As per case facts, the appellant was charged under Section 420 IPC for allegedly cheating individuals by promising jobs. An initial investigation resulted in a report indicating a false case ...
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1381 OF 2023
(@ SLP (CRIMINAL) NO.545 OF 2020)
PEETHAMBARAN …APPELLANT
VERSUS
STATE OF KERALA & ANR. …RESPONDENTS
J U D G M E N T
SANJAY KAROL, J.
Leave Granted.
1.Two questions arise for consideration one, whether under the
recognized parameters of exercise of power under Section 482, in
the facts of the present case, the non exercise of power is
justified and two, whether the District Police Chief, Kottayam
could have ordered the further investigation pursuant to which
the second final report was filed? 2023 INSC 481
2
2.The instant appeal by special leave petition has been filed against
an order of the High Court of Kerala passed in Crl. MC No. 6314
of 2018 dated 6
th
of November, 2019 whereby a prayer to exercise
powers under Section 482, Code of Criminal Procedure, 1973 was
disallowed and proceedings under Criminal Case No. 1326/2017
was found unfit to be quashed.
3.The Appellant has been charged under Section 420 of the Indian
Penal Code, 1860, for having cheated, alongside accused no.1,
now deceased, the defacto complainant, namely Sunesh and
seven other persons of a sum totaling three lakh eightythree
thousand five hundred and eightythree rupees, in exchange for
securing jobs for them or their wives at the Kottayam Rubber
Board, as clerks.
4.An FIR was registered bearing number 1838 of 2015 under the
above stated section on 24
th
October, 2015. The accused No.2
before us is the uncle of the defacto complainant.
5.The Final Report (hereafter, FRI) placed on record dated 30
th
December, 2015 records that the complainant was asked to
produce documents in this regard, but despite notice, the same
3
were not produced, nor were any other documents, in regards to
any financial transaction. It then states “As there is no proper
evidence in this regard, it shall be considered as a false case…”
6.Interestingly, another Final Report (hereafter, FRII) forms part of
the record. It states that witness number 10, namely S.
Anilkumar, Inspector of Police, Viakom, conducted further
investigation as per Order No. D243642/16/K passed by the
District Police Chief, Kottayam.
7.It has been urged by way of this appeal that in effect, a re
investigation had been ordered, in violation of the procedure laid
down in law. Further it has been argued that; the ingredients of
Section 420, IPC have not been met and therefore the High court
has erred in not quashing the proceedings subject of the petition
under Section 482; No specific role has been attributed to the
appellant; That in all of the witness statements, the name
mentioned is that of the defacto complainant who gave the
money to the deceased accused number 1 namely, Babu and was
the instigator in other people giving the money to him. The
Appellant seeks reliance on Vinay Tyagi v. Irshad Ali
1
; T.T
1 (2013) 5 SCC 762
4
Antony v. State of Kerala
2
; Vinubhai Haribhai Malviya and
Ors v. State of Gujarat
3
; Randhir Singh Rana v. State (NCT of
Delhi)
4
; G.V Rao v. L.H.V Prasad
5
; Hari Prasad Chamaria v.
Bishun Kumar Surekha
6
.
8.Having taken note of the facts that have led to the present appeal
by special leave petition and the chief arguments made, we now
proceed to examine the law on the issues before us.
9.On the second question, that is whether District Police Chief,
Kottayam’s order was permissible in law or not, the relevant
provisions of CrPC is Section 173 (8) which reads 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 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).”
2 (2001) 6 SCC 181
3 2019 SCC OnLine 1346
4 (1997) 1 SCC 361
5 (2000) 3 SCC 693
6 (1973) 2 SCC 823
5
10.The evolution of Section 173 CrPC has been noted by this Court
in Vinubhai Haribhai Malaviya (supra). In Para 25, it is opined
that investigation after the coming into force of the Cr.PC, 1973
will include all proceedings under Cr.PC for collection of evidence
conducted by a police officer. “All” would undoubtedly then
include Section 173 (8) as well. The power therefore, under
Section 190, of a Magistrate ordering such investigation, would
encompass further investigation under Section 173 (8).
11.It has been argued on behalf of appellants that, in effect, a
reinvestigation has been conducted,
12.This Court in Vinay Tyagi (supra) gave detailed consideration to
the powers under Section 173 and Section 482 of CrPC.
“43. At this stage, we may also state another well
settled canon of the criminal jurisprudence that the
superior courts have the jurisdiction under Section
482 of the Code or even Article 226 of the
Constitution of India to direct “further investigation”,
“fresh” or “de novo” and even “reinvestigation”.
“Fresh”, “de novo” and “reinvestigation” are
synonymous expressions and their result in law
would be the same. The superior courts are even
vested with the power of transferring investigation
from one agency to another, provided the ends of
justice so demand such action. Of course, it is also a
settled principle that this power has to be exercised
by the superior courts very sparingly and with great
circumspection.
*** *** *** ***
6
45. The power to order/direct “reinvestigation” or
“de novo” investigation falls in the domain of higher
courts, that too in exceptional cases. If one examines
the provisions of the Code, there is no specific
provision for cancellation of the reports, except that
the investigating agency can file a closure report
(where according to the investigating agency, no
offence is made out). Even such a report is subject to
acceptance by the learned Magistrate who, in his
wisdom, may or may not accept such a report. For
valid reasons, the court may, by declining to accept
such a report, direct “further investigation”, or even
on the basis of the record of the case and the
documents annexed thereto, summon the accused.”
13.Per contra, the State would contend that only further
investigation upon the order of the District Police Chief was
conducted. In respect of further investigation, in Vinay Tyagi
(supra) this Court has observed:
22. “Further investigation” is where the investigating
officer obtains further oral or documentary evidence
after the final report has been filed before the court
in terms of Section 173(8). This power is vested with
the executive. It is the continuation of previous
investigation and, therefore, is understood and
described as “further investigation”. The scope of
such investigation is restricted to the discovery of
further oral and documentary evidence. Its purpose
is to bring the true facts before the court even if they
are discovered at a subsequent stage to the primary
investigation. It is commonly described as
“supplementary report”. “Supplementary report”
would be the correct expression as the subsequent
investigation is meant and intended to supplement
the primary investigation conducted by the
empowered police officer. Another significant feature
of further investigation is that it does not have the
effect of wiping out directly or impliedly the initial
investigation conducted by the investigating agency.
This is a kind of continuation of the previous
investigation. The basis is discovery of fresh evidence
7
and in continuation of the same offence and chain of
events relating to the same occurrence incidental
thereto. In other words, it has to be understood in
complete contradistinction to a “reinvestigation”,
“fresh” or “de novo” investigation.
14.This distinction between further investigation and fresh
investigation/reinvestigation/de novo investigation being that the
former is a continuation of the previous investigation and is done
on the basis of discovery of fresh material, whereas the latter can
only be done when there is a definite order of the court to that
effect which must states the reason as to why the previous
investigation is incapable of being acted upon.
15.In Minu Kumari v. State of Bihar
7
, it was observed that upon
submission of a report in terms of Section 173 (2) (i) the
concerned Magistrate has three courses of action available before
him:
(i)Accept the report and proceed further
(ii)Disagree with the report and drop the proceedings.
(iii)Direct further investigation under Section 156 (3) which is
the power of the police to investigate a cognizable offence,
and require them to make a further report.
7 (2006) 4 SCC 359
8
16. In Hemant Dhasmana v. CBI
8
it was observed that although
the section is not specific in respect of the Court’s power to order
further investigation, the power of the police can be set into
motion upon the order of such a court. It was further observed
that this order should not be interfered with even in the exercise
of the revisional jurisdiction of a higher court.
17.The above two cases make it amply clear that a magistrate has
the power to order further investigation and the cases referred to
earlier make clear that fresh investigation/reinvestigation/de
novo investigation fall into the purview of the jurisdiction of a
higher court.
18.In the present case, as is clear from FR II that S. Anilkumar,
Inspector of Police, Vaikom conducted further investigation as
per Order No.D243642/16/K, passed by a police officer and not
by any duly empowered judicial officer.
19.The Chief Police Officer of a district is the Superintendent of
Police who is an officer of the Indian Police Service. Needless to
state, an order from the District Police Chief is not the same as
8 (2001) 7 SCC 536
9
an order issued by the concerned Magistrate. Referring to Vinay
Tyagi (supra), this Court in Devendra Nath Singh v. State of
Bihar and Ors.
9
noted that there is no specific requirement to
seek leave of the court for further investigation or to file a
supplementary report but investigation agencies, have not only
understood it to be so but have also adopted the same as a legal
requirement. The doctrine of contemporanea exposito aids such
an interpretation of matters which have been long understood
and implemented in a particular manner to be accepted into the
interpretive process. In other words, the requirement of
permission for further investigation or to file a supplementary
report is accepted within law and is therefore required to be
complied with.
20.In the facts at hand, it is clear that such a permission was never
taken, granted or ordered. Consequently, FRII is without basis.
In FRI it has been stated that in the absence of any documents
in respect of the financial transactions, the instant case may be
treated as a false case. This, then would necessarily imply that
after due investigation conducted by a duly authorized person,
9 (2023) 1 SCC 48
10
the conclusion is that the ingredients of the section mentioned in
the FIR have not been met and no case is made out.
21.In Paramjit Batra v. State of Uttarakhand
10
(twoJudge bench)
it was observed that the High Court must use its powers under
Section 482 only sparingly and to facilitate the ends of justice. It
was also observed that the court must see must see whether a
dispute which is essentially of a civil nature is given a cloak of
criminal offence. In such a situation, the High Court should not
hesitate to quash the criminal proceedings to prevent abuse of
process of the court.
22.In State of Haryana v. Bhajan Lal
11
(twoJudge bench) seven
instances were laid out wherein the exercise of either the power
of Article 226 of the Constitution of India or the Inherent Powers
under Section 482, Cr.PC would be justifiably exercised. They
are
“(1) Where the allegations made in the first information
report or the complaint, even if they are taken at
their face value and accepted in their entirety do not
prima facie constitute any offence or make out a
case against the accused.
10 (2013) 13 SCC 673
11 1992 Supp (1) 335
11
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) 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.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
23.These categories of cases have been quoted with approval by a
bench of three judges in Neeharika Infrastructure Pvt. Ltd. v.
State of Maharashtra
12
. The principles in respect of the exercise
of power under Section 482 CrPC have been summarised as
under:
12 2021 SCC OnLine 315
12
A.The Police has a statutory right as well as a duty
under the Code of Criminal Procedure to investigate
cognizable offences;
B.Courts are not to stymie any investigation into a
cognizable offence;
C.When the perusal of the FIR however, does not
disclose any offense of any nature whatsoever, the
court is not to permit the investigation to proceed.
D.The powers under this section are to be used
‘sparingly’ and with due circumspection. While doing
so, the Court ought to consider whether the
allegations in the FIR disclose the commission of the
cognizable offence or not, without going into the
merits of the case.
E.In exercise of this power, it is not for the court to go
into questions of legitimacy or reliability of the
allegations made in the FIR/Complaint;
F.Quashing of a complaint should not acquire the
stature of the rule, and should be a rarity, and nor
should, in exercise of such power, an investigation be
unnecessarily cut short;
G.The Police and the Courts are two distinct organs of
the State with perspicuous spheres of activities, with
complementary functions, and so, unwarranted
interference by the latter into the former’s work is
loathe, save in the interest of securing justice and
preventing miscarriage thereof;
H.It must be noted that procedure is well establish to
deal with an FIR upon which, post investigation, no
merit is found, then the officer can file the suitable
application to that effect which will be considered by
the learned Magistrate seized of the matter;
24.The offence alleged in the FIR is Section 420 IPC which is a
serious form of cheating include inducement in terms of delivery
of property and/or valuable securities. The ingredients that must
be met in order to constitute an offence under the section have
been noted by this Court in Vijay Kumar Ghai and Ors. v. State
13
of West Bengal and Ors.
13
by a bench of two judges (consisting
one of us, Krishna Murari, J.):
“35.To establish the offence of cheating in
inducing the delivery of property, the following
ingredients need to be proved:
(i) The representation made by the person was
false.
(ii) The accused had prior knowledge that the
representation he made was false.
(iii) The accused made false representation with
dishonest intention in order to deceive the person
to whom it was made.
(iv) The act where the accused induced the person
to deliver the property or to perform or to abstain
from any act which the person would have not
done or had otherwise committed.
36. As observed and held by this Court in R.K.
Vijayasarathy v. Sudha Seetharam [R.K.
Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC
739 : (2020) 2 SCC (Cri) 454] , the ingredients to
constitute an offence under Section 420 are as
follows:
(i) a person must commit the offence of cheating
under Section 415; and
(ii) the person cheated must be dishonestly
induced to:
(a) deliver property to any person; or
(b) make, alter or destroy valuable security or
anything signed or sealed and capable of being
converted into valuable security. Thus, cheating is
an essential ingredient for an act to constitute an
offence under Section 420IPC.”
25.Significantly, no material has been placed on record to show that
the representation made by accused No.1 Babu (now deceased),
the present appellant or the de facto complainant, was false or
13 (2022) 7 SCC 124
14
that they had prior knowledge of such representation being false
and made only with the intention to deceive. There are only
statements to the effect that despite reminders by the seven
persons no jobs were secured for them or their wives. The only
ingredient out of the four required, being in the present case is
that in the ordinary course, none of the persons would have given
the accused any money, and therefore were induced to deliver
property which otherwise they would have not. No proof of any
financial transaction is on record, much less concerning the
present appellant.
26.With only one ingredient being fulfilled and mere statements
made to show dishonest intention or falsity of statement, the
threshold of Section 420 is not breached, constituting the
offence.
27.Therefore, the first question is answered in the negative.
28.In terms of second question, the above discussion makes clear
that the District Police Chief, Kottayam could not have ordered
further investigation, as that power rests either with the
15
concerned magistrate or with a higher court and not with an
investigating agency.
29.Given the above, the order dated 6
th
of November, 2019 in Crl.
MC No. 6314 of 2018 passed by the High Court of Kerala is set
aside and Criminal Case No.132 of 2017 is quashed. The appeal
is allowed in the above terms and the pending application(s), if
any, stand disposed of.
………………………J.
(KRISHNA MURARI)
..……………..…J.
(SAJAY KAROL)
Dated: 3
rd
May, 2023
Place: New Delhi
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