J&K HC Orders Fresh Probe In Decade-Old Corruption Case Due To Flawed Investigation, Says No Legal Provision Prohibited IO From Reviewing Material

A bench of Justice Wasim Sadiq Nargal observed,

“if any evidence is sought to be presented by the complainant, which may or may not assist the investigating agency, but it is entirely unreasonable on part of the investigating agency to ignore its examination during investigation process. There is no legal provision that prohibits the investigating officer from reviewing the material if it is essential for uncovering the truth”.

Background:

In the present matter, the petitioners were accused of misusing funds. The investigating agency, the Vigilance Organization Jammu, submitted a closure report stating they found no evidence of wrongdoing. However, the trial court, finding the closure report incomplete, ordered a “re-investigation”. Later, the trial court, dissatisfied with the further investigation report, ordered yet another "further investigation,".

The petitioners challenged both the re-investigation and the subsequent further investigation orders, arguing they were unlawful. Magistrate has no power to direct fresh/de-novo/re-investigation after the filing of the closure report and it is only available to the higher judiciary that is the High Court and the Supreme Court alone, they argued.

Court's Observations:

Adjudicating on the matter Justice Nargal acknowledged the illegality of both the re-investigation and further investigation orders and stated that under Section 173(8) of the Code of Criminal Procedure (CrPC), only trial courts have the power to order further investigation if they find the closure report insufficient. However, they lack the authority to order re-investigation, which requires starting the investigation afresh.

“The scope of Section 173(8) of CrPC is clear in this regardthat the Magistrate can direct further investigation but the re-investigation of the case can be only ordered by the constitutional courts. Therefore, the Trial Court, in its order dated 31.12.2018, has exceeded its jurisdiction by directing the investigating agency to re-investigate the case”, Justice Nargal recorded.

Dissecting the proceedings and after identifying several glaring lapses in the investigation Justice Nargal noted that the main allegations of corruption were not adequately addressed by the investigating agency and stated,

“The Court is of the view that the main allegation levelled in the complaint regarding the disbursement of payments to the deceased/Govt. Servants were not investigated by the Vigilance Organization Jammu, even after the Special Court's ordersspecifically highlighting this issue. Hence, this Court is of the view that, factually, the shoddy investigation and lapses in identifying the moot issue in the complaint led to the order for further investigation by the subordinate Court”.

Considering the seriousness of the allegations and the shoddy initial investigation Justice Nargal found it prudent to invoke the inherent power bestowed upon High Courts under Section 482 of the CrPC, ordered a fresh investigation by a different agency.

He directed the investigation to be conducted under the supervision of the Director of the Anti-Corruption Bureau, Jammu and Kashmir, and completed within two months.

The court further emphasized that the judgment shouldn't be interpreted as a directive on how to conduct the investigation and that the investigating agency has the expertise to determine the appropriate approach.

Case Title: Kewal Krishan Vs Union Territory of J&K

Citation: 2024 LiveLaw (JKL) 26

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