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TMI Blog2009 (7) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation in the case - 1442 of 2009 - - - Dated:- 29-7-2009 - H.N. Devani, J. S/Shri K.S. Nanavati, Sr. Advocate with Keyur Gandhi for Nanavati Associates, for the Appellant. S/Shri Y.N. Ravani and D.C. Sejpal, Addl. Public Prosecutor, for the Respondent. [Judgment (Oral)].- Rule. Mr. Y.N. Ravani, learned Central Government Standing Counsel waives service of notice of rule on behalf of the respondent No. 1 Central Bureau of Investigation and Mr. D.C. Sejpal, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent No. 2 State of Gujarat. 2. Having regard to the facts of the case and with the consent of the learned Advocates for the parties, the matter is taken up for final hearing. 3. By this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C), the petitioners seek the following substantive reliefs: [A] Your Lordships may be pleased to issue appropriate writ, order or direction to quash and set aside the impugned order dated 22-9-2008 passed by the learned Special Judge, CBI, Court No. 3, at Mirzapur, Ahmedabad in Criminal Miscellaneous Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing duty and any variation in the basic duty in the Budget would have caused adverse impact on the refinery related import by way of additional duty liability on the goods that were pending for clearance. Since the Union Budget was to be presented in the Parliament on 27-2-1999, no ex-bond clearance was permissible in the normal course on 27-2-1999 in view of special pre-budget restrictions notified by the trade notice commencing from 24-2-1999 upto 2-3-1999. The special period with reference to the Budget was declared by the Commissioner, Central Excise and Customs, Rajkot. During the special period, movement of goods into in-bond and ex-bond with reference to warehousing was to be granted by the Superintendent, Central Excise and Customs in charge of bonded warehouse and no clearance was to be allowed after 5.00 p.m. on 26-2-1999 and 27-2-1999 whole day. On 25-2-1999, M/s. EOL approached the Commissionerate of Central Excise, Rajkot for depositing cheques issued by them towards customs duty of the goods warehoused in the Customs Bonded Warehouses in the EOL Refinery premises at Vadinar, for an amount of Rs. 60,031,65,860/- on the plea that they were unable to pay the Customs d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Warehouse before cancellation of the warehousing license on 25-2-99. Later on 17-3-99 EOL paid Rs. 65,70,568/- to Central Excise, Jamnagar as interest on the duty unpaid for 20 days (25-2-99 to 16-3-99) at the rate of 20%. Thus the duty appeared to have been actually paid on TR6 challan at Rajkot on 17-3-99. 5. It appears that thereafter, the Customs Department initiated investigation under the provisions of the Customs Act, 1962 on the accusations that there was deliberate mis-declaration to ensure evasion of customs duty from rate changes and the cancellation of warehousing license was obtained by the EOL by exercising fraud as the duty had not been deposited on 25-2-1999 when the warehouse license was treated as cancelled. The Commissioner of Customs House, Kandla, by detailed order dated 27th March 2002, confirmed the demand of duty of Rs. 96 crores, and directed the confiscation of goods valued at about Rs. 600 crores, and imposed the penalty of Rs. 10 crores on the EOL and also imposed various other penalties on the officers of the EOL and on the officers of the Central Excise. 6. The order of the Commissioner of Customs was challenged by the EOL and others before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, and accordingly, summarily dismissed the said petition. 12. It appears that pursuant to the observations made by the learned Special Judge, the CBI has started further investigation in connection with the offence in question, pursuant to which the impugned notice dated 10th July 2009 came to be issued by the respondent No. 1 calling upon the petitioner to produce the documents mentioned therein on or before 13th July 2009. 13. Pursuant to the notice dated 10th July 2009, the petitioner addressed a communication dated 13th July 2009 to the respondent No. 1, contending that ordinarily it is not for the High Court to re-open the investigation in a case where the investigation has been completed by the police and the report thereon has been forwarded by the police to the court and the Court has accepted the same. It was stated therein that an application has been made for recalling the order dated 13th January 2009. 14. In reply to the said communication dated 13th July 2009, the Inspector of Police, CBI vide communication dated 15th July 2009 informed the petitioners that the case has been re-opened in the light of the judgment of Hon'ble Supreme Court in Civil Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI moved an application seeking permission to conduct further investigation under Section 173(8) Cr.P.C. before the learned Special Judge which came to be rejected by order dated 22nd September 2008. Therefore, in the first instance the proceedings initiated pursuant to the first information report came to be closed by a judicial order, secondly the application for further investigation also came to be rejected by a judicial order. It was accordingly contended that, it was not permissible for the CBI to carry out further investigation in connection with the offence in question. Referring to the order dated 13th January, 2009 of this Court made in the application filed by the CBI for expunging the remarks made by the learned Special Judge while rejecting the application for further investigation, it was submitted that the order passed by the learned Special Judge has been confirmed by this Court, hence, in view of the said judicial order, it was not permissible for the CBI to carry out further investigation. 19. It was submitted that had the final report submitted by the CBI against the petitioners been pending before the learned Magistrate, and during the pendency of the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case against him for the reason that on material collected by the Investigating Officer, no offence appeared to have been committed by him. The police may have power to make further investigation and file supplementary report in the former case but it has no power to do so in the later case, since it had already obtained final order from the Court for closure of the case. This, part the Court had no power to revise/review the order competently passed on July 8, 1985, therefore, on this account as well, further action of the police is not sustainable. 21. Next it was submitted that the order passed by the learned Special Judge accepting the closure report was an order under Section 190(1)(d) and as such was a judicial order. In support of the said contention, reliance was placed upon the decision of a Full Bench of this Court in State of Gujarat v. Shah Lakhamshi Umarshi and another, AIR 1966 Gujarat 283, wherein this Court has held that: It is, therefore, clear both on a consideration of the language of section 190(l)(b) and the implication of the provision enacted in section 169 that a Magistrate receiving a final report has to deal with the final report j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation stands terminated as the same culminates into a judicial final order and that investigation pursuant to the very same case registered by the police is not permissible, as there is no power to reopen, namely to reinvestigate a case which is closed by a judicial order. 23. Referring to the order of the Supreme Court in the proceedings wherein the order of CEGAT was under challenge, it was pointed out that the Supreme Court has not noted that a criminal case has been filed under the Indian Penal Code and the Prevention of Corruption Act or that closure report had been submitted by the investigating agency. It was submitted that in the present case, it is the case of the CBI that the case has been reopened in the light of the judgment of the Supreme Court, whereas the observations in the said judgment in connection with the roles played by the respondents therein including the petitioners, were only to justify its finding that levy of penalty is clearly warranted and therefore, the said judgment does not entitle the CBI to reopen and further investigate or re-investigate the case. It was contended that whatever be the observations of the Supreme Court, the question is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Gujarat, (2009) 6 SCC 332 wherein it has been held that in view of the provisions of sub-section (2) and sub-section (8) of Section 173, even after submission of the police report under sub-section (2) on completion of the investigation, the police has a right to 'further' investigation under sub-section (8) of Section 173, but not 'fresh investigation' or 'reinvestigation'. That 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. Reliance was also placed upon the decision of the Supreme Court in K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223 for a similar proposition of law. 27. The next contention raised by the learned senior advocate was that before carrying out further investigation or reinvestigation as the case may be, the principles of natural justice require that the petitioners be given an opportunity of hearing inasmuch as there was a judicial determination in their favour, hence, before such permission was granted or clarificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the learned Judge that it was not necessary for the CBI to seek permission from the Court to further investigate the case. 31. Next it was contended that at the stage prior to issuance of process, the accused have no locus standi, hence, the present petition itself is not maintainable as no process has been issued against the petitioners. Reliance was placed upon the decision of the Supreme Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh and others, AIR 1999 SC 2332, wherein the Court held that the power of police to conduct further investigation, after laying final report, is recognized under Section 173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. The only rider is that it would be desirable that the police should inform the Court and seek formal permission to make further investigation. There is nothing in Section 173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. It was, accordingly, submitted that the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no prohibition against filing further report after conclusion of investigation. Reliance was also placed upon the decision of the Supreme Court in Union Public Service Commission v. S. Papaiah and others, (1997) 7 SCC 614 for the proposition that when shortcomings necessitating reinvestigation were brought to the notice of the Magistrate after submission of closure report, he was not required to review the earlier order but was required to order further investigation into the case which he was competent to do under Section 173(8) Cr.P.C. 34. In rejoinder, Mr. Mihir Joshi, learned Senior Advocate appearing for the petitioners submitted that extensive investigation had been undertaken in the first stage and that senior officials of the company had been detained. That the respondents cannot subject the accused to investigation twice over and that there has to be finality to investigation. It was accordingly submitted that the contention that the accused have no locus standi prior to issuance of process or that no prejudice would be caused to them if further investigation is carried out, is far from the truth. Reliance was placed upon the decision of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the said contention reliance was placed upon the decision of the Supreme Court in Nirmal Singh Kahlon v. State of Punjab and others, (2009) 1 SCC 441. 38. Before considering the questions of law arising in the present case, it may be pertinent to refer to certain facts in detail. Pursuant to the alleged illegalities and irregularities noticed by the DRI officers, the Commissioner of Customs, Kandla had initiated proceedings under the Customs Act and by an Order-in-Original dated 27-3-2002 inter alia, ordered confiscation of the goods (seized under seizure memo dated 13-4-1999) under Section 111(j) of the Customs Act, 1962, confirmed the total duty amount and imposed penalty on M/s. EOL and its officers as well as on officers of the Central Excise Department named therein. In the said order the Commissioner recorded findings of serious irregularities and illegalities on the part of the officers of M/s. EOL as well as the officers of the Department. In appeal against the order dated 27th March, 2002 of the Commissioner Customs, CEGAT vide its order dated 27th March, 2003 set aside the order holding that the date of presentation of cheques by M/s. EOL, i.e., 25-2-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1999 which is the date of the removal of the goods from the warehouse and that the license had been properly cancelled. The orders passed by the Customs Department had been set aside by the Customs, Excise Gold Appellate Tribunal (CEGAT), WZB, Mumbai vide orders dated 27-3-2003. Thus, the charges against the accused persons could not be proved, hence, this closure report is submitted before the Hon'ble Court with a request to accept it and pass the orders for releasing the documents/articles seized during the course of investigation to the concerned department/persons from whom it were seized. 40. After submission of the Final Report, as the stage when the proceedings were still pending before the CBI Court, the Supreme Court vide its judgment and order dated 7th October, 2004 allowed the appeals filed by the Revenue against the order of CEGAT. The Court referred to the findings re corded by the Commissioner and thereafter observed as follows: CEGAT did not consider the aberrations highlighted by the Commissioner and in a very cryptic manner dealt with the issues. No plausible reason has been indicated as to why the allegations which are quite serious in nature and the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of CEGAT has been set aside was not brought to the notice of the CBI Court. Besides as noted hereinabove, the final report is totally silent as regards the charges against the accused and also does not refer to any of the alleged illegalities and irregularities. The report seems to be based on the judgment of CEGAT, which also appears to have been heavily relied upon while making submissions on the Final Report. The learned Special Judge in his order dated 29-10-2004 has observed thus: 3. It appears from the averments made in the report on the basis of information that M/s. EOL Refinery, Project Division, Vadinar (Dist. Jamnagar) cleared certain imported goods from the customs bounded ware-house in an irregular manner resulting in evasion of custom duty and inquiries in the matter was initiated. The learned senior PP Mr. Sharma has drawn my attention on the document at serial No. 13 and submitted that the customs department had initiated investigation under the provisions of Customs Act, 1962 on the said set of allegations and issued show cause notice dated August 22, 1999 by Directorate of Revenue Intelligence which was adjudicated by Commissioner of Customs, Kandla an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the document at serial No. 14 pertaining to the above issues read as under: 1. The date of presentation of cheques by EOL i.e: 25-2-99 is the date of payment of customs duty on the goods in question. 2. The date for determination of rate of duty is 25-2-99 which is the date of removal from the warehouse applying the provisions of Section 15(1)(b) of the Customs Act, 1962 and that the warehousing license has been properly cancelled; 3. The charge of evasion of duty is not established; 4. Confiscation of goods under Section 111(j) of the Act is not sustainable. 5. Penalty imposed on M/s. EOL is unsustainable and is hence set aside, and 6. Penalties on the officers of M/s. EOL and Officers of the Department can not sustain and are therefore, set aside. Thus, considering the above referred document at serial No. 14, it is clearly held that the date of presentation of the cheques by M/s. EOL i.e. 25-2-1999 is the date of payment of customs duty on the goods in question and it was also held that the date of determination of customs duty is 25-2-1999 which is the date of removal of the gods from the ware-house and the license had been properly cancelled. Thus, it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court, holding the accused liable of well-planned deception and fraudulent acts leading to evasion of duty running into crores of rupees, the then Director, CBI on the opinion of the DLA Shri Sharma, took the decision not to reopen the case, it was only when the CVC having issued Office Memorandum dated 5-1-2006, the matter was gain taken up within the CBI hierarchy and the Director, CBI passed the order to initiate prosecution against the accused. Thereafter also, some time was whiled away and the present application, as a last resort, was filed in June 2008, seeking permission of the Court for further investigation, though was not required to be sought, inasmuch as there was no proceeding pending in the Court. 12. Under the circumstances, the Court has found that there is a deliberate misuse of process of law at the hands of the CBI in filing the Closure Report before my learned predecessor under the guise of the order passed by the CEGAT, though the appeals preferred by the Customs Department against the order of CEGAT were pending before the Honourable Supreme Court and in obtaining the order for accepting the Closure report without making inquiry about the results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained, even though no averments on oath were made in that regard in the body of the petition, and wide gaps of time were left unexplained or vague pleas were advanced without being substantiated by facts. After hearing at length the arguments of learned counsel, Mr. Ravani, on the factual and legal aspect of the matter, it clearly appears that the present petition is also one more attempt at abusing the process of law and wasting time of the High Court as well for the purpose of covering up the lethargy and lapses on the part of the petitioner. Even the earlier closure of investigation was itself contrary to the relevant damning observations made by the Supreme Court on 7-10-2004 while approval of closure was obtained from the Court on 29-10-2004 keeping the Court in dark and under the pretext of the petitioner being ignorant about them for a long time. It was only at the instance of Central Vigilance Commission that the wheels had turned at all, ever so slowly. Significantly the petitioner is stated to have started on 7-2-2008 the process of recollecting relevant documents and material which were disposed of after acceptance of closure report, even before seeking the permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of the applicant to voice their grievance in appropriate proceedings as against any alleged illegality or excess, in the course of investigation or further investigation. 45. This is where the matter stood when the present petition came to be filed. 46. In the background of the facts noted hereinabove as well as the rival submissions advanced by the learned advocates for the parties, it is apparent that the main issue which arises for determination is as to whether it is permissible for the investigating agency to carry out further investigation under Section 173(8) Cr.P.C. after the final report under Section 173(2) has been submitted before the Court and has been accepted. 47. Section 173 Cr.P.C. as is relevant for the purpose of the present case, reads as under: 173. Report of police officer on completion of investigation :- [1] Every investigation under this Chapter shall be completed without unnecessary delay. [2] [i] As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - [a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provides that nothing in the 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, it is apparent that there is no bar against further investigation even after the report forwarded to the Magistrate under sub-section (2) is accepted by the Magistrate. If the intention of the legislature was otherwise, it would have expressly been provided in the said provision. 50. In King-Emperor v. Khwaja Nazir Ahmad, Vol. LXXI Indian Appeals, 203 the Privy Council delineated the powers of the police to investigate. It was held thus: "Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are Within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and sent a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused." Accordingly, in the Code of Criminal Procedure, 1973 a new provision, Section 173(8) was introduced. 52. Thus, it is with a view to take care of situations like the present case, wherein some fresh material comes to light, that the provision of sub Section (8) of Section 173 appears to have been enacted. This also appears to be the intention of the legislature while introducing the said provision. 53. Insofar as further investigation under Section 173(8) after cognizance has been taken upon the report under sub-section (2) of Section 173, and the proceedings are pending before the learned Magistrate, the Supreme Court in Hasanbhai Valibhai Qureshi v. State of Gujarat and others, (2004) 5 SCC 347 held thus: 12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice 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. 55. In State of Andhra Pradesh v. A.S. Peter, (2008) 2 SCC 383, the Supreme Court held thus: Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not. 56. In Nirmal Sing Kahlon v. State of Punjab, (2009) 1 SCC 441, the Supreme Court held as follows: 68. An order of further investigation in terms of Section 173(8) of the Code by the State in exercise of jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate and the Magistrate passes an order (a) agreeing with the report of the police and filing proceedings; or (b) not agreeing with the police report and holding that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and takes cognizance of the offence complained of, such order is a judicial order. 60. What is required to be examined is as to whether an order passed under Section 190(1) accepting a final report being a judicial order, would bar further investigation by the police in exercise of the statutory powers under Chapter XII of the Cr.P.C. 61. In this regard it may be pertinent to refer to certain decisions of the Supreme Court. 62. The Supreme Court in K. Chandrasekhar (supra) was considering a case where on the complaint of a Police Inspector, a case was registered by the Kerala Police against M and F (appellants therein) for offences punishable under Sections 3 and 4 of the Official Secrets Act, 1923 read with Section 34 IPC on the allegation that in collusion with some Indians and foreigners they had committed acts prejudicial to the safety and sovereignty of India. During the investigation, certain other persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch investigation which culminates in a further police report under Section 173(8), it necessarily means that withdrawal of consent in the said case would not entitle the State Police to further investigate into the case. However, the Court further observed thus : To put it differently, if any further investigation is to be made, it is the CBI alone which can do so, for it was en trusted to investigate into the case by the State Government. (Emphasis supplied). Thus, what was held by the Court was that after submission of report under Section 173(2) Cr.P.C. reinvestigation or fresh investigation is not permissible. However, it has been expressly observed that if any further investigation is to be made, it is the CBI alone which can do so. In other words, further investigation could be carried out, but that the same could be done by the CBI alone as it was entrusted to investigate into the case by the State Government and had carried out the investigation and submitted final report in connection therewith. 63. In Union Public Service Commission v. S. Papaiah and others, (1997) 7 SCC 614, on a complaint made by the UPSC, investigation had been carried out by the CBI and final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld thus: - 13. The appellant brought the contents of communication dated 23-1-1995 to the notice of the learned Metropolitan Magistrate through its Miscellaneous Petition No. 2040 of 1995 seeking reinvestigation but the learned Magistrate, rejected the petition vide order dated 4-11-1995, observing that rightly or wrongly that court had passed an order and it had no power to review the earlier order. Here, again the learned Magistrate fell into an error. He was not required to review his order. He could have ordered further investigation into the case. It appears that the learned Metropolitan Magistrate overlooked the provisions of Section 173(8) which have been enacted to take care of such like situations also. After referring to the provisions of Section 173(8), the Court observed that the Magistrate could, thus, in exercise of the powers under Section 173(8) Cr.P.C. direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the UPSC to the investigation and the new report to be submitted by the Investigating Officer would be governed by sub-sections (2) to (6) of Section 173 Cr.P.C. The Court held that the learned Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation would be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the Court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the Court regarding the new discovery made by the police during the investigation that persons not named in FIR No. 135 are the real culprits. To quash the proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it. 12. Even otherwise, the investigating agency is not precluded from further investigation in respect of an offence in spite of forwarding a report under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners. 69. In Ramchandran v. R. Udhayakumar and others, (2008) 5 SCC 414, where the High Court had directed the CBI to investigate the matter afresh and thereafter file a final report, the Supreme Court held 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 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. Chandrasekhar v. State of Kerala. It was, inter alia, observed as follows: 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) dearly envisages that on completion of further investigation, the investigating agency has to forw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertaking the investigations. Had the contents of the communication of the appellant dated 23-1-1995 been brought to the notice of the learned Magistrate, the possibility that he may not have agreed to drop the proceedings cannot be ruled out. This lapse deliberate or inadvertent, also renders the order of 16-3-1995 bad. 72. Since the order of the learned Special Judge was also based upon the decision of CEGAT, in the opinion of this Court, the decision of the Supreme Court can be said to be fresh material so as to call for further investigation in connection with the offence in question. Besides, as held by the Apex Court in the decisions cited hereinabove, acceptance of closure report would not preclude the CBI from carrying out further investigation under Section 173(8) Cr.P.C. 73. As regards the contention that the order of the Supreme Court would not constitute a fresh material so as to call for further investigation under Section 173(8) Cr.P.C. It would be relevant to refer to a decision of this Court in Deepak Dwarkadas Patel v. State of Gujarat, 1980 Cri.L.J. 29, wherein fee contention raised before the Court was that an additional charge-sheet could be submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As regards the contention that the accused cannot be subjected to face investigation in connection with the same offence, twice over, the learned Counsel for the CBI has rightly contended that the principle of double jeopardy would not be applicable at the stage of investigation. If the said contention were to be accepted, the provision of Section 173(8) would become redundant inasmuch as in all cases where further investigation is carried out, the accused would plead that they cannot be subjected to investigation twice over on the principle of double jeopardy. Merely because the investigating agency carries out further investigation it cannot be said that the accused are subjected to face investigation twice over, because it is merely a continuation of the earlier investigation. Moreover investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of clause (2) of Article 20 of the Constitution. 76. The contention that the petitioners were required to be given an opportunity of hearing on the application for further investigation made by the respondent CBI also does not merit acceptance. It is settled law as held by the Apex Court in Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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