POONAM SRIVASTAVA, J. - (1.) HEARD Sri Dilip Kumar, learned Counsel for the applicant and learned A.G.A. for the State. Sri K.C. Vishwakarma, Advocate has filed counter-affidavit on behalf of opposite party No. 2, complainant, who is Junior Engineer (Mechanical) at E/M Division P.W.D., Allahabad. Rejoinder- affidavit has also been filed and the application is listed for final hearing.
(2.) THIS application under Section 482 Cr. P.C. has been filed invoking inherent jurisdiction for quashing the charge-sheet No. 4/97 dated 22-1-1997 and also the order of the Magistrate taking cognizance on the basis of the aforesaid charge-sheet in case No. 16 of 1997. The First Information Report was registered at case Crime No. 486 of 1981, under Sections 409, 406 I.P.C., Police Station Daraganj, District Allahabad, on the basis of which the present applicant, who is Government servant and posted as Junior Engineer (Mechanical) at E/M Division P.W.D., Allahabad, is being prosecuted. The facts giving rise to the dispute is that in the year 1981, the applicant was posted as Junior Engineer at E/M (Mechanical) Division P.W.D. Allahabad. Instructions were received by the Assistant Engineer and the applicant was required to submit a report regarding an Engine of Roller No. 5548 which was informed to be under repair at the workshop situated in Alopibagh. This information was given by Roller driver one Srinath. The applicant submitted his report on 10-11-1981 informing the Assistant Engineer that the Roller in question was entrusted to Sri R.P. Gupta, Junior Engineer (Mechanical) Civil Division and he has no concern with the same. Sri R.P. Gupta happened to be the complainant and has been arrayed as opposite party No. 2. This led to the lodging of the First Information Report at Police Station Daraganj, District Allahabad against the applicant. The First Information Report has been annexed as Annexure-2 to the affidavit. The present applicant was made as an accused with two other co-accused persons and departmental inquiry was also initiated in this respect. The Executive Engineer (Mechanical) P.W.D., Allahabad was appointed as Inquiry Officer in the departmental inquiry. The investigation progressed in respect of the First Information Report. The Sub-Inspector, Police Station Daraganj, Allahabad after consultation with the Public Prosecutor, reported to the Senior Superintendent of Police, Allahabad that the Assistant Sub-Inspector was not competent to conduct the investigation. Finally, the investigation was entrusted to the Circle Officer. The investigation was completed and after conclusion of the investigation, it was found that no such offence was committed as alleged. The entire material collected, the report of Circle Officer alongwith opinion of the Public Prosecutor was examined by the Senior Superintendent of Police, Allahabad and in these circumstances, the final report was submitted before the Court on 16-8-1983 which is Annexure-4 to the affidavit. This final report was accepted by the Magistrate on 6-10-1983. It has been argued by Counsel for the applicant that on the basis of identical allegation as contained in the First Information Report, the departmental proceedings were initiated and the applicant was awarded an adverse entry in his character roll, against which a representation was made. Finally, the applicant was found to be innocent by the competent authority i.e. the Superintending Engineer 17th E/M Circle, P.W.D. Lucknow expunged the charges entered into the applicant's service record pertaining to the year, 1981-82. However, since the offence in the criminal case was also concluded to be false, the applicant was exonerated and the matter was closed after acceptance of the final report. A supplementary-affidavit has been filed on behalf of the applicant in the month of July, 2004. It appears that the Joint Secretary, Sri P.K. Mishra, P.W.D. made a request vide letter dated 10-9-1991 to the State Government for transferring the investigation to the C.B.C.I.D. and on the basis of this letter, which was written after lapse of 8 years of acceptance of the final report, investigation was initiated once again. On the basis of the aforesaid letter, the matter was remitted to the C.B.C.I.D. and registered case No. 1231 of 1991. The first Parcha drawn is also part of the record whereby the investigation was taken over by the C.B.C.I.D. The Vigilance Department had transferred the investigation to the C.B.C.I.D. without seeking permission from the Magistrate. Several letters have been annexed alongwith supplementary-affidavit to demonstrate that the C.B.C.I.D. made a request to the local police demanding necessary documents for completing the investigation. From the record, it appears that no document was received by the C.B.C.I.D. till they had written Parcha No. 25 of the Case Diary. Annexure-7 is a D.O. letter to the Superintendent of Police, C.B.C.I.D. dated 14-7-1992 which is again a reminder sent by the C.B.C.I.D. to the Senior Superintendent of Police, Allahabad for furnishing documents in order to facilitate the pending inquiry. It is evident from the record that despite repeated request, no material could be made available to the Investigating Officer, C.B.C.I.D. and a detailed note was made in the aforesaid Parcha No. 25 dated 23-6- 1993 which is Annexure-9 to the affidavit. However, in absence of relevant and necessary documents as well as material collected during the course of investigation, which was conducted earlier, the C.B.C.I.D. once again recorded the statement of the complainant Rajendra Prasad Gupta, Chowkidar Ram Dularey, Shivdhari and Vijayee and submitted the charge-sheet against the applicant. The Magistrate took cognizance on the basis of the subsequent charge-sheet submitted on 22-1-1997 without even calling for the earlier case diary and other record.
(3.) THE main argument on behalf of the applicant is that the Magistrate could not take cognizance after submission of the subsequent charge-sheet on the basis of the investigation carried out by the C.B.C.I.D. in respect of the same offence, regarding which final report was accepted by the Magistrate as far back as 6-10-1983. It has been emphasized that assuming there were certain discrepancies and the investigation was to be changed after acceptance of the final report, even then the matter could not be re-investigated unless permission was sought by the Magistrate, the procedure laid down in the Criminal Procedure Code could not be ignored. Section 173(8) Cr. P.C. is the only provision which permits further investigation. There is nothing which can empower the Investigation Agency to carry out endless investigation by one or the other Investigating Agency.;