Trial courts can’t order re-investigation, power vests with constitutional courts only: HC

Fresh probe ordered into RDD works scam in Doda

Orders passed by Spl Judge Anti-Corruption quashed

Mohinder Verma

JAMMU, Feb 26: Deciding several questions of law which will guide the functioning of the trial courts, High Court of Jammu & Kashmir and Ladakh has held that reinvestigation or fresh investigation of a case under Code of Criminal Procedure (CrPC) can be only ordered by the constitutional courts and order of further investigation of the case as an offshoot of the earlier ‘illegal’ order of re-investigation by the trial court cannot sustain the test of law.
Moreover, High Court, while taking serious note of shoddy investigation and lapses in identifying the moot issue in the complaint relating to corruption in the works executed by the Rural Development Department, has ordered fresh investigation under the supervision of Director Anti-Corruption Bureau J&K.
The bench of Justice Wasim Sadiq Nargal was dealing with a writ petition filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of order dated December 31, 2018 passed by Special Judge Anti-Corruption Doda whereby court declined to accept the closure report filed by the Anti-Corruption Bureau (then Vigilance Organization), order dated January 30, 2023 whereby the Special Judge Anti-Corruption Doda ordered further investigation and quashing of FIR registered under Prevention of Corruption Act.
The FIR was lodged by Police Station, Vigilance Organization Jammu against the petitioners for misappropriation of funds in the execution of works under rural development sector in Ghat block of Doda and fraudulent withdrawal of funds by the officers of the department during the years 2009-10 and 2010-11.
After hearing Senior Advocate P N Raina with Advocate J A Hamal for the petitioners and Senior Additional Advocate General Monika Kohli for the respondents, Justice Nargal observed that vide order dated 31.12.2018, the Special Judge Anti-corruption Doda while declining to accept the closure report filed by the respondents in FIR No. 07/2013, ordered ‘reinvestigation’ in the matter. Therefore, the first question which is required to be dealt by this court is whether the Magistrate can order re-investigation of the case in absence of any express provision of law in this regard”.
“As per the mandate of Section 173(8) of the Code of Criminal Procedure, the Magistrate has been empowered to direct further investigation after the report has been submitted by the investigating agency”, High Court said, adding a ‘further investigation’ as envisaged under Section 173(8) CrPC is neither ‘fresh investigation’ nor it is ‘re-investigation’.
A ‘further investigation’ means an additional investigation, for, it is a continuation of the earlier investigation and not a ‘fresh’ or ‘reinvestigation’, which starts ab-initio, though the materials, which may have surfaced and unearthed during earlier investigation may be taken into account by the officer or the investigating agency conducting reinvestigation. Therefore, it must be noted that there is a fine line of distinction between ‘reinvestigation’ and ‘further investigation’, High Court said.
Pointing towards the catena of judgments of the Supreme Court, Justice Nargal said, “reinvestigation cannot be ordered by the trial court within the four corners of Section 173 of the Code. The scope of Section 173(8) of CrPC is clear in this regard that the Magistrate can direct further investigation but the reinvestigation of the case can be only ordered by the constitutional courts. Therefore, the trial court, in its order dated 31.12.2018, has exceeded its jurisdiction by directing the investigating agency to re-investigate the case”.
Accordingly, High Court quashed the order of re-investigation dated 31.12.2018 passed by Special Judge Anti-Corruption Doda for being unsustainable in the eyes of law.
About the question whether the trial court can order for further investigation of the case in light of second closure report submitted by the investigating agency when the main allegations in the complaint have not been investigated, High Court said that there cannot be any fault with the proposition that Magistrate has the power to order for “further investigation” under the four corners of Section 173(8) of the Code. However, this power requires to be exercised at the very threshold, when the closure report is being submitted to the Magistrate by the investigating agency.
“However, in the peculiar facts of the present case, the Special Judge Anti-Corruption, Doda, could not have ordered further investigation of a case, which has cascaded from the order of re-investigation, when the order of re-investigation itself is void ab-initio and not sustainable in the eyes of law”, High Court said while quashing the order dated 30.01.2023.
Stating that order of fresh investigation was passed by the Magistrate with the sole object of ensuring fair investigation, High Court said, “an investigation which brushes aside material central to the cause of ascertainment of truth, and misses wood for the trees, would be hard to be categorized as a fair investigation. There are lapses and inconsistencies in the present investigation”.
“The main allegations leveled in the complaint regarding the disbursement of payments to the deceased/Govt servants were not investigated by the Vigilance Organization Jammu even after the Special Court’s orders specifically highlighting this issue”, High Court said, adding “factually, the shoddy investigation and lapses in identifying the moot issue in the complaint led to the order for further investigation by the trial court”.
Keeping in view the nature of allegations alleged in the complaint and the nature of investigation conducted by the investigating agency (Vigilance Organization Jammu), High Court, in terms of its power under Section 482 of the Code, ordered fresh investigation preferably within a period of two months under the supervision of Director, Anti-Corruption Bureau J&K.
“The Anti-Corruption Bureau shall submit the report of the investigation before the Special Judge Anti-Corruption, Doda, who shall proceed thereafter in accordance with law”, High Court ordered.