Jharkhand High Court
Sunila Devi vs The State Of Jharkhand & Ors on 28 August, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 194 of 2020
Sunila Devi ..... ... Petitioner
Versus
The State of Jharkhand & Ors. ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. M.K. Choubey, Advocate.
For the State : Mrs. Vandana Bharti, A.P.P.
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11/ 28.08.2023 This petition has been filed for a direction upon the
respondents to complete the investigation of Sukhdeo Nagar (Pandra O.P.) P.S. Case No. 607 of 2018.
2. The prosecution case is based upon the statement of the husband of the petitioner namely Sami Munda (Now Deceased) recorded on 02.12.2018 at Dev Kamal Hospital at 11.30 AM. It has been stated by the informant/ deceased that he was the owner of Mangalam Sweets near Dev Kamal Hospital and also dealing in land. On 02.12.2018 at 6.45AM by Maruti Omani after loading water from house gone to Mangalam Sweets. After unloading the water cane. The informant has taken tea about 7.14 AM. Again started journey for my house to take water cane. When the informant reached near Tirupati body building garage, One Motorcycle came with two boy and indicated to stopped the vehicle. The informant was driven the vehicle in slow speed. In the mean time One person boarding the motorcycle inquired for the way to Bahu Bazar. The informant was informing him regarding way but in the mean time the person seating on the back of motorcycle has shooted by pistol which has embodied in the right side of the neck. After firing two persons with motorcycle fled. Due to above injury the vehicle was not under control and heat near poll. On assistance by one motorcycle rider the informant reached to Dev Kamal Hospital where the treatment was going. The persons boarded on motorcycle are of 20-30 years age and the person driving motorcycle has bore hat and person seated on backside was with helmet. The informant has reasons to believe that the persons have fired upon him with intention to kill and he has sustained injury.
3. Mr. Choubey, learned counsel appearing for the petitioner submits that the police has not completed the investigation, that's why the petitioner has been compelled to file the application under Section 210 -2- Cr.P.C. before the learned court, which is still pending. He submits that by the last order, this court directed the Senior Superintendent of Police, Ranchi to file the supplementary counter affidavit. He further submits that the Senior Superintendent of Police, Ranchi has filed the supplementary counter affidavit, wherein he has not given any cogent reason not to arrest the accused persons. He submits that the order of this court dated 13.07.2023 is not complied by the said supplementary counter affidavit. He further submits that the petitioner has also filed I.A. No. 3695 of 2022 dated 27.04.2022 for handing over the case to the Central Bureau of Investigation for further investigation.
4. On the other hand, Mrs. Vandana Bharti, learned A.P.P. appearing for the State submits that in view of the last order dated 13.07.2023, the Senior Superintendent of Police, Ranchi has filed the personal supplementary counter affidavit, wherein he has disclosed the bona fide action taken by the police. She submits that the final form has already been submitted and the petitioner is already having the alternative remedy by way of filing the protest petition before the learned court and one of the petition is also pending before the learned court filed under Section 210 Cr.P.C. She further submits that no case of handing it over to the CBI is made out.
5. In view of the above submissions of learned counsel appearing for the parties, the court finds that admittedly the case was registered and the police has investigated the matter and this court has made efforts so that the investigation be completed at the earliest and time to time different orders were passed and finally the order dated 13.07.2023 was passed considering that the police has stated that two persons travelling upon a motorcycle have fired upon the deceased, however, final form has been submitted in the matter stating therein the lack of evidence. The personal affidavit of Senior Superintendent of Police, Ranchi has been called upon and pursuant thereto, the supplementary counter affidavit has been filed, wherein he has disclosed that all reasonable steps were taken for through and fair investigation of the matter, but inadvertently two accused who shot at the deceased could not be identified and therefore the reasons are beyond the control of investigating officer due to lack of -3- Evidence, final form has been submitted. He has further submitted that the investigation was conducted in fair manner and every possible angle was considered and accordingly, supervised by higher police authority so that no stone remains untouched, but despite of taking repeated efforts, the accused were not identified, who committed the crime.
6. In view of the above, it appears from the supplementary counter affidavit, filed by the Senior Superintendent of Police, Ranchi that all efforts have been taken by the police and thereafter the final form has been submitted. The final form is submitted, the petitioner is having the alternative remedy, by way of filing the protest petition before the learned court and the said petition of the petitioner can be more effectively appreciated by the learned court in comparison of Article 226 of the Constitution of India or Section 482 Cr.P.C., as the petitioner will have the opportunity to lead evidence to support the case. Further the petitioner has already filed a petition under Section 210 of Cr.P.C. before the learned court, which is still pending, which further suggests that the petitioner has already availed the alternative remedy by way of filing the said petition under Section 210 Cr.P.C.
7. Thus, the court comes to the conclusion that in view of the alternative remedy, already availed and further remedy is there in view of the final form, as the right of the petitioner is there of filing the protest petition. There is no doubt, in a particular case, if the High Court comes to the conclusion that the investigation is not properly conducted and right of the victim has been jeopardized, the appropriate order can be passed by the Constitutional Court under sub-Section 8 of Section 173 of the Cr.P.C.
8. The prayer was made in one of the case for transferring the case to the CBI, in the case of Hari Singh Versus State of U.P., reported in (2006) 5 SCC 733, wherein the Hon'ble Supreme Court in paras-1 and 3 has held as follows:-
"1. This petition filed under Article 32 of the Constitution of India is for a direction to conduct enquiry by the Central Bureau of Investigation (in short "CBI") into the murder of one Yashvir Singh, son of the petitioner. The allegation is that though the first information report (in short "FIR") has been lodged with the police to the -4- effect that the said Yashvir Singh has been murdered and has not committed suicide, because of the pressure of some influential people, the police has not taken any positive steps, and on the contrary the petitioner is being harassed and threatened by certain persons. As culled out from the petition, the said Yashvir Singh was posted as Additional Commissioner of Gorakhpur, Uttar Pradesh and was found dead in his official residence on 19-1-2006. The petitioner made a grievance that the police officials in collusion with some relatives--more particularly the in- laws of the deceased Yashvir Singh are projecting it as a case of suicide. It is stated that the petitioner has made several representations to various authorities, but without any avail. It is pointed out that the Superintendent of Police had directed the officer in charge of the police station concerned to enquire into the matter in view of the allegations made by the petitioner. But it is the grievance of the petitioner that no action has been taken purportedly on the basis of the pressure exercised by some influential people who were inimical to the deceased though they are related to him. In essence grievance is that no action is being taken on the first information report lodged by the petitioner.
3. Section 156 deals with "Police officer's power to investigate cognizable cases" and the same reads as follows:
"156. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
9. Section 482 Cr.P.C. and Article 226 of the Constitution of India with regard to de novo investigation was further considered in the case of Vinay Tyagi Versus Irshad Ali, reported in (2013) 5 SCC 762, -5- wherein the Hon'ble Supreme Court in paras-23, 43 and 44 has as follows:-
"23. However, in the case of a "fresh investigation", "reinvestigation" or "de novo investigation" there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct "fresh investigation".
This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of "fresh"/"de novo"
investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a "fresh investigation".
43. At this stage, we may also state another well-
settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions -6- and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
44. We have deliberated at some length on the issue that the powers of the High Court under Section 482 of the Code do not control or limit, directly or impliedly, the width of the power of the Magistrate under Section 228 of the Code.
Wherever a charge-sheet has been submitted to the court, even this Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Court feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Court to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of this Court in Disha v. State of Gujarat, Vineet Narain v. Union of India, Union of India v. Sushil Kumar Modi and Rubabbuddin Sheikh v. State of Gujarat."
10. In the above case, it was clearly held that whenever a chargesheet is submitted to the court, the Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency and identical is the situation in the case in hand, as the chargesheet has already been submitted in the case.
11. Further the prayer for investigation by the CBI was further considered by the Hon'ble Supreme Court in the case of ABCD Versus Union of India, reported in (2020) 2 SCC 52, where in paras-10, 11 and 12 it has been held as under:-
"10. The investigation into the crime registered pursuant to FIR No. 58 of 2018 lodged by the petitioner was conducted by a Special Investigation Team headed by ACP Ms Shweta Tiwari Singh and a charge-sheet has been filed. The apprehension that was expressed at some -7- stage that the mobile phones belonging to Respondent 7 were not being taken in custody, was dealt with by this Court and it was ensured that said mobiles would be in the custody of the investigating agency. The data from those mobiles was also sought to be recovered and it must be stated that Respondent 7 did extend cooperation in ensuring that the data could be retrieved. However, the assertion on behalf of the petitioner is that complete data has not been retrieved. Both the mobile phones were also sent for forensic analysis. It is suggested by the petitioner that certain pictures may have been taken by Respondent 7, which data is not presently available. However, what has been extracted from iCloud is fully available with the investigating agency. The data, in any case, would at best point that at various stages there were exchanges and conversation between the petitioner and Respondent 7 but what needs to be gone into at the appropriate stage is the basic submission that Respondent 7 had taken undue advantage of the petitioner on the fateful night. The contention that the mobile phone of the investigating officer was damaged may not be material as details of any conversation between the petitioner and the investigating officer, may also be proved through the mobile phone of the petitioner herself. There is thus, nothing substantial which could either show that the investigation was not well directed or had failed to look into a particular direction. In our considered view, nothing further is required to be done. At this stage, it may be stated that if any video or audio recordings are still being retained by the petitioner, they may be handed over to the Special Investigation Team within two days from today. It is left to the Special Investigation Team to consider whether that part needs to be dealt with in the supplementary charge-sheet which, as indicated above, is contemplated to be filed.
11. As regards the crime registered pursuant to FIR lodged by the mother of Respondent 7, protection has been afforded to the petitioner and her family members and the application under Section 438 of the Code has also been dealt with. An application filed by the petitioner under Section 482 of the Code is presently pending with -8- the High Court. It is, thus, clear that the petitioner has been invoking the processes of the court and adequate protection is being afforded to the petitioner and her family members. We, therefore, do not see any reason why the matter presently pending pursuant to the FIR lodged by the mother of Respondent 7 be transferred and investigation be entrusted to any other agency.
12. In the aforesaid circumstances we do not see any reason why investigation into both the aforesaid FIRs, at this stage, be entrusted to any Central Investigating Agency. All that we can say at this juncture is that the charge-sheet filed in the crime registered pursuant to FIR lodged by the petitioner shall be considered by the court concerned on its own merits and in accordance with law."
12. In view of the above, further in the case of Secretary, Minor Irrigation & Rural Engg. Services, U.P. Versus Sahngoo Ram Arya, reported in (2002) 5 SCC 521, the Hon'ble Supreme Court held that if it is clear that a decision to direct an inquiry by the CBI against a person is made out then only that can be done, if the High Court after considering the materials available on record, comes to the conclusion, and if prima facie disclosed then only one can call for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations.
13. In view of the judgments, with regard to the prayer of investigation by a particular agency, considering the facts of the present case, wherein the final form has been submitted and the petitioner has already availed the remedy available under Section 210 of the Cr.P.C. and further in view of the final form, he is having the further remedy of filing the protest petition, no case of transferring the case to any other particular agency is made out. Accordingly, the prayer made in the aforesaid I.A. No. 3695 of 2022 is rejected.
14. Consequently, considering that the final form has already been submitted, no further order is required to be passed in the present petition.
-9-Accordingly, this petition is disposed of with the liberty to the petitioner to file a protest petition, if so advised, before the learned court against the final form. It is also open to the petitioner to take steps with regard to petition pending under Section 210 Cr.P.C. before the learned court.
(Sanjay Kumar Dwivedi, J.) Amitesh/-