JUDGMENT
A.S.Anand, J.
(1) ED. Facts: In I.F.S. Exam., respondent was a candidate who sat in me test at a Hyderabad Centre. Upsc received a complaint of unfair means by respondent no. 1 with the connivance of respondent no. 2. Complaint was made to Cbi for investigation on 27.9.93. It was registered on 19.10,93 and was entrusted to T.N. Rao, S.P. The Fir was lodged with 5th Mm on 12.9.94. Cbi sought closure of the case u/s 173 without informing Upsc in spite of request. Mm on 5.12.94 returned final report as Cbi had not Union Public Service Commission Vs. S. Papaiah filed copy of the report required to be issued to UPSC. On 24.12.94, Cbi resubmitted report with copy of notice to UPSC. Mm again returned the report seeking proof of service of notice to Upsc and telling Upsc to file its objections. On 6.1.95 Cbi re-submitted the report alongwith acknowledgement of UPSC. But is did not indicate, if it had complied with order of Mm about filing objections by UPSC. Report was again returned to the Cbi on 12.1.95 “as statement of witnesses, documents including report of hand writing expert had not been filed. While matters rested thus, Upsc on 23.1.95, complained to Director Cbi that investigation was unfair and improper and there was no question of closure report and matter be investigated at ‘high level’ while Upsc was expecting reply, Cbi re-submitted the report on 24.2.95 which was accepted by the Mm without hearing CBI. Oblivious of this fact, Upsc on 6.4.95 sent reminder to Director, CBI. It was replied by Dy. I.G., Cbi on 26.4.96 saying that Mm had accepted, closure report and Upsc may move Mm, if so desired] After detailing above, judgment is :
“Regarding your queries raised vide your Do letter No. E 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.”
(2) On receipt of the above communication from the Cbi, the Upsc filed a Criminal Misc. Petition in the Court of the 5th Mm 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 23.11.1995 addressed to the Director, had not been investigated properly. The Upsc submitted that no notice has been issued by the Mm 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 Service Examination and was matter of general public interest. The court was requested to order re-investigation of the case in the 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 thai 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 had 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 is its order that it had given no notice to the appellant before accepeting the final report filed by the Cbi on March 16, 1995 yet it declined to order “re-investigation” or further investigation. The Court opined that since an order accepting final report was judicial order and not an administrative order, threfore, it had no power to review such an order passed by it “rightly or wrongly” and that Upsc could file a revision petition seeking appropriate orders against the acceptance of final report from the revisional court. The Upsc then filed a revision petition before the 1st Additional Sessions Judge who agreed with 5th M.M. 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 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 any objections to the Final Report, came up with a review application subsequently, which is not maintainable”.
(3) It is this order of the Session Judge which has been put in issue in the present appeal.
(4) We have traced the detailed facts of the case with a view to test the correctness of the orders of the Magistrate dated March 16.3.1995 and4.11.1995 and that of the revisional court dated March 8,1996 since facts assume great significance in this case.
(5) Mr. Altaf hmed, the learned Asg appearing for the Upsc submitted that the observations of the learned 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 5th M. M. did not call upon the appellant at any point of time to file objections to the closure report and no 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 Mm 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.
(6) In the present case, admittedly, no notice was issued by the Mm 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 resintegra. A three Judge Bench of this court in Bhagwant Singh Vs. Commissioner of Police speaking through Bhagwati, J, While dealing with situation arising out of the report being forwarded by an officer-in-charge of a police station to the Magistrate u/s 173(2)(i) stating that 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.(l) 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 congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3). The bench, dealing with the first option (of dropping the proceedings) went on to Say :
‘THEREcan, therefore, be no doubt that when, on a consideration of the report made by the officer in-charge of a police station u/s 173(2)(i) the Magistrate is not inclined to take conginance of the offence 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 cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under section 173(2)(i) decides not 10 take congnizance of the offence and to drop the proceedings or lakes 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”.
(7) As per the law laid down in Bhagwant Singh’s (supra), the issuance of 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 Mm and was wrongly ignored by the revisional court also,
(8) 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 (supa). The Cbi also did not issue any fresh notice to Upsc before it resubmitted the final report to the Mm on 24.2.1995. Learned Magistrate could not in any event ‘delegate’ to the investigation 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 apart, we find that the order of the learned Magistrate accepting the closure report suffers from another serious infirmity.
(9) The appellant had communicated to the Director, Cbi certain defects in the investigation on 23.1.1995 and had pointed out as many as six shortcomings necessitating reinvestigation but the Cbi did not bring that fact to the notice of the 5th M.M. while submitting the final report on 24.2.1995 before the Magistrate decided to accept the final report submitted by the Cbi and close the file on March 16,1995. It was to say the least improper on the part of the investigating officer of the Cbi to have withheld a vital document dated 23.1.1995, 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 24.2.1995. In all fairness, the investigating agency should have brought that communication to the notice of the learned M. M. before resubmitting the final report for its acceptance. The withholding of vital information from the learned M.M. while resubmitting the final report along with various documents on 24.2.1995, for reasons best known to the investigation 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 23.1.1995 been brought to the notice of the learned Magistrate, the possibility that he may not have agreed to drop the proceedings cannot be ruled out. This ‘lapse’, deliberate or inadverted, also renders the order of March 16, 1995 bad.
(10) The appellant brought the contents of its communication dated 23.1.95 to the notice of the learned M.M. 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 situation also. It reads:
“173(8)-NOTHINGin this section be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and 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 u/s 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 4.11.95 cannot be substained.
(11) 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. He 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. Even in the notice issued by the Cbi on 14.12.94, for whatever it is worth, the Upsc was not called upon to file objections, if it so desired. Besides that Sessions Judge also failed to consider the effect to withholding by the investigating agency of the “objections” of the appellant contained in its communication dated 23.1.95 at the time of resubmission of the closure report in February 1995. The Session 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.
(12) Thus, for what we have said above we are of the opinion that the 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 Magistrate dated March 16, 1995 closing the case and of4.11.95 dismissing the petition filed by the appellant as well as the order of the Session Judge dated March 8, 1996 dismissing the revision petition are set aside. The matter is remitted to the M.M. for its disposal in accordance with law. The M.M. shall, in the larger public interest to ensure the 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. PC. 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 23.1.95 (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 u/s 173(8) Cr. PC. is directed to be carried out by an officer, other than the officer who had earlier investigated the case and tiled the final report seeking closure of the case. The learned M.M. shall issue directions to that effect also to the investigating agency when calling upon them to undertake further investigation u/s 173(8) Cr. PC. 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.
(13) Before parting with the case, we wish to clarify that nothing said here in above shall he construed as any expression of opinion on the merits of the complaint filed by the appellant.