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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No.395 of 2008 With Cr. M.P. No. 547 of 2010
1. Shyam Sunder Singh, son of Late Bhuvneshwar Prasad Singh, resident of Ashok Nagar, Road No. 3, P.O.- Doranda, P.S.- Argora, District- Ranchi
2. Shiv Chandra Prasad, son of late Mahabir Roy, resident of Lalpur, P.O. & P.S.- Lalpur, District- Ranchi …... Petitioners Versus
1. The State of Jharkhand
2. Deputy Superintendent of Police (Vigilance) Ranchi, P.O. & P.S.- Gonda, District- Ranchi ….. Opposite Parties
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For the Petitioners : Mr. A.K. Sahani, Advocate For the State : Ms. Priya Shrestha, Spl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:-
Heard the parties through Video Conferencing.
2. Learned counsel for the petitioners submits that so far as the Cr.M.P. No. 395 of 2008 is concerned, in view of the subsequent development in the case, and challenges made in Cr.M.P. No. 547 of 2010 by same petitioners in respect of the same case, the prayer made in Cr.M.P. No. 395 of 2008 has become infructuous. In view of the submission made by the learned counsel for the petitioner, Criminal Miscellaneous Petition No. 395 of 2008 is dismissed as infructuous.
3. So far as Cr.M.P. No. 547 of 2010 is concerned, it is submitted by learned counsel for the petitioners that originally the criminal miscellaneous petition was filed with the prayer to quash the order dated 18.12.2009 passed by learned Special Judge, Vigilance, Ranchi in Special Case No. 6A of 1999 arising out of Vigilance P.S. case no. 29 of 1999 whereby and whereunder, even after acceptance of the final form, learned Special Judge ordered for further investigation in the case. It is next submitted by learned counsel for the petitioners that during pendency of the case, charge sheet was submitted and Sanction for prosecution, which earlier was refused by the competent authority, has subsequently been granted hence, vide order dated 31.08.2018 in this Cr.M.P. No. 547 of 2010, the petitioners were permitted to make additional prayer for quashing the sanction order dated 02.06.2010 as well as the charge sheet dated 31.12.2013 and during the pendency of this case, the cognizance has also been taken by learned Special Judge, Vigilance, Ranchi and vide order dated 10.12.2021, this court allowed IA no. 5435 of 2021, which was filed with a prayer to allow the prayer of the petitioners to incorporate the additional prayer of quashing the order taking cognizance dated 01.02.2021 passed by learned Special Judge, Vigilance (Special), Ranchi in Special Case No. 06(A) of 1999 as well as directing issuance of summons to the petitioners under Section 204 of Cr.P.C.
4. The brief facts of this case is that the petitioner no.
1 being the Executive Engineer and the petitioner no. 2 being the Assistant Engineer of the Department of Road Construction, Jharkhand, Ranchi along with the co-accused persons, hatched up a criminal conspiracy and committed criminal misconduct by misusing their official position, got the joint office building of Mines and Minerals Department, Doranda, Ranchi constructed by using sub-standard materials and as a result of which, the roof of the said building collapsed and there is further allegation against the petitioners that the petitioners prepared forged documents and they were involved in embezzlement of huge amount of government money and cheating also; for their wrongful gain as well as for wrongful gain of the co-accused persons and corresponding wrongful loss to the State Exchequer.
5. It is submitted by learned counsel for the petitioners that after investigation of the case, these two petitioners were not sent up for trial due to lack of sanction order for their prosecution, as the same was refused by the competent authority and the said final form was accepted vide
order
dated 20.01.2009 but subsequently, the Investigating Officer of the case, made a prayer before learned Special Judge that sufficient evidence against four accused persons are available, hence further investigation of the case under Section 173 (8) of the Code of Criminal Procedure be permitted and vide order dated 18.12.2009, learned Special Judge, Vigilance, Ranchi allowed the prayer for further investigation. It is further submitted by learned counsel for the petitioners that there was no justifiable reason for further investigation of the case as earlier also, the investigation was going on for a period, not less than eight years and learned Special Judge, Vigilance, Ranchi has allowed the prayer for further investigation arbitrarily, in a routine manner and the same amounts to recalling or reviewing of the order dated 20.01.2009 passed by the predecessor Special Judge, Vigilance, Ranchi who accepted the final form submitted by the Investigating Officer. It is further submitted by learned counsel for the petitioners that when the competent authority refused to grant the sanction for prosecution of the petitioners, there was no justification on the part of learned Special Judge, Vigilance, Ranchi to order for further investigation of the case.
6. In support of his contention, learned counsel for the petitioners relies upon the judgment of Hon’ble Supreme Court of India in the case of Vinubhai Haribhai Malaviya and Ors. Versus The State of Gujarat and Anr. reported in Criminal Appeal Nos. 478-479 of 2017 dated 16.10.2019 , the paragraph 9, 21, 28 and 43 of which reads as under : -
“ 9. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding.
21. What is recognised by this decision is that in the circumstance that the Magistrate does not agree with the police report, he may order further investigation - which is done in his capacity as a supervisory authority in relation to investigation carried out by the police.
28. In Union Public Service Commission v. S. Papaiah
(1997) 7 SCC 614, this Court dealt with a case in which the Central Bureau of Investigation (hereinafter referred to as the
“CBI”) had submitted a closure report. It then quoted from a Three Judge Bench judgment in Bhagwant Singh v. Commissioner of Police and Anr. (1985) 2 SCC 357, in which this Court stated that a Magistrate, in dealing with a report from the police under Section 173, can adopt one of three courses - (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The Court then went on to hold that where objections have been furnished by the complainant, i.e. the Union Public Service Commission, against the closure report of the police, the Magistrate could, in exercise of powers under Section 173(8) of the CrPC, direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the complainant (see paragraph 13 therein).
43 . We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation. However, given that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22.12.2009, we uphold the impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated 10.01.2012 which had ordered further investigation, and also the consequential order setting aside the two additional interim reports of
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