Sardar Jasbeer Singh & others vs Aslam Gani Patrawala and another

This revision petition has been filed against the order dated 26.03.2016 [Annexure-P-1] passed by the Special Court in Special Sessions Trial No.2/2013. By the aforesaid order, the applications filed by the petitioners under Sections 173 (8) and 156 (3) of Cr.P.C., have been rejected by the trial Court.

Petitioner No.1 was appointed as Civil Engineer in Public Works Department, in the year 1985. He was promoted as Class-I Officer in October, 1995. A raid was conducted by the Income Tax Department on 4th and 5th February, 2010 at the residence of the petitioner at Bhopal. In the aforesaid raid, it was found that the petitioner and his wife both had acquired disproportionate income of Rs.5225898.00.

The petitioner and his wife surrendered Rs.35 Lacs to the Income Tax Department.

During pendency of the trial, the petitioners filed an application under Sections 173 (8) and 156(3) of Cr.P.C. with a prayer that the trial Court shall direct the investigating Agency to conduct further investigation. Petitioners pleaded that investigating Agency has not conducted the investigation impartially. Both the applications have been dismissed by the trial Court on merits on the ground that the investigating Agency has conducted the investigation and collected the evidence and it reached on a conclusion that the income earned by the petitioners was disproportionate from their non-source of earnings.

Learned counsel appearing on behalf of the petitioners has contended that the trial Court has not considered the applications filed by the petitioners and the investigating Agency has not assessed the evidence properly. There is illegality in computing the income of the petitioners and the expenditure.

Learned counsel for the respondent-Lokayukta has submitted that the order passed by the trial Court is in accordance with law. The trial Court has appreciated the evidence in right perspective.

We have perused the record of the case. The petitioners made detailed averments in regard to their income and expenditure during the check period.

Petitioners pleaded in both the applications that it was obligatory on the part of the investigating Agency to take into consideration the evidence properly. Detail submissions have been made in this regard. The investigating Agency came to the conclusion

that the petitioner No.1 had illegally shown his income as income of the wife which is said to be earned by the wife/petitioner No.2 when she was working as Agent Adviser of ICICI Prudential Pvt. Ltd. Actually the income was earned by the husband/petitioner No.1 himself. These findings are findings of facts and it requires detail trial. The petitioners have made allegations that proper calculations have not been done by the investigating Agency. The accused persons could not direct the investigating Agency to conduct the investigation in a particular manner. The investigating Agency has a freedom to conduct the investigation in order to find out the truth. Sections 156 (3) and 173 (8) of the Cr.P.C. reads as under:-

"156. Police Officer''s power to investigate cognizable case:-

(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

173: Report of Police Officer on completion of investigation

(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- sections (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)."

This Court cannot issue a direction to the Investigating Agency to verify the allegations made by the accused/petitioners. The accused persons are at liberty to produce the evidence at the stage of trial as defence evidence. If there is no sufficient evidence against the accused, the trial Court can discharge the accused persons at the time of framing of charge by holding that prima facie there is no evidence to prosecute the accused persons for commission of offence

as alleged by the prosecuting Agency. In this case, the petitioners themselves surrendered an amount of Rs.35 Lacs before the Income Tax Department accepting that they had concealed the income. It means that the petitioners had acted contrary to law. If the case of the petitioners was that they had not concealed any income and their income was in accordance with law, then there was no question for surrender of the huge amount before the Income Tax authority as was done by the petitioners.

The apex Court in Nupur Talwar vs. CBI, AIR 2012 SC 1921 has held as under in regard to power of the Magistrate for further investigation. "The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance under Section 190 Cr.P.C. and issuing process against the petitioner and her husband under Section 204 Cr.P.C. could not have been interfered with by the High Court in the Revision filed by the petitioner. Moreover, once the order of the Magistrate taking cognizance and issuing process against the petitioner and her husband was sustained, there is no scope for granting the relief of further investigation for the purpose of finding out whether someone other than the petitioner and her husband had committed the offences in respect of the deceased persons Aarushi and/or Hemraj. As has been held by this Court in Randhir Singh Rana v. State (Delhi Administration) [(1997) 1 SCC 361], once a Magistrate takes cognizance of an offence under Section 190 Cr.P.C., he cannot order of his own further investigation in the case under Section 156(3) Cr.P.C. but if subsequently the Sessions Court passes an order discharging the accused persons, further investigation by the police on its own would be permissible, which may also result in submission of fresh charge-sheet."

In view of the aforesaid facts of the case and keeping in mind the principle of law laid down by the apex Court, in our opinion, the trial Court has rightly rejected the applications filed by the petitioners under Sections 173 (8) and 156 (3) of Cr.P.C. We do not find any illegality or irregularity in the order passed by the trial Court. Consequently, there is no merit in this revision petition. It is hereby dismissed.