The duty of the Magistrate to consider all materials collected during the investigation before ordering further investigation.

ORDER :

The petitioner is the sole accused in the case registered as VC No.12/2016/SCE by the Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Special Cell, Ernakulam under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act').

2. The petitioner is serving as a Deputy Superintendent of Police. The case against the petitioner, for amassment of wealth disproportionate to his income, was registered after conducting confidential enquiry. The allegation in Annexure-III F.I.R is that, during the period from September, 2005 to April, 2014, he acquired properties disproportionate to his known sources of income.

3. The investigation of the case was conducted by the Deputy Superintendent of Police, VACB, Special Cell, Ernakulam. After completing investigation, he filed Annexure-I final report (refer report) in the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha as “further action dropped”. The reason for filing such report was that amassment of wealth by the petitioner disproportionate to his income was found to be only 5.76% and it was negligible.

4. The learned Special Judge considered Annexure-1 final report and found that there were material discrepancies in that report and a detailed investigation was required. The learned Special Judge found that the conclusion of the investigating officer that disproportionate assets were only of 5.76% cannot be accepted. As per Annexure-II order, the learned Special Judge returned the final report for conducting proper investigation as regards the matters specified in that order.

5. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-II order.

6. Heard learned counsel for the petitioner and also the learned Public Prosecutor.

7. Learned counsel for the petitioner submitted that the court below passed Annexure-II order without considering the materials collected by the investigating officer during the investigation and therefore, it is not sustainable under law.

8. The operative portion of the impugned order passed by the learned Special Judge reads as follows:

“On consideration of the final report, it is seen that as regards many of the points mentioned above, the Investigating Officer has acted upon only oral evidence rather than searching for documents. Considering the huge amount of money involved, I think that a detailed investigation is required, and that the finding of the Investigating Officer that there is only DA of 5.76% cannot be accepted. So, the final report is returned for conducting proper investigation as regards the matters mentioned above and to file final report before the court.”

9. Learned Special Judge has noted the following matters in Annexure-II order:

(1) No documentary evidence is produced to show that the accused had 77 sovereigns of gold ornaments at the beginning of the check period.

(2) Rs.43,73,186/- is taken as gift received from the relatives of the accused and it is taken as the income of the accused during the check period. But, there are no materials to show that the aforesaid income was reported to any authority. Therefore, the aforesaid amount cannot be considered as the income of the accused from known sources.

(3) An amount of Rs.1,95,000/-is taken as income from sale of old household articles. This amount is also not reported to any authority. Therefore, it cannot also be considered as the income of the accused from known sources.

(4) The income from other sources is shown as Rs.26,40,379/-. Out of this amount, Rs.18,76,075.61/-is covered by sale proceeds of the shares held by the mother and wife of the accused. There is no explanation regarding the balance amount.

(5) There is no enquiry conducted as to the undervaluation of some of the immovable properties.

10. The grievance of the petitioner is that, the learned Special Judge made the above findings, without considering the documents and othe