1997 Supreme(SC) 1221

1998(5) Supreme 329
Supreme Court of India
A.S. Anand & K. Venkataswami, JJ.
Union Public Service Commission -Appellant
versus
S. Papaiah & Ors. -Respondents
Criminal Appeal No. 8327 of 1997
Decided on 11-9-1997
Counsel for the Parties :
For the Appellant : Altaf Ahmad, ASG etc.

Important Point
The learned Magistrate was not justified in accepting the final report of the CBI and closing the case without any notice to the appellant (UPSC) and behind its back.

Headnote:(i) Criminal Procedure Code, 1973-Section 173-Final report by CBI for closure of case of cheating during an All India Service Examination-No notice was issued by Court before accepting final report-Whether this omission vitiates the order of Magistrate accepting the final report? (Yes)-Issu­ance of notice by CBI (at the ins­tance of Court) whether should be deemed to be sufficient? (No). (Paras 9 & 11)

       Held : In the present case, admittedly, no notice was issued by the Vth Metropolitan Magistrate to the appellant before accepting the final report submitted by the CBI and deciding not to take cognizance and drop the proceedings. This omission vitiates the order of the learned court accepting the final report. (Para 9)

       As per the law laid down in Bhagwant Singh’s case, (1985) 2 SCC 537, the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a “must”. This binding precedent, which is the law of the land, has not been followed by the Vth Metro­politan Magistrate and was wrongly ignored by the revisional court also. (Para 10)

       Further held : The issuance of notice by the CBI to the appel­lant was not a substitute for the notice which was required to be given by the Magistrate in terms of the judgment in Bhagwant Singh’s case, (1985) 2 SCC 537. Moreover, when law requires a particular thing to be done in a partic­ular manner, it must be done in that manner and in no other manner. (Para 11)

       (ii) Criminal Procedure Code, 1973-Section 173-Order of the learned Magistrate ac­cepting the closure report by CBI-UPSC (the Complainant/Appellant) pointed out six short-comings in investigation of CBI and demanded re-investi­gation-CBI did not inform the Magistrate while submitting its final report-Effect of this ‘lapse’-It also vitiates the order of the Magistrate. (Para 12)

       Held : The withhold­ing of vital information from the learned Metropolitan Magistrate while resubmitting the final report along with various documents on February 24, 1995, for reasons best known to the investigating offi­cer, has created a doubt in our minds about the fairness on the part of the investigating officer while undertaking the investigations. Had the contents of the communication of the appellant dated January 23, 1995 been brought to the notice of the learned Magistrate, the possi­bility that he may not have agreed to drop the proceedings cannot be ruled out. This `lapse’, deliberate or inadvertent, also renders the order of March 16, 1995 bad. (Para 12)

       (iii) Criminal Procedure Code, 1973-Section 173(8)-Further investigation in respect of an offence after closure report-CBI filing closure report-Accept­ed by Magistrate-Complainant filing Misc. petition for ‘reinvestiga­tion’ - Dis­missed by Magistrate on ground that he had no power to review the earlier order - Whether correct? (No)-Dis­missal of Revision petition-Whether correct? (No)-Result-Appeal allowed-Case remanded. (Paras 13, 14 & 15)

       Held : The learned Magistrate fell into an error. He was not required to “review” his order. He could have ordered “further investigation” into the case. It appears that the learned Metropolitan overlooked the provisions of Section 173(8) which have been enacted to take care of such like situation also. (Para 13)

       The Magistrate could, thus in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the ‘new’ report to the submitted by the investigating officer would be governed by sub-section (2) to (6) of Section 173 Cr.P.C. The learned Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained. (Para 14)

       Further held : The revi­sional court also committed errors on question of fact. The learned Sessions Judge erroneously observed that notice regarding the filing of final report had been issued to the appellant along with a copy of the final report calling upon it to file objections. Besides the learned Sessions Judge also failed to consider the effect of withholding by the investigation agency of the “objection” of the appellant contained it its communication dated January 23, 1995 at the time of resubmission of the closure report in February 1995. The learned Sessions Judge, thus, failed to exercise his revisional juris­diction properly and his order dismissing the revision petition filed by the appellant in the established facts and circumstances of the case cannot be sustained. (Para 15)

       Held finally : The matter is remitted to the learned Metropolitan Magistrate for its disposal in accordance with law. The learned Metropolitan Magistrate shall, in the larger public interest to ensure the purity of the examination conducted by the UPSC for All India Services, to select the best talent, issue directions under Section 173(8) Cr.P.C. to the CBI to further investigate the case and collect further evi­dence keeping in view the points raised by the appellant in its commu­nication addressed to the Director, CBI dated January 23, 1995 (supra) (treating it as a ‘protest petition’) and then proceed further in the matter. (Para 16)