ORDER
G. Sasidharan, J.
1. This petition is filed by the Government of Kerala challenging an order made by the Enquiry Commissioner and Special Judge, Kozhikode refusing to grant permission for conducting further investigation in Crime 1/1997 registered by the Deputy Superintendent of Police, Vigilance Anti-Corruption Bureau, Palghat. After completing the investigation in the above crime, final report was filed in Court and the case was taken on file as C.C. 2/1999. The case related to the execution of work known as “Kariarkutty-Karappara Project” and originally there were seven accused including the officers of the Irrigation Department and some contractors. The allegation is that in entering into an agreement for the execution of the work it was done in such a way so that the contractor could gain undue advantage causing wrongful loss to the Government and thereby offences under the various provisions of the Prevention of Corruption Act were committed.
2. During the course of investigation the investigating agency determined the executed earth work done by the contractor with the assistance of an Assistant Executive Engineer attached to the Vigilance and Anti-Corruption Bureau Unit and two other officers of the K.K.I.P., an Assistant Engineer and Assistant Executive Engineer. The quantity of earth work executed was found as 88873.08 M3 whereas the Engineers in charge of the work recorded the quantity of earth work executed as 110416.59 M3. The allegation is that as a result of recording the executed work in the manner stated above, the contractor was allowed to obtain pecuniary advantage of Rs. 57,10,225/- by illegal means.
3. An Original Petition was filed as O.P. 445/2000 in this Court seeking directions to the State Government to take steps to resume the work of Karappara-Kuriyarkutty Project which was discontinued following the vigilance enquiry. As per the direction of this Court in the above Original Petition, according to the petitioner, it was necessary to take measurement of the work already executed so that the work could be continued. The Assistant Executive Engineer, Karappara-Kuriyarkutty Project measured the same and the quantity was worked out as 110802 M3. Since there was difference in the quantity of executed work assessed by two different set of officers a decision was taken by the investigating agency to conduct further investigation of the case collecting further evidence regarding the actual work executed. The Government of Kerala, the petitioner would allege in the petition that it was felt necessary that proper measurement is taken with the help of records already submitted in the Court of the Enquiry Commissioner and Special Judge and that in case that is not done, the prosecution case will become weak. The submission made is that the prosecution will not be able to rely on the actual quantity of work which was described as 88873.08 M3 since there is difference in the statement regarding the quantity of work executed when the measurement was taken for complying with the direction of this Court in the Original Petition filed.
4. In the petition submitted before the Enquiry Commissioner and Special Judge it is stated that the second accused pointed out among other things that this Court in O.P. 445/2000 directed the State Government to take steps to resume the work of Karappara-Kuriyarkutty Project which was discontinued following initiation of vigilance case on the allegation of irregularities in the execution of work. In the petition it was made clear that the Executive Engineer, Kuriarkutty-Karappara Irrigation Project took measurement of the executed work after the final report was filed in Court and then the quantity of earth work executed was assessed by him as II0802 M3. The loss caused to the Government as Rs. 57,10,225/- as stated in the final report was based on the measurements made during the course of investigation regarding the work executed. It is pointed out that now the allegation in the final report submitted before Court is that whereas the actual quantity of work executed was 88873.08 M3, payment was made assessing quantity of work as 110416.59 M3 by recording inflated and false measurements in the ‘M’ Books by the Engineers. The submission made is that the case of prosecution will become weak if further investigation is not conducted because on taking measurements by the Assistant Executive Engineer, Kuriarkutty-Karappara Irrigation Project, Sub Division No. 1, Kozhinjampara subsequently for implementing the directions given by this Court in O.P. 445/2000 the measurement was found to be different from what was said in the final report.
5. In the petition filed by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Palghat for permission of the Court for further investigation there is statement that on the recommendation of the Director, V.A.C.B., Government ordered to conduct further investigation of the case. The learned Judge refused to grant permission for investigation of the crime on observing that the report filed seeking permission for further investigation is found to be lacking in bona fides. The order of the learned Judge says that even after submitting the charge sheet before Court it is open to the police to have further investigation in a crime when fresh information comes to light. But on pointing out the decision of the High Court of Gujarat in K.V. Joseph v. State of Gujarat (1997 Crl.LJ. 2896) the learned Judge said that after cognizance of the offences under the Prevention of Corruption Act has been taken by the Court the Police does not have a right of further investigation unless relevant materials are placed before the Court and a finding is entered that investigation carried out in the case was vitiated. On pointing out certain facts which were there in the records and considering the merit of the request for further investigation of the crime, the learned Judge came to the conclusion that there is no bona fides in the request for conducting further investigation of the crime.
6. The argument advanced by the learned Director General of Prosecutions is that it is for the investigating agency to take a decision as to whether further investigation in a crime has to be conducted and such a decision can be taken even after filing of the final report and the Court taking cognizance of the offence. The submission made is that the power basically vests with the police and all that is required is the approval of the Court before which an earlier report had been filed. It is pointed out that when a final report is filed in Court the discretion to accept the final report as such or even to reject the final report is with the Court and when a request is made by the police for granting permission for conducting further investigation of the crime, permission has to be granted by the Court. The purpose for which a formal permission is required from Court is to inform the Court that the investigating agency even after filing the final report is proceeding with further investigation so that the Court will have to wait till the investigating agency files a further report regarding the materials collected during further investigation and the conclusion arrived at on the basis of those materials.
7. The question whether further investigation of the crime can be conducted after the Court taking cognizance of the offence was considered by the Supreme Court in Ram Lal Narang v. State (Delhi Administration) (AIR 1979 SC 1791). There the Supreme Court held that the police has the statutory right and duty to ‘register’ every information relating to the commission of a cognizable offence. The police also has the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence is suspected and to submit the report of such investigation to the Court having jurisdiction to take cognizance of the offence upon a police report. So, the police has the statutory right and duty to see whether further investigation of a crime is needed in the particular circumstances of a case. A reading of Section 173(8) of the Criminal Procedure Code would go to show that what is said in the other sub-sections of Section 173 will not preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Court. There is also statement in the Sub-section (8) that where upon such further 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. Nowhere in Section 173 it is stated that for the purpose of conducting further investigation in a crime the permission of the Court is necessary.
8. In Abubaker v. State of Kerala (2000 (3) KLT 857) this Court observed that when an investigating officer or an officer superior in rank to him who has the right to supervise the investigation receives some materials, further investigation of the crime by the police officer who conducted the investigation or direction by the superior officer to conduct further investigation is permissible under Section 173(8) of the Criminal Procedure Code. It was also observed in the above decision that in a case where final report is accepted by the Magistrate it is desirable that for further investigation of the crime, permission of the Magistrate is obtained. A Division Bench of this Court in Antony Scaria v. State of Kerala (2001 (2) KLT 93) said that when circumstances which necessitate further investigation come to the notice of the investigating agency, it is the duty of the investigating agency to further investigate the case and submit a report to the Court. It was also observed in the above decision that there may be cases in which further materials may come to light subsequent to the filing of the final report and then it is open to the police to further investigate-the crime. Section 173(8) of the Criminal Procedure Code says that if the officer in charge of the police station obtains further evidence, oral or documentary, on conducting further investigation, he shall forward to the Magistrate further report or reports regarding such evidence. There is no mention in Section 173(8) that further investigation can be conducted by the officer in charge of the Police Station only after getting further materials in connection with the crime. What the above clause of Section 173 provides is regarding the right of the officer in charge of the police station to conduct further investigation of the crime by making it clear that nothing in Section 173 Cr.P.C. shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Court.
9. The Enquiry Commissioner and Special Judge in the order made by him extracted a portion of the judgment of the Gujarat High Court in K. V, Joseph v. State of Gujarat (1997 Crl.L.J. 2896). A reading of the judgment would go to show that the above observations were made by the Court when considering the question whether sanction for prosecution once granted can be cancelled or that question can be reconsidered by the Government. The question whether the investigating agency can take a decision for further investigation of the crime after the Court taking cognizance of the offence has been considered by the Supreme Court in the decision in Ram Lal Narang v. State (Delhi Administration) (AIR 1979 SC 1791), The observation made by the Supreme Court that the police can take a decision for conducting further investigation in a case in which the Court has taken cognizance of offence is applicable to all types of cases whether the allegation against the accused is regarding the commission of the offence under the Prevention of Corruption Act or offence under any other law. The Supreme Court says in the above decision that the statutory rights and duties of the police for conducting investigation of the crime are not circumscribed by any power of superintendence or interference in the Court, nor any sanction required from the Court to empower the police to investigate into a cognizable offence. In respect of the necessity to seek permission of the Court for conducting further investigation by the police what the Supreme Court said is as follows:
“We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light”.
The Supreme Court went on to say that practice, convenience and preponderance of authority permitted repeated investigations on discovery of fresh facts and that notwithstanding that a Court had taken cognizance of the offence upon a police report submitted under Section 173 of the Criminal Procedure Code the right of the police to further investigate was not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. It is also said that where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.
10. The investigating agency found that there is need for further investigation of the crime and took a decision for conducting further investigation. Petition was filed for getting formal permission of the Enquiry Commissioner and Special Judge in whose Court the case is pending. The reasons for conducting further investigation are also mentioned in the report submitted in Court for giving permission for conducting further investigation. In the light of the facts stated above, I find that this is a fit case in which permission for conducting further investigation of the crime has to be granted. Annexure B order of the Enquiry Commissioner and Special Judge is quashed. Permission is granted for conducting further investigation of the crime.