The Single Bench of Justice Vinod Chatterji Koul in a petition filed under Section 482 CrPC has observed that even the higher Court of the Country cannot issue a direction for reinvestigation of a case. In such circumstances, impugned FIR registered for re-investigation cannot be sustained in law as such a course is neither provided nor permissible under the Code.
The Court cited the judgment of the Supreme Court in Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332, wherein the Court has said:
“13. It is, however, beyond any cavil that ‘further investigation’ and ‘reinvestigation’ stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a ‘State’ to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction..”.
In the instant case, the petitioner was involved in FIR bearing no. 23/2020 registered at Anti-Corruption Bureau (Srinagar) on 17-09-2020 under Section 5(1)(c), 5(1)(d) read with Section 5(2) of Jammu and Kashmir Prevention of Corruption Act, 2006, and Sections 467, 468, 471 and 120-B RPC.
Mr. Qadri, learned Senior Counsel appearing for the petitioner submitted that since the preliminary enquiry was closed way back in the year 2003 as no offence was made out against the petitioner, therefore, the act of respondents in registering impugned FIR is illegal.
He argued that preliminary enquiry was initiated way back in the year 2000 and impugned FIR has been registered in 2020, it implies that preliminary enquiry was kept running and live for 20 long years which is impermissible in law as the preliminary enquiry cannot be extended beyond 07 days as there is no such provision in the Criminal Procedure Code, authorising reinvestigation of a case, especially so when there had not been any FIR registered earlier and that there is an inordinate delay of almost 22 years in registering the case concerning an alleged occurrence pertaining to the years 1998/1999.
He also contented that once both the preliminary enquiry as well as departmental proceedings were closed as not made out and the result thereof was accepted by the Government and ACB, there was no justifiable reason for respondents to have registered the FIR.
Mr. Qadri further argued that limited scope of preliminary enquiry is to determine whether a cognisable offence is made out from contents of information or not and that ACB, a statutory body, is to follow Vigilance Manual 2008 in letter and spirit. In support of his submissions, he placed reliance on the judgment of this Court in case titled Dr. Saleem ur Rehman v. State of J&K, 2018 (2) SLJ 837.
The Court referred to the letter issued by the GAD pursuant to which the FIR was registered which reads as follows:
“…As vide communication No.GAD(Vig)53-RDA/2019 dated 07.10.2019, the competent authority has decided to reopen the matter for re-investigation and filing of challan against all the officers in the court of law for the criminal offences, accordingly, a case FIR No.23/2020 is registered against Shri …”. (underlining supplied)
The Court observed that:
“12. Impugned FIR, on its glimpse, unequivocally unveils that the case has been decided and ordered to be reopened for reinvestigation and for filing of the challan for criminal offences against petitioner and others. Such a course is not permitted in law rather is barred by law. Reinvestigation portrays fresh investigation that is not permitted by law. Section 173(8) of the Code of Criminal Procedure, at the most, provides further investigation, not fresh investigation.”
The Court also referred to judgment of Supreme Court in case titled Ramachandran v. R. Udhayakumar, (2008) 5 SCC 413, wherein it has held that from a plain reading of Section 173 of the Code, it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the Police has right to further investigate under Subsection (8), but not fresh investigation or reinvestigation.
The Court further observed that the present petition filed under Section 482 CrPC falls under the first three categories identified by the Supreme Court in case of Bhajan Lal. Therefore, on those counts as well, impugned FIR deserves to be quashed.
While considering the scope of preliminary enquiry, the Court referred to the judgment in case of Lalita Kumari and observed:
“24. It needs also to be borne in mind that in conclusion/Direction 120.7. of the Supreme Court judgment in Lalita Kumari, it has been laid down that while ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and, in any case, it should not exceed seven days. In the instant case, having regard to the fact that impugned FIR has been lodged after 18 years of preliminary enquiry, the rights of petitioner have been sought to be violated to the hilt.”
The Court while allowing the petition held that the impugned FIR cannot and does not withstand the scrutiny of established law. It, therefore, deserves to be quashed.
Case Title: Nisar Ahmad Bhat vs UT of J&K and Ors – CRM(M) No.279/2020
Coram: Justice Vinod Chatterji Koul
Mr. S. F. Qadri, Sr. Advocate, with Ms Lyba, Advocate, appeared for the Petitioner.
Mr. B. A. Dar, Sr. AAG, appeared for the Respondents.