State of Kerala v. Kuriachan Chacko and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933** ## **Crl.MC.No. 3486 of 2011 ( )** **--------------------------CC.NO.219/2006 of CHIEF JUDICIAL MAGISTRATE, ERNAKULAM --------------------------------** **PETITIONER(S):** - **--------------------------** **STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA** ## **BY DIRECTOR GENERAL OF PROSECUTION.SRI.ASAF ALI** **COMPLAINANT(S):** - **---------------------------** ## **1. KURIACHAN CHACKO,** - **S/O.P.V. CHACKO, RESIDING AT PALAKKAL HOUSE G-258, SOUTHERN SIDE OF PANAMBILLY NAGAR SHOPPING COMPLEX, AT PANAMBALLY NAGAR DESAM AT ERNAKULAM VILLAGE.** **2. MRS.ACHAMMA CHACKO,** - **W/O.P.V CHACKO,RESIDING AT PALAKKAL HOUSE, NEAR POOVASSERY AT MANJOOR VILLAGE, MEMURIKARAI AT VAIKOM TALUK IN KOTTAYAM DISTRICT.** **3. MRS.LINU JOY,** - **W/O. JOY JOHN RESIDING AT PAVVATHIL HOUSE AT ASSUMPTION CHURCH ROAD AT MADAMBILLY VILLAGE, KUCHANATT KARA AT CHANGANASSERY TALUK IN KOTTAYAM DISTRICT.** ## **4. MR.P.V.CHACKO,** - **S/O.WARKEY,RESIDING AT PALAKKAL HOUSE, NEAR POOVASSERY BUND AT MAMURIKARA AT MANJOOR VILLAGE IN VAIKOM TALUK.** **5. MR.RENEESH, S/O.T.N. GIRI RAJAN, RESIDING AT RAJ NIVAS, NEAR CHAKKALAPPADAM AT LITTLE FLOWER CHURCH ROAD AT KALOOR DESAM IN ERNAKULAM VILLAGE.** **2/-** **sts** **-2-** **CRMC.NO.3486/2011** **6. MR.VINOD V.LUKA, RESIDING AT VALIOMPRAYIL HOUSE PUTHUYA ROAD SIDE AT PERINGATTIMUKAL KARA AT THRIKAKKARA NORTH VILLAGE.** **7. MR.SUSHIL JOSEPH,** **S/O.JOSEPH, RESIDING AT PARAKKADAVIL HOUSE, NEAR FATHIMA PURAM CHURCH AT FATHIMA PURAM KARA AT CHANGANASSERY TALUK IN KOTTAYAM DISTRICT.** **BY SRI.M.K.DAMODARAN,SENIOR ADVOCATE** **ADV. SRI.O.V.MANIPRASAD** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRMC.NO.3486/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A1 COPY OF THE ORDER DATED 5/7/2006 IN WP(C)NO.12775/06 AND CONNECTED CASES.** - **ANNEX A2 COPY OF THE REPORT DATED 22/7/2011.** - **ANNEX A3 COPY OF THE APPLICATION DATED 3/8/2011.** - **ANNEX A4 COPY OF THE ORDER DATED 25/8/2011. ANNEX 5 COPY OF THE LETTER NO.49277/C2/01/HOME DATED 8/7/2011 OF ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT.** - **ANNEX 6 COPY OF THE LETTER NO.2134/E/11/DGP DATED 16/7/2011 OF DIRECTOR GENERAL OF PROSECUTION(ADMN)** - **ANNEX 7 COPY OF THE LETTER NO.2134/E/11/DGP DATED 25/8/2011 OF DIRECTOR GENERAL OF PROSECUTION (IN-CHARGE)** ## **RESPONDENT'S ANNEXURES:** - **ANNEX R1 COPY OF THE ORDER DATED 27/10/2005 IN CRL.MC.NO.2912/2005** - **ANNEX R2 COPY OF THE JUDGMENT DATED 30/01/2006 IN WP(C)NO.33743/2005.** - **ANNEX R3 COPY OF THE LETTER DATED 9/5/2006 AND THE CONTENTS OF F1 STATEMENT.** **ANNEX R4 COPY OF THE LETTER DATED 02/05/2006 OF THE COMMISSIONER OF POLICE, KOCHI CITY TO THE CIRCLE INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM.** **ANNEX R5 COPY OF THE ORDER DATED 31/8/2006 IN I.A.NO.12103/2006 IN WP(C) NO.12775/2006 OF THIS HON'BLE HIGH COURT.** **ANNEX R6 COPY OF THE ORDER DATED 20/1/2011 IN CRL.M.P.NO.229/2011 IN CC NO.219/2006 OF THE CHIEF JUDICIAL MAGISTRATE,ERNAKULAM.** **ANNEX R7 COPY OF THE OBJECTION FILED BY THE ACCUSED IN CRL.M.P.NO.2733/2011** - **ANNEX R8 COPY OF THE REPLY TO ANNEXURE-R7 OBJECTIONS.** - **ANNEX R9 COPY OF THE REJOINDER FILED BY THE ACCUSED.** **ANNEX R10 COPY OF THE LETTER DATED 24/6/2011 BY THE CW-1 IN THE CASE SUBMITTED BEFORE THE CHIEF MINISTER.** **sts** **2/-** **-2-** **CRMC.NO.3486/2011** - **ANNEX R11 COPY OF THE ORDER DATED 14/7/2011 OF THE COMMISSIONER OF POLICE, COCHIN CITY.** - **ANNEX R12 COPY OF THE APPLICATION BY THE ASSISTANT COMMISSIONER OF POLICE, NARCOTIC CELL BEFORE THE COMMISSIONER OF POLICE, COCHIN CITY.** - **ANNEX R13 COPY OF THE APPLICATION BY THE ASSISTANT COMMISSIONER OF POLICE, NARCOTIC CELL BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** - **ANNEX R14 COPY OF THE NOTIFICATION ISSUED AS PER G.O.(MS) NO.190/2011/VYVA** - **ANNEX R15 COPY OF THE AFFIDAVIT DATED 11/06/2006 IN WP(C)NO.12775/2006 OF THIS HON'BLE COURT.** - **ANNEX R16 COPY OF THE PETITION DATED 3/5/2006 OF THE CIRCLE INSPECTOR OF POLICE,CENTRAL POLICE STATION, ERNAKULAM.** - **ANNEX R17 COPY OF THE ORDER DATED 10/5/2006 OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM ALONG WITH A READABLE COPY.** - **ANNEX R18 COPY OF THE STATEMENT MADE BY CW-I APPEARED IN THE NEW INDIAN EXPRESS DATED 27/6/2011.** - **ANNEX R19 COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBUMI DAILY 28/6/2011.** - **ANNEX R20 COPY OF THE NEWS ITEM PUBLISHED IN MADHYAMAM DAILY DATED 30/6/2011** - **ANNEX R21 COPY OF THE NEWS ITEM APPEARED IN MALAYALA MANORAMA DAILY DATED 7/7/2011.** - **ANNEX R22 COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBUMI DAILY DATED 8/7/2011.** - **ANNEX R23 COPY OF THE NEWS ITEM PUBLISHED IN NEW INDIAN EXPRESS.** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. M.C. No: 3486 OF 2011 -----------------------------------------Dated this the 13[th] day of February, 2012 ## **O R D E R** This petition is filed by the State challenging Annexure A4 Order in C.M.P. No:2733/2011 passed by the learned Chief Judicial Magistrate, Ernakulam. The respondents are the accused in C.C. No:219/2006 facing trial before that Court. Annexure A4 Order was passed on an application filed by the learned Assistant Public Prosecutor who was conducting the case before the trial Court, for postponement of further trial in that case. The accused therein, were facing trail for offences punishable under section 420 of IPC and also for offences under section 3, 4 and 5 of the Prize Chits and Money Circulation (Banning) Act, 1978, (for short, hereinafter referred to as '1978 Act'). The F.I.R. in that case was registered by the police officer _suo motu_ based on the information received alleging violation of the provisions of '1978 Act'. ## **Crl. M.C. No:3486/2011** **-2-** 2. Crl.M.C. No:1377/2006 was filed by the accused to quash the F.I.R. registered against them. Another writ petition was also filed as W.P.(C) No:12775/2006. Those petitions were disposed of by the Division Bench of this Court as per a common judgment dated 5.7.2006. Two months time was granted, by this Court, for filing the final report. Accordingly, final report was filed before the learned Magistrate. 3. After hearing, the trial Court directed the framing of charges against all the accused persons under section 2(c) r/w sections 3, 4 and 5 of '1978 Act' and also under section 420 of I.P.C. Though, in the charge sheet filed by the police, the prosecution wanted to frame charge against the accused under the provisions of Reserve Bank of India Act, the Court below did not order framing of charges under those provisions. As against the order directing charges to be framed against the accused, a petition was filed by the accused before this Court to quash the same. The **Crl. M.C. No:3486/2011** **-3-** prosecution also challenged that part of the order passed by the learned Magistrate refusing to frame charges against the accused under other provisions of 1978 Act and also under the Reserve Bank of India Act, 1934. Both those petitions were disposed of by this Court as per the common order passed on 19.7.2007, dismissing all the revision petitions filed against the order passed by the trial Court. The accused persons took up the matter before the Honourable Supreme Court and as per judgment dated 10.7.2008, the Honourable Supreme Court confirmed the order passed by this Court. 4. According to the prosecution, the accused are partners of M/s. LIS, Ernakulam, a partnership firm engaged in the business of sale of lotteries and magazines after collecting advance money. They floated a scheme known as "LIS Deepasthambham Scheme". A person has to pay Rs.625/- and purchase one unit of lotteries from the promoters. The promoters will make use of Rs.350/- to **Crl. M.C. No:3486/2011** **-4-** purchase 35 lottery tickets of the Kerala State Government, each of Rs.10/- for the unit holder for the next 35 weeks. If the unit holder wins any prize up to Rs.5,000/- in the 35 draws, the promoters shall collect the amount and pay the same to the unit holder. If the unit holder wins any prize above Rs.5,000/-, the ticket shall be handed over to the unit holder for collection of the amount. The balance of Rs.275/(Rs.625 – Rs.350) would be used to make the unit holder a subscriber of a magazine by name 'Thrikalam' for one year. The said magazine would reproduce relevant and important materials from other magazines. It would also furnish necessary information about the lottery tickets which have won prizes. The unit holder would be returned (paid) not only Rs.625/- which he had initially invested, but twice his investment i.e., Rs.1,250/- (less Rs.100/- as service charges for the promoters and legal deduction for tax, etc) on an early date. As per the scheme, on sale of three tickets of Rs.10/- each, the Government would pay ## **Crl. M.C. No:3486/2011** **-5-** commission of 28% of which the promoters would share 25% with the unit holders. Likewise, the publisher of the magazine would give commission of 30% to the promoters and promoters would share 25% with the unit holders. As per the scheme these amounts are available to the unitholder. Under the scheme, in order of strict seniority, the senior most unit holder would be paid Rs.1,250/- as soon as the requisite amounts are available as commission with the promoters. The promoters, in addition to 28% commission for the lottery tickets, and 30% commission for the magazines, would also get commission for the prizes won by the tickets sold through them from the Government. Those amounts also would be entirely made available for payment to unit holders. If a unit holder is paid Rs.1,250/- before the expiry of 35 weeks, no lottery tickets will be purchased on his behalf, thereafter. It is because he had already been paid the requisite amount. On the same reasoning, if the amount of Rs.1,250/- is paid to the subscriber before the ## **Crl. M.C. No:3486/2011** **-6-** expiry of one year, 'Thrikalam' magazine would also be not sent to the subscriber thereafter. The price of unpurchased lottery tickets and unused magazines thereafter will be used by the promoters towards the payment of amount of Rs.1,250/- to other unit holders. 5. The representation made by the promoters was that the scheme was viable as well as workable and that all members would be able to double their investment at the earliest. No specific time however, was given but it was assured that the amount would be doubled at the earliest and it would be paid on the basis of seniority. Under the scheme, the amount of Rs.1,250/- (double the investment by the unit holder) is to be paid as soon as 14 more members are enrolled. The advantage of technology was borrowed. Passwords could be chosen. There was a web site for promoters. The unit holder could use his password and the site would reveal all details about the tickets purchased on behalf of the unit holder by the promoters. **Crl. M.C. No:3486/2011** **-7-** The unit holders thus would be able to know the details of the tickets purchased for them by the promoters and would also be able to ascertain whether any prizes had been won by any ticket purchased on their behalf by the promoters. 6. The idea appeared to be very attractive. Several persons participated and invested money. The membership collection during a short period of time reached to almost Rs.500 crores. Amounts were being paid to the unit holders initially very promptly – on many occasions even before the expiry of 35 weeks. More and more subscribers joined the queue. There was aggressive publicity and marketing through visual (TV) and printed media (pamphlets and newspapers). The scheme was proceeding very happily. More and more amounts were coming into the kitty of the promoters from unit holders. Suddenly, however, there was a jolt to the scheme. 7. Police Authorities registered a crime against the promoters for an offence punishable under section 420 of ## **Crl. M.C. No:3486/2011** **-8-** Indian Penal Code (IPC) and also under the 1978 Act and under the Reserve Bank of India Act, 1934. After conducting investigation charge sheet was laid against the accused, the partners of that Firm. The learned Chief Judicial Magistrate, Ernakulam by order, dated November 14, 2006, framed charge against the accused therein for offences punishable under section 420 r/w 34 IPC and under section 4 and 5 r/w section 2(c) and 3 of the Act, but discharged all the accused for the offences punishable under sections 4 and 5 r/w sections 2(e) and (3) of the Act and also under sections 45I(bb), 45S and 58B of the Reserve Bank of India Act, 1934. That Order was challenged before this Court. 8. It was argued on behalf of the accused that the scheme formulated by the accused does not fall within the mischief of money circulation scheme and so the Penal provisions of sections 4 and 5 cannot be invoked. It was also argued that similar schemes were formulated by other **Crl. M.C. No:3486/2011** **-9-** firms/institutions/companies and that action was not taken against such persons, companies etc. That was stoutly resisted by the learned State Prosecutor, but would submit that actions were taken towards other persons also. If the State Police has not taken action against the illegal activities carried on by any such institutions that is a matter to be brought to the notice of the investigating agency/Police and if they fail to conduct investigation in respect of those matters then the matter has to be taken to the Court. Therefore, arguments in that line cannot be accepted to hold that there was _mala fides_ in the action taken by the prosecution in this case. 9. The expression 'money circulation scheme' contained in section 2(c) of 1978 Act means any scheme, by what ever name called for the making of quick and easy money. It is the scheme for the making of quick and easy money or for the receipt of any money or valuable thing as the consideration for a promise to pay money, on any event ## **Crl. M.C. No:3486/2011** **-10-** or contingency relative or applicable to the enrolment of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions, that is objectionable. _Prima facie_ it was found by the Courts that both the essentials of section 2(c) are present and that the scheme formulated by the accused provides for making of quick and easy money and that it was dependent upon any event and contingency relative or applicable to the enrolment of members into the scheme. 10. As per the scheme, a member would be entitled to get double the amount within 35 weeks. It was found by this Court that it is a mathematical impossibility. It was also found that the promoters of the scheme very well knew that it is certain that the scheme was impracticable and unworkable making tall promises which the makers of the promises knew fully well that it could not work successfully. It was observed by the Court that it could ## **Crl. M.C. No:3486/2011** **-11-** work for some time in that 'Paul can be robbed to pay Peter' but ultimately when there is a large mass of Peters, they will be left in the lurch without any remedy as they would by then have been deceived and deprived of their money. It was so observed by the apex Court, when this matter was taken to the apex Court challenging the order passed against the order framing charge against the accused, vide the order of the apex Court reported in **KURIACHAN CHACKO V. STATE OF KERALA 2008(3) KHC, 155** . Of course, it was made clear by the apex Court that the trial Court should finally decide the case uninfluenced by the observations made by the apex Court. 11. These aspects were mentioned here since arguments were addressed to the effect that the activities carried on by the accused persons did not/do not attract any of the penal provisions with which they stood charged. 12. It is submitted by the learned State Prosecutor that since this Court had earlier directed, while disposing of **Crl. M.C. No:3486/2011** **-12-** the petitions challenging registration of the crime, that the final report shall be filed within two months from the date of the order, because of the time constraints the final report was filed with such materials as were then brought to the notice of the investigating agency, but that does not mean that the investigating agency is precluded from conducting further investigation. It has been further submitted that information was received from the Sub Registrar, Mattancherry, through his letter dated 21.6.2011, which furnished details of landed properties worth Rs.3,50,00,000/-, acquired by the accused persons using the money paid by depositors/investors. According to the prosecution the amount paid by the members was illegally converted to purchase such properties, and that is a material piece of evidence the prosecution has to rely upon to substantiate the charges framed against the accused. 13. It was contended by the prosecution that thousands of people were enrolled in the scheme formulated ## **Crl. M.C. No:3486/2011** **-13-** by the accused persons. Before filing of the report, under section 173(2) of IPC, some of them could not be found out and so their statements could not be recorded. It was also stated that the investigating officer could subsequently come to know of certain very important documents and other records pertaining to the illegal running of the business, which were not earlier found out. According to the prosecution those material documents and statements of the witnesses, which were unearthed during further investigation conducted in the matter, are certainly matters to be produced before the trial Court. 14. It is argued by the learned Director General of Prosecution/State Prosecutor, Sri. T. Asaf Ali that since the matter involved loss of huge amount of the innocent public, the delay caused in unearthing or adduction of those material documentary or oral evidence cannot be shut out. Since the investigating officer was conducting such further investigation and since so many documents were actually ## **Crl. M.C. No:3486/2011** **-14-** seized and statements were recorded, the prosecution thought it fit to inform the learned Magistrate to keep the trial in abeyance for a short while, so that the remaining witnesses could be examined only after the witnesses who are to speak with regard to the materials subsequently collected, are examined as otherwise, sometimes, it may necessitate the re-calling of the witnesses already examined and that was the reason why that petition was filed before the Court below under section 309 of Cr.P.C. 15. The learned State Prosecutor would submit that it was not a delaying tactics, for, the prosecution would only be interested in expediting the trial but because of the peculiar circumstances obtained in this case, further investigation had to be conducted and to avoid unnecessary difficulty in the examination of the witnesses, the request to stop the trial was made before the Court below. It was a genuine and honest request and there was no reason for the learned Magistrate to attribute _mala fides_ in it. ## **Crl. M.C. No:3486/2011** **-15-** 16. It is also submitted by the learned State Prosecutor, Sri. T. Asaf Ali, that a petition was also filed before the learned C.J.M., informing that Court that further investigation was being conducted in this case. In regard to the petition filed by the prosecution, the learned C.J.M. has made a comment: “This Court described that application as '2 pieces of paper filed by a gentleman' but no orders have been passed in that application”. The aforesaid sentence depicts the mind of the learned Magistrate who has treated that petition with contempt. No order was admittedly passed by the Magistrate on the application filed by the prosecution under section 173(8) of Cr.P.C. 17. It was also stated by the prosecution that during the investigation in this case a compact disc was seized. It was requested to be decoded and a report was to be obtained regarding the same from C-DAC. But the report was not filed and so that also was required to be obtained and produced in Court. It is submitted by the learned ## **Crl. M.C. No:3486/2011** **-16-** Senior Counsel, Sri.M.K. Damodaran, appearing for the accused that the report from C-DAC was subsequently produced in Court after the impugned order was passed.. Anyway evidence has to be led touching that matter as well. 18. The learned Magistrate, as per Annexure A4 Order, has critically commented upon the investigating agency stating that the so called further investigation is manifestly attended with _mala fides_ and maliciously instituted. It is inconceivable how the learned Magistrate could know what was the line of further investigation that was being conducted and what all were the materials collected, even before a further report is filed, the prosecution asks. 19. The request made by the Investigating Officer was only to have a further investigation in the matter. No where it was stated that what was sought for is a request for fresh investigation or re-investigation. The learned Magistrate also says that no police authorities have a case ## **Crl. M.C. No:3486/2011** **-17-** that any fresh or further information or material has come into the possession of the investigating officer to enable him to conduct further investigation. That statement is also factually wrong. The information given by the investigating agency to the learned Magistrate was, in regard to the further investigation which was being conducted in the matter. At that point of time the investigating officer cannot produce all the records seized or the statement of the witnesses recorded, to the Court. Those details, the statements and documents are to be produced before the court when further report is filed under section 173(8) of Cr.P.C. 20. It was also observed by the leaned Magistrate that the further investigation was being conducted to “correct the statements” given by the prosecution witnesses. That also is a misconception of facts. What was intended by the prosecution and what was told by the prosecution is that some material witnesses were to be questioned again in ## **Crl. M.C. No:3486/2011** **-18-** regard to various documents and records seized by the investigating officer during further investigation and those witnesses are also to be examined in Court. That does not mean that those witnesses are to be examined to correct the statements of the witnesses already examined. Whether any witness already examined has to be re-called for further examination is not a matter which now arises for consideration. 21. The learned State Prosecutor would submit that a perusal of Annexure A4 Order would show that the learned Magistrate was highly prejudiced against the prosecution and has made unnecessary and unwarranted comments, that too, in a petition filed under section 309 Cr.P.C. The only request made by the prosecution was that in view of the fact that further investigation was being conducted, it would be ideal, just and proper that the examination of other witnesses is stopped for a while till the further report is filed. ## **Crl. M.C. No:3486/2011** **-19-** 22. Learned Senior counsel, Sri. M.K.Damodaran, appearing for the accused would vehemently argue in support of Annexure A4 Order stating that right to speedy trial is embedded in the statutory law, as article 21 declares that no person shall be deprived of his life and liberty except in accordance with the procedure prescribed by law, as held by the apex Court in **A.R.ANTULAY Vs. R.S.NAYAK (1992) 1 SCC 225, KARTAR SINGH & ANR. Vs. STATE OF PUNJAB & ANR. (1994) SCC (CRI) 899** and **RAMACHANDRA ROA Vs. STATE OF KARNATAKA 2002 (2) KLT 189** . The decision in **STATE OF U.P. Vs. SAMBHU NATH SINGH (2001) 4 SCC 667** has also been relied upon by the learned senior counsel in support of his submission that once examination of witnesses is commenced the Court has to continue the trail until all witnesses in attendance are examined and that if the Court wants to deviate from that procedure, it has to record the reasons. It is also submitted that if all the witnesses are **-20-** ## **Crl. M.C. No:3486/2011** present in Court, the Court has to examine them and only if there are special reasons, the Court can adjourn the case for examination of other witnesses on another date. ## 23. In **T.T.ANTONY Vs. STATE OF KERALA & ORS AIR 2001 SUPREME COURT 2637** , it was held: “A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under section 173(2) Cr.P.C. it would clearly be beyond the purview of Sections 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in **-21-** ## **Crl. M.C. No:3486/2011** a given case. In our view a case of a fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution. 24. In that case it was also held by the apex Court that the scheme of the Cr.P.C. is that an officer-in-charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under sections 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or **Crl. M.C. No:3486/2011** **-22-** material, he need not register a fresh FIR, he is empowered to make further investigation; normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 Cr.P.C. 25. That was a case where a second F.I.R. was registered on the basis of the letter of the Director General of Police. But the apex Court made it clear stating that the order does not preclude the investigation agency for seeking leave of the Magistrate Court for making further investigation and filing further report or reports under section 173(8) of Cr.P.C. 26. Arguments were addressed at length to the effect that no fresh investigation or re-investigation is permissible. There is no dispute regarding that fact. The learned State Prosecutor also submits that at no point of time it was stated by the prosecution, before the learned Magistrate, ## **Crl. M.C. No:3486/2011** **-23-** that any fresh or re-investigation is conducted or sought to be conducted but only further investigation is conducted since the investigating officer has come to know of certain material documents which are so germane to bring the true facts before the Court and that what is being done by the investigating agency is not a re-investigation or fresh investigation but only further investigation. 27. The learned Senior counsel, Sri.M.K. Damodaran, appearing for the accused has also relied upon the decision in **BABUBHAI Vs. STATE OF GUJARAT & ORS. (2011) 1 SUPREME COURT CASES (CRI) 336** . The observation made by the apex Court in **T.T.ANTONY** 's case cited supra, **(2001) 6 SCC 181** was followed in **BABUBHAI** 's case cited above. Since it is not a case where fresh investigation that is being conducted in this case, the aforesaid decision is not applicable to this case. 28. It is also argued by the learned senior counsel that investigation into a criminal offence must be free from **Crl. M.C. No:3486/2011** **-24-** objectionable features or infirmity which may lead to the grievance on the part of the accused, that investigation was unfair and was carried out by ulterior motives. It is also argued that the duty of the investigating officer is not merely to bolster up a prosecution case with such evidence to secure a conviction, but his duty is to place true facts before the Court by conducting impartial investigation. There is no reason for the accused to have an apprehension that impartial investigation will not be conducted because what is stated by the Prosecution is that the Investigating Officer has come into possession of so many documents and that statements of the witnesses are being recorded pertaining to those documents. Since it will be borne out by the records that may be produced, apprehension to the contrary can only be unfounded, the prosecution contends. It is true, that it has not been stated what all are those documents seized but it is stated that now it is not stated lest it should hamper the further investigation itself. ## **Crl. M.C. No:3486/2011** **-25-** 29. It was also argued that, as has been held by the apex Court in **NAVINCHANDRA N.MAJITHIA V. SATE OF MEGHALAYA (2000) 8 SCC 323** , the investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. 30. The learned senior counsel, Sri. M.K. Damodaran, submits that the investigating officer was prompted or influenced by CW1 and it was only at his instance or behest further investigation was/is conducted, and so it is argued that the further investigation was/is not conducted impartially, uninfluenced by extraneous reasons or pressure. The dictum laid down in the various decisions is that investigation should be totally extricated from any extraneous influence. 31. The learned State Prosecutor would submit that the entire arguments advanced by the learned Senior ## **Crl. M.C. No:3486/2011** **-26-** Counsel for the accused is on the premise that the investigation was conducted as desired or dictated by CW1. But in fact, the further investigation was not conducted at the behest of anybody else but only based on the materials obtained by the Investigating Officer only. 32. In **BABUBHAI V. STATE OF GUJARAT** cited ## supra, it was held: “Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation.” 33. So far as the case on hand is concerned, the learned State Prosecutor has submitted that so many relevant documents were seized and statements of the **-27-** ## **Crl. M.C. No:3486/2011** witnesses were also recorded and that it can never prejudice the accused. In other words those documents would actually unravel the truth and as such the contention that further investigation is tainted or biased has no legs to stand. 34. It was submitted by the learned senior counsel for the accused that 73 witnesses were already examined by July, 2011. On 23.7.2011 a petition was filed, which according to the accused was done at the instance of CW1 for conducting further investigation and to request the Court to stay the trial. As has been stated earlier, no order was passed by the learned C.J.M. on the petition relating to further investigation. The learned Magistrate was apprised of the further investigation being conducted in the matter. According to the prosecution, it was thought that the learned Magistrate would not continue the trial of the case, for, that would cause unnecessary difficulty in the continuance of the trial. But since the learned Magistrate ## **Crl. M.C. No:3486/2011** **-28-** was not inclined to stop the trial, petition had to be filed by the prosecution on 3.8.2011 requesting the Magistrate to stop the examination of the witnesses till the further report is filed. 35. The learned senior counsel for the respondents/accused would submit that the application was filed as directed by CW1. The circumstance under which petition under section 309 Cr.P.C. was filed has already been adverted to. The contention that it was actually an interruption caused by CW1 in the further trial of the case is bereft of any merit. 36. It was also argued by the leaned senior counsel for the accused that the undue interest of CW1 in this case is revealed from his press statement and the petition submitted by him to the Chief Minister. The fact that he had sent a submission to the Chief Minister is not disputed. But the learned State Prosecutor would submit that it was CW1, who conducted searches, caused searches in the offices of ## **Crl. M.C. No:3486/2011** **-29-** the accused firm, registered the FIR and seized certain documents and so it is quite natural that when he later realised that the case was subsequently not properly investigated or that the trial was not properly conducted, that he thought that it should be brought to the notice of the Chief Minister. 37. There was nothing to show that it was sent with _mala fide_ intention or with any malicious design to belittle the Court. Even if CW1 has shown over zealousness in giving a submission/letter to the Chief Minister, that cannot be termed as _mala fides_ nor can it be said that he had a _mala fide_ intention in getting the trial postponed or to somehow or other get at some documents or statements with malicious design. 38. In this connection, the learned State Prosecutor would submit that when the accused challenged the order framing charge by filing revision petition in this Court, the very same contention was advanced by the accused that **-30-** ## **Crl. M.C. No:3486/2011** ## there was _mala fide_ on the part of CW1. With regard to that contention this Court observed: “That at least one police officer opened his eyes and swung into action belatedly while all the other powers that be feigned slumber is no evidence of his mala fides. That he thought that he could not do the same when one popular Government was in power and may not be able to do so after the next assumes office may be a sad commentary on such Governments but does not certainly point to his mala fides. That he may be acting at the behest of other financial institutions envious of the petitioners is not an argument which has been rendered probable by materials to even reckon the same as a contention”. 39. The order passed by this Court was confirmed by the apex Court. Therefore, the contention that CW1 was behind the screen and that he was controlling the investigation with _mala fides_ etc cannot be accepted at this stage. 40. The main argument that was advanced by the learned senior counsel, Sri.M.K. Damodaran, appearing for the petitioners is that though the crime was registered in ## **Crl. M.C. No:3486/2011** **-31-** the year 2006, the investigating agency did not think of conducting further investigation till July, 2011. It was contended by the respondents that C.M.P. No:2733/2011, on which Annexure A4 order was passed, was a camouflage to conduct a further investigation. It was contended that the fact that an earlier petition filed for the same purpose was rejected by the learned Magistrate was conveniently suppressed by the prosecution. 41. But the learned State Prosecutor would submit that the earlier petition was not filed by the investigating officer but was filed only by the prosecutor who was then conducting the case. It is further submitted that since it is only the officer in charge of the police station, who obtained further evidence, oral or documentary, can forward it to the Magistrate, the earlier petition filed by the prosecutor was rightly dismissed by the learned Magistrate and that was the reason why that order was not challenged. But that does not mean that the officer in charge of the police station, who ## **Crl. M.C. No:3486/2011** **-32-** obtains further evidence, oral or documentary, is precluded from forwarding it to the Magistrate. The earlier order does not operate as estoppel or _res judicata_ , the learned State Prosecutor submits. Therefore, the fact that earlier application was wrongly filed by the A.P.P. and that petition was dismissed by the learned C.J.M. is no reason to say that further investigation shall not be conducted at all. 42. The learned State Prosecutor would submit that though the accused persons would strongly contend that delay was caused in the trial of the case, obviously oblivious of the fact that they themselves challenged the order framing charge against them before this court and also before the apex Court and so till 10.7.2008, the matter was pending adjudication regarding the charges framed against the accused. It is true that there was delay in the starting of trial but the learned State Prosecutor submits that the documents and evidence collected earlier itself was voluminous and so the A.P.P./D.P.P., who was conducting ## **Crl. M.C. No:3486/2011** **-33-** the case, had to go through the documents and statements and since that officer was also to conduct so many other cases in that court delay happened to be there. But that is no reason to say that when the investigating officer could obtain evidence, oral and documentary that should be totally shut out. 43. It was also argued by the learned senior counsel that though the prosecution contends that the investigating officer has unearthed certain documents and other evidences, what are the hidden truth required to be unearthed and in what respect the investigation had not been carried out earlier, is not discernible. But the learned State Prosecutor has submitted that the nature of the documents seized during further investigation and the statements of the witnesses already recorded can be produced before this Court in a sealed cover but it cannot be now disclosed till further report is filed, as it would affect the collection of some more documentary and oral evidence. **-34-** ## **Crl. M.C. No:3486/2011** Though the learned State Prosecutor has offered to produce those voluminous records and statements of the witnesses, in order to avoid further delay on that ground, it was thought not to obtain those papers now. It has been stated here, only because a contention was raised by the accused that, the prosecution has not stated what are the documents and other evidence which were not collected earlier. 44. Arguments were addressed on behalf of the accused that the allegation regarding commission of offence under the '1978 Act' and also of the offence under section 420 of IPC cannot be sustained. That is not a matter to be adjudged here. The assurance or promise given to the accused as per the scheme was that the amount deposited or invested would be doubled at the earliest and it would be paid on the basis of seniority. The total amount stated to have been thus collected by the accused from the various depositors was Rs.435,56,76,875/-. If double the amount is to be returned to the investors then the amounts to be **Crl. M.C. No:3486/2011** **-35-** repaid would be more than Rs.871 crores. 45. In the objection statement filed by the accused it was stated that Rs.131,19,47,500/- was returned to the members as per the scheme. At another place it was stated by the accused that an amount of Rs.242 crores was returned to the members after the registration of the crime and so the total amount returned would be Rs.373 crores. Still, nearly Rs.500 crores would be the difference, namely the amount not returned, the Prosecution contends. Anyway it is not necessary to probe into those aspects now, but it is referred to here only because contention was raised to the effect that the amount collected was repaid to the members/depositors as and when demanded. 46. It was also argued on behalf of the accused that the petition filed by the prosecution would show that further investigation was sought or being conducted for the offences falling under the provision of the Reserve Bank of India Act also. This Court had already found that the charge under ## **Crl. M.C. No:3486/2011** **-36-** the provisions of that Act cannot be sustained. That was confirmed by the apex Court also. The learned State Prosecutor submits that the investigation is not being conducted into those aspects and that it was only mistakenly shown in the petition. 47. Arguments were also addressed on behalf of the accused stating that the prosecution cannot endlessly continue investigation in a crime under the guise of further investigation and for that purpose prosecution cannot get the trial stayed, that too, after examination of 73 witnesses, since that would defeat the very constitutional mandate of speedy trial ensuring justice to the accused. It is submitted on behalf of the prosecution that some of the main witnesses are yet to to be examined. The examination of those witnesses was sought to be stayed only for the reasons stated earlier that, after getting further materials in the form of documentary and oral evidence, the examination can be focussed in that line, so that the re-calling of those ## **Crl. M.C. No:3486/2011** **-37-** witnesses can be avoided. It was only to ensure fair trial and with that object in mind the request to stay the trial was made and not with any ulterior motives. The learned State Prosecutor would submit that the prosecution would gain nothing by getting the trial stayed or delayed, if it was not for producing further evidence obtained during further investigation. 48. The question of _mala fide_ exercise of power assumes significance only when the prosecution is initiated on extraneous consideration and for an unauthorised purpose. Here, after conducting investigation final report was filed under section 173(2) of Cr.P.C. and charges were allowed to be framed under certain provisions of 1978 Act. That order was confirmed by this Court and also by the apex Court. Therefore, the argument that the F.I.R. was registered by CW1 and he was behind in conducting investigation etc, attributing _mala fide_ on him and touching upon matters which took place prior to the filing of the final ## **Crl. M.C. No:3486/2011** **-38-** report and the passing of the order by the apex Court on 10.7.2008, cannot be now canvassed to contend that the investigation was done maliciously. 49. The point for consideration is only regarding the further investigation which is being conducted by the investigating officer and as to whether, till the further report is filed, the trial has to be stopped. It was held in **STATE OF BIHAR Vs. J.A.C. SALDHANA (1980) 1 SCC 554** that when the information is lodged at the police station and an offence is registered, the _mala fides_ of the informant would be of secondary importance and that it is the material collected during the investigation which decides the fate of the accused persons. 50. It was held by the apex Court in **SRI. BHAGWAN SAMARDHA SREEPADA VALLABHA VENKATA VISHWANDADHA MAHARAJ V. STATE OF ANDHRA PRADESH AND OTHERS 1999 CRI. L.J. 3661** that: ## **Crl. M.C. No:3486/2011** **-39-** “Power of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang V. State (Delhi Admn.), AIR 1979 SC 1791:(1979 CriLJ 1346). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation.” 51. The learned State Prosecutor has relied upon the decision in **STATE OF ORISSA Vs. MAHIMA ALIAS MAHIMANANDA MISHRA AND OTHERS (2010) 3 SCC** **(CRI) 611** , in support of his submission that order for further investigation cannot be interfered with by the High Court in exercise of its revisional power. That was a case where the re-opening of the investigation by examining those witnesses who were examined or available to be examined at the time of earlier investigation and recording their statements almost five-and-a-half years after the final ## **Crl. M.C. No:3486/2011** **-40-** report was submitted was, according to the High Court, not _bona fide_ and so it was held that further investigation on the basis of statements of witnesses available to be examined during earlier investigation, amounts to abuse of process of Court. Though it was contended before the apex Court that the further investigation was not _bona fide_ , the apex Court did not concur with the contention raised by the accused and it was held: “The language of the statute is clear enough to indicate that it is not a restrictive one but it has the widest possible sanctity. The statute has provided the said provision for the sake of the concept of justice and in the event, the interest of justice so requires, this further power of investigation has been conferred on the police under Section 173(8) of the Code.” 52. It was held by the apex Court in **RAMA** ## **CHOUDHARY V. STATE OF BIHAR, AIR 2009 SC 2308** that the law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the ## **Crl. M.C. No:3486/2011** **-41-** charge-sheet is a statutory right of Police [ **vide K. Chandrasekhar vs. State of Kerala and Others, (1998)** **5 SCC 223** .] The materials collected in further investigation cannot be rejected only because it has been filed at the stage of trial. It was also held that, as observed in **Hasanbhai Valibhai Qureshi Vs. State of Gujarat and Others, (2004) 5 SCC 347** , the prime consideration for further investigation is to arrive at the truth and do real and substantial justice. The hands of the investigating agency for further investigation should not be tied down on the ground of mere delay. In other words, the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. 53. It was pointed out by the learned State Prosecutor that on going through the order passed by the learned C.J.M., it would appear that the learned Magistrate was of ## **Crl. M.C. No:3486/2011** **-42-** the view that the petition was to review the earlier order. No such request was made. Not only that, the Annexure A4 order was passed on an application under section 309 of Cr.P.C. which happened to be filed by the prosecution under the circumstances delineated earlier. The earlier request made by the prosecutor in charge of that Court was rejected since the request for further investigation was not made by the investigating officer. Therefore, the question of review or re-consideration of that order does not arise at all. 54. In this connection the decision of the apex Cort in **UNION PUBLIC SERVICE COMMISSION V. S.PAPAIAH AND OTHERS 1997 SCC (CRI) 1112** has also been referred to, where it was held: “Here again the learned Magistrate fell into an error. He was not required to “review” his order. He could have ordered “further investigation” into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also.” **Crl. M.C. No:3486/2011** **-43-** ## It was also held in that decision: “The Magistrate could, thus in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by subsections (2) to (6) of Section 173 Cr.P.C. The learned Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated 4.11.1995 cannot be sustained.” 55. Relying upon the decisions of the apex Court cited supra, the learned State Prosecutor would submit that the delay in conducting further investigation alone cannot be a reason to disallow further investigation or not to act upon the further report, if any, filed by the investigating officer. It is further submitted that the investigating agency has collected materials/incriminating documents in the case, in the further investigation conducted and that evidence, documentary and oral, is essential for the effective conduct of the trial as otherwise trial would be a farce. The ## **Crl. M.C. No:3486/2011** **-44-** endeavour of the investigating agency is only to bring all such true facts before the court and not to cause prejudice to the accused or to delay the trial. 56. It was further asserted by the learned State Prosecutor that further investigation is almost at its fag end and only one month time would be required to complete further investigation and to file a further report. Hence, the submission made is that though there was slight delay in starting further investigation, in the peculiar circumstances of the case, to meet the ends of justice and to secure justice to the investors and to the public at large, the entire materials collected during further investigation have to be produce in Court, so that the Court can take a just decision based on those materials. Shutting out of such materials would lead to negation of justice. 57. The other main argument that has been canvassed by the learned Senior Counsel appearing for the accused is that further investigation was not conducted or ## **Crl. M.C. No:3486/2011** **-45-** sought to be conducted by the investigating officer but it was done at the behest of CW1. The question is whether the Dy.S.P., who filed the petition is competent to conduct further investigation. The contention that the police officer who had earlier laid the charge sheet, who was subsequently transferred to Idukki and thereafter to other stations, alone can conduct further investigation, does not appear to be sound or reasonable. 58. The learned State Prosecutor would submit that the request for further investigation was made by Sri.Joseph Saju, Assistant Commissioner of Police, Narcotic Cell, Kochi City. The question is not whether somebody else also had given instructions or informations in regard to the documents to be unearthed and produced in Court, the prosecution contends. It is further submitted that the right of the investigating officer to conduct further investigation or the justifiability of the same cannot depend on what was done by some other police officers. **Crl. M.C. No:3486/2011** **-46-** 59. It is pointed out by the learned senior counsel appearing for the accused that a letter was given by the Assistant Commissioner of Police informing the District Police Chief, Kochi City, that he was intending to conduct further investigation in the matter. Exhibit R11 is the Order passed by the District Police Chief. Since in the body of the letter itself it was mentioned that what was informed by the Assistant Police Commissioner was regarding the further investigation in Crime No:672/2006, the wrong expression used by the District Police Chief “the Assistant Police Commissioner is directed to conduct a 'discrete enquiry' in the matter and that he will submit the final report”, cannot be blown up out of proportion to contend that no direction was given to the A.C.P. to conduct further investigation. The learned State Prosecutor would submit that the inadvertence shown by the District Police Chief in using the expression “discrete enquiry” cannot in any way affect the further investigation, since a reading of the entire Exhibit ## **Crl. M.C. No:3486/2011** **-47-** R11 Order would show that what was reported by the A.C.P. was that he was intending to conduct further investigation. Therefore, much cannot be argued based on the incorrect expression used in Exhibit R11. 60. It is submitted by the learned senior counsel that the main other aspect of the matter is that Mr.Joseph Saju, Assistant Commissioner of Police (Narcotic Cell), Kochi, is not the Station House Officer of Central Police Station nor was he the officer who conducted the investigation and laid the charge sheet. The final report under section 173(2) of Cr.P.C. was filed by one Mr.Bernad Dev, the then Assistant Commissioner of Police, Crime Detachment, Ernakulam who was conducting the investigation at that point of time. He was later transferred and posted as Dy.S.P., Narcotic Cell, Idukki, and thereafter transferred to other places. 61. The main thrust of the argument is that Mr.Joseph Saju is not the Station House Officer nor is he the immediate superior of the Sub Inspector of Police, Central ## **Crl. M.C. No:3486/2011** **-48-** Police Station. It is not in dispute that the Assistant Commissioner of Police which is equivalent to the post of Dy.S.P., is superior in rank to Sub Inspector and Circle Inspector of Police. But the contention that has been raised by the defence is that there is another Assistant Police Commissioner, Ernakulam, who alone can be the officer superior to the Station House Officer, Central Police Station. 62. In this connection the learned State Prosecutor would rely upon the decision in **R.P.SINGH V. J.A.C. SALDANNA 1980 SC 326** . In that it was held: “The officer directed by the State Government to carry on the investigation is Inspector-General, Vigilance. He is undoubtedly an officer superior in rank, if not in department wise administrative hierarchy, to an officer in charge of a police station. Inter se departmental division such as InspectorGeneral of Police or Inspector-General, Vigilance, or Additional Inspector-General, C.I.D., may be merely a division of work for adminstrative efficiency, but the Inspector-general of Police could not by any stretch of imagination be said not to be an officer superior in rank to an officer in charge of a police **Crl. M.C. No:3486/2011** **-49-** station. While interpreting S.551 of the Code of Criminal Procedure,1898 ('1898 Code' for short), which was in pari materia with S.36 of the Code, this Court in R. P. Kapoor V. Sardar Partap Singh Kairon, (1961) 2 SCR 143 at pp. 153-154, observed that the Addl. Inspector- General of Police was, without doubt, a police officer superior in rank to an officer in charge of a police station. Rule 7(a) of the Bihar Police Manual provides that the police force of the entire State is under the overall charge of InspectorGeneral of Police and for the help of InspectorGeneral and for the convenience of carrying out the work connected with the different branches of police administration, Deputy Inspector-General and Assistant Inspector-General of the rank of Superintendent are posted at headquarters. The use of the word 'rank' in S.36 of the Code comprehends the hierarchy of police officers. It is equally clear that Inspector-General of Police will have jurisdiction over the whole of the State. Division of work, but not demarcating any local area indicates that Inspector-General, Vigilance, will have jurisdiction extending over the whole of the State and this equally becomes clear from the Notification dated June 6, 1973, issued by the State Government in exercise of the power under clause (s) of sub-sec. (1) of Sec.4 of the 1898 code declaring that in **-50-** ## **Crl. M.C. No:3486/2011** respect of certain offences the Vigilance Department shall be deemed to be a police station having its jurisdiction throughout the whole State of Bihar. Even apart from this, Inspector-General appointed by the State Government has jurisdiction over the whole of the State unless the contrary is indicated. If he is thus an officer superior in rank to an officer in charge of a police station he could in view of S.36 exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning thereby the whole of Bihar State as might be exercised by an officer in charge of a police station within the limits of his police station. It was to him that the investigation of the case was ordered to be handed over by the State Government.” 63. Section 36 of Cr.P.C. confers power of an officer in charge of a police station on all police officer superior in rank to an officer in charge of a police station. Section 36 of Cr.P.C. reads: “Police officer superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.” **Crl. M.C. No:3486/2011** **-51-** 64. Relying upon the decision of the apex Court cited supra and referring to section 36 of the Code, it is argued by the learned State Prosecutor that though Mr. Joseph Saju was to conduct investigation pertaining to offences committed under the provisions of Narcotic Drugs and Psychotropic Substances Act in the whole of Kochi City, that is merely a division of work in administrative efficiency. But that does not mean that he is not the Assistant Police Commissioner having jurisdiction over Kochi city nor can it be said he can not be invested with the power to conduct further investigation in the matter. 65. It is argued on behalf of the accused that **Saldanna** 's Case has to be distinguished since in that case it was the State Government which directed the Inspector General (Vigilance), to conduct investigation. It is submitted by the learned State Prosecutor that when the District Police Chief empowers the Assistant Commissioner of Police, Narcotic Cell, Kochi City, to conduct further ## **Crl. M.C. No:3486/2011** **-52-** investigation, it only means the Assistant Commissioner of Police, Sri. Joseph Saju, was the officer superior in rank to Station House Officer, Central Police Station, Ernakulam, who is competent to conduct further investigation, being the officer superior in rank to Station House Officer, Central Police Station. 66. It is further submitted that it cannot be said that the District Police Chief has no authority to issue such orders. In **Saldanna** 's Case, it was noticed that the State of Bihar was covered by the Indian Police Act, 1861, since the State of Bihar had not enacted any Police Act of its own. The provisions contained in the Indian Police Act, 1861 and Kerala Police Act are not identical, it is submitted. The contention that District Police Chief did it at the behest of CW1 cannot be sustained. That apart, the accused can raise all those contentions at the time of trial. It is not necessary to probe further into those matters since the endeavour of the Court is to see that what ever further report is required ## **Crl. M.C. No:3486/2011** **-53-** to be filed by the investigating agency is filed at the earliest and that the trial is expedited. 67. It was held by the Constitution Bench in **A.R Antulay** 's case that fair, just and reasonable procedure implicit in Article 21 of the Constitution created a right in the accused to be tried speedily. A right to speedy trial encompasses all the stages namely, stage of investigation, inquiry, trial or appeal revision and retrial. But it was also held that the nature of offence, the number of accused, the number of witnesses, the work load in the particular Court, means of communication and several other circumstances also have to be kept in mind. 68. It was also held by the apex Court in **BABUBHAI Vs. STATE OF GUJARAT & ORS. (2011) 1 SCC (CRI) 336** that not only fair trial but fair investigation is also part of constitutional rights guaranteed under Article 20 and 21 of the Constitution of India. Therefore, the learned State Prosecutor, Sri. T. Asif Ali, would submit that when the **-54-** ## **Crl. M.C. No:3486/2011** investigating officer, subsequently comes to know that there are so many material documents which are to be produced in a case of this nature where allegation is that the accused persons had swindled about Rs.450 crores and if those records which ought to be seized and produced in Court and necessary statements obtained from witnesses pertaining to those records were not produced, then the whole investigation exercise would become farce and futile, which would not be conducive to the cause of justice. 69. It is further submitted that it is a case where the public at large is interested; in the sense; that thousands of persons became members in the scheme which was allegedly promoted and formulated against the provisions of '1978 Act'. Therefore, the State Investigating machinery cannot throw its hands up in despair or helplessness. In such circumstances, when the investigating officer obtains information regarding those material documents and he starts further investigation and collects those materials, it ## **Crl. M.C. No:3486/2011** **-55-** can never be said that the accused would be prejudiced. The accused are not denied opportunity to challenge the acceptability or otherwise, of the documents or statements obtained by the investigating officer. 70. The only ground that can be projected by the defence is the delay occurred in the matter. The Court has to balance and weigh such relevant factors and find further whether the right to speedy trial has been denied. Weighing and balancing such relevant factors, I am of the view that the prosecution should not be precluded from producing such relevant documents and statements to help the Court, in arriving at the truth and do real, substantial as well as effective justice. Therefore, I find that the objections raised by the accused are untenable. Further investigation which has been reported to be in progress should be directed to be completed within one month. Till then the trial shall remain stayed. **Crl. M.C. No:3486/2011** **-56-** 71. In the result, the impugned order passed by the learned Chief Judicial Magistrate is set aside. The investigating officer is granted one month time to complete the further investigation and shall file the further report within one month from today. It is made clear that the accused can raise all other contentions before the trial Court at the time of trial. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Juge jjj