Judgment:
Kanta Bhatnagar, J.
1. In this petition under Section 482 of the Code of Criminal Procedure, petitioner has prayed for quashing the order dated April 7, 1984 passed by the learned Chief Judicial Magistrate, Banswara by which the petitioner was charge sheeted under Section 409 read with Sections 420, 465 and 468 IPC in connection with the famine relief work for nursery in the year 1973. A complaint was filed by Rameshwar Singh Kachroo and Ramnarain before the Depty Superintendent of Police Anti Corruption Department, Chittorgarh against Dhruv Narain, the then Block Development Officer (for short 'BDO' hereinafter) alleging that a false document in the form of muster roll was prepared and irregularities were committed in the work. The petitioner was an Overseer concerned with that work. The matter was investigated and sanction for prosecution of Dhruv Narain was sought from the Government but the same was refused on the ground that though irregularities were evident in the construction work, no case of any embezzlement was made out and that the ingredients of dishonesty in committing irregularities in the form of using trucks instead of engaging labour for transporting the construction material was lacking in the case. The investigating agency was of the opinion that no case is made out against the BDO and the Overseer because it was a case of irregularities and not of dishonesty or misappropriation of money. As such- final report in the case was filed in the Court on May 25, 1981. Th? learned Magistrate as evident from the endorsement dated June 16, 1981 on the final report, considered it to be a fit case in which the charge sheet against Dhruv Narain and Tafazul Hussain should have been filed and as such did not accept the final report and sent the papers to the SHO Police Station Gadi on July 10, 1982 for compliance.
2. After lapse of a period of about two years, on July 27, 1983 the Police filed a challan against petitioner Tafazul Hussain. The petitioner raised objection about the competence of the Court for taking cognizance against him. The contention of the petitioner did not find favour with the learned Chief Judicial Magistrate and he, vide impugned order dated April 7, 1984 held that it was a case in which petitioner Tafazul Hussain should be charge sheeted. Consequently petitioner was charge sheeted under Sections 409, 420, 465 and 468 IPC on April 11, 1984.
3. Mr. D.S. Shishodia, learned counsel for the petitioner strenuously contended that the order dated April 7, 1984 by which the learned Chief Judicial Magistrate considered it to be a fit case for charge sheeting the petitioner is an abuse of the process of the Court in as much as the challan was filed by the Police at the direction of the Magistrate and not on any further investigation or availability of material subsequent to the final report being filed in the Court.
4. The second contention raised by Mr. Shishodia is that when the main accused in the case viz. Dhruv Narain BDO has not been prosecuted in in the case because of the concerned authorities declining to accord sanction for his prosecution on the ground that no criminal case was made out, there cannot be any justification for prosecuting the petitioner, who was acting under the supervision and direction of the BDO.
5. Miss Sumitra Sankhla, learned Public Prosecutor controverted these contentions and justified the order of the learned Magistrate on the ground that there was no direction by the Magistrate for filing the challan and what the Police has done was in exercise of powers under Section 173(8) of the Code.
6. It has also been urged by the learned Public Prosecutor that prima facie case is made out against Dhruv Narain BDO and Tafazul Hussain Overseer but the challan against Dhruv Narain could not be filed because sanction was required to prosecute him which was refused. It has been urged that simply because one person could not be prosecuted on a technical ground another cannot be let free despite there being a case against him.
7. In order to appreciate the arguments as to whether challan against the petitioner was filed at the instance of the Magistrate or the Police considered it to be a fit case for filing the challan even when final report was filed in the case, it would be proper to reproduce the endorsement of the Magistrate in that regard which is as under:
16&6&1981 rQ+rh'k dqfuUnk us ,Q-vkbZ-vkj- ds ist ua- 5 ij tkfgj fd;k gS fd /kzqoukjk;.k o rQty gqlSu dh f[kykQ /kkjk 406] 420] 467 o 474 vkbZ-ih-lh- ds vkjksi lkfcr gskrs gSSA blh izdkj ,Q-vkbZ-vkj- ds ist ua- 7 es tkfgj fd;k gSA fd dp: vkSj eksguyky us QthZ nLrkost cuk, gSA tks /kkjk 467 o 474 vkbZ-ih-lh- dk tqeZ gSA ,sls gkykr es pkyku is'k djus ds ctk;s ,d ,Q-vkbZ-vkj- ias'k djuk vk'p;Ztud yxrk gSA vr% ,Q-vkbZ-vkj- vLohdkj dh tkrh gSA^^&,l Mh
8. The contents at pages No. 5 and 7, to which reference in the aforesaid endorsement has been made, relate to the finding of the Investigating Officer which led him to obtain sanction for prosecuting the BDO. The final report contains the details of the investigation and their reasons for which sanction to prosecute the BDO Dhruv Narain was refused. It was considered by the concerned authorities that there was no embezzlement and the entries in the record were to make the payment in line with the directions for the adjustment of the account, and it was held that there was no dishonest intention in doing so and as such it was only a case of irregularities. It appeared strange to the learned Magistrate as to why chargesheet in such a case was not filed and he therefore, rejected the final report.
9. The question of interpretation of the powers of a Magistrate in a case in which final report is filed came for consideration before the Supreme Court in the case of Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 . The implications of the provisions of Sections 173, 169, 156(3) and 190(1)(i) of the Code of 1898 were discussed in the case and it was held that if the Police submits report under Section 169 that no case is made out for sending up accused for trial, the Magistrate has no power to call upon police to submit a charge sheet. Following observations were made in that regard:
There is no power, expressly, or impliedly conferred, under the Code on a Magistrate to call upon the police to submit a charge sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the Police are entirely different, and though the Magistrate may or may not accept the report and take suitable action according to law, be cannot impinge upon the jurisdiction of the police, by compelling them change their opinion so as to accord with his view.
10. In the scheme of the code various stages of a criminal case are provided. The investigation stage in alleged cognizable offence is wholly under the control of the Investigation Officer. It is kept free from any interference by the Court so long as the investigation is fair and according to the provisions of law. The jurisdiction of the Court to deal with the cognizable criminal case in which police has investigated, commences with the filing of the challan. There may be cases in which the Police after investigation comes to the conclusion that the alleged accused persons should not be sent for trial and files the final report in the Court. The Court may either accept or in case the grounds given in the final report do not convince the Court of its correctness, it may reject the final report. In the matters falling under the second category, the Magistrate may take suitable action according to law. That is, it may take cognizance of the case under Section 190(1)(c) or may send the case Under Section 156(3) of the Code to the Police for further investigation. There is no provision empowering the Magistrate to issue directions to the Police to file a challan. The question regarding the finding of Police and powers of Magistrate in case he does not accept the final report came for consideration before the Supreme Court in Abhinundan Jha's case : 1968CriLJ97 . The principle enunciated is that though it is clear that the investigation after going through its various stages culminates either in filing the challan against the accused and they are put to trial or final report is to be submitted which has weight. The Court has of course power to take cognizance of a case in which the Police has investigated but the procedure is not to issue directions to the Police to file final report. The Court can only ask for further investigation in the case or may itself take cognizance in the case as provided under Section 190 of the Code.
11. With that principle in mind when the endorsement dated June 16, 1981 on the final report, recited above, is looked into, it denotes that the Magistrate was not satisfied by the opinion of the Investigating Officer that there was no material for filing the challan. There is no specific direction to the Police to file the challan in that endorsement. But the matter does not end there Below that endorsement there is the following order passed on that final report:
dzekad 790 fnukad 10&7&1981 izfrfyfi ,Q-vkbZ-vkj- 14 i=koyh Fkkuk vf/kdkjh] xh dks ikyukFkZ izLrqr gSA
,l-Mh- eqaflQ ,oa U;kf;d eftLVsV
izFke oxZ] ckalokM+k jkt-
12. After the final report had bsen filed, there remained nothing with the Police to comply. The direction that the final report may be sent to the S.H.O. Gadi for compliance lends force to the contention of Mr. Shishodia that it was because of this direction that the Police, without further investigating into the matter and without there being any additional material available, filed the challan against the petitioner after two years.
13. On this point Miss Sumitra Sankhla, learned Public Prosecutor referred to the provisions of Section 173(8) of the Code and submitted that there is power with the police to file the challan on the material already on the record.
14. Section 173 of the New Code empowers the Police to make further investigation in the matter subsequent to the filing of the challan in the Court in case some fresh information of evidence throwing light on the case is received by the Police. In the Old Code there was no anologus express provision for the Police to make further investigation in the case and submit supplementary material collected subsequently in the court. By enacting Clause (8) of Section 173 the legislature has vested powers with the Investigating Agency to file the addition material before the Court subsequent to the filing of the challan. The question of right of Police to make further investigation after the Court taking cognizance came for consideration before the Supreme Court in the case of Ram Lal Narang v. State (Delhi Admn) : 1979CriLJ1346 and it was held as under:
Not with standing that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither-Section 173 nor Section 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigation on discovery of fresh facts.
15. In the case of D.D. Patel v. State of Gujarat 1980 Cr LJ. 29 the question before the High Court was as to whether in order to proceed under Section 173(8) further investigation and discovery of new material is required. His Lordship was of the opinion that it is not necessary that there should be a fresh investigation and discovery of new material for lodging an additional charge sheet in the case and that if the very material is misunderstood by the Police Station Officer and if he has received proper light from the superiors, he can certainly file an additional charge-sheet, though there may not be, strictly speaking, any further investigation and collection of new material.
16. The question of interpretation of Section 173(8) came for consideration before this Court in the case of Bhagwan Singh v. State of Rajasthan 1985 RLW 83 and it was held that submission of report under Section 173 does not exhaust further right of police to investigate and Section 173(2) permits further investigation and on completion thereof a further report or reports may be given in same form as provided in Section 173.
17. The present case does not fall in the category of cases in which the aforesaid principles were enunciated. In this case the final report had been filed by the Police. The Court did not accept it and expressed the opinion in the endorsement made on it. The direction on the final report issued on July 10, 1981 for compliance does show the intention of the Court that Police may file the challan. Even if in absence of specific direction in that regard the order of the Magistrate is not taken to be a direction to file challan, the Police should have made further investigation in the matter before changing the opinion previously expressed in the final report dated August 25, 1981. Section 173(8) does envisage cases in which final report has been filed and accepted or rejected by the Court. It deals with cases in which the Police after filing the report finds it necessary to file additional papers or supplement the challan filed by it. Further inquiry may not be necessary but the Police however, must have substantial reason to supplement the report already filed. The present case, therefore, does not fall within the ambit of Section 173(8) of the Code. Assuming for the sake of argument that there was no direction by the Court to file the challan and the Investigation Officer, either on the opinion expressed by the Court or on reconsideration of the case, came to the conclusion that challan against the petitioner should be filed and did so, and as such the filing of the challan may not be illegal but even in that case the Court was required to carefully examine the facts and circumstances of the case to arrive at a 1985 RLW 83 conclusion as to whether it is a fit case in which the petitioner should be charge-sheeted and tried.
18. Ordinarily this Court feels reluctant to interfere with the opinion of the trial Court on the point as to whether a prima facie case is made out or not against a particular accused. However, if the material available does not justify the action taken by the Court and it appears that charge-sheeting a person in the given circumstances of the case is an abuse of the process of the Court, then court this would not be hesitant to set right the wrong done to the aggrieved person.
19. In the light of this discussion I would now turn to the facts and circumstances of the case on hand in order to see whether the interference under Section 482(2) of the Code is called for.
20. Upon perusal of the record of the case it is evident that the case against petitioner Tafazul Hussain was in no way graver than the one against the B.D.O. Dhruv Narain against whom police had not proceeded for lack of sanction. The sanctioning authority had declined to accord sanction to pro secute Dhruv Narain in view of the facts and circumstances of the case and its conclusion that there was no dishonest intention & all that can be alleged was irregularity in adjustment of the accounts. That opinion, if could help Dhruv Narain and sanction for his prosecution was refused would be equally helpful to the present petitioner because the material on which the allegations are based is the same. In case there are more than one offenders and one of them is not prosecuted, ordinarily, there would not be any justification for proceeding against the remaining accused. That would not however, mean that in every case the non-prosecution of one alleged offender would bar the prosecution of the rest. It would depend on the nature of accusation and the material available against each of them. If the person mainly or equally responsible for an act, as in the instant case, is let free then there cannot be any justification for taking action against the rest. The position in the case of Pukh Raj v. Ummaid Ram 1964 RLW 238 was similar to the case before me. The main question was as to whether Sarpanch was public servant. The question was answered in affirmative. In view of that opinion it was held that Sarpanch of the Panchayat not removable save by the sanction of the State Government, was entitled to protection under Section 197 of the Code. Their Lordships declined to express any opinion on the point as to whether Sarpanch was protected Under Section 79 of the Panchayat Rajasthan Act. However, in view of the facts and circumstances of the case, it was observed that as the Sarpanch was acting only in the public interest in demolishing the relevant construction, no case was made out against other accused also in those circumstances.
21. In the present case, it was the BDO who was getting the construction work done and it was under his supervision and control that the overseer was acting. There is force in the contention of Mr. Shishodia that the adjustment of the account was in the knowledge of the BDO and all the relevant documents were signed by him. As such, Mr. Shishodia urged, that if the main accused has not been prosecuted for want of sanction, the co-accused should also not prosecuted. To substantiate his contention Mr. Shishodia referred to the case of Jeewa Ram and Ors v. Madan Lal and Anr. 1985(1) WLN 565. In that case out of the three accused two were officers for whom sanction for prosecution was necessary. The third accused was acting under the directions of those two officers. His Lordship in view of those circumstances held that if sanction could not be taken against the two officers there was no question of prosecuting the third accused. Placing reliance on Pukhra's case 1964 RLW 238 his Lordship held that it may not be misunderstood that in case where the one or more accused may not be prosecuted for want of sanction, the remaining accused are also entitled to be let free even if case is made out against them. It would always depend upon the given circumstances of the case i.e. to say, if the case against the person for whom sanction is required is of the same nature as that of the person for whom sanction is not required and the latter cannot be said to be the main accused in the case, benefit may be extended to him. However, if the nature of the case for the two is not the same and the person left out because of want of sanction cannot be as much responsible for the purpose as the other one, there would be no illegality, in proceeding against the person for whom sanction is not required or if required has been obtained.
22. In the light of these observations when I turn to the facts and circumstances of the present case, I find no justification for proceeding against the petitioner. The petitioner was acting under the direction of the BDO Dhruv Narain and whatever adjustment was done was with his authority and under the signatures. As such the accusation against the petitioner was not graver than that against the accused left out. Apart from that there are also circumstances in which chargesheet after the lapse of a period of ten years since the date of the alleged offence cannot be said to be proper. The construction of work to which the matter relates was done in the year 1973. The complaint was lodged in the year 1977. The Investigating Agency took about four years in completing the investigation and then filed the final report on May 28, 1981. Even after the final report being rejected and sent to the concerned Police Station for compliance on July 10, 1981 the Police took more than two years for filing the challan on July 27, 1983. The court decided to frame the charges by the impugned order after lapse of more than eight months on April 7, 1984
23. In the peculiar circumstances of the case, the order of the Court in the year 1984 for the alleged act in the year 1983 cannot be justified, specially so when there is no difference in the material adduced by the Police while filing the final report and the one filed with the challan. In these circumstances, the proceeding against the petitioner cannot be allowed to continue.
24. Consequently, the petition is allowed. The order dated April 7, 1984 passed by the Chief Judicial Magistrate Banswara is set aside and the proceedings in pursuance of that order against the petitioner are quashed.