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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... prompted the CBI to pray for further investigation after five years of the CVC s said report, was not considered by the trial Judge. Paragraph 8 of the application for further investigation dated 24.06.2019 filed by the CBI is vague and clearly not as per the CVC s report dated 31.01.2014. 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. No new evidence or material was placed before the trial Judge to justify allowing the prayer for further investigation. 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. 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. Be that as it may, in the present case, Order dated 27.06.19 permitting further investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Investigating Agency submitted its Final Report/Closure Report being No. 5/2013 dated 29.12.2013. In the said Final Report the Investigating Agency prayed for discharge of the accused persons as the available evidence was not sufficient to substantiate the allegations in the First Information Report against the petitioner and his co-accused persons being his father and brother. 7. In the report the Investigating Agency submitted that investigation has not yielded direct and conclusive evidence to prove the allegation of possession and disproportionate assets by the petitioner in the name of Benami Holders as alleged in the First Information Report, in a Court of Law. As such, the Investigating Agency was of the opinion that prosecution may not be recommended against the petitioner as well as also the private accused persons in absence of evidence. 8. However, the investigation alleged to have revealed oral and circumstantial evidence to sustain the charge of possession of disproportiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the petitioner that, possibly due to such internal enquiry evidencing no disproportionate assets reinforced by the favourable order of Central Administrative Tribunal (CAT) New Delhi dated 16.01.2017 in OA No. 4141/2015 and the favourable order of the Hon ble High Court Delhi dated 10.04.2018 in W.P.(C) 3500/2018 CM Nos. 13825-27/2018 in response to the appeal of the Income Tax Department, the pending promotion of the applicant was reconsidered by the ACC and the applicant was honorably cleared for promotion with retrospective effect from 16.09.2015 restoring seniority and all pecuniary benefits to the appellant. In view of the order of the Appointment Committee of Cabinet, the CBDT passed the order promoting the applicant to the rank of Commissioner of Income Tax and was subsequently posted as Commissioner of Income Tax (Appeals), Madurai. The applicant had to pass through a long ordeal for 3 years due to unsubstantiated allegations contained in the report of the opposite party, which was ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.06.2019 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 order dated 27.06.2019 passed by the Learned Special Judge. The petitioner came to know about the same for the first time on 15.11.2019 upon receipt of a notice dated 08.11.2019 which was said to be treated as notice under Section 91 of the Code of Criminal Procedure from the Investigating Officer. 16. The petitioner states that the Investigating Agency has prayed for further investigation on the basis of the direction of the Central Vigilance Commission for taking assistance of forensic auditor on essentially the same set of issues which were investigated in depth by the CBI during the 3 long years of rigorous investigation. The investigation revealed that there was no disproportionate assets in the case of applicant and the relatives were not found to benamidars of the applicant. Besides the direction of the CVC, there is no oral or documentary evidence with the CBI. 17. Hence the Revision. 18. From the materials on records the following facts are evident:- a) On Completion of Investigation by the opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch have been found relevant for the Income Tax Department during investigation in respect of the accused persons and their fictitious companies and Trust. Charge (Attach separate sheet, if necessary) In view of the facts and circumstances of the case, the available evidence may not be sufficient to substantiate the allegations of the FIR against the accused S/Shri Ashok Kumar (A-1), Shree Bhagat Kisan (A-2) and Ajay Kumar (A-3) beyond reasonable doubt. Although the investigation has revealed some links of Shri Ashok Kumar (A-1) with the acquisitions of assets in the name of the Trust and companies of Shri Shree Bhagat Kisan (A-2) and Shri Ajay Kumar (A-3), indicating his involvement in the incorporation of various non-functional companies and financial transactions with some of the said companies from the account of Ashok Kumar HUF, which creates reasonable grounds to suspect the commission of the offences alleged in the FIR, the said evidence may not be sufficient to prove the allegations against Shri Ashok Kumar (A-1) that he had acquired and possessed disproportionate assets in the name of Benami holders during the check period and abetment of the said offence by Shri Shree Bhag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes on surface, acceptance of final report would not preclude the Magistrate from taking cognizance of the offence 20. Heard the Learned counsels for the petitioner and the opposite parties being the Central Bureau of Investigation and the Central Vigilance Commission. 21. The Central Vigilance Commission has placed its report dated 31.01.2014 being no. 443/RC 0102010A0036, addressed to the Director General of Income Tax (Vigilance) with the following recommendations based on the CBI s report. CBI Report-443/RC 0102010A0036 Dated: 31.01.2014 14. Recommendation:- In view of above facts and circumstances of the case as discussed above, the evidence on record is not considered sufficient to recommend the prosecution of Shri Ashok Kumar (A-1) u/s 13 (2) r/w 13 (1) (e) of the PC Act, 1988. Consequently, the co accused, Shri Shree Bhagat Kisan(A-2) and Shri Ajay Kumar (A-3) are not recommended for prosecution for the abetment of the aforesaid offence of the possession of disproportionate assets by Shri Ashok Kumar (A-1), as alleged in the FIR. Accordingly, CBI recommends RDA for Major Penalty against Shri Ashok Kumar (A-1) for the possession of Disproportionate Assets to the tune of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urce of funds in the bank account of the officer s father has not been examined as the investigation of CBI also did not bring out any material evidences to form conclusive opinion that the money transacted through the account of Shri Bhagat Kishan, father of the officer, could be attributed to the officer. d) In view of the above, the loan of Rs. 20 Lakhs taken by the officer from his father has been taken as his income during the check period by ADG(V)EZ, thereby reducing the DA to NIL as per the revised calculation given by ADG(V)EZ (reference para 7.C supra). 9. As regards the observation of the CVC on the issue of unauthorized absence of Shri Ashok Kumar During the period June, 2006 to December, 2007 is concerned, it has been stated by ADG(V)EZ that the leave application of Shri Ashok Kumar from 10.07.2006 to 04.12.2007 had been forwarded to CBDT on 15.02.2008, but the decision is still pending. This matter is an administrative issue and will be dealt with separately. Letter has been written to the Joint Secretary (Admn.), CBDT, to consider the officer s application expeditiously. The final report on this issue shall be sent to the CVC accordingly. 10. In view of the report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MCA portal) as suspected business entities were found to be non-existent during physical verification. This further limits the scope of investigation apart from difficulties like non-availability of records/documents for the relevant period. Efforts are on to overcome all such cumulative issues that tend to the delay ongoing further investigation and the same, being at an advanced stage, would be concluded expeditiously. Sd/- ASP/CBI/ACB/Kolkata 24. In Anant Thanur Karmuse vs The State of Maharashtra Ors., in Criminal Appeal No. 13 of 2023, decided on February 24, 2023 , the Supreme Court held:- 8. Now, so far as the power of the Constitutional Courts to order further investigation / re-investigation / de novo investigation even after the chargesheet is filed and charges are framed is concerned, the following decisions are required to be referred to:- 8.1 In the case of Bharati Tamang (supra), after taking into consideration the decisions of this Court in the case of Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 (paras 40 and 42) and the subsequent decision of this Court in the case of Ram Jethmalani Vs. Union of India (2011) 8 SCC 1 and other decision on the point, ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fair investigation. It is further observed and held that the power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. While observing and holding so, in paragraphs 24 and 25, it is observed and held s under: 24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. 25. We may fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused is concerned, it is required to be noted that in the said decision, this Court was considering the powers of the Magistrate. Even in the said decision, it is observed and held that there is no good reason given by the Court as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued. It is further observed that power of the police to further investigate the offence continues right till the stage the trial commences. It is further observed that Article 21 of the Constitution demands no less than a fair and just investigation. In paragraph 42 as such, it is observed and held as under: 42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409], Samaj Parivartan Samudaya [Samaj Parivartan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Karnataka, (2018) 14 SCC 298] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [(1997) 1 SCC 361] and Reeta Nag v. State of W.B. [(2009) 9 SCC 129] also stand overruled. 10. Now, so far as the reliance placed upon the decision of this Court in the case of Rama Chaudhary (supra) relied upon on behalf of the respondent accused is concerned, it is required to be noted that in the said decision, this Court was considering the scope of Sections 173 (8) and 173 (8) (2) Cr. P.C. and the right of the police to further investigation . It is observed that the police has no right for fresh investigation or reinvestigation . However, this Court had no occasion to consider the powers of the constitutional courts, which are dealt with and considered in the case of Bharati Tamang (supra) and Dharam Pal (supra). 11. Applying the law laid down by this Court in the case of Dharam Pal (supra) and Bharati Tamang (supra) and to do the complete justice and in furtherance of fair investigation and fair trial, the constitutional courts may order further inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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