Punjab-Haryana High Court
Major Gurjinder Singh Benipal vs State Of Punjab And Others on 15 October, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.37077 OF 2009 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: OCTOBER 15,,2012
Major Gurjinder Singh Benipal
.....Petitioner
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Anupam Gupta, Sr.Advocate with
Ms. Shruti Gupta, Advocate,
for the petitioner.
Mr. A. S. Jattana, Addl.A.G., Punjab,
for the State.
Mr. Baldev Singh, Sr.Advocate with
Mr. Deepinder Singh, Advocate,
for the accused.
****
RANJIT SINGH, J.
Rule of law is supreme. Law has to prevail at any cost. The prime responsibility to see that rule of law prevails may be that of the State and the State machinery but the violation thereof, if ever noticed, when some bigwigs are involved where the State may be seen faulting in performance of its duties, the Courts have to step in to ensure that the law prevails. An over-riding duty of the Courts has CRIMINAL MISC. M NO.37077 OF 2009 :{ 2 }:
always been to ensure administration of justice. This is to maintain public confidence of people at large in the rule of law and justice and to uphold the majesty of law. When some complaint is made of any indifferent action or lethargy against the might of administration and where the State machinery fails to protect citizens lives, liberty and property or where investigation is conducted to help the highly placed accused persons, it would be but natural for the Courts to step in to prevent this undue miscarriage of justice. Doing justice is the paramount duty of the Courts and the same can not be abrogated, diluted or diverted by permitting manipulative investigation to leave the accused of the hook by some crook methods.' The Courts have then to ensure that the authority of the State is not misused in this manner to shield men of might. The Courts have to do so to maintain the trust of the society in the rule of law and majesty of law, otherwise justice delivery system would suffer a serious scar, rendering the Courts almost negatory.
The above observations are not mere rehotics but a genuine feel and concern of the law and the law Courts for which these exist. This may not normally arise in routine rut of the mill cases but presently are very often before the Court when some influential people use their power and might to taint and interfere with the course of investigation, to which the investigating machinery often buckles down. The case in hand is such, where a public servant beaten black and blue while performing his duties in the office, has come crying before the Court to complain that illegal efforts are being made to save the main accused named by him for CRIMINAL MISC. M NO.37077 OF 2009 :{ 3 }:
this murderous assault and that too for performing his duties diligently and not succumbing to the pressure to waiver and extend undue favours to those in power.
Major Gurjinder Singh Benipal, an ex-serviceman, as his name would obviously indicate, and now serving as Tehsildar at Ludhiana, the place famous for land sharks on prowl, has lodged an FIR on 19.6.2009, alleging that while present in his office and performing his duties as Sub Registrar in the Revenue Department, was attacked at 10.45 A.M. by Kamaljit Singh Karwal and Simarjit Singh alongwith their henchmen, who came to his place of work armed with dangs, iron rods, kirpans, knives and hockey sticks. These two persons leading the crowd of attackers, namely, Kamaljit Singh Karwal and Simarjit Singh were the elected Councillors of the City Corporation, controlling Ludhiana. Allegation is that Kamaljit Singh Karwal raised a lalkara and at his instigation, all the persons started giving blows to petitioner with their respective weapons. Surinder Singh son of Malkiat Singh allegedly attacked at the neck/throat of the petitioner. He was dragged out of his place, where Kamaljit Singh Karwal fired from his pistol. Harbans Singh @ Raju allegedly gave rod blow on the right leg of the petitioner. He fell down on the ground and lied motionless. Assailants thought that perhaps he has died due to bullet injury and they apparently retreated from the place, taking him as dead. While leaving the place, they took away licenced .32 bore revolver of the petitioner with six live cartridges loaded therein, his purse, his gold chain weighing 4 tolas and Longiness Swiss watch. FIR No.113 was lodged on 19.6.2009.
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This occurrence was witnessed by one Mr.Chetan Khanna, who was serving as Registration Clerk and Mr.Paramjit Singh. The offences added in the FIR are under Sections 186, 353, 332, 333, 307, 394, 148, 149, 120-B IPC and 25/27/55/59 of the Arms Act.
The petitioner has also narrated the background and cause of this incident. He has made a mention to the previous threats which were advanced to him by Kamaljit Singh Karwal and Simarjit Singh, both Councillors. The petitioner on his part had been bringing all these incidents of previous threats advanced to him to the notice of higher authorities, namely, the Deputy Commissioner and others. He had earlier also prayed for taking action against them.
The petitioner had assumed charge of his office at Ludhiana on 20.11.2008. He states that while taking charge, he had performed Ardas at Gurudwara, where Kamaljit Singh Karwal came accompanied by 20 to 30 persons and complained of he having not been invited to the Ardas. The petitioner was told that he will not be allowed to function in this manner. Promptly, the petitioner wrote to Deputy Commissioner, copy of which is on record of this petition.
The grievance continues. On 20.1.2009, another officer was deputed in place of the petitioner to perform the duties, he being on leave. Some persons approached the office of Sub Registrar with some power of attorney, which had been wrongly written and was not as per the Government instructions. The officer, who was performing the duties of Tehsildar, therefore, did not register the document. Promptly, he received threat on telephone from Simarjit Singh Bains commanding him to register the document. The petitioner on being CRIMINAL MISC. M NO.37077 OF 2009 :{ 5 }:
apprised of the same, wrote to Deputy Commissioner on 20.1.2009. This letter is also placed on record.
On 5.3.2009, the petitioner had to complain again against Simarjit Singh Bains, who had used abusive language while telling the petitioner to feed Vasika of one Vijay Kumar in residential category despite the fact that it could only be in commercial category. Simarjit Singh Bains gave filthy abuses to the Registration Clerk, Mr.Chetan Khanna, which the petitioner brought to the notice of the Deputy Commissioner. Simarjit Singh Bains, thus, was seen interfering in the official work and was habitual in interfering to put pressure on the Government officials asking them to do his work, ignoring the instructions. The refusal always met with insulting onslaught to the Government employees, while they were discharging their official duties. This act of highhandedness and misuse of status and illegal activities were also duly brought to the notice of the Deputy Commissioner on 5.3.2009.
On 22.5.2009, similar application containing complaint of abuses and insults, threats and interference in the official working was addressed by the petitioner against Kamaljit Singh Karwal. The petitioner prayed for strict action against these persons, who were causing serious dent and damage to the image of the public officers. The petitioner also forwarded the copy of this letter to the President of the Tehsildars Association, Punjab, with a request to lodge a criminal case against the miscreants. These letters form part of the challan, which ultimately was presented by the police after due investigation of the case done by Special Investigation Team (SIT).
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The petitioner accordingly would complain that if the Deputy Commissioner had taken some timely action, this unfortunate incident of serious assault on the life of public servant may have been averted. The petitioner is right in perceiving that because of the influence and political clout enjoyed by Mr.Kamaljit Singh Karwal and Mr.Simarjit Singh Bains, the Deputy Commissioner either was reluctant or was scared of taking action against these influential persons. As per the petitioner, he has suffered this assault on his life as he could muster courage as concancious citizen and honest officer and decided to stand against this hooliganism and thereby refusing to accept the illegal demands of these influential persons despite threat and coercion. As per the petitioner, these powerful personalities perhaps were not accustomed to this treatment and out of sheer frustration, they led the crowd of their henchmen and attacked the petitioner in broad day light, while he was amidst discharging his official duties and, thus, made an attempt on his life to teach a lesson to all Government and public officers to take it as an example. As per the petitioner, these persons still could have managed to save themselves but for the media pressure that came to be built in reporting this incident which put the party ruling the State under tremendous pressure and it was forced to take action to register the FIR. Even a Special Investigation Team (SIT) was constituted by Inspector General of Police, Jalandhar Zone, Jalandhar, headed by Paramvir Singh Parmar, Superintendent of Police (Detective), Jalandhar, with Sandeep Kumar Sharma, D.S.P., Phillaur and Parampal Singh, D.S.P. (Rural), Ludhiana, being two CRIMINAL MISC. M NO.37077 OF 2009 :{ 7 }:
Members. After investigation, the SIT submitted a report, which is annexed with the petition. These senior officers have found the allegations made by the petitioner and the eye witnesses to be correct and have accordingly recommended action against the accused named in the FIR. Final report under Section 173 Cr.P.C was submitted before the Court, copy of which is also placed on record. Mr.Paramjit Singh son of Gurbax Singh and Mr.Chetan Khanna have made the statements as they had witnessed the occurrence. A supplementary statement of the petitioner was also recorded. A weapon snatched during attack was also recovered from the accused persons. Even one Jasbir Singh, Lambardar, has recorded his statement as he had witnessed the entire occurrence. He had come forward to make the statement, saying that his internal soul had compelled him to disclose the entire occurrence despite the might and power of the influential accused involved in this case.
The petitioner would also refer to the earlier incident where Mr.Simarjit Singh Bains had been accused of threatening the Government employees and different FIRs in regard to these incidents had been registered against him like FIR Nos.195 of 2001, 343 of 2003, 191 of 2003, 99 of 2004 and 24 of 2007. Two other FIR Nos.25 of 2009 and 85 of 2009 have been registered against Kamaljit Singh Kanwar. It is accordingly urged that these accused are habitual in advancing threat to the Government employees and that is how they had taken on the petitioner as he was not listening to and obeying their commands to do the illegal acts.
So far as the present FIR is concerned, 31 persons CRIMINAL MISC. M NO.37077 OF 2009 :{ 8 }:
names had been mentioned in Column No.2. The accused mentioned in column No.2 have been absconding and proceedings to declare them proclaimed offenders were pending. As per the petitioner, initially due to media pressure and other pressures on account of public opinion, the action was taken against these accused persons. As the incident starting fading from the memory of public, the State machinery is now acting to protect these persons, who yield enormous influence. It is revealed during the arguments that Mr.Simarjit Singh Bains since has been elected as Member of the Legislative Assembly, which he contested as an independent candidate even when the ruling party denied him ticket. The fact that he would have influence over the hierarchy in the State Government, thus, would appear to be real. He has reportedly rejoined the ruling party.
Despite presenting challan after completion of investigation, now the matter is sought to be probed again by constituting another SIT, which has forced the petitioner to approach this Court alleging that aim is nothing but to exonerate some influential persons named by the petitioner, who are in fact the kingpins in the entire episode and were mainly responsible in making the murderous assault on the petitioner. The petitioner is seen obliquely making a grievance against the manner in which the Courts at Ludhiana have handled this case. The petitioner pleads that the offences are exclusively triable by Court of Sessions but still the case was not committed to the Sessions Courts despite eight hearings. Efforts apparently are being made by the accused persons CRIMINAL MISC. M NO.37077 OF 2009 :{ 9 }:
to delay the proceedings by moving various applications. The investigation agency in this case apparently is not acting independently and rather is in connivance with accused persons. This fact may not be visible otherwise, but certainly can be perceived, says the counsel.
The naked display of this influence has now surfaced. Though the investigation in this case was conducted by Special Investigation Team as was constituted, but S.H.O., Police Station Sadar, Ludhiana, chose to file an application for carrying out further investigation into the case. Notice of this application was given to the petitioner, who filed reply. When the case was taken up after filing of reply, the prosecution chose to file another application to withdraw the application filed for further investigation. The permission to withdraw the application was granted. As per the petitioner, this was nothing but another mode to help the accused persons. The petitioner would contend that this application was so withdrawn, apprehending that the permission was likely to be declined. Thereafter, the Assistant Public Prosecutor moved another application informing the trial Court that further investigation is being conducted in this case by new Special Investigation Team (SIT). The petitioner would term this as a method invented to help the main accused. The prosecution and the investigating agency first withdrew the application filed for seeking permission to carry out further investigation but thereafter took courage to inform the Court of doing the same act by constituting a Special Investigation Team. The aim, according to the petitioner, is that once the case is committed to the CRIMINAL MISC. M NO.37077 OF 2009 :{ 10 }:
Court of Sessions, the trial will start and in that event the police will be rendered helpless to save these influential accused persons and accordingly it has not permitted the Court to commit the case by adopting one method or the other and has not even allowed the court to proceed ahead with declaring the persons abstaining from trial as proclaimed offenders. The proclamations under Section 82 Cr.P.C were issued, which were received unexecuted but the trial Court decided to issue fresh proclamation on filing of list of properties of accused.
The petitioner did not have to wait much to see his apprehension coming true. The Special Investigating Team, which was constituted statedly to carry out further investigation but was seen primarily to help out the accused persons, says the petitioner, when members of SIT threatened one of the eye-witnesses after summoning him. The eye witness was told to withdraw his earlier statement. Mr.Paramjit Singh, one of the eye witnesses was told by the Reader of the Superintendent of Police to sign on blank papers after bolting the door where he was called. He was told that they would separately deal with the petitioner but who is going to save him i.e. the witness, who perhaps was made to sign on some blank papers, which have been used to help the accused persons. This eye witness has written a letter in this regard to the Director General of Police as well as Chief Justice of this Court, which the petitioner has annexed with the record of this petition. The petitioner, accordingly, would allege that the so called further investigation, which is nothing but a farce and is being conducted to re-investigate the case afresh by this newly constituted SIT. It is just an eye wash and is constituted with the CRIMINAL MISC. M NO.37077 OF 2009 :{ 11 }:
sole purpose of relieving the influential accused of the allegations made against them, which have been fully found established that too after due investigation by specially constituted Investigation Team earlier consisting of an Officer of the rank of Superintendent of Police. As per the petitioner, even the senior police officers have expressed their helplessness before the political masters, who are bent upon to save these influential accused persons. It is on these counts that the petitioner had decided to make the present approach before this Court through a petition under Section 482 Cr.P.C. and prays for issuing direction, to stop this fresh and further investigation, especially so when earlier challan has been presented. As an interim measure, the petitioner had prayed for staying this reinvestigation being conducted in this case. This Court took cognizance of the pleas raised by the petitioner and while issuing notice stayed the action of the respondents to submit supplementary report (challan) till further orders.
The apprehension expressed by the petitioner would sound well founded as can be seen from the reply filed in this case by Superintendent of Police, City Ludhiana on behalf of the respondent. Superintendent of Police has chosen to file a short reply with liberty to file a further reply if so needed. Senior Superintendent of Police has prayed for dismissal of this petition on the ground that the petitioner had filed the same with wrong version and facts. Superintendent of Police has accused the petitioner of levelling false allegations against the local police just to create bias in the mind of this court with an aim to take undue advantage. He, however, would CRIMINAL MISC. M NO.37077 OF 2009 :{ 12 }:
concede that the FIR was immediately and promptly recorded in this case on the statement made by the petitioner which reveals ingredients of various offences as mentioned in the FIR. The investigation of the FIR was done by a SIT where statements of two eye witnesses were got recorded under Section 164 Cr.P.C. It is conceded that recovery in this case has been effected and Mr.Simarjit Singh Bains and Mr.Kanwaljit Singh Karwal who are the influential accused as so branded by the petitioner and were arrested. The proclaimed offender proceedings were initiated against the remaining accused, who were evading arrest.
The Superintendent of Police in his reply has given the reason for which the new SIT had to be constituted in this case. As is disclosed, after submission of the report under Section 173 Cr.P.C., an application was received by ADGP Crime pointing out 8 points with a direction to conduct further investigation into the matter. Consequent thereto, new SIT has been constituted for further investigation on these 8 points by ADGP Crime which is statedly in progress. As per the Superintendent of Police, this investigation is being conducted in an impartial manner and he has assured the court that the same will be in accordance with law. He states that the apprehensions expressed by the petitioner are imaginary and without basis.
After giving the background and the allegations which were made by the petitioner in the FIR, the reference is made to the subsequent development where one of the accused person has submitted a representation while pleading his innocence and asking CRIMINAL MISC. M NO.37077 OF 2009 :{ 13 }:
for impartial investigation. It is also disclosed that 17 Councillors of Ludhiana had also requested that the investigation has not been conducted in a fair manner and some innocent persons have been joined as accused persons. This application was statedly supported by some CD which was immediately prepared by a News Channel where the petitioner had narrated the incident before the News channels that too after the arrival of Addl.Deputy Commissioner and other senior officers at the spot. On this basis, it is stated that some of the accused persons statedly were not present at the scene. ADGP Crime is alleged to have examined the CD and finding that some new facts have surfaced, made some observations which are reproduced in the reply. In compliance of this order of the ADGP, this new special team has been constituted. Some one may have to guide the misguided police that for relying on such type of evidence, the authenticity, accuracy and it being free from tampering, editing etc. has to be first ascertained before it could be relied upon. May be the police dazed under the influence of powers that it has chosen to ignore their role and responsibility to carry out fair, independent and proper investigation A separate reply has been filed on behalf of respondent nos.5 to 13. Their stand apparently is in consonance with the plea raised by the Senior Superintendent of Police, Ludhiana. The investigating agency which is supposed to be impartial and independent has chosen to make allegations against the complainant and accusing him of stating falsehood and making false allegations. That being so, how could the private respondents, who are the CRIMINAL MISC. M NO.37077 OF 2009 :{ 14 }:
accused in this case lack much behind in echoing the same allegations against the petitioner. The Superintendent of Police in his reply had spared the petitioner from the allegation that he had filed false complaint in the FIR, but the respondents have accused him so as well and for quite obvious reasons would term the allegations in the FIR also to be false. The police as well as the private respondents otherwise have referred to certain aspects which primarily is a defence of all the accused persons and more appropriately has to be raised before the court. It cannot be but for some influence that such an indulgence is extended to the respondent accused at this stage. It would sound a bit extra-ordinary action. One would wonder in how many cases, the police will decide to investigate a case after submission of a challan on a representation of the accused as is being done in this case. The reason may be any, if the accused pleads some alibi to show that the he or they were not present at the scene at the time of incident, then more appropriately it will have to be led as a defence before the court. The contradiction in the version which apparently is the second reason to constitute another SIT is also something which may have to be brought out primarily before the court to determine what value is to be attached to the statement of such a person if there is any contradiction or different version given by him at different stages or at different times. It would be but for some undue influence which is not normally seen in the case of an ordinary accused person, which appears to have prompted the police to act in this case in a manner as is seen. It cannot pass off as an innocent act or just an act to CRIMINAL MISC. M NO.37077 OF 2009 :{ 15 }:
impartially investigate the offences alleged in the FIR.
The answering respondents have termed the allegations to be unbelievable and improbable. These were duly investigated not by some lower rung police officers but were so investigated by a SIT headed by an officer of the rank of SP which comprised of two DSPs. Once they had decided to submit the challan in this case, which is before the court, whether there would be a need to now investigate the case on the ground that allegations are improbable or unbelievable? This issue ought to have been left to the court giving chance to the parties to fairly prove their respective pleas and for the court to decide the same issues.
Incidentally, I do not wish to devolve much on these aspects, lest it result in any prejudice to either side. It is not for this court to go into the validity, truthfulness or veracity of the allegations made in the FIR as that has to be done on the basis of evidence which would be finally led before the trial court. Before this court, the petitioner had made this approach purely on a legal ground which relates to the power of the investigating agency to carry out this investigation which they would term to be `further investigation' whereas the petitioner would cry hoarse to say that it is not further investigation but a fresh or a re-investigation aimed at relieving some influential accused, who otherwise are found blameworthy and so the challan was presented against them.
The scope of the play by the investigating agency, thus, is a short ground arising in this petition and this issue may have to be examined and screened by this court on the basis of the law which is CRIMINAL MISC. M NO.37077 OF 2009 :{ 16 }:
available in plethora of judgments, which have been cited before me by the respective sides.
Let us now proceed to examine this legal issue. It may, at the outset, need a notice that the quality of debate has been of an excellent level. It was bound to be so when a counsel having standing of Mr.Anupam Gupta, Senior Advocate and Mr.Baldev Singh, a Senior Advocate were representing the parties for their respective causes. Mr.Gupta, as usual has made very elaborate and detailed submissions before me tracing out the history of the issues involved starting from almost the initial stage and in support has referred to a large number of precedents to bring home his point. These are largely Apex Court judgments and on that basis, he would contend that right of further investigation may be there with the investigating agency even after presenting a challan, but under the garb of `further investigation', the investigating agency cannot be permitted to `reinvestigate' or carry out `fresh investigation'. The counsel in his usual erudite manner has placed before me various judgments to show when the case would be of further investigation and when it would be a case of `fresh' or `reinvestigation' which is a course impermissible under law.
Mr.Baldev Singh, Senior Advocate while being fair in assistance, as could be expected from him, did not join issue with Mr.Gupta on the aspects which are fairly settled. Thus, both the senior counsel were in agreement in regard to the enunciation of law that further investigation is permissible but not reinvestigation or fresh investigation. The counsel, however, differed on the factual CRIMINAL MISC. M NO.37077 OF 2009 :{ 17 }:
aspects. Mr.Gupta would term the action of the investigating agency nothing but a fresh or reinvestigation aimed at relieving some influential accused persons, who in the meantime have been elected to the legislative assembly, whereas Mr.Baldev Singh would term that this is just a further investigation, which the police is carrying out on an information revealed to it and has been so directed by a senior police officer of the rank of ADGP Crime. Mr.Baldev Singh has made it look so simple by just pleading that it is a further investigation and so would be permitted and as such legal. The counsel, however, was hard pressed to answer as to in how many cases one can find such instances unless the case is of some influential personality. Some how, one may have to lift the veil and see what is the real purpose of this exercise.
Let us first have a view of the judgments cited before the Court starting from the case of Ram Lal Narang Versus State (Delhi Admn), AIR 1979 Supreme Court 1791, where similar issue arose for consideration. Ofcourse Mr.Gupta has taken me through the development of law in this regard till very recently and as such has placed before me even the very latest view which is available in a large number of precedents as guiding light given by Hon'ble Apex Court.
In Ram Lal Narang's case (supra), the Hon'ble Supreme Court has observed that further investigation by the police would not be barred even where the Magistrate had taken cognizance of the offence. The Hon'ble Supreme Court expressed this view while overruling the judgment of Calcutta High Court in Ram Gopal Neotia CRIMINAL MISC. M NO.37077 OF 2009 :{ 18 }:
Versus State of W.B., AIR 1969 Calcutta 316, of Rajasthan High Court in Hanuman and another Versus Raj, AIR (38) 1951 Rajasthan 131 and a Full Bench decision of this court in State Versus Mehar Singh and others, 1974 Crl.LJ 970. The Hon'ble Supreme Court observed that the right of the police to further investigate is not exhausted and the police can exercise such a right as often as necessary when fresh information comes to light. The issue in this case arose in the background where a conspiracy case initiated against certain accused was held on the allegation that they had replaced certain articles of great antiquity, beauty and value by fake ones by cheating the court. The subsequent investigation revealed that still some more persons were involved and object was to export the articles of antiquity illegally to foreign countries. Some of the articles were recovered from foreign country, which necessitated initiation of second case of conspiracy in a different court. Finding that these two conspiracies were in substance and in truth separate and not one, the investigation and taking cognizance in the second case was held not without jurisdiction. It is observed that the object of two conspiracies was different. The alleged object of the first conspiracy was to obtain possession of the articles from the court by cheating and to misappropriate them, whereas the alleged object of second conspiracy was the disposal of the stolen property by exporting to foreign country. The police, thus, was held to have statutory right and duty to register every information relating to commission of a cognizable offence. The Hon'ble Supreme Court has made reference to the position of law as was established in the case of King CRIMINAL MISC. M NO.37077 OF 2009 :{ 19 }:
Emperor Versus Khwaja Nazir Ahmed, AIR 1945 PC 18. The Court has noticed that there was no provision in 1898 Code prescribing the procedure to be followed by the police, where, after the submission of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, the fresh facts came to light which required further investigation. The court, however, also noticed that no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. On this point, there was different view expressed by many High Courts and so it was felt that the right of the police to make further investigation should be statutorily affirmed. The report of the Law Commission in this regard was accordingly made and finally the provision in the form of Section 173(8) was introduced. The apprehension and criticism that the further investigation by the police would trench upon the proceedings before the court was observed to be really not of very great substance since whatever the police had to do, the final decision in the discretion in this regard to further action would always remain with Magistrate. This was found to be a sufficient safeguard against any excessive use or abuse of power of the police to make further investigation.
However, still one very significant observation was made by the court that it should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no CRIMINAL MISC. M NO.37077 OF 2009 :{ 20 }:
cognizance had been taken by the court of any offence. The court observed that in the interests of the independence of the magistracy and the judiciary, and in the interests of purity of administration of criminal justice and in the interests of comity of various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when the fresh facts come to light.
This Court while deciding Criminal Misc.-M No.359 of 2008 titled "Darshan Singh Versus State of Punjab and others", took note of the observations made in Ram Lal Narang's case (supra), where the court had expressed a word of 'caution' by observing:-
"We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light."
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This court accordingly found that the above procedure required to be followed under the Criminal Procedure Code may be essential in the interest of independence of magistracy and the judiciary and also in the interest of purity of administration of criminal justice and further in the interest of comity of various agencies. Accordingly, it was found that it would be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts came to light in those cases where the Magistrate has taken cognizance.
Some different trend, however, has emerged subsequently to the decision of case in the case of Ram Lal Narang's case (supra), which is also noticed here-in-after.
In the instant case, the police apparently did make an attempt to satisfy this observation or requirement, but withdrew the application. This view subsequently may have been differed with in some of the cases, but indeed the investigating agency did make an attempt to seek this permission but withdrew this request in between and then just informed the court that it is further investigating the case. The course as adopted by the investigating agency may not be illegal or impermissible but certainly cannot be termed as desirable.
Next case referred by the counsel for petitioner is of Kazilhendup Dorji Versus Central Bureau of Investigation and others, 1994 Supp (2) Supreme Court Cases 116. The issue of power to withdraw/revoke consent earlier granted for CBI to investigation was under consideration of the court in this case. It is held that the consent even if withdrawn can have prospective CRIMINAL MISC. M NO.37077 OF 2009 :{ 22 }:
operation only and CBI competent to complete the investigation commenced prior to issuance of the order of revocation. The court, thus, held that the investigation which was commenced by CBI prior to withdrawal of consent had to be completed and was not affected by the said withdrawal of consent. The CBI was held competent to complete the investigation in the case registered by it and was permitted to submit the report under Section 173 Cr.P.C. in the competent court. Obviously, the learned counsel would rely on this judgment to urge that something which was done during the first investigation by SIT constituted in the instant case cannot be undone by any subsequent investigation. Apparently, the counsel would also construe that undoing the affect of first investigation would only show that this is not a further investigation to further the cause and the finding of investigation held earlier, but would be a fresh investigation or a reinvestigation to undo the effect of earlier investigation. This analogy, in my view, can easily emerge from the ratio of law in Kazilhendup Dorji's case (supra). At least to this extent that whatever has been included in the earlier investigation by a duly constituted team to investigate the issue cannot be undone by subsequent investigation which is the apparent result in this case.
Though initially Mr.Baldev Singh, learned senior counsel was very vehement in his submission that only further investigations are being held and it be allowed to be completed, for which the petitioner cannot have any objection at this stage and should wait for the outcome before he comes up with any allegation of bias or any allegation of help or any malafide investigation being carried out CRIMINAL MISC. M NO.37077 OF 2009 :{ 23 }:
under the garb of further investigation. He, however, was unable to pursue this view when from the pleadings, it revealed that after further investigation, not only some of the accused persons earlier challaned are sought to be excused or exonerated, even the offences have been diluted considerably by this so-called further investigation. As such it may not pass off as further investigation but would tend to take the shape of reinvestigation or fresh investigation.
In K.Chandrashekhar Versus State of Kerala and others, (1998) 5 Supreme Court Cases 223 famously known as "ISRO Espionage Case" has again dealt with somewhat similar issue. Here also, the question of withdrawal of consent initially extended under Section 6 was held impermissible. Investigation in this case was transferred and entrusted to CBI pursuant to the consent given by the State Government. CBI had completed the investigation and had submitted its report under Section 173(2) Cr.P.C. The State Government thereafter made an attempt to get further investigation of the case by the State Police and withdrew the consent earlier extended for investigation by CBI, which was held patently invalid. The Hon'ble Supreme Court in this case has dealt with the word and phrase "further" and has also considered the aspect of natural justice and malafides. This was a case where Director General of Police had recommended to the Government of Kerala to entrust the investigation to CBI and accepting the above recommendations, the Government had issued notification in this regard on 2.12.1994 transferring investigation to CBI. Thereafter, the CBI investigated the case and on completion submitted a challan, CRIMINAL MISC. M NO.37077 OF 2009 :{ 24 }:
which culminated in acquittal recorded in favour of the accused. The discharge report was accepted in this case. The Government of Kerala thereafter issued a notification withdrawing the consent earlier given for investigation of this case to CBI. Initially, the reason given to withdraw the consent was for the purpose of reinvestigation of the case by special team of the State Police Officer which was mentioned in the explanatory Note under the notification. This explanatory Note, however, was amended subsequently and what is of significance is that the word "reinvestigation" of the case as earlier used was amended to read "further investigation". Aggrieved against this, six accused had approached the Kerala High Court and finally the Hon'ble Supreme Court. The Court relied upon Kazilhendup Dorji's case (supra) and held that investigation started by CBI with the consent of the State Government could not be stopped midway by withdrawing the consent. While considering the scope of right of further investigation under the garb of sub-section (8) of Section 173, the court has observed that the police has a right of `further investigation' under this sub-section, but not fresh investigation or reinvestigation. The court has noticed that the State Government was conscious of this limitation and that is how it had amended the explanatory Note given in the earlier notification, where the word "reinvestigation" was amended to read "further investigation". The dictionary meaning of word "further" (when used as adjective) is "additional more; supplemental" is noticed. Accordingly, the court has held that further investigation, therefore, is the continuation of the earlier investigation of the case and not a fresh investigation or CRIMINAL MISC. M NO.37077 OF 2009 :{ 25 }:
reinvestigation to be started ab inito wiping out the earlier investigation altogether. The court drew inspiration from the fact that sub-section (8) of Section 173 merely envisages that on completion of further investigation, the investigating agency has to forward to the Magistrate a "further report or reports" which cannot be a fresh report or reports, which may be regarding the further evidence obtained during such investigation.
The impermissibility of holding fresh investigation is again reiterated by the Hon'ble Supreme Court in Ramachandran Versus R.Udhayakumar and others, (2008) 5 Supreme Court Cases 413. The court has held that further investigation may be permissible but fresh investigation is impermissible. Thus, no fresh investigation is envisaged nor it can be permitted. The Hon'ble Supreme Court has again explained and elaborated the meaning of "further" to hold that it would be additional more or supplemental in the case of Rama Chaudhary Versus State of Bihar, (2009) 6 Supreme court Cases
346. Referring to the provisions of Section 173(8), the court has held that this provision makes it clear that further investigation is permissible but reinvestigation is prohibited. In addition, the court has gone on to observe that the law does not mandate taking of prior permission from the Magistrate for further investigation but carrying out a further investigation even after filing of charge sheet is a statutory right of the police and reinvestigation without prior permission is prohibited. Explaining the word "further" the court has clearly held that it cannot be fresh investigation or reinvestigation.
Meaning of further is explained as additional, more or supplemental.
CRIMINAL MISC. M NO.37077 OF 2009 :{ 26 }:
Accordingly, it is held that it is in continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Thus, the judgments are in plenty to lay down and reiterate this principle, which has been emphasized time and again and such judgments can be so multiplied.
In Mithabhai Pashabhai Patel Versus State of Gujarat, (2009) 6 Supreme court Cases 332, the court has noticed the difference between further investigation and reinvestigation to state that these stand on different footing. This has been held to be beyond any cavil. The court noticed the ratio of law laid down in Rama Chaudhary's case (supra) to observe that further investigation is permissible but reinvestigation is prohibited.
In State of A.P.Versus A.S.Peter, 2008 (2) SCC 383, the Court again noticed the difference between further investigation and reinvestigation and clearly held that police has no power and cannot make reinvestigation. The difference between further investigation and reinvestigation is also noticed.
Here only, the ratio of law laid down in the case of Kedar Narayan Parida and others Versus State of Orissa and another, (2009) 9 Supreme Court Cases 538 can be noticed, which may be somewhat nearer to the facts of this case. This was a case where filing of additional charge-sheet under Section 173 Cr.P.C.due to intervention by senior officers and MLA in investigation to benefit the accused persons was the issue under consideration. The High Court when approached under Section 482 Cr.P.C had issued direction to CRIMINAL MISC. M NO.37077 OF 2009 :{ 27 }:
quash second supervision note of higher officers while retaining first supervision note of Additional SP. Finding that the first supervision note being sufficient to frame the charge against all accused persons, the High Court held that second supervision note, which was in favour of some of the accused persons was without sanction and had materialized due to the intervention of the MLA. The High Court quashed the second supervision note giving direction for filing additional charge sheet on the basis of first supervision note and directing investigating authority to act in accordance with law laid down in Dinesh Dalmia Versus CBI, (2007) 8 SCC 770, regarding filing of charge sheet even if the accused persons had not been arrested. It was not interfered with by the Apex Court. The informant in Kedar Narayan Parida's case (supra) was the wife writing a letter to the High Court that the police was inactive in not arresting all the accused persons. As per the complainant-wife, the main culprits were moving freely and senior police officers at the intervention of MLA had acted to discard a supervisory note vide which all accused persons were implicated. Based on a new report of polygraph test and alibi provided by MLA was accordingly quashed. The court in this case has held that though normally courts cannot interfere but High Court in exercise of its inherent power can interfere with investigation to do justice to the party. Here is also a case similar to this case. Earlier investigation had found a person accused, who is himself presently MLA and another highly placed accused responsible for the allegations made in the FIR. This is sought to be interfered with on the direction of senior police officers by constituting another SIT CRIMINAL MISC. M NO.37077 OF 2009 :{ 28 }:
mainly on the basis of a material, like CD and the alibi which is being pleaded on the basis of some calls on the mobile phone. The prayer also is that this is an attempt to interfere with the fair and impartial investigation and so the petitioner would seek quashing of the subsequent directions and the fresh investigation conducted under the garb of further investigation.
This court would have an obligation to see that justice and justice alone should prevail and the high position held by any accused person should not be permitted to interfere and taint the investigation or to tamper with the same in any manner.
Dinesh Dalmia's case (supra) only dealt with the issue regarding the ample affect of presenting challan for purpose of 167 (2) Cr.P.C.and has observed that further investigation is permitted even after presentation of report under Section 173(2) Cr.P.C.
In Babubhai Versus State of Gujarat and others, (2010) 12 Supreme Court Cases 254, the court has considered as to when can courts direct fresh investigation. As observed in this case, ordinarily further investigation and not reinvestigation or fresh investigation is permissible. Emphasizing that the word "ordinarily" would exclude extraordinary or exceptional cases of gross abuse of power and failure of justice, it is held that the court would direct de novo investigation to prevent the miscarriage of justice, if investigation is tainted and biased, suffers from irregularities and is conducted in malafide exercise of power by police causing serious prejudice and harassment to any party. The court has gone further to hold that the charge sheet filed and any other order issued by any CRIMINAL MISC. M NO.37077 OF 2009 :{ 29 }:
investigating agency pursuant to such vitiated investigation also is liable to be quashed. Examining the provisions of Sections 156, 157 and 482 Cr.P.C., in the light of protection afforded by Articles 20 and 21 of the Constitution, the court has observed that the investigation must be fair, transparent and judicious. Tainted and biased investigation and the consequent prejudice and harassment to any party cannot be permitted to continue is the further observation made by the court in this case. The result of such investigation was accordingly quashed. In this context, it would be of benefit to notice the observations of the Hon'ble Supreme Court, which are as under:-
"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 the 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 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".
Thus, the Court further held:-
"Not only fair trial but fair investigation is also part of CRIMINAL MISC. M NO.37077 OF 2009 :{ 30 }:
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".
From the ratio of law laid down by the Hon'ble Supreme Court as noticed above, it would clearly emerge that not only a fair trial but fair investigation is also a constitutional right. The investigation, thus, has to be fair and judicious. This has been held to be minimum requirement of rule of law. This constitutional guarantee is not only available where the tainted investigation is directed against the accused persons having an affect on him. It would equally be for the aggrieved person and a victim to allege that he is not being treated fairly by injudicious investigation to favour the accused persons and, thus, would violate his constitutional rights. Fair trial and fair investigation is not only to be appreciated from the point of view of liberty or the right of the accused. The society and the victim would also suffer where because of injudicious investigation, fair trial becomes a casualty and the person who is accused of a serious offence would be let off not because of lack of any evidence or material but because of unfair and injudicious CRIMINAL MISC. M NO.37077 OF 2009 :{ 31 }:
investigation. That situation, in my view, would be equally bad as would be where any accused person suffers the consequences of investigation which is not held fairly and judiciously. Investigation into a criminal offence has to be free from objectionable features or infirmities, which can lead to grievances either may be on the part of the accused or equally on the part of prosecution which has an interest of the society at large to watch. This would further be bad for a society if unfair investigation carried out with ulterior motive and in a bias manner is done to help out the accused. Though it is the duty of investigating officer to conduct investigation in a manner to avoid any kind of mischief and harassment to an accused, but it is equally his duty to remain fair and conscious to conduct a fair and impartial investigation to dispel any suspicion about its genuineness, may be for the accused or for the interest of prosecution.
The investigating agency has to keep in mind that they are the guardians of liberty of the innocent citizens. One may recollect here the case of Sidhartha Vashisht alias Manu Sharma Versus State (NCT of Delhi), (2010) 6 SCC 1, where the issue of fair investigation was dealt with by the court. The court observed that criminal justice of administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be a innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role. The investigation, as is observed, should be judicious, fair, transparent and expeditious to ensure compliance with the basic CRIMINAL MISC. M NO.37077 OF 2009 :{ 32 }:
rules of law. It is then observed that it is not only the responsibility of the investigating agency but as well as of the courts to ensure that the investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. It is observed that equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima-facie be indicative of a biased mind and every effort should be made to bring the guilty to law as no bobody stands above law dehors his position and influence in the society. Court, thus, went on to hold that the courts are not to accept the report which is `Contra legem' (i.e.contrary to law) and can direct to conduct judicious and fair investigation. The investigation is to be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of police to make investigation.
The above observations noted in various judgments ofcourse would clearly provide guidance to the scope, which may fall within the purview of further investigation. Where investigation is done under the garb of carrying out further investigation, but it does not further the cause or course of earlier investigation and takes the shape of fresh report or reports and is not confined to further evidence obtained during the investigation, then obviously the same may not validly pass the test of being a further investigation but would definitely take the shape of fresh or reinvestigation where different conclusions and finding are given either on the basis of same evidence or on the basis of some new evidence which may CRIMINAL MISC. M NO.37077 OF 2009 :{ 33 }:
have surfaced. The meaning of word "further" cannot be ignored. Further investigation has to be an additional to one which is already held more than what has been earlier held and it would has to be supplemental and, in my view, cannot supplant the earlier investigation. If it is so done, it would certainly take the shape of reinvestigation where the earlier investigation leading to filing of the report is undone. It cannot but be reinvestigation or a fresh investigation which is not supplemental to the earlier investigation and would be a course which is impermissible.
The Court in Babubhai's case (supra) has recognised the power of the court to order fresh investigation, though ordinarily the court would only direct further investigation unless the situation is extraordinary and not when it is an ordinary situation, like in the instant case.
Aspect of fairness of investigation and re-examination of completed investigation was considered by the Hon'ble Supreme Court in Virender Prasad Versus Rajesh Bhardwaj and others, (2010) 9 Supreme Court Cases 171. The action of the High Court in inviting suggestions from the parties to propose three names of DGP Rank Officers to undertake said re-examination was held highly improper. It is observed that it was for the court to decide the question of fairness of investigation and not by police officer as envisaged by the High Court. The court also dealt with the aspect of further investigation and reinvestigation and has reiterated that direction for reinvestigation is not envisaged by law. It is then observed that it was for the court alone to decide whether CRIMINAL MISC. M NO.37077 OF 2009 :{ 34 }:
investigation was required to be done by any other agency and no opinion from the DGP level officer could have been sought. The Court reiterated the views as were expressed in Mithabhai Pashabhai Patel's case (supra) and the case of Ramachandran (supra). This may be a guide in this case where ADGP has decided to direct investigation by different SIT and it is stated to be further investigation, which cannot be done. From the ratio of above judgments, it can clearly be made out that scheme of investigation particularly Section 173(8) Cr.P.C. provides for further investigation and not of reinvestigation. Where the court comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct further investigation and ordinarily not the reinvestigation. However, the police has no power to conduct fresh or reinvestigation and cannot do under the garb of doing further investigation, terming it so but in fact is found to be doing fresh or reinvestigation.
During the debate, an incidental issue cropped up about the inherent power of the court under Section 482 Cr.P.C.
To be fair to the learned counsel for the petitioner, the judgments referred to by him in regard to judicial power under Section 482 Cr.P.C.may need a notice in brief and these are:
Popular Muthiah Versus State represented by
Inspector of Police, (2006) 7 Supreme Court Cases
296, D.Venkatasubramaniam and others Versus
M.K.Mohan Krishanamachari and another, (2009) 10 Supreme Court Cases 488, State of Andhra Pradesh CRIMINAL MISC. M NO.37077 OF 2009 :{ 35 }:
Versus Gourishetty Mahesh and others, (2010) 11 Supreme Court Cases 226, S.Khushboo Versus Kanniammal and others, (2010) 5 Supreme Court Cases 600.
In Popular Muthiah's case (supra), the court was dealing with the High Court suo motu exercise of its inherent powers while exercising appellate jurisdiction and to direct further investigation of the case against persons who were not charge- sheeted and were not accused at the stage of trial. High Court, however, felt that it should have been included in the challan. It is observed that the High Court should exercise inherent jurisdiction sparingly and only after applying its mind to the material on record so as to be satisfied about the existence of a strong prima facie case against such persons and also whether any useful purpose is served by issuing such directions particularly after a long lapse of time. Otherwise the power of the High court to exercise inherent jurisdiction suo motu in the interest of justice is well recognised and it is held that it can do so while exercising other jurisdiction such as appellate or revisional jurisdiction. Even there would not be any need of formal application for invoking inherent jurisdiction. Such jurisdiction can be exercised in respect of substantive as well as procedural matters and can be so exercised in respect of incidental or supplemental power irrespective of nature of proceedings.
In D.Venkatasubramaniam's case (supra), it is held that it is statutory obligation and duty of the police to investigate into crime and the courts normally ought not to interfere and guide CRIMINAL MISC. M NO.37077 OF 2009 :{ 36 }:
investigating agency as to in what manner investigation has to proceed. In this background, it is observed that the High Court has to exercise jurisdiction conferred on it under Section 482 sparingly, carefully and with caution, only where such exercise is justified by the test laid down in the provision itself.
In State of Andhra Pradesh's case Vs. Gourishetty Mahesh's case (supra), the court was dealing with quashing of criminal proceedings at the threshold and has reiterated the principles in this regard, which ofcourse may not be relevant for decision in the present case.
The importance of natural justice in the aid of criminal justice is emphasized in Divine Retreat Centre Versus State of Kerala and others, (2008) 3 Supreme Court Cases 542. The court in this case was dealing with the inherent jurisdiction exercised by the High Courts under Section 482 Cr.P.C. It is viewed that this section does not confer any new power on the High Court but only saves the inherent power possessed by it prior to enactment of new Cr.P.C.
Mr.Baldev Singh appearing for the private respondents and Mr.Jattana representing the State have basically pleaded that this is a case of further investigation and so within the competence of the police. If it is a further investigation ordinarily, the same should have been entrusted to the earlier `SIT'. There is no justification offered for constituting a fresh SIT except that ADGP Crime had required a further investigation on the points which he has noted. The counsel have made reference to some of the judgments, which have already CRIMINAL MISC. M NO.37077 OF 2009 :{ 37 }:
been referred to by the counsel for the petitioner and have been discussed above. The case of State of West Bengal & Ors. Versus The Committee For Protection of Democratic Rights West Bengals & Ors., (2010) 3 SCC 571 has been referred to, which has gone into the jurisdiction of the court under Section 482 Cr.P.C. or Article 226 of the Constitution of India to direct CBI to investigate the case. Perhaps the counsel have made reference to this judgment to urge that this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and to instil confidence in the investigations or where the incident may have National or International ramifications or where such an order may be necessary for doing complete justice and for enforcing fundamental rights. This is well known and well settled principle so far as the jurisdiction of the court under Section 482 Cr.P.C. or Article 226 of the Constitution is concerned and the same has been sufficiently noticed above on the basis of number of judgments, which are otherwise placed before the court. The cases of A.S.Peter and Rama Chaudhary (supra) have also been referred to by the counsel for the respondents. These have already been noticed and discussed and hence would not need further mention.
The case of Dharmatma Singh Versus Harminder Singh and others, AIR 2011 (SC) 2094 relied upon by the counsel for the respondents has considered the issue of further investigation. In this case, it is observed that when after investigation the further report under Section 173(8) Cr.P.C. is submitted stating that the person has not committed the offence, it is for the Magistrate to CRIMINAL MISC. M NO.37077 OF 2009 :{ 38 }:
form an opinion whether the facts, set out in two reports, make out an offence committed by the person. It is on this basis urged that both the reports can be placed before Magistrate for him to act on any particular report and what has subsequently been done cannot be scuttled. This may be so, when it seems to be a case of further investigation. This was also a case where prosecution had moved an application before a Judicial Magistrate for permission to investigate further and such permission was granted to the prosecution. The Magistrate, thus, was kept in loop and the further investigation was primarily carried out under his control which is not so in the present case. Here such a permission was sought but this application was withdrawn whereafter the investigating agency simply informed the court that it is conducting a further investigation. This would appear to be affront to the court though to conduct further investigation may be within the jurisdiction of the court but no one required the investigating agency to move such an application and then to withdraw the same to follow the same course. The contention of the petitioner that this application was withdrawn apprehending that this permission was not likely to be granted, thus, apparently is made out.
The counsel in this regard would also rely upon the judgment of this Court in Charanjit Singh @ Bittu Versus State of Punjab, 2008(2) R.C.R.(Criminal) 748, where this court has observed that when the police after making further investigation has found some accused innocent, then it can submit a fresh report and permission of the court for further investigation is not required. The finding by the court in this case is that the police had done a further CRIMINAL MISC. M NO.37077 OF 2009 :{ 39 }:
investigation to make a deep probe and it was not a fresh or reinvestigation of the case. The facts in this case may appear in different light. Here the question is of this so called further investigation being under the influence of the accused, who are highly placed one and it is not such a case where some police official has come across some evidence on its own. Rather, in this case this action has been taken on the application moved by the accused person, which will be a distinguishing feature of this case from the case of Charanjit Singh (supra). Other difference is that no new evidence has surfaced which was not before the earlier investigating team. This `CD' is part of challan already presented before the court.
The responsibility of the court to ensure that the justice prevails and no one should suffer at the hands of mighty and where it is so noticed, the role of the court to actively intervene and to ensure the play of full justice can be had from the observations made by the Hon'ble Supreme Court in the case of R.K.Anand Versus Registrar, Delhi High Court, (2009) 8 Supreme Court Cases 106. Noticing the development calculated to derail the trial which would not have escaped the notice of Chief Justice and Judges of the High Court, the court went on to lay down the role and responsibility of the court to ensure that trial proceeded on the proper course. Indifferent and passive attitude shown by the High Courts did not commend itself to the Apex Court. The reports of investigation deliberately botched up or the trial being hijacked by some powerful and influential accused, either by buying over or intimidating the witnesses or by creating insurmountable impediments for the trial court and not allowing the CRIMINAL MISC. M NO.37077 OF 2009 :{ 40 }:
trial to proceed was found to have been seldom taken note of by collective consciousness of the court. As is observed, every trial that fails due to external interference is the tragedy for the victim(s) of the crime and every frustrated trial defies and mocks the society based on rule of law. It is observed that every subverted trial leaves a scar on the criminal justice system and repeated scars makes system unrecognizable and then it loses the trust and confidence of the people.
This court is entrusted with the responsibility of superintendence, supervision and control of the lower courts and as enjoined upon by the Supreme Court, the High Courts have to assume more proactive roles in such matters. It is very significantly observed that a step in time by the High Court can save a criminal case going astray. In few cases, there may be a need for more positive intervention. If the matter is at the stage of investigation, the High Courts may call for status report and progress reports from the police headquarter or Superintendent of Police concerned, which would provide sufficient stimulation and pressure for a fair investigation of the case. If the court is not satisfied with the status/progress reports, it may consider taking up the matter on judicial side and once the case reaches the stage of trial, the High Court obviously has far wider powers.
Thus, the powers of this court to interfere and that too effectively not only on the administrative side, but on the judicial side as well are expressed by the Apex Court. As is the situation here and has to be understood and it may have to be ensured that no external CRIMINAL MISC. M NO.37077 OF 2009 :{ 41 }:
influence is allowed to enter either in the investigation or in the course of trial. If this court would find that this trial for a criminal case is going astray, it cannot be a silent spectator and just sit and watch. Like every trial, this trial may have also to be protected from external interference and apparently there is enough indication of external interference perculating into this trial which, the facts in this case would sufficiently indicate. One can perceive the travesty of justice which is looming large in this case if the same is not insulated from any external interferences. What happened in famous BMW or Best Bakery Cases may not have receded from the memories of the society and the public at large. The over all duty to maintain public confidence in the administration of justice has to be ensured and majesty of law has to prevail. The indifference, inaction or lethargy may lead to eroding inbuilt faith in the judicial system and ultimately may destroy the very justice delivery system. If any deficiency in the investigation or in the prosecution is visible or can be perceived where attempt is being made to hide the realities, the courts have to deal with the same but ofcourse in appropriate frame work of law.
There is no allegation of first investigation conducted by SIT being perfunctory or impartial then why and for what purpose there would be need to constitute another SIT to carry out so-called further investigation. This is nothing but a fresh investigation or a reinvestigation aimed at saving some influential people. Where some of the influential accused are exonerated and the offences earlier found made out are diluted in manner to make the offences venial, it cannot be to further the course of earlier investigation. The Public CRIMINAL MISC. M NO.37077 OF 2009 :{ 42 }:
Prosecutor and the investigating agency in this case apparently are acting more on the side of defence, whose duty is to present the truth before the Court. The criminal trial or investigation is not to be reduced to be mock trials or shadow-boxing or fixed trials. The judicial criminal administration system is to be kept clean and beyond the reach of whimsical, political wills or agendas and is to be insulated from discriminatory standards, types of which are prohibited by the mandate of the constitution. There are some demonstrative subversion noticed in the course of investigation and the atmosphere prevailing in this case apparently is not conducive and congenial for impartial investigation. The interest of competing parties has to be balanced. The interest of the victim and the society can also not be forgotten altogether. The society's interest is to be given respect.
Here is a case where a public servant has accused some highly placed persons, who are really influential of having given him threats and then reaching the scene to intimidate him by show of violence. The law abiding public servant has done nothing but to complain to the police, which is responsible for investigating the case. The investigation did follow apparently because of some pressure of the society at large. It is now sought to be circumvented due to such intervention, which would not appear justified. The debate being limited and position of law being not much in dispute what is to be determined is whether what is happening in this case can be termed as further investigation or it is a fresh investigation or reinvestigation. There are fairly settled principles noticing the distinction between further investigation and fresh investigation.
CRIMINAL MISC. M NO.37077 OF 2009 :{ 43 }:
Where such investigation is to supplant the earlier investigation, which obviously would be that some additional material has come on record to further strengthen the case of the prosecution against the person accused or some more accused has surfaced. The investigating agency would have power to carry out that investigation which will be in furtherance of the investigation already conducted. Whereafter completion of investigation, challan is presented and report filed before the court, then the fresh material which may surface may have to be presented to the court and where the investigating agency take that into account to leave the accused out of the rigors of law, it will in no manner be in furtherance of the investigation which has already been completed. It will only be a fresh investigation which has revealed something new leading to exoneration of the accused and it is not in any manner supplemental, but would be a supplanting the earlier investigation. Such an investigation, in my view, cannot be termed as further investigation.
I also find that there is not much need for carrying out this investigation, which is just to leave some body of the hook. If any new facts have surfaced which indeed they are not new, these have to be presented before the court by the defence. Basically, these are the pleas which the accused would raise in their defence and when the investigating agency after presenting a challan starts looking into it, it cannot be termed as further investigation, but has to take the shape of reinvestigation or fresh investigation, which is clearly impermissible. Why cannot the accused-respondents plead all these aspects before the court for which they would get sufficient CRIMINAL MISC. M NO.37077 OF 2009 :{ 44 }:
opportunities. This action of the respondents is not sustainable.
Any investigation done by second SIT is beyond the jurisdiction and power of the investigating agency and not permissible as per the provisions of the Code of Criminal Procedure. If it was only a further investigation, then why it could not be entrusted to the previous SIT. Why this change. As if that, this SIT is to suit the interest of some one influential? The Court has to see that interference of this nature does not arise in anyone's mind. Otherwise, the cause of justice and the entire justice delivery system will suffer. The investigation and trial in this case where persons involved are powerful is required to be insulated from such type of outside interference and only then and then the law can and would prevail and the majesty of law can be ensured.
The fairness on the part of the counsel for the petitioner revealed when he was forth right in submitting that he would not have any objection if the matter is submitted for further investigation to the CBI which is really independent, but he has an objection and that too a serious one against the investigation which is being conducted in this case in a tainted manner, which is aimed at helping the defence, rather than the cause of justice or the prosecution in any manner. The counsel appearing for the respondents apparently was not prepared to take this call. In any case there is no allegation made either by the petitioner or by the respondent accused that first investigation conducted by SIT is tainted to call for any need to get any further investigation from the CBI or any other independent agency. Incidentally, there can not be bar to transfer investigation to CRIMINAL MISC. M NO.37077 OF 2009 :{ 45 }:
CBI even after presentation of challan as is held in Rubabbuddin Sheikh Versus State of Gujarat and others, (2010) 2 Supreme Court Cases 200.
For issuing any such direction, this court would have ample power as can be noticed from the law laid down in the case of R.K.Anand (supra). What happened in the case of Zahira Habibulla H.Sheikh and another Versus State of Gujarat and others, (2004) Supreme Court Cases 158, famously known as `Best Bakery Case' cannot be easily forgotten. Here only notice can be taken of the outcome in the case of Sidhartha Vashisht @ Mannu Sharma (supra). While deciding the issue of conviction of the petitioner-
accused in this case, the court had dealt with the aspect of fair trial, its meaning and scope vis-a-vis the rights of accused as also to fair and impartial investigation and prosecution as well as fair trial. The court also has considered the media influence on the fair trial and need for restraint by media and while doing so has drawn a distinction between trial by media and informative media, which ought to be maintained. Thus, it is not only the right of the accused that the court has to protect but the court is also the protector of the society at large and should not hesitate to interfere where any unfair encroachment either by the investigating agency or by the prosecutor trying accused persons is noticed. This, in my view, is enjoined upon this court as a call of duty and would be in exercise of supervisory jurisdiction which this court undoubtedly possesses besides the judicial power that this court can exercise under Section 482 Cr.P.C.
CRIMINAL MISC. M NO.37077 OF 2009 :{ 46 }:
Criminal Misc. M No.37077 of 2009 is, therefore, allowed. The result of investigation conducted by second SIT cannot be termed legally permissible for relying upon and would not be taken into account by the court for any purpose whatsoever. This, however, may not be construed as a bar in any manner for the respondent- accused to place whatever material they would wish to rely before the court in their defence when the opportunity in this regard is available to them in accordance with the provisions of Code of Criminal Procedure.
Another Criminal Misc.-M No.22903 of 2010 filed by Simarjit Singh Bains and Kamaljit Singh Karwal was also tagged alongwith Criminal Misc.-M 37077 of 2009. The prayer made in the petition filed under Section 482 Cr.P.C. is for quashing the order of Additional Chief Judicial Magistrate, Ludhiana refusing to supply the copies of CD and photographs under Section 207 Cr.P.C. to the accused-petitioners.
It is in response to this petition that the State has disclosed that the SIT constituted by ADGP Crime has completed the enquiry and the petitioners have been proved to be innocent in the present case and further Sections 333, 394, 307 and 120-B IPC read with Sections of Arms Act were not found committed in the present case. On this count, the State has prayed for dismissing the said petition. Otherwise, also, it is prayed that the petitioners have an alternative remedy of filing a revision against the order refusing to supply the CD and the photographs. It is also stated that the Magistrate has to satisfy that the documents asked for are not CRIMINAL MISC. M NO.37077 OF 2009 :{ 47 }:
voluminous, copy of which is difficult to supply and so the inspection of such documents may be permitted. That may not be very satisfactory mode to comply with the requirement of law. The petitioners, being accused, would be entitled to all the documents and the material relied upon by the prosecution. There may be some material evidence which on account of its very nature, it may not be practically possible to supply to the defence. Otherwise, other materials or the copies thereof may have to be made available to the accused persons.
It would be appropriate, therefore, to direct the Magistrate to examine the feasibility of getting copies made of these documents and if it is found so feasible and possible, then these may be supplied to the petitioners. This petition accordingly has been taken up for disposal alongwith the petition filed by the petitioner- complainant and is disposed of with the above observations.
October 15, 2012 ( RANJIT SINGH ) ramesh JUDGE