IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.14598 of 2009 ========================================================== = Arun Kumar, S/O-Late Harbansh Lal Grover, resident of “Grover House” Boring Road, Opp. I.B.P. Petrol Pump, P.S. Shri Krishnapuri, Patna-800001. .... .... Petitioner. Versus 1. State Of Bihar 2. The Director General of Police, Old Secretariate, Patna-800015. 3. The Additional Director General of Police, Crime Investigation Department (C.I.D.), Old Secretariate, Patna-800015. 4. The Inspector General of Police, Crime Investigation Department (C.I.D.), Old Secretariate, Patna-800015. 5. Shri Rohini Kumar Jha, S/O Late Anirudh Jha Deputy Inspector General of Police, Crime Investigation Department (C.I.D.), Co-operative Cell, Vikash Bhawan, 3rd Floor, Room Nos. 331-332, Patna 800015. 6. The Superintendent of Police, Crime Investigation Department (C.I.D.), Co-operative Cell, Vikash Bhawan, 3rd Floor, Room Nos. 331-332, Patna- 800015. 7. The Deputy Superintendent of Police, Crime Investigation Department (C.I.D.), Co-operative Cell, Vikash Bhawan, 3rd Floor, Room Nos. 331- 332, Patna-800015. 8. Shri Daya Shankar Rai, Inspector of Police, Crime Investigation Department (C.I.D.), Co-operative Cell, 1st Floor, Room No. 118, Biscomaun Bhawan, Patna-800001. .... .... Opposite Parties. ========================================================== = Appearance : For the Petitioner : Mr. Basant Kumar Choudhary (Sr. Adv.) Mr. Arvind Kumar For the Opposite Parties (State) : Mr. Anand Mohan Pd. Singh (A.P.P.) For the Intervener : M/s. Soni Shrivastava M/s. Anupma Sharma ========================================================== = PRESENT HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Judgment H.K. Srivastava, J. 1. This petition under Section 482 of the Cr.P.C. has been filed by Arun Kumar, who is informant in S.K. Puri P.S. Case No. 52 of 2003, for quashing the order dated 10.11.2008 passed by learned Chief Judicial Magistrate, Patna in above stated S.K. Puri P.S. 2 Case No. 52 of 2003 registered under Sections 120(B), 420, 465, 468 and 471 of the Indian Penal Code by which and whereunder learned Chief Judicial Magistrate, Patna allowed further investigation of the above stated S.K. Puri P.S. Case No. 52 of 2003 under Section 173(8) of Criminal Procedure Code against the petitioner. 2. The brief fact of the case is that petitioner gave written report to Officer-in-Charge of S.K. Puri Police Station on 15.03.2003 alleging therein that Alaknanda Sahkari Grih Nirman Samati (hereinafter referred to as Society) is a registered Society under Bihar Co-operative Societies Act, 1935. The aforesaid Society is managed by an elected management committee and the main object of the said Society is to purchase residential plots and to distribute the said plots amongst its members through registered sale deeds. The aforesaid Society purchased several bighas lands in Patna and before distribution of the said lands, its management committee superseded on 01.01.1988. It is relevant to mention here that on 10.01.1982, accused Gyan Deo Sharma was Secretary of first management committee. After superannuation of the above stated management committee, the election for consideration of fresh management committee was held on 29.11.1999 and at the time of election, accused Gyan Deo Sharma, in connivance with other accused persons, manufactured antedated forged membership receipts and share certificates of Society and on the basis of above stated forged documents, he succeeded to capture the management committee of the above stated committee and again when the election of management 3 committee was going to be held, he along with other co-accused persons attempted to take part in the above stated election on the basis of aforesaid forged documents. On the basis of aforesaid written report, S.K. Puri P.S. Case No. 52 of 2003 under Sections 465, 468, 471, 420 and 120(B) of the Indian Penal Code was registered against 29 persons including above stated Gyan Deo Sharma. Police took charge of investigation and charge-sheet no. 139 of 2007 was submitted against six first information report named accused persons on 05.07.2007 whereas investigation in respect of the rest accused persons was kept pending and after supplementary investigation, supplementary charge-sheet no. 52 of 2008 was submitted against 16 accused persons on 20.03.2008 whereas again investigation was kept pending in respect of remaining accused persons and lastly, charge- sheet no. 205 of 2008 was submitted on 21.08.2008 showing in- sufficient evidence against remaining accused persons whereas higher police officials directed the Investigating Officer to register a fresh case against the informant as in course of investigation it was found that in the year 1987, he along with the then Secretary and co-accused Gyan Deo Sharma executed sale deed in respect of lands of Society in favour of one minor, namely, Anupma Sharma violating the rules of the Society. It is relevant to mention here that aforesaid Anupma Sharma is also an accused of above stated S.K. Puri P.S. Case No. 52 of 2003. Again, vide Memo No. 530 dated 10.09.2008, the Additional Director General of Police, Crime Investigation Department, Patna directed the Investigating Officer to investigate the matter against the 4 informant in above stated S.K. Puri P.S. Case No. 52 of 2003 under Section 173(8) of the Criminal Procedure Code. After the aforesaid direction, the Investigating Officer filed a petition before the Chief Judicial Magistrate, Patna for seeking permission of court to proceed for further investigation under Section 173(8) of Criminal Procedure Code. The learned Chief Judicial Magistrate, Patna vide impugned order dated 10.11.2008 permitted the Investigating Officer to proceed for further investigation under Section 173(8) of the Criminal Procedure Code against petitioner. Being aggrieved and dissatisfied with the impugned order dated 10.11.2008, the petitioner has preferred this criminal miscellaneous case under Section 482 of the Cr.P.C. before this Court. 3. The notices were issued to opposite parties by registered post as well as ordinary process and in due course, counter- affidavit was filed on behalf of the Opposite Party No. 5 as he was authorized by Deputy Inspector General of Police, C.I.D Co-operative Vigilance Cell, Bihar, Patna to file counter-affidavit in the present case. 4. Rejoinder to the above stated counter-affidavit was also filed on behalf of the petitioner. 5. It is relevant to mention here that I.A. No. 1282 of 2009 dated 30.06.2009 was filed on behalf of Nain Tara Sharma, Wife of Gyan Deo Sharma, who is accused of S.K. Puri P.S. Case No. 52 of 2003. Rejoinder to the aforesaid I.A. was filed on behalf of the petitioner. 5 6. This Court admitted this petition for detailed hearing and, accordingly, all the parties were heard by this Court. 7. The petitioner by filing this criminal miscellaneous petition has challenged the validity of order dated 10.11.2008 and it is contended by learned counsel appearing for the petitioner that above stated S.K. Puri P.S. Case No. 52 of 2003 was registered against first information report named accused persons for fabricating and manufacturing forged membership receipts and share certificates and for using the aforesaid fabricated documents in the election of the Society and admittedly, after due investigation, police submitted charge-sheet against some of the first information report named accused persons but subsequently, police in connivance with the accused persons invented new allegation against the informant with a view to help the accused persons of the above stated case. It is further contended by him that police came with this story that on 17.12.1987, a sale deed bearing no. 7862 was executed in favour of one minor girl, namely, Anupma Sharma by the petitioner violating the rules of the Society but, as a matter of fact, the aforesaid sale deed was executed by co-accused Gyan Deo Sharma, the then Secretary of the Society in favour of his daughter, namely, Anupma Sharma and, as a matter of fact, the entire consideration money was paid by aforesaid Gyan Deo Sharma himself and, therefore, on account of execution of the aforesaid sale deed, title was passed in favour of above stated Gyan Deo Sharma and not in favour of Anupma Sharma who was minor at the relevant time. The aforesaid fact is evident from Annexure-5 to 6 this petition. It is also contended by him that the allegation levelled against the petitioner is quite different from the allegation of first information report of S.K. Puri P.S. Case No. 52 of 2003 because according to allegation levelled in S.K. Puri P.S. Case No. 52 of 2003, the accused persons of the aforesaid case prepared forged and ante dated money receipts as well as share certificates and used the said documents at the time of election whereas the allegation against the petitioner is in respect of execution of an illegal sale deed. So, the above stated allegation is not permissible to be investigated in the present case. It is further contended by him that no doubt, police has power to further investigate the case under Section 173(8) of the Criminal Procedure Code but this power is restricted to original allegation of the case and police has no power to add new allegation and continue with the investigation in the name of further investigation under Section 173(8) of the Criminal Procedure Code. To substantiate the above stated contention, he referred the decisions reported in (2009) 6 SSC 346 and (2008) 5 SSC 413. It is further contended by learned counsel for the petitioner that in both the aforesaid decisions, it has been held that “further” means “additional, more or supplemental” and further investigation is the continuance of earlier investigation. It is further contended by him that in a decision reported in (2004) 4 PLJR 37, it has been held by this Court that further investigation under Section 173(8) of the Criminal Procedure Code is permissible only when some new evidence with respect to allegation of original first information report or complicity or 7 involvement of some other accused persons for the offence alleged in the original first information report comes to light. It is also contended by him that higher officials directed the concerned Investigating Officer to further investigate the present case and the aforesaid direction was given by higher officials to concerned Investigating Officer relying upon T.T. Antoni’s case but, as a matter of fact, the aforesaid decision is not applicable in the present case. It is further contended by him that in the above stated case it has been held that for the same offence two cases cannot be registered. It is further contended by him that T.T. Antoni’s case has been considered by Hon’ble Supreme Court in a case reported in 2009 Criminal Law Journal Page-958 and in the aforesaid case, the Apex Court of this country has held that if canvas of two first information reports are different, registration of fresh case is permissible and, therefore, the investigation in respect of a quite different allegation and offence is not permissible under Section 173(8) of the Criminal Procedure Code. It is further contended by him that if any different offence, allegedly, has been committed by the petitioner, the police may register different first information report against the petitioner but police can never be permitted to investigate a different offence in the present case taking the aid of Section 173(8) of the Criminal Procedure Code. 8. It is further contended by learned counsel for the petitioner that petitioner had made several complaints against the Investigating Officer as well as police officials before the higher officials of police as well as before this Court by filing writ petition 8 and on account of the aforesaid complaints and cases, one Investigating Officer, namely, Sri Tulsi Ram was suspended and similarly, one Deputy Superintendent of Police, namely, Arshad Jaman was departmentally proceeded and furthermore, one Inspector General of Police, namely, Sri B.S. Jayant was removed from the supervision of the present case and that is the reason police officials being biased against the petitioner prayed before the learned Chief Judicial Magistrate, Patna for further investigation with an intent to falsely implicate the petitioner in the present case. 9. It is further contended by learned counsel for the petitioner that intervener, namely, Nain Tara Sharma is an accused of the present case and she has no locus standi to oppose this petition before this Court. 10. On contrary, learned counsel appearing for intervener, namely, Nain Tara Sharma submits that it is well settled principle of law that even a third party can interfere in the proceeding under Section 482 of the Cr.P.C. because the third party is not alien to the proceedings. It is further contended by him that admittedly, the intervener is a co-accused in the present case and each and every order being passed in the present case will have a bearing upon the defence of the intervener. In support of the aforesaid contention, a decision reported in (2009) 6 SCC 346 is referred. Furthermore, decision of Hon’ble Delhi High Court rendered in Rajiv Gandhi Ekta Samiti vs. Union of India and another delivered on 23.12.1999 was also referred on behalf of the intervener. 9 11. It is further contended by learned counsel for the intervener that present petition is not maintainable because the petitioner has a remedy under Section 397 of the Cr. P.C. In support of the aforesaid contention, 1975 Criminal Law Journal 1637 is referred on behalf of the intervener. 12. It is further contended on behalf of the intervener that investigating agency has unfettered right to take further investigation in any case and the same cannot be curtailed or interfered with by any court. In support of the above stated contention, a decision reported in (1980) 1 SCC 554 is relied upon on behalf of the intervener. It is further contended by him that it is only the court in which the charge-sheet is filed which is to deal with all the materials relating to trial of the accused, including matters falling within the scope of Section 173(8) of the Cr.P.C. 1999 SCC (Criminal 1984) is relied upon by learned counsel for intervener in support of the aforesaid contention. It is further contended by him that where investigation is incomplete, it is impermissible for the High Court to look into the materials, the acceptability of which is essentially a matter for trial and furthermore, allegations of mala fides against the informant are inconsequent and cannot be themselves be the basis for quashing the proceeding. To support the aforesaid contention, a decision reported in (2005) 13 SCC 540 is relied upon and lastly, learned counsel for intervener relied upon a decision reported in (2001) 6 SCC 181 T.T. Antoni and others vs. State of Kerala and others in which it has been held by Apex Court of this country that 10 there can be no second first information report and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence give rise to one or more cognizable offences and furthermore, it has been held by the Apex Court of this country in the above stated decision that Officer- in-Charge of the Police Station has to investigate not merely the cognizable offence reported in the first information report but also other connected offences found to have been committed in course of the same transaction or the same occurrence and filed one or more reports as provided in Section 173 of the Cr.P.C. 13. It is further contended by learned counsel appearing for intervener that the power vested under Section 482 of the Cr.P.C. should be exercised by the court in rarest of the rare cases and in the present case, admittedly, in course of investigation it came to light that being president of the above stated Society petitioner executed a sale deed in favour of a minor. So, it is obvious that the aforesaid offence is of same nature and it cannot be said that the investigating agency has got no power to investigate the above stated occurrence in the present case. It is further contended by him that petitioner being president of the aforesaid Society was equally responsible for execution of the above stated sale deed and he cannot escape from his liability. Learned counsel for intervener referred a decision reported in A.I.R. 1997 SC 2778. 14. Here, I would like to mention that when this matter had been kept reserved for pronouncement of the judgment, a mention 11 slip was filed on behalf of the intervener and it was brought to the notice of the Court that after further investigation, police has already submitted charge-sheet against the petitioner before the pronouncement of the judgment in the present case. It is contended by learned counsel for the intervener that when the police has already submitted charge-sheet against the petitioner after further investigation, there is no need to interfere into the impugned order and this petition has already become infructuous. It is further contended by him that it would be proper to leave the matter upon the trial court after submission of the charge-sheet against the petitioner. In support of the aforesaid contention, he referred a decision reported in (2011) 6 SCC 102. 15. Having heard the rival contentions of both the parties, I have gone through the record along with the decisions cited on behalf of the parties. 16. Firstly, I would like to take this question as to whether intervener has got any right to address this Court in the present proceeding or not. Admittedly, intervener, namely, Smt. Nain Tara Sharma is an accused in the present case and obviously, any order or finding passed in the present case shall affect the right of the aforesaid intervener Smt. Nain Tara Sharma. Moreover, it is well settled principle of law that a third party is not alien to the proceeding under Section 482 of the Cr.P.C. and if interest of third party is involved in any proceeding, the third party may address the Court in the said proceeding. Therefore, I am of the opinion that intervener 12 Smt. Nain Tara Sharma has every right to address this Court in the present proceeding. 17. It is an admitted position that on the basis of written report of the petitioner, S.K. Puri P.S. Case No. 52 of 2003 for the offences under Sections 465, 468, 471, 420, 120B of the Indian Penal Code was registered on 21.03.2003 against accused Gyan Deo Sharma and several other accused persons. It is further an admitted position that police submitted first charge-sheet bearing Charge-sheet No. 139 of 2007 against six accused persons and kept the investigation pending in respect of the remaining accused persons. Again, it is an admitted position that police submitted supplementary Charge-sheet No. 52 of 2008 against 16 accused persons on 20.03.2008 and again, police kept the investigation pending in respect of remaining accused persons and lastly, Charge-sheet No. 205 of 2008 was submitted on 21.08.2008 showing insufficient evidence against some of the accused persons and in the same charge-sheet higher police officials directed the Investigating Officer to register a fresh case against the informant because in course of investigation, it came to light that petitioner along with the then Secretary, Gyan Deo Sharma (one of the accused of the present case) executed sale deed in favour of Anupma Sharma (the minor daughter of accused Gyan Deo Sharma) violating the rules of the Society. It is also an admitted position that again, a D.G.P., Crime Investigation Department directed the Investigating Officer of the present case to investigate the above stated matter in the present case under the provision of Section 173(8) of the Cr.P.C. 13 18. Here, I would like to refer Section 173 (8) of the Cr.P.C. which runs as follows :- 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, whereupon 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 provision of sub-section (2) to this Section, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded in sub-section (2). 19. It is well-known that an Investigating Officer forwards his report under Section 173 (2) of the Cr.P.C. after completion of the investigation but Section 173 (8) of the Cr.P.C. says that an Investigating Officer can take further investigation in respect of an offence even after submission of his report under Sub-section 2 of Section 173 of the Cr.P.C, if he obtains further evidence, oral or documentary in respect of the aforesaid offence. 20. It is, therefore, clear that police has unrestricted power under Section 173 (8) of the Cr.P.C. and the police can further investigate the matter, if police finds some new materials in respect of the case. No doubt, the police can further investigate the matter under Section 173 (8) of the Cr.P.C. even after filing of the charge-sheet but Section 173 (8) of the Cr.P.C. has been enacted with a view to give power to police to bring new materials before the court in respect of the case which is being investigated by the police. So, it is clear that 14 Section 173 (8) of the Cr.P.C. has been brought to the statute book to empower the police to bring additional or supplement evidence before the court even after filing of the charge-sheet. The bare perusal of the aforesaid provision goes to show that police can further investigate the matter under Section 173 (8) of the Cr.P.C. only with the original allegation and the aforesaid power of the police is restricted in the sense that police has got no power to add new allegation and continue with the investigation in the name of further investigation under Section 173 (8) of the Cr.P.C. 21. In the present case, the petitioner has lodged S.K. Puri P.S. Case No. 52 of 2003 in respect of fabrication of forged membership and share certificates and admittedly, after investigation police submitted three charge-sheets against some of the accused persons. So far as further investigation of the present case is concerned, the same relates to an execution of sale deed by petitioner and co-accused Gyan Deo Sharma in favour of one minor girl, namely, Anupma Sharma who happens to be daughter of co-accused Gyan Deo Sharma in the year 1987. Therefore, it is apparent from the aforesaid facts that there are two distinct and different offences and in my view, both the offences cannot be investigated in one case. Learned counsel for the petitioner rightly submitted that the allegation levelled against the petitioner is quite different from the allegation of first information report of S.K. Puri P.S. Case No. 52 of 2003 and, therefore, in view of the decisions as referred above the police has got no power to add a fresh allegation in the present first information 15 report and further investigate the matter under Section 173 (8) of the Cr.P.C. and I am of the also opinion that T.T. Antoni’s case is not applicable in the present case because in the aforesaid decision, it has been held that for the same offence two cases cannot be registered. So far as the present matter is concerned, obviously, there are two different offences and, therefore, learned counsel for the petitioner has rightly submitted that the aforesaid two different offences cannot be investigated in one case. 22. No doubt, during pendency of this matter the police has already submitted charge-sheet against the petitioner after completing further investigation under Section 173 (8) of the Cr.P.C. but in my view, mere submission of charge-sheet after completion of investigation under Section 173 (8) of the Cr.P.C. does not affect the merit of the present petition because when the police had got no right to investigate fresh allegation under Section 173 (8) of the Cr.P.C, the entire subsequent development is nothing but only an abuse of process of the Court. It is not in dispute that normally this Court does not interfere into the proceeding of trial court after submission of charge- sheet and it is always left open to the trial court to apply its judicial mind in respect of the submission of the charge-sheet but in the present case, the fact is quite