# DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS

- **Citation:** [2022] 15 S.C.R. 692
- **Court:** Supreme Court of India
- **Decided:** 2022-10-12
- **Case number:** Criminal Appeal No. 1768 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devendra-nath-singh-v-state-of-bihar-ors-35657
- **Pages:** 38

## Headnote

Code of Criminal Procedure, 1973 - s. 482 - Allegations of
defalcation of goods and misappropriation of stocks from the
godown of the Corporation - FIR was registered - Magistrate took
cognizance of offences u/ss. 409, 467, 468 and 420 of IPC against
respondent no.3 - Respondent no.3 filed petition u/s. 482 Cr.PC -
High Court observed that an accused in the case 'as scapegoat to
save the skin' of the present appellant - Having said so, the High
Court proceeded to direct the Magistrate to give directions to the
police to further investigate the case in terms of s.173(8) CrPC
regarding the allegations against the appellant - On appeal, held:
The person lodging the FIR with reference to the audit report, i.e.,
the Senior Dy. Collector-cum-District Manager, made imputations
only against the respondent No. 3, who was a class IV employee of
the Corporation but was purportedly posted as an in-charge Assistant
Godown Manager by the appellant, who was, at the relevant time,
holding the position of the District Manager - Suffice it to observe
for the present purpose that when all the relevant aspects were duly
projected before the High Court in the petition filed by the respondent
No. 3, the High Court could not have simply ignored the same only
for the reasons that the informant omitted to state them while lodging
the FIR, and/or the investigating officer overlooked them while
submitting the result of 34 investigation, and/or the Magistrate did
not pay requisite attention to them while taking cognizance - Instant
case is a case of exceptional and special features where the High
Court was justified in ordering further investigation, particularly
qua the role of the appellant - Thus, the principal part of the order
impugned, directing further investigation, calls for no interference
- However, High Court was not justified in making such
observations, comments, and remarks, which leave little scope for
an independent investigation and which carry all the potential to
cause prejudice to the appellant.
[2022] 15 S.C.R. 692
692
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Dismissing the appeal, the court
HELD: 1. For what has been noticed various judgments of
Supreme Court, this Court could reasonably cull out the
principles for application to the present case as follows: (a) The
scheme of the Code of Criminal Procedure, 1973 is to ensure a
fair trial and that would commence only after a fair and just
investigation. The ultimate aim of every investigation and inquiry,
whether by the police or by the Magistrate, is to ensure that the
actual perpetrators of the crime are correctly booked and the
innocents are not arraigned to stand trial. (b) The powers of the
Magistrate to ensure proper investigation in terms of Section
156 CrPC have been recognised, which, in turn, include the power
to order further investigation in terms of Section 173(8) CrPC
after receiving the report of investigation. Whether further
investigation should or should not be ordered is within the
discretion of the Magistrate, which is to be exercised on the facts
of each case and in accordance with law. (c) Even when the basic
power to direct further investigation in a case where a chargesheet has been filed is with the Magistrate, and is to be exercised
subject to the limitations of Section 173(8) CrPC, in an appropriate
case, where the High Court feels that the investigation is not in
the proper direction and to do complete justice where the facts
of the case so demand, the inherent powers under Section 482
CrPC could be exercised to direct further investigation or even
reinvestigation. The provisions of Section 173(8) CrPC do not
limit or affect such powers of the High Court to pass an order
under Section 482 CrPC for further investigation or
reinvestigation, if the High Court is satisfied that such a course
is necessary to secure the ends of justice. (d) Even when the
wide powers of the High Court in terms of Section 482 CrPC are
recognised for ordering further investigation or reinvestigation,

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DEVENDRA NATH SINGH
v.
STATE OF BIHAR & ORS.
(Criminal Appeal No. 1768 of 2022)
OCTOBER 12, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Code of Criminal Procedure, 1973 - s. 482 - Allegations of
defalcation of goods and misappropriation of stocks from the
godown of the Corporation - FIR was registered - Magistrate took
cognizance of offences u/ss. 409, 467, 468 and 420 of IPC against
respondent no.3 - Respondent no.3 filed petition u/s. 482 Cr.PC -
High Court observed that an accused in the case 'as scapegoat to
save the skin' of the present appellant - Having said so, the High
Court proceeded to direct the Magistrate to give directions to the
police to further investigate the case in terms of s.173(8) CrPC
regarding the allegations against the appellant - On appeal, held:
The person lodging the FIR with reference to the audit report, i.e.,
the Senior Dy. Collector-cum-District Manager, made imputations
only against the respondent No. 3, who was a class IV employee of
the Corporation but was purportedly posted as an in-charge Assistant
Godown Manager by the appellant, who was, at the relevant time,
holding the position of the District Manager - Suffice it to observe
for the present purpose that when all the relevant aspects were duly
projected before the High Court in the petition filed by the respondent
No. 3, the High Court could not have simply ignored the same only
for the reasons that the informant omitted to state them while lodging
the FIR, and/or the investigating officer overlooked them while
submitting the result of 34 investigation, and/or the Magistrate did
not pay requisite attention to them while taking cognizance - Instant
case is a case of exceptional and special features where the High
Court was justified in ordering further investigation, particularly
qua the role of the appellant - Thus, the principal part of the order
impugned, directing further investigation, calls for no interference
- However, High Court was not justified in making such
observations, comments, and remarks, which leave little scope for
an independent investigation and which carry all the potential to
cause prejudice to the appellant.
[2022] 15 S.C.R. 692
692
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Dismissing the appeal, the court
HELD: 1. For what has been noticed various judgments of
Supreme Court, this Court could reasonably cull out the
principles for application to the present case as follows: (a) The
scheme of the Code of Criminal Procedure, 1973 is to ensure a
fair trial and that would commence only after a fair and just
investigation. The ultimate aim of every investigation and inquiry,
whether by the police or by the Magistrate, is to ensure that the
actual perpetrators of the crime are correctly booked and the
innocents are not arraigned to stand trial. (b) The powers of the
Magistrate to ensure proper investigation in terms of Section
156 CrPC have been recognised, which, in turn, include the power
to order further investigation in terms of Section 173(8) CrPC
after receiving the report of investigation. Whether further
investigation should or should not be ordered is within the
discretion of the Magistrate, which is to be exercised on the facts
of each case and in accordance with law. (c) Even when the basic
power to direct further investigation in a case where a chargesheet has been filed is with the Magistrate, and is to be exercised
subject to the limitations of Section 173(8) CrPC, in an appropriate
case, where the High Court feels that the investigation is not in
the proper direction and to do complete justice where the facts
of the case so demand, the inherent powers under Section 482
CrPC could be exercised to direct further investigation or even
reinvestigation. The provisions of Section 173(8) CrPC do not
limit or affect such powers of the High Court to pass an order
under Section 482 CrPC for further investigation or
reinvestigation, if the High Court is satisfied that such a course
is necessary to secure the ends of justice. (d) Even when the
wide powers of the High Court in terms of Section 482 CrPC are
recognised for ordering further investigation or reinvestigation,
such powers are to be exercised sparingly, with circumspection,
and in exceptional cases. (e) The powers under Section 482 CrPC
are not unlimited or untrammelled and are essentially for the
purpose of real and substantial justice. While exercising such
powers, the High Court cannot issue directions so as to be
impinging upon the power and jurisdiction of other authorities.
For example, the High Court cannot issue directions to the State
to take advice of the State Public Prosecutor as to under what
provision of law a person is to be charged and tried when ordering
DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS.
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further investigation or reinvestigation; and it cannot issue
directions to investigate the case only from a particular angle. In
exercise of such inherent powers in extraordinary circumstances,
the High Court cannot specifically direct that as a result of further
investigation or reinvestigation, a particular person has to be
prosecuted. [Para 13][721-G-H; 722-A-G]
2. Applying the principles aforesaid to the facts of the
present case, what we find is that, in relation to the allegations of
defalcation of goods and misappropriation of stocks from the
godown of the Corporation, the person lodging the FIR with
reference to the audit report, i.e., the Senior Dy. Collector-cumDistrict Manager, made imputations only against the respondent
No. 3, who was a class IV employee of the Corporation but was
purportedly posted as an in-charge Assistant Godown Manager
by the appellant, who was, at the relevant time, holding the
position of the District Manager. Though several features of the
actions and omissions at the relevant time have been mentioned
in the audit report, we do not propose to dilate on the same.
Suffice it to observe for the present purpose that when all the
relevant aspects were duly projected before the High Court in
the petition filed by the respondent No. 3, the High Court could
not have simply ignored the same only for the reasons that the
informant omitted to state them while lodging the FIR, and/or
the investigating officer overlooked them while submitting the
result of investigation, and/or the learned Magistrate did not pay
requisite attention to them while taking cognizance. [Para
14][722-G-H; 723-A-C]
3. In the given set of facts and circumstances, this Court is
satisfied that the present one had been such a case of exceptional
and special features where the High Court was justified in ordering
further investigation, particularly qua the role of the appellant.
Thus, the principal part of the order impugned, directing further
investigation, calls for no interference. [Para 14.1][723-D-E]
4. However, there are certain other aspects and features
of the order impugned which are difficult to be appreciated and
approved. The High Court has chosen to use such harsh and
severe expressions in the impugned order which carry all the
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potential of causing prejudice to the appellant and even to distract
a fair and dispassionate investigation. As noticed, the High Court
has made its comments that the 'entire game was played' by the
appellant who was holding the position of District Manager. The
High Court has even stated that the appellant was 'ultimately
responsible for all such irregularities'. The High Court has gone
to the extent of observing that the respondent No. 3 was made
an accused in the case 'as scapegoat to save the skin' of the
appellant. These and other akin observations in the order
impugned lead to the position as if the High Court has already
concluded on the result of investigation against the appellant. It
is entirely a different matter to order further investigation on
being prima facie satisfied about the requirement to do so in view
of exceptional circumstances pertaining to a given case but, while
doing so in exercise of inherent powers, the High Court has not
been justified in making such observations and remarks which
are likely to operate over and above the investigation and may
cause prejudice to the appellant. As noticed, the principle remains
settled that the High Court cannot issue directions to investigate
the case from a particular angle. [Para 15][723-E-G; 724-A-C]
5. Thus, this Court is of the view that in the given set of
facts and circumstances, though the High Court has rightly
exercised its powers under Section 482 CrPC for directing further
investigation but, has not been justified in making such
observations, comments, and remarks, which leave little scope
for an independent investigation and which carry all the potential
to cause prejudice to the appellant. [Para 16][724-C-D]
Dharam Pal and Ors. v. State of Haryana and Anr.
(2014) 3 SCC 306 : [2013] 13 SCR 1052; Abhinandan
Jha & Ors. v. Dinesh Mishra [1967] 3 SCR 668;
Vinubhai Haribhai Malaviya and Ors. v. State of
Gujarat and Anr. (2019) 17 SCC 1 : [2019] 15 SCR
936; Madan Mohan v. State of Rajasthan and Ors.
(2018) 12 SCC 30 : [2017] 12 SCR 222; Popular
Muthiah v. State (2006) 7 SCC 296 : [2006] 3 Suppl.
SCR 100; Divine Retreat Centre v. State of Kerala and
DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS.
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Ors. (2008) 3 SCC 542 : [2008] 4 SCR 701; Union of
India and Anr. v. W.N. Chadha (1993) 4 Supp SCC 260
: [1992] 3 Suppl. SCR 594; Manharibhai Muljibhai
Kakadia and Anr. v. Shaileshbhai Mohanbhai Patel and
Ors. (2012) 10 SCC 517 : [2012] 8 SCR 1015; Vinay
Tyagi v. Irshad Ali and Ors. (2013) 5 SCC 762 : [2012]
13 SCR 1005; State of Punjab v. Central Bureau of
Investigation and Ors. (2011) 9 SCC 182 : [2011] 11
SCR 281; Neetu Kumar Nagaich v. State of Rajasthan
and Ors. (2020) 16 SCC 777 : [2020] 6 SCR 1015 -
referred to.
Case Law Reference
[2013] 13 SCR 1052
referred to
Para 6.1
[1967] 3 SCR 668
referred to
Para 6.1
[2019] 15 SCR 936
referred to
Para 6.1
[2017] 12 SCR 222
referred to
Para 6.1
[2006] 3 Suppl. SCR 100
referred to
Para 6.2
[2008] 4 SCR 701
referred to
Para 6.3
[1992] 3 Suppl. SCR 594
referred to
Para 6.3
[2012] 8 SCR 1015
referred to
Para 6.3
[2012] 13 SCR 1005
referred to
Para 6.4
[2011] 11 SCR 281
referred to
Para 7.2
[2020] 6 SCR 1015
referred to
Para 7.4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1768 of 2022.
From the Judgment and Order dated 10.09.2018 of the High Court
of Judicature at Patna in Criminal Miscellaneous No. 649 of 2016.
Siddharth Dave, Sr. Adv., Aditya Singh, Ms. Manisha Ambwani,
Advs. for the Appellant.
Garvesh Kabra, Samir Ali Khan, Aman Pathak, Manish Kumar,
Amit Pawan, Prasanna Mohan, Ms. Ishita Sinha, Sameer Shrivastava,
Hussan Zubair Waris, Dr. Sangeeta Verma, Ms. Shivangi, Aakarsh, Advs.
for the Respondents.
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The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Delay condoned. Leave granted.
2. The challenge in this appeal is to the order dated 10.09.2018, as
passed by the High Court of Judicature at Patna in Criminal Miscellaneous
No. 649 of 2016.
2.1. The said petition under Section 482 of the Code of Criminal
Procedure, 19731 was filed by respondent No. 3 of the present appeal,
against the order dated 21.06.2014, as passed by the ACJM, Barh, District
Patna2 in Barh Police Station Case No. 115 of 2012 whereby, the learned
Magistrate had taken cognizance of the offences under Sections 409,
467, 468 and 420 of the Indian Penal Code, 18603 on the allegations
against the respondent No. 3 of misappropriation of stocks worth Rs.
16,99,648/- from the godown of the Bihar State Food and Civil Supplies
Corporation4 during the years 2010-11 and 2011-12.
3. The main plank of the submissions before the High Court in the
aforesaid petition by the respondent No. 3 had been that he was only a
Class IV employee of the Corporation and that the 'entire game was
played' by the present appellant, who was holding the position of the
District Manager. In that regard, the contents of audit report forming
part of the First Information Report5 were extensively relied upon.
4. The High Court, after taking note of the submissions made on
behalf of the present respondent No. 3, expressed surprise that the then
District Manager of the Corporation (i.e., the present appellant), who
was ultimately responsible for the illegalities, was given a clean chit by
the informant, i.e., the Senior Dy. Collector-cum-District Manager (incharge of the godown). It was also observed that the present respondent
No. 3, a Class IV employee, could not have been posted at the godown;
and that he was made an accused in the case 'as scapegoat to save
the skin' of the present appellant.
4.1. Having said so, the High Court proceeded to direct the
Magistrate to give directions to the police to further investigate the case
1 'CrPC', for short.
2 Hereinafter referred to as 'the Magistrate'.
3 'IPC', for short.
4 Hereinafter referred to as 'the Corporation'.
5 'FIR', for short.
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in terms of Section 173(8) CrPC regarding the allegations against the
appellant and to seek the report within a period of three months. The
Court, however, expressed its disinclination to interfere with the impugned
order taking cognizance against the present respondent No. 3 and disposed
of the petition while giving liberty to the respondent No. 3 to raise all the
points at the time of framing the charge which, as per the directions of
the High Court, were to be decided by the learned Magistrate after
taking into consideration the material emerging in further investigation
against the appellant.
5. The impugned order dated 10.09.2018 could be usefully
reproduced, in extenso, as under: -
"This petition under Section 482 Cr. P. C. has been filed for
quashing the order dated 21.6.2014 passed by the A.C.J.M. Barh,
Patna in Barh P.S. case no. 115 of 2012 by which learned
Magistrate has taken cognizance for the offence under Sections
409,467, 468 and 420 of the I.P.C. against the petitioner.
Heard learned counsel for the petitioner and State.
Learned counsel for the petitioner has submitted that
petitioner was only a class IV employee in the Bihar State Food
and Civil Supply Corporation Ltd. for short 'the Corporation".
The entire game was played by D.N Singh who was District
Manager which has also come in the Audit Report which is part
of the FIR and annexed as Annexure-2. The informant who was
Senior Dy. Collector-cum-District Manager (Incharge) of the
Godown has not lodged any case against said D.N.Singh the then
District Manager who had played entire game in committing
misappropriation. The F.I.R. has been lodged only against the
petitioner who was class IV employee and was made In-charge
of the Godown by D.N. Singh against the Circular and Government
policy, which had also come in detail in Audit Report submitted by
the Auditor. The police submitted charge sheet against this petitioner
on the basis of aforesaid FIR and cognizance has been taken
against the petitioner on the basis of the charge sheet.
This Court is really surprised to find that the then District
Manager of the Corporation, who was ultimately responsible for
all such illegalities, had been given clean chit by the informant. He
was not made accused in the case. The petitioner being the IV
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grade employee, was posted by the then District Manager, namely,
D.N. Singh, as Incharge Assistant Godown Manager although he
was not entitled to be posted as such. He has been made accused
in the case as scapegoat to save the skin of D.N.Singh, the then
District Manager of Godown.
Learned ACJM, Barh, Patna is directed to give direction to
the police to further reinvestigate the case in terms of provision of
Section 173(8) of the Cr. P.C. with regard to allegation against
D.N.Singh the then District Manager with regard to allegation of
misappropriation of money and appointing the petitioner who was
class IV employee as In-charge Assistant Godown Manager
against the circulars and directions of the Government. The
Magistrate will direct the police to complete the re-investigation
with regard to role of then District Manager Sri D. N.Singh in the
entire game of the misappropriation of the money as mentioned in
detail in the audit report in accordance with law and submit report
before him within a period of three months from the date of passing
of the order by the learned Magistrate.
This Court, at present, is not inclined to interfere with the
impugned order with regard to the petitioner by which cognizance
has been taken against him on the basis of charge sheet submitted
by the police.
This Cr. Misc. petition is, accordingly, disposed off. The
petitioner is given liberty to raise all the points, as raised in the
present application, at the time of framing of charge, which shall
be considered and disposed off by the learned Court below in
accordance with law after taking into consideration the materials
which will come during further investigation with regard to
allegation against D. N. Singh the then District Manager."
6. The order aforesaid is questioned by the appellant in whose
relation the directions have been issued for further investigation, inter
alia, on the ground that investigation is the prerogative of the investigating
agency/officer and no mandate could be issued to the Magistrate so as
to usurp such powers to investigate. It is also submitted that the impugned
order has been directly in violation of the principles of natural justice
inasmuch as no opportunity of hearing was extended by the High Court
to the appellant.
DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS.
[DINESH MAHESHWARI, J.]
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6.1. While elaborating, learned counsel for the appellant has
contended that the High Court, while exercising its powers under Section
482 CrPC, could not have issued a specific direction to the Magistrate to
direct the police to investigate the role of the appellant, who was neither
named in the FIR nor was charge-sheeted and was not even a party
before the High Court. With reference to the Constitution Bench decision
in the case of Dharam Pal and Ors. v. State of Haryana and Anr.:
(2014) 3 SCC 306 and the other decisions in Abhinandan Jha & Ors.
v. Dinesh Mishra: (1967) 3 SCR 668 and Vinubhai Haribhai
Malaviya and Ors. v. State of Gujarat and Anr.: (2019) 17 SCC 1,
the learned counsel has submitted that the principles remain settled by
this Court that as per the scheme of CrPC, formation of an opinion as to
whether a person is to be put on trial has been left to the officers in
charge of a police station; and this Court has further held that in a case
where the Magistrate is of the opinion that the final report submitted by
the police is unsatisfactory, he could exercise his powers under Section
156(3) CrPC and direct the police to make a further investigation or
straightaway take cognizance under section 190(1)(c) CrPC,
notwithstanding the contrary opinion of the police. However, according
to the learned counsel, directions for exercising such power in a particular
manner could not have been issued by the High Court while dealing with
the petition filed by the respondent No. 3. The learned counsel has also
referred to the decision in Madan Mohan v. State of Rajasthan and
Ors.: (2018) 12 SCC 30, wherein this Court has observed that a superior
Court could not issue directions to any subordinate Court commanding
them to pass a particular order on any application filed by a party.
6.2. Learned counsel for the appellant has also relied upon the
decision in Popular Muthiah v. State: (2006) 7 SCC 296 to submit
that while dealing with a similar issue where the High Court, in an appeal
against conviction under Section 302 IPC, had issued directions to the
investigating agency to investigate the appellant who had not been sent
up for trial, this Court held that the High Court could not have issued
such a direction in exercise of its inherent powers, as the investigation of
an offence was a statutory power of the police and it was for the State
to decide whether it wanted to proceed against an accused or not. It
was observed that the High Court could not issue directions to investigate
the case from a particular angle or by a particular agency and hence, it
went beyond its jurisdiction in directing the prosecution of the appellant.
Therein, the impugned judgment was set aside, and the matter was
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remanded to the High Court for fresh consideration after hearing the
appellant.
6.3. In the second limb of submissions, learned counsel for the
appellant has contended that the High Court ought to have given an
opportunity of hearing to the appellant before issuing the impugned
directions. The learned counsel would argue that the test as to whether
a person is entitled to an opportunity of being heard in challenge to an
order passed by a Magistrate is not dependant on whether such person
had a right to be heard by the Magistrate in the first instance; the
entitlement to hearing has to be assessed independently by considering
the consequences of the proceedings in which a hearing is sought; and a
hearing could be claimed where a substantial right of a person would be
affected. The learned counsel has referred to the decision in Divine
Retreat Centre v. State of Kerala and Ors.: (2008) 3 SCC 542
wherein, while dealing with the issue whether the High Court could have
passed a judicial order directing an investigation against the appellant
therein without hearing it, this Court held that no judicial order could be
passed by any Court without providing a reasonable opportunity of being
heard to the person who was likely to be affected by such order while
distinguishing the decision in the case of Union of India and Anr. v.
W.N. Chadha: 1993 Supp (4) SCC 260 by observing that the dictum
in the said judgment would not apply where a challenge was to a judicial
order directing an inquiry or investigation against a person or institution.
The learned counsel has also relied upon a 3-Judge Bench decision of
this Court in Manharibhai Muljibhai Kakadia and Anr. v. Shaileshbhai
Mohanbhai Patel and Ors.: (2012) 10 SCC 517, wherein it was
observed that an accused or a person suspected to have committed a
crime has a right to be heard in a criminal revision preferred before the
High Court or Sessions Judge against an order of dismissal of a complaint
under Section 203 CrPC, as an order passed by the superior Court in
revision, overturning the order of dismissal of the complaint would, in
effect, restore the complaint and hence, cause prejudice to the accused.
6.3.1. It has been contended that in the absence of the appellant,
the High Court had no occasion to take note of the fact that he had
already been exonerated of all charges after detailed departmental
proceedings and hence, the directions for further investigation were wholly
unwarranted in this case.
DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS.
[DINESH MAHESHWARI, J.]
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6.4. Learned counsel for the appellant has also argued that the
High Court could not have directed for further investigation or
reinvestigation in this the matter in view of the dictum of this Court in
Vinay Tyagi v. Irshad Ali and Ors.: (2013) 5 SCC 762, wherein it
was held that fresh/de novo investigation ought to be directed sparingly
and in exceptional circumstances, like where the investigation already
conducted is tainted by malafides.
6.5. Learned counsel for the appellant would submit that the
Magistrate himself, while taking cognizance, could have proceeded
against the present appellant, if he had been satisfied that the materials
on record implicated the appellant to any extent but, when the Magistrate
opted not to proceed against the appellant, the High Court could not
have issued directions to further reinvestigate the matter qua the appellant,
though it is always open for a Court to proceed against a person not sent
up for trial at the stage of Section 319 CrPC, if the evidence is forthcoming
in that regard.
7. Learned counsel for the respondent No. 3 has supported the
impugned order with the submissions that the appellant was a high-ranking
officer and he appears to have influenced the other officers in the internal
inquiry so as to give him a clean chit. A copy of the audit report dated
31.05.2012 forming the basis of the FIR in question has been placed on
record and has been exhaustively referred to during the course of
submissions.
7.1. The learned counsel has underscored the observations of this
Court in the case of Vinubhai Haribhai Malaviya (supra) that the
ultimate aim of investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually committed the
crime are booked and those who have not, are not arraigned to face
trial. With reference to these and other observations that such
requirements pertain to the spirit of Article 21 of the Constitution of
India, learned counsel has argued that the offences in question, relating
to defalcation of foodgrains which caused hardship to the economically
weaker sections of the society, need to be properly investigated not only
to book the actual culprits but also to check the recurrence of such a
crime.
7.2. The learned counsel would argue that in the peculiar
circumstances of this case, when it was found that no proper investigation
was carried out against the appellant, who was the District Manager
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and overall in-charge of the godowns, the High Court has rightly exercised
its inherent powers to issue the directions so as to ensure further and
proper investigation in the matter. While relying on the decision of this
Court in the case of State of Punjab v. Central Bureau of Investigation
and Ors.: (2011) 9 SCC 182, the learned counsel has contended that
under Section 482 CrPC, the High Court has the power to order further
investigation as also reinvestigation; and that no illegality or jurisdictional
error could be imputed on the order impugned. The learned counsel has
further submitted that when the High Court has the power to direct
further investigation or reinvestigation directly, it also could do so by
issuing directions to the learned Magistrate, who is in seisin of the matter.
7.3. The learned counsel has further contended that the Magistrate,
before whom a final report is submitted, has the power and authority to
differ with the report and to order further investigation. However, the
existence of this power with the Magistrate does not ipso facto imply
that the High Court, even in exercise of its inherent jurisdiction, cannot
direct further investigation in an appropriate case, when it comes to its
notice that the investigation in a case has not been conducted properly.
7.4. It has further been argued that although the inherent powers
cannot be used by the High Court in a routine manner and can be
exercised only in extreme cases but in the present case, when offence
in question has the consequences for the society at large, the High Court
cannot be faulted in exercising its inherent powers, which are,
nevertheless, exercised ex debito justitiae. The learned counsel has
particularly referred to paragraph 30 of the aforesaid decision in Popular
Muthiah; and has further relied upon the case of Neetu Kumar Nagaich
v. State of Rajasthan and Ors.: (2020) 16 SCC 777 wherein this
Court has held that when a constitutional Court is satisfied that the
investigation has not been conducted in an objective manner or conducted
in a manner as to help someone escaping the law, it could direct de novo
investigation so as to prevent miscarriage of criminal justice.
7.5. As regards the contention that no notice was issued to the
appellant before passing of the impugned order, the learned counsel has
argued, with reference to the decision of this Court in W.N. Chadha
(supra) that, at the stage of investigation, no such notice is required to be
issued to the accused. Learned counsel has also referred to various
other decisions and has submitted that the said decision in W.N. Chadha
has been consistently followed by this Court. The learned counsel would
DEVENDRA NATH SINGH v. STATE OF BIHAR & ORS.
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also submit that though the referred judgments were rendered in the
applications filed by the victim and not by the co-accused but the
underlying principle remains the same that an accused is not required to
be heard at the stage of investigation. Learned counsel would also submit
that if upon receiving the final report, the learned Magistrate could have
ordered further investigation without prior notice to the accused, so could
the High Court have, in exercise of its inherent jurisdiction, which is, if
anything, much wider.
7.6. In the last leg of contentions, learned counsel for respondent
No. 1 has also submitted that before granting of interim stay by this
Court, the requisite investigation had commenced and was transferred
to the Economic Offences Unit, where the allegations against the
appellant have been found to be prima facie correct but further action
was deferred in view of the stay order of this Court. However, the
investigation hitherto carried out makes it clear that the doubts expressed
by the High Court have been found to be completely justified. Hence,
the learned counsel would submit in the alternative that, in any case, the
investigation already carried out deserves to be protected so that the
real culprits like the appellant do not escape the process of law.
8. Apart from the submissions aforesaid, it is noteworthy that
though, on behalf of the respondent No. 2 - Corporation, the reply
submissions are essentially to the effect that in the departmental
proceedings, charges were not proved against the present appellant but
then, in the counter affidavit on behalf of the respondent No. 1 - State,
detailed submissions have been made, essentially refuting the case of
the appellant.
8.1. It has, inter alia, been submitted on behalf of the respondentState that apart from the present matter, being Barh P.S. Case No. 115
of 2012, there had also been another matter, being Bikram P.S. Case
No. 129 of 2012 against the respondent No. 3 as also the present
appellant; and after the order passed by the High Court, the investigation
in the present case was also carried out by the Economic Offences
Unit, Bihar along with the aforesaid Bikram P.S. Case No. 129 of 2012.
While indicating prima facie complicity of the appellant, it has also been
pointed out that in the said Bikram P.S. Case No. 129 of 2012, instituted
for offences under Sections 409, 420, 468, 471 and 474 IPC, after finding
prima facie case against the present appellant, prosecution sanction
has also been obtained. That case relates to misappropriation of the
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goods worth Rs. 7.69 crores. It is submitted that in the present case,
prosecution sanction has not been obtained for the appellant having been
given interim protection by this Court. A few passages of the counter
affidavit filed on behalf of the State could be usefully reproduced as
under: -
"13. In fact, the successor in office District Manager had also
observed for holding a departmental proceeding against this
petitioner and the petitioner was found to have given change of
the go downs to Pramod Ranjan Kumar Sinha even without of
the permission of the Headquarter of the Corporation.
14. Even the petitioner was found to be silent with respect to the
affairs of the go down change whereof was handed over by this
petitioner a Class Iv employee namely Pramod Ranjan Sinha
inasmuch as on 11.02.2010 on truck bearing Registration No. BR
1G 1051 carrying 104.61.650 Quintals of Wheat from Mokama
Depot left Barh Go-down, however, on 12.02.2010 this truck was
apprehended and it was found to be black marketing, but, this
petitioner despite Knowledge did not take any steps against the
employee in charge of the go down by removing him from the
post and only value of the wheat was recovered from the salary
of the employee. In fact, the district office has repeateadly
informed about the irregularities at the procurement centers,
however, the petitioner did not take any steps, nor did he remove
the in change from the procurement center/go down.
15. In fact it has also been reported that despite various irregularities
and Knowledge of such irregularities the petitioner did not take
any pain to atop the some and take corrective measures.
16. It is stated that being a District Manager it was the responsibility
and prime duty of this petitioner to get the lifting of food grains,
store the same and ensure proper distribution from the go downs,
However, the petitioner failed to do so leading to such huge
misappropriation. In fact, as per the report of the SFC, it was
found that there is no proof that this petitioner carried out
inspections/visits to the Go downs.
17. During investigation, when statement of the witnesses were
recorded, namely, Radhakant Paswan, Ramashankar Prasad and
Brajkishore Srivastave, the then Assistants, they deposed that the
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petitioner was responsible and that he did not discharge his duties
properly.
18. In fact, besides the present criminal case the petitioner has
also been arraigned as a non-FIR accused in connection with
Bikram Police Station Case No. 129 of 2012 dated 12.06.2012
instituted under Sections 409/420/468/471/474 of IPC which is
also a case of identical nature. In fact, in this case the prosecution
sanction has also been received from the Corporation against this
petitioner on 13.01.2012.
19. It is stated that in the present case also there is material against
him as stated above, however, prosecution sanction has not been
obtained as the petitioner has been granted interim protection.
20. That in the above background, the statement made in Para 1
is opposed and contested and it is prayed that the order impugned
may be upheld."
9. We have given anxious consideration to the rival submissions
and have scanned through the material placed on record.
10. As could be readily noticed, the present case carries the
peculiarities of its own inasmuch as only the respondent No. 3 was named
in the FIR and was charge-sheeted on the allegations of defalcation of
foodgrains in the godown of Corporation. No investigation whatsoever
was carried out in relation to the role of the appellant in the matter.
When the respondent No. 3 attempted to question the order passed by
the learned Magistrate taking cognizance of the offences under Sections
409, 467, 468 and 420 IPC, the High Court, though, remained disinclined
to interfere with the order so passed by the learned Magistrate but, on
the other hand, expressed surprise that the appellant, the then District
Manager, was given a clean chit by the informant, another officer of the
Corporation; and only the respondent No. 3, a Class IV employee, was
named as an accused. The High Court even proceeded to observe that
the respondent No. 3 had been made accused in the case 'as scapegoat
to save the skin' of the appellant. Therefore, the High Court directed
the learned Magistrate to give directions for further investigation in terms
of Section 173(8) CrPC with regard to the allegations against the
appellant, of misappropriation of money and of appointing the respondent
No. 3 as in-charge Assistant Godown Manager against the circulars and
directions of the Government. The High Court further observed that the
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directions shall be to complete the investigation with regard to the role of
the appellant in 'the entire game of the misappropriation of the money
as mentioned in detail in the audit report'. Indisputably, the order
impugned came to be passed by the High Court without the appellant
being a party before it and in the exercise of its inherent powers under
Section 482 CrPC.
10.1. Thus, and in view of the submissions made before us, two
principal questions arise for determination in this appeal: one, as to whether
the High Court, in the exercise of its inherent powers under Section 482
CrPC, was justified in issuing directions to the Magistrate to order further
investigation though, the Magistrate before whom the charge-sheet had
been filed and who had taken cognizance, did not adopt any such process;
and second, as to whether the High Court was justified in passing the
order impugned without affording an opportunity of hearing to the
appellant?
11. While dealing with the first question as to the High Court's
exercise of its inherent powers under Section 482 CrPC in the manner
the same have been exercised in this matter, we may usefully refer to
the relevant provisions of law, which would be of bearing in the
forthcoming discussion.
11.1. Section 482 CrPC, saving the inherent powers of the High
Court, whereunder and whereby the order impugned has been passed in
this matter, reads as under: -
"482. Saving of inherent power of High Court.- Nothing in
this Code shall be deemed to limit or affect the inherent powers
of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of
the process of any Court or otherwise to secure the ends of
justice."
11.2. It is indisputable that as per the scheme of CrPC, formation
of an opinion as to whether the person is to be put on trial has been left
to the officer in-charge of a police station; and where the Magistrate is
of the opinion that the result of investigation in the form of report filed
before him is not satisfactory, he may also order investigation in terms of
Sections 156(3) and/or 173(8) CrPC or he may straightway take
cognizance under Section 190(1)(c).
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11.2.1. Section 156, the relevant parts of Section 173 and Section
190 CrPC read as under: -
"156. Police officer's power to investigate cognizable case.-
(1) Any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a Court
having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under section 190 may order such
an investigation as above-mentioned."
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"173.