Biju K. Stephen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **Crl.MC.No.5937 OF 2019(B)** **AGAINST THE ORDER DATED 03.04.2019 IN VC 12/2016/SCE/VACB, SPECIAL CELL, ERNAKULAM PASSED BY THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, MUVATTUPUZHA** ## **PETITIONER/ACCUSED:** **BIJU.K.STEPHEN AGED 49 YEARS S/O. K.U STEPHEN, KUZHIKKATTIL HOIUSE, KAIPPATTOOR, ERNAKULAM.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/STATE:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (VC NO.12/2016/SCE/VACB, SPECIAL CELL, ERNAKULAM).** **SMT K B SONY -PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON 08.04.2021 PASSED THE FOLLOWING:** Crl.M.C.No.5937/2019 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.5937 of 2019 ---------------------------------------------Dated this the 8[th] day of April, 2021 ## **O R D E R** The petitioner is the sole accused in the case registered as VC No.12/2016/SCE by the Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Special Cell, Ernakulam under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act'). 2. The petitioner is serving as a Deputy Superintendent of Police. The case against the petitioner, for amassment of wealth disproportionate to his income, was registered after conducting confidential enquiry. The allegation in Annexure-III F.I.R is that, during the period from September, 2005 to April, 2014, he acquired properties disproportionate to his known sources of income. Crl.M.C.No.5937/2019 3 3. The investigation of the case was conducted by the Deputy Superintendent of Police, VACB, Special Cell, Ernakulam. After completing investigation, he filed Annexure-I final report (refer report) in the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha as “further action dropped”. The reason for filing such report was that amassment of wealth by the petitioner disproportionate to his income was found to be only 5.76% and it was negligible. 4. The learned Special Judge considered Annexure-1 final report and found that there were material discrepancies in that report and a detailed investigation was required. The learned Special Judge found that the conclusion of the investigating officer that disproportionate assets were only of 5.76% cannot be accepted. As per Annexure-II order, the learned Special Judge returned the final report for conducting proper investigation as regards the matters specified in that order. 5. The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-II order. Crl.M.C.No.5937/2019 4 6. Heard learned counsel for the petitioner and also the learned Public Prosecutor. 7. Learned counsel for the petitioner submitted that the court below passed Annexure-II order without considering the materials collected by the investigating officer during the investigation and therefore, it is not sustainable under law. 8. The operative portion of the impugned order passed by the learned Special Judge reads as follows: _“On consideration of the final report, it is seen that as regards many of the points mentioned above, the Investigating Officer has acted upon only oral evidence rather than searching for documents. Considering the huge amount of money involved, I think that a detailed investigation is required, and that the finding of the Investigating Officer that there is only DA of 5.76% cannot be accepted. So, the final report is returned for conducting proper investigation as regards the matters mentioned above and to file final report before the court.”_ 9. Learned Special Judge has noted the following matters in Annexure-II order: (1) No documentary evidence is produced Crl.M.C.No.5937/2019 5 to show that the accused had 77 sovereigns of gold ornaments at the beginning of the check period. (2) Rs.43,73,186/- is taken as gift received from the relatives of the accused and it is taken as the income of the accused during the check period. But, there are no materials to show that the aforesaid income was reported to any authority. Therefore, the aforesaid amount cannot be considered as the income of the accused from known sources. (3) An amount of Rs.1,95,000/- is taken as income from sale of old household articles. This amount is also not reported to any authority. Therefore, it cannot also be considered as the income of the accused from known sources. (4) The income from other sources is shown as Rs.26,40,379/-. Out of this amount, Rs.18,76,075.61/- is covered by sale proceeds of the shares held by the mother and wife of the accused. There is no explanation regarding the balance amount. (5) There is no enquiry conducted as to the undervaluation of some of the immovable properties. 10. The grievance of the petitioner is that, the learned Special Judge made the above findings, without considering the documents and other materials collected and the statements of Crl.M.C.No.5937/2019 6 witnesses recorded by the investigating officer during the investigation. 11. What course is left open for a Magistrate in a situation where the investigating agency submits final report or closure report stating that no case is made out against the accused on account of lack of evidence or for any other reason? ## 12. In **Abhinandan Jha v. Dinesh Mishra : AIR 1968 SC** ## **117** , the Supreme Court has held as follows: _“Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under_ Crl.M.C.No.5937/2019 7 _Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under Section 190(1)(c), notwithstanding the contrary opinion of the police, expressed in the final report”._ 13. In **H.S.Bains v. State : AIR 1980 SC 1883** , after referring to **Abhinandan Jha** (supra), the Apex Court observed that, “we do not have any doubt that the reference to 'Section 190(1)(c)' was a mistake for 'Section 190(1)(b)'. 14. In the instant case, though the learned Special Judge has ordered 'return of the final report', in effect, he has declined Crl.M.C.No.5937/2019 8 to accept the final report on the ground that the opinion formed by the investigating officer is based on incomplete investigation and he has ordered further investigation. 15. When a closure report or refer report is filed, before disagreeing with the opinion of the investigating officer and before ordering further investigation, is it necessary for the Magistrate to consider the documents and other materials collected during the investigation of the case? 16. In **C.B.I v. Raj Kumar Jain : AIR 1998 SC 2985** , the Apex Court considered the legality of an order passed by a Special Judge before whom C.B.I filed final report in respect of a public servant who was alleged to have committed offences under the Prevention of Corruption Act. The C.B.I in the final report stated that the allegations made against the accused were not substantiated. But the Special Judge declined to accept the said report and directed the C.B.I to conduct further investigation. When the matter ultimately reached the Apex Court, it was observed thus : Crl.M.C.No.5937/2019 9 _“As regards the direction for further investigation, it is, of course, true that the Special Judge has power to so direct if he finds, on consideration of the police report, that the opinion formed by the Investigating Officer seeking discharge of the respondent is not based on full and complete investigation, as observed by this Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117. Unfortunately, however, in issuing the above direction the Special Judge has not given any reason whatsoever which prompted him to direct further investigation nor does it appear that he has gone through the police report and its accompaniments. After recording the above finding the usual order which we are required to make is to remand the matter to the Special Judge with a direction to look into the report under Section 173(2),Cr.P.C and the documents referred to therein to decide whether further investigation should be ordered or not. But considering the facts, that since the case was registered more than 10 years have elapsed and that such a direction would further delay the matter we have for ourselves looked into these documents and found that a thorough investigation has been made and the opinion expressed by the CBI that no prima facie case_ Crl.M.C.No.5937/2019 10 _was made out against the respondent is just and proper”._ (emphasis supplied). ## 17. In **Sampat Singh v. State of Haryana : (1993) 1 SCC 561** , the Apex Court has held as follows: _“When an investigation culminates into a final report as contemplated under Section 173 of Cr.P.C., then the competent Court enjoins a duty within its authority sanctioned by law to scrupulously scrutinize the final report and the accompaniments by applying its judicial mind and take a decision either to accept or reject the final report before he takes a decision to disagree with the opinion of the investigating officer”._ ## 18. The decisions referred to above would show that, when a closure report or refer report is filed, before the Magistrate takes a decision declining to accept the said report and ordering further investigation, he shall consider the documents and other materials collected during the investigation of the case. Usually, the statements of witnesses and the documents are not filed by the investigating officer along with a refer report. Then, the Magistrate shall direct the investigating officer to produce such Crl.M.C.No.5937/2019 11 materials. 19. In the instant case, the impugned order does not show that the learned Special Judge had perused and considered the statements of witnesses recorded and the documents collected during the investigation before ordering further investigation. It appears that the learned Special Judge has passed the impugned order only on the basis of the facts stated by the investigating officer in the final report but without verifying the supporting documents or other materials. 20. In view of the above finding, the matter has to be remanded to the Special Court for reconsideration. 21. Consequently, the petition is allowed. Annexure-II order is set aside. The matter is remanded to the Special Court with a direction to consider Annexure-I final report and the documents referred to therein and the statements of witnesses recorded during the investigation of the case and to decide afresh whether further investigation should be ordered or not. Crl.M.C.No.5937/2019 12 All pending interlocutory applications are closed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.5937/2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE FINAL REPORT IN CRIME NO. VC/12/2016/SCE FILED BY THE SUPERINTENDENT OF POLICE, VACB, SPECIAL CELL, ERNAKULAM.** **ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 03.04.2019.** **ANNEXURE III TRUE COPY OF THE FIRST INFORMATION REPORT DATED 21.07.2016.** **ANNEXURE IV COPY OF THE REPORT SUBMITTED BY THE PETITIONER IN FORM NO.1 TO 6. ANNEXURE V A TRUE COPY OF THE CONFIDENTIAL VERIFICATION REPORT DATED 13.01.2015 ANNEXURE VI A TRUE COPY OF THE REVISED CONFIDENTIAL** **VERIFICATION REPORT DATED 25.01.2016. ANNEXURE VII A TRUE COPY OF THE VISITING REMARKS OF** **VISITING SPECIAL CELL ERNAKULAM ON 11.07.2016 BY THE DIRECTOR VIGILANCE.** ## **RESPONDENTS' EXHIBITS : NIL** **TRUE COPY** **PS TO JUDGE**