K. Anbazhagan vs The Superintendent of Police, State of Tamil Nadu

Hon''ble Mr. Justice : V. Jagannathan

In this petition u/s 482 of the Cr.P.C. the petitioner seeks quashing of the decision taken by the Directorate of Vigilance and Anti Corruption (DVAC) to hold further investigation u/s 173(8) of the Cr.P.C. as disclosed in the communication dated 15.6.2011 addressed by the Dy. Superintendent of Police, DVAC to the Special Judge before whom Spl. Case. 208/04 is pending. Apart from the aforesaid relief sought, the petitioner has sought for a direction to the DVAC that it has to be represented by the Special Public Prosecutor or in the alternative make the 2nd respondent Special Public Prosecutor a party in all such proceedings and finally a direction to the Spl. Public Prosecutor to take up the matter on day-to-day basis in view of the directions given by the Apex Court in the transfer petitions.

Of the three reliefs sought, as far as the second relief is concerned, this court has already passed the order on 19.8.11 and what survives for consideration are the first and third reliefs sought.

The background facts briefly stated are that, a charge sheet Sled in Cr. No. 13/AC/96/SQ led to case being taken up in Spl. C.C. No. 7/97 on the file of the XI Addl. Special Judge (Special Court), Chennai against four accused persons of whom the first accused happens to be the present Chief Minister of the State of Tamilnadu. The offences alleged against the accused were under section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act and u/s 120B r/w 109 of the IPC and the check period was from 1.7.91 to 30.4.96 and the acquisition of disproportionate wealth according to the State charge sheet was to the tune of Rs. 66.65 crores in India.

During the pendency of the said case, another charge sheet was filed in Cr. No. 2/AC/2000/HQ which lad to Spl. C.C. No. 2/2001 on the file of the XXI Addl. Sessions Judge (Special Court), Chennai and it was against two accused persons out of whom, the first accused happens to be the present Chief Minister of Tamilnadu. Pursuant to the first accused assuming office of Chief Minister during May 2001, the present petitioner moved the Apex Court for transfer of the two cases by filing transfer petitions Crl. Nos. 77-78/03 and the Apex Court in the case of K. Anbazhagan Vs. The Superintendent of Police and Others Etc., ordered transfer of the two cases to the Special Court at Bangalore and also gave directions at para.34 of its order.

Pursuant to the Apex Court decision, the two cases referred to above were clubbed and were given one and the same number Spl. C.C. No. 208/04. The case which had its origin in the charge sheet Crl.No. 2/AC/2000/HQ ultimately was withdrawn by the prosecution and thus what remains is the first case which is now before the Special Judge, Bangalore.

It is during the pendency of the only case before the learned Special Judge that the communication dated 15.6.11 was addressed to the Special court by the Dy. S.P. of DVAC, Chennai intimating the court that, further investigation would be taken up in this case. It is this communication that has driven the petitioner to this court in this petition u/s 482 of the Cr.P.C.

I have heard the learned senior counsel Sri. C.V. Nagesh for the petitioner and the learned Spl Public Prosecutor who is also the Advocate General of the State Sri. B.V. Acharya and in view of the order passed by this court earlier on 25.8.11, Sri. M.T. Nanaiah, learned senior counsel, was requested to assist the court as Amicus Curiae in the matter since the question of law involved concerns the examination and analysis of Section 173(8) of the Cr.P.C.

Learned senior counsel Sri. C.V. Nagesh for the petitioner, at the outset, by referring to the contents of the communication dated 15.6.11 addressed to the Special Court by the Dy. S.P., Chennai, argued that, while he does not dispute the present position in law with regard to statutory rights of the investigating agency to take up further investigation by virtue of the provision contained in Section 173(8) of the Cr.P.C. it is his contention that the contents of the communication dated 15.6.11 (Annex-E), will make it clear that the permission that is sought is not by the investigating officer, but it is the executive through the Chief Secretary of the State which has desired further investigation.

Pointing to the contents of the letter, it is argued that, the Chief Secretary has noticed certain lapses in the Spl. Case No. 208/04 and has directed that the said lapses be rectified and the letter further says that the DVAC has also been instructed to comply with the orders of the Government and hence the investigating officer has decided to take up further investigation.

Referring to the contents of the communication addressed to the Special Court by the Dy. S.P., it is argued by the learned senior counsel Sri. C.V. Nagesh that the investigating officer has not come forward to further investigate the case, but on the other hand, the investigating officer has been directed by the executive to take up further investigation and what is now sought to be done is to rectify the lapses in the investigation and as such, the further investigation sought cannot be permitted because Section 173(8) only permits the investigating officer to collect further material or evidence and in a sense, supplement the evidence already collected but not to plug the loopholes in the investigation already done, as such, the permission that is sought for further investigation which the investigating officer wants to take up, cannot be permitted in law.

Referring to the use of the word ''further'' more than once in Section 173(8) of the Cr.P.C., it is therefore contended by the learned senior counsel that the further investigation that is now sought and in the manner that is indicated in the communication is therefore impermissible in law. As such, the further investigation that is now sought be undertaken by the investigating officer to be returned into in the interest of justice.

The learned senior counsel also submitted that the case has now reached the stage of recording of accused statement and the Apex Court has already directed the first accused to be present before the Special Court at Bangalore on 20.10.2011. Considering the fact that the charge sheet in the case was filed as far back as in the year 1997 and number of witnesses having been examined (259 witnesses) and voluminous documents having been marked during the course of recording of evidence and the case has now reached the last stage of recording of the accused statement, at this stage, the further investigation by the investigating officer therefore cannot be permitted having regard to the peculiar facts and circumstances of this case and the observations made by the Apex Court in the transfer petition.

Another contention taken on behalf of the petitioner is that, though there is no limitation period prescribed for taking up further investigation u/s 173(8) of the Cr.P.C., yet the power should be exercised within a reasonable time and having regard to the said position in law also, in the instant case, further investigation that is contemplated by the investigating officer cannot be permitted.

In support of the contentions, learned senior counsel placed reliance on the decision reported in 2008 (5) KLJ 480 to contend that, further investigation is in furtherance of the investigation already made and not undoing what is already done. In the case of Chikkanarasimhappa and Another Vs. State and Another, a learned Single Judge of this court had set aside the order of the trial court granting permission to further investigate as it was found that it was the Government that wanted the transfer of investigation from one agency to another. In the light of the aforesaid submissions, learned senior counsel sought for the petition being allowed by granting the relief sought.

Learned Spl. Public Prosecutor, who is also the Advocate General of the State Sri B.V. Acharya, on his part, referred to the sequence of events in the two cases which were transferred to the Special Court at Bangalore and submitted that the further investigation in Spl. C.C. No. 2/01 (London Hotel case) finally ended up in prosecution withdrawing the case and the reason for the withdrawal was on account of further investigation being taken up in the said case during the time when accused no.1 was in power as the Chief Minister of Tamilnadu and referring to the progress of the case in Spl. C.C. No. 2/2001 subsequent to the further investigation being taken up, it is submitted by the learned Spl. Public Prosecutor that the situation that is present now is more or less similar to the situation that prevailed during the pendency of Sp.C.C.No. 2/2001 and the investigating agency is now adopting the very same modus operandi which led to weakening of the London Hotel case and therefore the further investigation that is now sought in the present case during the time when the accused No. 1 is the Chief Minister of Tamilnadu, would only be an attempt to subvert the court of justice.

Learned Spl. Public Prosecutor Sri. B.V. Acharya also referred in this connection to the communication addressed by him to the Dy. S.P. of DVAC on 14.7.11 and the letter dated 20.7.11. Apart from the aforesaid communications, it is also submitted by the learned Spl, Public Prosecutor that, in the instant case, the prosecution has examined in all 259 witnesses and has closed its side and the and the case is now posted for recording of the accused statement.

Mention was also made by Sri. B.V. Acharya to another aspect of the case, i.e., some of the witnesses were recalled even in the present case and they all had resiled from their earlier statements made. Referring to the observations of the Apex Court in the transfer petitions, it is submitted that the Apex Court took note of the effect of the 76 witnesses being recalled and went on to observe at para.20 that, it appears that the process of justice is being subverted and the said observation also got reinforced by the fact that the witnesses had resiled from what they had stated in the evidence in chief and ultimately the Apex Court also observed at para.28 that the prosecution appears to have acted hand in glove with the accused.

Sri. B.V. Acharya also pointed out to this court the further observations made by the Apex Court at para.29 to submit that the fact that on assumption of Chief Minister of the State and the public prosecutor appointed by her Government having not opposed or given consent to the application to recall the witnesses is indicative of how the judicial process is being subverted. Therefore, it is submitted by the learned Spl. Public Prosecutor Sri. B.V. Acharya that the circumstances under which the further investigation is now sought and in the manner as indicated in the communication dated 15.6.11 would go to show that there could be no justification in taking up further investigation having regard to the facts and circumstances of this case.

White conceding with Section 173(8) of the Cr.P.C., the power of the investigating agency to take up further investigation and that right being a statutory right, yet, the circumstances under which the right sought to be exercised also cannot be lost sight of. As such, referring to the Apex Court observation in Kishan Lal Vs. Dharmendra Bafna and Another, , it is submitted by Sri. B.V. Acharya that, further investigation is permissible only under the circumstances referred to by the Apex Court and they are :

When new facts come to light or

when superior courts find that the investigation is tainted or unfair or

when superior courts find that it is required in the ends of justice.

The aforesaid submissions were also supported by the Spl. Public Prosecutor by placing reliance on the decisions reported in Ram Lal Narang Vs. State (Delhi Administration), , R. Sarala Vs. T.S. Velu and Others, , State of A.P. Vs. A.S. Peter, , Rama Chaudhary Vs. State of Bihar, , Mithabhai Pashabhai Patel and Others Vs. State of Gujarat, , Kishan Lal Vs. Dharmendra Bafna and Another, and Dharmeshbhai Vasudevbhai and Others Vs. State of Gujarat and Others, .

Sri. M.T. Nanaiah, learned senior counsel and Amicus Curias in the instant case, submitted that, Section 173(8) of the Cr.P.C. gives widest power to the investigating officer to take up further investigation and the said power of the investigating officer cannot be curtailed and the investigation is outside the ambit of the public prosecutor. Merely because there is delay in trial or the trial has come to the closing stages is not a ground to deprive the investigating agency to take up further investigation.

It is his further submission that, it is only where the investigation is found to be tainted or not fair, that the court can order further investigation, but not where the investigating officer wants to take up further investigation by exercising the power that is conferred by 173(8) of the Cr.P.C.

The learned senior counsel and Amicus Curiae also submitted that the law does not mandate taking prior permission from the court by the investigating officer and the purpose of further investigation is to arrive at the truth and the real and substantial justice and as such, the hands of the investigating agency for further investigation should not be tied down mainly on the ground of delay. It is therefore submitted by him that, merely because of the delay in the trial or the stage of the trial, further investigation cannot be prevented. Referring to the Apex Court decision in Ram Lal Narang Vs. State (Delhi Administration), , it is submitted by Sri. M.T. Nanaiah, Amicus Curiae that the statutory rights and duties of the police were not circumscribed by any power of superintendence or interference and there is no express provision of prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report u/s 173(1) of the Cr.P.C. The decision reported in Emperor vs. Khwaja Nazir AhmadAIR 1945 18 (Privy Council) was also referred to in this connection.

It is therefore submitted by the learned senior counsel and Amicus Curiae Sri. M.T. Nanaiah that, having regard to the law laid down by the Apex Court with regard to interpretation of section 173(8) of the Cr.P.C., the investigating officer cannot be prevented from going ahead with further investigation notwithstanding the fact that the case has now reached the stage of recording of the accused statement. The aforesaid submissions were based on the reliance placed by the Amicus Curiae on the decisions reported in 2004 SCC (Cri) 1603, 2004 SCC (Cri) 1607 , Ramachandran Vs. R. Udhayakumar and Others, , Kishan Lal Vs. Dharmendra Bafna and Another, , M.R. Engineers and Contractors Pvt. Ltd. Vs. Som Datt Builders Ltd., , K. Chandrasekhar Vs. The State of Kerala and Others, , State of A.P. Vs. A.S. Peter, , Rama Chaudhary Vs. State of Bihar, , Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, and Ram Lal Narang Vs. State (Delhi Administration), .

Having thus heard the learned senior counsel parties and the Spl. Public Prosecutor Sri B.V. Acharya, whether in the light of the facts and circumstances of this case, the petitioner has made out a case for this court to quash the decision of the DVAC to hold further investigation u/s 173(8) of the Cr.P.C.

As the communication dated 15.6.2011 mentions that the further investigation under Section 173(8) of the Cr.P.C. is sought to be undertaken by the Dy. S.P., it is necessary to refer to the said provision of the Cr.P.C., which is as under:

(8). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

The aforesaid provision came up for interpretation and consideration before the Apex Court in number of cases and the law laid down by the Apex Court is as under.

In the cause of Ram Lal Narang Vs. State (Delhi Administration), , the Apex Court has held that the final word is with the Magistrate is sufficient to safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.

In the case of R. Sarala Vs. T.S. Velu, reported in (200) 4 SCC 459, the Apex Court has observed thus at paragraph-15:

In this context we may also point out that the investigating officer, though is subject to supervision by his superior in rank is, not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. This position which was well delineated by the celebrated Lord Denning, has since been followed by this Court. In R. v. Metropolitan Police Commr (1968) 1 AllER 763, Lord Denning had said thus:

I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State...... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The reaponsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

The aforesaid observations were reiterated in the case of State of A.P. Vs. A.S. Peter, . At paragraph-15 of the decision under consideration, it was further observed thus by the Apex Court:

While acknowledging the power of the police authorities to carry out further investigation in terms of Section 173 of the Code of Criminal Procedure, an observation was made therein to the following effect: (Narang case, SCC p. 338, Para 21)

21....In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.

In the case of Rama Chaudhary Vs. State of Bihar, , the Apex Court distinguished the expression "further investigation" from "reinvestigation" and held that what is permissible is further investigation and reinvestigation is prohibited and went on to explain further the expression "further investigation" at paragraph-17 thus:

From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to "further" investigation under sub-section (8) of Section 173 but not "fresh investigation'''' or "reinvestigation''''. The meaning of "further" is additional, more, or supplemental. "Further" investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.

In paragraph-18 of the said decision, the Apex Court has observed that, what is contemplated under Section 173(8) is a further report and not a fresh report regarding further evidence obtained during such investigation. It was also held in the very same case that the law does not mandate taking prior permission from the Magistrate for further investigation.

In the case of Kishan Lal Vs. Dharmendra Bafna and Another, , the Apex Court referred to the instances when Section 173(8) may be invoked and considered the situations where further investigation can be directed by the court or taken up by the I.O. in exercise of his statutory powers and at paragraph-16, the Apex Court has held that Section 173(8) of the Cr.P.C. can be invoked (i) when new facts come to light, (ii) when superior courts find that the investigation is tainted and/or otherwise unfair, and (iii) when the superior courts finds that it is required in the ends of justice.

It has to be mentioned at this juncture itself that, in the instant case, the aforesaid situations (ii) and (in) has not arisen because, the Special Court has not ordered for further investigation but, on the other hand, the further investigation is now sought to be undertaken by the I.O. in the light of the direction given in the communication dated 15.6.2011 by the Chief Secretary.

In the case of Ramachandran Vs. R. Udhayakumar and Others, , the Apex court dealt with the word "further" at paragraph-7 of the judgment and quoted the observations made by it in the case of K. Chandrasekhar Vs. State of Kerala ( 1998 SCC (Cri) 1291). The said paragraph-7 reads thus:

At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section 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 sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrashekar v. State of Kerala (1998 SCC (Cri) 1291). It was, inter alia, observed as follows: (SCC p.237, para 24)

The dictionary meaning of ''further'' (when used as an adjective) is ''additional; more; supplemental''. ''Further'' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisage that on completion of further investigation the investigating agency has to forward to the Magistrate a ''further'' report or reports - and not fresh report or reports - regarding the ''further'' evidence obtained during such investigation,

Thus, it is clear from the aforesaid meaning given to the word "further" in Section 173(8) that the "further investigation" is the continuation of the earlier investigation and not a "fresh investigation" or "reinvestigation" to be started ab initio wiping out the earlier investigation altogether.

A learned Single Judge of this court also has taken more or less identical view by observing in the case of Harish D.V. Vs. State by Rural Police, Kolar, reported in 2008 (3) Kar.L.J. 480, that the further investigation is in furtherance of the investigation already made and not undoing what has already been done.

In the case of Hasanbhai Valibhai Qureshi Vs. State of Gujarat, reported in 2004 SCC (Cri) 1603, it has been held by the Apex court that when fresh facts (lapses in earlier investigation in this case) come to light, the police should inform the court and seek permission to make further investigation.

Having thus kept in view the principles of law laid down by the Apex Court with regard to the power of the investigating agency to undertake further investigation under Section 173(8) of the Cr.P.C. and also the circumstances under which further investigation can be taken up, whether in the instant case, the further investigation to be undertaken by the Dy. S.P., DVAC, can be permitted in law and whether such an exercise at this stage of the case can be said to be in the interest of justice or to meet the ends of justice. So far as the events narrated by the learned senior counsel for the parties insofar as this case are concerned, there can be no two opinions with regard to the following facts.

This case came to be transferred from the State of Tamin Nadu to the State of Karnataka under the circumstances which have been referred to by the Apex Court in the case referred to earlier and reported in K. Anbazhagan Vs. The Superintendent of Police and Others Etc., (''transfer case'' for short). The Apex Court, taking note of various factors which have been referred to by it at paragraphs-20 to 27, 29 and 30, and observed at paragraph-28 thus:

We have cited only a few instances to show how the prosecution appears to have acted hand in glove with the accused.

At paragraph-30, the Apex Court had observed thus:

30... In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice.

Thereafter, the Apex Court, at paragraph-34, took the view that the cases should be transferred to the State of Karnataka from the State of Tamil Nadu and gave several directions at paragraph 34(a) to (i).

As per the sequence of events referred to by the Special Public Prosecutor Shri B.V. Acharya in the instant case, the prosecution has examined in all 259 witnesses and has closed its side. The case is set out for recording of the accused statement under Section 313 of the Cr.P.C. The submission made at the Bar by the learned senior counsel for the parties and Special Public Prosecutor Shri B.V. Acharya is that, A-1 has been directed to appear before the Special Judge at Bangalore on 28.10.2011 for recording of her statement. It is at this stage, that the communication dated 15.6.2011 has come to light and has given rise to this petition under Section 482 of the Cr.P.C. The said communication addressed to the Special Judge requires to be reproduced and it is as under:

Petition filed under Section 173(8) Cr.P.C. by Deputy Superintendent of Police. Vigilance and Anti Corruption, Chennai-28.

It is submitted that the review meeting of Chief Secretary and Commissioner for Administrative Reforms taken place on 3.6.2011 at Chennai relating to the cases pending at Special Investigation Cell, Vigilance and Anti Corruption and the Chief Secretary has pointed out certain patent lapses occurred in the Special Case No. 208/2004 during investigation and directed to rectify the lapses discrepancies and informatives pointed out by his D.O. letter No. 2998/VC III/2011 dated 8.6.2011.

Pursuant to ouch intimation, Director of Vigilance and Anti Corruption has also instructed to comply with the orders of Government.

The lapses erupted in the former investigation only could possibly be rectified by taking up further investigation under Section 173(8) Cr.P.C. as those facts are fresh materials.

I have been nominated as a investigating officer under Section 17 of the P.C. Act in such purpose by the Directorate.

Hence, I am taking a further investigation of the above said case special C.C.No. 208/2004 pending before this Hon''ble Court and I am submitting this facts before this Hon''ble Court by way of an intimation in accordance with the guidelines given by apex court in Rama Chaudhary Vs. State of Bihar, and State of A.P. Vs. A.S. Peter, which permits such further investigation without prior permission of the court.

What is clear from the contents of the aforesaid communication is the following:

i) Further investigation is sought not by the Investigating Officer on his own free volition.

ii) The I.O. did not notice any lapses in the investigation but it is the Chief Secretary who has pointed out certain patent lapses according to the letter.

iii) The Chief Secretary has directed the I.O. to rectify the lapses, discrepancies and the infirmities pointed out by the Chief Secretary in his D.O. letter dated 8.6.2011.

iv) The DVAC has been instructed to comply with the orders of the Government and the object of taking further investigation is said to be to rectify the lapses.

v) It is pursuant to the aforesaid directions that the Dy. S.P. has thought it fit to take up further investigation.

Thus, it is clear that the need for further investigation arose not on account of the I.O. being satisfied to take up further investigation but, on the other hand, the promptness of the directions as well came from the Chief Secretary to the I.O. In other words, as rightly submitted by the learned senior counsel, the I.O. did not fine any lapses or discrepancies in the investigation, but it is the Chief Secretary who has pointed out the lapses to the I.O.

It has to be mentioned at this juncture that, apart from the aforesaid tenor of the communication addressed to the Special Judge by the I.O., the point of time at which further investigation is sought also cannot be lost sight of. The charge sheet in this case was Sled before the Special Judge at Chennai on 4.6.1997 and by the end of August 2000, 250 witnesses for the prosecution had been examined. During the period November 2002-February 2003, 76 witnesses were recalled and all of them had resiled from their earlier statements. A-1 was the Chief Minister during the period from 2.3.2002 till 12.5.2006. Further investigation in the second charge sheet (known as the London Wealth case) was taken up during the period when A-1 was the Chief Minister and as the consequence of the further statement recorded in that case, the prosecution ultimately withdrew the case. Now, the further investigation is sought or is proposed to be undertaken by the I.O. during the occupancy of the office of the Chief Minister by A-1 consequent upon the elections held during May 2011 and A-1 becoming the Chief Minister of Tamin Nadu on 16.5.2011. It is only after A-1 having assumed the chair of the Chief Minster of Tamin Nadu on 16.5.2011 that the communication dated 15.6.2011 has been addressed to the Special Judge by the Dy. S.P., DVAC.

I have already referred to the observations of the Apex Court in the transfer case and the Apex Court, after noting down various instances which indicated the prosecution having been in hand in glove with the accused and also after noting down that the witnesses were recalled for cross-examination after the second respondent before it i.e., the Chief Minister, having assumed the power as the Chief Minister of the state, went on to hold that if criminal trial is not free and fair and not free from bias, judicial fairness of the criminal justice system would be at stake shaking the confidence of the public in the system and owe would be the rule of law and, therefore, the Apex Court observed that the circumstances referred to by it in the transfer case are such as to create reasonable apprehension in the minds of the public and the petitioner in particular that there is every likelihood of failure of justice.

The circle has come round in the sense, once again, further investigation is sought in this case again after A-1 having assumed the seat of the Chief Minister of Tamil Nadu following the elections held during May 2011. The tenor of the communication dated 15.6.2011 gives an indication that it is the Chief Secretary who wants to the I.O. to take up further investigation and rectify the lapses and the communication has further instructed the I.O. to comply with the orders of the Government. Thus, the apprehension of the petitioner that further investigation is now sought to be undertaken at the instance of the Government which is headed by A-1 and, therefore, the decision to hold further investigation, according to the petitioner, amounts to abuse of the process of law and in order to meet the ends of justice, the petitioner, therefore, prayed for quashing of the said decision.

Although the decisions referred to by the learned senior counsel for the parties, which have been noted by me above, lay down the law that it is the statutory right of the I.O. to take up further investigtion, the principles also go to indicate that, in the guise of further investigation, there could be no reinvestigation or fresh investigation and further, the Apex Court also having held that, in the guise of further investigation, what has been done earlier cannot be undone, the reasons given in the communication dated 15.6.2011 do not, to my mind, give the impression that the I.O. wants to take up further investigation from where it had stopped, leading to filing of the charge sheet but, on the other hand, the effort is to undo what has been done to the past.

Thus, the situation that is now reached is not an ordinary situation and further investigation is now sought to be undertaken in such a situation when the case has reached the stage of recording of the accused statement and the Apex Court having also directed in the transfer case that the trial before the Special Judge will have to proceed on day-to-day basis till completion, in such extraordinary situation, the need or necessity also arises on the part of the court to invoke extraordinary powers conferred on it by the Code itself. In other words, the extraordinary situation calls for exercise of extraordinary powers vested with the court.

Although the law laid down by the Apex Court in respect of the power of the investigating agency or the I.O. under Section 173(8) of the Cr.P.C. is a statutory right and cannot be interfered with by the court in normal circumstances and the I.O. has the widest amplitude to undertake further investigation, yet, when there is an apprehension in the mind of the petitioner that an attempt is being made to subvert the course of justice and in order to meet the ends of justice, it is necessary to invoke the power of the court which is inherent in the court, the court has to take recourse to no other provision of the Cr.P.C. except under Section 482.

Section 482 of the Cr.P.C. provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code and also to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, it is clear that nothing in the Code including Section 173(8) of the Cr.P.C. can prevent the High Court from exercising its inherent powers.

The Apex Court, in the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , has observed that, "It is well settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one it has to be exercised sparingly.". The Apex Court also quoted an earlier decision to the case of Raj Kapoor and Others Vs. State and Others, , where, speaking for the court, His Lordship Justice Krishna Iyer had observed that, "Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances.".

The Apex Court, in the well known case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , has held thus:

The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions felling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will tantamount to recognition of ''Divine Power'' which no authority on earth can enjoy.

In the case of State of Punjab Vs. Kasturi Lal, reported in AIR 2005 SCW 3306, dealing with the exercise of power under Section 482 of the Code, the Apex Court has observed thus:

Exercise of power under S. 482 of the Code in a case of this nature it the exception and not the rule. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart iron express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts....

The court went on to further observe thus:

... All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist Authority of title Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice....

In the light of the aforesaid principles laid down by the Apex court while dealing with the scope of the inherent powers of the High Court under Section 482 of the Cr.P.C., in my opinion, the sequence of events which have been referred to by the learned senior counsel for the petitioner as well as the learned Special Public Prosecutor Shri B.V. Acharya and the point of time at which further investigation is sought to be undertaken, that too at the instance and directions of the Chief Secretary of the State of Tamil Nadu, and the intention behind the further investigation being not one which is permissible under law, in the light of the meaning given to "further investigation" in Section 173(8) as well as in the light of the law laid down by the Apes Court in this regard, in the instant case, keeping in view the ends of justice as the most paramount consideration, the petitioner has thus made out a case for this court to invoke the extraordinary power conferred on it under Section 482 of the Cr.P.C. and in order to prevent Subversion of justice and to meet the ends of justice, this court, under the aforesaid compelling circumstances, has to interfere and stop further investigation which the I.O. intends to take up, as mentioned in the communication dated 15.6.2011.

As far as the third relief sought by the petitioner is concerned, it is needless to say that the Apex Court has already laid down several directions in the transfer case and has indicated at paragraph-34(b) that the trial shall proceed from day-to-day till completion and, am such, the Special Judge before whom the case is pending, cannot lose sight of the said direction given by the Apex Court. In the result, I pass the following order:

The petition is allowed and the decision taken by the Dy. S.P., DVAC, to take up further investigation by his letter dated 15.6.2011 is quashed, and the interim order passed earlier restraining the DVAC from taking up further investigation is made absolute. The Special Judge will have to proceed with the case as per the directions given by the Apex Court in the transfer case.

Shri M.T. Nanaiah, learned senior counsel, has assisted this court as amicus curiae and has placed several decisions for court''s consideration with regard to the power of the I.O. to take up further investigation under Section 173(8) of the Cr.P.C. The court, therefore, places on record its appreciation for the valuable services rendered by Shri M.T. Nanaiah as amicus curiae. A fee of Rs. 50,000/- is fixed and the same shall be paid to the learned senior counsel by the Registry without any delay.