Tuesday, 4 April 2017

Whether court can direct police to file fresh chargesheet if there are illegalities in investigation?

 In short, as far as a final report or the charges are

concerned, Section 13(2) of the PC Act alone cannot be

said to have an independent existence without the junction

of the exact misconduct along with Section 13(2) of the PC

Act.    For example, in a case wherein a misconduct as

defined in Section 13(1)(a) of the PC Act is alleged against

an accused, the penal provision should be incorporated in

the final report or charge as an offence under Section 13(2)

read with Section 13(1)(a) of the PC Act. It is trite that the

accused are entitled to know as to what should be the

offence committed by them in order to defend the charges

properly. The present instance is nothing but the denial of

the principles of natural justice. Matters being so, the final

report requires correction or clarification, as the case may

be.

      6.     Apart from that, this Court could notice a gross

illegality in the final report. In the final report, it has been


vaguely alleged that the public servants have favoured a

category of candidates to procure employment, through

misconduct by the public servants. In such case, the

person/persons, who procured employment through the

commission of misconduct by the public servants, are also

particeps criminis and such person also ought to have been

arraigned as accused in the case. Instead of that, the

investigating officer has chosen to cite them as charge

witnesses. This Court could have swallowed it, had they

been made approver/approvers. The investigating officer

has not made them approvers or accomplices, whereas they

have been allegedly cited as charge witnesses in the case.

The said act of the investigating officer cannot be approved.

      7.     It seems that the court below has merely taken

cognizance of the offences most mechanically without

application of mind. At the time of taking cognizance under

Section 190(1)(b) Cr.P.C., the court below ought to have



applied its mind in the final report. In case of shortcomings,

the court below is not powerless to order a further

investigation, if required or correction or clarification in the

final report, if required. The court below has not chosen to

act timely in the matter. The court below ought to have

returned the final report for correction or clarification or the

court below ought to have ordered further investigation in

the matter, if such an investigation was required.

      8.     On hearing all the parties, this Court is of the view

that a mere correction or clarification cannot improve the

present final report in any manner. According to the learned

Senior Public Prosecutor, the investigating officer has

collected material evidence against the accused. This Court

has not gone through the evidence so far collected by the

investigating officer in the matter. At the same time,

whatever be the evidence collected by the investigating

officer, the present final report cannot be improved through



a correction or clarification. The present final report is liable

to be quashed.

      9.     By quashing the final report, this Court is of the

view that, that should not be the end of the matter. Justice

has to be done. When the investigating officer had allegedly

collected evidence, it is for the investigating officer to see

that a prosecution should go on in the matter. Therefore,

what is now required is a further investigation in the matter,

for filing a fresh final report, without the aforesaid

shortcomings. 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                       MR. JUSTICE B.KEMAL PASHA

         1ST DAY OF SEPTEMBER 2016

                                 Crl.MC.No. 791 of 2015 


                K.A.HASHIM, 
V

                STATE OF KERALA,
            

           Crl.M.C. No.5593/2015 has been preferred by A3

and A4, Crl.M.C. No.5660/2015 has been preferred by A5

and A6 and Crl.M.C. No.791/2015 has been preferred by A7

in CC No.26/2014 of the Court of the Enquiry Commissioner

and Special Judge (Vigilance), Thiruvananthapuram, which

has   arisen       from       CBCID         Crime        No.133/CR/OCW-

I/TVM/2011. The aforesaid petitioners have come up for

getting the final report in CC No.26/2014 in the aforesaid

crime, quashed. W.P.(C) No.18488/2016 has been preferred

by the petitioner seeking a further investigation by the CBI


into the missing of OMR sheets relating to the valuation of

the answer papers involved in the aforesaid crime.

      2.     Heard learned Senior Counsel Sri.P.Vijaya Bhanu

for the petitioners in Crl.M.C. No.5593/2015, learned Senior

Counsel Sri.B.Raman Pillai for the petitioners in Crl.M.C.

No.5660/2015,        learned      counsel Sri.S.Rajeev for the

petitioner in Crl.M.C. No.791/2015, Sri.R.T.Pradeep and

Sri.Nagaraj Narayanan for the petitioners and learned

Senior Public Prosecutor Sri.P.Narayan. Heard learned

counsel Sri.B.H.Mansoor for the petitioner, learned Standing

Counsel for the CBI Sri.P.Chandrasekharan Pillai, and also

Sri.George Poonthottam in W.P.(C) No.18488/2016.

      3.     Learned Senior Counsel and the other learned

counsel for the petitioners have invited the attention of this

Court to the final report, which is Annexure-I in Crl.M.C.

No.5593/2015. It has been argued that the final report is

vague to the core and the same cannot be acted upon by a


court of law. Apart from that, it has been pointed out that the

offence under the Prevention of Corruption Act, 1988

allegedly committed by the accused has been shown as the

offence under Section 13(2) of the PC Act. At the same

time, it has not been pointed out in the final report as to

what is the exact nature of the misconduct allegedly

committed in the matter by the accused. Further, it has

been pointed out that apart from vaguely alleging that the

public servants had favoured some persons in procuring

employment, the identity of those persons have not been

specifically revealed in the final report.

      4.     On going through the final report and on hearing

all the learned counsel for the petitioners, it seems that the

aforesaid arguments forwarded by the learned counsel for

the petitioners are fully correct. The court below ought not

to have taken cognizance of the offences based on the

vague final report filed by the investigating officer in the


matter. As rightly pointed out by the learned counsel for the

petitioners, the petitioners are entitled to know as to what

exactly is the offence alleged against them.       Here, the

investigating officer has chosen to file the final report

alleging the offence under Section 13(2) of the PC Act. At

the same time, when specific misconducts are defined

under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d) and 13

(1)(e) of the PC Act, the investigating officer ought to have

revealed in the final report as to what exactly the nature of

misconduct committed by them. Instead of that, it has been

merely alleged that they have committed the offence under

Section 13(2) of the PC Act. Section 13(2) of the PC Act is

the penal provision for the misconducts specifically

mentioned under Sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)

(d) and 13(1)(e) of the PC Act. Apart from that, even under

Section 13(1)(d) of the PC Act, instances of separate

misconducts are shown.


      5.     In short, as far as a final report or the charges are

concerned, Section 13(2) of the PC Act alone cannot be

said to have an independent existence without the junction

of the exact misconduct along with Section 13(2) of the PC

Act.    For example, in a case wherein a misconduct as

defined in Section 13(1)(a) of the PC Act is alleged against

an accused, the penal provision should be incorporated in

the final report or charge as an offence under Section 13(2)

read with Section 13(1)(a) of the PC Act. It is trite that the

accused are entitled to know as to what should be the

offence committed by them in order to defend the charges

properly. The present instance is nothing but the denial of

the principles of natural justice. Matters being so, the final

report requires correction or clarification, as the case may

be.

      6.     Apart from that, this Court could notice a gross

illegality in the final report. In the final report, it has been


vaguely alleged that the public servants have favoured a

category of candidates to procure employment, through

misconduct by the public servants. In such case, the

person/persons, who procured employment through the

commission of misconduct by the public servants, are also

particeps criminis and such person also ought to have been

arraigned as accused in the case. Instead of that, the

investigating officer has chosen to cite them as charge

witnesses. This Court could have swallowed it, had they

been made approver/approvers. The investigating officer

has not made them approvers or accomplices, whereas they

have been allegedly cited as charge witnesses in the case.

The said act of the investigating officer cannot be approved.

      7.     It seems that the court below has merely taken

cognizance of the offences most mechanically without

application of mind. At the time of taking cognizance under

Section 190(1)(b) Cr.P.C., the court below ought to have



applied its mind in the final report. In case of shortcomings,

the court below is not powerless to order a further

investigation, if required or correction or clarification in the

final report, if required. The court below has not chosen to

act timely in the matter. The court below ought to have

returned the final report for correction or clarification or the

court below ought to have ordered further investigation in

the matter, if such an investigation was required.

      8.     On hearing all the parties, this Court is of the view

that a mere correction or clarification cannot improve the

present final report in any manner. According to the learned

Senior Public Prosecutor, the investigating officer has

collected material evidence against the accused. This Court

has not gone through the evidence so far collected by the

investigating officer in the matter. At the same time,

whatever be the evidence collected by the investigating

officer, the present final report cannot be improved through



a correction or clarification. The present final report is liable

to be quashed.

      9.     By quashing the final report, this Court is of the

view that, that should not be the end of the matter. Justice

has to be done. When the investigating officer had allegedly

collected evidence, it is for the investigating officer to see

that a prosecution should go on in the matter. Therefore,

what is now required is a further investigation in the matter,

for filing a fresh final report, without the aforesaid

shortcomings. The investigating officer shall make use of

the evidence already collected and shall conduct a further

investigation to correct the aforesaid anomalies pointed out

by this Court. The investigating officer shall take note of the

aforesaid observations and suggestions made by this Court

in carrying out such a further investigation for the filing of a

fresh final report in the matter.

      10. Regarding the further investigation sought for by


the writ petitioner by the CBI, this Court is of the view that

when this Court has ordered a further investigation in the

matter by the investigating officer, the investigating officer

shall look into the complaints forwarded by the writ petitioner

also, regarding the missing of OMR sheets relating to the

valuation of the answer papers. The investigating officer

shall carry out an investigation into those aspects also.

      11.    After such further investigation in the matter,

instead     of filing    a supplementary final        report, the

investigating officer in the present circumstances shall file a

fresh final report before the court below.

      Crl.M.C. Nos.791/2015, 5593/2015 and 5660/2015 and

W.P.(C) No.18488/2016 are disposed of accordingly.


                                                  Sd/-
                                         (B.KEMAL PASHA, JUDGE)


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