The distinction between 'further investigation' and 're-investigation' is critical; only higher courts can authorize re-investigation, while magistrates can direct further investigations within defined legal parameters.

JUDGMENT :

1. The instant writ petition has been filed on behalf of the petitioners under Section 482 of the Code of Criminal Procedure, 1973 praying for the following reliefs:-

(a) Quashing of order dated 30.01.2023, as passed by Ld. Special Judge Anti-corruption, Doda in File No.01/2022, whereby Ld. Court has declined to accept the closure report filed by the respondent in FIR No. 07/2013 and ordered further investigation;

(b) Quashing of FIR No.07/2013 registered against the petitioners under sections 5(1)(d) r/w 5(2) of J&K Prevention of Corruption Act, 2006 and 120-B RPC;

(c) Quashing of order dated 31.12.2018, as passed by Ld. Special Judge Anti-corruption, Doda in File No.04/Ikhtami, whereby Ld. Court has declined to accept the closure report filed by respondent in FIR No.07/2013 and ordered re-investigation;

2. With a view to appreciate the controversy involved in the instant petition, it would be appropriate to give factual background of the instant case.

BRIEF FACTS OF THE CASE:

3. Briefly put, the facts of the present case are that the Police Station, Vigilance Organization, Jammu registered FIR No. 07/2013 against the petitioners U/S 5(1) (d) r/w 5(2) J&K Prevention of Corruption Act, 2006, 120-B RANBIR PENAL CODE , for misappropriation of funds by dishonest and fraudulent means. The allegations which had resulted in the registration of FIR related to items that resulted in an enquiry by the department are under the following major heads: -

A. Construction of pond at Sheel

B. Construction of work at the graveyard, Dungram

C. Construction of Pacca Path near the house of Chandrakant and Mir Hussain Shiva Proper.

4. The allegations pertain to the fraudulent withdrawal of funds by officers of the Rural Development Department, Block Ghat, Doda, which revealed that during the years 2009–10 and 2010–11, the then Block Development Officers namely Abdul Karim Tantray and Akthar Hussain Qazi, Executive Engineer REW Doda, namely, Kewal Krishan Gorkha, Assistant Executive Engineer, namely, Manzoor Ahmed Mir, Junior Engineers, namely, Surinder Manhas, Mukesh Sharma, Musrat Parvaiz Naik and some village level workers hatched a criminal conspiracy and in pursuance thereof, withdrew an amount of Rs.3,93,209 (Rupees Three Lac Ninety-Three Thousand Two Hundred and Nine) against three non-existent works to be executed in Panchayat Hanch, Seel, and Shiva of Block Ghat and misappropriated the same dishonestly and fraudulently, thereby, causing a loss to the state exchequer.

ARGUMENTS ON BEHALF OF THE PETITIONERS: -

5. Mr. P.N. Raina, learned Senior Counsel, along with Mr. J.A. Hamal, Advocate submitted that insofar as the order dated 31/12/2018 is concerned, whereby, the Special Judge, Anti-Corruption, Doda declined to accept the closure report filed by the respondent in FIR No. 07/2013 and ordered reinvestigation, is illegal, unfair, without jurisdiction and an abuse of the power of investigation as well as the power of the Hon’ble Court. He submits that the Magistrate has no power to direct fresh/de-novo/re-investigation after the filing of the closure report. In his submission, this power is only available to the higher judiciary that is the High Court and the Supreme Court alone. In support of his submission, he relies on the judgment of the Hon’ble Supreme Court of India in a case titled “Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762”. Consequently, the learned counsel submits that the order dated 31/12/2018, which ordered reinvestigation by the Vigilance Organization Jammu was clearly without jurisdiction and against the process of law.

6. The learned Counsel for the petitioners further submits