K. Anbazhagan Vs. the Superintendent of Police, State of Tamilnadu and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/935193
CourtKarnataka High Court
Decided OnSep-16-2011
Case NumberCRIMINAL PETITION NO. 3683 of 2011
JudgeV. JAGANNATHAN
AppellantK. Anbazhagan
RespondentThe Superintendent of Police, State of Tamilnadu and Another
Advocates:For the Petitioner: C.V. Nagesh, Senior Counsel for A.K. Subbaiah and A.S. Ponnanna, Advocates. For the Respondents: R1 - M.T. Nanaiah, Senior Counsel and Amicus Curiae, R2 - B.V. Acharya, Senior Counsel.
Excerpt:
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criminal procedure code - section 173(8) and 482 – indian penal code - u/s 120-b r/w 109 - prevention of corruption act -13(1) (e) and 13(2) - charge sheet filed against four accused persons of whom the first accused to be the present chief minister and the offence alleged against the accused were under prevention of corruption act and ipc – during the pendency another charge sheet was filed which led to spl.c.c. against two accused persons out of whom, the first accused happens to be the present chief minister and the present petitioner move the apex court for transfer of the two cases by filing transfer petitions tow cases referred were clubbed and were given one and same number – during the pendency prosecution appears to have acted hand in glove with the accused and.....
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(prayer: criminal petition filed under section 482 of the cr.p.c praying to quash the decision of r-1 d.v.a.c., top hold further investigation purported to be under section 173(8) of cr.p.c as disclosed in letter dated 15/06/2011 addressed by dy. superintendent of police, d.v.a.c., to the hon’ble spl. judge, bangalore, and as per annexure-e and all further proceedings pursuant thereto. (2) direct that in all cases such as criminal petitions, criminal revision petitions etc., arising out of spl. c.c. no. 208/2004, pending on the file of the court of spl. judge and xxxvi addl. s.j., (cch-37), bangalore, the r-1 d.v.a.c has to be represented by the r-2 special public prosecutor (appointed by the state of karnataka as per the directions of supreme court in transfer petition (crl......
Judgment:

(Prayer: Criminal Petition filed under Section 482 of the Cr.P.C praying to quash the decision of R-1 D.V.A.C., top hold further investigation purported to be under section 173(8) of Cr.P.C as disclosed in letter dated 15/06/2011 addressed by Dy. Superintendent of Police, D.V.A.C., to the Hon’ble Spl. Judge, Bangalore, and as per Annexure-E and all further proceedings pursuant thereto. (2) Direct that in all cases such as Criminal Petitions, Criminal Revision Petitions etc., arising out of Spl. C.C. No. 208/2004, pending on the file of the court of Spl. Judge and XXXVI Addl. S.J., (CCH-37), Bangalore, the R-1 D.V.A.C has to be represented by the R-2 special Public Prosecutor (appointed by the State of Karnataka as per the directions of Supreme Court in transfer petition (Crl. Nos.77-78/2003 dated 18/11/2003) or in the alternative, to make the said R-2 Special Public Prosecutor a party in all such proceedings and hear him. (30 Direct that the proceedings in Spl. C.C No, 208/2004 pending on the file of the Addl. S.J., (Spl Judge), Bangalore, be taken up on a day –to-day basis as per the direction of the Supreme Court in Crl. No. 77-78/2003 dated 18/11/2003 as per Annexure-A and as per the direction by this Hon’ble Court in Crl.P.No. 625/2011 as per Annexure-B.)

1. In this Petition, u/s 482 of Cr.P.C, the petitioner seeks quashing of the decision taken by the directorate of Vigilance Anti-Corruption (DVAC) to hold further investigation u/s 173(8) of the Cr.P.C as disclosed in the communication dated 15/06/2011 addressed by the Dy. Superintendent Of Police, DVAC to the Special Judge before whom Spl.Case.208/04 is pending.

2. Apart from the aforesaid relief sought, the petitioner has sought for a direction to the DVAC that it has to be represented by the Special Public Prosecutor or in the alternative make the 2nd respondent Special Public Prosecutor a party in all such proceedings and finally a direction to the Spl. Public Prosecutor to take up the matter n day-to-day basis in view of the directions given by the Apex Court in the transfer petition.

3. Of the three reliefs sought as far as the second relief is concerned, this court has already passed the order on 19/08/11 and what survives for consideration are the first and third reliefs sought.

4. The background facts briefly stated are that, a charge sheet filed in Cr.No.13/AC/96.Sq led to case being taken up in Spl.C.C.No.7/97 on the file of the XI Addl. Special Judge (Special Court), Chennai against four accused persons of whom the first accused to be the present Chief Minister of Tamilnadu. The offences alleged against the accused were under section 13(1) (e) r/w 13(2) of the Prevention of Corruption Act and u/s 120-B r/w 109 of the IPC and the check period was from 01/07/91 to 30/04/96 and the acquisition of disproportionate wealth according to the State charge sheet was to the tune of Rs.66.65 crores in India.

5. During the pendency of the said case, another charge sheet was filed in cr.No.2/AC/2000/HQ which led to Spl.C.C. No.2/2001 on the file of the XXI Addl. Sessions Judge (Special Court), Chennai and it was against two accused persons out of whom, the first accused happens to be the present Chief Minister of Tamilnadu. Pursuant to the first accused assuming office of the Chief Minister during May 2001, the present petitioner move the Apex Court for transfer of the two cases by filing transfer petitions Cri. No.77-78/03 and the Apex Court in the case of K. Anbazhagan Vs Superintendent of Police ((2004) 3 SCC 767) ordered transfer of the tow cases to the Special Court at Bangalore and also gave directions at para 34 of its order.

6 Pursuant to the Apex Court decision, the tow cases referred to above were clubbed and were given one and same number Spl.C.C. NO.208/04. The case which had its origin in the charge sheet Crl.No.2/AC/2000/HQ ultimately was withdrawn by the prosecution and thus what remains is the first case which is now before the Special Judge, Bangalore.

7. It is during the pendency of the only case before the learned special Judge that the communication dated 15/06/2011 was addressed to the Special court by the Dy. S.P. of DVAC, Chennai intimating the court that, further investigation would be taken up in this case. It is this communication that has driven the petition to this court in this petition u/s 482 of the Cr.P.C.

8. I have heard the learned senior counsel Sri. C.V. Nagesh for the petitioner and the learned Spl. Public Prosecutor who is also the Advocate General of the State Sri. B.V. Acharya and in view of the order passed by this court earlier on 25/08/2011. Sri. M.T. Nanaiah, learned senior counsel , was requested to assist the court as Amicus Curiae in the matter since the question of law involved concerns the examination and analysis of Section 172(8) of the Cr.P.C.

9. Learnedsenior counsel Sri. C.V. Nagesh for the petitioner, at the outset, by referring to the contents of the communication dated 15/06/2011 addressed Special Court by the Dy.S.P., Chennai, argued that while he does not dispute the present position in law with regard to statutory rights of the investigation by virtue of the provision contained in Section 173(8) of the Cr.P.C., it is his contention that the contents of the communication dated 15/06/2011 (Annex-E), will make it clear that the permission that is sought is not by the investigating officer, but it is the executive through the Chief Secretary of the State which has desired further investigation.

10. Pointing to the contents of the letter , it is argued that, the chief Secretary has noticed certain lapses in the Spl Case No.208/04 and has directed that the said lapses b4e rectified and the letter further says that the DVAC has also been instructed to comply with the orders of the Government and hence the investigating officer has decided to take up further investigation.

11. Referring to the contents of the communication addressed to the Special Court by the Dy.S.P, it is argued by the learned senior counsel Sri. C.V. Nagesh that the investigating officer has not come forward to further investigate the case, but on the other hand, the investigating officer has been directed by the executive to take up further investigation and what is now sought to be done is to rectify the lapses in the investigation and as such, the further investigation sought cannot be permitted because Section 173(8) only permit the investigating officer to collect further material or evidence and in a sense, supplement the evidence already collected but not to plug the loopholes in the investigation already done , as such, the permission that is sought` for further investigation which investigating officer wants to take up, cannot be permitted in law.

12. Referring to the use of the word ‘further’ more than once in Section 173(8) of the Cr.P.C., it is therefore contended by the learned senior counsel that the further investigation that is now sought and in the manner that is indicated in the communication is therefore impermissible in law. As such. The further investigation that is now sought be undertaken by the investigating officer to be returned into in the interest of justice.

13. The learned senior counsel also submitted that the case has now reached the stage of recording of accused statement and the Apex court has already directed the first accused to be present before the Special Court at Bangalore on 20/10/2011. Considering the fact that the charge sheet in the case was filed as far back as in the year 1997 and number of witnesses having been examined (259 witnesses) and voluminous documents having been marked during the course of recording of evidence and the case has now reached the last stage of recording of accused statement, at this stage, the further investigation by the investigating officer therefore cannot be permitted having regard to the peculiar facts and circumstances of this case and observations made by the Apex Court in the transfer petition.

14. Another contention taken on behalf of the petitioner is that, though there is no limitation period prescribed for taking up further investigation u/s 173(8) OF THE Cr. P.C., yet the power should be exercised within a reasonable time and having regard to the said position in law also, in the instant case, further investigation that is contemplated by the investigating officer cannot be permitted.

15. In support of the contentions, learned senior Counsel placed reliance on the decision reported in 2008(5) KLJ 480 to contend that, further investigation is in furtherance of the investigation already made and not undoing what is already done. In the case of Chikkanarasimhappaand another Vs State by Srinivasapura Police (ILR 2009 KAR 1154) a learned Single Judge of this court had set aside the order of the trail court grating permission to further investigate as it was fond that I t was the Government that wanted the transfer of investigation from one agency to another. In the light of the aforesaid submission learned senior counsel sought for the petition being allowed by the granting the relief sought.

16. learned Spl. Public Prosecutor, who is also the Advocate general of the State, Sri. B.V. Acharya, on this part referred to the sequence of events in the two cases which were transferred to the especial Court at Bangalore and submitted that the further investigation in Spl C.C. 2/01,(London Hotel case) finally ended up in prosecution withdrawal was on account of further investigation being taken up in the said case during the time when accused no. 1 was in power as the Chief Minister of Tamilnadu and referring to the progress of the case in Spl.C.C.No.2/2001 subsequent to the further investigation being taken up it is submitted by the learned Spl. Public Prosecutor that the situation that is present now is more or less similar to the situation that prevailed during the pendency of Spl.C.C NO.2/2001 and the investigating agency is now adopting the very same modus operandi which led to weakening of the Lond Hotel case and therefore the further instigation that is now sought in the present case during the time when the accused no.! is the Chief Minister of Tamilnadu would only be an attempt to subvert the court of justice.

17. Learned spl. Public Prosecutor sri. B.V. Acharya also referred in this connection to the communication addressed by him to the Dy.S.P. of DVAC on 14/07/11 and the letter dated 20/07/11. Apart from the aforesaid communications m it is also submitted by the learned Spl. Public Prosecutor that, in the instant case, the prosecution has examined in all 259 witnesses and has closed its side and the is now posted for recording of the accused statement.

18. Mention was also made by Sri. B.V. Acharya to another aspect of the case,. i.e., some of the witnesses were recalled even in the present case and they all had resiled from their earlier statements made. Referring to the observation of the Apex Court in the transfer petitions, it is submitted that the Apex Court took note of the effect of the 76 witnesses being recalled and went on a observe at para .20 that , it appears that the process of justice is being subverted and the said observation also got reinforced by the fact that the witnesses had resiled from what they had stated in the evidence in chief and ultimately the Apex Court also observed at para.28 that the prosecution appears to have acted hand in glove with accused.

19. Sri. B.V. Acharya also pointed out to this court the further observations made by the Apex court at para.29 to submit that the fact that on assumption of Chief Minister of the State and public prosecutor appointed by her government having not opposed or given consent to the application to recall the witnesses is indicative of how the judicial process is being subverted. Therefore , it is submitted by the learned Spl. Public Prosecutor Sri. B.V. Acharya that the circumstances under which the further investigation is now sought and in the manner as indicated in the communication dated 15/06/11 would go to sow that there could be justification in taking up further investigation having regard to the facts and circumstances of this case.

20. While conceding with Section 173(8) OF THE Cr.P.C. , the owere of the investigating agency to take up further investigation and that right being a statutory right, yet, the circumstances under which the right sought to be exercised also cannot be lost sight of. As such, referring to the Apex Court observation in KishanLal Vs Dharmendra Bafna and another (2009)7 SCC 685, it is submitted by Sri. B.V. Acharya that, further investigation is permissible only under the circumstances referred to by the Apex Court and they are.

1. When new facts come to light or

2. When superior courts find that the investigation is tainted or unfair or

3. when superior courts find that it is required in the ends of justice.

21. The aforesaid submission were also supported by the Spl Public Prosecutor by placing reliance on the decisions reported in (1979)2 SCC 322, (2000) 4 SCC 459, (2008)2 SCC 383, (2009) 6 SCC 346, (2009)6 SCC 332, (2009)7 SCC 685 and (2009)6 SCC 576.

22. Sri. M.T. Nanaiah, learned senior counsel and Amicus Curiae in the instant case, submitted that, Section 173(8) of the Cr.P.C., gives widest power to the investigating officer to take up further investigation and the said power of the investigating officer cannot be curtailed and the investigation is outside the ambit of the public prosecutor. Merely because there is delay in trial or the trial has come to the closing stages is not a ground to deprive the investigating agency to take up further investigation.

23. It is his further submission that, it is only where the investigation found to be tainted or not fair, that the court can order further investigation but not where the investigating officer wants to take up further investigating by exercising the power that is conferred by 173(8) of the Cr.P.C.

24. The learned senior counsel and Amicus Curiae also submitted that the low does not mandate taking prior permission from the court by the investigating officer and the purpose of further investigation is to arrive at the truth and the real and substantial justice and as such, the hands of the investigating agency for further investigation should not be tied down mainly on the ground of delay. It is therefore submitted by him that, merely because of the delay in the trial or the stage of the trial, further investigation cannot be prevented. Referring to the Apex Court decision in RamlalNarang Vs State( Delhi Administration) (1979) 2 SCC 322), it is submitted by Sri. M.T. Nanaiah, Amicus Curiae that the statutory rights and duties of the police were not circumscribed by any power of superintendence of interference and there is no express provision or prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report u/s 173(1) of the Cr.P.C. the decision reported in AIR 1945 privy Council page .18 was also referred to in this connection.

25. It is therefore submitted by the learned senior counsel Amicus Curiae sri. M.T. Nanaiah that, having regard to the law laid down by the Apex Court with regard to interpretation of section 173(8) of Cr.P.C., the investigating officer cannot be prevented from going ahead with further investigation notwithstanding the fact that the case has now reached the stage of recording of the accused statement. The aforesaid submissions were based on the reliance placed by the Amicus curiae on the decisions reported in 2004SCC (Cri) 1603, 2004 SCC (Cri)1607, (2008)5 SCC 413, (2009)7 SCC 685, (2009)7 SCC 696,(1998) 5 SCC 223, AIR 2008 SC 1052, 2009(6) SCC 346, 2010 (3) SCC (Cri) 611, 2007(15) SCC 580, JT 2004(4) SC 305 and AIR 1979 SC 1791.

26. Having thus beard the learned senior counsel parties and the Spl. Public Prosecutor Sri. B.V. Acharya, whether in the light of the facts and circumstances of this case, the petitioner has made out a case for this court to quash the decision of the DVAC to hold further investigation u/s 173(8) of the Cr.P.C.

27. As the communication dated 15/06/2011 mentions that the further investigation under Section 173(8) of the Cr.P.C., is sought to be undertaken by the Dy.S.P., it is necessary to refer to the said provision of the Cr.P.C./ which is as under:

“(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”

28. The aforesaid provision came up for interpretation and consideration before the Apex Court in number of cases and the law laid down by the Apex Court.

29. In the case of Ram Lal Narang Vs State (Delhi Administration), reported in (1979)2 SCC 322, the Apex Court has held that the final word is with the Magistrates is sufficient to safeguard against any excessive use or abuse of the power of the police to make further investigation . We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any offence. We think that in the interest of the independence of the magistracy and judiciary, in the interest of purity of the administration of criminal justice and in the interest of the comity of various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh fact come to light.

30. In the case of R. Sarala Vs T.S.Velu, reported in (200)4 SCC 459, the Apex Court has observed thus at paragraph-15:

“15. In this context we may also point out that the investigating officer, though is subject to supervision by his superior in rank is, not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. This position which was well delineated by the celebrated Lord Denning, has since been followed by this court. In R. V Metropolitan Police Commr (1968)1 All ER 763, Lord Denning had said thus:

“I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the order of the Secretary of State…..I hold it to be the duty of the commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps sop to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if nee be, being the prosecution or see that it is brought; but in all these things he not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any policy authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

31. The aforesaid observation s were reiterated in the case of State of Andhra Pradesh Vs A.Peter reported in (2008)2 SCC 383, at paragraph-14. At paragraph -15 of the decision under consideration, it was further observed thus by the Apex Court.

“15. While acknowledging the power of the police authorities to carry out further investigation in terms of Section 173 of the Code of Criminal Procedure, an observation was made therein to the following effect: (Narang case, SCC p.338, Para 21)

“ 21. ……In our view , notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation.”

32. In the case of Rama Chaudhary Vs State of Bihar, Reported in (2009)6 SCC 346, the Apex Court distinguished the expression “further investigation” from “reinvestigation” and held that what is permissible is further investigation and reinvestigation is prohibited and went on to explain further expressions “further investigation” at paragraph -17 thus:

“17. From a Plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of the police report under sub-section (2) on completion of the investigation, the police has right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “reinvestigation.” The meaning of “further” is additional, more or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether.”

In paragraph -18 of the said decision, the Apex Court has observed that, what is contemplated under Section 173(8) is a further report and not a fresh report regarding further evidence obtained during such investigation. It was also held in the very same case that the law does not mandate taking prior permission from the Magistrate for further investigation.

33. In the case of KishanLal Vs Dharmendra Bafna, reported in (2009)7 SCC 685, the Apex Court referred to the instances when section 173(8) may be invoked and considered the situations where further investigation can be directed by the court or taken up by the I.O. in exercise of his statutory powers and at paragraph-16, the Apex court has held that /section 173(8) of the Cr.P.C. can be invoked(i) when new facts come to light, (ii) when superior courts find that the investigation is tainted and/or otherwise unfair, and (iii) when the superior courts finds that it is required in the ends of justice.

34. It has to be mentioned at this juncture itself that, in the instant case, the aforesaid situations(ii) and (iii) has not arisen because, the Special Court has not ordered for further investigation is now sought to be undertaken by the I.O in the light of the direction given in the communication dated 15/06/2011 by the Chief Secretary.

35. In the case of RamachandranVs R. Udhaykumar, reported in (2008)5 SCC 413, the Apex Ccourt dealt with the word “further” at paragraph-7 of the judgment and quoted the observations made by it in the case of K.ChandrasekharVs State of Kerala (1998 SCC (Cri) 1291). The said paragraph-7 reads thus:

“7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of the Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrashekar Vs State of Kerala (1998 SCC (Cri) 1291). It was, inter alia observed as follows: (SCC p.237, para24)”

“24. The dictionary meaning of ‘further’ (when used as an adjective) is additional; more; supplemental’. “Further” investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisage that on completion of further investigation the investigation the investigating agency has to forward to Magistrate a ‘further report or reports – and not fresh report or reports - regarding the ‘further’ evidence obtained during such investigation.

36. Thus, it is clear from the aforesaid meaning given to the word “further” in Section 173(8) that the “further investigation” is the continuation of the earlier investigation and not a “fresh investigation” or “reinvestigation” to be started ab initio wiping out the earlier investigation altogether.

37. A learned Single Judge of this court also has taken more or less identical view by observing in the case of Harish D.V Vs State by Rural Police, Kolar, reported in 2008(5) kar.L.J 480, that the further investigation is in furtherance of the investigation already made and not undoing what has already been done.

38 In the case of HasanbhaiValidbhai Qureshi Vs State of Gujarat, reported in 2004 SCC (Cri) 1603, it has been held by the Apex Court that when fresh facts (lapses in earlier investigation in this case) come to light, the police should inform the court and seek permission to make further investigation.

39. Having thus kept in view the principles of law laid down by the Apex Court with regard to the power of the investigation agency to undertake further investigation under Section 173 (8) of the Cr.P.C. and also the circumstances under which further investigation can be taken up, whether in the instant case, the further investigation to be undertaken by Dy.S.P., DVAC can be permitted in law and whether such and exercise at this stage of the case can be said to be in the interest of justice or to meet the ends of justice. So far as the events narrated by the learned senior counsel for the parties insofar as this case are concerned, there can be no tow opinion with regard to the following facts.

40. this case came to be transferred from the State of Tamilnadu to the State of Karnataka under the circumstances which have been referred to by the Apex Court in the case referred to earlier and reported in (2004)3 SCC 767 (‘transfer case’ for short). The Apex Court, taking note of various factors which have been referred to by it at paragraphs-2- to 27, 29 and 30, and observed at paragraph-28 thus:

“28. We have cited only a few instances to show how the prosecution appears to have acted hand in glove with the accused.”

At paragraph-30, the Apex Court had observed thus:

“30. ………………… In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of Justice.”

There after, the Apex Court, at paragraph-34 took the view that the vases should be transferred to the State of Karnataka from the State of Tamil nadu and gave several directions at paragraph-34(a) to (i).

41. As per the sequences of events referred to by the Special Public Prosecutor Shri. B.V.Acharya in the instant case, the prosecution has examined in all 259 witnesses has closed its side. The case is set out for recording of the accused statement under Section 313 of the Cr.P.C. the submission made at the Bar by the learned senior counsel for the parties and Special Public Prosecutor Shri. B.V. Acharya is that, A-1 has been directed to appear before special Judge at Bangalore on 28-10-2011 for recording of her statement. It is at this stage, that the communication dated 15/06/2011 has come to light and has given rise to this petition under Section 482 of the Cr.P.C. The said communication addressed to the Special judge requires to be reproduced and it is as under:

“Petition filed under Section 173(8) Cr.P.C. by Deputy Superintendent of Police , Vigilance and Anti corruption, Chennai-28.

It is submitted that the review meeting of Chief Secretary and Commissioner for Administrative Reforms taken place on 03/06/2011 at Chennai relating to the cases pending at Special Investigation Cell, Vigilance and Anti Corruption and the Chief Secretary has pointed out certain patent lapses occurred in the Special Case No. 208/2004 during investigation and directed to rectify the lapses discrepancies and informative pointed out by his D.O. letter No. 2998/VC III/2011 dated 08/06/2011.

Pursuant to such intimation, Director of Vigilance and Anti corruption has also instructed to comply with the order of Government.

The lapses erupted in the former investigation only could possibly by rectified by taking up further investigation under section 173(8) Cr.P.C. as those facts are fresh materials.

I have been nominated as a investigating officer under Section 17 of the P.C. Act I such purpose by the Directorate.

Hence. I am taking a further investigation of the above said case special C.C.No. @08/2004 pending before this Hon’ble Court by way of an intimation in accordance with the guidelines given by apex court in “Rama Choudhary Vs State of Bihar” (AIR 2009 SC 2308) and “State of Andrapradesh Vs AS Peter” (AIR 2008 SC 1052) which permits such further investigation without prior permission of the court.”

42. What is clear from the contents of the aforesaid communication is the following:

i) Further investigation is sought not by the Investigating Officer on his own free volition.

ii) The I.O. did not notice any lapses in the investigation butit is the Chief Secretary who has pointed out certain patent lapses according to the letter.

iii) The Chief Secretary has directed the I.O. to rectify the lapses, discrepancies and the infirmities pointed out by the Chief Secretary in his D.O. letter dated 08/06/2011.

iv) The DVAC has been instructed to comply with the order of the Government and the object of taking further investigation is said to be to rectify the lapses.

v) it is pursuant to the aforesaid directions that the Dy. S.P. has thought it fit to take up further investigation.

43. thus, it is clear that the need for the further investigation arose not on account of the I.O. being satisfied to take up further investigation but, on the other hand, the promptness of the directions as well came from the Chief Secretary to the I.O. In other words, as rightly submitted by the learned senior counsel, the I.O did not fine any lapses or discrepancies in the investigation, but it is the Chief Secretary who has pointed out the lapses to the I.O.

44. It has to be mentioned at this juncture that, apart from the aforesaid tenor of the communication addressed to the Special Judge by the I.O., the point of time at which further investigation is sought also cannot be lost sight of. The charge sheet in this case was filed before the Special Judge at Chennai on 04/06/1997 and by the end of August 2000, 250 witnesses for the prosecution had been examined. During the period November 2002- February 2003, 76 witnesses were recalled and all of them had resiled from their earlier statements. A-1 was the Chief Minister during the period from -02/03/2002 till 12/05/2006. Further investigation in the second charge sheet (known as the London Wealth case) was taken up during the period when A-1 was the Chief Minister and as the consequence of the further statement recorded in that case, the prosecution ultimately withdrew the case. Now, the further investigation is sought or is proposed to be undertaken by the I.O. during the occupancy of the office of the chief minister 45. I have already referred to the observation of the Apex court in the transfer case and Apex Court , after noting down various instances which indicated the prosecution having been in hand in glove with the accused and also after nothing down that the witnesses were recalled for cross-examination after the second respondent before it i.e., the Chief Minister , having assumed the power as the Chief Minister of the state, went on to hold that if criminal trail is not free and fair and not free from bias, judicial fairness of the criminal justice system would be at stake shaking the confidence of the public in the system and owe would be the rule of law and, therefore, the Apex Court observed that the circumstances referred to by it in the transfer case are such as to create reasonable apprehension in the minds of the public and the petitioner in particular that there is every likelihood of failure of justice.46. The circle has come round in the sense, once again, further investigation is sought in this case again after A-1 having assumed the seat of the Chief Minister of Tamil Nadu following the elections held during may 47. although the decisions referred to by the learned senior counsel for the parties, which have been noted by me above, lay down the law that it is the statutory right of the I.O. to take up further investigation the principles also go to indicate that, in the guise of further investigation , there could be no reinvestigation or fresh investigation and further, the Apex Court also having held that, in the guise of further investigation, what has been done earlier cannot be undone, the reasons given in the communication dated 15/06/2011 do not, to my mind, give the impression that the I.O. wants to take up further investigation from where it had stopped, leading to filing of the charge sheet but, on the other hand, the effort is to undo what has been done in the past.48. Thus, the situation that is now reached is not an ordinary situation and further investigation is now sought to be undertaken in such a situation when the case has reached the stage of recording of the accused statement and the Apex court having also directed in the transfer case that the trail before the Special Judge will have to proceed on day-to-day basis till completion, in such extraordinary situation, the need or necessity also arises on the part of the court to invoke extraordinary powers conferred on it by the Code itself. In other words, the extraordinary situation calls for exercise of extraordinary powers vested with the court.49. Although the law laid down by the Apex Court in respect of the power of the investigating agency or the I.O. under Section 173(8) of the Cr.P.C., is a statutory right and cannot be interfered with by the court in normal circumstances and the I.O. has the widest amplitude to undertake further investigation, yet, when there is an apprehension in the mind of the petitioner that an attempt is being made to subvert the course of justice and in order to meet the ends of justice, it is necessary to invoke the power of the court which is inherent in the court, the court has to take recourse to no other provision of the Cr.P.C. except under Section 482.

50. Section 482of the Cr.P.C. provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may necessary to give effect to any order under this Code and also to prevent the abuse of the process of any court or otherwise to secure the ends of justice, Thus, it is clear that nothing in the Code including Section 173(8) of the Cr. P.C. can prevent the high court from exercising it s inherent powers.

51. The Apex Court, in the case of Municipal corporation of Delhi Vs Ram Kishan Rohtag, reported in AIR 1983 SC 67, has observed that, “ It is well settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one it has to be exercised sparingly”. The Apex Court also quoted an earlier decision in the case of RajKapoor Vs state, (1980)1 SCC 43, where, speaking for the court, His Lordship Justice Krishna Iyer had observed that, “Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances.”.

52. The Apex court, in the well known case of State of Haryana Vs Bhajan Lal, reported in 1992 supp (1) SCC 335, has held thus:

“The investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds. A noticeable feature of the scheme under chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate order as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. No one can demand absolute immunity even if he wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will tantamount to recognition of “Divine Power” which no authority on earth can enjoy”.

53. in the case of State of Punjab Vs Kasturi Lal, reported in 2005 AIR SCW 3306, dealing with the exercise of power under Section 482 of the Code, the Apex Court has observed thus:

“10. Exercise of power under S. 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer nay new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the high Courts,……….”

The Court went on to further observe thus:

“…………….All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising power under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Court exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/ continuation of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice……….”

54. In the light of aforesaid principles laid down by the Apex court while dealing with the scope of the inherent powers of the High court under Section 482 of the Cr.P.C., in my opinion, the sequence of events which have been referred to by the learned senior counsel for the petitioner as well as the learned Special Public Prosecutor Shri. B.V. Acharya and the point of time at which further investigation is sought to be undertaken, that too at the instance and directions of the Chief Secretary of the State of Tamil Nadu, and the intention behind the further investigation being not one which is permissible under law, in the light of the meaning given to “further investigation” in Section 173(8) as well as in the light of the law laid down by the Apex Court in this regard, in the instant case, keeping in view the ends of justice as the most paramount consideration, the petitioner has thus made out a case for this court to invoke the extraordinary power conferred on it under Section 482 of the Cr.P.C. and in order to prevent subversion of justice and to meet the ends of justice, this court, under the aforesaid compelling circumstances, has to interfere and stop further investigation which the I.O. intends to take up, as mentioned in the communication dated 15/06/2011.

55. As far as the third relief sought by the petitioner is concerned, it is needless to say that the Apex Court has already laid down several directions in the transfer case and has indicated at paragraph-34(b) that the trail shall proceed from day-to-day till completion and, as such, the Special Judge before whom the case is pending, cannot lose sight of the said direction given by the Apex Court.

56. In the result, I pass the following order:

The petition is allowed and the decision taken by the Dy.S.P., DVAC, to take up further investigation by his letter dated 15/06/2011 is quashed, and the interim order passed earlier restraining the DVAC from taking up further investigation is made absolute. The special judge will have to proceed with the case as per the directions given by the Apex Court in the transfer case.

Shri. M.T. Nanaiah, learned senior counsel, has assisted this court as amicus curiae and has placed several decisions for court’s consideration with regard to the power of the I.O. to take up further investigation under Section 173(8) of the Cr.P.C. The court, thereof, places on record its appreciation for the valuable services rendered by Shri. M.T. Nanaiah as amicus curiae. A fee of Rs.50,000/- is fixed and the same shall be paid to the learned senior counsel by the Registry without any delay.