Jharkhand High Court
Champa Devi vs The State Of Jharkhand on 8 January, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.1264 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1264 of 2021
Champa Devi, aged about 48 years, w/o Sowan Prasad Gupta,
resident of Village- Godowar, P.O. & P.S.- Hunterganj, Dist.- Chatra
.... Petitioner
Versus
1. The State of Jharkhand
2. Anil Singh, s/o late Baiju Singh, resident of Village- Kedli, P.O.-
Kedlikala, P.S.- Hunterganj, Dist.- Chatra
3. Pooja Singh @ Pooja Kumari, d/o Anil Singh, resident of Village-
Kedli, P.O.- Kedlikala, P.S.- Hunterganj, Dist.- Chatra
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Omiya Anusha, Advocate : Mr. Rishi Pallava, Advocate For the State : Mr. Pankaj Kr. Sharma, Addl. P.P. For O.P. Nos.2 and 3 : Mr. Vijay Kr. Sharma, Advocate .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 22.03.2021 passed by the learned Additional Sessions Judge-VI, Chatra whereby and where under, the application under Section 173 (8) of Cr.P.C. filed by the informant for direction of further investigation in connection with Hunterganj P.S. Case No. 132 of 2014, corresponding to G.R. No. 999 of 2014 registered for the 2 Cr.M.P. No.1264 of 2021 offences punishable under Sections 302, 201, 379 and 34 of Indian Penal Code has been rejected.
3. It is submitted by the learned counsel for the petitioner that the Investigating Officer has not properly investigated the case and has not recorded the statement of the witnesses of the case namely Ranjan Kumar Sao and three others who were fully acquainted with the death of Manu Kumar Gupta for whose murder the case has been registered. It is next submitted by the learned counsel for the petitioner that the I.O. has not taken on record the Call Detail Report of the deceased and the accused-Pooja Kumari and has not investigated the two mobile phones which were found in the location of the place of occurrence. It is further submitted by the learned counsel for the petitioner that the police authority did not file recording of Pooja Kumari and the deceased which was handed over to the I.O. and the learned trial court has rejected the same only on the ground that charge has already been framed on 01.03.2021 and summons were issued to the witnesses and though charge sheet was submitted on 31.10.2016 but the petition for further investigation was filed only on 31.01.2020 and also mentioned that the prayer of the informant cannot be allowed after seven years of the institution of the FIR and the prosecution has liberty to produce all materials in course of prosecution evidence.
4. Learned counsel for the petitioner files the certified copy of the order dated 31.07.2017 of G.R. No. 999 of 2014. Keep the same in the record.
5. Perusal of the same reveals that the case record was found/traced during sudden physical verification laying uncared, out from the regular proceeding and it was found that the case was still 3 Cr.M.P. No.1264 of 2021 left/pending for cognizance, at the time the case record was found, due to fault/negligence of the courts' staff.
6. It is next submitted by the learned counsel for the petitioner that the I.O. of the case has submitted charge sheet inter alia against Anil Singh and Pooja Kumari and cognizance of the offence has been taken for the offences punishable under Section 302, 201, 379 and 34 of Indian Penal Code. Hence, it is submitted that the delay was not the fault of the petitioner who is the informant of the case. It is also submitted by the learned counsel for the petitioner that otherwise also, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Hasanbhai Valibhai Qureshi vs. State of Gujarat & Ors. reported in MANU/SC/0302/2004, paragraph no. 11 to 13 of which reads as under:-
"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found 4 Cr.M.P. No.1264 of 2021 during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case."
In this respect, learned counsel for the petitioner also relied upon the judgment of Hon'ble Supreme Court of India in the case of Ram Lal Narang & Ors. vs. State (Delhi Administration) reported in (1979) 2 SCC 322, paragraph no.17 and 21 of which reads as under:-
17. xxx xxxx xxxxx xxxxx This decision is a clear authority for the view that further investigation is not altogether ruled out merely because cognizance of the case has been taken by the court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circumstances permit it.
21. As observed by us earlier, there was no provision in the CrPC, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation."5 Cr.M.P. No.1264 of 2021
as well as the judgment of Hon'ble Supreme Court of India in the case of Pooja Pal vs. Union of India & Ors. reported in (2016) 3 SCC 135, paragraph no.83, 86 and 88 of which reads as under:-
83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
86. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and therefore, cannot be alienated from each other with levity. It is judicially 6 Cr.M.P. No.1264 of 2021 acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though well-demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard-and-fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.
88. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.
(Emphasis supplied)
7. Learned counsel for the petitioner next relies upon the judgment of Hon'ble Supreme Court of India in the case of Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, reported in (2019) 17 SCC 1, paragraph no.42 of which reads as under:-
"42. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri [Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 :
(2008) 1 SCC (Cri) 440] , Samaj Parivartan Samudaya [Samaj Parivartan Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC (Cri) 365] , Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 : (2013) 4 SCC (Cri) 557] , and Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] ; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the 7 Cr.M.P. No.1264 of 2021 recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 : 2004 SCC (Cri) 1603] .
Therefore, to the extent that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC 177 : (2017) 2 SCC (Cri) 331] , Athul Rao [Athul Rao v. State of Karnataka, (2018) 14 SCC 298 :
(2019) 1 SCC (Cri) 594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613] have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051] also stand overruled." (Emphasis supplied) in which inter alia, the Hon'ble Supreme Court of India upheld its own judgment in the case of Hasanbhai Valibhai Qureshi vs. State 8 Cr.M.P. No.1264 of 2021 of Gujarat & Ors. (supra) and overruled the judgments to the contrary.
8. It is lastly submitted by the learned counsel for the petitioner that since the learned Additional Sessions Judge-VI, Chatra has rejected the prayer of the petitioner on untenable ground of delay, hence the same be quashed and set aside.
9. Learned Additional Public Prosecutor and the learned counsel for the opposite party nos.2 and 3 defends the order dated 22.03.2021 passed by the learned Additional Sessions Judge-VI, Chatra and submits that the learned Additional Sessions Judge-VI, Chatra has rightly rejected the prayer of the informant on the ground of delay. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
10. Having heard the submissions made at the Bar and after going through the materials in the record, in view of the settled principle of law as mentioned in the foregoing paragraphs of this Judgment, this Court has no hesitation in holding that the law is well settled that the prayer for further investigation of the case cannot be rejected on the ground of delay as has been done by the learned Additional Sessions Judge-VI, Chatra in the instant case. More so, when the order dated 31.07.2017 itself shows that the record was lying uncared for a considerable period of time.
11. Under such circumstances, this Court has no hesitation in holding that the learned Additional Sessions Judge-VI, Chatra has committed illegality by rejecting the prayer of the informant for further investigation of the case in terms of Section 173 (8) of Code of Criminal Procedure as prayed for by the informant on the ground of delay.
9 Cr.M.P. No.1264 of 2021
12. Accordingly, the order dated 22.03.2021 passed by the learned Additional Sessions Judge-VI, Chatra is quashed and set aside.
13. Learned Additional Sessions Judge-VI, Chatra or its successor court is directed to pass a fresh order in accordance with law on the petition dated 31.01.2020 filed by the informant for further investigation of the case in terms of Section 173 (8) of Code of Criminal Procedure.
14. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th January, 2024 AFR/Sonu-Gunjan/-