Dismissed

G S Makkar v. Cbi, Chd & Anr.

Punjab & Haryana HC8 Apr 2013CRM-M/10657/2012

Case brief

AI extract

What is this about?

The High Court held that a fresh re-investigation cannot be ordered under Section 173 CrPC but 'further investigation' is permissible. The Court upheld the Special Judge's order dismissing the closure report, interpreting 're-investigation' as 'further investigation'.

What did the court decide?

The impugned order upholding the challan report is upheld with the modification that the term 're-investigation' be read as 'further investigation'.

G S Makkar Vs Cbi, Chd & Anr. — Cheque Dishonour | Punjab & Haryana HC (2013)

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Crl. Misc. No.M-10657 of 2012 (O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl. Misc. No.M-10657 of 2012 (O & M) Date of Decision: April 08, 2013

G.S.Makkar

... Petitioner

Versus

C.B.I through its Director, Zonal Office, Sector 30, Chandigarh and another

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... Respondents

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CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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Whether Reporters of the local papers may be allowed to see the judgment ?.

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To be referred to the Reporters or not ?.

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Whether the judgment should be reported in the Digest ?

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Present: Mr. A.K.Sharma, Nabhewala, Advocate, for the petitioner.

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Mr. S.S.Sandhu, Advocate, for respondent no.1.

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Mr. I.P.Singh, Advocate, for respondent no.2.

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Paramjeet Singh, J.

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Instant petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as “the Code.” in short) for quashing of FIR No.RCCHG2004A0028 dated 24.11.2004, registered at

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Crl. Misc. No.M-10657 of 2012 (O & M)

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Police Station Central Bureau of Investigation (hereinafter referred to as “CBI” in short), Chandigarh, under Sections 120-B/420/467/468/471 of Indian Penal Code read with Sections 13 (2) and 13 (1) (d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC, Act”) (Annexure P-2) and order dated 15.09.2007 (Annexure P-6) whereby the learned Special Judge, CBI, Punjab, Patiala rejected the cancellation report and ordered re-investigation.

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The brief facts of the present petition are that the petitioner joined Punjab and Sind Bank on 28.10.1976 as an officer and claims that throughout his service career, his record is unblemished. The petitioner at the relevant point of time was posted as Branch Manager w.e.f 09.09.1995 to 30.06.1999 at Master Tara Singh Memorial College for Women, Branch Ludhiana and thereafter from 01.07.1999 to 29.01.2001 at Sherpur Branch at Ludhiana and w.e.f 31.01.2001 to 31.01.2004 at Jagraon Branch. During this period, respondent no.2 bank alleged a fraud of Rs.88,54,744/against the petitioner in the three branches at Ludhiana, Jagroan, Sherpur and MTSN College Branch. Respondent no.2 vide letter dated 23.11.2004 on the allegations of illegalities/irregularities alleged to have been committed by the petitioner, sent a complaint to the SSP, CBI, Sector 30, Chandigarh and on the basis of same, aforesaid FIR was registered. It is further averred that having thoroughly investigated the matter, vide Annexure P-5, the closure report was submitted by the CBI for acceptance by the Special Judge, CBI, Punjab, Patiala. Learned Special Judge vide

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Crl. Misc. No.M-10657 of 2012 (O & M)

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impugned order dated 15.09.2007 (Annexure P-6) after considering the evidence on record referred the matter back for “re-investigation” by associating the complainant and collective the evidence pointed out by the complainant and further investigating officer was directed to place all the relevant papers/record before the competent authority to enable it to apply its mind and then to consider the aspect of grant of sanction for prosecution of the petitioner under Section 19 of the PC Act. In pursuance to the said order dated 15.09.2007, the authorities have further investigated the matter and collected some evidence against the petitioner. Thereafter, final report (Annexure P-7) has been submitted. From the perusal of final report, offence under Sections 420/467/468/471 of the IPC and Section 13 (2) read with Section 13(1) (d) of the PC, Act, 1988 are alleged to have been made out and for that reason, the report has been submitted before the learned Special Court.

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In pursuance to the notice of motion, respondents have appeared through their respective counsel and filed their separate replies.

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I have heard learned counsel for the parties and perused the record meticulously.

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On perusal of the facts of the case, the short question that arises for consideration is whether the Special Court is bound to accept the closure report submitted by the investigating agency or in the alternative, it can order further investigation in the case.

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Learned counsel for the petitioner vehemently contended that

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Crl. Misc. No.M-10657 of 2012 (O & M)

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re-investigation could not be ordered in view of settled position of law. The learned counsel relied upon the judgment of the Hon'ble Apex Court rendered in Ramachandran vs. R. Udayakumar AIR 2008 Supreme Court 3102. The learned counsel further contended that earlier report submitted by investigating agency could be ignored by the trial Court.

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On the other hand, the learned counsel for respondents while opposing the contentions of learned counsel for the petitioner contended that word “re-investigation” mentioned by the learned Special Court, CBI, Punjab, Patiala is in fact a misnomer. It is actually “further investigation”. The learned counsel further contended that “re-investigation” and “further investigation” are sometimes mistaken by the Courts and made reference to Section 173 of the Code.

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I have considered the rival contentions of learned counsel for the parties.

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Perusal of Section 173 of the Code reveals that even after the completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but fresh investigation or re-investigation cannot be ordered. This fact has been settled by the catena of judgments of this Court as well as Hon'ble Apex Court.

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The Hon'ble Apex Court in Ramachandran (supra) has concluded as under:

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“6. At this juncture it would be necessary to take note of

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Crl. Misc. No.M-10657 of 2012 (O & M)

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Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and Ors. (1998 (5) SCC 223). It was, inter alia, observed as follows:

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"24. The dictionary meaning of "further" (when

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used as an adjective) is "additional; more; supplemental". "Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports -- and not fresh report or reports -- regarding the "further" evidence obtained during such investigation." 7. In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct

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Crl. Misc. No.M-10657 of 2012 (O & M)

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that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by the CB (CID) as directed by the High Court.

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Keeping in view the settled position of law laid down by the Hon'ble Apex Court, this Court is of the view that the word “reinvestigation” shall be read as “further investigation” in the impugned order dated 15.09.2007 (Annexure P-6) passed by learned Special Judge, CBI, Punjab, Patiala, as the essence of the order was to join the complainant in investigation and collect further evidence. It is pertinent to mention here that in pursuance to the order dated 15.09.2007, the CBI authorities have not re-investigated the case, rather have further investigated the case and collected evidence which formed part of the evidence on the basis of which challan has been presented.

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It would be appropriate to mention here that the order with regard to non-acceptance of the closure report was passed by the learned Special Judge, CBI, Punjab, Patiala on 15.09.2007 and thereafter, the CBI authorities had conducted further investigation and submitted the challan report (Annexure P-7). It is, at this stage, that the petitioner is challenging the order dated 15.09.2007 i.e. after delay of more than five years when further investigation has been carried out and challan has been presented. Silence of the petitioner for five years is indicative of the fact that petitioner accepted the impugned order dated 15.09.2007.

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Crl. Misc. No.M-10657 of 2012 (O & M)

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In view of this, the order dated 15.09.2007 (Annexure P-6) is absolutely right except in so far as word “re-investigation” shall be read as “further investigation”.

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The order dated 15.09.2007 (Annexure P-6) is, therefore, upheld with the modification that the word “re-investigation” should be read as “further investigation” and the petitioner will be at liberty to raise objections with regard to the evidence collected by the CBI in further investigation.

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Disposed of.

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April 08, 2013 parveen kumar

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[ Paramjeet Singh ] Judge

G S Makkar v. Cbi, Chd & Anr.

Case brief

What is this about?

What did the court decide?

G S Makkar v. Cbi, Chd & Anr.

Case brief

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What did the court decide?

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