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PETITIONER: UNION PUBLIC SERVICE COMMISSION

       Vs.

RESPONDENT: S. PAPAIAH & ORS.

DATE OF JUDGMENT:       11/09/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T DR.ANAND J      Special leave grated.      Union Public Service Commission (hereinafter the UPSC), appellant   herein,    conducted   Indian   Forest   Service Examination  for   1992.     One  of  the  centres  for  the examination  was  the  Urdu-Hall  sub-centre  at  Hyderabad. Respondent  No.1  appeared  as  a  candidate  and  took  the examination from  the said  hall.  On September 27, 1993 the UPSC sent  to the  joint Director, CBI, a complaint alleging the use  of unfair  means at  the examination  by respondent No.1 in  collusion with  the supervisor incharge of the said centre-respondent No.2.   It  was pointed out by the UPSC in the complaint  that it  had received  a pseudonymous  letter disclosing that answer sheets were written by the candidate- respondent No.1  at a  specified address  in  Gandhi  Nagar, Hyderabad, outside the examination hall.  It was also stated that the  UPSC had  found certain factors suggesting a nexus between the  candidate-respondent No.1  and  the  supervisor incharge, after  an examination  of answer books, answer and certain other documents.  It was then stated that respondent No.1 appears  to have  adopted the same modus-operandi on an earlier occasion  too by  appearing at  the  Urdu-Hall  sub- centre instead  of at  the allotted  centre for  1993  Civil Services (Preliminary) exam held on June 13, 1993.  The UPSC requested the  CBI to  investigate the  case on  a  priority basis and  to intimate  the results  of the investigation to it.   The CBI  on receipt  of the complaint registered it as complaint No.17/14/93-C.IV  and on  October 19,  19, 1993, a regular case  was registered  by the CBI on the basis of the aforesaid complaint  being Crime  No. 3(S)/93-SIU.II against respondent Nos. 1,2 and 3 for offences under Sections 120-B, 420,  381,  468  and  478  I.P.C.    The  investigation  was entrusted to Shri T.N. Rao, S.P.      It transpires  from the  record that  on September  12, 1994, the CBI filed a final report under Section 173 Cr.p.c. in the  court of the Vth Metropolitan Magistrate, Hyderabad, before whom  the FIR had been lodged, seeking closure of the case.   The CBI inspite of the request to it by the UPSC did not inform  it about  the filing of the final report seeking

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closure  of  the  case.    On  December  5,  1994,  the  Vth Metropolitan Magistrate  returned the  final report  because copy of  the notice required to be issued to the complainant by the  CBI had  not been  filed along  with it,  though  on behalf of  the CBI  it was asserted that it had informed the UPSC regarding the filing of the closure report. On December 24, 1994,  final report  was resubmitted  by the  CBI to the Court of  Vth Metropolitan  Magistrate along  with a copy of the notice  sent by  the CBI  to the  appellant-complainant. Once again,  on  December  31.  1994  the  Vth  Metropolitan Magistrate returned  the final  report to  the CBI,  seeking proof of  service of notice on the de-facto complainant.  In his  order   the  learned  Metropolitan  Magistrate  further directed the  CBI that  in the  notice to be served upon the UPSC, it  should be clearly indicated that the UPSC may file its objections  to the final report.  On January 6, 1995 the CBI, it  appears, resubmitted the final report together with an acknowledgment  of the  receipt of  notice from  the UPSC dated December  19, 1994.   In  the notice,  the receipt  of which was  acknowledge by  the UPSC on December 19, 1994 and copy whereof was filed by the CBI in the Court on January 6, 1995, the  CBI had  not informed the UPSC that it could file objections to  the final  report as  directed by the learned Magistrate.   The CBI, for reasons best known to it, did not comply with  the order  of the  Vth Metropolitan  Magistrate dated December  31, 1994.  Neither a fresh notice was issued nor was  the UPSC  told that  under orders  of  the  learned Metropolitan Magistrate  it could  file its objections.  The final report was once again returned by the Vth Metropolitan Magistrate to the CBI on January 12, 1995, as the statements of the  witnesses, copies  of the  documents  including  the reports of  the hand writing experts etc. had not been filed by the  CBI along  with   the closure report.  While matters rested thus,  the UPSC  addressed a  letter to Shri K Vijaya Rama Rao,  Director, central  Bureau of  Investigation,  New Delhi, on  January  13,  1995  pointing  out  that  CBI  had informed it  (vide its  letter dated December 14, 1994) that it had  decided to close the case under Section 173 cr. P.C. and that  the closure  report had  been filed  in the court. The UPSC  pointed out  that the  investigation had  not been carried out  properly and  the filing  of the closure report was therefore  not justified.   The UPSC asserted that there was need  for reinvestigation  because  some  of  the  vital points raised  in its  complaint had not been touched at all by the  investigating officer  during the  investigation. As many as  six such  points were  brought to the notice of the Director,  CBI.     It   was  requested  that  the  case  be reinvestigated by  the CBI  at  some  "higher  level".  This communication was  in the  nature of a "protest petition" to the CBI  in response  to the notice from the CBI to the UPSC dated December  14, 1995 informing it that the CBI had filed closure report  of the  case before  the learned Magistrate. While the  UPSC was  awaiting further communication from the CBI in  that behalf,  the CBI  it  appears  resubmitted  the closure report on February 24, 1995.  On March 16, 1995, the Vth  Metropolitan  Magistrate,  accepted  the  final  report submitted by  the  CBI  and  closed  the  file  without  any opportunity being provided to the UPSC to have its say.      Labouring under  the impression that the CBI would have started further  investigation in  the case  in view  of its letter dated January 23, 1995 and oblivious of the fact that the CBI  had resubmitted  the closure  report, the  UPSC  on April 6,  1995 issued  a reminder  to the Director, CBI vide D.O.N.F.17/14/93-CI enquiring about the "reinvestigation" of the case.   On  April 26, 1995, the Deputy Inspector General

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of Police,  CBI wrote  a  letter  to  the  Secretary,  UPSC, bearing No.1881/3/(S)/93-SIU.II  in which it was stated that the closure  report had since been filed in the court of the Vth Metropolitan  Magistrate  on  February  24,  1995  under Section 173  Cr.P.C. along  with all  the original documents including the statements of the witnesses and that the Court had accepted  the closure  report and had closed the file. A copy of  the order  of the Court accepting the file.  A copy of the  order of  the court  accepted the closure report and has closed  the file.   A  copy of  the order  of the  Court accepting  the   closure  report   was  enclosed   with  the communication.   Referring to  the grievance of the UPSC, as detailed in  its letter  dated January 23, 1995 addressed to the Director, the communication stated:      "Regarding your queries raised vide      your DO  letter No.F  17/14/93-C.VI      dt/ 23.1.95,  it is  submitted that      in case  the UPSC  desires that the      case should  be re-investigated  on      the  points  raised  by  them,  the      concerned court  has  to  be  moved      accordingly, as  the CBI’s  Closure      Report has already been accepted by      the Court."      On receipt of the above communication from the CBI, the UPSC filed  a Criminal  Misc.   Petition No.2040  of 1995 in R.C. No.2  of 1995  in the  Court of  the  Vth  Metropolitan Magistrate at  Hyderabad.   In the petition, after detailing the facts,  it was  submitted that the investigation carried out by  the CBI  had been sketchy and that many vital points mentioned in  the complaint  and high  lighted in its letter dated January  23, 1995  addressed to  the Director, had not been investigated  properly.   The UPSC  submitted  that  no notice  had   been  issued   by  the   learned  Metropolitan Magistrate to the UPSC before accepting the final report and therefore the  order of  acceptance of  the final report was vitiated.     It  was  requested  that  further  high  level investigation was  necessary, as  the case  involved alleged cheating during  an All India Services Examination and was a matter of  general public  Examination and  was a  matter of general public  interest.   The court was requested to order re-investigation of the case in the interest of justice.  In response to  the petition,  the CBI  filed its reply stating that since  the UPSC  had not  filed its  objections to  the final report,  it could  not be  now permitted  to make  any grievance about  the acceptance of the final report and that the petition  be rejected.   The court rejected the petition of the  UPSC observing that it has accepted the final report filed by  the CBI on March 16, 1995, since the appellant had not filed  its objections  to the  acceptance of  the  final report and  as such  it could  not complain. Even though the Court, recorded  in its  order that  it had  not  given  any notice to  the appellant  before accepting  the final report filed by  the CBI on March 16, 1995 yet in declined to order "reinvestigation"  or  further  investigation.    The  Court opined that  since an  order accepting  final report  was  a judicial order  and not  an administrative order, therefore, it had  no power  to review  such  an  order  passed  by  it "rightly or wrongly" and that the UPSC could file a revision petition seeking appropriate order against the acceptance of final report from the revisional court.  The UPSC then filed a revision  petition before  the 1st additional Metropolitan Sessions Judge  at Hyderabad  on December  11, 1995.    Vide order dated March 8, 1996 Criminal Revision Petition No.2 of 1995 was dismissed by the revisional court.  The learned Ist

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Additional Metropolitan  Session Judge  agreed with  the Vth Metropolitan Magistrate  that the Magistrate had no power to review its  order dated  March 16,  1995 and  observed  that since the  learned Magistrate  had accepted the final report by  following  proper  procedure  it  did  not  require  any interference.   Referring to  the observations of this Court reported  in  AIR  1985  SC  1285  to  the  effect  that  an opportunity is  required to  be given  to both  sides by the court before  dropping criminal  proceedings against persons mentioned in the FIR, it was observed:      "In the  present case,  notice  was      given to the petitioner as directed      by  the   Lower   Court   and   the      petitioner  having  not  filed  nay      objections  to  the  Final  Report,      came up  with a  review application      subsequently,    which    is    not      maintainable".      It  is   this  order  of  the  learned  Ist  Additional Metropolitan Session  Judge which  has been  put in issue in the present appeal.      We have  traced the  detailed facts  of the case with a view to test the correctness of the orders of the Magistrate dated March  16, 1995  and November  4, 1995 and that of the revisional court  dated March  8, 1996  since  facts  assume great significance in this case.      Mr. Altaf Ahmad, the learned ASG appearing for the UPSC submitted that  the observations  of  the  learned  Sessions Judge that  notice had  been issued  to  the  appellant  "as directed by the lower court" and inspite of that notice, the appellant had not filed any objections was clearly erroneous and against  the record.  Learned counsel submitted that the Vth Metropolitan  Magistrate did not call upon the appellant at any  point of  time to  file objections to closure report and notice  whatsoever  was  issued  by  the  Court  to  the appellant before  accepting the final report and though this factual position had been noticed by the though this factual position had  been noticed by the learned Magistrate himself in its  order in  Cr.M.P.No. 2040  of 1995,  the  revisional court based  its order  on wrong  factual assumptions.   The omission to  issue notice  to the appellant before accepting the final  report and  closing the  case, argued the learned ASG, vitiates  the order  of the  court accepting  the final report and the case requires to be further investigated.      In the  present case,  admittedly, no notice was issued by the  Vth Metropolitan  Magistrate to the appellant before accepting the final report submitted by the CBI and deciding not to  take cognizance  and drop  the  proceedings.    This omission vitiates  the order  of the learned court accepting the final  report.   The issue  is no longer res-integra.  A three Judge  Bench of  this Court  in the  case of  Bhagwant Singh vs.  commissioner of  Police &  Anr. 91985)  2 SCC 537 speaking through  Bhagwati, J while dealing with a situation arising out  of the report being forwarded by an officer-in- charge of  a police  station to  the Magistrate  under  sub- section 2(i)  of Section 173, stating the no offence appears to have  been committed,  opined that  on receipt  of such a report the  Magistrate can  adopt one  of the  three courses i.e. (1)  he may  accept the report and drop the proceedings or (2)  he may  disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of  the offence  and issue  process or (3) he may direct further  investigation to be made by the police under sub-section 3  of Section  156.  The bench, dealing with the first option of dropping the proceedings went on to say:

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    "There can,  therefore, be no doubt      that when,  on a  consideration  of      the report  made by  he officer-in-      charge of  a police  station  under      sub-section (2) (i) of Section 173,      the   Magistrate   is   and   issue      process,  the   informant  must  be      given an opportunity of being heard      so that he can make his submissions      to persuade  the Magistrate to take      congnizance of the office and issue      process.  We are accordingly of the      view  that  in  a  case  where  the      Magistrate  to  whom  a  report  is      forwarded under  sub-section (2)(i)      of Section  173 decides  no to take      congnizance of  the offence  and to      drop the  proceeding or  takes  the      view that  there is  no  sufficient      ground for  proceeding against some      of the  persons  mentioned  in  the      First   Information   Report,   the      Magistrate must  give notice to the      informant  and   provide   him   an      opportunity to be heard at the time      of consideration of the report."           (emphasis supplied)      As per  the law  laid down  in  Bhagwant  Singh’s  case (supra), the  issuance of  a notice by the Magistrate to the informant at  the time  of consideration of the final report is a "must".  This binding precedent which is the law of the land,  has   not  been  followed  by  the  vth  Metropolitan Magistrate and  was wrongly  ignored by the revisional court also.      The argument of learned counsel for the respondent that since the  CBI had  issued a  notice to  the  appellant,  it should be  deemed  to  be  sufficient  compliance  with  the requirement of  law does  not appeal  to us.   In  the first place the issuance of notice by the CBI to the appellant was not a  substitute for  the notice  which was  required to be given by the Magistrate in terms of the judgment in Bhagwant Singh’s case  (supra).  The CBI also did not issue any fresh notice to UPSC before it resubmitted the final report to the learned  Magistrate   on  February   24,  1995.      Learned Magistrate  could   not  in  any  event  ’delegate’  to  the investigating  agency   its  function   of  issuing  notice. Moreover, when law requires a particular thing to be done in a particular  manner, it  must be done in that manner and in no other  manner.   That part, we find that the order of the learned Magistrate accepting the closure report suffers from another serious infirmity.      The appellant  had communicated  to the  Director,  CBI certain defects in the investigation on January 23, 1995 and had pointed  out as  many as six short comings necessitating reinvestigation but  the CBI  did not bring that fact to the notice of  the Vth  Metropolitan Magistrate while submitting the final  report on February 24, 1995 before the Magistrate decided to  accept the final report submitted by the CBI and close the file on March 16, 1955.  It was, to say the least, improper on the part of the investigating officer of the CBI to have  withheld a  vital document  dated January 23, 1995, addressed to  the Director,  CBI which  communication in our view was  in the  nature of  a "protest  petition", from the learned Magistrate while resubmitting the report on February 24, 1995.   In all fairness, the investigating agency should

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have brought that communication tot he notice of the learned Metropolitan Magistrate before resubmitting the final report for its  acceptance.   The withholding of  vital information from the  learned Metroplitan  Magistrate while resubmitting the final  report along  with various  documents on February 24, 1995,  for  reasons  best  known  to  the  investigating officer, has created a doubt in our minds about the fairness on the  part of  the investigating officer while undertaking the investigations.   Had  the contents of the communication of the  appellant dated January 23, 1995 been brought to the notice of  the learned  Magistrate, the  possibility that be may not  have agreed to drop the proceedings cannot be ruled out.   This ’lapse’, deliberate or inadvertent, also renders the order of March 16, 1995 bad.      The appellant brought the contents of its communication dated  January  23,  1995  to  the  notice  of  the  learned Metropolitan Magistrate through its Misc.Petition No.2040 of 1995 seeking  "reinvestigation" but  the learned Magistrate, rejected the  petition vide  order dated  November  4,  1995 observing that  "rightly or wrongly that Court had passed an order and  it had  no power  to review  the earlier  order". Here again  the learned  Magistrate fell  into an error.  He was not  required to  "review" his  order.   He  could  have ordered "further  investigation" into  the case.  it appears that the  learned Metropolitan  Magistrate  over-looked  the provisions of Section 173(8) which have been enacted to take care of such like situations also.  That provision reads:-      "173(8) -  Nothing in  this section      shall be deemed to preclude further      investigation in  section  (2)  has      been forwarded  to  the  Magistrate      and, where upon such investigation,      the officer in charge of the police      station obtains  further  evidence,      oral  or   documentary,  he   shall      forward to the Magistrate a further      report or  reports  regarding  such      evidence in  the  form  prescribed;      and the  provisions of sub-sections      (2) to (6) shall, as far as may be,      apply in relation to such report or      reports as  they apply  in relation      to a  report forwarded  under  sub-      section (2)."      The Magistrate  could, thus  in exercise  of the powers under Section  173(8) Cr.P.C.  direct the  CBI  to  "further investigate" the  case and  collect further evidence keeping in view  the objections  raised  by  the  appellant  to  the investigation and  the ’new’  report to  be submitted by the investigating officer  would be  governed by sub-section (2) to (6)  of Section  173 Cr.P.C.    The  learned  Magistrate, failed to exercise the jurisdiction vested in him by law and his order dated November 4, 1995 cannot be sustained.      The learned  Sessions Judge  also committed an error in dismissing the revision petition filed by the appellant.  He also failed  to take  into consideration  the provisions  of Section 173(8)  Cr.P.C.  The revisional court also committed errors on  questions of  fact.   The learned  Sessions Judge erroneously observed  that notice  regarding the  filing  of final report  had been  issued to the appellant along with a copy of the final report calling upon it to file objections. On facts  these observations  are incorrect.    Neither  any notice was  issued to the appellant by the Court nor was the appellant ever  called upon  to file objections to the final report by  the Court.   Even in the notice issued by the CBI

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on December  14, 1994 for whatever it is worth, the UPSC was not called  upon to  file  objections,  if  it  so  desired. Besides the  learned Sessions  Judge also failed to consider the effect of withholding by the investigating agency of the "objections" of the appellant contained it its communication dated January  23, 1995  at the  time of resubmission of the closure report  in February  1995.    The  learned  Sessions Judge, thus,  failed to exercise his revisional jurisdiction properly and  his order  dismissing  the  revision  petition filed  by   the  appellant  in  the  established  facts  and circumstances of the case cannot be sustained.      Thus, for what we have said above we are of the opinion that the  learned Magistrate  was not justified in accepting the final report of the CBI and closing the case without any notice to  the appellant  and behind its back.  The order of the learned Magistrate dated March 16, 1995 closing the case and of November 4, 1995 dismissing the petition filed by the appellant as well as the order of the learned Sessions Judge dated March 8, 1996 dismissing the revision petition are set aside.   The matter  is remitted to the learned Metropolitan Magistrate for  its disposal  in accordance  with law.   The learned Metropolitan  Magistrate shall, in the larger public interest to  ensure the  purity of the examination conducted by the  UPSC for  All India  Services, to  select  the  best talent, issue directions under Section 173(8) Cr.P.C. to the CBI to  further investigate  the case  and  collect  further evidence keeping  in view the points raised by the appellant in its  communication addressed  to the  Director, CBI dated January  23,   1995  (supra)  (treating  it  as  a  ’protest petition’) and then proceed further in the matter,  It would be appropriate  that further investigation to be carried out by the  CBI under  Section 173 (8) Cr.P.C. is directed to be carried out  by an  officer, other  than the officer who had earlier investigated  the case  and filed  the final  report seeking closure  of the  case.    The  learned  Metropolitan Magistrate shall issue directions to that effect also to the investigating agency  when calling  upon them  to  undertake further investigation under Section 173 (8) Cr.P.C.  The CBI shall   be    directed   to   complete   the   investigation expeditiously and  proceed in  the matter in accordance with law in the light of the observations made by us above.      Before parting  with the  case, we wish to clarify that nothing  said   hereinabove  shall   be  construed   as  any expression of  opinion on  the merits  of complaint filed by the appellant.      The appeal  accordingly succeeds  and  is  allowed  but without any order as to costs.