Holding

The magistrate’s order for further investigation was not called for and the appeal is dismissed.

Summary

Kishan Lal filed a complaint alleging that nine (later ten) accused cheated him of Rs 4.65 crore. An FIR was lodged against all accused, but the charge‑sheet was filed only against Accused 1 and 2, and the Metropolitan Magistrate took cognizance of them. The complainant sought, under Section 173(8) of the CrPC, a direction for further investigation into the remaining accused. The High Court directed the magistrate to consider such a direction, and the magistrate ordered further investigation. Accused 2 filed a revision, which was allowed, leading to the present appeal. The Supreme Court examined whether a magistrate may order further investigation after cognizance has been taken and whether the order was justified given that the investigation had already been completed by two specialized agencies. The Court held that the magistrate’s order was unnecessary, as the material already on record could determine the involvement of the other accused, and that the revisional court should not interfere with the magistrate’s discretionary jurisdiction absent a jurisdictional error. Consequently, the appeal was dismissed.

Issues considered

The jurisdiction of a magistrate to direct further investigation under Section 173(8) of the CrPC after cognizance has been taken.
Whether the magistrate’s order for further investigation was justified in view of the completed investigation and charge‑sheet filed only against two accused.
Whether the revisional court erred in setting aside the magistrate’s order.

Legislation cited

Code of Criminal Procedure, 1973s. 156, s. 159, s. 173(8), s. 190, s. 202, s. 319, s. 482
Indian Penal Code, 1860s. 120B, s. 406, s. 420

Subjects

jurisdictionmagistratefurther investigationSection 173(8)cognizancerevisioncharge sheetcriminal procedureappeal

Judgment

[2009] 11 S.C.R. 234

A KISHAN LAL
v.
DHARMENDRA BAFNA & ANR. , .
(Criminal Appeal No. 1283 of 2009)

JULY 21, 2009
B
[5.8. SINHA AND DEEPAK VERMA, JJ.]
'
Code of Criminal Procedure, 1973 - s.173(8) -
Jurisdiction of Magistrate - To direct further investigation -
c FIR lodged against ten accused - Chargesheet only against
two of the accused - Magistrate taking cognizance of the
matter d/recting further investigation at the instance of
complainant - Revisional court setting aside_ order of
Magistrate - On appeal, .held: Order of Magistrate for further
D investigation not called for - Involvement of the left out
~
accused in the offence could be made out from the material
already brought on record.

Appellant had filed a complaint against nine accused.
FIR was lodged against all the accused. Charge-sheet
E
was filed only against two of the accused and cognizance
was taken against them by the Magistrate. Appellant-
complainant filed petition uls 482 Cr.P.C. seeking setting
aside of the order of the Magistrate on the premise that ...
cognizance was not taken against the other accused.
F ihe petition was disposed of stating that appellant was
...
at liberty to file appropriate petition. Appellant filed an
application before Magistrate, seeking investigation.
Magistrate issued direction for further investigation.
Revision application filed by respondent-accused No.2
G was allowed. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1. The Investigating Officer, when an FIR is
H 234
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 235

lodged in respect of a cognizable offence, upon A
completion of the investigation, would file a police report.
The power of investigation is a statutory one and
ordinarily and save and except some exceptional
situations, no interference therewith by any court is
permissible. [Para 9] [242-D-E] B

2. An order of further investigation can be made at
various stages including the stage of the trial, that is, after
taking cognizance of the offence. The Investigating
Officer may exercise his statutory power of further
investigation in several situations as, for example, when C
new facts come to its notice; when certain aspects of the
matter had not been considered by it and it found that
further investigation is necessary to be carried out from
a different angle(s) keeping in view the fact that new or
further materials came to its notice. Apart from the D
aforementioned grounds, the Magistrate or the Superior
Courts can direct further investigation, if the investigation
is found to be tainted and/or otherwise unfair or is
otherwise necessary in the ends of justice. [Paras 10 and
11] (246-F-H; 248-A-C] E

3. In the instant case, the matter has been
investigated by two specialized agencies. The deponent
of the counter affidavit categorically stated that he. had
made a thorough investigation and upon consideration F
of the materials gathered during investigation identified
that there was no connection between the money of the
de facto complainant and Accused Nos. 3 to 10 and
hence the final form was filed in their favour. [Para 12]
[248-F-H; 249-A]
G
4. It is correct that the revisional court should not
interfere with the discretionary jurisdiction exercised by
the Magistrate unless a jurisdictional error or an error of
law is noticed. The order passed by the Magistrate that
"several kinds of issues were not disclosed and beyond H
236 SUPREME COURT REPORTS [2009] 11 S.C.R.

A from knots of doubts" is vague'in nature. It has not been
pointed out that in what respect the investigation has not
been carried out. What are hidden truths required to be
unearthed had also not been pointed out. The Magistrate
did not consider the fact that the investigation had been
B carried out by ·two different agencies and by responsible
police officers. It has not been found that the Investigating
Officer was in any way biased towards the complainant. ·f

[Para 13] [250-G-H; 251-A-B]

5. The question as to whether Accused Nos. 3 to 10
C were involved in the matter could be pointed out from the
materials which had already been brought on record.
Furthermore, whether the admissions made in the
. application for anticipatory bail were binding on them, the
same being a matter of inference can also be urged. The
D other and further remedies can be resorted to as also
invocation of the provisions of Section 319 Cr.P.C. at the
stage of trial is also permissible in law, if an appropriate
case is made out therefor. [Para 13] [251-C-D]

E Naresh Kavarchand Khatri vs. State of Gujarat and Anr.
2008 (8) SCC 300; Dharmeshbhai Vasudevbhai and Ors. vs.
State or Gujarat and Ors. 2009 (7) SCALE 214; Sakiri Vasu
vs. State of Uttar Pradesh and Ors. 2008 (2) SCC 409;
Mithabhai Pashabhai Patel and Ors. vs. State of Guajrat 2009
F (7) SCALE 559, referred to.
Case Law Reference:
2008 (8) sec 300 -Referred to. Para 9
2009 (7) SCALE 214 Referred to. Para 9
G
2008 (2) sec 409 Referred to. Para 9
.... .
.2009 (7) SCALE 559 Referred to . Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
H
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 237

.., No. 1283 of 2009 . A

From the Judgment & Order dated 13.03.2008 of the High
Court of Judicature at Madras in Criminal R.C. No. 245 of
2008.

K.T.S. Tulsi, S.D. Dwarkanath and Dr. Kailash Chand for B
the Appellants .

• M.N. Rao, U.U. Lalit, R. Balasubramaniam, Promila, S.
Thanajayan, Amit Bhandari, P. Krishnan and Jayant' Kumar
Mehta for the Respondents. c
The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Jurisdiction of a Magistrate to direct reinvestigation of D
a case from time to time as laid down under sub-section (8) of
Section 173 of the Code of Criminal Procedure, 1973 (for short,
"the Code") is the question involved in this appeal. It arises out;
of a judgment and order dated 13th March, 2008 passed by a
learned single judge of the High Court of Judicature at Madras E
in Crl. R.C. No. 245 of 2008 allowing the criminal revision
· application filed by the respondent No.1 from an order dated
13th February, 2008 passed by the learned Ill Metropolitan
Magistrate, George Town, Chennai.

3. Indisputably, on or about 30th December 2005, a F
complaint was lodged by the appellant against Accused Nos.
1 to 9, namely, Lakshmichand Bafna (Accused No.1},
Dharmendra Bafna (Accused No.2), Mahendar Bafna
(Accused No.3), Rakesh Bafna (Accused No.4), G.R. Surana
(Accused No.5), Shantilal Surana (Accused No.6), Vijayaraj G
Surana (Accused No.7), Dinesh Chand Surana (Accused No.8)
,Ji. and Maran (Accused No.9) before the Commissioner of Police,
Chennai City, Chennai inter alia alleging that they connived
together from the beginning and cheated him a sum of Rs.4.65
crores by denying to return the money which was given to them H
f
238 SUPREME COURT REPORTS (2009) 11 S.C.R.

A for purchase of gold. It was alleged that the amount was
entrusted on various dates from 06th October 2005 to 17th
November 2005. Although they have admitted the liability to the
extent of 4.95 crores, but did not return either any gold or money
to the complainant.
B
4. On or about 12th January 200.6, an applicatjon for grant
of anticipatory bail before the High Court of Madras was filed
by all the accused stating that the Accused Nos. 5 to 8 are
brothers and are the directors of their family business known
as Mis Surana Corporation Limited. It was admitted that the
C Accused No.2 is the sub-agent of Surana Corporation Limited
who introduces investors.

5. A First Information Report ("FIR") was lodged by the
appellant against all the accused on or about 22nd January,
D 2006 in the Central Crime Branch Station.

Allegedly, on or about 27th January 2006, in the
aforementioned bail application, the said accused filed
statement of accounts of the appellant/de facto complainant
E mentioned in the Multi Commodity Exchange of India Limited
("MCX") which is ~ Government approved On:..Une Trading
Exchange of Bullion: Energy, Metal and Oil, admitting that they
had undertaken bullion trade with MCX by using the appellant's
money.

F Apart from the.said FIR, the parties have filed some Civil
Suits also. Indisputably, however, Banwarlal Sharma (Accused
No.10) was subsequently added. It is furthermore not in dispute
that the investigation was transferred to CBCID, Chennai by the
Director General of Police, Tamil Nadu.
G
On or about 8th October, 2007, a charge-sheet was filed
before the learned In Metropolitan Magistrate, George Town, .,
Chennai only against Accused Nos. 1 and 2 under Sections
406, 420 and 120B of the Indian Penal Code ("IPC"). The
H learned Magistrate took cognizance against the said accused.

-
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 239
[S.B. SINHA, J.]
On or about 29th October 2007, on the premise that the A
learned Magistrate had not taken cognizance against the other
accused, the appellant filed an application under Section 482
of the Code before the High Court for setting aside the said
order. The said application was disposed of by the learned
single judge of the High Court in the following terms: B
"8. Therefore in the considered view of this order, the
~ above criminal original petition can be disposed of with
the following directions:-

The petitioner is at liberty to file an appropriate c
petition before the Ill Metropolitan Magistrate, George
Town, Chennai, incorporating his grievances and t-he
alleged lapses 011 the part of the investigating agency and
seek further investigation in the case. On such petition
being filed, the learned Magistrate, shall consider the D
~ same in accordance with law and if the learned Magistrate
,is satisfied that a case has been made out by the
· petitioner for ordering further investigation under Section
173(8) of the Criminal Procedure Code, the learned
Magistrate is entitled to invoke the powers under Sections E
173(8) of the Criminal Procedure Code and direct the
respondent to further investigate into the matter."

Pursuant to or in furtherance of the said observations,
appellant filed an application for further investigation before the
learned Magistrate and by an order dated 13th February 2008, F
a direction for further investigation was issued, observing:

"While considering the averments made in this petition,
this Court holds that several kinds of issues were not
undisclosed and beyond from knots of doubts. If those G
doubts were not cleared through suitable investigation, no
opportunity could be given to get it revealed the true
picture. While considering the nature of the case, it is
important to find out how the amount given by the petitioner
utilized, when it was utilized and on which state the amount H
240 SUPREME COURT REPORTS (2009] 11 S.C.R.

A has been kept. But, as alleged on behalf of the petitioner, ..
it is the duty of this Court to find out the truth by holding
suitable investigation of the matters which were unearthed.
In the event of this court refusing to find out the true picture
by ordering a reinvestigation, either party is likely to get
B hardships and losses. If the reinvestigation is ordered, a
situation for handing out an opportunity for both the parties
to bring out the hidden truths in this case and the facts in
this case and this Court holds that it would pave a way for ..
conducting a trial in the proper direction.
c As this court holds that certain cause of actions
available in this case, and in view of the necessity to find
out several facts in this case and in accordance of the
orders-of the High Court of Madras in CRL.O.P. 33354 of
2007, it is to meet the ends of justice, the case could be
D ordered for reinvestigation and thereby the petition
presented by the Petitioner/complainant u/s 173(8) is
allowed."

Accused No.2 filed revisional application thereagainst
E before the High Court. By reason of the impugned judgment,
as noticed hereinbefore, the said revision application has been
allowed.

6. Mr.K.T.S. Tulsi, learned Senior Counsel appearing on
behalf of the appellant would contend:
F
(i) The High Court committed a serious error in opining \.
that no direction tor further investigation or
reinvestigation can be directed after cognizance of
an offence is taken.
G
(ii) The application for a direction for further
investigation having been filed only in terms of the
order of the High Court dated 17th December 2007,
I.. .....
another learned judge of the same High Court could

H
a
not have taken contrary view.
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 241
[S.B. SINHA, J.]
(iii) Direction for further investigation having been made A
by the learned Magistrate upon taking into
consideration all aspects of the matter, the High
Court corr:imitted a serious error in· interfering
thP.rewith.
B
(iv) The High Court committed a serious error in
passing the impugned judgment insofar as it failed
to take into consideration that Accused No.6 being
father of Accused No.2 and Accused Nos. 5, 7 and
8 being his brothers; were running and operating c
Surana Corporation Limited and having admittedly
invested the said amount in MCX, they must be
held to have conspired together for
misappropriation of the aforementioned amount of
Rs.4.65 crores entrusted by the appellant to the
accused No.2, and consequent refusal on their part D
to return the amount on the ground that they have
suffered a huge loss.
/

7. Mr. U.U. Lalit, the learned Senior Counsel appea.ring on
behalf of the accused other than accused Nos. 2 and 6, on the E
other hand, urged:

(i) Despite the fact that the learned Magistrate had the
requisite jurisdiction to direct further investigation,
such order could not have been passed in the
instant case as all aspects of the matter had been
F
taken into consideration by the Investigating
. Officers.

(ii) Further investigation, the le~rned counsel would
urge, could be directed only in the event where G
investigation was not carried jn respect of certain
aspects of the matter br where during trial it came
to the notice to the court that some facts which were
relevant for arriving at the truth had not been gone
into. H
242 SUPREME COURT REPORTS (2009) 11 S.C.R.

·-y
A 8. Mr. M.N. Rao, learned Senior Counsel appearing on
behalf ofthe State would take us through the detailed counter
affidavit filed on behalf of the. State to contend that the
investigation had been carried out in a fair and diligent manner
touching all aspects of the matter.
B
9. It is now a well settled principle of law that when a final
form is filed by any Investigating Officer in exercise of his power ~

under sub-section (2) of Section 173 of the Code, the first ......
informant has to be given notice. He may file a protest petition
which in a given case may be treated to be a complaint petition,
c on the basis whereof after fulfilling the other statutory
requirements cognizance may be taken. The learned
Magistrate can also take cognizance on the basis of the
materials placed on record by the investigating agency. It is also
permissible for a learned Magistrate to direct further
_,..
D investigation.

The Investigating Officer when an FIR is lodged in respect
of a cognizable offence, upon completion of the investigation
would file a police report. The power of investigation is a
E statutory one and ordinarily and save and except some.
exceptional situations; no interference therewith by any cou1i is
permissible.

In Naresh Kavarchand Khatri vs. State of Gujarat & Anr. _,,
((2008) 8 SCC 300), this Court held:
F l
)

"6. The power of the court to interfere with an investigation )-

is limited. The police authorities, in terms of Seation 156 ~

of the Code of Criminal Procedure, exercise a statutory
power. The Code of Criminal procedure has conferred
G power on the statutory authorities to direct transfer of an
investig'ation from one Police Station to another in the
event it is found that they do not have any jurisdiction in ·
..
the matter. The Court should not interfere in the matter at
an initial stage in regard thereto. If it is found that the
H investigation has been conducted by an Investigating
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 243
[S.8. SINHA, J.)
-it-..:

Officer who did not have any-territorial jurisdiction in the ·A
matter, the same should be transferred by him to the police
station having the requisite jurisdiction.

In Dharmeshbhai Vasudevbhai & Ors. vs. State of
Gujarat & Ors. [2009 (7) SCALE 214], this Court held:
B
"9. Interference in the exercise of the statutory power of
_.""' investigation by the Police by the Magistrate far less
direction for withdrawal of any investigation which is sought
to be carried out is not envisaged under the. Code of
Criminal Procedure. The Magistrate's power in this regard c
is limited. Even otherwise, he does not have any inherent
power. Ordinarily, he has. no power to recall his order.

This aspect of the matter has been considered by
this Court in S.N. Sharma v. Bipen Kumar Tiwan & Ors.
•·• . [(1970) 1 sec 653], wherein the law has been stated as
D

under:

"6. Without the us~. of the expression "if he
thinks fit", the second alternative could have -
been held to be independent of the first; but E
the use of this expression, in our opinion,
makes it plain that the power conferred by the
.., second clause of this section is only an
alternative to the power given by the first
clause and can, therefore, be exercised only F
in those cases in which the first clause is
applicable.

7. It may also be further noticed that, even in
sub-section (3) of Section 156, the only G
power given to the Magistrate, who can take
., '
cognizance of an offence under Section 190, ·'

is to order an investigation; there is no
mention of any power to stop an investigation
'
. by the police. The scheme of these sections,
H
244 SUPREME COURT REPORTS [2009] 11 S.C.R.
~~ ......

A' thus, clearly is that the power of the police ~o
f
investigate any cognizable offence is
uncontrolled by the Magistrate, and it is only
in cases where the police decide not to
investigate the case that the Magistrate can
B intervene and either direct an investigation,
or, in the alternative, himself proceed or
depute a Magistrate subordinate to him to ~

;,_
proceed, to enquire into the case. The power
of the police to investigate has been made
c independent of any control by the Magistrate."

Interpreting the aforementioned provisions vis-a-vis
the lack of inherent power in the Magistrate in terms of
Section 561-A of the Old Criminal procedure Code
(equivalent to,.Section 482 of the new Code of Criminal
D procedure), it was held : ~

. ~! -)

"10. ·This interpretation, to some extent,
supports the view that the scheme of the
Cri9':1inal Procedure Code is that the power
E offhe police to~investigate a cognizable
offence is not to be interfered with by the
judiciary. Their Lordships' ofthe Privy Council
were, of course, concerned only with the
powers of the High Court under Section 561- -V

F A CrPC, while we have to interpret Section
159 of the Code which defines the powers
of a Magistrate which he can exercise on
receiving a report from the police of the
cognizable offence under Section 157 of the
Code. In our opinion, Section 159 was really
G
intended to give a limited power to the
~
Magistrate to ensure that the police
investigate all cognizable offences and do
not refuse to do so by abusing the right
granted for certain limited cases of not
H
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 245
[S.B. SINHA, J.]
proceeding with the investigation of the A
offence."

Yet again in Devarapalfi Lakshminarayana Reddy & Ors.
v. V. Narayana Reddy & Ors. [(1976) 3 SCC 252], this
Court, upon comparison of the provision of the old Code 8
and the new Code, held as under :

., "7. Section 156(3) occurs in Chapter XI I,
under the caption : "Information to the Police
and their powers to investigate"; while
Section 202 is in Chapter XV which bears C
the heading: "Of complaints to Magistrates".
The power to order police investigation under
Section 156(3) is different from the power to
direct investigation conferred by Section
202(1 ). The two operate in distinct spheres D
at different stages. The first is exercisable at
the pre-cognizance stage, the second at the
post-cognizance stage when the Magistrate
is in seisin of the case. That is to say in the
case of a complaint regarding the E
commission of a cognizable offence, the
power under Section 156(3) can be invoked
by the Magistrate before he takes
cognizance of the offence under Section
190(1)(a). But if he once takes such F
cognizance and embarks upon the
procedure embodied .in Chapter XV, he is
not competent to switch back to the pre-
cog n iza nce stage and avail of Section
156(3). It may be noted further that an order G
made under sub-section (3) of Section 156,
is in the nature of a peremptory reminder or
intimation to the police to exercise their
plenary powers of investigation under
Section 156(1 ). Such an investigation
246 SUPREME COURT REPORTS [2009] 11 S.C.R.

A embraces the entire continuous process
which begins with the collection of evidence
under Section 156' and ends with a report or
charge-sheet Linder Section 173. On the
other hand, Section 202 comes in at a stage
8 when some evidence has been collected by
the Magistrate in proceedings under Chapter
XV, but the same is deemed insufficient to
take a decision as to the next step in the
prescribed procedure. In §UCh a situation, the
c Magistrate is empowere~nder Section 202
to direct, within the limits circumscribed by
that section an investigation "for-the purpose
of deciding whether or not there is sufficient
ground for proceeding". Thus the object of an
investigation under Section. 202 is not to
D
initiate a fresh case on police report but to
4
assist the Magi~trate in ,completing -)
proceedings already instituted upon a
complaint before him."

E We are, however, not oblivious of the fact that recently a
Division Bench ofthis Court in Sakiri Vasu vs. State of Uttar
Pradesh & Ors. [(2008) 2 SCC 409) while dealing with the
power of the court to direct the police officer to record an FIR
in exerCise of power under Section 156(3) of the Code
F observed that the Magistrate had also a duty to see that the
investigation is carried out in a fair manner (correctness whereof
is open to question).

10. An order of further investigation can be made at
G various stages including the stage of the trial, that is, after taking
cognizance of the offence.

Although some decisions have been referred to us, we ::.
need not dilate thereupon as the matter has recently been
considered by a Division Bench bf this Court in Mithabhai
H Pashabhai Patel & Ors. vs. State of Gujarat [2009 (7) SCALE
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 247
[S.B. SINHA, J.]
559] in the following. terms: A

"16. This Court while passing the order in exercise of its
jurisdiction under Article 32 of Constitution of India did not
direct re-investigation. This court exercised its jurisdiction
which was within the realm of the Code .. Indisputably the
B
investigating agency in terms of sub-section (8) of Section
173 of the Code can pray before the Court and may be
granted permission to investigate into the matter further.
There are, however, certain situations, where such a formal
request may not be insisted upon.
c
17. It is, however, beyond any cavil that 'further
investigation' and 're-investigation' stand on different
footing. It may be that in. a given situation a superior court
in exercise of its constitutional power, namely under
Articles 226 and ~2 of the Constitution of India could direct D
> a 'State' to get an offence investigated and/or further
investigated by a different agency. Direction of a re-
investigation, however, being forbidden in law, no superior
court would ordinarily issue such a direction.
E
Pasayat, J. in Ramachandran v. R Udhayakumar,
[(2008) 5 sec 413], opined as under :-

"7. At this juncture it would be necessary to
take note of Section 173 of the Code. From
a plain reading of the above section it is F
evident that even after completion of
investigation under sub-section (2) of Section
173 of the Code, the police has right to
further investigate under sub-section (8), but
not fresh investigation or reinvestigation ... " G

11. We have referred to the aforementioned decision only
. because Mr. Tulsi contends that in effect and substance the
prayer of the appellant before the learned Magistrate was for
reinvestigation but the learned Magistrate had directed further H
248 SUPREME COURT REPORTS [2009] 11 S.C.R.

A investigation by the Investigating Officer inadvertently. '"-',.-

The Investigating Officer may exercise his statutory power
of further investigation in several situations as, for example,
when new facts come to its notice; when certain aspects of the
matter had not been considered by it and it found that further
B
investigation is necessary to be carried out from a different
angle(s) keeping in view the fact that new or further materials
came to its notice. Apart from the aforementioned grounds, the l"'

learned Magistrate or the Superior Courts can direct further :k ~

investigation, if the investigation is found to be tainted and/or
c otherwise unfair or is otherwise necessary in the ends of
justice.

12. The question, however: is as to whether in a case of
this nature a direction for further investigation would be
D necessary.
<(

Mr. Dhayalan, Inspector of Police, Crime Branch CID, -)

r Metro Wing, Chennai_ in his counter affidavit inter alia brought

to this Court's notice that the matter was investigated by '(1) Tr.
S. Saravana Brabu, Inspector of Police, Chennai CCB,- (2) Tr.
E
Salathraj, Assistant Commissioner of Police, CCB Chennai (3)
Tr. S. Veiladurai, Assistant Commissioner of Police, .Job
Rocket and Video Piracy, Chennai City, (4) Tr. C. Edward,
Inspector of Police, CCB, Chennai and (5) Tr. K.G. Rajakumar,
Assistant Commissioner of Police, CCB, Egmore, Chennai -~
F apart from him.

We have noticed hereinbefore that the investigation was
transferred to CBCID by an order dated 29th March 2007
passedby the DGP, Tamil Nadu. The matter, thus, has been
G investigated by two specialized agencies. The deponent of the
cpunter affidavit categorically stated that he had made a
thorough investigation and upon consideration of the materials ,,,. I
g·athered during inv~stigation identified that there was no
connection between the money of the de facto complainant and
H Accused Nos.-3 to 10 and hence the final form was filed in their
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 249
[S.B. SINHA, J.]
'-.,:- favour. It was pointed out that the compla!nant had filed the A
aforementioned application under Section 173(8) of the Code
principally on the premise that no investigation had been carried
out in respect of three documents being (1) The additional
grounds raised in the anticipatory bail application, (2) The plaint
filed by Accused No.2 in the Civil Suit filed by him and (3) the B
letter written by Mahaveer Surana, the authorized signatory of
Surana Corporation Ltd., to the Chief Minister's cell.
"'
.i· It was furthermore pointed out:

"(b) The second accused came forward with improbable c
stories for him to escape from prosecL1tion. The version
of the accused in his anticipatory bail application is without
any material to support the same and was not believed.
Similarly, the version of A2 in the suit filed by him was also
not believed as it was not borne out by any documentary D
•·+
evidence. Similarly, the letterwritten by Mahaveer Surana
to the Chief Minister's Cell is also a document intended
to save A-1 and A-2 from the crime and hence not to be
believed. The version of the de facto complainant, the
petitioner herein and also of A-2 1to establish the E
connection between the money paid by the de facto
complainant to A-2 with A-3 to A-10 is not borne out by
any documentary evidence. Hence, the case against A-3
to A-10 were dropped. All the three documents are that of
-$
the accused. The documents cannot be proved through F
accused. No accused can be compelled to be a witness
against himself. The documents could be hit by under
Article 20(3) of the Constitution of India."

The investigating officer was of the opinion that the amount
of R~.4.65 crores was given to Accused No.2 for both trading G
in gold
.... and silver on the basis of orally agreed terms. Accused
No. 2 was introduced by Accused No.1. Accused No.2 had
given the said amount on 18th November 2005 to M/s Vinayaga
Vyapar Limited on various dates on its own risks and on the
basis whereof M/s Vinayaga Vy~par Ltd. entered transactions H
250 SUPREME COURT REPORTS [2009] 11 S.C.R.

A with M/s Surana Corporation Ltd. on 17th November 2005 and ':,,-- r

all payments had been made through cheques only. Upon giving
the details, the Investigating Officer had come to the following
conclusion:

"These transactions were for speculative trading only. It is
B
stated in the FIR filed by the petitioner that the transaction
betWeen the petitioner and the A-2 Dharmendra Bafna are
independent transaction between themselves and no third ..,.
party was involved. The petitioner did not make any J_

agreement or contract with the A-2 Dharmendra Bafna for
c doing gold bullion forward trade business and failed to
obtain the trade ..order, trade execution order and trade
confirmation·order from the A-2 Dharmendra Bafna and
did not deal in cheque transactions. The petitioner has
given Rs.4.65 crores by cash and entered upon a shady
D transaction with the A4 Dharmendra Bafna."
<I
In regard to the statements made by the accused in their ~

application for anticipatory bail with regard to account with M/
s MEGHA GG, it has been contended that the same cannot be
E construed to be an admiss.ion on the part of the Accused Nos.
3 to 10 especially when the petition had not been signed by
any of the accused and all the documentary evidence and
t-
material gathered during the investigation were to the contrary.
The said Shri Dhayalan had also stated in great details as to
F why Accused Nos. 3 to 10 were dropped. He had also taken
into consideration the dealings by and between the parties·inter
se as also the litigations filed by them against each other, It is
-~

-
neither necessary nor desirable to notice the statements made
therein by us as we are concerned with a question of law.
G 13. It is correct that the revisional court should not interfere
with the discretionary jurisdiction exercised by the learned
Magistrate unless a jurisdictional error or an error of law is
noticed.

H We have noticed hereinbefore the order passed by the
KISHAN LAL v. DHARMENDRA BAFNA & ANR. 251
[S.8. SINHA, J.]

-,,- learned Magistrate .. His order that ."several kinds of issues were A
.....,.
I
not disclosed and beyond from knots of doubts" is vague in
nature. It has not been pointed out that' in what respect the
"""' investigation has-not been carried out. What are hidden truths
required to be unearthed had also not been pointed out. The
learned Magistrate did not consider the fact that the B
investigation had been carried out by two different agencies
and by responsible police officers. It has not been found that
~ the Investigating Officer was in any way biased towards the
--" complainant. Furthermore, if the contention of Mr. Tulsi is
correct, the question as to whether Accused Nos. 3 to 10 were G
involved in the matter could be pointed out from the materials
which had already been brought on record. Furthermore,
whether the admissions made in the application for anticipatory,
bail were binding on them, the same being a matter of inference
can also be urged. The other and further remedies as pointed D
out can be resorted to as also invocation of the provisions of
. Section 319 of the Code at the stage of trial is also permissible
~
.in law, if an appropriate case is made out therefor. We
furthermore clarify that any observations made by the High Court
or by us should not prejudice the either party and the learned
Magistrate should consider the matter on its own merit and
E.
without in any way being influenced by the same, if any occasion
arises in this behalf in future.

14. For the reasons aforementioned, we do not find any
~-
merit in this appeal. The appeal is dismissed accordingly. F

K.K.T. Appeal dismissed.

(