Gujarat High Court
Ratilal Veljibhai Kasundra vs State Of Gujarat & 2 on 12 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/2198/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 2198 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RATILAL VELJIBHAI KASUNDRA....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR C P CHANIYARA, ADVOCATE for the Applicant(s) No. 1
MS. THAKORE, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/01/2017
ORAL JUDGMENT
1. Rule returnable forthwith. Ms. Thakore, the learned APP, Page 1 of 27 HC-NIC Page 1 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT waives service of notice of rule for and on behalf of the respondents.
2. By this writ application under Article 226 of the Constitution of India, the writ applicant-original first informant has prayed for the following reliefs;
"(A) Your Lordships be pleased to admit this Special Criminal Application.
(B) Your Lordships allow this Special Criminal Application by issuing appropriate writ or order thereby directing Respondent No.3 to order reinvestigation in CR-
I-111/2014 lodged before Morbi Taluka Police Station and to be done by another officer;
(C ) Your Lordships be pleased to allow this Special Criminal Application by directing Respondent No.3 to direct the investigating officer to fairly investigate this offence after adding names of real driver;
(D) Your Lordships be pleased to allow this Special Criminal Application by directing Respondent No.3 that this investigation may be supervised by an officer superior to the rank of investigating officer.
(E) Grant such other and further relief(s) in favour of petitioner as may be deemed just and proper by this Hon'ble Court in the interest of justice.
(F) Issue interim relief by directing that, pending admission, hearing and final disposal of the above Special Criminal Application, to stay the further proceedings of the Criminal Case No.383 of 2015 in Morbi Court."
3. The case of the writ applicant may be summarized as under;
3.1 The writ applicant is an agriculturist and is residing at
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the village Amran (Diamond Nagar), situated in the Taluka:
Morbi, District: Morbi.
3.2 On 26th September, 2014, at around 7:00 O' clock in the evening, the writ applicant and his nephew, namely, Rajeshbhai Thakarshibhai Kaundra (deceased) were returning to their village in their respective bullock carts. The writ applicant was in the front riding his bullock cart and his nephew was following him riding his own bullock cart. It is his case that a white coloured Tata Indica Car came from behind in full speed and rammed into the bullock cart of his nephew. The impact was so severe that the nephew died on the spot. On account of the severe impact, the bullock cart of the deceased fell on the bullock cart of the writ applicant. The writ applicant got flung on one side of the road resulting in grievous injuries on his head, elbow, leg and hip. It is the case of the writ applicant that he witnessed the driver of the Indica Car, namely, Dilipbhai Maganbhai Gambhva getting out of the car.
The colleague of Dilipbhai Maganbhai Gambhva, namely, Jagdishbhai @ Vishal Mansukhbhai Kasundra, who was travelling in the car also came out. The writ applicant requested both to help him as he had sustained severe injuries, whereas the nephew was found to be dead. However, instead of helping the writ applicant and calling for the medical aid, both ran away from the spot of the accident. The writ applicant, thereafter, somehow, was able to call up his son , who arrived at the spot of the accident with an ambulance. The writ applicant was admitted in the hospital at Morbi. The nephew passed away on account of the severe head injuries.
3.3 The writ applicant, thereafter, requested the police to Page 3 of 27 HC-NIC Page 3 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT register the first information report. It is the case of the writ applicant that although he had narrated the exact event, yet the police, for some reason or the other, noted in the first information report that a truck had a head on collision, first with the bullock cart of the writ applicant and, thereafter, with the bullock cart of the deceased. The first informant has levellled serious allegations that his signature on the first information report is not genuine and has been forged.
3.4 He preferred a detailed representation in this regard dated 12th October, 2014 addressed to the Police Sub-Inspector of the Morbi Police Station and a copy of the same was forwarded to the Deputy Inspector General of Police, Rajkot, District Superintendent of Police, Morbi and the Home Minister of the State of Gujarat. Despite various vociferous representations before the various authorities, none paid heed and the investigation was hushed up and the charge-sheet came to be filed on 31st January, 2015 for the offence punishable under sections 279, 339, 338, 304-A and 429 of the Indian Penal Code. It is, for the first time, when the charge- sheet came to be filed, that the writ applicant learnt that the driver of the vehicle was shown to be one Hareshbhai Dayabhai Bhimani, i.e., the maternal uncle of Dilipbhai Maganbhai Gambhva, the person who was actually driving the Tata Indica Car.
3.5 it is the case of the writ applicant that Hareshbhai Dayabhai Bhimani has nothing to do with the matter and was not even present. The police further came out with a case that along with the driver, there were three persons sitting in the car, but, in fact, there were only two persons in the car, i.e., Page 4 of 27 HC-NIC Page 4 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT Dilipbhai Maganbhai Gambhva, the driver and Jagdishbhai @ Vishal Mansukhbhai Kasundra.
3.6 It is the case of the writ applicant that Dilipbhai Maganbhai Gambhva, somehow managed with the police to save himself from the penal liability, and the police, in collusion and connivance with Dilipbhai Maganbhai Gambhva, showed Hareshbhai Dayabhai Bhimani as the actual driver of the car, which met with the accident.
3.7 It is also alleged that Dilipbhai Maganbhai Gambhva has no driving license and, probably, for such reason, he managed with the police.
3.8 In such circumstances referred to above, the writ applicant prays that in the interest of justice, let there be a further investigation or a re-investigation so as to book the real culprit responsible for the accident, which caused the death of an innocent young boy.
4. Mr. C.P. Chaniyara, the learned counsel appearing for the writ applicant submitted that the case at hand is very serious. If the real culprit, with the aid of muscle power, money power or position, is able to save himself from the penal liability by showing an altogether a different person responsible for the accident, then, that would be nothing but travesty of justice. He pointed out that the vehicular accidents in the State are increasing day by day. The drivers who are rash, reckless and negligent, should not be allowed to go scott free and they should be put to trial in accordance with law. He would submit that it was not expected of the Investigating Officer to hush up Page 5 of 27 HC-NIC Page 5 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT the investigation and show an altogether a different person as the driver, whereas that person was not even present at the spot of the accident. In such circumstances, the learned counsel prays that this is a fit case for reinvestigation or further investigation.
5. On the other hand, this writ application has been vehemently opposed by the learned APP appearing for the respondents. The learned APP would submit that the investigation has been carried out in a fair and transparent manner and the allegations, which have been levelled by the writ applicant, are not correct. The learned APP has placed reliance on the affidavit filed by the Investigating Officer, namely, Salimbhai Ajijbhai Makrani. In the affidavit-in-reply, it has been stated that;
"2. I humbly say and submit that I have gone through the contents of the memo of the aforesaid numbered petition and have also perused the annexure. I humbly say and submit that being the Police Sub Inspector, respondent no.2 herein as well as the investigating officer of the FIR in question, I am conversant with the facts and circumstances of the case as well as the controversy involved in the matter. I therefore, say and submit that I am competent and authorize to file this affidavit in reply on behalf of respondent no.2 herein.
3. At the Out set, I strongly deny each and every contentions, allegations and averments raised in the memo of the petition and my specific non dealing with any of the contentions, allegations and averments in para wise manner may not be construed as admission of the same. I crave leave of this Hon'ble Court to file further detailed affidavit in reply as and when required. I further say and .submit that the present affidavit in reply is filed to place on record correct and relevant facts of the case as well as to place on record certain important Page 6 of 27 HC-NIC Page 6 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT relevant documents which deals with the controversy raised in the petition.
4. The Petitioners herein have invoked extra ordinary writ jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India and have prayed for issuance of appropriate Writ, order or direction to respondent no.3 herein to reinvestigate in I CR no. 111/2014 registered with the Morbi Taluka Police station and by another officer. That direction is also sought for to investigate this Offence in fair manner by adding the name of real driver. The Petitioner has also prayed for direction to respondent no.3 herein that the investigation may be supervise by some higher officer superior to rank of the investigating officer.
The gist of the submissions of the petitioner is that right from inception, the investigation is faulty in as much as that in the FIR the investigating officer in connivance with the driver Dilipbhai Maganbhai Gambhva, has recorded that the accident had occurred with truck whereas the correct fact is that the accident had occurred with the Indica car. Secondly, it is the case of the petitioner that signature in the complaint is not of the complainant. The petitioner had further alleged that the petitioner had brought to the notice of investigating officer the correct facts of the accident however, when they saw charge sheet they realized that the vehicle involved is changed from truck to Indica car and further has changed the name of driver Dilipbhai Maganbhai Gambhva to Hareshbhai Dayabhai Bhimani. It is incorrectly mentioned in the charge sheet that there were three persons in the car whereas there were only two persons. That it is further alleged that the main reason for change of driver is that the actual driver is not having any driving license.
5. At the out set, I humbly say and submit that the stand of the petitioner who is the original complainant has not remained stable. That the investigation has been done on the direction from the facts Which had been gathered from the original complainant- petitioner as he is the sole eye witness to the incident. I strongly deny that the investigation is not done in fair manner. I crave leave of this Hon'ble Court to bring on record relevant Page 7 of 27 HC-NIC Page 7 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT facts which has bearing to decide the controversy which the petitioner has tried to raise in this petition. 5.1 The incident had occurred on 26.09.2014 at around 7.0 clock evening on Amaran Highway between Purshyat ginning and Krishna ginning, where initially it was reported by the Doctor namely Dr. Vinod Kelana on duty in MLC case to the Morbi Taluka Police station that while the deceased nephew namely Rajesbhai Tahkershibhai Kasundra and petitioner were going with their respective bullock carts around 7.0 clock in the evening, a speeding truck dashed with them, and are admitted in emergency ward for treatment at around 20: 15 hrs. and patient is conscious . That the said M.L.C. note was submitted in writing by the doctor on duty which was received by the Morbi Taluka Police station officer on duty namely M. L. Zala and accordingly station diary entry was made Vide entry no. 27/14 at around 21/15 Hrs. Here with annexed and marked as Annexure R-I is the copy of the station diary entry no. 27/14.
5.2 That upon receipt of the said information Police Head constable Shri S. A. Makrani was deputed to the Morbi Krishna Hospital where the petitioner was found conscious and had given complaint. That he had himself narrated the facts of the incident and stated that he had informed his son Hitesh about place of accident and his son had arrived and called 108 ambulance and he was reached to hospital in 108 ambulance accompanied with his son Hitesh, wife Champaben and brother in law Govindbhai Bhanjibhai. That he also learnt from his relative brother Mansukhbhai Purshottambhai Kasundra that his nephew has succumbed to injuries while taking treatment in Hospital. That while recording the complaint the petitioner has specifically stated that the accident had occurred with the truck.
5.3 That so far as information of death of the nephew of the petitioner during treatment, was received by the Morbi Taluka Police station from the Hospital, another entry was recorded vide entry no. 28/14 at around 22/15 Hrs. That the said entry was recorded by the incharge officer namely M. L. Zala and officer was deputed to do inquest panchnama of the dead body at around 22/55 Hrs. That panchnama was drawn at Hospital and Page 8 of 27 HC-NIC Page 8 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT proceedings were initiated for Post Mortem of the dead body. That FIR came to be registered for the offences under section 279, 337,338,304(a),429 and sections 177,184, 134 of the Motor Vehicle act vide ICR no. 111/2014 on 27.09.2014 at around 2:00 Hrs.
5.4 That upon registration of the FIR, the investigation was undertaken by the Police Inspector, Morbi Taluka Police station. That upon reaching the spot of the accident, the cart and the vehicle involved in the accident the Indica car with registration no. GJ-1O-AP- 1678 were found lying as it is and panchanama was drawn of the place of accident.
5.5 That further statement of the complainant was recorded wherein for the first time the petitioner stated that the accident had occurred with the Indica Vista car bearing registration no. GJ-1O-AP-1678 and in the said car three persons namely Dilipbhai Maganbhai Tambov , Hareshbhai Dayabhai Bhimani and Vishal Mansukhbhai Kasundra were present in the said car. Here with annexed and marked as annexure R-II is the copy of the statement of the petitioner recorded on 27.09.2014.
5.6 That statement of witnesses were recorded wherein also it was found that accident had occurred between bullock cart and the Indica vista car and the said car was driven by Hareshbhai Bhimani. That even Thana officer had visited the accident place and FSL team had also visited the place of accident. That statement of the car owner Dilipbhai Maganbhai and Jagdish @ Vishal Kasundra were recorded wherein they stated that car was driven by Hareshbhai and since there was sharp focus light from the vehicle coming from opposite side, accident had occurred. That two bullocks had also expired in the accident. That based on the material collected, Hareshbhai was arrested on 11.10.2014. 5.7 That based on material so collected during investigation, charge sheet came to be filed vide no. 13/2015 on 31.01.2015 and at present case is pending before the Hon'ble Court.
6. In these back ground of the case, the deponent Page 9 of 27 HC-NIC Page 9 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT herein humbly urges to the Hon'ble Court that the during course of investigation, the complainant has not cooperated in the investigation. That the investigating officer had called on his mobile no. 9979566028 to come forward with any material which he propose to rely upon when he has stated that my application is my evidence. That the said fact is also recorded in the station diary by the investigating officer on 09.11.2014 at around 13/15 Hrs. That the investigating officer has also inquired from private sources and it is learnt that in the past there is political dispute going on between two families of Kasundra and Gambhva family. It may kindly be appreciated that right from the beginning the complainant has not remained firm in his stand. firstly it was reported that the accident has occurred with truck and when complaint was registered it was reported that accident had occurred with the Ind1ca car and also given names of persons present and had specifically stated that car was driven by Hareshbhai and now he is alleging that the car was driven by Dilipbhai Gambhva. In these facts and circumstances, the complainant say is not reliable, more particularly when right in inception the complainant was not aware that whether the accident had occurred with the truck or car. The deponent therefore, humbly urges to the Hon'ble Court to not to entertain the afore said numbered petition."
6. In view of the above, the learned APP prays that there being no merit in this writ application, the same be rejected.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to the relief prayed for in this writ application.
8. Article 21 guarantees fair trial. A fair trial is impossible if there is no fair investigation. In order to be a fair investigation, Page 10 of 27 HC-NIC Page 10 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT the investigation must be conducted thoroughly, without bias or prejudice, without any ulterior motive and every fact, surfacing during the course of investigation, which may have a bearing on the outcome of the investigation and, eventually, on the trial, must be recorded contemporaneously by the Investigating Officer at the time of investigation. A manipulated investigation or an investigation, which is motivated, cannot lead to a fair trial. Necessary, therefore, it is that the Courts are vigilant, for, it is as much the duty of the Court commencing from the level of the Judicial Magistrate to ensure that an investigation conducted is proper and fair as it is the duty of the Investigating Officer to ensure that an investigation conducted is proper and fair. A fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all the aspects of an accusation, be it in favour of the accused or against him.
9. Article 21, undoubtedly, vests in every accused the right to demand a fair trial. This right, which is fundamental in nature, casts a corresponding duty, on the part of the State, to ensure a fair trial. If the State is to ensure a fair trial, it must ensure a fair investigation. Logically extended, this would mean that every victim of offence has the right to demand a fair trial meaning thereby that he or she has the right to demand that the State discharges its Constitutional obligation to conduct a fair investigation so that the investigation culminates into fair trial. The State has, therefore, the duty to ensure that every investigation, conducted by its chosen agency, is not motivated, reckless and that the Investigating Officer acts in due obedience to law. It is only when the State Page 11 of 27 HC-NIC Page 11 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT ensures that the investigation is fair, can it (the State) be able to say, when questioned, that the trial conducted was a fair trial. Article 21, therefore, does not vest in only an accused the right to demand fair trial, but it also vests an equally important right, fundamental in nature, in the victim, to demand a fair trial. Article 21 does not, thus, confer fundamental right on the accused alone, but it also confers, on the victim of an offence, the right, fundamental in nature, to demand fair trial. When police registers a case, the State assumes the responsibility of conducting an investigation. Having assumed the responsibility of investigating the truth or veracity of the allegations, which the police receive, the State cannot act, nor can its Investigating agency act, without a sense of impartiality. It is not merely a trial, which has to be impartial. No less important it is that the investigation, too, is impartial. Fairness of trial will carry with it the fairness of investigation and fairness of investigation will carry with it the impartiality in investigation, besides the investigation being efficient, un-biased, not aimed at helping either the prosecution or the defence. In short, an investigation must not suffer from any ulterior motive or hidden agenda to either help a person or harm a person. This is the principle, which Article 21 of the Constitution of India, read with Article 14 thereof, enshrines, when we say that our Constitution guarantees fair trial.
10. The alleged violation of the above stated principles is at the heart of the controversy in the present writ application.
11. I am at one with the learned counsel appearing for the writ applicant that the case at hand is very serious. I do not find one good ground to disbelieve the case, which has been Page 12 of 27 HC-NIC Page 12 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT put up by the writ applicant. There is no good reason worth the name for the first informant to falsely involve or implicate Dilipbhai Maganbhai Gambhva as an accused. The case of the writ applicant is plain and simple. According to him, although he narrated the exact event before the police, yet the police, for some reason or the other, changed the version and has shown one Hareshbhai Dayabhai Bhimani as the person who was on wheels at the time of the accident. I am convinced that the investigation has been carried out in a most perfunctory manner and the real culprit has been protected for some extraneous considerations. Hareshbhai Dayabhai Bhimani, the matrimonial uncle of Dilipbhai Maganbhai Gambhva, for some reason, might have agreed to shoulder the liability, but the court will not permit both Hareshbhai Dayabhai Bhimani and Dilipbhai Maganbhai Gambhva to make a mockery of the investigation and justice.
12. I am told that Dilipbhai Maganbhai Gambhva, the person who was on wheels and was found to be driving in full speed, has no driving license and, probably, for such reason, he could manage or convince his matrimonial uncle to take the liability on his head. This is not one such incident, which has come to the notice of this Court. In the past also, it came to the notice of this Court that by sheer power of money and position, the rash and negligent drivers are able to manage with the police and at the end of it, an innocent person is fastened with the liability. That innocent person is either won over by money or pressure or by any other illegal means. At any cost, this should not happen and such an act should be dealt with very seriously.
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13. From day one, the writ applicant has been shouting that the first information report has not been taken down correctly or as narrated by him before the police. Although he preferred a detailed representation in this regard bringing all the relevant facts to the notice of the higher authorities, none paid heed to his say and, ultimately, the Investigating Officer filed the charge-sheet in the court concerned.
14. Let me quote the contents of the representation addressed by the writ applicant herein to the various authorities. The free English translation of the same is as under;
"Ratilal Veljibhai Kasundra, Residing: Diamond Nagar (Amran) Taluka: Morbi, Dist: Morbi.
To, Police Sub-Inspector, Office of the Police Officer, Morbi.
Jay Bharat, Respected Sir, The applicant hereunder respectfully submits as under;
I the undersigned Ratilal Veljibhai Kasundra along with my nephew Rajeshbhai Thakarshibhai Kasundra were returning home at about 7:00 O' clock in the evening on 26th September, 2014 from our farm in two bullock carts. My bullock cart was in the front and the bullock cart of my nephew was behind my bullock cart. At that time, a four wheel vehicle Indica Vista No.GJ-10-AP-1678 being driven at excessive speed rammed into the bullock cart of my nephew. I noticed that the car had crushed my nephew. On account of the accident, my bullock also got scared and flung me down, resulting in serious injuries.
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The driver of the car, namely, Dilipbhai Maganbhai Gambhva, residing in Diamond Nagar (Amran Village) got down from the driver's side of the car. One another person, namely, Jagdishbhai Mansukhbhai Kasundra also of the same village got out of the car from the passenger's side. I requested Dilipbhai Maganbhai Gambhva to help us, but he did not provide any help to me and my nephew Rajeshbhai. Rajeshbhai died on the spot of the accident. I had to be hospitalized for couple of days.
Therefore, I want to state by this application that the vehicle that met with accident was being driven by Dilipbhai Maganbhai Gambhva himself which I state vide this application. I have suspicion that preparation is being made to substitute some other driver in place of Dilipbhai who was driving the car. I have got confirmed portend and I believe that to cover up this accident, a false story is being put up that some other vehicle from the opposite side had collided in the accident. Despite lapse of 17 days since the said accident took place no satisfactory action has been taken. I therefore request your honour to initiate the proper inquiry of this incidence. I also request your honour to ensure that justice is given to me.
Place: Diamond Nagar (Amran) Date: 12.10.2014.
Signature of Ratilal Ratilal Veljibhai Kasundra Copy forwarded to D.I.G., Rajkot
1. D.S.P., Morbi.
2. Home Minister, Gandhinagar."
15. It is very shameful for the driver of the vehicle as well as the colleague, who was in the car, to have ran away from the spot of the accident instead of immediately extending help to the injured. I take notice of the fact that the Investigating Officer, in his reply, has also gone to the extent of stating that the false allegations are levelled by the writ applicant on Page 15 of 27 HC-NIC Page 15 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT account of the political dispute going on between the two families, i.e., Kasundra and Gambhva respectively. Why should a person exonerate the real culprit and involved an innocent man in the accident. Even an illiterate person will be able to make out whether the vehicle is a truck or a car. A person may not be able to identify the make of the car, but, at least, he would know the difference between a truck and a car. Ultimately, at the end of the investigation, the investigating officer had to accept that it was a car who met with an accident with the two bullock carts. The registration number of the car in question is GJ-10-AP-1678. Hareshbhai Dayabhai Bhimani, who is shown as the accused, is not even the registered owner of this vehicle. There does not seem to be any investigation, if at all, it is believed, for the time being, that it was Hareshbhai Dayabhai Bhimani, who was driving the car as to where he had gone with the car and where he was heading towards.
16. On completion of 'investigation', conducted by police or any other agency, when either no incriminating material is found against a person or the 'investigation' so conducted, is unsatisfactory or improper and, in such a case, when an 'investigation' is directed or commenced by an agency, which is not only distinct and different from the agency, which had conducted the earlier 'investigation', but is also an agency, which is under the control of an authority, other than the one, which had control over the agency, which had conducted the earlier 'investigation', it becomes a case of 're-investigation'. Say, for instance, when an 'investigation', conducted by the local police, has resulted into submission of final report or Page 16 of 27 HC-NIC Page 16 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT charge-sheet and some allegations are made that the 'investigation' conducted was not proper or mala fide and when, in such a situation, the State Government entrusts the case for 'investigation' to its any other or superior agency, such as the Criminal Investigation Department (in short, 'the CID'), such an "investigation‟ can be regarded as 'further investigation' and not 're-investigation', for, the police and the CID come under one and the same Government. However, on completion of the 'investigation' by the local police or the CID or without completion thereof, an 'investigation' is commenced by an agency, say for instance by the Central Bureau of Investigation (i.e., CBI), which comes under an authority, which is distinct and different from the State Government, it becomes a case of „re-investigation‟. (See State of Andhra Pradesh Vs. A.S. Peter, reported in (2008) 2 SCC 383).
17. What is also important to bear in mind is that a further investigation is neither a 'fresh investigation' nor it is 're- investigation'. A "further investigation‟ really means an additional 'investigation', for, it is a continuation of the earlier 'investigation' and not a 'fresh' or re-investigation, which starts ab initio, though the materials, which may have surfaced and unearthed during earlier investigation, may be taken into account by the officer or the investigating agency conducting ,re-investigation‟. The distinction between 'fresh investigation, and ,re-investigation‟, on the one hand, and 'further investigation', on the other, has been dealt with, and succinctly described, in A. Chandrasekhar Vs. State of Kerala, reported in (1998) 5 SCC 223, wherein an investigation, was conducted by the CBI, but the State withdrew its consent given earlier for the investigation‟ of the case by the CBI. The Page 17 of 27 HC-NIC Page 17 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT question arose as to whether the withdrawal of consent by the State was permissible? This question was answered in the negative. While holding that the 'investigation' must be directed to be completed by the CBI, the Supreme Court drew the distinction between 're-investigation' and fresh 'investigation' in the following words:
"24. From a plain reading of the above section it is evident that even after submission of police report under sub-section (2) on completion of „investigation‟, the police has a right of "further" ,investigation‟ under sub- section (8) but not "fresh 'investigation' or "re- investigation‟". That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27-6-1996 (quoted earlier) that the consent was being withdrawn in public interest to order a "re-investigation‟ of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a "further investigation‟ of the case" instead of "re-investigation‟ of the case". The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further" 'investigation' therefore is the continuation of the earlier 'investigation' and not a fresh 'investigation' or 're-investigation' to be started ab initio wiping out the earlier „investigation‟ altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of 'further investigation' the investigating agency has to forward to the Magistrate a "further"
report or reports-and not fresh report or reports -- regarding the "further" evidence obtained during such 'investigation'. Once it is accepted -- and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji -- that an 'investigation' undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that "further 'investigation' is a continuation of such 'investigation‟ which culminates in a further police report under sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate Page 18 of 27 HC-NIC Page 18 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT into the case. To put it differently, if any 'further investigation‟ is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala." [Emphasis added].
18. In State of Andhra Pradesh Vs. A.S. Peter, reported in (2008) 2 SCC 383, it was pointed out that it was not correct to contend that the 'investigation‟, when handed over to the CID, was an 'investigation‟ by a different agency, for, points out the Supreme Court, in A.S. Peter (supra), the CID is a part of the investigating authorities of the same State and it was, therefore, permissible for the higher authority of the State to direct 'further investigation‟ by the CID. Reliance, in this regard, has been placed by the Supreme Court, in A.S. Peter (supra) at para 13, on the case of State of Bihar Vs. J.A.C. Saldanha, reported in (1980) 1 SCC 554. The relevant observations, at para 13, in A.S. Peter (supra), read:
"13. This aspect of the matter is covered by a decision of this Court in State of Bihar Vs. JAC Saldanha wherein it was held:
„19.......This provision does not in any way effect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct 'further investigation' into the case. In reaching this conclusion we have kept out of Page 19 of 27 HC-NIC Page 19 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT consideration the provision contained in Section 156(2) that an 'investigation‟ by an officer in charge of a police station, which expression includes police officer superior in rank to each officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the „investigation‟; otherwise that provision would have been a short answer to the contention raised on behalf of the respondent No.1."
19. What emerges from the above discussion is that a 'further investigation‟ is nothing but continuation of the earlier investigation; whereas, a 're-investigation‟ or a 'fresh investigation‟ would be an investigation, which would be ab initio in nature wiping out the earlier investigation altogether. In other words, a 'further investigation‟ is the continuation of the earlier investigation, which commences by virtue of the provisions of Section 173 (8) Cr. PC and culminates into such further ;police report(s)‟ as the police or the investigating agency may submit. In short, while 'further investigation‟ results into filing of further or additional „police report‟ under Section 173(8), 're-investigation' or 'fresh investigation‟ results into „police report(s)‟ as envisaged by Section 173(2) Cr.PC.
20. In the case of Babubhai Jamnadas Patel vs. State of Gujarat, reported in (2009) 9 SCC 610, the Supreme Court, has recognized the High Court's power to direct 'further investigation' and 'monitor' such investigation inasmuch as the Supreme Court has laid down that in an appropriate case, Court can direct the 'further investigation' if a proper investigation has not been done. Describing the High Courts and the Supreme Court as sentinels of justice, the Supreme Court, in Babubhai Jamnadas Patel (supra), has held that these Page 20 of 27 HC-NIC Page 20 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT Courts have been vested with the extraordinary powers of judicial review and supervision to ensure that the rights of the citizen are duly protected. It is in this light that the Court held, in Babubhai Jamnadas Patel (supra), that in an appropriate case, the High Court has the power to not only direct the 'further investigation‟, but even 'monitor‟ the progress thereof. The case of Babubhai Jamnadas Patel (supra) recognizes the High Court's power to direct investigation de novo too. Babubhai Jamnadas Patel's case (supra), is not a case relating to Court's power to direct further investigation at post cognizance stage. The relevant observations, appearing, in para 37, 38 and 39, in Babubhai Jamnadas Patel (supra) read as under :
"37. The courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This Court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as they were required to perform under the various statutes and orders passed by the administration. As for example, in the instant case, the High Court had to repeatedly intervene and pass orders to ensure that the investigation was being conducted diligently. Periodical status reports were required in that regard. In fact, the High Court had to direct the Additional Public Prosecutor to ask the investigating officer to incorporate the details of the action taken by him from the date of receipt of the letter (sic order) dated 5-12-2008. There is little doubt that only after the High Court began monitoring the progress of the investigation that the investigating authorities began to deal with the matter with some amount of seriousness.
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38. We are unable to agree with Mr. Nariman that the High Court in the name of investigation directed both the manner and mode in which the investigation was to be conducted or the direction in which the investigation was to proceed. It is because of the tardy progress of the investigation that the High Court had to step in at the inistance of the respondents herein. It was at the instance of the State of Gujrat, which filed Special Criminal Application No. 1061 of 2008 on 2nd June, 2008, before the High Court, that a direction was issued to the Investigating Authorities to register the complaint on 11th August, 2008, by way of FIR No. 187 of 2008.
39. The various decisions cited by Mr Dave endorse the view that when required not only could the High Court or this Court direct the investigating agencies to conduct the investigation in a fair and unbiased manner, but that in exercise of its powers under Article 142 of the Constitution, the Supreme Court could also issue directions for enforcement of fundamental rights and to ensure that complete justice was done to the parties. In fact, in Kashmeri Devi case4 this Court had directed the Magistrate to exercise powers under Section 173(8) CrPC to direct CBI to make a proper and thorough investigation in an independent and objective manner and to submit an additional charge-sheet, if circumstances so required, in accordance with law."
21. The High Court, in an appropriate case like the one at hand, may be justified in invoking its extraordinary jurisdiction under Article 226 of the Constitution of India to direct either 'further investigation' or 're-investigation' in a case. (see State of Haryana vs. Bhajanlal & Ors., reported in 1922 Supp (1) SCC
335).
22. Under the Code 'investigation‟ consists, generally, of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and Page 22 of 27 HC-NIC Page 22 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence, which may consist of
(a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the 'investigation' and to be produced at the trial, and (5) information of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by the filing of charge-sheet under Section 173 [See H. N. Rishbad (supra)].
23. "Further investigation‟ is nothing, but continuation of an earlier investigation. In "further investigation‟, thus, the investigation, which might have been conducted in the past, would be resumed and conducted further.
24. As against "further investigation‟, a "re-investigation‟ is an investigation, which is a new and fresh investigation wiping out the earlier investigation and "re-investigation‟ is conducted by an agency, which is not only different from the earlier investigating agency, but also must be one, which falls under the control, supervision or jurisdiction of an authority not only different from, but also independent of, the authority, which had the control, supervision or jurisdiction over the earlier investigating agency. In this sense, an investigation conducted by an investigating agency, such as, Criminal Investigation Department of a State, is not different from the ordinary police machinery of the State concerned, because both of them are under the jurisdiction of the same State;
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whereas Central Bureau of Investigation (C.B.I) is an authority, which is different from the normal police investigation of the State or its Criminal Investigation Department. As has been pointed out in clear terms, in A.S. Peter (supra), what Section 173(8) permits is a "further investigation‟ and not a "re- investigation‟. What is, however, extremely important to bear in mind is that a reinvestigation being prohibited by law, it would not, ordinarily, be ordered by a superior court. It, thus, becomes clear that a "reinvestigation‟ would be ordered in the situations, which are extra-ordinary, rare and cannot be met by a "further investigation‟. [See Kishan Lal (supra).
25. The defective, biased or the mala fide investigation or a tainted investigation cannot give rise to a valid charge-sheet, because such investigation would, ultimately, prove to be precursor of miscarriage of criminal justice. Not only, therefore, "fair trial‟, but "fair investigation‟ too form part of the Constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. The investigation, therefore, must be fair, transparent and judicious. In fact, fairness in investigation and, consequently, 'fairness in trial‟ form the basic minimum requirement of the "rule of law‟. When non-interference by the Court with an investigation would, ultimately, result in failure of justice, the Court must interfere. A reference, in this regard, may be made to the case of Babu Bhai (supra) wherein the Supreme Court observed thus:
"34. ................ If the investigation has not been conducted fairly, we are of the view that such vitiated investigation cannot give rise to a valid charge sheet. Such investigation would ultimately prove to be precursor Page 24 of 27 HC-NIC Page 24 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT of miscarriage of criminal justice. In such a case the court would simply try to decipher the truth only on the basis of guess or conjunctures as the whole truth would not come before it. It will be difficult for the court to determine how the incident took place wherein three persons died and so many persons including the complainant and accused got injured. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere." [Emphasis is added]"
26. However, unless an extra-ordinary case of gross misuse of power by those, who are in charge of an investigation, is made out, the court should be quite loathe to interfere with the investigation, which is, ordinarily, a field of activity reserved for the police and the executives. Commenting on this aspect of law, the Supreme Court observed, in Babu Bhai (supra), thus:
"21. ..........The manner in which the investigation has been carried out as well as the manner in which these cases have been conducted before this Court, clearly indicate that the investigation is not fair and impartial and as such the investigating agency cannot be permitted to continue.
31. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. ......."
(Emphasis is added)"
27. Recognizing the power of the High Court under Article 226 to direct the State to get an offence "investigated‟ or Page 25 of 27 HC-NIC Page 25 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT "further investigated‟, the Supreme Court has held, in Kishan Lal (supra), that in a given situation, the superior Court, in exercise of its Constitutional power, namely, under Articles 226 and 32 of the Constitution of India, can direct the State to get an offence 'investigated‟ and/or „further investigated‟ by a different agency. The relevant observations, made by the Supreme Court, in this regard, read thus:
"The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice." [Emphasis added]"
28. In the result, this writ application is allowed. I direct the State, Crime Branch to carry out the further investigation in connection with the C.R. No.I-111 of 2014 lodged before the Morbi Taluka Police Station for the offence punishable under sections 279, 337, 338, 304-A, 249 of the Indian Penal Code and sections 177 and 184 of the Motor Vehicles Act. The investigation shall be carried out bearing in mind the observations made by this Court, more particularly, as regards who was actually driving the car at the time of the accident. Appropriate report of further investigation shall be filed in the court concerned in accordance with law. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Page 26 of 27 HC-NIC Page 26 of 27 Created On Sat Aug 12 09:02:11 IST 2017 R/SCR.A/2198/2015 JUDGMENT (J.B.PARDIWALA, J.) Vahid Page 27 of 27 HC-NIC Page 27 of 27 Created On Sat Aug 12 09:02:11 IST 2017