Cripe T 172010

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;

TRIPURA; MIZOAM AND ARUNACHAL PRADESH)
Criminal Petition No. 17/2010
MCLEOD RUSSEL INDIA LIMITED,

A Company incorporated under the provisions of the
Companies Act, 1956 and having its Registered Office
situated at 4, Mangoe Lane, Surendra Mohan Ghosh
Sarani, Kolkata-700001 and owns various Tea Estates in the
State of Assam including a Tea Estate in the name and style
of Namdang Tea Estate situated at Margherita, under P.S.
Margherita, in the District of Tinsukia, Assam. Represented
by Sri Baldeep Singh, the Senior Manager, Namdang Tea
Estate, P.O. & T.O. Margherita, in the District of Tinsukia,
Assam-786181.
- Petitioner
- Versus -
1. THE STATE OF ASSAM

2. THE OFFICER-IN-CHARGE,
Margherita Police Station,
P.O. & P.S. Margherita,
Dist. Tinsukia, Assam.
3. SRI ASHUTOSH TALUKDAR,
Son of Late Kagendra Nath lTalukdar,
R/O Namdang Tea Estate,
P.O. & P.S. Margherita,
Dist. Tinsukia, Assam.
- Respondents
BEFORE
THE HONBLE MR. JUSTICE I A ANSARI
Advocates present:
For the petitioner : Mr. D. Baruah, Mr. K Saharia,
Mr. P.P. Das,
Ms. S. Baruah,
For the respondent : Mr. D. Das, Addl. Public Prosecutor,
Assam.
For the Opp. Party. No.3 : Mr. J.M. Choudhury, Senior Advocate.
Mr. R.C. Paul, Mr. C Phukan,
Ms. S Roy,
Date of hearing : 11-04-2012

Date of judgment : 30-04-2012
Page 2
JUDGMENT & ORDER
Fairness of trial does not mean that the trial has to be fair to the
accused alone. Equally important is that the trial is fair to the person
aggrieved or whose near and dear ones are aggrieved. When police
registers a case, the State assumes the responsibility of conducting an
investigation. Having assumed the responsibility of investigating the truth
or veracity of the allegations, which the police receive, the State cannot act,
nor can its Investigating agency act, without a sense of impartiality. It is
not merely a trial, which has to be impartial. No less important it is that the
investigation, too, is impartial. Fairness of trial will carry with it the
fairness of investigation and fairness of investigation will carry with it the
impartiality in investigation, besides the investigation being efficient, un-
biased, not aimed at helping either the prosecution or the defence. In
short, an investigation must not suffer from any ulterior motive or hidden
agenda to either help a person or harm a person. This is the principle,
which Article 21 of the Constitution of India, read with Article 14 thereof,
enshrines, when we say that our Constitution guarantees fair trial. (See
Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors. reported in (2011) 5
GLR 388)
2. With the help of this application, made under Section 482 Cr.P.C.,
the petitioner, who is the informant of Margherita Police Station Case No.
111 of 2008 (Corresponding to GR Case No. 276 of 2008), under Sections
408/420 IPC, has sought for setting aside and quashing the order, dated
16-12-2009, passed by the learned Judicial Magistrate 1st Class, Margherita,
declining to direct further investigation into the said case, in terms of the
Crl. Pet. No. 17 of 2010

Page 3
provisions of Section 173(8) Cr.P.C., on the grounds that cognizance had
already been taken, process has already been issued against the accused-
opposite party No. 3 herein, namely, Sri Ashutosh Talukdar, the accused-
opposite party No. 3 has already entered appearance and that Section 311
Cr.P.C. read with Section 319 Cr.P.C., give sufficient power to the Court to
unearth the truth and, in the context of the facts of the present case, no
order for further investigation, as has been sought for by the informant, is
necessary.
3. The material facts emerging from the record and leading to the filing
of the present application, under Article 482 Cr.P.C., are, in brief, set out as
under:
(i) The informant is a company incorporated under the
Companys Act, 1956, with its registered office at Kolkata and owns
various tea gardens, in the State of Assam, including a tea garden, which is
run under the name and style of Namdang Tea Estate, situated at
Margherita, in the district of Tinsukia.
(ii) The accused-opposite party No. 3 herein, namely, Sri
Ashutosh Talukdar, was initially appointed, on 12-11-1984, as office clerk,
in Grade-III, in Namdang Tea Estate of the petitioner company and, with
effect from 18-03-2000, he was posted as Head Clerk of Namdang Tea
Estate. Being the Head Clerk, the opposite party No. 3, according to the
petitioner, was entrusted with the duty to prepare vouchers for
disbursement of payments to different persons, his additional duty being
preparation and maintenance of cash books in the computer as well as in
printed version. The accused, as Head Clerk, according to the petitioner,

Page 4
was also entrusted with the duty to not only prepare vouchers, but make
payments.
(iii) Describing the manner in which the cash books, in computer
as well as in printed version, are maintained and various amounts, which
were disbursed to the third parties, the petitioner states that based on
approximate amounts payable by the said tea estate to various persons,
cash is withdrawn from the bank by the said tea estate and kept in the safe,
which remains in the custody of the Manager of the said tea estate, the said
safe of the petitioners tea estate being operated jointly with two different
keys at a time; while one key remains with the Manager of the said tea
estate, the other is kept by the Head Clark and that the Head Clark takes
out cash from the safe, in the presence of Manager, according to the
requirement of a given day. The cash, lying in the safe, is either withdrawn
on the same day or the subsequent day by the Head Clark as per
exigencies. The cash is withdrawn on the basis of the vouchers, which the
Head Clark prepares, and the amounts, mentioned in the vouchers, are
entered into the computer of the said tea estate and, upon making entry in
this regard, the computer generates a cash book (in the printed form) and,
thereafter, the printed cash book is signed by the Manager.
(iv) The informant companys auditor, namely, M/S BM Chatrath
and Company, found, upon conducting audit of the accounts of Namdang
Tea Estate, that the accused, as Head Clark, had manipulated the cash
books, which he was entrusted to prepare and maintain, and
misappropriated huge amount of money. The manipulation as well as
misappropriation, done by the accused, came to be unearthed by

Page 5
conducting audit by one Sri Tejash Kr. Bhattacharjee, one of the auditors of
M/S BM Chatrath and Company, the process of manipulation resorted to
by the accused being that he manipulated the entries by showing, in the
computer system, cash payments of higher amounts than the amounts
actually paid. The consequence was that the cash entries, made in the
computer, were larger than that of the physical cash book, which the
accused himself had maintained, and, during the audit, the total of such
entries, made in the computer, were found to be different and varying
from the days total of cash payments in the cash book maintained by the
accused. It was also found, according to the informant, that the accused
had fraudulently prepared different cash books with missing entries and
wrong total of payments and produced the same before the Manager. The
auditor also found that false and fictitious entries had been made in the
computer system, which were not backed by relevant vouchers.
(v) The manipulation, committed by the accused, was revealed
when the auditors checked the printed cash book signed by the Manager.
The modus operandi of the accused, according to the informant, was thus:
The days total of cash payments, in the cash copies, were manipulated by
showing a higher total disbursement than the actual amounts paid and a
lower cash balance and thereby the requirement for cash were inflated.
Under such circumstances, the auditors counter-checked the entries of cash
payments in the system and found that the number of cash entries,
appearing in the system, were more as compared to the entries in the cash
book (in physical form), signed by the Manager, and the total of the extra
entries, appearing in the system, exactly matched with the difference

Page 6
found in the days total of cash payments in the copies of cash book signed
by the Manager. This reflected that the accused, who had been entrusted
with the responsibility to prepare cash book and produce the same before
the Manager for latters signature, had fraudulently prepared different
cash books with missing entries and wrong total for payment and
produced the same before the Manager. All the additional entries of cash
payments, appearing in the cash book, in the computer system (and not in
printed form), were not supported by any voucher whatsoever, the entries,
thus, being all fake and willfully inserted in the system to cover up the
difference between the actual and enhanced cash expenses. The accused
also deleted/suppressed, in the system, the fake entries and the print-outs
of the cash book, showing genuine cash expenditure, in the entries,
suppressing the voucher, were given, in the printed form, by the Head
Clark to the Manager and he (accused) got the latters signatures obtained
thereon. However, the days total, in the system, being not changeable in
the system, remained unaltered in the printed cash book copies signed by
the Manager. As an illustration, the informant, while describing the modus
operandi of the accused, states that the accused, in maintaining and
preparing the cash book in the computer, would enter 100 entries of which
10 entries would be fraudulent and fictitious entries. While printing out
the said cash book prepared in the computer, the accused manipulated the
system, wherein only 90 entries would be mentioned; however, the total of
the 90 entries, which were reflected in the printed version of the cash book,
and the 100 entries, which were reflected in the cash book maintained in
the computer system, the total would always remain the same. In other

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words, the total of 100 payment vouchers and the total of 90 genuine
payment vouchers, maintained in the printed form, in the cash book,
would be the same. The extra amount, (i.e. the total 10 fraudulent
vouchers) so drawn out from the safe, were misappropriated by the
accused. By this way, the accused had misappropriated an amount of Rs.
25,40,137.44p belonging to the petitioner.
(vi) Upon the report, so supported by the auditors, a First
Information Report was lodged with Margherita Police Station, which
came to be registered, as indicated above, as Margherita Police Station
Case No. 111 of 2008.
(vii) Following the registration of the FIR, the investigating officer
concerned seized, on various occasions, following documents:
(i) On 27.06.2008, the following documents were seized:-
(a) One Safe Book of Namdang Tea Estate containing Reg. NO.1 to
98.
(b) One Audit Report of Namdang Tea Estate done by M/s B. M.

Chatrath & Co., Chartered Accountant for the financial year
2007-08.
(c) One Audit Report of Namdang Tea Estate done by M/s

B.M.Chatrath & Co., Chartered Account for th period 2003-04 to
2006-07.
(d) Confession Letter written by Sri Ashutosh Talukdar addressing

the Acting Manager, Namdang Tea Estate alongwith list of
witnesses, code and amount date wise.
(ii) On 25.08.2009, the Investigating Officer seized one draft copy

written by the Respondent No.3 addressed to Gopal Automobile,
Makum Road, Tinsukia.

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(iii) On 10.08.2009, the Investigating Officer seized the following

documents:-
(a) One C.P.U. (Computer Processing Unit) where account records

were stored at Namdang Tea Estate w.e.f. 2004-05 to 2006-07
and 2008.
(b) One CD(Compact Disk) containing cash books of Namdang Tea

Estate w.e.f. 2004-05 to 2006-07 and 2008.
(viii) The officials of the informant company apprised the
investigating officer of the manner of maintenance of printed cash book,
wherein the Managers had put their signatures, and the fact that the
seizure of the printed cash book was necessary, because the same were
wider piece of evidence, for, without comparing the printed cash book,
signed by the Managers, with the cash book, maintained in the computer,
it was not possible to prove the offence, which, according to the informant,
the accused had committed. This apart, during the course of investigation,
Shri Tejesh Kumar Bhattacharjee, one of the auditors, who had conducted
the audit as well as the Managers, who had signed the cash book, were not
examined as witnesses and their attendance were never sought for by the
investigating officer, at any stage, during the course of investigation. The
charge-sheet also reveals, points out the petitioner, that the said persons
have not been mentioned as prosecution witnesses, though their evidence
would be very material for the purpose of proving the commission of
offence by the accused.
4. The petitioner company submits that the accused was not
interrogated by the investigating authority and was shown as absconder in
the charge-sheet. In this regard, it is also brought to the notice of this Court

Page 9
by the petitioner that the accused had filed as many as four applications
for pre-arrest bail, under Section 438 Cr.P.C., in the High Court, but all the
said applications were rejected and in the last Bail Application No.
2955/2009, the Court had, while rejecting the bail application, directed the
accused to surrender before the Sub-Divisional Judicial Magistrate,
Margherita, within a period of 14 days. The accused did not, however,
surrender contrary to the directions so issued. The informant, through its
Manager, filed an application, in the Court of the learned Sub-Divisional
Judicial Magistrate, Margherita, bringing to the notice of the learned Court
below the directions, which had been passed in Bail Application No.
2955/2009. However, the learned Sub-Divisional Judicial Magistrate,
Margherita, disposed of the said petition, filed by the Manager of the
informant company, by observing, in the order, dated 20-08-2009, that as
the accused person had neither surrendered nor has he been produced
before the Court, the Court could do nothing in respect of appearance of
the accused.
5. It is alleged by the informant company that the accused and the
investigating officer knew each other. They knew that in view of the order
passed by this Court in Bail Application No. 2955/2009, the accused would
not be granted bail and yet, in perfunctory and haphazard manner, the
investigating authority submitted charge-sheet against the accused, on 13-
09-2009, showing him as absconder. The said charge-sheet was taken note of
by the learned Magistrate on 23-10-2009 and the cognizance of offences
under Sections 408/420 IPC was taken and, having taken note of the fact
that the accused was an absconder, the learned Sub-Divisional Judicial

Page 10
Magistrate, vide his order, dated 23-10-2009, transferred the case to Shri A
Deuri, learned Judicial Magistrate, 1st Class, Margherita, for disposal. On
29-10-2009, the accused, who had all along been absconding, appeared in
the trial Court and sought for bail even though no summon had been
issued by the learned trial Court and the learned trial Court, without
considering the earlier rejection of the application for pre-arrest bail and
also the fact that the direction given by the order, dated 24-07-2009, passed,
in Bail Application No. 2955/2009, by the High Court, to surrender in the
Court of the Sub-Divisional Judicial Magistrate, Margherita, had not been
complied with by the accused, granted bail to the accused on the ground
that the accused had appeared before the Court to face trial and fixed the
case, on 25-11-2009, for copy.
6. The informant came to learn, on 25-11-2009, about the filing of the
charge-sheet and, immediately, thereafter, on 03-12-2009, an application was
filed, on behalf of the informant, under Section 156(3) Cr.P.C., seeking
further investigation and, in this application, the informant stated that the
petitioner had reason to believe that it was for reasons other than bona fide
that the investigating officer had conducted the investigation in the most
perfunctory manner. A counsel, appearing on behalf of the informant-
petitioner, had also requested the learned trial Court to allow him to assist
the Public Prosecutor, who has to conduct a session triable case.
7. By order, dated 16-12-2009, the learned trial Court, as indicated
above, has rejected the petition made under Section 156(3) and also the
prayer made for allowing the petitioners counsel to assist the Public

Page 11
Prosecutor on the ground that it is the Public Prosecutor, who has to
conduct a session triable case.
8. Four questions, which have arisen for determination in the present
case, are as under:
(i) Whether the Magistrate, after taking cognizance of a case upon a

Police Report, has the power and authority to direct further
investigation on an Application being filed by the informant or de
facto complainant?
(ii) Whether the Courts power, under Section 311 and Section 319, can
be effective substitute for further investigation?
(iii) Whether Section 302 read with Section 301 of the Code of Criminal
Procedure, 1973, envisages that for grant of leave from a Magistrate
for a private lawyer to appear before the Magistrate, a No Objection
is required from the Public Prosecutor?
(iv) Whether in the facts and circumstances of the instant case, a further
investigation is called for?
9. I have heard Mr. D Baruah, learned counsel for the informant-
petitioner, and Mr. D Das, learned Additional Public Prosecutor, Assam. I
have also heard Mr. JM Choudhury, learned Senior counsel, assisted by
Mr. C Phukan, learned counsel for the opposite party No. 3.
10. Appearing on behalf of the petitioner, Mr. Baruah, learned counsel,
submits that the facts, as narrated in the present application made under
Section 482 Cr.P.C. and the materials on record would go to show that the
investigating authority had conducted the investigation in a manner so as to
help the accused. The investigation was, according to Mr. Baruah, wholly
perfunctory, manipulated and unfair and, hence, based on such

Page 12
perfunctory and unfair investigation, a charge-sheet has been laid. Mr.
Baruah, learned counsel, contends that as the investigation is wholly unfair,
it is necessary that unless the vital omissions, in the investigation, and the
unfairness thereof are removed by this Court by taking recourse to
appropriate provisions of law or else, the investigation would become a
precursor of miscarriage of justice.
11. Mr. Baruch points out that though the application, filed on behalf of
the petitioner, was made under Section 156(3), the fact remains that what
the petitioner had really sought for was a direction for further investigation
under Section 173(8) CrPC and, though the learned Magistrate may not
have the power to direct further investigation, because cognizance had
already been taken by him, there is no impediment, on the part of this
Court, to direct further investigation in exercise of its inherent power under
Section 482 CrPC.
12. Though Mr. Baruah does not, in specific term, challenges the fact
that no direction for further investigation could have been passed by the
learned Court below, because cognizance had already been taken, Mr.
Baruah contends that the limitation, which the learned Court below suffers
from, is not applicable to this Court inasmuch as this Court, under Section
482 Cr.P.C., is sufficiently empowered to direct further investigation and the
fact that the petitioner had made the application, seeking further
investigation, by mentioning Section 156(3) Cr.P.C., was immaterial and the
said petition ought to be treated as a petition seeking further investigation,
made under Section 173(8) Cr.P.C. and if this Court is satisfied that such a
direction is warranted in the facts and attending circumstances of the

Page 13
present case, then, necessary directions be issued by invoking Section 482
CrPC.
13. Support for his submission that the High Court is empowered,
under Section 482 Cr.P.C., to direct further investigation, even after
cognizance has been taken by a Magistrate of an offence, Mr. Baruah places
reliance on the case of State of Punjab vs CBI, reported in (2011) 9 SCC 182,
and the case of Rana Sinha @ Sujit Sinha vs The State of Tripura & Ors.
reported in (2011) 5 GLR 388. Mr. Baruah, in this regard, also refers to the
case of Reeta Nag vs- State of West Bengal and others, reported in (2009) 9
SCC 129, and Randhir Singh Rana vs- State (Delhi Administration), reported
in (1997) 1 SCC 361.
14. In support of his contention that nomenclature, whereunder a
petition is filed, is irrelevant so long as the Court possesses the power, Mr.
Baruah refers to Pepsi Foods Limited vs- Special Judicial Magistrate (AIR
1998 SC 128).
15. On the basis of the authorities cited above, Mr. Baruah contends that
where an investigation is carried out in a manner, which is one sided or
unfair and/or when the investigation is tempered, the High Court has the
inherent power, under Section 482 Cr.P.C., to correct the miscarriage of
justice so that fair trial takes place and this can be achieved, in the present
case, by directing further investigation in terms of Section 173(8) Cr.P.C. The
power to issue such a direction can also be exercised, according to Mr.
Baruah, under Articles 226 and/or 227 of the Constitution of India.

Page 14
16. Appearing on behalf of the accused-opposite party, Mr. J. M.
Choudhury, learned Senior counsel, has submitted that, in the case at
hand, the learned trial Court was wholly justified in declining to direct
further investigation, because the learned Court below had already taken
cognizance of offence and it had, therefore, no jurisdiction to direct further
investigation. The power to direct further investigation remains, according to
Mr. Choudhury, with a Magistrate so long as he has not accepted the police
report submitted by the police under Section 173(2) CrPC. This apart,
points out Mr. Choudhury, learned Senior counsel, the informant-
petitioners application, seeking further investigation was made under
Section 156(3) CrPC, which was not applicable to the facts of the case at
hand after the charge-sheet had already been submitted, for, Section 156(3)
empowers a Magistrate, contends Mr. Choudhury, to direct investigation
before he takes cognizance and not after he has already taken cognizance.
The investigation, in the present case, if unfair, can very well be, according
to Mr. Choudhury, cured by taking recourse to Section 311, read with
Section 319 CrPC, or else, it is the police, which may decide, in a given
case, to conduct further investigation if such an investigation is warranted.
17. While considering the present application, in the light of the
questions, which have arisen for determination, it needs to be carefully
noted that Mr. Baruah is wholly correct, when he submits that the
nomenclature or the Section, whereunder a particular application/ petition
is filed, in a Court, is immaterial. What is material is the substance or the
contents of the application/petition and the reliefs, which have been
sought for. The reference, made by Mr. Baruah, in this regard, to the case

Page 15
of Pepsi Foods Limited Vs. Special Judicial Magistrate (AIR 1998 SC 128), is
not wholly misplaced. Viewed from this angle, it is clear that though the
petition was filed, in the present case, by the informant, under Section
156(3) Cr.P.C., seeking further investigation into the case aforementioned,
the fact of the matter remains that Section 156(3) Cr.P.C. does not deal with
further investigation, for, Section 156(3) Cr.P.C. empowers the Magistrate to
direct investigation before he takes cognizance of an offence in exercise of
his power under Section 190 Cr.P.C.; whereas further investigation by
investigating agency is provided in Section 173(8) Cr.P.C. and the question
of further investigation comes after the police, on completion of investigation,
has already submitted its report either in the form of charge-sheet or in the
form of final report informing the Court that there is no material at all or
insufficient material to put, on trial, the accused or any one named or
unnamed in the FIR.
18. A Division Bench of this Court, to which I was one of the parties, in
Rana Sinha @ Sujit Sinha (supra), has clearly drawn the distinction between
an investigation under Section 156(3) Cr.P.C. and further investigation under
Section 173(8) Cr.P.C. The Division Bench, in Rana Sinha @ Sujit Sinha
(supra), has also drawn the distinction between a further investigation and
re-investigation.
19. In the light of the fact that a further investigation is carried out by
police under Section 173(8) Cr.P.C., it needs to be noted that a Magistrate,
on his own, cannot order further investigation after he has already taken
cognizance of an offence on the basis of a police report. This position

Page 16
clearly emerges from the case of Randhir Singh Rana (supra), wherein the
Court, while holding that a Magistrate cannot, on his own, direct further
investigation, if he has taken cognizance, observed thus:
11. The aforesaid being the legal position as discernible from the various
decisions of this Court and some of the High Courts, we would agree, as
presently advised, with Shri Vasdev that within the grey area to which we
have referred the Magistrate, of his own, cannot order for further
investigation. As in the present case the learned Magistrate had done so,
we set aside his order and direct him to dispose of the case either by framing
the charge or discharge the accused on the basis of materials already on
record. This will be subject to the caveat that even if the order be of
discharge, further investigation by the police on its own would be
permissible, which could even end in submission of either fresh charge-
sheet.
(Emphasis added)
20. The legal position, emerging from the case of Randhir Singh Rana
(supra), that a Magistrate, having taken cognizance of an offence, cannot
direct further investigation, came up for re-consideration in Reeta Nag
(supra) and, having analysed the law on the subject, the Supreme Court
has reiterated, in Reeta Nag (supra), its earlier decision, in Randhir Singh
Rana (supra), by taking the view that a Magistrate cannot, having taken
cognizance of an offence complained of, direct further investigation. The
relevant observations, appearing, in this regard, at Para 25 and 26, in Reeta
Nag (supra), read as under:
25. What emerges from the abovementioned decisions of this Court is that
once a charge-sheet is filed under Section 173(2) CrPC and either charge is
framed or the accused are discharged, the Magistrate may, on the basis of a
protest petition, take cognizance of the offence complained of or on the
application made by the investigating authorities permit further

Page 17
investigation under Section 173(8). The Magistrate cannot suo motu direct
a further investigation under Section 173(8) CrPC or direct a
reinvestigation into a case on account of the bar of Section 167(2) of the
Code.
26. In the instant case, the investigating authorities did not apply for
further investigation and it was only upon the application filed by the de
facto complainant under Section 173(8) was a direction given by the
learned Magistrate to reinvestigate the matter. As we have already
indicated above, such a course of action was beyond the jurisdictional
competence of the Magistrate. Not only was the Magistrate wrong in
directing a reinvestigation on the application made by the de facto
complainant, but he also exceeded his jurisdiction in entertaining the said
application filed by the de facto complainant.
21. In the light of the position of law, as surfaced from the decision in
Randhir Singh Rana (supra) and Reeta Nag (supra), a Division Bench of this
Court clearly held, in Rana Sinha (supra), that a Magistrate cannot direct
further investigation on his own and if he cannot direct further investigation
on his own, it is not possible for him to hold that he can direct further
investigation on the basis of a petition filed by the informant, de facto
complainant, aggrieved person or the victim. The relevant observations,
appearing in this regard, read as under:
155. In the light of what has been observed option but to conclude and, in
fact, it is not even disputed that Ranbir Singh Rana (supra) lays down that
a Magistrate cannot, of his own, direct further investigation to be
conducted by the police if cognizance has already taken and the accused
has entered appearance. Rannbir Sinha Rana (supra) also clearly lays
down that a Magistrate cannot, in the name of advancing the cause of
justice, or to arrive at a just decision of the case, direct further investigation
to be conducted by the police if he does not, otherwise, have the power to
direct such further investigation meaning thereby that since a Magistrate
does not have the power to direct, on his own, further investigation after

Page 18
cognizance has already been taken and the accused has entered
appearance, he cannot direct such further investigation of his own for the
purpose of advancing the cause of justice or even to arrive at a just
decision of the case.
156. No way, therefore, a Magistrate can direct further investigation of
his own and if he cannot direct further investigation of his own, it is not
possible to hold that he can direct such an investigation on the basis of
any petition filed by the informant, de facto complainant, aggrieved
person or the victim.
(Emphasis is added)
22. The question, therefore, which stares at us is: Whether the High Court,
in exercise of its power under Section 482 Cr.P.C., or in exercise of its power
under Article 226 and or 227 of the Constitution of India, can direct further
investigation if the facts of a case so warrant, even if cognizance of offence(s), as
revealed from the police report submitted under Section 173(2) CrPC, has already
been taken ?
23. While considering the question posed above, it needs to be noted
that the limitation, imposed on the power of a Magistrate, to direct further
investigation if he has taken cognizance of an offence, does not disable the
High Court to direct, in exercise of its power under Section 482 Cr.PC, or,
in a given case, even under Article 226 of the Constitution, further
investigation if so warranted in the facts of a given case. A complete answer
to this question has been given, in Rana Sinha (supra), which is reproduced
hereinbelow:
199. Considering the fact that we have already held that a court cannot,
on the basis of an application made by the informant, de facto complainant
or victim, order further investigation to be conducted by the police, when
the trial has already commenced, it logically follows that even if the
grievances of the son of the deceased couple, in the present case, had any

Page 19
justification, the learned Court below had no power to direct further

investigation. The remedy of the present appellant, therefore, lied in
making, either an application under Section 482 of the Code or a writ
petition under Article 226 of the Constitution of India, seeking appropriate
direction to be issued by the High Court, in exercise of either its inherent
power under Section 482 or in exercise of its extra-ordinary jurisdiction
under Article 226, for further investigation. Whether the present appellant
could have made, in the fact situation of the present case, an application
under Section 482 or an application under Article 226 of the Constitution
of India and whether such an application could have been allowed, in the
context of the facts of the present case, is an aspect of the case, which we
would consider shortly.
*** *** ***
*** *** ***
203. What is, now, extremely important to note is that Article 227 vests
in the High Court the power of supervisory jurisdiction so as to keep the
courts and tribunals within the bounds of law. When a courts order is
correct and in accordance with law, the question of reversing such an order
in exercise of power under Article 227 does not arise. Same is the situation
at hand. Since the learned trial Court, in the present case, could not have
directed further investigation (as already held above) on the request of the
de facto complainant or the victim, such as, the present appellant, the
impugned order, declining to direct further investigation, cannot be said to
amount to refusal to exercise jurisdiction. If the case at hand warranted
further investigation, then, the remedy of the informant, de facto
complainant or the victim, such as, the present appellant, lied in
approaching the High Court either by making an application under
Section 482 of the Code or by making an application under Article 226
inasmuch as the High Court has, in appropriate cases, the power to direct
further investigation in exercise of its inherent power under Section 482
of the Code as well as in exercise of its extra-ordinary jurisdiction under
Article 226 of the Constitution of India if the facts of a given case so
warrant.
204. In fact, recognizing the power of the High Court, under Article 226,
to direct the State to get an offence investigated or further investigated,

Page 20
the Supreme Court has held, in Kishan Lal (supra), that in a given
situation, the superior Court, in exercise of its Constitutional power,
namely, under Articles 226 and 32 of the Constitution of India, can direct
the State to get an offence investigated and/or further investigated by a
different agency. The relevant observations, made by the Supreme Court,
in this regard, read thus:
The investigating officer may exercise his statutory power of
further investigation in several situations as, for example, when
new facts come to his notice; when certain aspects of the matter
had not been considered by him and he found that further
investigation is necessary to be carried out from a different angle(s)
keeping in view the fact that new or further materials came to his
notice. Apart from the aforementioned grounds, the learned
Magistrate or the superior courts can direct further investigation, if
the investigation is found to be tainted and/or otherwise unfair or is
otherwise necessary in the ends of justice.
[Emphasis is added]
205. The order impugned, in the writ petition, could not have been said to
be an illegal order to the extent that the same declined further investigation
on the basis of the present appellants petition filed in the learned trial
Court. Seen in this light, when the impugned order was not illegal, the
question of reversing the order, by taking recourse to supervisory
jurisdiction of the High Court under Article 226, could not have validly
arisen.
206. The question as to whether the present appellants grievances
against alleged unfair and manipulated investigation are justified or not
and, if justified, whether the learned Single Judge ought to have, in the facts
and attending circumstances of the present case, directed further
investigation, is a question, which needs to be, now, answered in this
appeal.
207. While considering the above aspect of this appeal, one has to also
bear in mind that the prayer made by a party, in any criminal or civil
trial, shall not be the sole determining factor as to whether a person is or
is not entitled to the relief, which he has sought for. If the law, on the
basis of the facts brought on record, requires a relief to be given to a
party, such a relief ought not to be disallowed merely because the party

Page 21
has not specifically sought for such a relief unless, of course, the party
concerned himself refuses to receive such a relief.
*** *** ***

*** *** ***
212. A trial, based on such manipulated and unfair investigation, as in
the present case, would, if we may borrow the language in Babu Bhai
(supra), ultimately, prove to be precursor of miscarriage of criminal
justice. It is for such cases that the Supreme Court has pointed out and
observed, in Babu Bhai (supra), that if the investigation has not been
conducted fairly, such vitiated investigation cannot give rise to a valid
charge-sheet. In such a case the court would simply try to decipher the
truth only on the basis of guess or conjunctures as the whole truth would
not come before it. It will be difficult for the court to determine how the
incident took place. In no uncertain words, observed the Supreme Court,
in Babu Bhai (supra), that not only fair trial, but fair investigation too
forms part of constitutional rights guaranteed under Articles 20 and 21 of
the Constitution of India and, hence, investigation must be fair,
transparent and judicious inasmuch as a fair investigation is the
minimum requirement of rule of law and no investigating agency can be
permitted to conduct an investigation in tainted and biased manner. Held
the Supreme Court, in Babu Bhai (supra), that the court must interfere,
where non-interference by the court would, ultimately, result in failure of
justice.
(Emphasis is added)
24. Thus, notwithstanding the fact that a Magistrate is disabled from
directing further investigation once he has taken cognizance of offence on the
basis of a police report submitted under Section 173(2) Cr.PC., there is no
impediment, on the part of the High Court, to direct further investigation,
under Section 173(8), if the facts of a given case so warrant.
25. In short, the limitation, which is imposed on the power of a
Magistrate to direct further investigation if he has already taken cognizance,
does not apply to, or disable, the High Court from directing further

Page 22
investigation, in a given case, if the facts of the case so warrant, by taking
recourse to Section 482 Cr.PC. A reference, in this regard, may be made to
the case of State of Punjab Vs. CBI, reported in (2011) 9 SCC 182, too. The
observations, appearing at Para 24 of State of Punjab (supra), read thus:
24. It is clear from the aforesaid observations of this Court that the
investigating agency or the court subordinate to the High Court exercising
powers under CrPC have to exercise the powers within the four corners of
CrPC and this would mean that the investigating agency may undertake
further investigation and the subordinate court may direct further
investigation into the case where charge-sheet has been filed under sub-
section (2) of Section 173 CrPC and such further investigation will not
mean fresh investigation or reinvestigation. But these limitations in sub-
section (8) of Section 173 CrPC in a case where charge-sheet has been filed
will not apply to the exercise of inherent powers of the High Court under
Section 482 CrPC for securing the ends of justice.
26. Though the informant, on coming to learn about the charge-sheet
having been laid, made an application, under Section 156(3) Cr.P.C.,
seeking further investigation on the grounds and reasons mentioned in the
said application, the fact remains that the learned trial Court had
committed no error by refusing to direct further investigation inasmuch as
the learned trial Court, having already taken cognizance of offence on the
basis of the charge-sheet already filed by the police, could not have directed,
in the light of Randhir Singh Rana (supra), Reeta Nag (supra) and Rana
Sinha (supra), further investigation. This would not, however, disable this
Court from directing further investigation into the case if the facts of the case
so warrants.

Page 23
27. From the decision in Randhir Singh Rana (supra), Reeta Nag (supra)
and Rana Sinha (supra), it becomes transparent that in a case, where
investigation has been carried out in a one sided manner or when an
investigation has been carried out to favour a particular party or
investigation is tempered, the High Court, in exercise of its inherent power
under Section 482 Cr.P.C., and even under its supervisory jurisdiction
under Article 227 of the Constitution of India, and, in extraordinary cases,
in exercise of its power under Article 226 of the Constitution of India, not
only has the power, but even owes a duty to direct further investigation
and/or reinvestigation, as the case may be.
28. The question, which, now, arises for consideration is: Whether in the
case at hand, the direction for further investigation ought to be given by this
Court?
29. Because of the fact that further investigation has been sought for by
the petitioner on the ground of unfairness in investigation, the questions,
which have emerged for consideration are: (i) What is an unfair
investigation ? and (ii) Whether an unfair investigation can be a ground for
directing further investigation ?
30. While considering the above question, one needs to note that the
Division Bench, in Rana Sinhas case (supra), commenting upon the
importance of fair investigation, observed that Article 21 guarantees fair trial
and a fair trial is impossible if there is no fair investigation. In order to be a
fair investigation, the investigation must be conducted thoroughly, without
bias or prejudice, without any ulterior motive and every fact, surfacing

Page 24
during the course of investigation, which may have a bearing on the
outcome of the investigation and, eventually, on the trial, must be
recorded contemporaneously by the Investigating Officer at the time of
investigation and, hence, a manipulated investigation or an investigation,
which is motivated, cannot lead to a fair trial. The observations made, in
this regard, which appear at paragraph 1 and 2 of Rana Sinhas case
(supra), read as under:
1. Article 21 guarantees fair trial. A fair trial is impossible if there

is no fair investigation. In order to be a fair investigation, the investigation
must be conducted thoroughly, without bias or prejudice, without any
ulterior motive and every fact, surfacing during the course of investigation,
which may have a bearing on the outcome of the investigation and,
eventually, on the trial, must be recorded contemporaneously by the
Investigating Officer at the time of investigation. A manipulated
investigation or an investigation, which is motivated, cannot lead to a fair
trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as
much the duty of the Court commencing from the level of the Judicial
Magistrate to ensure that an investigation conducted is proper and fair as
it is the duty of the Investigating Officer to ensure that an investigation
conducted is proper and fair. A fair investigation would include a complete
investigation. A complete investigation would mean an investigation,
which looks into all aspects of an accusation, be it in favour of the accused
or against him.
2. Article 21, undoubtedly, vests in every accused the right to
demand a fair trial. This right, which is fundamental in nature, casts a
corresponding duty, on the part of the State, to ensure a fair trial. If the
State is to ensure a fair trial, it must ensure a fair investigation. Logically
extended, this would mean that every victim of offence has the right to
demand a fair trial meaning thereby that he or she has the right to demand
that the State discharges its Constitutional obligation to conduct a fair
investigation so that the investigation culminates into fair trial. The State
has, therefore, the duty to ensure that every investigation, conducted by its

Page 25
chosen agency, is not motivated, reckless and that the Investigating Officer
acts in due obedience to law. It is only when the State ensures that the
investigation is fair, can it (the State) be able to say, when questioned, that
the trial conducted was a fair trial. Article 21, therefore, does not vest in
only an accused the right to demand fair trial, but it also vests an equally
important right, fundamental in nature, in the victim, to demand a fair
trial. Article 21 does not, thus, confer fundamental right on the accused
alone, but it also confers, on the victim of an offence, the right, fundamental
in nature, to demand fair trial.
31. It needs to be borne in mind that the allegation against the accused is
that he, being a clerk, committed the offence of criminal breach of trust by
siphoning of the companys fund by showing bogus transactions. It would,
therefore, be not out of place to mention here the basic ingredients of
criminal breach of trust as defined under Section 405 IPC. Section 405 IPC
reads:
Whoever, being in any manner entrusted with property, or with any

dominion over property, dishonestly misappropriates or converts to his own
use that property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which such trust is
to be discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or willfully suffers any other
person so to do, commits "criminal breach of trust".
32. The prosecution, in a case under criminal breach of trust, is required to
prove the following to bring home the charge of criminal breach of trust.
(i) That the accused was entrusted with property or with any dominion
over property

Page 26
(ii) That the accused violated the direction of law prescribing the mode
in which such trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust.
(iii) That the accused did the aforesaid acts driven by dishonest
intention.
33. It is equally important that the facts relevant to the facts in issue be
proved by person having direct knowledge of the events; hence,
examination of those witnesses, if available, who could give direct
evidence on the ingredients of the offence becomes indispensable part of
investigation.
34. A police investigation must, therefore, take care to investigate the
basic ingredients of the offence of criminal breach of trust not to ensure the
conviction of accused, but to unearth the truth.
35. From the facts narrated by the informant-petitioner and the
grievances expressed on his behalf, it becomes clear that the offence,
alleged to have been committed by the accused, is that he has manipulated
the Cash Book and thereby siphoned off huge amount of money of the
informant company. In this regard, the basic grievance of the informant-
petitioner is that the accused was entrusted with the duty of preparing and
maintaining cash book. What the accused did was that he maintained one
cash book in the computer system and another cash book in the physical
form. In both these cash books, though the days total of cash remained the
same, but in the cash book, which has been maintained in the computer,
the accused allegedly entered various amounts, on the basis of fraudulent

Page 27
vouchers, but, in the physical cash book, the entries, as regard fraudulent
vouchers, were absent. It is in this manner that the accused had allegedly
siphoned off, by using fraudulent and fictitious vouchers, money
belonging to the company.
36. In the circumstances, mentioned above, the informant submits, and I
find considerable force in the submission, that it was incumbent, on the
part of the investigating agency, to seize both the cash books, i.e. the cash
book maintained in the computer and the cash book maintained in the
physical form, because it would be well-neigh impossible to prove offence,
if any, committed by the accused without comparing the two cash books,
which he allegedly used to maintain. The said manipulation, it is alleged,
were unearthed by the auditors of the petitioner company, namely, one
Tejesh Kumar Bhattacharjee, whose evidence, as a witness, would,
undoubtedly, be of paramount importance.
37. Similarly, the informant-petitioner also has considerable force in his
grievance that the evidence of the Managers of the periods concerned,
namely, Dipen Bordoloi and Ramanuj Das Gupta, who had signed the
printed version of the cash book, would not only be relevant and
important, but indispensible for effective investigation and fair trial if the
prosecution has to prove its case against the accused. For no reason, either
assigned or discernible from record, the physical cash book was not seized
by the investigating authority knowing fully well that without comparing
the cash books, as indicated above, it is impossible to prove the allegations,
which have been made against the accused. Seen thus, it is clear that

Page 28
Tejesh Kumar Bhattacharjee, Dipen Bordoloi and Ramanuj Das Gupta are
vital witnesses and ought to have been cited, in the charge-sheet as
witnesses for prosecution. Amazingly enough, the investigating authority,
during the course of investigation, did not even examine these witnesses or
ask for their attendance.
38. From what have been indicated above, it becomes clear that the
charge-sheet has been filed either on perfunctory investigation or by
deliberately manipulating the investigation. In either case, the investigation,
being inherently defective and lacking in all requisites, would not end in a
fair trial. This would, therefore, cause, unless suitably interfered with,
serious miscarriage of justice.
39. While considering the above aspect of the case, one cannot ignore
the fact that the accused had been an absconder throughout the period of
investigation commencing from 25-06-2008 till 29-10-2009 and was never
arrested and despite the fact that four anticipatory bail applications, made
by the accused, had been dismissed and, in the last application for pre-
arrest bail, he was directed to surrender in the learned Court below, he did
not carry out the order and yet he was allowed to go on bail. This gives an
indication that the investigating officer was either helping the accused or
has conducted the investigation in a manner, which would have the effect
of helping the accused to the prejudice of the informant, which is unfair
and cannot, therefore, be sustained. The investigation is, thus, unfair and
cannot give rise to a valid charge-sheet. Such an investigation, Mr. Baruah is
correct, would, ultimately, prove to be precursor of miscarriage of justice.

Page 29
There is, therefore, no doubt that the present one is a fit case for directing
further investigation so that the miscarriage of justice can be prevented.
40. Can the power, conferred on a Court, under Section 311 read with
Section 319 CrPC, be effective substitute for a direction to the Investigating
Agency to conduct further investigation in terms of the provisions of Section
173(8) CrPC ?
41. Coming to the question, which the learned Court below has raised
that it has the power under Sections 311 and 319 to examine any witness
and call for any document and the same would be sufficient substitute for
further investigation, it needs to be noted that Section 2(h) of the Code of
Criminal Procedure ( in short, the Code) defines the term investigation to
include all proceedings under for collection of evidence conducted by a
police officer or by any person (other than a Magistrate), who is authorized
by a Magistrate in that behalf. The Supreme Court, in the case of H.N.
Rishbud Vs. State of Delhi (AIR 1955 SC 196), concluded that investigation
consists of (i) proceeding to the spot (ii) ascertainment of the fact and the
circumstances of the case (iii) discovery and arrest of suspected offenders,
collection of evidence relating to commission of the offence, which may
consist of (a) examination of various persons and the reduction of the
statement into writing, if the officer thinks fit (b) the search of a place or
seizure of the things considered necessary for the investigation and to be
produced at the trial and (iv) formation of the opinion as to whether by the
materials collected there is a case to place the accused before the
Magistrate.

Page 30
42. If the very concept of investigation includes the above, as enunciated
by the Supreme Court, then, in that case, can the above be substituted by
taking recourse to Section 311 and 319 of the Code is the question before
this Court. The answer to the question, which has so arisen, can be found
in this Courts decision, in Rana Sinha (Supra), at paragraphs 194, 195 and
196 as under:
194. Before proceeding further, it needs to be noted that section 311 of the
Code, cannot be a substitute for investigation or further investigation
inasmuch as investigation does not consist of only examination of
persons acquainted with the facts of a given case either as witnesses or as
accused; rather, investigation involves various other steps, such as, search
and seizure. Investigation may also include various forensic
examinations.
195. Merely on the ground, therefore, that section 311 empowers the court
to examine any witness at any stage in order to enable it to arrive at a just
decision of the case, it cannot be said that section 311 would serve the
purpose of an effective, unbiased and fair investigation. In every case,
Section 311 is not necessarily a remedy for a manipulated and motivated
investigation.
196. Similarly, Section 319 merely empowers the court to add a person as
an accused if the evidence on record reveals involvement of such a person as
an accused. Section 319 too cannot become a substitute for an effective
investigation so as to determine whether a person is or is not involved in
an occurrence and whether he is required to be brought to face trial. Thus,
neither section 311 nor section 319 can be treated as a complete substitute
for a fair investigation.
(Emphasis is added)
43. Yet another question, which has been raised in the present
application, made under Section 482 Cr.PC., is: Whether in a case, which is
pending in the Court of a Magistrate, it is possible for the Magistrate to grant
permission to a counsel/lawyer engaged by the informant/de facto

Page 31
complainant to conduct prosecution or allow the private lawyer to assist the
Public Prosecutor ?
44. The above question has arisen, because of the fact that the learned
trial Court has rejected the request made by the learned counsel for the
informant to assist the Public Prosecutor and the reason, assigned by the
learned trial Court, in this regard, is that in a session triable case, it is the
duty of the Public Prosecutor and Additional Public Prosecutor to conduct
the case. For this, the learned trial Court has drawn support from the
decision in Shiv Kumar Vs. Hukum Chand and another, reported in (1999) 7
SCC 467.
45. While considering the decision, in Shiv Kumar (supra), I may pause
here to point out that under the scheme of the Code, a sessions trial is
required to be conducted by a Public Prosecutor and not by a counsel
engaged by the aggrieved party. However, the police has submitted
charge-sheet against the accused under Section 409 IPC, which is not
exclusively triable by a Court of Session; rather, an offence, under Section
409 IPC, is triable by a Magistrate of first class.
46. In Shiv Kumar vs. Hukam Chand and Anr. , reported in (1999) 7 SCC
467, the appellant, who carried the matter to the Supreme Court, was
aggrieved, because the counsel, engaged by him, was not allowed by the
High Court to conduct prosecution despite having obtained a consent, in
this regard, from the Public Prosecutor concerned. In fact, in Shiv Kumar
(supra), the Court had allowed the prosecution to be conducted by the
complainants counsel. The accused, however, was not prepared to have

Page 32
his case prosecuted by the complainants counsel. The accused, therefore,
filed a revision in the High Court. The High Court allowed the revision
and directed the lawyer, appointed by the complainant/private person, to
act under the direction of the Public Prosecutor making it clear that the
lawyer for the complainant/private party may, with the permission of the
Court, submit written argument, when the evidence is closed. The High
Court further specifically directed the Public Prosecutor, who was in
charge of the case, to conduct the prosecution.
47. By the time the aggrieved party challenged the High Courts order,
disallowing the aggrieved partys counsel to conduct the prosecution, the
trial was already over. Considering, however, the importance of the issue
involved, in Shiv Kumar (supra), the Supreme Court decided the issue of
law, namely, whether a counsel, engaged by a complainant/aggrieved
party, can conduct prosecution, in a sessions trial, if the Public Prosecutor
consents thereto ?
48. Having taken note of the provisions of Section 301 and Section 302
of the Code, the Court pointed out that the scheme of the Code is that
while it is the Public Prosecutor of Assistant Public Prosecutor in charge of
a case, who must, according to Section 301(1), conduct the prosecution,
sub-Section (2) of Section 302 permits any private person to instruct a
pleader to prosecute, but the trial has to be still conducted by the Public
Prosecutor or Assistant Public Prosecutor, as the case may be, and the
pleader, so instructed by the private party, shall act under the Public
Prosecutor or Assistant Public Prosecutor, as the case may be. The

Page 33
Supreme Court, therefore, pointed out that the latter provisions, contained
in Section 302 IPC, allowing any person to conduct prosecution, is meant
for Magisterial courts and the Magistrate may, therefore, permit any
person to conduct prosecution, the only rider being that the Magistrate
cannot give such permission to a police officer below the rank of Inspector;
but the person, who conducts prosecution in a Magisterial Court, need not
necessarily be a Public Prosecutor. However, such a laxity is not extended
to a Court of Session inasmuch as Section 225 of the Code states that in any
trial, before a Court of Session, the prosecution shall be conducted by a
Public Prosecutor. The Code permits Public Prosecutor to plead, in the
court, without any written authority provided he is in charge of the case;
but any counsel, engaged by an aggrieved party, has to act under the
direction of the Public Prosecutor in charge of the case.
49. In no uncertain words, the Supreme Court made it clear, in Shiv
Kumar (supra), thus: From the scheme of the Code the legislative intention is
manifestly clear that prosecution in a sessions court cannot be conducted by any
one other than the Public Prosecutor. The legislature reminds the State that the
policy must strictly conform to fairness in the trial of an accused in a sessions
court. A Public Prosecutor is not expected to show a thirst to reach the case in the
conviction of the accused somehow or the other irrespective of the true facts
involved in the case. The expected attitude of the Public Prosecutor while
conducting prosecution must be couched in fairness not only to the court and to
the investigating agencies but to the accused as well. If an accused is entitled to
any legitimate benefit during trial the Public Prosecutor should not
scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch
it to the fore and make it available to the accused. Even if the defence counsel

Page 34
overlooked it, Public Prosecutor has the added responsibility to bring it to the
notice of the court if it comes to his knowledge. A private counsel, if allowed free
hand to conduct prosecution would focus on bringing the case to conviction even
if it is not a fit case to be so convicted. That is the reason why Parliament
applied a bridle on him and subjected his role strictly to the instructions given
by the Public Prosecutor. (Emphasis is added)
50. The Supreme Court further clarified, It is not merely an overall
supervision which the Public Prosecutor is expected to perform in such cases
when a privately engaged counsel is permitted to act on his behalf . The role
which a private counsel in such a situation can play is, perhaps, comparable with
that of a junior advocate conducting the case of his senior in a court. The private
counsel is to act on behalf of the Public Prosecutor albeit the fact he is engaged in
the case by a private party. If the role of the Public Prosecutor is allowed to shrink
to a mere supervisory role the trial would become a combat between the private
party and the accused which would render the legislative mandate in Section 225
of the Code a dead letter.
An early decision of a Full Bench of the Allahabad High Court in Queen-
Empress v. Durga (ILR 1894 Allahabad 84) has pinpointed the role of a Public
Prosecutor as follows: It is the duty of a Public Prosecutor to conduct the case for
the Crown fairly. His object should be, not to obtain an unrighteous conviction,
but, as representing the Crown, to see that justice is vindicated: and, in exercising
his discretion as to the witnesses whom he should or should not call, he should
bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or
put into the witness-box for cross-examination a truthful witness returned in the
calendar as a witness for the Crown, merely because the evidence of such witness
might in some respects be favourable to the defence. If a Public Prosecutor is of

Page 35
opinion that a witness is a false witness or is likely to give false testimony if put
into the witness-box, he is not bound, in our opinion, to call that witness or to
tender him for cross- examination. (Emphasis is added)
51. A conjoint reading of Section 301 and 302 of the Code would show
that the scheme of the Code is that while it is the Public Prosecutor in
charge of the case, who must conduct the prosecution, in a session triable
case, Section 302(2) of the Code permits prosecution to be conducted by
any person. It has, therefore, been held, in Shiv Kumar (supra), that Section
302 is intended for Magisterial Courts only and this Section, i.e., Section
302, enables the Magistrate to permit any person to conduct prosecution
subject to the condition that the Magistrate cannot give such permission to
a police officer below the rank of Inspector. The Supreme Court has also
clarified, in Shiv Kumar (supra), that in the Magistrates Court, anyone,
except a police officer below the rank of Inspector, can conduct
prosecution provided that the Magistrate permits him to do so and, once
permission is granted, the person concerned can appoint any counsel to
conduct prosecution, in his behalf, in the Magistrates Court. This scheme
of Section 302 is different from Section 301 inasmuch as Section 301 is
applicable to all Courts of criminal jurisdiction and this can be discerned
from the fact that the word employed, in Section 301, is any court. Section
301(1) empowers the Public Prosecutor to plead, in the Court, without any
written authority provided that he is in charge of the case. Section 301(2)
imposes a curb on a counsels engagement by any private party, because
Section 301(2) limits the role of the counsel by allowing him to act under

Page 36
the direction of the Public Prosecutor with, of course, the liberty to submit
written argument if the Court permits him to do so.
52. With respect to Section 302, which applies to the Magistrates courts,
any person, except a police officer below the rank of Inspector, can conduct
prosecution provided that permission is granted by the Court. The
observations of the learned trial Court, in the present case, that consent has
to be taken from the Public Prosecutor or from the Additional Public
Prosecutor, is completely foreign to the scheme of the Code. Para 7 to 14 of
the decision, in Shiv Kumar (supra), may be referred to in this regard,
which read:
7. Section 302 of the Code has also some significance in this context and
hence that is also extracted below:
302. Permission to conduct prosecution.(1) Any
Magistrate enquiring into or trying a case may permit the
prosecution to be conducted by any person other than a police
officer below the rank of Inspector; but no person, other than
the Advocate-General or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor, shall be entitled to
do so without such permission:
Provided that no police officer shall be permitted to
conduct the prosecution if he has taken part in the
investigation into the offence with respect to which the
accused is being prosecuted.
(2) Any person conducting the prosecution may do so
personally or by a pleader.
8. It must be noted that the latter provision is intended only
for Magistrate Courts. It enables the Magistrate to permit any
person to conduct the prosecution. The only rider is that
Magistrate cannot give such permission to a police officer

Page 37
below the rank of Inspector. Such person need not necessarily

be a Public Prosecutor.
9. In the Magistrate's Court anybody (except a police officer

below the rank of Inspector) can conduct prosecution, if the
Magistrate permits him to do so. Once the permission is
granted the person concerned can appoint any counsel to
conduct the prosecution on his behalf in the Magistrate's
Court.
10. But the above laxity is not extended to other courts. A
reference to Section 225 of the Code is necessary in this
context. It reads thus:
225. Trial to be conducted by Public Prosecutor.In
every trial before a Court of Session, the prosecution shall
be conducted by a Public Prosecutor.
11. The old Criminal Procedure Code (1898) contained an
identical provision in Section 270 thereof. A Public
Prosecutor means any person appointed under Section 24,
and includes any person acting under the directions of a
Public Prosecutor [vide Section 2(u) of the Code].
12. In the backdrop of the above provisions we have to

understand the purport of Section 301 of the Code. Unlike its
succeeding provision in the Code, the application of which is
confined to Magistrate Courts, this particular section is
applicable to all the courts of criminal jurisdiction. This
distinction can be discerned from employment of the words
any court in Section 301. In view of the provision made in
the succeeding section as for Magistrate Courts the insistence
contained in Section 301(2) must be understood as applicable
to all other courts without any exception. The first sub-section
empowers the Public Prosecutor to plead in the court without
any written authority, provided he is in charge of the case.
The second sub-section, which is sought to be invoked by the
appellant, imposes the curb on a counsel engaged by any

Page 38
private party. It limits his role to act in the court during such
prosecution under the directions of the Public Prosecutor.
The only other liberty which he can possibly exercise is to
submit written arguments after the closure of evidence in the
trial, but that too can be done only if the court permits him to
do so.
13. From the scheme of the Code the legislative intention is

manifestly clear that prosecution in a Sessions Court cannot
be conducted by anyone other than the Public Prosecutor. The
legislature reminds the State that the policy must strictly
conform to fairness in the trial of an accused in a Sessions
Court. A Public Prosecutor is not expected to show a thirst to
reach the case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case. The
expected attitude of the Public Prosecutor while conducting
prosecution must be couched in fairness not only to the court
and to the investigating agencies but to the accused as well. If
an accused is entitled to any legitimate benefit during trial the
Public Prosecutor should not scuttle/conceal it. On the
contrary, it is the duty of the Public Prosecutor to winch it to
the fore and make it available to the accused. Even if the
defence counsel overlooked it, the Public Prosecutor has the
added responsibility to bring it to the notice of the court if it
comes to his knowledge. A private counsel, if allowed a free
hand to conduct prosecution would focus on bringing the case
to conviction even if it is not a fit case to be so convicted. That
is the reason why Parliament applied a bridle on him and
subjected his role strictly to the instructions given by the
Public Prosecutor.
14. It is not merely an overall supervision which the Public
Prosecutor is expected to perform in such cases when a
privately engaged counsel is permitted to act on his behalf.
The role which a private counsel in such a situation can play
is, perhaps, comparable with that of a junior advocate

Page 39
conducting the case of his senior in a court. The private

counsel is to act on behalf of the Public Prosecutor albeit the
fact that he is engaged in the case by a private party. If the
role of the Public Prosecutor is allowed to shrink to a mere
supervisory role the trial would become a combat between the
private party and the accused which would render the
legislative mandate in Section 225 of the Code a dead letter.
53. While considering the above aspect of the law, one may also take
note of the Supreme Courts decision in J.K. International Vs. State
(Government of NCP of Delhi) and others, reported in (2001) 3 SCC 462,
wherein the Court has held that a private person, who is permitted to
conduct prosecution in a Magistrates Court, can engage a counsel to do
the needful, in the Court, on his behalf. The Supreme Court has also
clarified, in J.K. International (supra), that if a private person is aggrieved
by the offence committed against him or against anyone in whom he is
interested, he can apply to the Magistrate for permission to conduct
prosecution by himself and it is open to the Court to consider his request
and, if the Court takes the view that cause of justice would be served better
by granting such permission, the Court would, generally, grant such a
permission. The Supreme Court has further clarified, in J.K. International
(supra), that this wider amplitude of power, conferred on the Magistrate, is
limited to Magistrates court only, because such persons right, in
conducting the prosecution, in a Sessions Court, is restricted and is made
subject to the control of the Public Prosecutor. The relevant observations,
appearing, in this regard, at para 12 in J.K. International (supra), read as
under:

Page 40
12. The private person who is permitted to conduct

prosecution in the Magistrate's Court can engage a counsel
to do the needful in the court in his behalf. It further amplifies
the position that if a private person is aggrieved by the offence
committed against him or against anyone in whom he is
interested he can approach the Magistrate and seek
permission to conduct the prosecution by himself. It is open to
the court to consider his request. If the court thinks that the
cause of justice would be served better by granting such
permission the court would generally grant such permission.
Of course, this wider amplitude is limited to Magistrates'
Courts, as the right of such private individual to participate
in the conduct of prosecution in the Sessions Court is very
much restricted and is made subject to the control of the
Public Prosecutor. The limited role which a private person
can be permitted to play for prosecution in the Sessions Court
has been adverted to above. All these would show that an
aggrieved private person is not altogether to be eclipsed from
the scenario when the criminal court takes cognizance of the
offences based on the report submitted by the police. The
reality cannot be overlooked that the genesis in almost all
such cases is the grievance of one or more individual that they
were wronged by the accused by committing offences against
them.
54. This Court had an occasion to deal with the above aspects of law in
Firoz Khan and another Vs. State of Assam, reported in (2009) 1 GLT 399, and
taking note of the decision, in J.K. International (supra), the Court has
observed that the recent trend in criminal jurisprudence is to allow a
person, who is victim, to have his say on the conduct of trial. The logical
extension of this principle would be that ordinarily, a victim or an
informant shall be allowed to conduct prosecution in a Magistrates court

Page 41
by engaging a counsel of his own choice unless the Magistrate, on any
reasonable ground, does not so permit. The relevant observations,
appearing at para 17 to 19, in Firoz Khan (supra), reads as under:
17. In the case of J.K. International (supra), the Apex Court had the
occasion of deal with the provisions of Section 302, CrPC, but the
observations made in paragraph-9 has got relevance to the present case,
wherein the Apex Court held, inter alia, that the scheme envisaged in the
Code of Criminal Procedure indicates that a person who is aggrieved by
the offence committed is not altogether wiped out from the scenario merely
because the investigation was taken over by the police and charge sheet filed
by them and even the Court has taken cognizance of the offence and the
Code has not debarred him from reaching the Court for ventilating his
grievance even in the Sessions Court where the Public Prosecutor is the
authority empowered to conduct the case as per Section 225, CrPC, and he
or she is not altogether debarred from participating in the trial. When such
a role is permitted to a private lawyer though it is limited role, even in the
sessions case that is enough to show that the private person, if aggrieved, is
not wiped out from the proceeding in the Criminal Court.
18. It is noteworthy that the recent trend in criminal jurisprudence goes
to show, which is also the anxiety of the people that in a criminal case
instituted on the basis of an FIR lodged by the victim/informant, he should
be allowed to say, inasmuch as, the limited role allowed to a complainant
under Section 301(2), CrPC, is not sufficient to protect the interest of the
victim who might be silently weeping behind the screen suffering from the
criminal act committed by the accused and this has lead to emergence of a
new concept of victimology in the criminal jurisprudence. However, that
is the function of the legislature and not of the Court to incorporate.
19. The aforesaid discussions lead me to hold that when the Public
Prosecutor has not abdicated himself from his role and constantly
supervises and conduct the prosecution case, there is no bar in any law to
engage private lawyer by the complainant/victim to examine the witnesses,
which is also not specifically barred by the Code in express terms. However,
it is the presiding Judge who is the best authority to monitor and see as to

Page 42
whether the Public Prosecutor has abdicated his duties and responsibilities
and in allowing the private lawyer to assist the prosecution and act as per
the facts situation arising in a particular case. The learned Advocate
General, in the backdrop of the above provisions of law did not notice any
flaw in the impugned order.
55. In the case at hand, it is clear that since trial is being held against the
accused in a Magistrates court, the case, in question, is not exclusively
triable by Court of Session, the learned Magistrate, without any grave
reason, ought not to have asked the informant to obtain permission from
the Public Prosecutor; rather, the learned trial Court ought to have granted
permission to conduct prosecution.
Based on tainted investigation, can there be a fair trial ?
56. I have already pointed out that a defective, biased or mala fide
investigation or a tainted investigation cannot give rise to a valid charge-
sheet, because such an investigation would, ultimately, prove to be
precursor of miscarriage of criminal justice. Not only, therefore, fair trial,
but fair investigation too form part of the Constitutional rights guaranteed
under Articles 20 and 21 of the Constitution of India. The investigation,
therefore, must be fair, transparent and judicious. In fact, fairness in
investigation and, consequently, fairness in trial form the basic minimum
requirement of the rule of law. When non-interference by the Court with
an investigation would, ultimately, result in failure of justice, the Court
must interfere. A reference, in this regard, may be made to the case of
Babu Bhai vs. State of Gujarat and Ors., (MANU/SC/0643/2010), wherein the
Supreme Court observed thus:

Page 43
34. . If the investigation has not been conducted fairly, we are

of the view that such vitiated investigation cannot give rise to a valid
charge sheet. Such investigation would ultimately prove to be precursor of
miscarriage of criminal justice. In such a case the court would simply try
to decipher the truth only on the basis of guess or conjunctures as the whole
truth would not come before it. It will be difficult for the court to determine
how the incident took place wherein three persons died and so many
persons including the complainant and accused got injured. Not only the
fair trial but fair investigation is also part of constitutional rights
guaranteed under Articles 20 and 21 of the Constitution of India .
Therefore, investigation must be fair, transparent and judicious as it is the
minimum requirement of rule of law. Investigating agency cannot be
permitted to conduct an investigation in tainted and biased manner. Where
non- interference of the court would ultimately result in failure of justice,
the court must interfere. (Emphasis
is added)
57. However, unless an extra-ordinary case of gross misuse of power by
those, who are in charge of an investigation, is made out, the court should
be quite loathe to interfere with the investigation, which is, ordinarily, a
field of activity reserved for the police and the executives. Commenting on
this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:
21. .The manner in which the investigation has been carried out as
well as the manner in which these cases have been conducted before this
Court, clearly indicate that the investigation is not fair and impartial and
as such the investigating agency cannot be permitted to continue.
*** *** ***
31. Unless an extra ordinary case of gross abuse of power is made out
by those in charge of the investigation, the court should be quite loathe to
interfere with the investigation, a field of activity reserved for the police
and the executive. (Emphasis is added)

Page 44
58. At any rate, there is no difficulty in the State seeking permission for
further investigation, because Section 173(8) permits the State to conduct
further investigation. As expected, the Supreme Court, as a visionary, had
observed, in the case of Ramlal Narang (supra), that, ordinarily, it is
desirable that the police should take formal permission from the court for
further investigation. The word ordinarily would, therefore, imply, as
already discussed above, that in all cases and in every situation, the police
need not take formal permission from the Court before conducting further
investigation. It is not difficult to visualize situations, where, on
information received by the police, the police may justifiably form the
opinion that further investigation is warranted. In such a case, there may be
a situation, where the police may be required to conduct further
investigation without the accused person(s) being informed of such further
investigation. After the trial starts, the police cannot obtain permission for
further investigation at the back of the accused person or without
informing the accused person. If the accused person is informed that police
is seeking permission for further investigation, the police would be
obviously required to disclose, if not to the accused person, at least, to the
court as to what has surfaced, which warrants further investigation.
Disclosure of the fact, which may have given rise to the requirement of
further investigation, may not be disclosed by the police, because, in a
given case, such a disclosure may cause prejudice to further investigation if
the accused becomes aware of an aspect of the case which the police wants
to examine by further investigation. No wonder, therefore, that it has been
laid down, in A.S. Peter (supra), that in every case, the police need not take

Page 45
formal permission from the court for conducting further investigation and,
in the case of Hasanbhai Valibhai Qureshi (supra), the Supreme Court has
clearly held that further investigation may be conducted by the police de
hors any permission from the court.
59. What crystallizes from the above discussions is that the
investigation, in the case at hand, was either perfunctory or deliberately
manipulated so as to help the accused. In either case, as already pointed
out, the investigation is unfair and such an unfair investigation cannot give
rise to a valid charge-sheet and the charge-sheet, based on such an unfair
investigation will, unless interfered with by this Court by issuing suitable
directions, cause serious miscarriage of justice, which this Court is duty-
bound to prevent.
60. In the result and for the foregoing reasons, this application, made
under Section 482 of the Code, is hereby allowed. The Officer-in-Charge,
Margherita Police Station, is hereby directed to conduct further investigation
into the case and, then, submit additional report in terms of the provisions
of Section 173(2) of the Code and till the time an appropriate police report
is submitted, as directed hereinbefore, all further proceedings of G.R. Case
No. 276 of 2008 (Margherita Police Station Case No. 111 of 2008) shall
remain Stayed.
61. Before parting with this application, it is, however, made clear that
the Officer-in-Charge, Margherita Police Station, shall conduct further
investigation in terms of Section 173(8) of the Code, expeditiously, so as to
avoid any further delay.

Page 46
62. With the above observations and directions, this Criminal Petition
stands disposed of.
63. Send back the LCR.
JUDGE
rk

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IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;

Criminal Petition No. 17/2010

MCLEOD RUSSEL INDIA LIMITED,

1. THE STATE OF ASSAM

Date of hearing : 11-04-2012

JUDGMENT & ORDER

registers a case, the State assumes the responsibility of conducting an

investigation. Having assumed the responsibility of investigating the truth

nor can its Investigating agency act, without a sense of impartiality. It is

investigation, too, is impartial. Fairness of trial will carry with it the

fairness of investigation and fairness of investigation will carry with it the

impartiality in investigation, besides the investigation being efficient, un-

biased, not aimed at helping either the prosecution or the defence. In

agenda to either help a person or harm a person. This is the principle,

which Article 21 of the Constitution of India, read with Article 14 thereof,

111 of 2008 (Corresponding to GR Case No. 276 of 2008), under Sections

16-12-2009, passed by the learned Judicial Magistrate 1st Class, Margherita,

Crl. Pet. No. 17 of 2010

provisions of Section 173(8) Cr.P.C., on the grounds that cognizance had

(i) The informant is a company incorporated under the

Margherita, in the district of Tinsukia.

(ii) The accused-opposite party No. 3 herein, namely, Sri

Ashutosh Talukdar, was initially appointed, on 12-11-1984, as office clerk,

in Grade-III, in Namdang Tea Estate of the petitioner company and, with

effect from 18-03-2000, he was posted as Head Clerk of Namdang Tea

petitioner, was entrusted with the duty to prepare vouchers for

disbursement of payments to different persons, his additional duty being

preparation and maintenance of cash books in the computer as well as in

printed version. The accused, as Head Clerk, according to the petitioner,

Crl. Pet. No. 17 of 2010

(iii) Describing the manner in which the cash books, in computer

as well as in printed version, are maintained and various amounts, which

approximate amounts payable by the said tea estate to various persons,

thereafter, the printed cash book is signed by the Manager.

(iv) The informant companys auditor, namely, M/S BM Chatrath

and Company, found, upon conducting audit of the accounts of Namdang

books, which he was entrusted to prepare and maintain, and

misappropriated huge amount of money. The manipulation as well as

misappropriation, done by the accused, came to be unearthed by

Crl. Pet. No. 17 of 2010

M/S BM Chatrath and Company, the process of manipulation resorted to

by the accused being that he manipulated the entries by showing, in the

computer system, cash payments of higher amounts than the amounts

entries, made in the computer, were found to be different and varying

computer system, which were not backed by relevant vouchers.

(v) The manipulation, committed by the accused, was revealed

Under such circumstances, the auditors counter-checked the entries of cash

entries, appearing in the system, exactly matched with the difference

Crl. Pet. No. 17 of 2010

the Manager for latters signature, had fraudulently prepared different

of the cash book, showing genuine cash expenditure, in the entries,

the Manager. As an illustration, the informant, while describing the modus

operandi of the accused, states that the accused, in maintaining and

10 entries would be fraudulent and fictitious entries. While printing out

system, wherein only 90 entries would be mentioned; however, the total of

Crl. Pet. No. 17 of 2010

payment vouchers, maintained in the printed form, in the cash book,

vouchers) so drawn out from the safe, were misappropriated by the

accused. By this way, the accused had misappropriated an amount of Rs.

25,40,137.44p belonging to the petitioner.

(vi) Upon the report, so supported by the auditors, a First

Information Report was lodged with Margherita Police Station, which