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TMI Blog2024 (5) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... a during the period 2001 to 2009 has acquired huge assets and other pecuniary resources grossly disproportionate to his known sources of income. A preliminary enquiry was conducted wherein it has been alleged that the petitioner being a public servant by abusing his official position earned huge amount and the same were deposited in bank accounts opened in the name of certain non-existent/non functional companies/firm registered at Mumbai/Hazaribag and in the name of his family members, all maintained with Andhra Bank, Hazaribag. It has also been alleged that vast plots of lands were allegedly purchased in the name of the father of the petitioner and his other family members. 4. It has also been alleged that although the companies/firms were registered at Mumbai/Hazaribag addresses, but the bank accounts were opened in the name of the companies/firms at Hazaribag. 5. It has been further alleged that several acres of land have been acquired in the name of the father and brother of the petitioner at his native place at Dipugarha, Hazaribag and its adjacent areas out of the ill gotten money of the petitioner. 6. After completion of their investigation for more than three years, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustain charge of possession of disproportionate assets to the tune of Rs. 9,52,312/- (14.58% of income from known sources) in the departmental proceedings. As per the laid down procedure in the vigilance manual, the internal enquiry was initiated and a copy of the said report by the CBI was issued to the applicant. The applicant submitted his version in three volumes running into 573 pages relying on the same set of documents which were either part of the CBI report or were submitted during the course of the CBI investigation, which proved that there was no disproportionate assets in case of the applicants. In the mean time the promotion of the applicant which was due on 16.09.2015 was kept on hold by the Appointments Committee of Cabinet (ACC). There were certain doubts raised by the DGIT (Vig.) which were clarified by submission of a final version letter on 30.05.2016 running into 99 pages satisfying all the doubts raised by the office of DGIT (Vig). Apparently the detailed submission made by the applicant was considered and the DGIT (Vig.) proceeding also came to conclude that there were no disproportionate assets in the case of the applicant. 12. It is further submitted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an unlisted company (M/s Vencap Educational Projects Pvt. Ltd.) at a huge premium of Rs. 240/- per share by five shell companies based in Kolkata and the subsequent sale of the said shares by these companies to Shri Ajay Kumar, Smt. Rupmala Kumari (W/o Ajay Kumar) and associates at a face value of Rs. 10/-, transfer of funds from M/s Vananchal Constructions Pvt. Ltd. (company of the father and brother of accused public servant Ashok Kumar) to the aforesaid companies of Kolkata and vice-versa. d) To find out the source of fund used for purchasing immovable properties in the name of Shri Bhagat Kisan Education Foundation (a trust run by father of the accused public servant) against a total consideration of Rs. 1.50 crores during the period 2008-09. e) To further investigate the exact role played by Shri Ashok Kumar in creating the assets in the name of his father Shri Bhagat Kisan, brother Shri Ajay Kumar and their companies and trust. 14. The Learned Magistrate upon receipt of the application dated 24.06.2019 was pleased to grant liberty to the opposite party to conduct further investigation in the case as prayed for. 15. It is stated that the petitioner was unaware of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benami holders as alleged in the FIR, beyond all reasonable doubt in a Court of law, Shri Shree Bhagat Kisan (A-2) and Shri Ajay Kumar (A-3) are private persons, hence, prosecution may not be recommended against them for the offence punishable u/s 109 IPC r/w Sec 13 (2) r/w 13 (1) (e) of the P.C. Act, 1988 in the absence of the evidence to prosecute the principal accused public servant, Shri Ashok Kumar (A-1) for the substantive offence u/s 13 (2) r/w 13 (1) (e) of the P.C. Act, 1988. Nevertheless, investigation has revealed oral and circumstantial evidence to sustain the charge of possession of disproportionate assets to the tune of Rs. 9,52,312.07/- (14.58% of income from all known sources) by Shri Ashok Kumar (A-1) in departmental proceedings. Investigation has also revealed several instances of non-intimation of financial transactions by Shri Ashok Kumar (A-1) under 18(2) of CCS (Conduct) Rules. Accordingly, the Income Tax Department is being requested to take necessary action in this regard and also regarding other incidental matters, which have been found relevant for the Income Tax Department during investigation in respect of the accused persons and their fictitious compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) By an application dated 24.06.2019, Inspector CBI, ACB, Kolkata, prayed for permission to conduct further investigation in the said case being CBI RC 36(A)/2010 under Section 173 (8) Cr.P.C. on the following ground:- I. That the CVC after going through the report of CBI, has observed that there were various aspects of benami properties, bank accounts, shell companies and shares which need further investigation. Assistance of Central Board of Direct Taxes and that of a forensic auditor were also suggested. Therefore further investigation is essential to look into the said facts and circumstances. II. That CBI proposed to conduct further investigation u/s 173 (8) Cr.P.C., on the points as earlier noted in paragraph 12 of this Judgment. 19. It was further stated by the opposite party herein:- That the aforesaid stand of the prosecution and the legal position involved herein has also been affirmed by the Hon'ble Supreme Court of India in the matter of State of Rajasthan Vs. Aruna Devi, 1994(3) Crimes 849 (850) wherein the Apex Court has observed that "where during further investigation fresh material comes on surface, acceptance of final report would not preclude the Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by CBI to establish any link between Shri Ashok Kumar and cash receipt/expenditure in the name of Companies/Trust of his father and brother. b) The CBI has stated that it has already done detailed investigation and no conclusive evidence was found to establish any direct link between the officer and his family members in the matter of running the affairs of fictitious firms. The Closure Report of the CBI has also been accepted by the CBI Court. c) In the earlier report dated 12.06.2015 submitted by ADG(V)EZ, he had not included the amount of Rs. 20 Lakhs received by Shri Ashok Kumar as loan from his father, in the income of the officer during the check period (i.e in Statement - C) on the ground that Shri Ashok Kumar did not furnish the copy of his father's bank accounts reflecting the transaction. Now, the officer has furnished copy of bank account of his father (at pages 2047-2049/c of the enclosed file). It has been stated that the cheque was directly utilised for obtaining two bank drafts of Rs 10 Lakhs each (total Rs. 20 lakhs) paid by the officer as one time alimony in marriage dispute of the officer. ADG(V)EZ has further stated that source of funds in the bank account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come and corresponding benefits as claimed by the accused persons and their associates/entities, field visits were conducted by CBI along with officials of Revenue Department in Hazaribagh and relevant data were collected from concerned authorities in Hazaribagh district of Jharkhand where most of such landed properties of accused persons are located. Statements u/s 161 Cr.P.C. of relevant witnesses and persons having acquaintance with those agricultural lands of the accused persons or their related entities were also recorded to this effect. The statements of accused persons were also recorded during the intervening period. However, despite best efforts, no clarification could be obtained from Shri Bhagat Kishan (A-2) as he had been seriously ill and apparently was not in position to interact with CBI team as regards the facts and circumstance of the case. 6. That, it is also pertinent to mention here that CBDT on its part, is facing problem as concerned banks could not provide them the details of suspected transactions which are beyond their mandatory storage period of ten years. Investigation conducted by CBDT is mostly restricted to database (e.g. ITRs, ITD database, MCA port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution. 41.6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution. 41.7. In appropriate cases even if the charge-sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice. 41.8. In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo." 8.2 In the case of Dharam Pal (supra), after taking into consideration the catena of decisions on the point, it is observed and held that the constitutional courts can direct for further investigation or investigation by some other investigating agency. It is observed that the purpose is, there has to be a fair investigation and a fair trial. It is observed that the fair trial may be quite di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an "orphan under law"." 9. Now, so far as the reliance placed upon the decision of this Court in the case of Vinubhai Haribhai Malviya and Ors. (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173 (8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347]. Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r investigation dated 24.06.2019 filed by the CBI is vague and clearly not as per the CVC's report dated 31.01.2014. 28. In the application dated 24.06.2019, the grounds for further investigation in paragraph 9 also relate to the initial investigation which ended in FRT, wherein the same points were investigated but no evidence was found to substantiate the allegation in the FIR. 29. No new evidence or material was placed before the trial Judge to justify allowing the prayer for further investigation. 30. The order dated 27.06.2019 (certified copy) permitting further investigation does not give any reasons/grounds as to why such a prayer is being allowed, which is clearly an abuse of the process of law and thus against the principles of interest of justice. 31. It is unfortunate that now after almost 5 (five) years, the status report dated 20.11.2023 filed by the CBI, shows that the further investigation has not led to any fruitful result. 32. Be that as it may, in the present case, Order dated 27.06.19 permitting further investigation is by itself not in accordance with law, as the prayer for further investigation is beyond the report/recommendation of the CVC on which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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