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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1842 OF 2013

Ashok Kumar Aggarwal

…Appellant

Versus

Union of India & Ors.

..Respondents

J U D G M E N T

Dr. B.S. Chauhan, J.

1.

This appeal has been preferred against the impugned judgment

and final order dated 16.4.2010 passed by the High Court of Delhi at

New Delhi in Criminal Miscellaneous Application No. 3314 of 2006

in Writ Petition (Crl.) No. 938 of 2001, by which the application filed

by the appellant to proceed against respondent no. 5 under Section

340 read with Section 195(1)(b) of the Code of Criminal Procedure,

1973 (hereinafter referred to as `Cr.P.C.’) has been dismissed.

2.

Facts and circumstances giving rise to this appeal are that:

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A.

The appellant had filed Writ Petition (Criminal) No. 938 of

2001 before the High Court of Delhi seeking transfer of investigation

from respondent nos. 3, 4 and 5 to any other senior officer of Central

Bureau of Investigation (hereinafter to referred as `CBI’), as the said

respondents had been abusing their investigating powers and adopted

unfair and improper means in RC No. S19/E0006/99 dated 7.12.1999.

B.

The court made order dated 4.4.2002, on the submission of

counsel for the respondent No. 5 that the investigation report had been

finalised in the said RC case and no further investigation was required

to be done, directed the competent authority of the CBI to file an

affidavit in this regard by 5^th April, 2002.

C.

An affidavit was filed by respondent No. 5 on 5.4.2002, being

investigating officer, wherein it had been stated that the investigation

was complete and that no further investigation was required to be

done and a final report Part-1 (FR-1) was submitted by him on

11.1.2002 to the Superintendent of Police (in short `SP’).

D.

However, coming to know that certain witnesses had been

examined by the CBI subsequent thereto, the appellant preferred an

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application under Section 340 r/w 195(1)(b) Cr.P.C., which has been

dismissed by the High Court vide impugned judgment and order.

Hence, this appeal.

3.

Shri Ram Jethmalani, learned senior counsel appearing on

behalf of the appellant, has submitted that not only a statement was

made, but even an affidavit had been filed by respondent no. 5 before

the High Court that the investigation was complete and an

investigative report had been finalised by him and no further

investigation was required. Therefore, if further witnesses had been

examined and certain evidence had been collected, it is evident that

the statement so given and affidavit filed by respondent no. 5 was just

to mislead the court and therefore, the court ought to have proceeded

against him allowing the application filed by the appellant.

4.

Per contra, Shri Ranjit Kumar, learned senior counsel appearing

on behalf of the respondent No.5 and Ms. Indira Jaising, learned ASG

for respondent no. 1 and 2, have vehemently opposed this appeal

contending that the submission made before the court and affidavit

filed by respondent no.5 that investigation stood concluded, was

factually correct. However, as per the procedure prescribed under the

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CBI manual, the investigation report submitted by the I.O. goes to the

superior officers for their comments, approval and directions, and

ultimately, it goes to the Director of the CBI. In case the superior

authorities have some query in respect of any matter in that report of

the investigating officer, they are competent to issue directions to

examine a particular witness on a particular point. The investigating

officer is bound to do so in order to tie the loose ends of investigation.

Such examination of witness or further investigation does not amount

to the statement made by the I.O. in the affidavit before the court

being