Law Web: Supreme Court: Order of Magistrate is not required for every facet of investigation

We are of the view that the manner in which investigation is

to be carried out must be decided by the Investigating Agency.

Further it is for the Magistrate exercising power under Section

156, CrPC to see whether the investigation is properly conducted or

not. It is for the Investigating Agency to investigate a crime in

the manner which it feels is the best. It can approach the

Magistrate for assistance or specific orders when there is

something beyond the scope of investigating agency for which orders

of the Magistrate are required but the investigating agency can

carry out the investigation, without orders of the Magistrate. It

is not necessary that for every facet of investigation, orders from

the Magistrate are required. That is not the purpose of the CrPC.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

M.A. No. 980/2019 in C.A. No. 6312/2014

PRAVEEN KUMAR PRAKASH Vs THE STATE OF JHARKHAND

Dated:OCTOBER 17, 2019.

O R D E R

This application is for recall of order dated 05.08.2019

wherein in respect of Case No. 10/2011 relating to the 1st Combined

Civil Services Examination conducted by Jharkhand Public Service

Commission (JPSC), the following observation has been made:

“Two cases being, Case Nos. 23 of 2010 and 10 of

2011, relating to 2nd Combined Civil Services Examination

and 1st Combined Civil Services Examination respectively

are stated to be still under investigation.”

The applicants who seek recall of this order are the

candidates who were successful in the 1st Combined Civil Services

Examination. The short background of the case is that the JPSC

conducted the 1st Combined Civil Services Examination pursuant to

advertisement issued in the year 2002-03. The applicants before us

were successful in the said examination and appointed by JPSC in

the month of July, 2006. It appears that no challenge was made

to their selection at that stage. In the meanwhile, the 2nd

Combined Civil Services Examination was also conduced by the JPSC

and the successful candidates joined in the year 2008. A challenge

was made to the second selection process whereby the candidates

were selected for the second examination and it was alleged that

there were large scale mal-practices in selection of those involved

in the second process and accordingly Vigilance Case No. 23/2010

was registered. Thereafter, a PIL (bearing WP (PIL) No. 3594/2011)

was filed by one Shri Budh Deo Oraon. In this PIL, the candidates

who were selected in the first selection were not made parties.

However, the allegations were made that the first selection was

also tainted and therefore the CBI should investigate in respect of

both the selections. Pursuant thereto, the FIR was registered even

with regard to first selection on 26.04.2011 as Case Crime No.

10/2011 on 14.06.2012.

It appears that in the meantime the State had terminated the

services of 19 selected candidates from the second examination.

The affected candidates moved the High Court and the High Court set

aside the order of the State on 28.06.2011. This order of the

Single Judge was challenged in LPA No. 254/2011. The LPA and PIL

were heard together. In this LPA, on 14.06.2012, an order was

passed that both the FIRs be investigated by the CBI. It was

further directed that monitoring would be done by the High Court

and stay was granted for re-instatement of those 19 candidates

whose termination had been set aside by the Single Judge. The

High Court not only set aside the order of the Single Judge with

regard to re-instatement of 19 candidates but went on to hold that

all the candidates in 2nd Combined Civil Services Examination

selected pursuant to Advertisement No. 7 of 2005 would not be

allowed to work and draw their salary till further orders of the

High Court. This order was challenged before this Court.

The special leave petition filed by the parties was disposed

of vide judgment dated 11.07.2014 which order was finally corrected

on 27.01.2017. The relevant portion of the order, as corrected,

reads as follows:

“Having heard learned counsel for the parties, we

direct that the said paragraph should be read as

follows:- In pursuance of the aforesaid order certain

employees had been employed and are working presently.

The Division Bench of the High Court wherein direction

has been given for CBI investigation is monitoring the

same. The High Court may do needful in the matter as per

law and we are only inclined to set aside the direction

pertaining to monitoring of investigation by the High

Court. Regard being had to the interim order passed we

are inclined to direct that the direction passed by the

Division Bench to the effect that the candidates selected

in 2nd Combined Civil Services Examination held pursuant

to Advertisement No. 07 of 2005 would not be allowed to

work and draw their salary till further orders of the

High Court is set aside. However, we may hasten to add

that the persons who are working presently shall continue

till the High Court finally decides the lis. Needless to

emphasize, while deciding the controversy the High Court

shall be guided by the decisions of this Court and the

concept of service jurisprudence.”

The effect of the order of this Court is that this Court set

aside the direction pertaining to monitoring of investigation by

the High Court. It confirmed the order of the High Court in so far

as the investigation into both these examinations was to be

conducted by the CBI. This Court further directed that the

candidates selected pursuant to the 2nd Combined Civil Services

Examination be allowed to work. This Court made it clear that this

would be subject to the final decision in the lis between the

parties.

The PIL petitioner filed MA No. 980 of 2019 in this Court

which came up before this Court on 22.07.2019. The grievance of

the PIL petitioner was that despite 2½ years having been lapsed,

the CBI had not completed investigation. This Court passed the

following order:

“Notice be served on the C.B.I. through the Central

Agency, returnable within two weeks.

C.B.I. to submit a report on the status of the

investigation.”

On the next date, the matter was listed before this Bench when

a status report was filed by the CBI and we passed a detailed order

with regard to 12 cases but we are mainly concerned with the

following portion of the order which reads thus:

“Learned counsel for the C.B.I. states that delay has

occurred because re-evaluation of the answer scripts to

be carried out. He prays for direction in this regard.

We permit the C.B.I. to get the answer scripts

reevaluated and grant four months time to do the

needful.”

The main grievance by Mr. P.S. Patwalia, learned senior

counsel appearing on behalf of some of the selected candidates of

the 1st Combined Civil Services Examination is that this order was

obtained by withholding certain facts from this Court and he has

specifically made reference to the order of the High Court dated

07.03.2014, which according to him only allowed the CBI to again

approach the Magistrate for getting the answer scripts of the

selected candidates re-evaluated. His argument is that this order

was not brought to the notice of this Court. If that order had

been brought to the notice of this Court, this Court may not have

passed the directions in the manner in which they passed. He also

contends that the CBI was bound to approach the Trial Court for

obtaining necessary directions in this behalf. His final

submission is that the selected candidates not being parties to

these cases, such orders could not have been passed.

As far as the last objection is concerned, we find no merit in

the same because according to us a person who is an accused has no

business in challenging the manner of investigation unless it

invades his personal liberties or rights.

We, however, do feel that it would have been better if the PIL

petitioner or CBI had brought the order dated 07.03.2014 to the

notice of this Court. Having held so, we do not feel that our

order is such that it runs counter to the order of the High Court

dated 07.03.2014.

The background of the order of 07.03.2014 is that the CBI

filed an application before the Special Judge, CBI, Ranchi praying

that the answer scripts of the selected candidates be got reevaluated

from the JPSC. It appears that this application was

allowed by the Special Judge. The answer scripts in some subjects

were re-evaluated by JPSC but thereafter JPSC stopped re-evaluating

the same and approached the High Court challenging the order of the

Special Judge dated 23.04.2013 permitting such re-evaluation by the

JPSC on the ground that the rules did not allow re-evaluation of

the answer scripts by JPSC.

The High Court held that though the CBI had the power to

investigate the matter in the manner which it felt like but in view

of the regulations pertaining to the Public Service Commission,

which do not permit re-evaluation of the answer scripts, such

direction for re-evaluation could not have been given by the

Special Judge.

Shri P.S. Patwalia, learned senior counsel has made specific

reference to certain observations of the High Court which read as

follows:

“I may agree to the proposition that the prosecuting

agency may not have any bar or barrier to go for

reevaluation. It is well within the power of the

investigating agency to find out the culpability of the

accused persons to go even for reevaluation, though under

regulation it is bar but any order passed by the court

either in civil proceeding or in criminal proceeding

would not be permissible, as has been held by the Hon’ble

Supreme Court in a case referred to above though it was

never related to criminal proceeding.

Since I have already held that it was not permissible

on the part of the court to pass such order directing the

Chairman, JPSC to reevaluate the answer sheets, it would

not be necessary for me to go to other aspect of the

matter as to whether the order passed by the Special

Judge amounts to interference or not. Nevertheless, I

may refer to a decision rendered in a case of Sakiri

Vasu (supra), wherein Their Lordships have observed that

the Magistrate does have enough power to pass such order

which appears to be just and proper for investigation and

that if it appears to the court that the proper

investigation has not been made, he can pass such order.

There has been no dispute to the proposition that the

Magistrate if feels that the investigation has not been

made properly, he may pass such order which he deems fit

and proper so that proper investigation be made.”

The contention is that these observations of the High Court

clearly indicate that the CBI should again approach the Magistrate

for directions to get the answer scripts re-evaluated. We are not

in agreement with this submission because in the final direction,

the High Court held as follows:

“Here the situation appears to be something

different. There has been no dispute over the power of

the CBI that for coming to just and logical conclusion it

can go for evaluation but such order passed by the court

directing the Chairman, JPSC to get the answer book

evaluated can be said to be against the guidelines issued

by the JPSC. Under the circumstances, the court by

passing such order has committed illegality and thereby

the order dated 23.04.2013 certainly suffers from

illegality.”