This short order dismisses a review and recall application challenging an earlier High Court order directing CBI investigation. The single judge holds no error appears on the face of the record and bars rehearing the case under review rules.
Review and recall application under MCC no. 764 of 2014 dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Recall Application MCC no. 764 / 2014 In
Criminal Writ Petition No. 182 of 2013
South Indian Bank Ltd. ……. Petitioner
versus
State of Uttarakhand & others ……. Respondents
Mr. P.I Jose and Mr. Lok Pal Singh, Advocates for the petitioner. Mr. Raman Kumar Shah, Dy. Advocate General with Mr. H.S. Rawal, A.G.A. for the respondent State.
Mr. Rakesh Thapliyal, Advocate for respondent no. 5 / review applicant.
U.C. Dhyani, J.(Oral)
A recall application MCC no. 764 of 2014 has been filed on behalf of respondent no. 5 for recalling the judgment and order dated 11.09.2014. The same is supported by the affidavit of respondent no. 5.
2) Heard learned counsel for the parties at length.
“The investigation pertaining to FIR no. 389 of 2012, lodged at police station, Kotwali, Dehradun is, therefore, handed over to CBI to ensure fair, impartial and thorough investigation. Needless to say that if the Bank Officers / officials are also found guilty, during the
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course of investigation, CBI will be at liberty to proceed against them in accordance with law.”
“70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it
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difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”
“Leave granted. The following two important questions of law which are likely to arise more often than not before the courts of competent jurisdiction fall for consideration of this Court in the present appeal:
Question 1
1.1 Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short “the Code”), the trial court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect?
Question 2
1.2. Whether the Central Bureau of Investigation (for short “CBI”) is empowered to conduct “fresh” / “reinvestigation” when the cognizance has already been taken by the court of competent jurisdiction on the basis of a police report under Section 173 of the Code?”
“20. Having noticed the provisions and relevant part of the scheme of the Code, now we must examine the powers of the court to direct investigation. Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the court can direct investigation in accordance with the provisions of Section 156(1) in exercise of its powers under Section 156(3) of the Code. Investigation can be of the following kinds:
(i) Initial investigation,
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(ii) Further investigation, (iii) Fresh or de novo or reinvestigation.
“23. However, in the case of a “fresh investigation”, “reinvestigation” or “de novo investigation” there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct “fresh investigation”. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of “fresh” / “de novo” investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a “fresh investigation.
……………………………………….”
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30.08.2013, passed by co-ordinate Bench of this Court, which was purportedly a ‘consent order’ and was passed with the consent of both the parties and has, therefore, not been challenged.
(U.C. Dhyani, J.)
Dt. April 09, 2015.
Negi
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2 issues framed by the court
Whether a review or recall application can be maintained when there is no error apparent on the face of record?
Whether a party is permitted to reargue the merits of the original case through a review application?
Colour shows how this judgement treated each authority
State of West Bengal and others vs Committee for protection of Democratic RightsRelied on¶17
State of West Bengal and others vs Committee for protection of Democratic Rights, West Bengal and others (2010) 3 SCC 573
Vinay Tyagi vs Irshad Ali alias Deepak and othersRelied on¶21
Vinay Tyagi vs Irshad Ali alias Deepak and others (2013) 5 SCC 762 · Who else cites this
4 provisions across 3 enactments
South Indian Bank Ltd.
State of Uttarakhand
U.C. Dhyani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
