Allahabad High Court
Vipin @ Singham Yadav vs State Of U.P. Thru Prin. Secy. Home ... on 28 May, 2020
Bench: Anil Kumar, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In Chamber Case :- MISC. BENCH No. - 8174 of 2020 Petitioner :- Vipin @ Singham Yadav Respondent :- State Of U.P. Thru Prin. Secy. Home Deptt. & Ors. Counsel for Petitioner :- Amol Kumar Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Manish Mathur,J.
1. Heard Sri Amol Kumar, learned counsel for the petitioner and Sri S.P. Singh, learned Additional Government Advocate.
2. The facts in brief as submitted by learned counsel for the petitioner are to the effect that a first information report dated 08.02.2020 has been lodged by opposite party no.4 bearing FIR/Case Crime no.0121 of 2020 under Sections 147, 148, 149, 323, 307, 354, 504, 506, 394, 452 I.P.C. at Police Station Madiyaon, District Lucknow. It is further submitted by learned counsel for petitioner that the said FIR had been challenged by petitioner earlier by filing Writ Petition No.4954(M/B) of 2020 in which the following order was passed on 20.02.2020:
"Heard learned counsel for the petitioner and learned A.G.A. for respondents No. 1 to 3.
Issue notice to respondent No.4.
By means of the present writ petition the petitioner has prayed for following main relief:-
"issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned First Informaiton Report dated 08.02.2020 having F.I.R No.0121/2020. U?S 147, 148, 149, 323, 307, 354, 504, 506, 394, 452 I.P.C, at Police Station-Madiyaon, District- Lucknow, annexed as Annexure No. 1 respectively."
Learned counsel for the petitioner submits that petitioner is innocent and has been falsely implicated in this case. Learned counsel further submits that no specific role has been assigned to the petitioner; he was not present at the place of occurrence. It is further submitted that the petitioner is student of B.A.(Hons), second year, hence the false implication of the petitioner in the instant case will ruin his entire career. Learned counsel further submits that the impugned F.I.R. has been lodged only to harass the petitioner with ulterior motive.
After hearing learned counsel for the parties and going through the record as well, as an interim measure, we provide that till the next date of listing or till the filing of police report, whichever is earlier, petitioner shall not be arrested in pursuance of the impugned F.I.R. However, the petitioner shall cooperate in the investigation and also in recovery of arms used in crime, if any.
Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter."
3. Learned counsel for the petitioner further submits that thereafter the investigation in question is being conducted by Station House Officer, P.S. Madiyaon, District Lucknow opposite party no.3. It is further submitted by learned counsel for the petitioner that under the garb and influence of the complainant, opposite party no.3 is not conducting the investigation in a fair and proper manner, rather the investigation being conducted by him is merely an eyewash only in order to implicate the petitioner in the matter in question. In this regard reliance has been placed by learned counsel for the petitioner upon the averments made in paragraphs 5 and 6 of the petition, which reads as under :
"5. That the police with ulterior motive is trying to indict the petitioner in the aforesaid Case Crime Number, without any iota of evidence against the petitioner and the said act of the police party/opposite parties would jeopardize the carrier of the petitioner and his future prospects which cannot be compensated afterwards.
6. That the police under the dictator of the complainant, who has personal vengeance and vendetta against the Petitioner, has been trying his level best to implicate the petitioner in the said F.I.R. and to bloat the future prospectus of the petitioner which otherwise seems to bright and prosperous."
4. Sri Amol Kumar, learned counsel for the petitioner further submits that aggrieved by the improper and biased investigation being conducted by opposite party no.3, father of the petitioner has submitted a representation to the Commissioner of Police, Lucknow, opposite party no.2, a copy of which is annexed as Annexure-2 to the writ petition.
5. In support of his submission, learned counsel for the petitioner has placed reliance upon the decisions of Hon'ble the Supreme Court in Babubhai v. State of Gujarat and others reported in (2010) 12 SCC 254. The relevant paragraphs 32 to 34 relied upon by learned counsel for the petitioner reads as under:-
"32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] , Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774 : 1974 SCC (Cri) 250 : AIR 1974 SC 1822] , SCC at p. 780, para 11 and Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] )"
"33. In State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] this Court has held as under: (SCC pp. 263-65, paras 57, 59-61) "57. ... Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.
***
59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. ...
60. ... The word personal liberty [under Article 21 of the Constitution] is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily....
61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."
"34. In Navinchandra N. Majithia v. State of Meghalaya [(2000) 8 SCC 323 : 2000 SCC (Cri) 1510 : AIR 2000 SC 3275] this Court considered a large number of its earlier judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. CrPC does not recognise a private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by the Public Prosecutor in any criminal trial. Therefore, this Court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: (SCC p. 329, paras 17-18) "17. The above discussion was made for emphasizing the need for official investigation to be totally extricated from any extraneous influence. ... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.
18. ... A vitiated investigation is the precursor for miscarriage of criminal justice."
(emphasis added)"
6. Learned counsel for the petitioner further submits that in paragraph 42 and 45 of the said decision Babubhai(supra), it has been held as under:
"42. Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances."
"45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation."
7. Learned counsel for the petitioner has also relied upon another decision of Hon'ble the Supreme Court, namely, Dharam Pal v. State of Haryana and others reported in (2016) 4 SCC 160. Paragraph 25 relied upon by learned counsel for the petitioner reads as under:-
"25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "idée fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbour the feeling that he is an "orphan under law"."
8. Accordingly it is requested by learned counsel for the petitioner that the Commissioner of Police, Lucknow, opposite party no.2 may be directed to decide the application/representation made by father of petitioner, contained in Annexure no.2 to the Writ Petition within the time frame as fixed by this Court and till then no report whatsoever be submitted in the matter by the Investigating Officer/Station House Officer, Police Station Madiyaon, District Lucknow, opposite party no.3.
9. Per contra, Sri S.P. Singh, learned Additional Government Advocate while opposing the prayer made on behalf of the petitioner submits that in the present case the allegation made by the petitioner against opposite party no.3 that he will not conduct fair and proper investigation is not correct as there is no proper pleadings in this regard in the petition, rather the pleading on which reliance has been placed by learned counsel for petitioner is bald in nature on the basis of which the submission as made by learned counsel for the petitioner that investigation is not being done by opposite party no.3 in a fair and proper manner is not made out. To elaborate the above submission, learned Additional Government Advocate further submits that in order to prove that fair investigation has not been done by the Investigating Officer, clear cut averments with respect to malice on part of the Investigating Officer are to be made and in the present case the said pleadings do not exist. In support of his submission, learned Additional Government Advocate has relied upon the decision of Hon'ble the Supreme Court in Cenral Bureau of Investigation and another v. Rajesh Gandhi and another reported in (1996) 11 SCC 253:1997 CRl. L.J. 63. Paragraph 8 relied upon by learned Additional Government Advocate reads as under:-
"8. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. The notification dated 2-6-1994 is issued by the Government of Bihar (Police Department) by which in exercise of powers under Section 6 of the Delhi Special Police Establishment Act, 1946, Governor of Bihar was pleased to consent and extend the power and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar in connection with investigation of the concerned Police Station case No. 159 of 9-3-1993 in the District of Dhanbad, under Sections 457, 436, 427, 201 and 120-B, Penal Code, 1860 and conspiracy arising out of the same and any other offence committed in course of the same. The notification of 26-10-1994 is issued by the Government of India, Ministry of Personnel in exercise of the powers conferred by sub-section (1) of Section 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946 whereby the Central Government with the consent of the State Government of Bihar in their notification dated 2-6-1994 extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Bihar for investigation of offences under Sections 457, 436, 427/120-B and 201 IPC and Section 4 of the Prevention of Damage to Public Property Act, 1984 registered at Dhanbad Police Station, Dhansar, Bihar in their case No. 159 dated 9-3-1993 and any other offences, attempts, abetment and conspiracy in relation to or in connection with the said offence committed in the course of the same transactions or arising out of the same fact or facts in relation to the said case. There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the CBI has been directed to further investigate the offences registered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) of the CrPC 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate."
10. Accordingly, it is submitted by learned Additional Government Advocate that the petition is liable to be dismissed.
11. We have heard learned counsel for the parties and gone through the record as well as the judgments relied upon by learned counsel for the parties.
12. As per the law laid down by Hon'ble the Supreme Court in Dharam Pal(supra), it is the bounden duty of the Court to see that in a criminal investigation a real and fair investigation is conducted and not an investigation that reveals itself as a sham one.
13. Further it has been held by Hon'ble the Supreme Court in Dharam Pal(supra) that it is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it?
14. So far as the decision in Cenral Bureau of Investigation and another v. Rajesh Gandhi and another(supra), it has been held by Hon'ble the Supreme Court that during the investigation by the concerned authority in a case, principles of natural justice does not attract, the said position/point is under consideration in the present case.
15. Thus, in view of the above said facts, the position of law emerges out is that in exceptional circumstances, the Court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for de novo trial or direct the authority concerned to consider the matter and see that fair trial/investigation may be done, that is also in consonance with the Constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Further, a mandatory duty is cast upon the higher police authorities of the district to see that the investigation must be fair, transparent and judicious and the investigating agency/investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner.
16. Accordingly, we dispose of the writ petition finally with a direction to the petitioner to make a fresh representation to Commissioner of Police, Lucknow, opposite party no.2 within a period of ten days from today raising the grievance made in the present writ petition. The Commissioner of Police Lucknow shall consider and decide the same on merits within a further period of four weeks by means of a speaking and reasoned order. For a period of six weeks or till the decision is taken by opposite party no.2 in view of the observations made hereinabove, whichever is earlier, the Investigating Officer/Station House Officer, Police Station Madiyaon, District Lucknow, opposite party no.3, shall conduct the investigation but no final report shall be filed by him in FIR/Case Crime no.0121 of 2020 under Sections 147, 148, 149, 323, 307, 354, 504, 506, 394, 452 I.P.C., Police Station Madiyaon, District Lucknow. However, the same shall be subject to further decision taken by the Commissioner of Police, Lucknow, opposite party no.2. Till the decision is taken by the Commissioner of Police, Lucknow in the matter, no coercive measure shall be taken against the petitioner.
Order Date :- 28.5.2020 kvg/-