Jammu & Kashmir High Court - Srinagar Bench
Ghulam Hassan Sofi &Anr vs State Of Jk Through Vok Kashmir on 2 April, 2021
IN THE HIGH C0URT 0F JAMMU AND KASHMIR
AT SRINAGAR
CRR No. 13/2017
Reserved on 17.03.2021.
Pronounced on 02.04.2021
Ghulam Hassan Sofi &Anr. ...Petitioner(s)
Through: Mr. Altaf Haqani, Sr. Adv. With Shakir Haqani, Adv.
Vs.
State of JK through VOK Kashmir ...Respondent(s)
Through: Mr B. A. Dar, Sr. AAG with
Ms. Saba Gulzar, Assisting Counsel
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The order dated 10th April 2017 (hereinafter referred to as the 'order
impugned) passed by the learned court of Special Judge Anti-
Corruption Srinagar (hereinafter referred to as trial court) has been
impugned by the petitioner through the medium of present petition by
virtue of which the learned trial court has directed the SSP VOK
Srinagar (now ACB) to conduct or get conducted further investigation
on the aspects stated in the order.
2. The petitioner has challenged the order impugned on the following
grounds: -
(i) That once the court had taken a cognizance of
offence under section 5 (2) PC Act, power to order
further investigation could not have been invoked by
the learned trial court, as the learned trial court was
not competent to switch back to the pre-cognizance
stage.
(ii) That the order impugned is liable to be quashed as
the learned trial court had no power to order further
investigation on its own, without any motion or
application on the part of the investigating /
prosecuting agency. The trial court has infact passed
the order impugned so as to unable the prosecution
to fill up the lacunas in their case and the order
impugned amounts to ordering reinvestigation.
(iii) That the learned trial court had not heard the
petitioner for the purposes of passing orders on the
issue of further investigation as the trial court had
simply heard the arguments on charge/discharge of
the accused.
3. Before examining the issues raised by the petitioner, it is necessary to
have the brief resume of the allegations leveled against the petitioner.
4. The charge sheet for commission of offence under section 5 (2) PC Act
read with 109 RPC was filed against the petitioner and the other
accused on the ground that the petitioner is in possession of
disproportionate assets to the extent of Rs.67,88,189/-. It is further
stated in the charge sheet that the petitioner was appointed as a Patwari
in the year 1974 and was posted in Rakhs and Farms Department and
served there for about a decade and later on was transferred to the
Revenue Department District Budgam. The check period in the case of
the petitioner has been fixed from 1986 to 2006. During this whole
period, the total income of the petitioner was Rs.13,72,324/- and
expenditure during check period has been considered as Rs. 5,96,921/-
whereas the income at the beginning of the check period of the
petitioner was Rs. 3,53,816/-. The prosecution has determined the total
value of the assets acquired by the petitioner during the check period as
Rs. 79,17,408/-.
5. The prosecution has alleged the petitioner to have acquired following
immovable assets through various deeds/mutations either in his name or
in the names of his relatives. Details of the same are reproduced as
under:-
S. Details of Situated at Mode of Declared Cost On the
No. properties acquisition value assessed. name of
1. Three storied Krimshore Gift ---------- 23,19,455/- Gh.
house double Mohd.
storeyannexe Bhat
and six shops
have been
constructed
on 2.5 kanals
2. Residential Gulbery 19,81,799/- Self
house at Colony,
Gulberg Huderpora
Colony
Hyderpora
3. 03 & 02 Krimshore Gift Two Sons
marlas
4. 01 kanal Krimshore Gift Total Gh. Mohd
14marlas consideration Bhat
for 1 K.19-
M. 1.57 lacs
5. 6 marlas Krimshore Gift 90,000/- Gh.
Mohd.
Bhat
6. 01 kanal 03 Krimshore Gift 3.00 lacs Son
marlas
7. 07 kanals Parnewa Gift 3.50 lacs Two sons
and 14
marlas
8. 04 kanals Parnewa Gift 4.50 lacs Mst. Saja
and 12 Begum
marlas
9. 12 ½marlas Burgoo Mutated 75,000/- Self
u/s 4 &8
AR Act
10. 01 kanal 09 Burgoo Gift 80,000/- Self
marlas
11. 05 kanals Burgoo Mutated 10.00 lacs Self
u/s 4 & 8
A.R. Act
12. 02 kanals 19 Burgoo 34,000/- Self
marlas
13. 01 kanals 2 Burgoo 10,000/- Self
marlas
14. 03 kanals& Burgoo Gift 30,000/- Self
06 marlas
15. 02 kanals Burgoo Sale 25,000/- Two Sons
16. 02 kanals Burgoo Gift 1.50 lacs Brothers
17. 01 kanal& 13 Burgoo U/s 4 & 8 Self
marlas A.R. Act.
18. 01 kanals& Burgoo U/s 4 & 8 15,000/- Self
09 marlas A.R. Act
19. 02 kanals Burgoo Sale 30,000/- Firdous
Ahmad
20. 02 kanals& Burgoo Gift 87,000/- Self &
12 ½ marlas brothers
21. 08 kanals& Burgoo Gift 3.00 lacs Gh.
05 marlas Mohd.
Mir
22. 01 kanal Gulberg Sale 5.50 lacs Ab.
Colony, Rashid
Hyderpora Beigh
6. Besides these, the petitioner has also acquired the following movable
assets:-
23. Car bearing Self
registration No.
JK04A-0843
24 Gold ornaments 115 grms 60,000/- Self
25. House hold Joinery 1,07,535/-
goods items
26. Electronic 86,310/-
gadgets
27. Furnishings 57,000/-
7. The matter was heard by the learned trial court for charge and
discharge and the learned trial court vide order dated 10 th April 2017
passed the order impugned and directed for further investigation on
the aspects as narrated in the order.
8. Mr. Haqani, learned senior counsel has vehemently argued that the
order of further investigation can be passed only when the new facts
are brought to the notice of the trial court after the filing of charge-
sheet. He further contended that the learned Magistrate had only three
options when the challan was filed, i.e. (1) accept the report and take
cognizance of the offences and issue process, (2) may disagree with
the report and drop the proceedings or (3) may direct further
investigation under section 156 (3) and require the police to make a
further report. So, he contended that once the court had issued a
process, direction for further investigation could not have been issued
by the learned trial court.
9. Per contra, Mr B.A. Dar, learned Sr. AAG has vehemently argued
that the learned Magistrate has powers to order further
investigation under section 156 Cr.P.C even at post-cognizance
stage. He has placed reliance upon the judgment of the Apex
Court reported in (2019) 17 SCC 1.
10. Heard and perused the record.
11. Apex Court in the case titled Vinubhai Haribhai Malviya v. State of
Gujarat reported in (2019) 17 SCC 1 has held as under:
42. There is no good reason given by the Court in these decisions as to
why a Magistrate's powers to order further investigation would suddenly
cease upon process being issued, and an accused appearing before the
Magistrate, while concomitantly, the power of the police to further
investigate the offence continues right till the stage the trial commences.
Such a view would not accord with the earlier judgments of this Court, in
particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1
SCC (Cri) 440] , Samaj Parivartan Samudaya [Samaj Parivartan
Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri)
365] , Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4
SCC (Cri) 557] , and Hardeep Singh [Hardeep Singh v. State of Punjab,
(2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] ; Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having
clearly held that a criminal trial does not begin after cognizance is taken, but
only after charges are framed. What is not given any importance at all in the
recent judgments of this Court is Article 21 of the Constitution and the fact
that the Article demands no less than a fair and just investigation. To say
that a fair and just investigation would lead to the conclusion that the
police retain the power, subject, of course, to the Magistrate's nod under
Section 173(8) to further investigate an offence till charges are framed,
but that the supervisory jurisdiction of the Magistrate suddenly ceases
midway through the pre-trial proceedings, would amount to a travesty of
justice, as certain cases may cry out for further investigation so that an
innocent person is not wrongly arraigned as an accused or that a prima
facie guilty person is not so left out. There is no warrant for such a
narrow and restrictive view of the powers of the Magistrate, particularly
when such powers are traceable to Section 156(3) read with Section
156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed
hereinabove, and would be available at all stages of the progress of a
criminal case before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case. Whether further
investigation should or should not be ordered is within the discretion of
the learned Magistrate who will exercise such discretion on the facts of
each case and in accordance with law. If, for example, fresh facts come to
light which would lead to inculpating or exculpating certain persons, arriving
at the truth and doing substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding the criminal
proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai
Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603] .
Therefore, to the extent that the judgments in Amrutbhai Shambhubhai
Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017)
4 SCC 177 : (2017) 2 SCC (Cri) 331] , Athul Rao [Athul Rao v. State of
Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri) 594] and Bikash Ranjan
Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542 :
(2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled.
Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh
Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of
W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri)
1051] also stand overruled.
12. Thus, it is evident from the decision of the Apex Court that further
investigation can be ordered suo-motu by the Magistrate himself
depending upon the facts of each case. Whether further investigation
should or should not be ordered is within the discretion of the learned
Magistrate who can exercise such discretion on the facts of each case
and in accordance with law. As such the first contention of the
petitioner that once the process has been issued, the court had no
jurisdiction to order further investigation is bereft of any merit and as
such the same is rejected.
13. The second contention raised by the petitioner that no application was
made by the prosecution agency also deserves to be rejected in view
of the law laid down by the Apex Court in the judgment (supra).
14. The third contention raised by the petitioner is that the further
investigation can be ordered only on the discovery of new facts and
not on the basis of the facts already placed before the learned
Magistrate. In H.N.Rishbud v. State of Delhi reported as AIR 1955
SC 196, Hon'ble the Apex Court has held that that it does not follow
that the invalidity of the investigation is to be completely ignored by
the court during trial. When the breach of such mandatory provision is
brought to the knowledge of the court at a sufficiently early stage, the
court, while not declining cognizance, will have to take the necessary
steps to get the illegality cured and the defect rectified, by ordering
such re-investigation as the circumstances of an individual case may
call for.
15. The Hon'ble Apex Court while relying upon the judgment in case
mentioned above as H.N.Rishbud v. State of Delhi, in Vinubhai
Haribhai Malaviya v. State of Gujarat has held that this decision is a
clear authority for the view that further investigation is not altogether
ruled out merely because cognizance of the case has been taken by the
court, defective investigation coming to the light during the course of
a trial may be cured by a further investigation, if the circumstances
permit it (para 29). Thus, in view of this, it is not at all necessary that
the court can order further investigation only on the basis of the
subsequent facts brought to its notice, the further investigation can be
ordered by the court even when the defective investigation comes into
light, may be even before framing of charge. So, this contention too
deserves to be rejected. The last contention raised by the petitioner is
that the petitioner was heard on the issue of charge as well as
discharge only and not on the issue of further investigation. The
perusal of the order reveals that the learned trial court while ordering
further investigation has pointed out the following aspects those are
required to be considered for the purpose of further investigation:-
(1) The investigating officer should have gone further to check
the authenticity of these mutations from the attesting
officers as well as marginal witnesses cited therein, as the
donors have unequivocally stated that as a matter of fact,
they sold their respective properties to accused for
consideration and were not aware of those mutations.
(2) Whether the posting of the accused during the relevant
time had anything to do with the same before reaching to
any conclusions. The investigating officer was required to
make an effort to check the authenticity of the mutations
attested under Section 4 and 8 of the Agrarian Reforms Act,
whereas erstwhile owners had categorically deposed that
they in fact sold these pieces of land to the accused against
the consideration. The investigating officer should have
checked from the records as to whether the accused was
bona fide tiller of the land duly recorded in Kharif 1971
before arriving at any conclusion. Investigating officer was
required to collect evidence before concluding that the two
residential/commercial properties at Krimshore and
residential house at Hyderpora were in fact raised by the
accused and he was holding possession thereof as Benami
properties. The investigating officer had not conducted any
investigation as to whether any permission had been taken
by the accused being a public-servant from the Government
or the competent authority for the acquisition of these
properties.
16. The learned trial court has given the cogent reasons while ordering the
further investigation and from the perusal of the order impugned, it is
revealed that the petitioner had raised these issues during the course of
his arguments on charge and discharge. So, there is no substance that
the petitioner was not heard on the said issue once the petitioner has
raised the issue, those pointed towards the defective investigation
conducted by the investigating officer, the trial court was well within
the power to order further investigation.
17. In view of what has been discussed above, there is no merit in the
present petition, as such, the same is dismissed.
18. The SSP VOK Srinagar (now ACB) is directed to complete the further
investigation of the case within a period as prescribed by the trial
court in its order dated 10th April 2017. Record be returned to the
officer concerned.
(RAJNESH OSWAL)
JUDGE
SRINAGAR
02.04.2021
Altaf
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
