Important Point
Though it is within the province of Special Judge to order further investigation u/s. 173(8) of Cr. P.C. 1973 but he cannot specify any particular officer to conduct such investigation.

Headnote:Criminal Procedure Code, 1973—Sections 190(1)(b) and 173(8) —Appellant complaining under Prevention of Corruption Act, 1988 corruption against Chief Commissioner of Income Tax—CBI organised a trap—Appellant says that two sons of the said Chief Commissioner collected the bulky cash offered to their father—On such a complaint CBI conducted investigation—After investigation CBI ordered prosecution of appellant for giving false information—However, the final report was not acceptable to Special Judge and he directed further investigation by an officer of DIG rank of the CBI —High Court reversed the said direction—Whether correct? (No)—Whether direction needs deletion of mention of any Special Officer for further investigation ? (Yes)—Appeal allowed accordingly—Case law discussed.
       Held : The real question is not whether the conclusion reached by the CBI had been subjected to verification or supervision at different departmental level. Nor even whether the conclusion is correct. When the final report is laid after conclusion of the investigation the Court has the power to consider the same and issue notice to the complainant to be heard in case the conclusions in the final report are not in concurrence with the allegations made by them. Though the investigation was conducted by the CBI the provisions under Chapter XII of the Code would apply to such investigation. The police referred to in the Chapter, for the purpose of investigation, would apply to the officer/officers of the Delhi Police Establishment Act. On completion of the investigation the report has to be filed by the CBI in the manner provided in Section 173(2) of the Code, with the exception that the magistrate referred to in the section would be understood as a Special Judge when the offence involved are under the Prevention of Corruption Act, 1988. (Para 13)
       Held (Referring to Section 173(8) Cr.P.C.) : Although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the Court. When any such order is passed by a court which has the jurisdiction to do so it would not be a proper exercise of revisional powers to interfere therewith because the further investigation would only be for the ends of justice. After the further investigation, the authority conducting such investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back to that track. If they come to the same conclusion it is of added advantage to the persons against whom the allegations were made, and if the allegations are found false again the complainant would be in trouble. So from any point of view the Special Judge’s direction would be of advantage for the ends of justice. It is too premature for the High Court to predict that the investigating officer would not be able to collect any further material at all. That is an area which should have been left to the investigating officer to survey and recheck. (Para 16)
       Held (After reviewing case law) : When the Special Judge has opted to order for a further investigation the High Court should have stated to the CBI to comply with that direction. Nonetheless, we are in agreement with the observation of the learned Single Judge of the High Court that the Special Judge or the magistrate could not direct that a particular police officer or even an officer of a particular rank should conduct such further investigation. It is not within the province of the magistrate while exercising the power under Section 173(8) to specify any particular officer to conduct such investigation, not even to suggest the rank of the officer who should conduct such investigation. In the result, we allow this appeal and set aside the judgment under challenge. However, while restoring the order of the Special Judge we make it clear that the direction made by the Special Judge that further investigation shall be conducted by an officer of the DIG rank of the CBI, will stand deleted. We make it abundantly clear that we have not considered the merits of the allegations made against the respondent or the conclusions reached by the CBI in the report already laid before a Special Judge. Hence, further investigation as ordered by the Special Judge can be conducted untrammelled by any of the observations made by the Special Judge or by us. (Paras 20 and 21)

Judgment

Thomas, J.—Leave granted.

2. A complainant, after investigation, was transposed as an accused. Such a prodigy happened in this case. A trap to catch a big fish (Chief Commissioner of Income Tax) was orchestrated by the Central Bureau of Investigation (‘the CBI’ for short) with a bewitching bait, but still he did not bite it. But the appellant says that two sons of the said Chief Commissioner collected the bulky cash offered to their father. On such a complaint the CBI conducted investigation. After the investigation the CBI turned against the complainant/appellant and ordered him to be prosecuted for giving false information with intent to cause the public servant use his lawful power to the detriment of the public. However, the final report laid by the CBI was not acceptable to the Special Judge and he directed further investigation into the matter but the High Court reversed the said direction by the impugned order.

3. Appellant styles himself as a disciple of one Swami Rama, a non-resident Indian, who founded a Trust by name “Himalayan Institute of Medical Sciences” at Dehra Dun with high profile public personage shown as its patrons. The Trust had a lot of income tax problems. Appellant felt that the then Commissioner of Income Tax, Meerut, was troubling the Trust and its founder with notices frequently issued. It was in the said context that they approached B.P. Gupta, Chief Commissioner of Income Tax, Kanpur (the third respondent) for redressal of their grievances.

4. Appellant claims to have forwarded a complaint to the DIG of CBI, New Delhi on 6.3.1996, complaining that at the behest of Respondent No. 3 the Trust people including the appellant contacted Janardhan Gupta (the son of the third respondent) who demanded Rs. 20 lacs to be paid to his father as bribe and after a lot of haggling, the amount was reduced to Rs.10 lacs and that the amount should be paid to the third respondent within two days.

5. What happened thereafter, according to the version of the appellant, can be summarised as follows:

On 8.3.1996, CBI made all preparations for a trap. The team of CBI officers reached the house of one Roshan Lal who was the treasurer of the Trust and waited for the opportune time to hand over the bribe amount to the third respondent. A micro-cassette supplied by the CBI to the appellant with which he recorded the conversation between the appellant and Janardhan Gupta (the fourth respondent) and his father (the third respondent). At the pre-arranged time a bag containing the cash was handed over to Sudhanshu Gupta, another son of the third respondent, (he is fifth respondent in this appeal) at his residence in the presence of the fourth respondent. The signal was then transmitted to the CBI officers who made a swoop and surrounded the house and caught the fifth respondent. The bag containing the cash was recovered from below the bed of the house of the third respondent. The investigation thereupon was commenced by the CBI.

6. When the investigation concluded the CBI filed its final report before the Special Judge, Anti Corruption (Central) Lucknow. In the final report the case was given a totally reverse picture. The CBI exonerated the third, fourth and the fifth respondents in full measure and wanted the court to initiate prosecution proceedings against the appellant for the offence under Sections 182 and 211 of the Indian Penal Code. The CBI took the stand in strident tone that the complaint made by the appellant is not only false but it was aimed at deterring the Income Tax officials from discharging their functions fearlessly. It was a calculated move to forestall the strong measures devised against Swami Rama and the Trust founded by him, according to the CBI.

7. The Special Judge on receipt of the aforesaid final report issued notice to the appellant and after hearing him ordered the CBI to re-investigate the matter. The operative part of that order is extracted below:

“Under th

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Important PointThough it is within the province of Special Judge to order further investigation u/s. 173(8) of Cr. P.C. 1973 but he cannot specify any particular officer to conduct such investigation.

Cases Referred (3)

Important Point
Though it is within the province of Special Judge to order further investigation u/s. 173(8) of Cr. P.C. 1973 but he cannot specify any particular officer to conduct such investigation.