Calcutta High Court (Appellete Side)
Nepal Krishna Roy & Ors vs State Of West Bengal & Ors on 24 September, 2014
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
W. P. No. 33223 (W) of 2013
With
W.P. No. 19538 (W) of 2014
Nepal Krishna Roy & Ors.
-vs-
State of West Bengal & Ors.
For the petitioners : Mr. Tapas Kumar Ghosh,
In : Mr. Tanmoy Chowdhury
W.P. 33223 (W) of 2013
For the petitioenrs : Mr. Phiroze Edulji,
In : Mr. Rajdeep Biswas,
W.P. 19538 (W) 2014 : Mr. Ajay Chaubey,
: Mr. Avinash Kankani.
For the State : Mr. Kalyan Kumar Bandopadhyay,
: Mr. Manjit Singh, Ld. P.P.
: Mr. Abhratosh Majumder, Ld. G.P.,
: Mr. Pawan Kumar Gupta,
: Mr. Sirsanya Bandopadhyay,
: Mr. Suvro Lahiri.
For the Respondent No. 9. : Mr. Phoroze Edulji,
In : Mr. Rajdeep Biswas,
W.P. 33223 (W) of 2013 : Mr. Sirsendu Sinha Roy.
Heard on :, 22.07.2014, 19.08.2014, 04.09.2014 & 11.09.2014.
Judgment on : 24.09.2014
HARISH TANDON, J.:
The murder of one Sagar Ghosh shook the conscience of the public and the said incident was widely spreaded through news media. Immediate arrests were made and the petitioners in W.P. 33223(W) of 2013 were taken into custody. The aforesaid incident took place at 10.45 p.m. on 21st July, 2013 and a Police Station Case No. 79/2013 dated 22nd July, 2013 was registered under Section 448/326/307/34 of the Indian Penal Code. The aforesaid case was registered on the written complaint of the widow of the said deceased and appears to have received on 21st July, 2013 at about 4.05 hours.
The accused were presented before the learned Chief Judicial Magistrate, Birbhum on 22nd July, 2013 and the prayer for bail was rejected. The deceased who suffered a bullet injury died on 23rd July, 2013 at 5.30 a.m. On 23rd July, 2013 the daughter-in-law and the widow of the deceased made another complaint with the Superintendent of Police, Birbhum alleging that the second officer of the police station forcibly obtained signatures on the blank sheets of the papers and reproduced into a complaint naming four persons including the petitioners in W.P. No. 33223 (W)/2013 who in fact were not involved in the crime with an intent to save the real culprit who appear to be a highly influential persons in the locality and having political background. 41 persons were named in the said complaint including the political executives. When the bail petition of the petitioners in W.P.33223(W)/2013 came up before this Court, while granting the bail, this Court recorded that both the widow and the daughter-in-law stuck to their statement that the police prepared the false statement implicating those petitioners using the blank sheets on which their respective signatures were obtained.
The accused after having enlarged on bail filed the W.P. 33223(W)/2013 for issuance of mandamus to forthwith hand over the investigation and/or the said case to the Criminal Investigation Department, West Bengal for further and proper investigation without any delay. At the time of moving the writ petition, the defacto complainant i.e. the widow of the deceased was directed to be impleaded as a party-respondent. In the said writ petition and direction was made on the petitioners to serve copy of the writ petition upon all the respondents including the added respondent.
On 23rd December, 2013 the Court after recording no objection of the State for the investigation culminating in the death of the said Sagar Ghosh, directed the D.I.G, C.I.D to engage any suitable officer to take up the investigation who was further permitted to collect all the documents from the Panrui Police Station. The writ petition was adjourned with a specific direction upon the investigating officer to submit the preliminary report before this Court.
The matter again appeared on 24th January, 2014 when the State seeks further week's time to prepare and file the report. The Court recorded the note of dissent that the private respondent who being one of the eye-witness to the alleged murder of her husband, her statement was not recorded under Section 164 of the Code of Criminal Procedure. The Court even proceeded further to record that the statement of the eye witness i.e. daughter-in-law of the deceased was also not recorded. On an apprehension of threat to their life being put to the Court by the private-respondent, a direction was made upon the Superintendent of Police, Birbhum to ensure that no physical harm is caused to her and her family members.
Even on the returnable date i.e. on 27th January, 2014, no progress could be shown in the investigation as the State submitted that because of the communication gap the investigation could not be taken up by the C.I.D. and the papers have been received very recently. The Court proceeded to record further that since the state did not raise any objection to investigation being conducted by the CID, it was the duty of the learned advocate representing the State to inform the CID the contents of the earlier order dated 23rd December, 2013. While granting permission to the investigation officer to commence the investigation, he was directed to appear personally before the Court on the next date.
A status report in connection with the investigation was produced on 3rd February, 2014 in a sealed cover through the learned advocate representing the State and the Court perused the statements of all the eye-witnesses recorded under Section 164 of the Code of Criminal Procedure and directed the said report to be kept in a sealed cover and reposed further hope and trust upon the investigating officer to take up a meaningful steps in connection with the investigation process. It was strongly observed therein that if the said investigating officer fails in making a proper investigation, the Court may consider the desirability of handing over the investigation to some independent agencies.
A dissatisfaction was recorded by the Court on 10th February, 2014 over the manner in which the investigating officer has proceeded to investigate the case by arresting five persons to portray a picture that the investigation was moving in a right direction. It is again on the prayer of the learned advocate representing the State, some more time was granted to unearth the truth and to take necessary measures for proper investigation on the cause of the death of the victim.
This Court desired that the investigation should be taken from the C.I.D. and be handed over to a Special Investigation Team (S.I.T.) and directed the matter to be listed on 10th February, 2014 to enable the learned advocate for the State to take step regarding the formation thereof.
The Court expressed desire that Ms. Damayanti Sen, DIG, CID, should lead the Special Investigation Team and requested the learned Government Pleader to take the consent. On the returnable date, it appears that Ms. Sen has expressed her regret and inability to head the SIT citing work pressure and ill health and the Government Pleader communicated to the Court that the name of Mr. N. K. Singh, IG, CID, may be considered to lead the SIT. The petitioners, however, suggested the name of Mr. Soumen Mitra and Mr. Kalyan Mukhopadhyay, two senior most police officers to head the S.I.T and the Court interacted with Mr. Mitra who though said that he is bound to obey the order of the Court but disclosed certain issues which the Court thought might have an adverse effect on the investigation and even at the stage of trial.
However, the Court entrusted the D.I.G., West Bengal to shoulder the responsibility of forming the S.I.T. that shall function under the Court's surveillance to make the investigation to its logical conclusion with alacrity and promptitude. The Court, however, recorded that the political rivalry appeared to be an immediate cause of subject murder which led the earlier two investigating officers not to secure the arrest of the main players of the crime except five fringe players pretty recently.
It would be relevant and pertinent to record the full context of the order dated 14th February, 2014 which runs thus :
" 1. No meaningful progress in investigation of the murder of Sagar Ghosh, a septuagenarian, having been made by the police officer attached to CID, Birbhum investigating Panrui Police Station Case No. 79 of 2013 under Sections 448/326/307/34 IPC, added Section 302, IPC and Sections 25 and 27 Arms Act, I desired that Ms. Damayanti Sen, DIG, CID, West Bengal may lead a special Investigation Team (hereafter the SIT) that was intended to be constituted for unearthing the truth and for bringing the culprits to book. M. Banerjee, learned Government Pleader was requested to ascertain whether Ms. Sen would be willing to lead the SIT or not. Ms. Sen has expressed regret for her inability to do so citing work pressure and ill-hearth.
2. Mr. Banerjee then submitted that the Court may, in its discretion, consider the name of Mr. N. K. Singh, IG, CID for leading the SIT. Mr. Ghosh, learned advocate for the petitioners urged the Court to explore the possibility of appointing either Mr. Soumen Mitra or Mr. Kalyan Mukhopadhyay, two very senior police officers, as the leader of the SIT. I had the occasion to interact with Mr. Mitra yesterday in chamber. Although Mr. Mitra was candid that there was no question of not complying with any direction that the Court might wish to pass, certain issues (which I need not presently discuss) were raised by him for my consideration. Since such issues appear to be of relevance to me and might have an adverse effect on the investigation and even at the stage of trial, I feel dissuaded to direct to lead the SIT.
3.However, since the investigation so far has been far from satisfactory, a SIT has to be constituted for taking the investigation further in the right direction and to instil confidence in the minds of the family members of the victim as well as to reassure every member of the public that howsoever mighty and influential an accused is, none is above the rule of law.
4. Regard being had to the turn of events and having given my anxious thoughts to the materials on record, I consider it proper to direct the Director General of Police, West Bengal to shoulder the responsibility of forming the SIT that shall function under the Court's supervision to take the investigation to its logical conclusion with alacrity and promptitude. Since political rivalry at this stage appears to be immediate cause of the subject murder and I have a strong feeling about the two investigating officers being unable to secure the arrests of the main players of the crime, notwithstanding the arrests of five fringe players pretty recently, either because they yielded to influence or were under some sort of pressure so as to avert a future jeopardy (this should not be ground for contemplating departmental proceeding against them without the leave of he Court), the situation demands that the SIT should comprise the most forward-looking, firm, upright and bold officers of the police force and not those who are pliable or of weak and servile mentality, with the caveat that no discredit or disrespect is intended to those who are not included therein. The Director General shall be free to choose the members of the SIT in terms of this order and shall be responsible for the choices he makes. That the particular officer of the CID investigating the case so far has currently incurred my displeasure shall not be construed as a fetter for including other CID officers (both senior and junior) in the SIT, who deserve to be there.
5. The members of the SIT and the Director General shall be accountable to the Court for all their decisions, and shall not be answerable for any action taken in course of investigation which might ostensibly displease the political executive. I am sure that the Director General shall not leave any stone unturned to restore the lost glory of the police force of the State, which without doubt has cut a very sorry figure till now insofar as this case is concerned.
6. Needless to observe, neither the Director General shall solicit the Government's advice on any matter nor shall the Government volunteer to aid the Director General.
7. The names of the leader and other members of the SIT shall be informed to the Court by the Director General, maintaining confidentiality, by close of Court hours today. Photocopy of this order shall be given to the learned advocate for the State, on the usual undertaking."
(Emphasis supplied) Subsequently, the Director General informed the constituents of the SIT which comprised of Sri Ram Phal Pawar, IPS, Additional Director General of Police, CID, West Bengal, Mr. Niraj Kumar Singh, IPS, Inspector of Police, C.I.D., West Bengal, Mr. Sankar Prasad Bhattacharjee, Deputy Superintendent of Police, C.I.D., West Bengal and Mr. Tirthankar Sanyal, Inspector of Police, C.I.D., Headquarters, West Bengal. The Court constituted the SIT comprising those officers and directed Mr. Ram Phal Pawar to lead the investigating team and Mr. Tirthankar Sanyal was directed to act as an investigating officer. The Court further directed the investigating officers who were handling the case to hand over all the documents and papers and materials to any of the members of the SIT and the Director General was directed to monitor the investigation and to file report regarding the status of the investigation on 4th March, 2014.
The displeasure was recorded in the said order over the meaningful progress in the investigation which could be deciphered from the following excerpts from the later portion of the order dated 14th February, 2014:
" I hope and trust that by the returnable date 'meaningful progress' in investigation shall be made any by 'meaningful progress' is not meant arresting three or four of the several accused a day prior to filing of status report, but collecting material evidence, inter alia, to link the assailant(s) and the abettor(s) with the offence of murder of the victim as well as to unearth who was/were responsible for manufacturing documents to implicate the petitioners as the assailants of the victim, as alleged in the writ petition, and letting the victim leave for the other world without obtaining his statement regarding the identity of his assailants while he was conscious but reportedly 'disoriented and restless."
On 4th March, 2014 the Director General and Inspector General of Police (DGP) submitted a preliminary report dated 3rd March, 2014 in a sealed cover which contains the reports submitted by the leader of the SIT and the Court desired to produce the said report as well. However, the accused and the petitioner in the first writ petition W.P. 33223(W)/2013 filed a supplementary affidavit disclosing the facts that the statements of the petitioner Nos. 1 and 2 and one Priyaranjan Ghosh were recorded by the investigation officer on 21st April, 2014 in the afternoon which remained in complete. Because of the insufficient light and the exhaustion of the battery, the video recording was partially done and it was informed that they would come on the next date to complete the same. It is alleged that though they wanted to divulge certain important facts in writing and the recording of the statement to be made under Section 164 of the Code of Criminal Procedure but the same is not done. It is further alleged that the petitioner No. 3 in the first writ petition W.P. 33223(W)/2013 disclosed the name of the culprits and the conspirators in the written statement and handed over the same while the video recording was being done.
The matter was listed on the next day. The learned Government Pleader handed over the video footage which was retained with the records. However, the SIT was directed to continue with the investigation in the proper and meaningful manner and to apprise the Court in the form of the report about the developments when the matter shall be listed next.
The statement of one of the two eye-witnesses, namely, the petitioner in the second writ petition was recorded by the SIT which was also video graphed. Her statement revealed that a Jana Sabha was held on 17th July, 2013 in the village called Kasba where two political leaders delivered a speech that all the houses of the independent candidates (contesting the Panchayat Polls) should be broken and burnt which resulted into the harassment on a family members and continuous threat being made from outside their houses. Even the bombs were blasted at regular intervals at the evening and even deep in the nights.
This Court enquired from the Government Pleader whether the DGP has looked into such video footage before submitting the report in this regard. The Court further directed the compact disk to be made over to the Deputy Superintendent of Police, a member of the SIT, for its onward transmission to the DGP. The Court further observed that the DGP did not look into the video footage before submitting the report even an unsigned report of the DGP does not record such facts. The DGP expressed his dismay in making a prayer to disassociate him with the monitoring of the case as he should not be tied up to monitor a single case perusing the weekly reports discussing with the SIT and watching video footage for a long time.
The Court recorded its dissatisfaction on the functioning of the DGP as the aforesaid action portrays the extreme lack of solicitude for the rule of law and borders of contempt.
It is only on the prayer of the learned Government Pleader fervently seeking time to file further report disclosing the developments in the investigation, the Court, even after recording its dissatisfaction and showing desirability to entrust the investigation to CBI, adjourned the hearing with a request to the electronic media to furnish, if available, video footage of the alleged speeches as referred by the said daughter-in- law.
On 7th April, 2014 two private television news channels A.B.P. Ananda and 24 Ghanta supplied the video footage of the speeches dated July 17, 2013, as referred by the daughter-in-law in a statement under Section 161 of the Code of Criminal Procedure which was played in open Court in presence of the respective advocates. The Court recorded the text of the speeches and its concern over the investigation being conduced by the SIT and further reposed trust on the DGP to take appropriate steps. The DGP filed further report on 10th April, 2014 before this Court, explaining the position in relation to his impression on the video footage of the speech delivered by one of the political executive on 17th July, 2013 during the public meeting.
As per the said report, a letter was issued by the District Magistrate, Birbhum on 22nd July, 2013 indicating the alarmity of the civil administration in the district and sub inspector of police attached to Panrui Police Station made a prayer before the Chief Judicial Magistrate, Suri for granting permission to investigate the matter with a view to submit prosecution under Section 191/505(1)(b) of the Indian Penal Code and an order was passed for registration of a case under Section 436/117/332/353/189/505(1)(b) of the Indian Penal Code which led to the registration of Panrui Police Station Case No. 80/2013 dated 26th July, 2013.
A submission was made before the Court that it is absolutely within the power of the investigating officer/police to arrest or not to arrest under Section 41 of the Code of Criminal Procedure and such discretion has been exercised in not arresting the said political executive. The Court, however, strongly recorded its dissatisfaction over the action of the SIT during the investigation and directed the DGP to appear before the Court to explain his conduct.
The State challenged the said order in an intra Court appeal before the Division Bench being AST 164/2014 and operation of the said order was stayed. Two Special Leave Petitions were moved before the Supreme Court against an order dated 11th April, 2014 by which the Division Bench granted the stay of the operation of the order dated 10th April, 2014 passed in W.P. 33223(W)/2013 which came to be dismissed as having filed against the interim order.
The appeal was disposed of by the Division Bench on 6th May, 2014 expunging the remark made against the Hon'ble the Chief Minister meaning thereby the rest of the order was uninterfered with. However, it was observed by the Division Bench that the Hon'ble Single Judge who is dealing the writ petition may consider the desirability of the personal appearance of the DGP after considering the report filed before the Division Bench.
On 17th June, 2014 the respondents were permitted to exchange their affidavits and the matter was directed to appear on 8th July, 2014.
The Court perused the reports submitted before the Division Bench and also the order and opined that the personal appearance of the DGP is necessary. However, on the prayer of the Government Pleader, the matter was adjourned on the next date.
While the hearing of the writ petition was being furthered, it was brought to the notice of the Court that a charge sheet has been filed by the SIT before the jurisdictional Magistrate and thus, the Court is denuded of further monitoring the investigation. By an order dated 19th August, 2014 , the DGP was directed to appear personally on the next date to explain why the leave or permission of the Court was not taken as also without informing the Court, the charge sheet came to be filed.
The DGP appeared in person on 4th September, 2014 and sought leave of the Court to file affidavit explaining the circumstances leading to filing the charge sheet. On being asked by the Court, the DGP said that after the investigation was over, he was well advised by the state advocates that there is no impediment and/or fetter and/or restrictions in submitting the charge sheet. He further said that he has been categorically advised that the Court had been apprised of the completion of the investigation and filing of the charge sheet shall not amount to disobeying the Court's majesty and/or sanctity.
Amidst the aforesaid orders being passed on regular intervals, the daughter-in-law of the victim filed an independent writ petition being W.P. 19538(W)/2014 with a prayer to hand over the investigation to any other investigating agencies than the investigating agency who is pursuing the investigation.
It would be repetitive to record the facts which are already narrated herein above except those which does not germane from the previous writ petition. Apart from alleging the tainted investigation by the CID, the emphasis is made on the so called First Information Report registered by the officer of the Panrui Police Station after obtaining the signature of the widow and the daughter-in-law on the basis of the blank sheets forcibly obtained. According to the said writ petitioner, the true and correct facts and/or incidents are recorded in the complaint dated 23rd July, 2013 disclosing 41 names including the names of two political persons and the false implication of the petitioners of the first writ petition.
An extensive and elaborate arguments are advanced at the bar on various facets of law some of which appears to be more academic unrelated and unconnected with the core issue. Umpteen number of judgments are cited by both sides which are repetitive of the ratio laid down by the Apex Court some of which are consistently followed and do not take a departing view. Dealing each judgment on a point of law adopting the similar view and dealing the same separately would be too burdensome and increase the volume of the judgment.
The Apex Court in case of Rashmi Metaliks Ltd. -v- Kolkata Metropolitan Development Authority reported in (2013) 10 SCC 95, the Court held :
7. This Court, and even more so the High Court as well as the subordinate courts have to face lengthy arguments in each case because of the practice of citing innumerable decisions on a particular point of law. The correct approach is to predicate arguments on the decision which holds the field, which in the present case is Tata Cellular v. Union of India rendered by a three-Judge Bench. The rule of precedence, which is an integral part of our jurisprudence, mandates that this exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly by all smaller Benches and subordinate courts. We hasten to clarify that if a coordinate Bench considers the ratio decidendi of the previous Bench to be of doubtful efficacy, it must comply with the discipline of requesting the Hon'ble the Chief Justice to constitute a larger Bench.
Furthermore, there are some instances of decisions even of a Single Judge, which having withstood the onslaughts of time have metamorphosed into high authority demanding reverence and adherence because of its vintage and following in contradistinction of the strength of the Bench. This is a significant characteristic of the doctrine of stare decisis. Tata Cellular has been so ubiquitously followed, over decades, in almost every case concerning government tenders and contracts that it has attained heights which dissuade digression by even a larger Bench. The law of precedence and of stare decisis is predicated on the wisdom and salubrity of providing a firmly founded law, without which uncertainty and ambiguity would cause consternation in society. It garners legal predictability, which simply stated, is an essential. Our research has revealed the existence of only one other three-Judge Bench decision which has dealt with this aspect of the law, namely, Siemens Public Communication Networks (P) Ltd. v. Union of India, which is in actuality an anthology of all previous decisions including Tata Cellular. The sheer plethora of precedents makes it essential that this Court should abjure from discussing each and every decision which has dealt with a similar question of law. Failure to follow this discipline and regimen inexorably leads to prolixity in judgments which invariably is a consequence of lengthy arguments.
Mr. Tapas Ghosh, the learned advocate appearing for the petitioner in the first writ petition submitted that the High Court can monitor the investigation by appointing an independent agency in exercise of power conferred under Article 226 of the Constitution. Such power is not restricted and abridged by the power conferred upon the Magistrate under the Code of Criminal Procedure. It is audaciously submitted that the power of Magistrate is restricted to further investigation on the other hand the High Court in exercise of its power under Article 226 of the Constitution can direct reinvestigation and/or investigation de novo. In support of the aforesaid contention, he placed reliance upon a judgment of the Supreme Court rendered in case of Vinay Tyagi -Vs- Irshad Ali & Ors reported in (2013) 5 SCC 762. He audaciously submitted that mere filing the charge sheet by the SIT cannot act as a deterrent to the High Court from appointing an independent agency like CBI to reinvestigate and/or make fresh investigation as held in case of Narmada Bai -Vs- State of Gujarat & Ors; reported in AIR 2011 SC 1804.
He further submits that alacrity, promptness and fairness to ensure compliance of the rule of law is the requirement of Article 19, 20 and 21 of the Constitution and any tainted, designed and negligent investigation would shake the faith and confidence of the people in fair and transparent administration of justice as held by the Supreme Court in Karan Singh -Vs- State of Haryana & Anr. reported in 2014 (2) AICLR 907.
He would further submit that though the Court constituted SIT for fair and transparent investigation but the sequel of events recorded in several orders passed in this writ petition indicates unfairness and biased investigation and not proceeding in the right direction. The Court can take note of those events to mould the relief by handing over the investigation to an independent agency like CBI. He strenuously submits that his clients were falsely implicated on the basis of an First Information Report which was obtained by use of force on making the document by obtaining a signature on the blank papers. Lastly he submits that the eye-witnesses in the complaint filed subsequently did not record the involvement of the petitioner in commission of the said offence and named 41 persons including two influential political executive in the said complaint and no action have been taken against those persons.
Mr. Manjit Singh, the learned Public Prosecutor founded his argument on a simple issue that after filing of the charge sheet, the Court cannot continue monitoring the investigation. To buttress the said argument, he relied upon a judgment of the Supreme Court in case of Union of India & Ors; -v- Sushil Kumar Modi & Ors; reported in (1998) 8 SCC 661, Vineet Narain & Ors; -v- Union of India & Another reported in (1998) 1 SCC 226 and Jakia Nasim Ahesan & another -v- State of Gujarat reported in AIR 2012 SC 243 and Rajiv Ranjan Singh 'Lalan' (VIII) & another -v- Union of India & Ors; reported in (2006) 6 SCC 613. Mr. Singh audaciously submits that under Section 41 of the Code of Criminal Procedure, the investigating officer has a discretion to arrest or not to arrest a person and the Court cannot interfere with such discretionary power of the investigating officers in directing the arrest of a person.
Mr. Kalayan Kumar Bandopadhyay, who subsequently appears for the State, advanced the argument on the issue of registration of one FIR for one offence. He strenuously submits that there cannot be two FIR for the same offence and, therefore, the subsequent complaint lodged by the daughter-in-law of the deceased cannot be registered as FIR. In support of the aforesaid contention, he placed reliance upon the judgment of the Supreme Court in case of Vinay Tyagi -v- Irshad Ali alias Deepak & Ors; reported in (2013) 5 SCC 762, T. T. Antony -v- State of Kerala & Ors; reported in (2001) 6 SCC 181, Babubhai -v- State of Gujarat & Ors; reported in (2010) 12 SCC 254. Mr. Bandopadhyay vehemently submits that the constitutional Court should not direct the CBI to investigate into the case unless the examination of the allegations prima facie proves an exceptional circumstances and to secure the complete justice as held in State of Punjab -v- Davindar Pal Singh Bhullar & Ors; reported in (2011) 14 SCC 770. According to him, the power under Article 226 of the Constitution to direct investigation by CBI should be exercised sparingly, cautiously and in exceptional situation. In support of the aforesaid contention, he placed reliance upon a judgment of the Supreme Court rendered in case of State of West Bengal & Ors; -v- Committee for Protection of Democratic Rights, West Bengal & Ors; reported in (2010) 3 SCC 571, T.C. Thangaraj -v- V Engammal & Ors; reported in (2011) 12 SCC 328 and Doliben Kantilal Patel -v- State of Gujarat & another reported in (2013) 9 SCC 447. He succinctly argues that direction for inquiry by CBI should not be directed in a routine manner unless there is a sufficient materials disclosed in the pleading and relied upon the judgment of the Supreme Court in case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others; -v- Sahangoo Ram Arya & another reported in (2002) 5 SCC
521. While emphasizing on the exercise of judicial power under Article 226 of the Constitution, Mr. Bandhopadhyay would submit that the petitioners of both the writ petitions are not remediless as they can approach the Magistrate by raising an objection against the charge sheet and, therefore, there exists an alternative remedy which put a fetter on the High Court to consider the application under Article 226 of the Constitution. According to him when alternative remedy is available which is otherwise efficacious and complete, the High Court should refuse to pass any order under Article 226 of the Constitution and placed reliance upon a judgment of the Supreme Court in case of Nivedita Sharma -v- Cellular Operators Association of India & Ors; reported in (2011) 14 SCC 337 and General Manager, Sri Siddeshwara Co- operative Bank Ltd & another -v- Ikbal & Ors; reported in (2013) 10 SCC 83. By placing reliance upon a judgment of the Apex Court in case of M.C. Abraham & another -v- State of Maharashtra & ors; reported in (2003) 2 SCC 649, Mr. Bandopadhyay submits that the High Court cannot direct the investigation agency to arrest a person as the same is within the discretion of the investigation officer under Section 41 of the Code of Criminal Procedure. On the discretionary power of the investigating officer in arresting a person, a reliance is placed upon a judgment rendered in case of Som Mittal -v- Government of Karnataka reported in (2008) 3 SCC 753. He thus argues that there is no material disclosed in the writ petition, which may justify the direction upon the CBI to investigate in the matter.
Mr. Edulji, the learned Advocate appearing for the petitioner in second writ petition submits that the High Court can direct the CBI to investigate the case to secure the justice and also to instill confidence in the public mind. According to Mr. Edulji, the power enshrined under Article 226 of the Constitution upon the High Court cannot be circumscribed and/or curtailed even after, the charge sheet is submitted to the Magistrate. On the aforesaid issues, he relied upon a judgment of the Supreme Court in case of Gudalure M.J. Cherian & Ors; -v- Union of India & Ors; reported in (1992) 1 SCC 397, R.S. Sodhi -v- State of U.P. reported in AIR 1994 SC 38, Punjab & Haryana High Court Bar Association, Chandigarh -v- State of Punjab reported in AIR 1994 SC 1023, State of W.B. -v- Committee for Protection of Democratic Rights, W.B. reported in AIR 2010 SC 1476, Ashok Kumar Todi -v- Kishwar Jahan reported in AIR 2011 SC 1254, State of Punjab -v- Davindar Pal Singh Bhullar reported in AIR 2012 SC 364 and Dinubhai Boghabhai Solanki -v- State of Gujarat reported in 2014 AIR SCW 1722.
According to him, the Court while constituting the SIT clearly indicated that the investigation agency shall not take the assistance of the Government or its officer which is discernible from the order dated 14th February, 2014. He further submits that the investigation and prosecution are two different facets in the administration of criminal justice and the role of the public prosecutor is not to involve in the investigation as held in case of R. Sarala -v- T. S. Velu reported in AIR 2000 SC 1731 and Navinchandra N. Majithia -v- State of Meghalaya reported in AIR 2000 SC 3275. Mr. Edulji further submits that fair investigation and fair trial are concomitant to preservation of fundamental right of both the accused as well as the victim of the crime under Article 21 of the Constitution of India as held in case of Nirmal Singh Kahlon -v- State of Punjab reported in AIR 2009 SC 984. Mr. Edulji continued to submit that the investigating officer must proceed ethically leaving a scope for any allegation of mala fide or bias as held in Karan Singh -v- State of Haryana reported in AIR 2013 SC 2348. Mr. Edulji says that there cannot be two FIR for the same cognizable offence if it is not a counter case but if both the FIR spelt out the distinct and separate cognizable offences, there is no impediment in proceeding to investigate. He thus submits that events recorded in series of the orders passed in the writ petition justifies the investigation by the CBI to secure the end of Justice and to instill the confidence of the public.
The issues involved in this writ petition are :
1. The High Court can entrust the investigation upon an independent agency in exercise of power conferred under Article 226 of the Constitution of India,
2. The High Court can monitor the investigation after the charge sheet is filed before the Magistrate,
3. Whether there can be more than two First Information Report for the same offence.
In case of Vinay Tyagi (Supra ), a point arose whether the Central Bureau of Investigation can conduct fresh/reinvestigation after the charge sheet is filed by the investigating officer and the cognizance has been taken by the Magistrate. It is further held that the initial investigation is vested upon the police officer to be conducted in furtherance of the registration of First Information Report whereas the further investigation is permissible after the investigating officer collects further oral or documentary evidence after the submission of the final report which is distinct and separate from reinvestigation, fresh or de novo investigation. For fresh and de novo investigation, a specific order of the Court is required which does not include the Magistrate and the investigating agency. The said power can be exercised by the High Court when the investigation appears to be unfair, tainted and smacks of foul play in these words :
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".
In paragraph 43 the supreme Court in case of Vinay Tyagi (Supra) held that the superior Courts have jurisdiction under Section 482 of the Code Of Criminal Procedure or under Art 226 of the Constitution to direct the further investigation/reinvestigation and de novo investigation in the ends of justice so demands in these words:
"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 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."
The Supreme Court in case of Narmada Bai (supra) was dealing an application under Article 32 of the Constitution praying for issuance of the writ of mandamus directing the Central Bureau of Investigation to conduct investigation. In the said case, the mother of the deceased filed the said writ petition before the Supreme Court alleging the fake encounter killing her son and she was a material witness in another case. It was submitted on behalf of the State of Gujarat that an investigation is completed by the investigating officer and a charge sheet has been filed and therefore, there is no need to direct the Central Bureau of Investigation to make further investigation.
" It is clear that in an appropriate case, particularly, when the Court feels that the investigation by the State Police Authorities is not in the proper direction as the high police officials are involved, in order to do complete justice, it is always open to the Court to hand over the investigation to an independent and specialised agency like the C.B.I."
In Karan Singh -Vs- State of Haryana & anr; reported in 2014 (2) AICLR 907, the Supreme Court held that the investigation into criminal offences should be fair, unobjectionable and should not percolate the apprehension in the minds of the accused that it is carried out unfairly and with designed motive. It is further held that the investigating agency should not be influenced by any extraneous influence and such investigation must be done judiciously, fairly, transparently and expeditiously to secure the rule of law.
The case of Vineet Narain -v- Union of India reported in AIR 1998 SC 889 is a classical example where the High Court and the Supreme Court can issue continuous mandamus to eliminate any impression of abuse or lack of fairness or objectivity. In order to secure the credibility of the investigation, the High Court or the Supreme Court can pass orders from time to time to maintain the credibility of the investigation. This is how the concept of monitoring by the Court is developed. In such backdrop, it is held that once the charge sheet came to be filed the monitoring would come to an end and it is left to the Magistrate or the Court of Sessions to take up the task under the provision of the Code of Criminal Procedure to reach the logical end in following words:
11. It is significant that the machinery of investigation started moving as a result of these orders and after investigation of the allegations made against several persons on the basis of the contents of the Jain Diaries, charge-sheets were filed in the competent court in the first instance against 14 persons, as reported to the Court on 22-2-1996.
Charge-sheets against many other persons were filed in the competent court thereafter as reported later from time to time. In all, 34 charge- sheets against 54 persons have been filed on this basis. Thus, as indicated earlier, the purpose of these proceedings to the extent of the complaint of inertia of the investigating agencies came to an end with the filing of these charge-sheets, since the merits of the accusation against each individual has, thereafter, to be considered and dealt with by the competent court at the trial, in accordance with law. Trial in the competent court is now a separate proceeding. In Jakia Nasim Ahesan and Another-Vs- State of Gujarat and Ors; reported in AIR 2012 SCC 243, a writ petition filed before the Gujarat High Court seeking a direction upon the Director General of Police, State of Gujarat to register the private complaint and to direct the investigation to be done by an independent agency. The applicant to the said writ petition was one of the victims of Godhra incident. The writ petition was dismissed by the High Court as the investigating agency has completed the investigation and the case is committed to trial and, therefore, the remedy of the writ petitioner therein to approach the Court for further investigation in terms of Section 173(8) of the Code. The said order was carried to the Supreme Court. A Special Investigation Team was constituted for carrying out further investigation headed by former DIG, CBI and a report was submitted to the Court. The amicus curiae was appointed and was entrusted to examine the report and to submit his independent assessment of the statements in the form of the report. The Apex Court did not record any dissatisfaction on the aforesaid reports being unfair and/or biased. Since the Court monitoring the investigation is basically concerned with ensuring the proper and honest performance of duty by the investigating agency and in absence of lack of sincerity, fairness and transparent investigation, the monitoring would come to an end and the ball is set to roll for determination at the trial on the filing of the charge sheet in these words :-
10. Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by SIT, to the court which had taken cognizance of Crime Report No. 67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to SIT to obtain from the amicus curiae copies of his reports submitted to this Court. The said court will deal with the matter in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code.
In case of Sushila Devi -Vs- State of Rajasthan & Ors; reported in AIR 2014 SC (Criminal) 158 an order was passed on an application filed by the applicant therein directing the CBI to hold an investigation and it was specifically recorded by disposing of the said application that no order need be passed on the said writ petition. During the investigation, another miscellaneous petition was filed by the applicant praying for monitoring the investigation, with further direction upon the CBI to place the findings of the investigation before the Court before proceeding to file the same before the competent authority at Jaipur. The Court found that the CBI has not completed the investigation and after recording the dissatisfaction directed the CBI to complete the investigation within two months. The CBI completed the investigation and submitted the charge sheet before the competent authority. A further investigation was directed under Section 173 (8) of the Code of Criminal Procedure and upon completion thereof, a supplementary charge sheet was filed and the matter was set in motion before the Sessions Judge. At this stage, a further prayer was made to continue monitoring the case pending before the Sessions Court. A point was raised that once the charge sheet is filed, the Court should not continue monitoring the case and in such background, it is held that once the investigating agency completed the investigation and filed the charge sheet before the Court, it would not be proper to keep on monitoring the trial which is an exclusive domain of the competent court, it would be apt to quote the following observations which runs thus :
"14. After analyzing all these decisions, it appears to us that this Court has already in a catena of decisions held and pointed out that the monitoring of a case is continued till the investigation continues but when the investigating agency, which is appointed by the Court, completes the investigation, files a charge sheet and takes steps in the matter in accordance with the provisions of law before a competent court of law, it would not be proper for this Court to keep on monitoring the trial which is continuing before a competent Court. accordingly, we are of the opinion that since the investigation has already been completed, charge sheet has been filed, trial has already commenced, it is not necessary for this Court to continue with the monitoring of the case in question."
The case of Union of India and Ors; -Vs- Sushil Kumar Modi and Ors; reported in (1998) 8 SCC 661 relied by the respondents merely reiterates the observation made in Vineet Narain (supra) that after the charge sheet is filed before the Magistrate, the Court should not further monitor the investigation as the same has come to an end. In the said report, the point was whether the Court shall still monitor the matter relating to execution of the warrant issued by the Special Court against the high political executive. It was pointed out therein that certain orders passed by the High Court may be construed as monitoring/controlling over the disciplinary proceedings against the officers of the CBI who happens to be the one of the members of the Investigating Team. The Supreme Court clarified that the order passed by the High Court shall only be understood in the context of ensuring that there is no influence in the investigating work in the following words :
"7. The learned Attorney General expressed the apprehension that certain observations in the impugned order of the High Court may be construed as enabling the High Court to monitor/control even disciplinary proceedings against an officer of the CBI if he happens to be in the team investigating any of the alleged offences. This prompts us to observe that the monitoring by the High Court of the case for the purpose of ensuring that the CBI and other agencies properly investigate the alleged offences and file a charge-sheet if a prima facie case is made out does not mean that the normal disciplinary control of departmental superiors over the officers concerned stands transferred to the High Court. The order made by the High Court in this behalf has to be understood merely as ensuring that there would be no interference in the investigative work being performed by the officers in the team which might hinder the course of the investigations.
8. We have already said that in this matter, after the charge-sheet was filed in the Special Court, no part of the proceeding remained in the High Court, since the process of monitoring had already ended with the filing of the charge-sheet, and, therefore, there was no occasion for any of the officers of the CBI to approach the High Court in respect of a matter which was being dealt with by the Special Court or for the High Court to take any action thereon. The entire order of the High Court having been made in this situation, the whole of it has to be set aside."
The case in Rajiv Ranjan Singh 'Lalan' and Anr -Vs- Union of India & Ors; reported in (2006) 6 SCC 613 relates to Public Interest Litigation filed by the two members of parliament alleging the large scale of defalcation of public funds and falsification of an account involving 100 crores of rupees in the department of animal husbandry in the state of Bihar. The allegation therein relates to fodder scam against two former Chief Ministers in the State of Bihar and a writ petition before the Supreme Court was disposed of directing the investigation to be monitored by the Division Bench of the Patna High Court and the CBI officers who were entrusted with the investigation directed to inform the Chief Justice of the Patna High Court from time to time of the progress made in the investigation and an allegation in the writ petition was made on the attempt being made to delay and interfere with the judicial process because of the change of government in centre. Further allegation was made that the public prosecutors who were handling the cases were removed to protect the interest of those Former Chief Ministers of Bihar. The reliefs claimed in the said writ petition where the monitoring the conduct of trial relating to the fodder scam cases, the same public prosecutors should be appointed who was subsequently removed at least one inspector should be appointed for each fodder scam case and the cancellation of bail granted to those Former Chief Ministers.
Justice A.R. Laxman concurring the view expressed by the other Hon'ble Judge in his separate judgment held that once a charge-sheet is filed in the competent Court after conclusion of the investigation the monitoring of the Court for the purpose of making CBI and other investigative agencies comes to an end and it is only the Court where the charge sheet is filed shall deal with all matters relating to trial including the matters falling under the scope of Section 173 (8) of the Code.
In a recent judgment delivered in case of Manohar Lal Sharma - vs- Principal Secretary & Ors; reported in (2014) 2 SCC 532, the point for consideration was whether the approval of the Central Government is necessary under Section 6A of Delhi Special Police Establishment Act, 1946 in a matter where the inquiry/investigation into the crime under the Prevention of Corruption Act, 1988 is being monitored by the Court. the Court made a distinction between the monitoring and supervision in Paragraph 39 which runs thus:
"39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such "Court-directed" or "Court- monitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression "Court-monitored" has been interchangeably used with "Court-supervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time-bound manner without any external interference."
In the concurring judgment rendered by Justice Lokur, it is categorically held that an embargo created on the executive in the statute cannot curtail and/or restrict the power of the High Court in monitoring the investigation under Article 226 of the Constitution in these words:
"98. The law laid down by the Constitution Bench vis-à-vis a High Court exercising judicial review under Article 226 of the Constitution and a statutory restriction under Section 6 of the Act, would apply (perhaps with greater vigour) mutatis mutandis to the exercise of judicial review by this Court under Article 32 of the Constitution with reference to a statutory restriction imposed by Section 6-A of the Act. That being so, Section 6-A of the Act must be meaningfully and realistically read, only as an injunction to the executive and not as an injunction to a constitutional court monitoring an investigation under Article 32 of the Constitution in an exercise of judicial review and of issuing a continuing mandamus."
Reference to the case of Rubabbuddin Sheikh -vs- State of Gujarat & Ors; reported in (2010) 2 SCC 200 can be conveniently made on the proposition of law whether the Court can direct the transfer of inquiry to CBI or any other independent agency after the charge sheet is filed before the Magistrate. The Bench after noticing the judgment rendered in case of Vineet Narain, Sushil Kumar Modi and Rajiv Ranjan Singh (supra) held:
"60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the court in the criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge- sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.
61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in court. On this ground, we have carefully examined the eight action taken reports submitted by the State police authorities before us and also the various materials produced and the submissions of the learned counsel for both the parties."
In case of State of Punjab -vs- CBI & Ors; reported in (2011) 9 SCC 182, the High Court directed the investigation to be done by CBI even after the charge sheet was filed by the Police as the powers of the High Court under Article 226 of the Constitution cannot be curtailed and/or taken away by an act of the Parliament but such power should be exercised by the High Court sparingly, cautiously and in exceptional circumstances to secure the credibility and the confidence in the investigation.
The power of the High Court to transfer the matter to CBI or other independent agency was further recognized in case of State of Punjab - vs- Davinder Pal Singh Bhullar & Ors; reported in (2011) 14 SCC 770 in the following words:
"74. This Court in Disha v. State of Gujarat after considering the various judgments of this Court, particularly, in Vineet Narain v. Union of India, Union of India v. Sushil Kumar Modi, Rajiv Ranjan Singh 'Lalan' (8) v. Union of India, Rubabbuddin Sheikh v. State of Gujarat and Ashok Kumar Todi v. Kishwar Jahan held that the Court can transfer the matter to CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State authorities like high police officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.
75. Thus, in view of the above, it is evident that a constitutional court can direct CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible."
In case of Shantibhai J. Vaghela -vs- State of Gujarat reported in (2012) 13 SCC 231, the Apex Court in express terms held that the Court can direct further investigation by CBI even after the charge sheet is filed in these words:
"29. We also deem it appropriate to add that though several decisions of this Court had been placed before us to demonstrate that it is open to this Court to direct further investigation by CBI even after the State Police may have filed the charge-sheet upon completion of its investigation, we do not consider it necessary to go into any of the said decisions in view of our conclusions as recorded above. The mere reiteration of the availability of the judicial power to direct further investigations even after filing of the charge-sheet as held in Narmada Bai v. State of Gujarat would suffice for the present."
The investigation is a delegate painstaking and dexterous process. The ethical conduct is absolutely essential for investigating professionalism which should be above the allegation of mala fide and/or bias. It is an onerous and responsible duty cast on the investigating officer to conduct the investigation avoiding any possibility of fabrication of evidence and his impartiality dispelling any suspicion or its genuinity. His prime duty is to bring out the real unworthiness truth to instill the confidence of the public and rule out the sense of being partitioned or to suppress or save person holding any high position in the society. Any extraneous force and/or influence in the investigation process may result into tainted and unfair investigation. Any investigation with an object to help a person cannot be taken to have been done judiciously, fairly and transparently.
Ordinarily the Court should not direct the investigation by an independent agency including CBI after the filing of the charge sheet but the same cannot act as a deterrent in entrusting the investigation to CBI to secure the Justice between the parties and to instil confidence in the public mind as held in Gudalure M. J. Cherian & Ors; -vs- Union of India & Ors; reported in (1992) 1 SCC 397. The investigation by CBI can be directed if the earlier investigation has not been done faithfully and lacks credibility. It is only an exceptional and extreme circumstances, the fresh investigation through specialized agency can be directed when such investigation is tainted, lacks in fairness and has been done with extraneous influence.
The Constitution Bench in case of State of West Bengal & Ors. - vs- Committee for Protection of Democratic Rights, West Bengal & Ors; reported in AIR 2010 SC 1476 held that the power under Article 226 of the Constitution in directing the investigation by CBI should not be made in routine manner but the very plentitude of the power requires great caution and imposed self-restriction. It is only when the circumstances demand and the materials disclosed calls for the investigation by the CBI, such power can be exercised in these words:
"46. In Kehar Singh v. Union of India, speaking for the Constitution Bench, R.S. Pathak, C.J. held that in keeping with modern constitutional practice, the Constitution of India is a constitutive document, fundamental to the governance of the country, whereby the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries with the intention of working out, maintaining and operating a constitutional order.
47. On the aspect of interpretation of a Constitution, the following observations of Dickson, J. of the Supreme Court of Canada in Hunter v. Southam Inc. are quite apposite:
"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
The aforesaid Constitution Bench judgment was noticed in a subsequent decision rendered in case of Ashok Kumar Todi -vs- Kishwar Jahan & Ors; reported in AIR 2011 SC 1254 and it is held that though the extraordinary power under Article 226 of the Constitution should be exercised cautiously and in exceptional circumstances but if the Justice demands and to instill the confidence in investigation, such power should be exercised in following words:
"After saying so, the Constitution Bench has clarified that this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights."
It admits no debate on a proposition of law that the High Court can direct the investigation by CBI or any other specialized agency after arriving to a definite conclusion that the same is justified but such exercise of power should not be done in a routine manner (See Secretary, Minor Irrigation and Rural Engineering Services, U. P. & Ors; -vs- Sahngoo Ram Arya & another reported in (2002) 5 SCC 521, T. C. Thangaraj -vs- V. Engammal & Others; reported in (2011) 12 SCC 328 and Doliben Kantilal Patel -v- State of Gujarat & anr reported in (2013) 9 SCC 447.
The next point emerged before this Court is that there cannot be two FIR for the said offence. An elaborate argument is advanced at the bar on the above issue and several judgments came to be cited on this point. The aforesaid proposition of law has been set at rest by the Supreme Court in case of T.T. Antony -v- State of Kerala & Ors; reported in (2001) 6 SCC 181 in clear explicit and unequivocal term that there cannot be two FIR for the same offence unless it is a cross case. The aforesaid proposition is further fortified in case of Kari Choudhay -vs- Mst. Sita Devi & Ors; reported in AIR 2002 SC 441 that if there is a rival version in respect of the same incident, the investigation can be carried out under both by the same investigating agency. It would be relevant to quote Paragraph 11 which reads thus:
"Learned counsel adopted an alternative contention that once the proceedings initiated under FIR No. 135 ended in a final report the police had no authority to register a second FIR and number it as FIR No. 208. Of course the legal position is that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. Even that apart, the report submitted to the court styling it as FIR No. 208 of 1998 need be considered as an information submitted to the court regarding the new discovery made by the police during investigation that persons not named in FIR No. 135 are the real culprits. To quash the said proceedings merely on the ground that final report had been laid in FIR No. 135 is, to say the least, too technical. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who have committed it."
The aforesaid proposition is further fortified in case of Amitbhai Anilchandra Shah -v- Central Bureau of Investigation & Anr; reported in (2013) 6 SCC 348. The Court applied the "consequence test"
i.e. if the offence forming the part of the second FIR arises as a consequence of the evidence alleged in the first FIR then offence covered by both the FIR are the same and the offence covered in both the FIR should be treated as a part of first FIR.
Though two FIR cannot be registered for the same offence which does not mean that the cognizance should not be taken whatever has been stated in the second complaint as the same can be treated as a part of the first FIR. The subsequent complaint filed by the widow and the daughter-in-law not only contains the information relating to the incidence of murder covered under the first FIR but also contains a statement that the first FIR have been lodged after forcibly obtaining the signature on the blank sheets by the police officer attached to the Parui Police Station, which is a distinct and separate offence. Though some of the information are remotedly connected with the incident of murder of Sagar Ghosh, those information can be taken note of by the investigating agency in course of the investigation. It is inconceivable that the subsequent complaint has not been registered as FIR till date. It has been a consistent stand of the State that the SIT have taken into consideration, the information given in the subsequent complaint and has in fact, included two persons named therein in the charge sheet.
The judgment relied upon by the respondent in case of Aleque Padamsee & ors; -v- Union of India & Ors; reported in (2007) 6 SCC 171 has no manner of applicability in the present context. In the said report alleging the inaction on the part of the Police Authority in not registering the FIR, a writ petition was moved before the High Court and the matter ultimately reached before the Supreme Court, the Apex Court held:
"7. Whenever any information is received by the police about the alleged commission of offence which is a cognizable one there is a duty to register the FIR. There can be no dispute on that score. The only question is whether a writ can be issued to the police authorities to register the same. The basic question is as to what course is to be adopted if the police does not do it. As was held in All India Institute of Medical Sciences case and reiterated in Gangadhar case the remedy available is as set out above by filing a complaint before the Magistrate. Though it was faintly suggested that there was conflict in the views in All India Institute of Medical Sciences case, Gangadhar case, Hari Singh case, Minu Kumari case and Ramesh Kumari case, we find that the view expressed in Ramesh Kumari case related to the action required to be taken by the police when any cognizable offence is brought to its notice. In Ramesh Kumari case the basic issue did not relate to the methodology to be adopted which was expressly dealt with in All India Institute of Medical Sciences case, Gangadhar case, Minu Kumari case and Hari Singh case. The view expressed in Ramesh Kumari case was reiterated in Lallan Chaudhary v. State of Bihar. The course available, when the police does not carry out the statutory requirements under Section 154 was directly in issue in All India Institute of Medical Sciences case, Gangadhar case, Hari Singh case and Minu Kumari case. The correct position in law, therefore, is that the police officials ought to register the FIR whenever facts brought to their notice show that cognizable offence has been made out. In case the police officials fail to do so, the modalities to be adopted are as set out in Section 190 read with Section 200 of the Code. It appears that in the present case initially the case was tagged by order dated 24-2- 2003 with WP (C) No. 530 of 2002 and WP (C) No. 221 of 2002. Subsequently, these writ petitions were delinked from the aforesaid writ petitions."
According to the respondent, the investigating officer has to observe the procedure laid down in the Code of Criminal Procedure in investigating the offence which cannot be surpassed and/or overshadowed by the order of the Court. To justify the aforesaid submission, the reliance is heavily placed upon a judgment rendered in case of State of U.P. and anr; -vs- Johri Mal reported in (2004) 4 SCC 714 wherein it is held:
"57. The High Court failed to consider that the power under Article 226 of the Constitution of India is not on a par with the constitutional jurisdiction conferred upon this Court under Article 142 of the Constitution of India. The High Court has no jurisdiction to direct formulation of a new legal principle or a new procedure which would be contrary to and inconsistent with a statutory provision like the Code of Criminal Procedure. (See State of H.P. v. A Parent of a Student of Medical College and Asif Hameed v. State of J&K)"
There is no ambiguity on the above aspect that the High Court cannot direct the investigating agency to act in the manner unrecognized under the procedural law. The power under Article 226 of the Constitution can certainly be exercised at the instance of the aggrieved person if the High Court is convinced that the investigation has been done mala fide as opposed to fair, transparent and untainted investigation. The aforesaid proposition can be strengthened on the observation of the Supreme Court in case of Divine Retreat Centre -v- State of Kerala & Ors; reported in (2008) 3 SCC 542 which reads thus:
"41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code."
The argument advanced by the respondent that the High Court cannot direct to include or arrest the person does not require much deliberation in view of the judgments rendered in case of Director, Central Bureau of Investigation and Ors; -vs- Niyamavedi reported in (1995) 3 SCC 601 and M.C. Abraham and anr; -v- State of Maharashtra & ors; reported in (2003) 2 SCC 649.
Chapter XII of the Code of Criminal Procedure contains an exhaustive provision relating to the investigation in respect of the cognizable offence. The Court cannot direct that the investigation should be done in a manner which is not recognized under the Code nor can direct the inclusion of the person or the arrest to be made by the Police. The Court monitoring the investigation can certainly say that the investigation has not been done in a fair and transparent manner by the investigating agency and the High Court either in exercise of power under Section 482 of the Code or Article 226 of the Constitution of India can direct reinvestigation/fresh investigation and/or de novo investigation. The statements of several persons were recorded under Section 161 of the Code including the two eye-witnesses. There is a uniformity in the statement so recorded by some of the persons that there was a political disturbances in the area and there have been a constant bombing in the night.
It is undisputed that one Hriday Ghosh, the son of the deceased, was also contesting the Panchayat Election as an independent candidate. His statement reveals certain important facts which are corroborated with the statements of the other persons. The statement of some of those persons were also recorded under Section 164 of the Code before the Magistrate and no attempt is made to record the statement under Section 164 before the Magistrate of a persons who have disclosed the important facts in tune with the statement of two eye-witnesses.
The status report dated 3rd March, 2014 filed by the SIT is based on the statement of a persons recorded under Section 164 of the Code in the tabular form disclosing the name of the accused persons named in the said statements. There has been a conscious omission of two high profile political executives even when those are disclosed in the statement recorded under Section 164 of the Code. It appears that the statements recorded under Section 164 of the Code was video graphed by the Police Authority and the Video Footage was filed with the Court. The Court recorded its dissatisfaction over the manner in which the investigation is proceeded with and observed that the situation seems to have ripe for handing over the investigation to the CBI. It is further recorded in the Order dated 2nd April, 2014, that the report came to be filed by the DGP without looking at the video footage which apparently shows the lack of responsibility on his part, despite the reposition of faith and confidence by the Court. It is only at the instance of the learned Government Pleader who fervently seeks time to disclose the further developments in the investigation, the matter was adjourned. It would be relevant if the excerpts from the said order is quoted herein below:
" At this stage, the learned Government Pleader appearing for the State fervently seeks time till Monday next to report logical developments in respect of further progress of investigation. Considering his prayer, I adjourn hearing of this writ petition expressing hope and trust that some change in the course of investigation would be discernible to dissuade the court from entrusting the investigation to the CBI.
However, I am of the further view that since an extraordinary situation has since cropped up arising out of the utter apathy and indifference of the SIT to obtain video footage of the speeches delivered by the accused on July 17, 2013, I would request he electronic media to furnish, if available, video footage of the alleged speeches that were made on that date as referred to by Smt. Sibani Ghosh. The electronic media would be welcome, if they provide unedited video footage of such meeting together with honest transcription of the statements of the orators, by the returnable date."
The matter appeared again on 7th April, 2014 when the video footage of the speech delivered by Anubrata Mondal was produced before the Court by two TV Channels which was made available to the Deputy Superintendent of Police (Member of the Special Investigation Team) for its onward transmission to the DGP who was further directed to submit the report on the next date indicating his impression on the said video footage. In the report dated 10th April, 2014, the DGP opined that the compact disc should be examined forensically and an opinion is sought from the Public Prosecutor, Birbhum over certain contradictions in the statement of the witnesses vis-à-vis the video C.D. and on receiving the opinion, the matter would be expedited and to ensure that the case is finalized at the earliest.
It is apparent from the said record that despite the categorical and impeccable statements, a reluctance was shown to investigate the matter in proper and right direction which can further be fortified from the observation of the Court recorded in the order dated 10th April, 2014.
It is submitted on behalf of the State Government that the said order dated 10th April, 2014 was assailed in an intra court appeal before the Court and, therefore, the observations made therein cannot be relied upon or shall have any impact at the time of final determination of the writ petitions. The aforesaid submissions cannot be disputed in the event, the Division Bench set aside the order impugned therein but if a portion of the order is expunged and/or deleted from the impugned order by the Division Bench, if does not take away the binding efficacy of the other portion of the orders but should be treated to have been affirmed by the Division Bench. Though several points were taken before the Division Bench including a point that no aspersion can be made in a judicial order against a person in absence of any allegation or the material in that regard, the Division Bench expunged and/or deleted the observation made against the Chief Minister with the categorical finding that "we are not inclined to go into the merits of the other observations, which have been made".
It is surprising that the head of the SIT in his report dated 30th April, 2014 though revealed that there was a high tension political rivalry between the two groups belonging to a political party but gave a clean chit to the said political leader as he simply denied his involvement in the murder and was at home in the night of the said incident. The said report further reveals that there has been a complaint lodged against the son of the deceased, who stands as an independent candidate in the said Panchayat Election lodged way back in the month of February, 2013. The SIT totally overlooked the spech delivered on 17th July, 2013 where the said Anubrata Mondal admittedly made the statement for burning the houses of the independent candidate and hurling the bombs on the police. The statement of Anubrata Mondal as recorded by the SIT corroborates such statements but with the rider that it was a slip of tongue.
The impression as disclosed in the said report by the head of the SIT is that it does not tantamount to abetting the murder of the Sagar Ghosh as they were not present at the place of the occurrence. There is no hesitation to say that the investigation has been done one sided; ignoring the vital and important revelation with the definite object to protect the said political leader. The role of the SIT in the investigation is not free from any blame. Despite the Court reposed confidence of the SIT, the manner in which the investigation is conducted and the progress disclosed in the report filed from time to time, the investigation have progressed with the extraneous influence and to shed and shelter some of the abettor of the said offence.
There is another striking feature which cannot be lost sight of. At the time of constituting the SIT, the Court expressed that neither the Director General shall solicit the governments' advice on any matter nor shall the government volunteer to aid the Director General. The reports were directed to be filed by the DGP in a sealed cover which was never meant to be disclosed to the government or its lawyer or the petitioner. It is not expected that the DGP would disclose the report either to any other officers representing the government nor was expected to seek any advice from a public prosecutor or a government pleader who are engaged to deal the matter. It must be recorded that during the course of the arguments, the excerpts from the report were pointed out by the learned Counsel representing the State even an opinion was sought by the head of the SIT from the Public Prosecutor, Birbhum during the investigation. So long, the final report is not filed, the investigation shall be deemed to be pending and in view of the expressed embargo created in the order passed by this Court that the DGP shall not solicit any assistance from the government on the said case, an advice was taken from the government pleader which lead to filing of the charge sheet before the Magistrate. The affidavit of the DGP is categorical that he was well-advised by the State's lawyers that there is no impediment in proceeding to file the charge sheet as there is no restrained order passed by this Court.
In case of R. Sarala (supra), it is held that the role of the public prosecutor cannot be equated with the role of the investigation agency. It is inconceivable that the public prosecutor shall have a say during the investigation which is an exclusive domain of the investigation agency in these words:
"11. There is no material difference regarding general powers of investigation by the police as between the present Code and the corresponding provisions contained in Chapter XIV of the erstwhile Code of Criminal Procedure, 1898. In H.N. Rishbud v. State of Delhi a three-Judge Bench of this Court, after delineating the different steps in investigation as contemplated in the Code, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else. The following observations are to be noted in this context:
"The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551."
12. A Public Prosecutor is appointed, as indicated in Section 24 of the Code, for conducting any prosecution, appeal or other proceedings in the court. He has also the power to withdraw any case from the prosecution with the consent of the court. He is the officer of the court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the investigating officer and the Public Prosecutor for filing the report in the court."
The aforesaid proposition is further fortified in case of Navinchandra (supra) in the following:
16. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu. This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be useful:
(SCC p. 461, para 2) "2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation.
Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the court."
The confidence entrusted upon the DGP has been shattered as his action during the investigation was all along influenced by the Government. The entire investigation is tainted with the extraneous influence, more particularly, by high profile political executive giving a protective umbrella to the abettor of the offence. Furthermore, the statement of Hriday Ghosh, the son of the deceased, has been totally ignored and discarded even his statement was not recorded under Section 164 of the Code of Criminal Procedure where he disclosed and narrated various facts but the investigation is not conducted in the manner as required to be done by the SIT. There is a total distortion of the statement recorded by the Investigating Officer in the report submitted before the Court on 30th April, 2014. It is stated by the DGP when called to appear personally before this Court that except the daughter-in-law, the name of said political leader is not taken by any other witnesses. There is no mentioning of the statements recorded by the son of the said deceased under Section 161 of the Code of Criminal Procedure where all the names were disclosed including the said political leader and no attempt is shown to have been taken to record his statement under Section 164 of the Code.
It is no longer res integra that the Court can mould the relief in appropriate cases when the original relief becomes inappropriate because of the attending circumstances. The role of SIT is explicitly indicated in the preceding Paragraphs of these judgments and it would be unjust and unreasonable if action of the SIT though constituted by this Court gets a sanction and/or blessings from the Court.
In view of the above, the SIT and the Parui Police Stattion is directed to hand over and co-operate with the investigation by the CBI. The CBI shall investigate all aspects of the case relating to the killing of Sagar Ghosh and file the report from time to time to the concerned Court having jurisdiction. With utmost expedition, the Court having jurisdiction shall pass necessary orders from time to time on the basis of the reports filed by the CBI depending upon the outcome of the investigation. The petitioners of both the writ petitions are permitted to move the said Court for necessary directions if the circumstances so demands.
Both the writ petitions are disposed of in the above terms. However, there shall be no order as to costs.
Urgent photostat certified copy of the judgment, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.) LATER After the delivery of judgment in open Court, Mr. Kalyan Bandopadhyay, learned Senior Advocate, appearing for the State, prays for stay of operation of the said judgment.
After considering the same, this Court does not find any ground to pass an order of stay.
The prayer is thus refused.
(Harish Tandon, J.)