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SUPREME COURT OF INDIA
KRISHNA MURARI, SAJAY KAROL, JJ.
Peethambaran – Appellant
Versus
State Of Kerala & Anr. – Respondents
Criminal Appeal No. 1381 of 2023 (@ SLP (Criminal) No.545 of 2020)
Decided on : 03-05-2023
(A) Criminal Procedure Code, 1973 – Section 173(8) – Power to order further investigation – Magistrate has power to order further investigation – Fresh investigation/reinvestigation/de novo investigation fall into purview of jurisdiction of a higher court – Chief Police Officer of a district is Superintendent of Police who is an officer of Indian Police Service – Order from District Police Chief is not the same as order issued by concerned Magistrate – Power rests either with concerned magistrate or with a higher court and not with an investigating agency – Requirement of permission for further investigation or to file a supplementary report is accepted within law and is required to be complied with. (Paras 17, 19 and 28)
(B) Indian Penal Code, 1860 – Section 420 – Criminal Procedure Code, 1973 – Section 482 – Cheating – Quashing petition – Offence alleged in FIR is Section 420 IPC which is a serious form of cheating, include inducement in terms of delivery of property and/or valuable securities – After due investigation conducted by a duly authorized person, conclusion is that ingredients of section mentioned in FIR have not been met and no case is made out – No proof of any financial transaction is on record, much less concerning the present appellant – With only one ingredient being fulfilled and mere statements made to show dishonest intention or falsity of statement, threshold of Section 420 is not breached, constituting the offence – Order passed by High Court set aside and Criminal Case quashed. (Paras 20, 24, 25, 26 and 29)
Facts of the case:
Two questions arise for consideration one, whether under recognized parameters of exercise of power under Section 482, in facts of present case, non-exercise of power is justified and two, whether District Police Chief, Kottayam could have ordered further investigation pursuant to which second final report was filed?
Findings of Court:
There are only statements to the effect that despite reminders by seven persons no jobs were secured for them or their wives. Only ingredient out of the four required, being in the present case is that in the ordinary course, none of the persons would have given the accused any money, and therefore were induced to deliver property which otherwise they would have not. No proof of any financial transaction is on record, much less concerning the present appellant.
Result : Appeal allowed.
JUDGMENT :
SANJAY KAROL, J.
Leave Granted.
1. Two questions arise for consideration one, whether under the recognized parameters of exercise of power under Section 482, in the facts of the present case, the non-exercise of power is justified and two, whether the District Police Chief, Kottayam could have ordered the further investigation pursuant to which the second final report was filed?
2. The instant appeal by special leave petition has been filed against an order of the High Court of Kerala passed in Crl. MC No. 6314 of 2018 dated 6th of November, 2019 whereby a prayer to exercise powers under Section 482, Code of Criminal Procedure, 1973 was disallowed and proceedings under Criminal Case No. 1326/2017 was found unfit to be quashed.
3. The Appellant has been charged under Section 420 of the Indian Penal Code, 1860, for having cheated, alongside accused no.1, now deceased, the defacto complainant, namely Sunesh and seven other persons of a sum totaling three lakh eighty-three thousand five hundred and eighty-three rupees, in exchange for securing jobs for them or their wives at the Kottayam Rubber Board, as clerks.
4. An FIR was registered bearing number 1838 of 2015 under the above stated section on 24th October, 2015. The accused No.2 before us is the uncle of the defacto complainant.
5. The Final Report (hereafter, FRI) placed on record dated 30th December, 2015 records that the complainant was asked to produce documents in this regard, but despite notice, the same were not produced, nor were any other documents, in regards to any financial transaction. It then states “As there is no proper evidence in this regard, it shall be considered as a false case…”
6. Interestingly, another Final Report (hereafter, FRII) forms part of the record. It states that witness number 10, namely S. Anilkumar, Inspector of Police, Viakom, conducted further investigation as per Order No. D243642/16/K passed by the District Police Chief, Kottayam.
7. It has been urged by way of this appeal 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; No specific role has been attributed to the appellant; That in all of the witness statements, the name mentioned is that of the defacto complainant who gave the money to the deceased accused number 1 namely, Babu and was the instigator in other people giving the money to him. The Appellant seeks reliance on Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762; T.T Antony v. State of Kerala, (2001) 6 SCC 181; Vinubhai Haribhai Malviya and Ors v. State of Gujarat, 2019 SCC OnLine 1346; Randhir Singh Rana v. State (NCT of Delhi), (1997) 1 SCC 361; G.V Rao v. L.H.V Prasad, (2000) 3 SCC 693; Hari Prasad Chamaria v. Bishun Kumar Surekha, (1973) 2 SCC 823.
8. Having taken note of the facts that have led to the present appeal by special leave petition and the chief arguments made, we now proceed to examine the law on the issues before us.
9. On the second question, that is whether District Police Chief, Kottayam’s order was permissible in law or not, the relevant provisions of CrPC is Section 173 (8) which reads as under:
“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (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 subsections (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 subsection (2).”
10. The evolution of Section 173 CrPC has been noted by this Court in Vinubhai
Magistrate has power to order further investigation – Chief Police Officer of a district has no power to order further investigation.
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