This is a petition filed under section 482 of the Code of Criminal Procedure directed against order dated 10.1.2007 passed by the Court of Enquiry Commissioner and Special Judge, Kozhikode in C.M.P.No.707 of 2006 in C.C.No.2 of 1999 arising from Crime No.VC1/1997 of Vigilance and Anti-corruption Bureau, Palakkad. That was an application filed by the prosecution under section 173(8) Cr.P.C seeking permission for further investigation in the case and the same was dismissed holding that existence of a final report in respect of the same offence under section 173(2) Cr.P.C is a condition precedent for seeking and also for ordering further investigation and that, in the case on hand, in respect of the second count pertaining to the construction of High Orgee Weir, no such final report was laid thus far and not even an FIR was registered. In such circumstances, the question of granting permission for further investigation under section 173(8) Cr.P.C would not arise, it was held.
2. The State filed this petition challenging the aforesaid order on various grounds. Firstly, it is contended that the finding of the learned Special Judge that no FIR was registered in respect of the second count is not true to facts and Annexure A1 would reveal that FIR in V.C 1 of 1997 was registered in respect of the said count as well. Secondly, it is contended that the reason assigned for dismissing CMP.707/2006 that there was no final report in terms of the provisions under section 173(2) Cr.P.C is with regard to the said count is actually incorrect as Annexure-A4 final report dated 5.3.2005 was already laid. The petitioner contended further that Annexure- A4 is the final report filed on 5.3.2005 under section 173(2) Cr.P.C and in such circumstances, it could not be said that in respect of crime No. VC.1 of 1997, no final report was laid. It is also contended that Annexure-A1 would reveal that Crime No.1 of 1997 of Vigilance and Anti-Corruption Bureau, Palakkad was registered under two counts viz., one pertaining to the formation of main canal of Moolathara Right Bank canal under the Kuriarkutty-Karappara Irrigation Project of Kozhinjampara in Palakad District and the other count pertaining to construction of High Orgee Weir and remodeling of Moolathara Head Regulator. When Annexure-A4 report was laid, investigation regarding the second count was in progress or in other words, it was not completed and therefore Annexure-A4 was a final report confining to the first count, it is contended. The aforesaid contention can only be taken as an alternative contention. As already noticed, the core contention of the petitioner is that the learned Special Judge was not correct in holding that a final report was not laid in terms of section 173(2) Cr.P.C and therefore, permission could not be granted for further investigation under section 173(8). In view of the aforesaid contention that at the time of filing of Annexure-A4 final report, investigation as regards the second count was not completed how can the petitioner canvass the position that in respect of the second count a final report was laid and therefore an application for further investigation under section 173(8) would lie. Evidently, these two contentions cannot co-exist. When faced with such a situation, the learned Public Prosecutor contended that in the light of Annexure-A4 carrying the statement to the effect that the investigation regarding the second count was not completed at the time of its laying, the petitioner may be given an opportunity to lay the final report in terms of the provisions under section 173(2) in relation to the second count.
3. The learned senior counsel for respondents appearing for respondents 1 to 5 and 8 and the learned counsel for respondents 6 and 7 contended that the main contention as also the alternative contention raised by the petitioner are absolutely unsustainable. It is contended that in the light of Annexure-R5(a), which is the factual report dated 21.11.2003 accepted by this Court as is evident from Annexure- R5 (c) common order, the petitioner could not rely on Annexure-A4 report dated 5.3.2005 for the purpose of continuing with the prosecution against the respondents. That apart, it is contended that the petitioners could not challenge the correctness of the findings of the learned Special Judge in regard to the second count in the light of Annexure-A4 report inasmuch as Annexure-A4 itself carried the specific statement from the petitioner that as regards the second count the investigation was then only in progress and was not completed and would be finalised shortly. The learned counsel for the respondents submitted that a report under section 173 (2), as is obvious from the said provision, could be laid only on completion of investigation. It is stated that, when as regards the second count the investigation was not complete, no final report could have been filed in terms of the provisions under section 173(2) Cr.P.C and if that be the position no permission could be sought for conducting a further investigation under section 173(8) Cr.P.C when no final report was filed, in so far as the same was concerned. The learned counsel for the respondents submitted that those aspects also have lost relevance and importance in the light of Annexure-R5(c) common order of this Court whereby and whereunder all the respondents stood discharged. It is further submitted that against the discharge of the respondents under Annexure-R5(c) common order Special Leave petitions were preferred before the Hon'ble Apex Court as SLP.Nos.7930 to 7937 of 2008 and they were dismissed. In such circumstances, it is contended that when all the respondents were discharged by this Court as per Annexure R5(c) common order after accepting the factual report, the petitioner could not be heard to contend that Annexure-R5(a) could have been actually treated as a departmental communication and Annexure A4 dated 5.3.2005 has to be treated as the final report.
4. I have heard the learned Public Prosecutor, the learned senior counsel appearing for respondents 1 to 5 and 8 and the learned senior counsel for respondents 6 and 7. I have already adverted to the rival contentions. From the facts expatiated above, certain indisputable and undisputed facts are obtained. Annexure-R5(c) would reveal that after Annexure R5(a) report dated 21.11.2003 was laid, the respondents moved applications for discharging them before the Court of Special Judge as Crl.M.P Nos.166/01, 169/01, and 478/06 in C.C No.2 of 1999. Those petitions were dismissed. It was challenging that order that Crl.R.P Nos. 87, 552, 553, 1613, 2110 of 2007 were filed before this Court and all those revision petitions were jointly heard along with Crl.R.P.Nos.3079/07, 3080/07 and 3081/07 filed by the State and Annexure- R5(c) common order was passed. As per Annexure R5(c) common order, this court allowed Crl.R.P.Nos.2110/07, 553/07, 552/07 and 87/07 filed by accused Nos.1, 3, 4, 7 and 9 and they were discharged and Crl.R.P.Nos.3079/07, 3080/07 and 3081/07 filed by the State were dismissed. The State filed those revision petitions challenging the discharge of accused Nos.5, 6 and 11 by the learned Special Judge by allowing Crl.M.P.Nos.169/01, 478/06 and 166/01 filed by them. A perusal of Annexure- R5(c) common order would reveal that after the first final report referred to as such in that common order, a further investigation was conducted and Annexure R5(a) factual report (Annexure-IV factual report referred as such in Annexure R5(c) common order) dated 21.11.2003 was laid. True that the petitioner contends that, the said report was not actually treated as a further report and therefore, the Department continued with the further investigation and laid Annexure-A4 further report dated 5.3.2005. Per contra, the learned counsel for the respondents submitted that Annexure-R5(c) order would reveal that Annexure R5(a) factual report dated 21.11.2003 was accepted by this Court for the purpose of considering the question whether the dismissal of the applications for discharge filed by the respondents herein invites interference or not. In fact, based on Annexure-R5(a) factual report dated 21.11.2003, referred to in Annexure R5(c) common order as Annexure-IV factual report which was also related to the second count that this Court entered into a specific finding that the rejection of applications for discharge by the Special Judge invites interference and therefore set aside those orders and finally discharged the respondents and the revision petitions filed by the State challenging the discharge of accused Nos.5, 6 and 11 were dismissed as per Annexure R5(c) order. It is in the said context that the learned counsel for the respondents submitted that when once a report is accepted as the final report by this Court for the purpose of section 173(2) Cr.P.C in regard to crime No.VC1 of 1997 the petitioners could not be heard to contend that Annexure R5(a) ought not have been considered as final report for the purpose of section 173(2) whilst it should be treated only as a departmental communication and Annexure-A4 ought to have been treated as the further report submitted pursuant to the further investigation. A scanning of Annexure-R5(c) common order would reveal that treating Annexure-R5(a) factual report as the further report laid after further investigation this Court considered the sustainability or otherwise of the claims of the respondents for discharge while considering the correctness of the orders passed by the learned Special Judge on the aforesaid Crl.M.Ps filed by the respondents taking up the plea of discharge. Evidently, Annexure R5(a) report was acted upon and accused Nos.1, 3, 4, 7 and 9 were discharged and revision petition filed by the State challenging the discharge of Accused Nos.5, 6 and 11 were dismissed. It is in these circumstances expatiated above that the question whether the impugned order in C.M.P.No.707/2006 in C.C.No.2/1999 of the court below warrants interference in exercise of the inherent jurisdiction has to be considered.
5. In this case, evidently, an original report rather a charge sheet was laid even prior to the submission of Annexure R5(a) report dated 21.11.2003. Evidently, the attempt on the part of the petitioner is to show that Annexure R5(a) ought not to have been treated as a final report and in fact, it was only a factual report submitted by the investigating officer to the superior officer. The tenor of the contention would reveal that certainly the petitioner is attempting to drive home the position that in such circumstances based on Annexure R5(a) report the respondents ought not to have been discharged. How can such a contention be sustained in view of the indisputable and undisputed fact that the Special Leave Petitions filed against Annexure-5(c) common order passed based on Annexure-R5 (a) report, were dismissed by the Hon'ble Supreme Court. Paragraphs 14 and 15 of Annexure R5(a) common order would reveal that the said factual report dated 21.11.2003 submitted by the Dy.S.P. of Vigilance & Anti Corruption Bureau, Palakkad after the investigation of the case especially, the recommendation therein to treat the same as one registered on 'mistake of fact', as the allegations are found to be baseless, was taken into consideration for passing the said order. In paragraph 14 of the common order it is recorded that the authenticity of Annexure-IV factual report dated 21.11.2003, which is produced as Annexure R5(a) in this case, was not at all challenged by the learned Public Prosecutor and that fact was recorded in the said common order since the authenticity of the said document was not at all disputed by the prosecution. It was further held in paragraph 15 as hereunder:-
“Hence there is nothing wrong in considering the said document for the purpose of appreciation of the case. In the instant case, it appears that Vigilance Department had already formed an opinion regarding the guilt of the accused when commission of the offence itself is yet to be proved and are proceedings in an unfair manner so as to have the accused prosecuted knowing well that the prosecution is not to end in a conviction of the accused. It cannot be forgotten that the penal provisions of law are not be put to use to work out harassment only when to the knowledge of the Investigating Agency there exists not even a prima facie case against the accused. “
6. Annexure R5(c) would reveal that after considering all such aspects the revision petitions filed by the accused persons were allowed and they were discharged and criminal revision petitions filed by the State were found devoid of merits and they were, accordingly dismissed. Evidently, Annexure R5 (c) common order was passed by this Court on 21.05.2008 when this criminal M.C. was pending before this Court. As noticed hereinbefore, this Criminal M.C has been filed by the State on being aggrieved by the order of the learned Special Judge in Criminal M.P. No.707/2006 in C.C.No.2/1999 on 10.1.2007 viz., on an application filed under section 173(8), Cr.P.C. That application was filed subsequent to the filing of Annexure-IV report. It is the contention of the petitioner that Annexure-IV is a further report/final report only in respect of the first count in the aforesaid crime and the investigation regarding the second count in the aforesaid crime relating the construction of High Orgee Weir was only in progress. Annexure-IV would further show that after making such statement with respect to the investigation regarding the second count it was stated thereunder that the original charge sheet and the document submitted during the first investigation are re-submitted therewith and proceedings based on the earlier charge sheet was sought to be continued against the accused except A10 and A12. In this case evidently, the original charge sheet referred as such in Annexure-IV and referred in Annexure R5 (c) judgment is a final report laid before the court on 31.12.1999. Annexure R5(a) report herein was described as Annexure-IV factual report dated 21.11.2003 in Annexure R5(c) common order and it is thereafter that another report, Annexure-A4 was submitted on 5.3.2005. Thus, it is obvious that at the time of passing of Annexure R5(c) common order by this Court on 21.5.2008 all the three reports were before this Court and that again would further go to show that despite the existence of the said reports, relying on Annexure R5(a) report dated 21.11.2003 some of the respondents therein, who were the revision petitioners therein were discharged and the revision petitions filed by the State against the discharge of the other three accused by the trial court, were dismissed. True that, a discharge is not having the effect of an acquittal. But, at the same time, after a discharge a fresh trial is possible only after collecting fresh materials. There is nothing on Annexure A4 which would reveal that as regards the second count fresh materials were collected. At the same time, Annexure R5(c) common order would reveal that this Court accepted Annexure R5(a) factual report which carried a report not only against the first count but also against the second count. The learned Public Prosecutor submitted that after the laying of the final report on 31.12.1999 an application was submitted for seeking permission to conduct further investigation. That application was allowed and thereafter a report was laid before the court after conducting an inspection and no further report was actually laid before the court as contemplated under section 173(8) of the Cr.P.C. It is the further contention that Annexure R5(a) is only a factual report and it was not actually filed before the court concerned as a further report as contemplated under section 173(8) of Cr.P.C. At the same time, it is evident that this Court rendered Annexure R5(c) common order relying on Annexure R5(a) factual report and taking note of the fact that after further investigation the prosecution arrived at a finding that there was absolutely no prima facie case against the accused. The learned Public Prosecutor submitted that since Annexure R5(a) report was only a factual report, which was not actually submitted before this Court as a report after conducting further investigation it should not have been taken as the foundation for arriving at a conclusion that the prosecution formed an opinion that no prima facie case was made against the accused. In short, the contentions raised by the petitioner would reveal that the petitioner got grievance against the acceptance of Annexure R5(a) report by this Court while rendering Annexure R5(c) common order. On a pointed query by this Court as to whether Annexure R5(c) common order was taken up further it is submitted by the learned Public Prosecutor that a Special Leave petition was filed against Annexure R5(c) common order and the same was dismissed by the Hon'ble Apex Court as submitted by the petitioners. It is also admitted that in the Special Leave petition preferred against Annexure R5(c) common order a specific contention was taken against the acceptance of Annexure R5(a) factual report. Thus, it is obvious that the Special Leave petition directed against Annexure R5(c) common order was dismissed by the Hon'ble Apex Court as per the order in Special Leave Petition in C.M.P.Nos.7930 & 7937 of 2008 dated 16.08.2012. In such circumstances, the petitioner cannot raise any grievance before this Court as against any findings in Annexure R5(c) common order. Coming back to the challenge against the order dated 10.01.2007 in C.M.P.No.707/2006 the learned Public Prosecutor contended that it is in incorrect to say that no FIR has been registered in respect of the second count. Annexure-A4 would reveal that there is substance in the said contention. It is true that the said FIR was registered on the second count, as well. If the contention of the petitioner that Annexure-A4 ought to have been taken only as a final report after the further investigation only in respect of the first count and which ought not to have been treated as a report in respect of the second count it is ununderstandable as to why and how the petitioner seek for a further investigation without laying a final report, as regard the second count. If the contention is that as against or in respect of the second count a final report was laid as early as on 31.12.1999 then also I could not find any justification in moving an application seeking further investigation in view of the admitted fact that subsequent to the laying of the final report on 31.12.1999 an application for further investigation was submitted and obtained permission for conducting further investigation, as is obvious from Annexure R5(a) factual report. How can it be said at this distance of time that Annexure R5 (a), which is referred to as Annexure-IV report dated 21.12.2003 in Annexure R5(c) common order, was not filed before this Court. When evidently the said factual report was made the foundation by this Court to arrive at a conclusion that no material was collected by the investigating officer for the purpose of connecting the accused persons with the offence and consequently to pass the said common order in the manner, as aforesaid. In short, if even after obtaining the order for further investigation no report was filed in terms of section 173(8) Cr.P.C how can another application seeking permission for further investigation could be filed, as regards the second count. It is in the said circumstances that the fact that this Court discharged some of the respondents who filed criminal revision petitions mentioned therein and upheld the discharge of certain other respondents by dismissing three revision petitions mentioned in Annexure R5(a) common order is to be looked into. There cannot be any doubt with respect to the fact that after the discharge of accused persons a fresh trial is possible only after collection of fresh materials. There is no case for the petitioner that after the laying of final report dated 31.12.1999 or even as per Annexure R5(a) any fresh material was collected to prosecute the respondents, in respect of the second count. The same situation continues even after Annexure A4. In the said circumstances, I do not find any reason to interfere with the order passed by the learned Special Judge in Crl.M.P.No.707/2006 dated 10.01.2007 declining permission to conduct a further investigation under section 173(8), Cr.P.C. as relates the second count in the absence of a final report laid in relation to the said count. In the said circumstances, this petition is liable to fail and accordingly it is dismissed with the above observations.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/dlk C.T. RAVIKUMAR, J.
JUDGMENT September, 2010