Court can order further investigation while exercising its discretion u/s 156 Cr.P.C: High Court of Jammu And Kashmir

IN THE HIGH C0URT 0F JAMMU AND KASHMIR AT SRINAGAR CRR No. 13 2017 Reserved on 17.03.2021. Pronounced on 02.04.2021 Ghulam Hassan Sofi &Anr. Through: Mr. Altaf Haqani Sr. Adv. With Shakir Haqani Adv. State of JK through VOK Kashmir Through: Mr B. A. Dar Sr. AAG with Ms. Saba Gulzar Assisting Counsel Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE 1. The order dated 10th April 2017 passed by the learned court of Special Judge Anti Corruption Srinagar has been impugned by the petitioner through the medium of present petition by virtue of which the learned trial court has directed the SSP VOK Srinagarto conduct or get conducted further investigation on the aspects stated in the order. 2. The petitioner has challenged the order impugned on the following grounds: That once the court had taken a cognizance of offence under section 5PC Act power to order further investigation could not have been invoked by the learned trial court as the learned trial court was not competent to switch back to the pre cognizance ii) That the order impugned is liable to be quashed as the learned trial court had no power to order further CRR No. 13 2017 investigation on its own without any motion or application on the part of the investigating prosecuting agency. The trial court has infact passed the order impugned so as to unable the prosecution to fill up the lacunas in their case and the order impugned amounts to ordering reinvestigation. iii) That the learned trial court had not heard the petitioner for the purposes of passing orders on the issue of further investigation as the trial court had simply heard the arguments on charge discharge of the accused. 3. Before examining the issues raised by the petitioner it is necessary to have the brief resume of the allegations leveled against the petitioner. 4. The charge sheet for commission of offence under section 5PC Act read with 109 RPC was filed against the petitioner and the other accused on the ground that the petitioner is in possession of disproportionate assets to the extent of Rs.67 88 189 . It is further stated in the charge sheet that the petitioner was appointed as a Patwari in the year 1974 and was posted in Rakhs and Farms Department and served there for about a decade and later on was transferred to the Revenue Department District Budgam. The check period in the case of the petitioner has been fixed from 1986 to 2006. During this whole period the total income of the petitioner was Rs.13 72 324 and expenditure during check period has been considered as Rs. 5 96 921 whereas the income at the beginning of the check period of the petitioner was Rs. 3 53 816 . The prosecution has determined the total value of the assets acquired by the petitioner during the check period as Rs. 79 17 408 . 5. The prosecution has alleged the petitioner to have acquired following immovable assets through various deeds mutations either in his name or CRR No. 13 2017 in the names of his relatives. Details of the same are reproduced as Situated at Mode Krimshore Gift 23 19 455 Gh. name of 19 81 799 Self Colony Krimshore Gift kanal Krimshore Gift 6 marlas Krimshore Gift for 1 K.19 M. 1.57 lacs 90 000 Krimshore Gift 3.00 lacs 3.50 lacs Two sons under: No. Three storied house double and six shops on 2.5 kanals 03 & 01 kanal 03 12 ½marlas 4.50 lacs 75 000 u s 4 &8 AR Act u s 4 & 8 A.R. Act 10. 01 kanal 09 Burgoo 11. 05 kanals 80 000 10.00 lacs 12. 02 kanals 19 13. 01 kanals 2 14. 03 kanals& 06 marlas 15. 02 kanals 16. 02 kanals 17. 01 kanal& 13 18. 01 kanals& 09 marlas 19. 02 kanals 34 000 Burgoo 10 000 30 000 Burgoo Burgoo U s 4 & 8 A.R. Act. U s 4 & 8 A.R. Act Sale 25 000 1.50 lacs 15 000 30 000 20. 02 kanals& 87 000 3.00 lacs 12 ½ marlas 21. 08 kanals& 05 marlas CRR No. 13 2017 Two Sons Gh. Mohd Mst. Saja Two Sons 22. 01 kanal 5.50 lacs Colony 6. Besides these the petitioner has also acquired the following movable assets: 23. Car registration No. JK04A 0843 24 Gold ornaments 115 grms 25. House items 60 000 1 07 535 86 310 57 000 The matter was heard by the learned trial court for charge and discharge and the learned trial court vide order dated 10th April 2017 passed the order impugned and directed for further investigation on the aspects as narrated in the order. 8. Mr. Haqani learned senior counsel has vehemently argued that the order of further investigation can be passed only when the new facts are brought to the notice of the trial court after the filing of charge sheet. He further contended that the learned Magistrate had only three options when the challan was filed i.e.accept the report and take cognizance of the offences and issue process may disagree with the report and drop the proceedings or may direct further investigation under section 156 and require the police to make a further report. So he contended that once the court had issued a process direction for further investigation could not have been issued by the learned trial court. Per contra Mr B.A. Dar learned Sr. AAG has vehemently argued learned Magistrate has powers to order further investigation under section 156 Cr.P.C even at post cognizance stage. He has placed reliance upon the judgment of the Apex Court reported in17 SCC 1. 10. Heard and perused the record. CRR No. 13 2017 11. Apex Court in the case titled Vinubhai Haribhai Malviya v. State of Gujarat reported in17 SCC 1 has held as under: Cri) 440] 42. There is no good reason given by the Court in these decisions as to why a Magistrate s powers to order further investigation would suddenly cease upon process being issued and an accused appearing before the Magistrate while concomitantly the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court in particular Sakiri2 SCC 409 :1 Samaj Parivartan Samudaya7 SCC 407 : 3 SCC 365] Vinay Tyagi5 SCC 762 :4 SCC 557] and Hardeep Singh3 SCC 92 : 2 SCC 86] Hardeep Singh3 SCC 92 :2 SCC86] having clearly held that a criminal trial does not begin after cognizance is taken but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power subject of course to the Magistrate s nod under Section 173(8) to further investigate an offence till charges are framed but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre trial proceedings would amount to a travesty of justice as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a 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 all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If for example fresh facts come to light which would lead to inculpating or exculpating certain persons arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding as was held in Hasanbhai Valibhai Qureshi5 SCC 347 : 2004 SCC 1603] . Therefore to the extent that the judgments in Amrutbhai Shambhubhai Patel4 SCC 177 : 2 SCC 331] Athul Rao14 SCC 298 :1 SCC594] and Bikash Ranjan Rout(2019) 5 SCC 542 : 2019) 2 SCC 613] have held to the contrary they stand overruled. Needless to add Randhir Singh Rana v. State[Randhir Singh Rana v. State (1997) 1 SCC 361] and Reeta Nag v. State of W.B.9 SCC 129 : 3 SCC 1051] also stand overruled. 12. Thus it is evident from the decision of the Apex Court that further investigation can be ordered suo motu by the Magistrate himself depending upon the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who can exercise such discretion on the facts of each case and in accordance with law. As such the first contention of the petitioner that once the process has been issued the court had no CRR No. 13 2017 jurisdiction to order further investigation is bereft of any merit and as such the same is rejected. 13. The second contention raised by the petitioner that no application was made by the prosecution agency also deserves to be rejected in view of the law laid down by the Apex Court in the judgmentThe investigating officer should have gone further to check the authenticity of these mutations from the attesting officers as well as marginal witnesses cited therein as the donors have unequivocally stated that as a matter of fact they sold their respective properties to accused for consideration and were not aware of those mutations. 2) Whether the posting of the accused during the relevant time had anything to do with the same before reaching to any conclusions. The investigating officer was required to make an effort to check the authenticity of the mutations attested under Section 4 and 8 of the Agrarian Reforms Act whereas erstwhile owners had categorically deposed that they in fact sold these pieces of land to the accused against the consideration. The investigating officer should have checked from the records as to whether the accused was bona fide tiller of the land duly recorded in Kharif 1971 before arriving at any conclusion. Investigating officer was required to collect evidence before concluding that the two residential commercial properties at Krimshore and residential house at Hyderpora were in fact raised by the accused and he was holding possession thereof as Benami properties. The investigating officer had not conducted any investigation as to whether any permission had been taken by the accused being a public servant from the Government or the competent authority for the acquisition of these properties. 16. The learned trial court has given the cogent reasons while ordering the further investigation and from the perusal of the order impugned it is revealed that the petitioner had raised these issues during the course of his arguments on charge and discharge. So there is no substance that CRR No. 13 2017 the petitioner was not heard on the said issue once the petitioner has raised the issue those pointed towards the defective investigation conducted by the investigating officer the trial court was well within the power to order further investigation. In view of what has been discussed above there is no merit in the present petition as such the same is dismissed. 18. The SSP VOK Srinagaris directed to complete the further investigation of the case within a period as prescribed by the trial court in its order dated 10th April 2017. Record be returned to the officer concerned. 02.04.2021 RAJNESH OSWAL) Whether the order is speaking: Yes No Whether the order is reportable: Yes No CRR No. 13 2017 

Summary: Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who can exercise such discretion on the facts of each case and in accordance with law. This was held in Ghulam Hassan Sofi &amp; Anr. V. State of JK through VOK Kashmir [CRR No. 13/2017] in the High Court of Jammu And Kashmir at Shrinagar by single bench consisting of JUSTICE RAJNESH OSWAL. Facts are that the petitioner was accused of offenses under section 5 (2) PC Act read with 109 RPC on the ground that the petitioner is in possession of disproportionate assets. The matter was heard before the learned trial court, who passed an order and directed further investigation. The counsel for petitioner senior argued that the order of further investigation can be passed only when the new facts are brought to the notice of the trial court after the filing of charge-sheet and once the court had issued a process, direction for further investigation could not have been issued by the learned trial court under under section 156 Cr.P.C. The court made reference to the Supreme Court judgement in Apex Court in the case titled Vinubhai Haribhai Malviya v. State of Gujarat, wherein the following observations were made, “To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offense till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a 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 herein-above, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case.”