be set aside. In support of her contention, she placed reliance on Zahira Habibulla H.Sheikh and Anr. Versus State of Gujarat and Ors., 2004(2) R.C.R. (Crl.) 836 (S.C.); Ramchandran Versus R.Udhayakumar & Ors., 2008(3) R.C.R. (Crl.) 47 (S.C.); State of A.P.Versus A.S.Peter, 2008(3) R.C.R. (Crl.) 131 (S.C.); Charanjit Singh @ Bittu Versus State of Punjab, 2008(2) R.C.R. (Crl.) 748 (P&H) and Paramvir @ Happy Versus State of Haryana, 2009(1) R.C.R.(Crl.) 408 (P&H). I have thoughtfully considered the contentions of the learned counsel for the petitioner and have perused the material on record. Sub-section (8) of Section 173 of the Cr.P.C. are extracted hereunder for ready reference:- “173. Report of police officer on completion of investigation.- (1) to (7) xx xx xx xx xx xx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall Crl.Revision Petition No.913 of 2009 -5- .... 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).” There is, indeed, no doubt that the prosecution has the right to submit an additional report under Section 173(8) of the Cr.P.C. by carrying out further investigation into a matter to unravel the truth if it comes across further evidence, oral or documentary. In State of Bihar and another Versus J.A.C.Saldanha and others, (1980) 1 S.C.C. 554, their Lordships of the Supreme Court held as under:- “19....... This provisions does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in Crl.Revision Petition No.913 of 2009 -6- .... rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of respondent 1.” The Supreme Court in K.Chandersekhar Versus State of Kerala and Ors., 1998(2) R.C.R. (Crl.) 719 (S.C.) observed in paragraph 24 of the judgment as under:- “24. The dictionary meaning of “further” (when used as an adjective) is “additional; more; supplemental. “Further” investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a “further” report or reports and not fresh report or reports – regarding the “further” evidence obtained during such investigation.” Similarly, in State of A.P.Versus A.S.Peter, 2008(3) R.C.R. (Crl.) 131 (S.C.), the Apex Court laid down that the right of the police to carry out further investigation is not exhausted notwithstanding the fact that the Magistrate has taken cognizance of the offence upon the report of the Crl.Revision Petition No.913 of 2009 -7- .... police submitted pursuant to the provisions of Section 173 of the Cr.P.C. There is, thus, absolutely no impediment on the power of police officer to further investigate a matter even after submission of report under Section 173 of the Cr.P.C. upon which the Court has taken cognizance, but, at the same time, when a report under Section 173(8) of the Cr.P.C. is presented to a Court, it is cast with a duty to examine such report with great circumspection as to whether the same discloses any further evidence, oral or documentary, on which a subsequent opinion has been formulated by the police or whether the opinion is merely replacement of the opinion of an officer vis-a-vis the report already submitted before the Court and if it is the latter, then the same has to be rejected outrightly because the re- investigation into a matter is prohibited under the law. A report under Section 173(8) of the Cr.P.C. when submitted, to the Court is to be examined critically so as to ensure that it does not result in the re- investigation of the matter in the garb of this provision and the police which has submitted such a report has a duty to explain and highlight the additional material which has been collected after the submission of challan under Section 173 of the Cr.P.C. to justify further investigation and also to justify its subsequent opinion, more-so when it is contrary to the earlier report under Section 173 of the Cr.P.C. If the material on record is to be seen which formed basis of the report under Section 173(8) of the Cr.P.C. which material has been brought Crl.Revision Petition No.913 of 2009 -8- .... on record in the form of reply by way of affidavit of Shri Lakhbir Singh, Deputy Superintendent of Police, Vigilance Bureau, Punjab, Amritsar, and apparently filed in support of the instant revision petition, then it transpires that it is merely a re-examination of the earlier material which formed basis of the opinion of the Vigilance Bureau to prosecute the respondent and does not refer to any additional material. For instance, paragraphs 3 to 18 of the reply on merits (Income Side) contained in the affidavit, are reproduced below:- “3. During first investigation, amount of Rs.4,28,191.50 Paise ¼ share of agriculture income of Rs.17,12,766/- from land situated at village Jagdev Khurd has been stated in the previous income chart at serial No.2 whereas Investigating Officer of re- investigation has accepted the net agriculture income Rs.17,12,766/- of the above land as per Takhmina Paidawar prepared by the Agriculture Department Amritsar and amount of ¼ share Rs.4,28,191.50 has now been amended to Rs.17,12,766/- and included at serial No.3 in new income chart. Besides the above agriculture income the Investigating Officer of re-investigation has also found the agriculture income of Rs.10,86,153/- from the land situated at village Ballarwal as per Takhmina Paidawar prepared by the Agriculture Department Amritsar during re-investigation but Crl.Revision Petition No.913 of 2009 -9- .... this income was not included in the previous income chart by the first Investigating Officer which has now been included at serious No.11 in new income chart. In this respect, statement under Section 161 Cr.P.C. of Shri Balwinder Singh, Assistant Statistic, Chief Agricultural Officer, Ranjit Avenue, Amritsar, has been recorded. During re-investigation total agricultural income of Sh.Rattan Singh, ex. Minister, Punjab from his land situated in village Jagdev Khurd and Ballarwal, Rs.17,12,766/- + Rs.10,86,153/- = Rs.27,98,119/- has been accepted by the Investigating Officer of re-investigation as stated above. 4. During the previous investigation the amount of Rs.7,90,000/- on account of selling of land by Smt.Avtar Kaur wife of Rattan Singh, Ex Minister, Punjab shown at serial No.3 of previous income chart is agreed by the Investigating Officer of re-investigation. 5. During the previous investigation the amount of Rs.37,864.35 Paise shown on account of opening balance at serial No.4, at the commencement of check period, of previous income chart in account No.3727 of Punjab National Bank Branch Ajnala is agreed by the Investigating Officer of re-investigation. 6. During the previous investigation the amount of Crl.Revision Petition No.913 of 2009 -10- .... Rs.79,714/- shown on account of opening balance at serial No.5, at the commencement of check period, of previous income chart in account No.10156 of Punjab National Bank Branch Ajnala is agreed by the Investigating Officer of re- investigation. 7. During the previous investigation the amount of Rs.1,49,507.10 Paise shown in account of opening balance at serial 6, at the commencement of check period, of previous income chart in account No.8727 of State Bank of India Ajnala is agreed by the Investigation Officer of re- investigation. 8. During the previous investigation the amount of Rs.5,987.30 Paise shown at serial No.7 in previous income chart on account of opening balance in Account No.973 of Amritsar Central Co-operative Bank, Branch Ajnala opened in the name of Parampal son of Rattan Singh, Ex.Minister, Punjab has been deleted by the Investigating Officer of re- investigation, as it was opened in February,2000 which is not a commencement date/month of the check period i.e. 1.2.1997 to 31.1.2002. 9. During the previous investigation the amount of Rs.6,00,000/- shown on account of loan for purchasing of Crl.Revision Petition No.913 of 2009 -11- .... Honda City Car at serial No.8 in previous income chart is agreed by the Investigating Officer of re-investigation. 10. During the previous investigation the amount of Rs.4,55,000/- income of Smt.Avtar Kaur wife of Sh.Rattan Singh Ex.Minister,Punjab shown previously in income chart at serial No.10 according to Vigilance Proformas filled in by Rattan Singh, Ex.Minister, Punjab has been amended to Rs.6,63,123/- by the Investigating Officer of re-investigation and included in new income chart at serial No.9 according to income tax return submitted by Sh.Rattan Singh, Ex.Minister, Punjab, his wife Smt.Avtar Kaur in which income is shown from Bonny Hospital, Gifts amount received from abroad and Godown rent. 11. During the previous investigation the amount of Rs.3,00,000/- shown at serial No.10 in previous income chart on account of loan received from Punjab Govt. by Rattan Singh, Ex. Minister, Punjab during the check period is agreed by the Investigating Officer of re-investigation. 12. During re-investigation the amount of Rs.10,86,153/- on account of agriculture income from the land situated at village Ballarwal as per Takhmina Paidawar prepared by the Agriculture Department, Amritsar has been included by the Crl.Revision Petition No.913 of 2009 -12- .... Investigation Officer of re-investigation which is now mentioned at serial No.11 in new income chart but this income was not included in the previous income chart by the first Investigating Officer. In this respect statement under Section 161 Cr.P.C. of Shri Balwinder Singh, Assistant Statistic, Chief Agricultural Officer, Ranjit Avenue, Amritsar, has been recorded. 13. The amount of Rs.6,00,000/- shown at serial No.11 in previous income chart on account of loan received for purchasing of Honda City Car by Smt.Avtar Kaur wife of Sh.Rattan Singh, Ex. Minister, Punjab from GE Countrywide Amritsar has been deleted from income side as this loan is already shown at serial No.8 in previous income chart. 14. The amount of Rs.1,60,000/- on account of sale of old Tractor Mark Intentional B-275 No.PBE-9892 during check period has been included in income side at serial No.12 in new income chart as the same was not taken in account in first investigation. 15. The amount of Rs.2,31,185/- on account of maturity of F.D.R. No.299974 amounting to Rs.1,00,000/- which was made by Rattan Singh, Ex. Minister, Punjab and his wife Crl.Revision Petition No.913 of 2009 -13- .... Smt.Avtar Kaur on 2.12.1991 before check period in State Bank of India, Ajnala and this FDR renewed many times. On 20.4.98, three FDRs were made from this FD to the amount of Rs.68712/-, Rs.71002/-, Rs.68712/- and thus the total amount Rs.2,31,185/- deposited in Punjab National Bank in Account No.36002 during check period has been included at serial No.13 in new income chart as the same was not taken in account in first investigation. 16. The amount of Rs.9,46,000/- on account of maturity of F.D.Rs. No. 1284, 2630, 2973, 2079, 9010, 50, 3789, 234, 1863 which were made by Rattan Singh, Ex. Minister, Punjab and his family members before check period and these FDRs. matured during the check period and said amount deposited in Punjab National Bank, Ajnala during check period has been included at serial No.14 in new income chart as the same was not taken in account in first investigation. 17. The amount of Rs.1,36,905/- on account of income from business for the period from 31.3.2000 to 31.1.2002 of Amarpal Singh son of Sh.Rattan Singh, Ex.Minister, Punjab according to Income Tax Return has been included at serial No.15 in new income chart as the same was not taken into Crl.Revision Petition No.913 of 2009 -14- .... account in first investigation. 18. The amount of Rs.43,255/- on account of income from business for the year 2001 to 2002 of Parampal Singh son of Sh.Rattan Singh, Ex.Minister, Punjab according to Income Tax Return has been included at serial No.16 in new income chart as the same was not taken in account in first investigation.” From the perusal of the above reproduced extracts of the affidavit of Shri Lakhbir Singh, Deputy Superintendent of Police, Vigilance Bureau, Amritsar, it is abundantly clear that Vigilance Bureau did not collect any additional material and the material which was collected by it while presenting challan under Section 173 of the Cr.P.C. was the same material, which has been re-examined to formulate an opinion which is contrary to the one which was expressed by it in the earlier report. This, in the opinion of the Court, amounts to merely carrying out a re-investigation into the matter and is an attempt by a subsequent officer to substitute a convenient opinion exonerating the respondent while on the same material, another officer, who conducted the earlier investigation, had found him liable to be prosecuted. This was not in the domain or within the jurisdiction of a police officer to comment on the interpretation of the documents which formed part of the challan as it was in the domain of the trial Court to examine them Crl.Revision Petition No.913 of 2009 -15- .... and see their impact as to whether the same accusations against the respondent were sufficiently established to charge him with the offence or not. The report could certainly not be packaged as a report of investigation under Section 173(8) of the Cr.P.C. by projecting it as being a result of further investigation which included fresh evidence, oral or documentary, so as to fall within the ambit of the provisions. The trial Court, however, while rejecting the report under Section 173(8) of the Cr.P.C., observed as follows:- “7. In such a situation, it would be proper to subject the matter to evidence, by relying on the report under Section 173 Cr.P.C. The matter requires proper scrutiny. Even otherwise, the supplementary report is always to further the cause of justice and to bring the additional evidence for the success of the prosecution case and not to nullify the original report under Section 173 Cr.P.C. and render it to be a waste exercise. Meaning thereby, the report under Section 173(8) Cr.P.C. is to supplement the report under Section 173 Cr.P.C. and not to thwart the cognizance to be taken on it. The legislature in its wisdom, provided Section 173(8) Cr.P.C. to further the cause of Section 173 Cr.P.C. The cancellation report is, hence, against the spirit of statutory provisions of law. The evidence on which, the investigating officer at the time of cancellation report, has placed Crl.Revision Petition No.913 of 2009 -16- .... reliance, is also subject to evidence. The supplementary report may not act as a piece of defence evidence of the accused. From the evidence and documents on record, a prima facie case for the offence punishable under Section 13(1)(e) read with Section 13 (2) of Prevention of Corruption Act,1988 is made out against the accused. Now to come up for framing of charge sheet after lunch.” (Underlying is mine) In the opinion of this Court, the expression as underlined in the extracted portion of the impugned order has been wrongly adopted by the trial Court as the report under Section 173(8) of the Cr.P.C. is supposed to contain material which may bring out the truth and that may result in possibility of exonerating an accused as well, but even if this reasoning is quashed, the impugned order will still survive, for the question still remains as to whether the respondent is liable to face the prosecution and in my view, he is, because the report under Section 173(8) when examined in the light of the material which has been placed on record, does not show that further investigation has been carried out, but only replaces and substitutes the opinion of one officer as against the one, who had opined in favour of the prosecution and since the report under Section 173(8) of the Cr.P.C. has been discarded by the impugned order, the trial Court still has the original report on the basis of which it can proceed. It is, therefore, directed to continue with the trial. Crl.Revision Petition No.913 of 2009 -17- .... That apart, the Court notices with dismay that earlier orders were conveniently withheld while filing the instant revision petition and it is only subsequently on its persistence that such orders were placed on record and a perusal thereof further revealed that on 1.5.2009 when the coordinate Bench was not having the advantage of the earlier proceedings in Crl.Misc.No.34330-M of 2005 and C.W.P.No. 19891 of 2005, it passed an order staying the framing of charge against the respondent, whereas the Division Bench had directed the trial Court on 31.5.2006 to proceed with the trial in accordance with law, but not to pronounce the final order until the decision of Parkash Singh Badal's case (supra) by the Supreme Court. This has resulted in two contradictory orders having been passed simply because the petitioner had concealed the factum of the aforesaid writ petition having been filed to which it was a party and was represented by its law officer when the order dated 31.5.2006 was passed. It was the duty of the petitioner to have brought this order to the notice of this Bench and failure to do so is also viewed seriously and I am also of the opinion that the petitioner does not deserve any indulgence on account of concealment of facts as well. As a sequel to above discussion, there is no ground to interfere in the impugned order and the revision petition is dismissed being devoid of any merit. October 24,2009 ( Mahesh Grover ) “SCM” Judge