PEETHAMBARAN versus STATE OF KERALA & ANR. on 3 May 2023

1. Two questions arise for consideration- one, whether under therecognized parameters of exercise of power under Section 482, in thefacts of the present case, the non- exercise of power is justified andtwo, whether the District Police Chief, Kottayam could have orderedthe further investigation pursuant to which the second final report wasEfiled?

2. The instant appeal by special leave petition has been filed againstan order of the High Court of Kerala passed in Crl. MC No. 6314 of2018 dated 6[th] of November, 2019 whereby a prayer to exercise powersunder Section 482, Code of Criminal Procedure, 1973 was disallowedFand proceedings under Criminal Case No. 1326/2017 was found unfit tobe quashed.

3. The Appellant has been charged under Section 420 of the IndianPenal Code, 1860, for having cheated, alongside accused no.1, nowdeceased, the de-facto complainant, namely Sunesh and seven otherGpersons of a sum totaling three lakh eighty-three thousand five hundredand eighty-three rupees, in exchange for securing jobs for them or theirwives at the Kottayam Rubber Board, as clerks.

4. An FIR was registered bearing number 1838 of 2015 under theabove stated section on 24[th] October, 2015. The accused No.2 beforeus is the uncle of the de-facto complainant.H

5. The Final Report (hereafter, FR-I) placed on record dated 30[th]December, 2015 records that the complainant was asked to producedocuments in this regard, but despite notice, the same were not produced,nor were any other documents, in regards to any financial transaction. Itthen states- “As there is no proper evidence in this regard, it shall beconsidered as a false case…”

6. Interestingly, another Final Report (hereafter, FR-II) forms partof the record. It states that witness number 10, namely S. Anilkumar,Inspector of Police, Viakom, conducted further investigation as per OrderNo. D2-43642/16/K passed by the District Police Chief, Kottayam.

7. It has been urged by way of this appeal that in effect, a re-investigation had been ordered, in violation of the procedure laid down inlaw. Further it has been argued that; the ingredients of Section 420, IPChave not been met- and therefore the High court has erred in not quashingthe proceedings subject of the petition under Section 482; No specificrole has been attributed to the appellant; That in all of the witnessstatements, the name mentioned is that of the de-facto complainant whogave the money to the deceased accused number 1 namely, Babu andwas the instigator in other people giving the money to him. The Appellantseeks reliance on Vinay Tyagi v. Irshad Ali[1]; T.T Antony v. State ofKerala[2]; Vinubhai Haribhai Malviya and Ors v. State of Gujarat[3];Randhir Singh Rana v. State (NCT of Delhi)[4]; G.V Rao v. L.H.VPrasad[5]; Hari Prasad Chamaria v. Bishun Kumar Surekha[6].

8. Having taken note of the facts that have led to the presentappeal by special leave petition and the chief arguments made, we nowproceed to examine the law on the issues before us.

9. On the second question, that is whether District Police Chief,Kottayam’s order was permissible in law or not, the relevant provisionsof CrPC is Section 173 (8) which reads as under:

“(8) Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon 1 (2013) 5 SCC 762

2 (2001) 6 SCC 181

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4 (1997) 1 SCC 361

5 (2000) 3 SCC 693

6 (1973) 2 SCC 823

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SUPREME COURT REPORTS

Asuch investigation, the officer in charge of the police station obtainsfurther evidence, oral or documentary, he shall forward to theMagistrate a further report or reports regarding such evidence inthe form prescribed; and the provisions of sub- sections (2) to (6)shall, as far as may be, apply in relation to such report or reportsas they apply in relation to a report forwarded under sub- sectionB(2).”

10. The evolution of Section 173 CrPC has been noted by thisCourt in Vinubhai Haribhai Malaviya (supra). In Para 25, it is opinedthat investigation after the coming into force of the Cr.PC, 1973 willinclude all proceedings under Cr.PC for collection of evidence conductedCby a police officer. “All” would undoubtedly then include Section 173 (8)as well. The power therefore, under Section 190, of a Magistrate orderingsuch investigation, would encompass further investigation under Section173 (8).

11. It has been argued on behalf of appellants that, in effect, aDreinvestigation has been conducted,

12. This Court in Vinay Tyagi (supra) gave detailed considerationto the powers under Section 173 and Section 482 of CrPC.

“43. At this stage, we may also state another well- settled canonEof the criminal jurisprudence that the superior courts have thejurisdiction under Section 482 of the Code or even Article 226 ofthe Constitution of India to direct “further investigation”, “fresh”or “de novo” and even “reinvestigation”. “Fresh”, “de novo” and“reinvestigation” are synonymous expressions and their result inlaw would be the same. The superior courts are even vested withFthe power of transferring investigation from one agency to another,provided the ends of justice so demand such action. Of course, itis also a settled principle that this power has to be exercised bythe superior courts very sparingly and with great circumspection.

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45. The power to order/direct “reinvestigation” or “de novo”investigation falls in the domain of higher courts, that too inexceptional cases. If one examines the provisions of the Code,there is no specific provision for cancellation of the reports, exceptthat the investigating agency can file a closure report (whereHaccording to the investigating agency, no offence is made out).

Even such a report is subject to acceptance by the learnedMagistrate who, in his wisdom, may or may not accept such areport. For valid reasons, the court may, by declining to acceptsuch a report, direct “further investigation”, or even on the basisof the record of the case and the documents annexed thereto,summon the accused.”

13. Per contra, the State would contend that only furtherinvestigation upon the order of the District Police Chief was conducted.In respect of further investigation, in Vinay Tyagi (supra) this Court hasobserved:

22. “Further investigation” is where the investigating officer obtainsfurther oral or documentary evidence after the final report hasbeen filed before the court in terms of Section 173(8). This poweris vested with the executive. It is the continuation of previousinvestigation and, therefore, is understood and described as “furtherinvestigation”. The scope of such investigation is restricted to thediscovery of further oral and documentary evidence. Its purposeis to bring the true facts before the court even if they are discoveredat a subsequent stage to the primary investigation. It is commonlydescribed as “supplementary report”. “Supplementary report”would be the correct expression as the subsequent investigationis meant and intended to supplement the primary investigationconducted by the empowered police officer. Another significantfeature of further investigation is that it does not have the effectof wiping out directly or impliedly the initial investigation conductedby the investigating agency. This is a kind of continuation of theprevious investigation. The basis is discovery of fresh evidenceand in continuation of the same offence and chain of events relatingto the same occurrence incidental thereto. In other words, it hasto be understood in complete contradistinction to a“reinvestigation”, “fresh” or “de novo” investigation.

14. This distinction between further investigation and freshinvestigation/reinvestigation/de novo investigation being that the formeris a continuation of the previous investigation and is done on the basis ofdiscovery of fresh material, whereas the latter can only be done whenthere is a definite order of the court to that effect which must states thereason as to why the previous investigation is incapable of being actedupon.

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A15. In Minu Kumari v. State of Bihar[7], it was observed thatupon submission of a report in terms of Section 173 (2) (i) the concernedMagistrate has three courses of action available before him:

(i) Accept the report and proceed further

(ii) Disagree with the report and drop the proceedings.

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(iii) Direct further investigation under Section 156 (3) which isthe power of the police to investigate a cognizable offence,and require them to make a further report.

16. In Hemant Dhasmana v. CBI[8]it was observed that althoughCthe section is not specific in respect of the Court’s power to order furtherinvestigation, the power of the police can be set into motion upon theorder of such a court. It was further observed that this order should notbe interfered with even in the exercise of the revisional jurisdiction of ahigher court.

D17. The above two cases make it amply clear that a magistratehas the power to order further investigation and the cases referred toearlier make clear that fresh investigation/reinvestigation/de novoinvestigation fall into the purview of the jurisdiction of a higher court.

18. In the present case, as is clear from FR II that S. Anilkumar,Inspector of Police, Vaikom conducted further investigation as per OrderENo.D2-43642/16/K, passed by a police officer and not by any dulyempowered judicial officer.

19. The Chief Police Officer of a district is the Superintendent ofPolice who is an officer of the Indian Police Service. Needless to state,an order from the District Police Chief is not the same as an orderFissued by the concerned Magistrate. Referring to Vinay Tyagi (supra),this Court in Devendra Nath Singh v. State of Bihar and Ors.[9]notedthat there is no specific requirement to seek leave of the court for furtherinvestigation or to file a supplementary report but investigation agencies,have not only understood it to be so but have also adopted the same as aGlegal requirement. The doctrine of contemporanea exposito aids suchan interpretation of matters which have been long understood andimplemented in a particular manner to be accepted into the interpretive 7 (2006) 4 SCC 359

8 (2001) 7 SCC 536H9 (2023) 1 SCC 48

process. In other words, the requirement of permission for furtherinvestigation or to file a supplementary report is accepted within law andis therefore required to be complied with.

20. In the facts at hand, it is clear that such a permission wasnever taken, granted or ordered. Consequently, FR-II is without basis.In FR-I it has been stated that in the absence of any documents in respectof the financial transactions, the instant case may be treated as a falsecase. This, then would necessarily imply that after due investigationconducted by a duly authorized person, the conclusion is that theingredients of the section mentioned in the FIR have not been met andno case is made out.

21. In Paramjit Batra v. State of Uttarakhand[10](two-Judgebench) it was observed that the High Court must use its powers underSection 482 only sparingly and to facilitate the ends of justice. It wasalso observed that the court must see must see whether a dispute whichis essentially of a civil nature is given a cloak of criminal offence. Insuch a situation, the High Court should not hesitate to quash the criminalproceedings to prevent abuse of process of the court.

22. In State of Haryana v. Bhajan Lal[11](two-Judge bench) seveninstances were laid out wherein the exercise of either the power ofArticle 226 of the Constitution of India or the Inherent Powers underSection 482, Cr.PC would be justifiably exercised. They are- “(1)Where the allegations made in the first information reportor the complaint, even if they are taken at their face valueand accepted in their entirety do not prima facie constituteany offence or make out a case against the accused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do not disclosea cognizable offence, justifying an investigation by policeofficers under Section 156(1) of the Code except under anorder of a Magistrate within the purview of Section 155(2)of the Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same 10 (2013) 13 SCC 673

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Ado not disclose the commission of any offence and makeout a case against the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only a non- cognizableoffence, no investigation is permitted by a police officerBwithout an order of a Magistrate as contemplated underSection 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which noprudent person can ever reach a just conclusion that thereCis sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under whicha criminal proceeding is instituted) to the institution andcontinuance of the proceedings and/or where there is aspecific provision in the Code or the concerned Act,Dproviding efficacious redress for the grievance of theaggrieved party.

(7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciouslyinstituted with an ulterior motive for wreaking vengeanceEon the accused and with a view to spite him due to privateand personal grudge.”

23. These categories of cases have been quoted with approval bya bench of three judges in Neeharika Infrastructure Pvt. Ltd. v.State of Maharashtra[12]. The principles in respect of the exercise ofFpower under Section 482 CrPC have been summarised as under:

A.The Police has a statutory right as well as a duty under theCode of Criminal Procedure to investigate cognizableoffences; B.Courts are not to stymie any investigation into a cognizableGoffence;

C.When the perusal of the FIR however, does not discloseany offense of any nature whatsoever, the court is not topermit the investigation to proceed.

D.The powers under this section are to be used ‘sparingly’Aand with due circumspection. While doing so, the Courtought to consider whether the allegations in the FIR disclosethe commission of the cognizable offence or not, withoutgoing into the merits of the case.

E.In exercise of this power, it is not for the court to go intoquestions of legitimacy or reliability of the allegations madein the FIR/Complaint; B

F.Quashing of a complaint should not acquire the stature ofthe rule, and should be a rarity, and nor should, in exerciseof such power, an investigation be unnecessarily cut short; C

G.The Police and the Courts are two distinct organs of theState with perspicuous spheres of activities, withcomplementary functions, and so, unwarranted interferenceby the latter into the former’s work is loathe, save in theinterest of securing justice and preventing miscarriagethereof; D

H.It must be noted that procedure is well establish to dealwith an FIR upon which, post investigation, no merit is found,then the officer can file the suitable application to that effectwhich will be considered by the learned Magistrate seizedof the matter; E

24. The offence alleged in the FIR is Section 420 IPC which is aserious form of cheating include inducement in terms of delivery ofproperty and/or valuable securities. The ingredients that must be met inorder to constitute an offence under the section have been noted by thisCourt in Vijay Kumar Ghai and Ors. v. State of West Bengal andOrs.[13]by a bench of two judges (consisting one of us, Krishna Murari,J.):

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“35.To establish the offence of cheating in inducing the deliveryof property, the following ingredients need to be proved:

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(i) The representation made by the person was false.

(ii) The accused had prior knowledge that the representation hemade was false.

A(iii) The accused made false representation with dishonest intentionin order to deceive the person to whom it was made.

(iv) The act where the accused induced the person to deliver theproperty or to perform or to abstain from any act which the personwould have not done or had otherwise committed.

B36. As observed and held by this Court in R.K. Vijayasarathy v.Sudha Seetharam [R.K. Vijayasarathy v. Sudha Seetharam, (2019)16 SCC 739 : (2020) 2 SCC (Cri) 454] , the ingredients to constitutean offence under Section 420 are as follows:

(i) a person must commit the offence of cheating under SectionC415; and

(ii) the person cheated must be dishonestly induced to:

(a) deliver property to any person; or

D(b) make, alter or destroy valuable security or anything signed orsealed and capable of being converted into valuable security. Thus,cheating is an essential ingredient for an act to constitute an offenceunder Section 420IPC.”

25. Significantly, no material has been placed on record to show Ethat the representation made by accused No.1 Babu (now deceased),the present appellant or the de facto complainant, was false or that theyhad prior knowledge of such representation being false and made onlywith the intention to deceive. There are only statements to the effectthat despite reminders by the seven persons no jobs were secured forthem or their wives. The only ingredient out of the four required, being inFthe present case is that in the ordinary course, none of the persons wouldhave given the accused any money, and therefore were induced to deliverproperty which otherwise they would have not. No proof of any financialtransaction is on record, much less concerning the present appellant.

26. With only one ingredient being fulfilled and mere statementsGmade to show dishonest intention or falsity of statement, the threshold ofSection 420 is not breached, constituting the offence.

27. Therefore, the first question is answered in the negative.

28. In terms of second question, the above discussion makes clearHthat the District Police Chief, Kottayam could not have ordered further investigation, as that power rests either with the concerned magistrateor with a higher court and not with an investigating agency.

29. Given the above, the order dated 6[th] of November, 2019 inCrl. MC No. 6314 of 2018 passed by the High Court of Kerala is setaside and Criminal Case No.132 of 2017 is quashed. The appeal is allowedin the above terms and the pending application(s), if any, stand disposedof.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal allowed.

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