Allahabad High Court
Jitendra Mohan Singh vs State Of U.P.Thru.Prin.Secy.Home & ... on 16 June, 2020
Bench: Anil Kumar, Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 9 Case :- MISC. BENCH No. - 9087 of 2020 Petitioner :- Jitendra Mohan Singh Respondent :- State Of U.P.Thru.Prin.Secy.Home & Ors. Counsel for Petitioner :- Madhumita Bose Counsel for Respondent :- G.A. Hon'ble Anil Kumar,J.
Hon'ble Mrs. Sangeeta Chandra,J.
Heard Ms. Madhumita Bose, learned counsel for the petitioner, Sri S.P. Singh,learned Additional Government Advocate for opposite parties and perused the record.
Learned counsel for the petitioner submits that the petitioner while posted as Assistant Sub Inspector (Ministerial) in Special Investigation Team, U.P. Lucknow, he was assigned the duties of the examination Clerk in the Recruitment Examination of Constable, Civil Police for the year 2009-2011 which was conducted in Police Lines, Lucknow. After the said examination certain complaints were made by the candidates. Thereafter the competent authority has ordered for preliminary inquiry. The same was conducted by Inspector Vigilance and he submitted his report on 25.07.2012 giving a finding that an offence under sections 420,465,468,471,120-B I.P.C. and Section 7/13 (1) of Prevention of Corruption Act has been committed.
Learned counsel for the petitioner further submits that thereafter F.I.R. in case crime no.518 of 2013 under sections 420,465, 468,471, 120-B I.P.C. and Section 7/13 (1) of Prevention of Corruption Act, Police Station Wazirganj District Lucknow has been lodged against the petitioner. The same was challenged by filing Writ Petition No.45149MB) of 2017 (Jitendra Mohan Singh Vs. State of U.P. and others) which was dismissed by order dated 24.03.2017 which reads as under:-
"1. This petition seeks issuance of a writ in the nature of Certiorari quashing FIR in Case Crime No.518 of 2013, under Sections 420, 465, 468, 471 and 120-B IPC and Section7/13(i)d of Prevention of Anti-Corruption Act, Police Station - Wazirganj, District - Lucknow.
2. Short counter affidavit has been filed on behalf of the investigating agency in Court, which is taken on record. In the affidavit, it has been stated that before lodging of the impugned FIR, a detailed enquiry was conducted. Incriminating material has been found against the petitioner. It has elaborated in Para-7 of the short counter affidavit that the petitioner was serving as Clerk and was custodian of the documents relating to the U.P. Police Recruitment Board held in the year 2009. During the course of investigation, it was found that the candidates who have been declared unfit by the Medical Board were shown as fit by interpolating record by using whitener. It has been pointed out that co-accused of the petitioner has already been taken in custody.
3. No such material has been placed on record that can be translated into legal evidence so as to disprove the allegation made by the prosecution. Thorough investigation in the matter is required.
4. We have considered the contention of learned counsel for the petitioner(s), in context of the material/ pleadings relied on by the petitioner(s), in context of judgment rendered by Hon'ble Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. In Rajiv Thappar's case (supra), the following (relevant portion) has been held:-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to herein above, would have far reaching consequences, inasmuch as, it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:
30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (Emphasised by us) 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
5. We are of the considered opinion that the material/pleadings on which learned counsel for the petitioner(s) has relied, is not such as would rule out and displace the assertions contained in the charges/allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false.
6. Under the circumstances, we find no ground to interfere in extraordinary writ jurisdiction.
7. The petition is dismissed."
Learned counsel for the petitioner further submits that thereafter petitioner and his wife had moved and application that the documents i.e. list which is basis for lodging F.I.R. may be sent to Forensic Science Laboratory (in short ''FSL') on the ground that same is not typed out from the computer of the petitioner. However, no heed has been paid . Thereafter petitioner has made a representation on 06.01.2020 which is annexed as annexure no.4 to the writ petition and the wife of the petitioner has also made several representations which are also annexed as annexure no.4 to the writ petition. When such representations have not been considered by the authorities concerned, the present writ petition has been filed with the following main relief:-
"(i) Issue a writ, order or direction in the nature of mandamus directing the opposite party no.3 to conduct fair and and impartial investigation of Case Crime No.518 of 2013 under Sections 420,465,468,471,120-B I.P.C. and Section 7/13(1) D Prevention of Corruption Act, Police Station Wazirganj District Lucknow by conducting all the investigation which is required under law.
(ii) Issue a writ, order or direction in the nature of mandamus directing the opposite party no.2 to take decision regarding transfer of the investigation of Case Crime no.518 of 2013 under Sections 420,465,468, 471, 120-B I.P.C. and Section 7/13(1) D Prevention of Corruption Act, Police Station Wazirganj District Lucknow from the opposite party no.3 to some other Investigating Officer."
Accordingly, learned counsel for the petitioner submits that the relief as claimed by the petitioner in the instant writ petition may be granted.
Sri S.P. Singh learned Additonal Government Advocate while rebutting the contention as raised by learned counsel for the petitioner, submits that petitioner is not entitled for relief no.1 in regard to conduct fair and impartial investigation and if the petitioner has any grievance he has a remedy under the provisions as provided under Regulation 107 of the Uttar Pradesh Police Regulations which reads as under:-
" An investigating officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. In every case he must use his own expert observations of the scene of the offence and of the general circumstances to check the evidence of witnesses, and in cases in which the culprits are unknown to determine the direction in which he shall look for them. He must study the methods of local offenders who are known to the police with a view to recognizing their handiwork, and he must be on his guard against accepting the suspicions of witness and complainants when they conflict with obvious inferences from facts. He must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt up evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject." (emphasis supplied) It is expected that that Investigating Officer shall scrupulously comply with para-107 of the Police Regulations and in case the accused is dissatisfied with such evidence that is produced by the prosecution he can always impeach the same at the time of trial before the competent court, therefore no directions at this stage are required to be issued by us.
Sri S. P. Singh, learned Additional Government Advocate submits that so far as relief no.2 for transferring of the investigation is concerned, no case is made out for transferring the investigation.
We have heard learned counsel for the parties and gone through the record.
(a) So far as the first relief claimed by the petitioner in respect of conducting fair and and impartial investigation of Case Crime No.518 of 2013 under Sections 420,465,468,471,120-B I.P.C. and Section 7/13(1) D Prevention of Corruption Act, Police Station Wazirganj District Lucknow by opposite party no.3/Police Commissioner,Lucknow U.P. is concerned, on the point in issue Hon'ble the Supreme Court in the cases of Om Prakash Sharma Vs. C.B.I. Delhi reported in AIR 2000 SC 2335 has held that Summon under section 91 Cr.P.C. cannot be issued to investigating officer by the court to collect the evidence in favour of the accused on his application . In this case an application under section 91 Cr.P.C. for summoning and production of documents enumerated in the application was filed by the accused (the then DIG, CBI) but the same was rejected by the trial court as well as the High Curt . Hon'ble the Apex Court while dismissing the appeal filed by the accused-appellant has observed as under:-
"The powers conferred under Section 91 are enabling in nature aimed at arming the court or any officer in charge of a police station concerned to enforce and to ensure the production of any document or other things "necessary or desirable" for the purposes of any investigation, inquiry, trial or other proceeding under the Code, by issuing a summons or a written order to those in possession of such material.............It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] .
If at the stage of filling of charge-sheet i.e. at the pre trial stage this court interferes in the way the investigation is being conducted it would be for exceeding its writ jurisdiction in such matters.
Further, Hon'ble the Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in AIR 2005 (SC) 359 has held that evidence of defence cannot be considered at the stage of framing of charges and the charges will be framed only on the evidence led by the prosecution.
In view of said position of law as well as the facts of the present case the first relief as claimed by the petitioner cannot be granted at this stage.
(b) So far as the second relief in respect to taking of a decision by opposite party no.2 regarding transfer of the investigation of Case Crime no.518 of 2013 under Sections 420,465,468, 471, 120-B I.P.C. and Section 7/13(1) D Prevention of Corruption Act, Police Station Wazirganj District Lucknow from the opposite party no.3 to some other Investigating Officer is concerned, we feel appropriate to refer certain judgments as pronounced by Hon'ble the Apex court on the point in issued:-
In the case of State of West Bengal & Ors Vs. Sampat Lal and others, 1985(1) SCC 317, Hon'ble the Apex Court on the point in issued held as under:-
"The procedure laid down in the Code is clear and definite. It may be that in a given case the Court on being prima facie satisfied from circumstances appearing from the record that the statutory agency has not worked in an effective way or the circumstances are such that it may reasonably be presumed or inferred that the statutory agency may not be able to discharge its function of investigation fairly and impartially might reasonably consider supplementing the procedure, but as we have already indicated, there was no adequate material on the record for the learned single judge to be satisfied that the facts warranted appointment of a Special officer.
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The next aspect to be considered is whether it is open to the Court to interfere with the investigation which is still proceeding. It has been conceded before us and rightly in our view, that investigation is a matter for the police under the scheme of the Code. Judicial opinion seems to be settled and we have several authorities of this Court where interference by the Court into police investigation has not been approved. This question arose before a Division Bench of three judges in an appeal carried by the same State of West Bengal in the case of State of West Bengal Vs. S.N. Basak,[1963] 2 S.C.R. 52 Kapoor, J. quoted with approval the observations of the Judicial Committee in the case of king Emperor v. Khwaja Nazir Ahmad, [1944] L.R. 71, where the Privy Council observed:
"The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under s. 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions being when a charge is preferred before it, and not until then. It has sometimes been thought that s. 561A (now s. 482) has given increased powers to the Court which it did not possess before that section was enacted. But this is not so, the section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it , should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent powers had survived the passing of that Act."
The Court added: "With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord." on a finding that the High Court had exceeded jurisdiction in interfering with the investigation, the appeal of the State of West Bengal was allowed.
The question again arose in the case of s.N. Sharma v. Bipin Kumar Tiwari & Ors. [1970] 3 S.C.R. 946 on this occasion the Court was called upon to examine the scope of magisterial power. After referring to the relevant sections, the Court concluded that:
"The scheme of these sections, thus, clearly is that the power of the police to 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 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 independent of any control by the Magistrate."
Then came the case of State of Bihar v. J.A.C. Saldanha & ors. [1980] 2 S.C.R. 1 6 In a peculiar set of fact this Court was again called upon to adjudacte upon the scope of judicial interference over investigation. Speaking on this aspect of the matter, Desai,J. spoke for the Division Bench thus:
"There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under s. 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in s. 173 (8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to. law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in field or crime detection and its subsequent adjucation between the police and the Magistrate."
The observation of the Privy Council which we have already extracted were again quoted with approval, Desai, J. adding:
"This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not be interfered with by the judiciary."
In the case of Disha Vs. State of Gujarat & Ors.2011 (13) SCC 337, Hon'ble the Apex Court on the point in issue observed in paras 12 to 16 as under:-
12. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits in accordance with law.
(See : Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661).
13. Relying on the observations in Union of India v. Sushil Kumar Modi (supra), this Court in Rajiv Ranjan Singh '' Lalan' (VII) v. Union of India,(2006) 6 SCC 613, reiterated that the Court does not have the power to direct the CBI to investigate a matter after the chargesheet was filed.
14. The above three cases i.e. of Vineet Narain, Sushil Kumar Modi and Rajiv Rajan Singh were differentiated in a recent judgment by this Court in Rubabbuddin Sheikh v. State of Gujarat & Ors., AIR 2010 SC 3175, wherein this Court held:-
"Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI."
15 In Ashok Kumar Todi v. Kishwar Jahan & Ors., (2011) 3 SCC 758, this Court dealt with a case in which Kishwar Jahan, mother of the deceased Rizwanur Rahman approached the High Court to transfer the investigation of his death from local police to CBI expressing her apprehension that State police would not conduct investigation fairly because her son had contracted inter-religion marriage with the daughter of a very affluent and influential businessman, who had very close relationship with high police officials. She produced sufficient material to establish the nexus between the main accused and top police officials. This court considering the reasonable apprehension in her mind about fair investigation by the State CID, directed CBI to investigate the cause of death of Rizwanur Rahman. (See also: and Narmada Bai v. State of Gujarat, JT 2011 (4) SC 279).
16. Thus, it is evident that this Court has transferred the matter to CBI or any other special agency only when the Court was satisfied that the accused had been very powerful and influential person or State authorities like high police officials were involved and the investigation had not proceeded with in proper direction or it had been biased. In such a case, in order to do complete justice and having belief that it would lend the final outcome of the investigation credibility, such directions have been issued."
Thus in view of above said observations made by Apex Court we are of the considered opinion that the second relief as claimed by the petitioner on the basis of record, cannot be granted.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
(Sangeeta Chandra,J.) (Anil Kumar,J.) Order Date :- 16.6.2020 dk/