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2023 Supreme(Ker) 46
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
M.M. Abdul Azeez, S/o. Muhammed, Mannappilly – Appellant
Versus
State of Kerala – Respondent
Crl.MC No. 407 of 2023
Decided on : 17-01-2023
Advocate Appeared:
For the Appellant : SRI.K.K.DHEERENDRAKRISHNAN, SMT.N.P.ASHA
For the Respondent: SRI.RAJESH A,SPL.GP VIGILANCE, SMT.REKHA, GP
Point of Law: Time limit stipulated by the Special Judge is not binding on the investigating agency.
Headnote:
Prevention of Corruption Act, 1988 - Section 19 – Criminal procedure code, 1973 - Section 173 - Penal Code,1860 - Sections 465, 471 & 120-B – Investigation –Further investigation - Special Judge, while ordering further investigation, is not empowered to direct the investigating agency to obtain sanction under Section 19 of the Act, 1988 to prosecute accused. (Para 10, 11)
Finding of the Court : It is the statutory duty and responsibility of the investigating agency to fully investigate the matter and then submit a report to Court concerned, either finding the allegation substantiated or finding no material to support the allegation - It is not within the competence of the Court concerned to issue a direction that the case should not only be investigated, but also a report to the effect that the allegations have been supported by the material collected be submitted - investigating agency is at liberty to take all steps to conclude the investigation and submit its report as per law.
Result: Crl.M.C. is allowed
ORDER :
Can a Special Judge exercising jurisdiction under the Prevention of Corruption Act, 1988, direct the investigating agency to obtain sanction under Section 19 to prosecute the accused while ordering further investigation under Section 173 Cr.P.C? This is the issue that arises for consideration in this petition filed under Section 482 of the Code.
2. The petitioners are arrayed as accused Nos. 1 to 3 in VC-16/2016/EKM registered by the Ernakulam Unit of the Vigilance and Anti-Corruption Bureau, alleging offences punishable under Sections 465, 471 & 120-B of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 [for short ‘the Act, 1988’].
3. The prosecution case is that accused No.4 conspired with the petitioners and obtained a bogus location sketch from Arakkapady Village Office and a building permit from the local authority.
4. The Vigilance and Anti-Corruption Bureau (the VACB) investigated the matter and submitted final report before the Court of the Special Judge finding no material to support the allegations in the First Information Report.
5. After considering the report submitted by the VACB, the Special Judge passed the following order
“Hence the final report is returned to the investigating officer to conduct further investigation as well as to obtain sanction under Section 19 of P.C. Act to prosecute A1 to A3. Further final report shall be submitted before this Court within three months”
6. Heard Sri.K.K.Dheerendrakrishanan, the learned counsel for the petitioners, and Sri.Rajesh A., the learned Special Government Pleader.
7. The learned counsel for the petitioners submitted that the impugned order is a positive direction to submit a charge sheet against the petitioners. The learned counsel contended that the direction to obtain sanction under Section 19 of the Act,1988, in the impugned order indicates that the Special Judge, in fact directed the investigating agency to submit a positive report against the petitioners.
8. The learned counsel for the petitioners relying on Bhagwant Singh v. Commissioner of Police [(1985) 2 SCC 537] and M.C.Abraham and another v. State of Maharashtra and Others [(2003) 2 SCC 649], contended that it is for the investigating agency to submit a report to the Court concerned after a full and complete investigation and the Special Judge cannot direct the investigating agency to submit a report in accordance with his view.
9. When the report forwarded by the officer in charge of a police station to the Magistrate under sub-section (2)(i) of S.173 Cr.P.C. comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons, and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S.156 and require the police to make a further report. The report may, on the other hand, state that, in the opinion of the police, no offence appears to have been committed, and where such a report has been made, the Magistrate again has the option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of S.156. [Vide: Bhagwant Singh v. Commissioner of Police [1985 (2) SCC 537].
10. It is the statutory duty and responsibility of the investigating agency to fully investigate the matter and then submit a report to the Court concerned, either finding the allegation substantiated or finding no material to support the allegation. It is not within the comp
