Uday Raj Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 27961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Neutral Citation No. - 2023:AHC:195947
 
Reserved on 06.10.2023
 
Delivered on 11.10.2023
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 26737 of 2023
 
Applicant :- Uday Raj Singh
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Jagannath Singh,Shree Prakash Giri
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. This application under section 482 CrPC has been filed for quashing of the impugned dated 03.02.2023 passed by Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), Court No. 2, Varanasi in final report No. 61/2021, (Ram Kumar Srivastava v. Udairaj Singh), arising out of Case Crime No. 0636 of 2017, under Sections 13(1-e) read with Section 13(2) of the Prevention of Corruption Act, Police Station George Town, District Allahabad.

2. Heard learned counsel for the applicant and learned AGA for the State.

3. It has been argued by learned counsel for the applicant that applicant was working in electricity department and he has retired as Engineer Grade-II. The first information report was lodged against the applicant making false and baseless allegations. The police conducted thorough investigation and considering the entire evidence, police have filed final report (closure report) with conclusion that no case is made out against the applicant. Learned counsel submitted that the trial court has rejected the said final report and made a direction for further investigation by impugned order dated 03.02.2023, which is against the facts and law. The trial court has no power to reject the said final report while making direction for further investigation. It is further submitted that no opportunity of hearing has been granted to the applicant before making direction for further investigation. On submission of final report, the trial court has option either to reject or to accept the same but while rejecting the final report, direction for further investigation cannot be made.

4. It is further submitted that matter has been thoroughly investigated by the police and no case is made out against the applicant. It was also pointed out that the court has mentioned certain specific point on which further investigation has to be conducted which is not against law. Referring to the facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside. It is also submitted that the impugned order amounts to fresh investigation, which is not permissible under the law. In support of his contentions, learned counsel for the applicant has placed reliance upon the cases of Abdul Rehman Antulay  v. R.S. Nayak & Anr., 1992 0 AIR (SC), State of Chhattisgarh  And Anr. v. Aman Kumar Singh And Ors., (2023) 6 SCC 559 and Vinay Tyagi v. Irshad Ali Alias Deepak And Ors., (2013) 5 SCC 762.

5. Learned AGA for the State has opposed the application and submitted that after investigation, police have submitted final report with conclusion that no case is made out against the applicant. It is further submitted that the trial court is empowered under law to disagree and reject the said final report and to make direction for further direction in the matter. At that stage there is no necessity to grant opportunity of hearing to the applicant/accused while making direction for further investigation. It is also submitted that so far neither cognizance has been taken nor applicant has been summoned and thus, he has no locus to challenge the impugned order. Referring to the facts of the matter, it was submitted that there is no illegality or perversity in the impugned order.

6. I have considered the rival submissions and perused the record.

7. In the case of Vinay Tyagi (supra), relied by learned counsel for the applicant, in para 45 and 46, the Hon'ble Apex Court has held as under:-

"45. The power to order/direct 'reinvestigation' or 'de novo' investigation falls in the domain of higher courts, that too in exceptional cases. If one examines the provisions of the Code, there is no specific provision for cancellation of the reports, except that the investigating agency can file a closure report (where according to the investigating agency, no offence is made out). Even such a report is subject to acceptance by the learned Magistrate who, in his wisdom, may or may not accept such a report. For valid reasons, the Court may, by declining to accept such a report, direct 'further investigation', or even on the basis of the record of the case and the documents annexed thereto, summon the accused.

46. The Code does not contain any provision which deals with the court competent to direct 'fresh investigation', the situation in which such investigation can be conducted, if at all, and finally the manner in which the report so obtained shall be dealt with. The superior courts can direct conduct of a 'fresh'/'de novo' investigation, but unless it specifically directs that the report already prepared or the investigation so far conducted will not form part of the record of the case, such report would be deemed to be part of the record. Once it is part of the record, the learned Magistrate has no jurisdiction to exclude the same from the record of the case. In other words, but for a specific order by the superior court, the reports, whether a primary report or a report upon 'further investigation' or a report upon 'fresh investigation', shall have to be construed and read conjointly. Where there is a specific order made by the court for reasons like the investigation being entirely unfair, tainted, undesirable or being based upon no truth, the court would have to specifically direct that the investigation or proceedings so conducted shall stand cancelled and will not form part of the record for consideration by the Court of competent jurisdiction."

8. In the case of State of Chhattisgarh And Anr. v. Aman Kumar Singh And Ors (supra), relied by learned counsel for the applicant, in para 51 and 52 while considering the ingredients of offence under Section 13(1) of P.C. Act, the Hon'ble Apex Court has held as under:-

"51. Insofar as the merits of the controversy is concerned, we must necessarily begin with a reading of the relevant provisions of the P.C. Act. "Public servant" is defined in section 2(c). It is not disputed that AS as well as YS is comprehended within such meaning. Section 13(1) of the P.C. Act defines "criminal misconduct". A public servant is said to commit the offence of criminal misconduct if (a) he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do, or (b) he intentionally enriches himself illicitly during the period of his office. Thus, intentional enrichment illicitly by a public servant during the period of his office is a criminal misconduct.

52. There are two explanations in section 13(1). The first explanation provides that a person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. The other explanation defines "known sources of income" to mean income received from any lawful sources. To attract this provision, the officer sought to be proceeded against must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income. If he is unable to satisfactorily account for the same, he shall be liable to be proceeded against for having committed criminal misconduct and suitably punished and fined if the charge is proved for such period, as provided in sub-section (2). Undoubtedly, this is a presumptive finding but that finding is based on three facts, viz. being a (i) public servant, (ii) if at any time during the period of his office, he has been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known sources of income, then (iii) he is enjoined to satisfactorily account for the same. The offence of criminal misconduct is committed by a public servant if (ii) is proved and (iii) does not happen. Therefore, if a prosecution is launched under sub-section (1) of section 13 of the P.C. Act and the allegation is proved at the trial, the concerned public servant is liable to punishment under sub-section (2) thereof."

9. In the case of Abdul Rehman Antulay (supra), relied by learned counsel for the applicant, in para 54, the Hon'ble Apex Court has held as under:-

"54. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :

1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.

3. The concerns underlying the Right to speedy trial from the point of view of the accused are :

(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non- availability of witnesses or otherwise.

4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex-parte representation.

5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.

6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is loo long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, 15 Law Edn. 2nd 627, in the following words :

"the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-constitutional deprivation of rights depends upon all the circumstances."

However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become prosecution, again depends upon the facts of a given case.

7. We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accussed's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non- asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.

8. Ultimately, the court has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case.

9. Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case.

10. It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A. too as repeatedly refused to fix any such outer time limit inspite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of Right to speedy trial.

11. An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."

10. In the instant matter, the issue is that after investigation, police have submitted final report under Section 173(2) Cr.P.C. (closure report) and the trial court did not agree with the said report and by observing that said report is liable to be rejected, made direction for further investigation by impugned order dated 03.02.2023. It is well settled that on submission of final report under Section 173(2) CrPC, the provisions of Section 190 CrPC provides three contingencies. If Magistrate, on the basis of a complaint of facts constituting offence, decides to take cognizance for issuing summon, the order would fall within the ambit of Section 190(1)(a) CrPC. If Magistrate decides to take cognizance on the basis of police report submitted under section 173 CrPC, the order of taking cognizance would fall under Section 190(1)(b) CrPC. If Magistrate decides to take cognizance upon information received from any person other than the police officer, or upon his own knowledge in regard to an offence committed, the Magistrate shall act in terms of Section 190(1)(c) CrPC.

11. The Hon'ble Apex Court in Minu Kumari & Ors Vs. State of Bihar 2006 (4) SCC 359 has observed that when the final report has been submitted before the Magistrate, he has four options:

''(i) After giving opportunity of being heard to the complainant and after applying mind to the material available in the case diary, accept final report and drop the proceeding.

(ii) After hearing the complainant and going through the record of the police report if satisfied that necessary ingredients of offence are made out on the basis of material collected during investigation the court may summon the accused straight way under Section 190(i)(b) CrPC.

(iii) He may treat the protest petition of the complainant as complaint and proceed to inquire in the light of Chapter XV of CrPC and if found that there are sufficient material to proceed against the accused persons may summon the accused under Section 204 CrPC and if not, may dismiss the complaint under Section 203 CrPC.

(iv) After considering the police report and material placed along with protest petition the Magistrate is of the view that further investigation is required in the matter, he may pass an order for further investigation in view of Section 173 (8) of CrPC.''

12. In Hemant Dhasmana v. CBI (2001) 7 SCC 536, it was observed that although the section 173 CrPC is not specific in respect of the Court's power to order further investigation, the power of the police to conduct further investigation can be set into motion upon the order of such a court. It was further observed that such order should not be interfered with even in the exercise of the revisional jurisdiction of a higher court.

13. The above two cases make it amply clear that a magistrate has the power to order further investigation. The above-referred case of Abdul Rehman Antulay (supra) deals with some fundamental questions regarding just, fair and speedy trial and also regarding the procedure of remand. The specific issue involved in the present case was not involved in that matter. In the case of Vinay Tyagi (supra), the issue was that after investigation, the police have submitted report under Section 173(2) Cr.P.C. and thereafter on further investigation closure report was submitted and it was held that such reports have to be construed conjointly. The law regarding 'further investigation' or de novo investigation'/'reinvestigation' was also considered in the judgment. In the case of State of Chhattisgarh And Anr. v. Aman Kumar Singh And Ors (supra), the ingredients of offence under Section 13(1) of P.C. Act have been considered. In the instant matter, it is apparent from perusal of record that after the police have submitted closure report, the trial court has made direction for further investigation. By no stretch of imagination, it could be said that the trial court has made direction for reinvestigation or de novo investigation. In the specific facts and circumstances of the matter, the case of applicant does not find any help from the aforesaid case laws, referred by learned counsel for the applicant. In fact, the legal position regarding the issue involved in this matter is covered by the Hon'ble Apex Court in above-referred case of Minu Kumari & Ors (supra). In the present case, it appears from impugned order that the trial court has assigned proper reasons and observed that the final report submitted by the police is liable to be rejected and thus, it disagreed with the final report and made direction for further investigation. In view of the facts of the matter, the contention of the learned counsel for the applicant that while rejecting the final report, the trial court has no power to make direction for further investigation, lacks any substance. Similarly the contention that before making direction of further investigation, the Trial court must have provided an opportunity of hearing to the applicant / accused, can also not be accepted. None of the case law, referred by the learned counsel, supports such proposition. Considering the fact that so far neither cognizance has been taken nor accused has been summoned, thus there was no legal requirement to provide opportunity of hearing to the applicant / accused. In view of attending facts and circumstances of the matter, the trial court was well within its rights while passing the order for further investigation. The prime consideration for further investigation is to arrive at the truth and to do real and substantial justice.

14. Further, as neither cognizance has been taken against the applicant/accused so far nor he has been summoned by the court so far thus, the applicant has even no locus at the stage to raise objection against the order of further investigation.

15. Considering the submissions of learned counsel for the parties, facts of the matter and also considering the position of law, it cannot be said that the impugned order is suffering from any such material illegality or perversity so as to require any interference by this Court by invoking jurisdiction under Section 482 CrPC. The application lacks merit and thus, liable to be dismissed.

16. The application under Section 482 CrPC is hereby dismissed.

Order Date :-11.10.2023

Anand