Power to direct re-investigation lies with higher courts: HC

Srinagar, Feb 26: Underscoring that power to direct reinvestigation lies with higher courts, the High Court of J&K and Ladakh has ordered a fresh investigation into the fraudulent withdrawal of funds by officers of the Rural Development Department (RDD), Doda, during 2009-10 and 2010-11.

“It is within the domain of the magistrate to order further investigation only, however, the power to direct re-investigation lies with the higher courts, based on the facts in each case,” a bench of Justice Wasim Sadiq Nargal said.

The question before the court was whether the Special Judge Anti-Corruption, Doda, was within its jurisdictional power to direct re-investigation of the case in light of the closure report submitted by the investigating agency.

And, if the High Court could order re-investigation, de-novo and fresh or further investigation in a peculiar case while exercising powers under Section 482 of the Code of Criminal Procedure.

“The constitutional courts have the authority to order re-investigation, de-novo, and fresh or even assign the investigation to any other investigating agency, to ensure a fair investigation,” the court said and observed fair trial was often impossible without a fair investigation.

“Section 482 of the Code of Criminal Procedure Code affirms that the High Court retains inherent powers to issue orders to uphold the principles of justice, irrespective of the provisions outlined in the Code,” it said.

“The language used in Sub-section 8 of Section 173 of the Code does not constrain the powers of the High Court to order a fresh investigation or re-investigation under Section 482 of the Code, if it determines such action essential for achieving fair and impartial justice,” the court said.

It said that it was of the view that the order passed by the Special Judge Anti-Corruption, Doda, for further investigation of the case as an offshoot of the earlier order of re-investigation, did not sustain the test of law.

“While this court acknowledges that issuing such a direction about an investigation of a case should be done sparingly, the facts and circumstances of the present petition have compelled this court to exercise this power,” the court said and ordered a fresh investigation into the case after quashing the order of re-investigation passed by the Special Judge, Anti-Corruption, Doda, dated December 31, 2018.

“Even though much water has flown from the date, the said order was passed, yet this court is not hesitant to quash the said order as the same was passed without proper application of mind and jurisdictional power of the said court,” the court said.

Additionally, the court said, given the nature of the allegations in the complaint and the nature of the investigation conducted by the investigating agency (Vigilance Organisation Jammu), the court ordered a fresh investigation preferably within two months “under the supervision of the Director, Anti-Corruption Bureau, J&K, to ensure fair and just investigation.

“The Anti-Corruption Bureau should submit the report of the investigation before the learned Special Judge Anti-Corruption, Doda, who should proceed thereafter by law,” the court said. “It is not for this court to examine whether the contents of the complaint are correct or not. Nonetheless, the same requires to be thoroughly investigated and an investigation of such a nature per se would also aid the petitioners to clear their position, rather than being subjected to face multifarious litigations and investigations.”

The court said that it was in the interests of the accused that the competent agency under the supervision of a senior officer was permitted to investigate and bring out the facts before the court of competent jurisdiction.