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Judgment
Sunil Hali, J.—A complaint came to be filed before the Chief Judicial Magistrate, Srinagar directing investigation and registration of the case
against the petitioner on 23rd September 2006. The complaint states that the petitioner has procured his appointment as Trainee Engineer on the
basis of fraud when he was not a qualified engineer. It is further alleged in the complaint that as a result of this fraud he is holding the post in the
Public Sector undertaking without being eligible and qualified for the same and thus caused great monetary loss to the Corporation. This complaint
came to be filed u/s 190 of the Criminal Procedure Code. The court without taking cognizance in the matter directed the investigating agency to
have the matter investigated u/s 156(3) of the Criminal Procedure Code. That the Magistrate vide its order dated 23rd September 2006
forwarded the complaint to the S.S.P. Crime/Railway with the direction to look and investigate the matter in light of the averments made in the
application along with the connected annexures.
As a result of the aforementioned directions the police initiated investigation u/s 157 Cr. P.C The investigating officer submitted his first status
report to the learned Magistrate on 30th March 2007. The report reveals the following facts:
a) It is the practice of JKPCC to permit the number of engineering graduates/diploma holders to undergo practical training to gain expertise in
engineering works.
b) The petitioner obtained practical training in JKPCC during the period February 1997 to December 1998 and during this period he has not
received any monetary benefits.
c) As per rules of JKPCC the period of practical training does not count as a service.
d) The petitioner has qualified and passed out in July 1997 and a formal degree has been issued by the University concerned in the month of
December 1998 in his favour.
e) It is further averred that the petitioner has undergone the practical training on 22.2.1997 and has obtained the degree in civil engineering on June
1997.
Another status report was submitted by the investigating officer. The same facts have been reaffirmed except for one feature which has been
mentioned in this report that the petitioner has filed an application before the JKPCC stating that he was a graduate at the time he sought
undergoing practical training. According to the investigating officer, this application was not traceable in the Department. Another report submitted
by the investigating officer on 28th September 2007 reveals this fact that the enquiry is pending for more than a year due to the non availability of
the record, i.e. the basic application filed by the petitioner seeking his training in the said Corporation. It is averred in that this application is not
traceable. Another report was submitted by the police. In the said report it is revealed that no financial implication is involved in the present case as
the petitioner has not been paid any remuneration till he obtained the degree from the concerned University. It is stated that the remuneration of Rs.
2500/- per month were paid to the petitioner only after he produced degree before the Corporation. The last report of 27th October 2007 also
reiterates that the petitioner has undergone training w.e.f. 22nd February 1997 and no monetary benefits have been given to him for the said
period. He has been given the monetary benefit w.e.f, December 1998 when he produced the degree. The report reveals that the basic application
of the petitioner where he has stated that he is a graduate and the subsequent order passed by the Corporation directing him to undergo the training
is not traceable. When this report was submitted, the court below found that the investigating agency has not shown any zeal to trace out the
application which according to him is a basic documentary proof of the subject matter. It is further observed by the court that the investigating
officer has not conducted the investigation with zeal and has taken the matter casually. As a sequel to this the Magistrate had directed the police to
register formal case in the matter under the relevant provisions of law and take up the investigation in the matter.
I have heard the learned Counsel for the parties and perused the record. The basic allegations against the petitioner are that he had filed an
application before JKPCC for permitting him to undergo the training as a Trainee Engineer. It is stated that he had in this application mentioned that
he was a graduate and it was only because of his declaration that he is a graduate; he was permitted to undergo this training. That the order
directing the petitioner to undergo the training was issued on 22.2.1997, the order reads as under:
...Please allow him to work on honorary basic for practical training after production of copy of degree certificates passed by him in B.E.(Civil). He
will have no claim whatsoever for any emoluments/appointments in JKPCC Ltd.
The above-mentioned order reveals that the petitioner has declared that he has passed B.E. Civil from Karnataka University and has requested
engagement on honorary basis. The order further reveals that he should be allowed to work on honorary basis for practical training after
production of copy of Decree Certificate. Another order came to be passed on 8.12.1998 by virtue of which sanction has been accorded for the
grant of remuneration of Rs. 2500/- per month w.e.f. 1.12.1998 to the petitioner. The order is quoted as under:
Sanction is hereby accorded to the grant of remuneration of Rs. 2500/-per month (Rupees two thousand five hundred only) per month w.e.f.
1.12.1998 as traveling and other incidental expenses in favour of Mr. Mohammad Ayub Bhat S/o Haji Abdul Rehman R/o Barzullah Srinagar
Engineer being a Degree holder in Civil side and working as trainee in Civil wing of JKPCC. Ltd. vide order No. 9727-29 dated 22.2.1997.
The order reveals that the remuneration of Rs. 2500/- are required to be paid to the petitioner w.e.f. 1.12.1998. It is this act of the petitioner
which is sought to be investigated and on the basis of which the charge sheet is required to be filed by the police.
The question before this Court is, whether the false declaration made by the petitioner that he was a graduate engineer at the time he applied for
being permitted to undergo training in the Corporation as a trainee engineer constitute any offence. Whether the Magistrate is empowered u/s 159
of Cr.P.C. to order registration of a case and investigation when the investigation in the matter is already going on. I take up the second issue as to
whether the Magistrate was right in issuing the impugned order.
The complaint was filed before the learned Magistrate and he directed that the matter be sent to the police for investigation. This power was
exercised u/s 156(3) of Cr. P.C.
The Magistrate had two options available at the time the complaint was presented to him. One was to take cognizance of, the case and record
the statement of the complainant and issue process in case he was satisfied that the case was made out. The second option was to refer the case to
the police for investigation u/s 156(3) and leave it for the investigating agency to have the matter investigated. He chooses the second option by
directing the police to investigate the matter. This direction was limited to the extent that the police was informed about the matter and subsequent
action was to be taken by the investigating officer in accordance with the Code. Section 154(1) envisages that if any information disclosing a
cognizable offence is laid before an officer in-charge of the police station satisfying the requirements of Section 154(1), the said police officer has
no other option except to enter the substance thereof in the prescribed form that is to register a case on the said information. The commencement
of investigation in a cognizable offence by a police officer is subject to two conditions, firstly, the police officer should have reason to suspect the
commission of a cognizable offence as required by Section 157(1) and secondly the police officer should subjectively satisfy himself as to whether
there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as
contemplated under Clause (b) of the proviso to Section 157(1). Clause (b) further permits the police officer to satisfy himself about the sufficiency
of the ground even before entering on an investigation. It postulates that the police officer has to draw his satisfaction only on the basis of the
material which were placed before him at that stage, namely, the first information together with the documents, if any.
The conjoint reading of the two provisions clearly indicates that the police officer has no option but to register an FIR after the information with
regard to commission of cognizable offence is made available to him. The investigation of a cognizable offence is the field exclusively reserved to
the police officer 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 falling under Chapter XII of the Code. A noticeable feature of the scheme under Chapter XIV of the code
is that the Magistrate is kept in the picture at all stages of the police investigation but he is not authorized to interfere with the actual investigation or
to direct the police how the investigation is to be conducted.
The option of the Investigating officer to investigate the matter rests on two conditions as discussed hereinabove. The section itself provides
that he has to forthwith send the report to the magistrate after the registration of FIR and the steps taken by him. The Magistrate on receipt of such
report may direct investigation or if he thinks fit to depute any Magistrate subordinate to him to hold preliminary enquiry into the case. The power
of the Magistrate u/s 159 Cr.P.C. has to be exercised only on the basis of the report submitted by the investigating officer. It envisages that this
Section empowers the Magistrate to direct the investigation when the police decide not to investigate the case under proviso to Section 157(1) of
Cr.P.C. The power to investigate any cognizable offence is uncontrolled by a Magistrate, and it is only in case whether the police decided not to
investigate the case, the Magistrate can intervene and can either direct the investigation or in the alternative himself proceed or depute a Magistrate
subordinate to him to proceed in the matter and enquire into the case. The Magistrate can exercise the power of directing investigation only if the
investigating officer does not decide to investigate the case under proviso to Section 157(1). Independent of this, the Magistrate does not have any
power to direct investigation of the matter or order enquiry by a Magistrate. What is construed from the reading of the aforementioned provisions
is that the power of the police in cognizable offence is uncontrolled by the Magistrate except in the case discussed hereinabove.
In the present case the Magistrate had directed the police to investigate the matter u/s 156(3) when a complaint was presented for disposal u/s
190 of the Code. The power of the Magistrate to order investigation would arise only in case investigation in the matter was not taken on as
contemplated u/s 157(1). The other occasion when the Magistrate could look into the nature of the investigation conducted by the police is only
after report u/s 173 Cr.P.C. was submitted by the police. He could direct reinvestigation in case if he found some defect in the investigation. The
Magistrate has no power to direct investigation by police except in the cases stated herein-above. In the present case investigation was ordered by
the Magistrate and the police was investigating into the matter. The Magistrate had to await the conclusion of the investigation. He could not order
registration of the case and investigation in the matter u/s 159 Cr.P.C. as it was beyond its powers to do so. As already submitted hereinabove the
Magistrate has fell into the error in directing the registration of the case and investigation in the matter.
It is revealed from the impugned order that the Magistrate has been monitoring investigation in the case after directing investigating officer to
register the case. As already submitted hereinabove the Magistrate could take cognizance of the matter only in case the investigating officer had
decided not to investigate the case. There is no other occasion for the Magistrate to monitor the investigation. This power of monitoring
investigation by the Magistrate is not traceable to any statute. This course adopted by the Magistrate was uncalled for and tantamount to
obliterating the track of the investigation. The proceedings as such pending before the Magistrate has no legal basis.
Coining to the first issues whether this Court by exercising power u/s 561-A Cr.P.C. can quash the investigation being conducted by the
police. In order to appreciate this controversy it is to be seen whether the police after the FIR is registered has to proceed with the investigation
irrespective of the fact whether a case is made out or not. The power of the Investigating Officer is circumscribed by Section 157 Cr.P.C. which
permits the initiation of investigation only after the police officer satisfies himself about the sufficiency of the grounds to be drawn from the FIR and
materials which are accompanying such a FIR. He is required to satisfy himself with respect to sufficiency of the material which should constitute a
cognizable offence before investigation is initiated. In other words, the investigating officer has a duty cast under the statute to examine the material
and the facts which must constitute a cognizable offence before investigation is stated.
The power of the High Court u/s 561-A Cr.P.C. is to be exercised only to ensure that the process issued either by the Magistrate or by the
Investigating Officer should not lead to abuse of said process.
The second question that would arise is, can the High Court be justified in interfering with the investigation by prohibiting or precluding further
investigation while exercising power u/s 226 of the Constitution of India and 561-A of Cr.P.C. The courts have always sent a note of caution that
the investigation process should not be stalled by exercising its inherent powers. There is however, an exception to this rule. The legal position is
well settled. The legal position appears to he that if an offence is disclosed, the court will not normally interfere with an investigation into the case
and will permit investigation into the offence to be completed, if, however, the material do not disclose an offence, no investigation should normally
be permitted. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no
offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed will result in
unnecessary harassment to a party, whose liberty and property may be put to jeopardy. The liberty and property of any individual are scared and
sacrosanct and the Court zealously guards and protects them. Converse is also true that if the investigation is carried on for the purpose of
gathering necessary material for establishing and probing an offence which is disclosed. When an offence is disclosed proper investigation in the
interest of justice becomes necessary to collect material for establishing the offence, and for bringing the offender to book. It is on the basis of this
principle that the court normally does not interfere with the investigation of the case whether offence has been disclosed. Whether the offence has
been disclosed or not must necessarily depend upon facts and circumstances of each particular case.
Coming to the facts of this case, it is to be seen whether the material placed before the court discloses the commission of a cognizable offence.
The allegations as stated hereinabove are that the petitioner has made a declaration that he is a degree holder and as a result of which he was
appointed as trainee engineer in February 1997. It is further alleged that by making this false declaration he has procured appointment as a trainee
engineer. It is not in dispute that in February 1997 the petitioner had not acquired degree in bachelor of engineering. Whether this would constitute
a cognizable offence for which present investigation is going on. It has come during the course of investigation as stated hereinabove that in order to
procure status of trainee engineer, it is not necessary that the person should have completed his degree in bachelor of engineering. The report of
Investigating Officer reveals that JKPCC has been permitting all under graduates engineers to undergo practical training in the Corporation which is
revealed from various orders passed by the Corporation which is part of investigation report. As a matter of fact, it has been a practice followed
consistently by the JKPCC to permit all the students who had yet to complete there course both as engineering graduates or diploma holders to
undergo practical training. It is also not in dispute that all these trainees are not entitled to any remuneration during the training period nor this
period would be counted to their service in case they stand appointed to said Corporation. The case against the petitioner is that he has filed an
application before the Corporation stating that he was a degree holder and as such entitled to undergo practical training and it is on the basis of this
declaration that he was appointed as a trainee engineer. It is on the basis of this false declaration made by the petitioner which became the basis of
his appointment as trainee engineer in the Corporation. This is clearly mentioned in the order passed on 22.2.1997 which is quoted hereinabove. It
is also admitted vide letter dated 8.12.1998 that the petitioner would be entitled to a remuneration of Rs. 2500/- per month with effect from
1.12.1998. The petitioner acquired the degree in the bachelor of engineering somewhere in the year 1997. There is no dispute that training period
from February 1997 till 8.12.1998 is not being counted towards the service of the petitioner. As a matter of fact, aforementioned order is a fresh
appointment and takes effect only from 1.12.1998 when the petitioner was bachelor in engineering. The question before this Court is whether false
declaration made by the petitioner that he was graduate engineer at the time he was appointed in the Corporation as trainee engineer constitute any
offence.
Assuming that the petitioner has filed this false declaration that he was graduate and on that basis obtained appointment as trainee engineer, this
fact in my opinion would not constitute any offence as no benefit has been drawn by the petitioner as he has neither been given any benefit in the
service for the said training period. It is admitted case of the prosecution that one need not to be a degree holder in bachelor of engineering. The
petitioner may have been over-enthusiastic in seeking his appointment as trainee engineer by giving false declaration. It was not necessary for the
petitioner to have made such a declaration as he could otherwise had been appointed as a trainee engineer. It is important that the act of the
accused will have to connect to the benefit which he has procured by making this false declaration. There is no benefit which has accrued to the
petitioner both financially or in terms of his service career. In my opinion facts and the material collected by the Investigating Agency during the
investigation even if it remains unrebutted does not constitute cognizable offence. The direction of the Magistrate to the Investigating Officer to
trace out the application which has been filed by the petitioner and it is not traceable in my opinion is an exercise in futility. Even if the application is
traced as already discussed hereinabove would not in my opinion constitute a cognizable offence. I am fortified in my opinion with the judgment
reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, . The Hon'ble Supreme Court has enumerated the grounds on the basis of
which proceedings can be quashed both before the Magistrate and the Investigating Officer. The relevant portion of Para 108 is reproduced herein
below:
Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
There is another angle in the case that this complaint has been pursued by one Fayaz Ahmad Khan, Deputy General Manager (Adm.) JKPCC,
Srinagar who is complainant in the case. It has also come on record that complaint was filed against said Fayaz Ahmad Khan questioning his
appointment as General Manager by the petitioner. The court passed some adverse orders against the said complainant. It is this litigation which
has engaged the complainant and the petitioner in this battle. The matter has been pursued by the complainant and there was no representation
from the State Government. However, this Court is not entering into this arena as to whether the complaint is motivated or actuated with mala-
fides.
In the result, the petition is allowed. I quash the impugned order passed by the Chief Judicial Magistrate Srinagar directing registration of a
case and for further investigation in the matter. I consequently also quash proceedings pending before the Investigating Officer.