Bombay High Court
Smt. Rajni Vishram Patil vs Central Bureau Of Investigation on 18 July, 2009
Author: Swatanter Kumar
Bench: Swatanter Kumar, D.Y. Chandrachud
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1278 OF 2007
Smt. Rajni Vishram Patil )
Age 52 years, residing at )
45, Vishram, Vidya Nagar ig )
Pimprala, Jalgaon, District : Jalgaon ).. Petitioner
Versus
1) Central Bureau of Investigation )
having its head office at North East Block )
New Delhi and an office at Kitab Mahal, )
Mumbai. )
2) State of Maharashtra ).. Respondents
Mr. Mahesh Jethmalani, Senior Advocate, with Mr. Pranav Badheka
i/b Ms.Edith Dey, Mr. Gaurav Belosay and Mr. P.G. Sabnis for the
Petitioner.
Mr. Gopal Subramanium, Senior Advocate and Additional Solicitor
General of India, with Mr. D.N. Salvi for Respondent No.1.
Ms. A.S. Pai, Additional Public Prosecutor, for the State.
Mr. J.G. Reddy for the Intervener.
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CORAM : SWATANTER KUMAR, C.J. AND
DR. D.Y. CHANDRACHUD, J.
JUDGMENT RESERVED ON : 16TH MAY 2009
JUDGMENT PRONOUNCED ON : 18TH JULY 2009
JUDGMENT (Per Swatanter Kumar, C.J.)
The facts that emerge can be summed up from the Writ Petition and the additional affidavit filed by the Petitioner. V.G. Patil who was the President of the Jalgaon District Congress Committee, was brutally murdered by two assailants in the early morning hours of 21st September 2005. The Petitioner is the widow of the deceased. The incident was witnessed by Mahendra P. Mahajan on whose statement the first information report, 1 was registered at the Zilla Peth Police Station, Jalgaon. The investigation at the initial stage was conducted by N.S. Ghuge, Inspector of Police. Though the FIR was registered by the Zilla Peth Police Station, the investigation of the crime was transferred by the Superintendent of Police, Jalgaon to the local Crime Branch on the very day, 21st September 2005. The investigation was conducted by the said Police Officer. While investigating the matter, he examined some witnesses; prepared a spot panchnama and inquest panchnama; obtained the cause of death certificate and recorded 1 Crime No.242 of 2005 ::: Downloaded on - 09/06/2013 14:48:00 ::: 3 the statements of several witnesses including Jayant Patil who was the nephew of the deceased. After receiving the investigation papers, he claims to have carried out the investigation and to have recorded the statements of the petitioner. The petitioner stated that she suspected the involvement of one Suresh Patil, Dr.Ulhas Patil and Rajesh Kotwal. Raju Mali and Raju Sonawane were arrested on 30th September 2005. The investigation was transferred from the local Crime Branch to CID, Jalgaon, when the investigation by Mr. Ghuge ended. According to him, marshalling of the call records was not done till 30th September 2005.
2. The Petitioner had filed a Criminal Writ Petition,2 before which was disposed of by a Division Bench of the Aurangabad Bench of this Court by an order dated 23rd February 2007. In that Writ Petition, the Petitioner had expressed doubts about the genuineness and fairness of the investigation being conducted by the CID. During the pendency of that Petition, the Government took a decision to transfer the investigation of the offence to the Central Bureau of Investigation ("CBI"). In pursuance of this decision, a communication dated 17th March 2006 of the Principal Secretary (Special) Home was sent to the Director, Central Bureau 2 W.P.No.646 of 2006 ::: Downloaded on - 09/06/2013 14:48:00 ::: 4 of Investigation. By a letter dated 1st June 2006, the Director of CBI stated that this was not a fit case where the CBI should conduct the investigation. The Division Bench in its order observed thus:
"10. ........... Considering the chequered history of the present case, the developments which have taken place after filing of the charge sheet, issues involved and the reference to alleged conspiracy by the influential political leaders of the region, in our opinion, the decision of the State Government that the investigation of this case should be conducted by Central Bureau of Investigation is justified. Having regard to the importance of issues involved and the alleged complicity of the influential political leaders referred to in paragraph Nos.3 and 4 of the petition, in our considered opinion, this is a fit case where the investigation should be conducted by Central Bureau of Investigation.
11. In the result, Writ Petition is allowed in terms of prayer clause (B) and (C). Prayer clause (D) does not survive since the investigation is transferred to respondent No.7 - Central Bureau of Investigation. Appropriate steps be taken by the concerned Authority for implementation of this order at the earliest."
3. The State CID had filed a report under Section 173 of the Criminal Procedure Code on 22nd December 2005. In this charge sheet, only four persons were shown as assailants/accused: Raju Pundlik Mali (accused No.1), Raju Chintaman Sonawane, (accused No.2), Leeladhar Pundlik Narkhede, (accused No.3), and Damodar ::: Downloaded on - 09/06/2013 14:48:00 ::: 5 Lokhande, (accused No.4). On the basis of this charge sheet, the case was committed to the Court of Sessions.3 The Competent Court granted permission to the investigating agency for conducting a further investigation. A supplementary charge sheet was submitted at a subsequent stage. Two accused, namely, Leeladhar Narkhede and Damodar Lokhande had filed a Writ Petition before the Aurangabad Bench for quashing the FIR, filed against them which was allowed on 3rd February 2006 and the FIR against these two persons was quashed. Against this order, the State had preferred a Special Leave Petition before the Supreme Court. This Appeal filed by the State came to be dismissed by the Supreme Court on 18th April 2007. Writ Petition No.646 of 2005 was filed subsequent to the filing of the charge sheet under Section 173 of the Criminal Procedure Code and, as already noticed, in that Writ Petition, the Court had directed that further investigation in terms of the order of the High Court should be transferred to CBI. The order of this Court transferring the investigation to CBI was not challenged. The CBI conducted further investigation, examined various witnesses and claims to have subjected a number of persons to Narco analysis and other tests whereafter it filed a supplementary charge sheet on 19th June 2008. In the 3 Sessions Case No.8 of 2006 ::: Downloaded on - 09/06/2013 14:48:00 ::: 6 supplementary chargesheet, CBI attributed a role in the commission of the crime to Damodar Lokhande and Leeladhar Narkhede. While filing the first supplementary charge sheet, the investigating agency made a prayer to take additional evidence on record in support of the charge sheet already filed. This was taken on record by the trial Court. A second supplementary charge sheet was filed by CBI on 6th October 2008 wherein the names of accused Nos.3 and 4 were again sought to be added as accused. This was taken on record by the concerned Court and accused Nos.3 and 4 were also directed to be summoned to face trial for the offence. In the second supplementary charge sheet filed on 6th October 2008, it has been specifically mentioned by the investigating agency that on the basis of the previous evidence collected by the investigating agency at the time of the filing of the first charge sheet, the FIR against these two accused had been quashed and it was relying upon the subsequent investigation. This fact was also stated under the head "Charge". In the report under Section 173 of the Criminal Procedure Code, reliance on the evidence collected subsequently was placed.
4. The trial before the Court of the learned Sessions Judge had been stayed by an order of this Court dated 19th December 2007.
::: Downloaded on - 09/06/2013 14:48:00 ::: 7Another aspect which needs to be noticed at this stage is that during the pendency of the proceedings before the trial Court, on 21st September 2005 CBI filed an application seeking directions from the Court that accused Nos.3 and 4 should undergo a Narco analysis test. As the accused failed to appear, the court by its order dated 28th September 2006 issued a bailable warrant for their production before the Court. Thereupon Writ Petition No. 578 of 2007 was filed by those two accused before the Aurangabad Bench challenging the order dated 28th September 2006 in which, by an order dated 1st October 2007, a learned Single Judge of Aurangabad Bench stayed the order. It appears from the record that the accused appeared and accepted that they would subject themselves to the Narco analysis test. In these circumstances, the writ petition did not survive.
5. The present Writ Petition had been filed in the year 2007 and came up for hearing. In view of the order passed by a Division Bench of this Court on 19th December 2007, proceedings in Sessions Case No.8 of 2006 were stayed until further orders.
6. In this Writ Petition, accused Nos.3 and 4 have not been ::: Downloaded on - 09/06/2013 14:48:00 ::: 8 added as party Respondents. Accused Nos.3 and 4 moved an application for intervention. The Application was also heard and was practically allowed inasmuch as intervening accused Nos.3 and 4 were heard at length on merits. One of the assailants, namely, Raju Mali who was all through the period in custody, was found to be suffering from AIDS and is stated to have died on 6th April 2007.
Proceedings against him came to an end.
7. Various Benches of this Court dealing with the matter passed directions from time to time in relation to the investigation being conducted by the CBI. By an order dated 30th June 2008, the Court had directed the investigating agency to complete the proceedings expeditiously. On 6th October 2008, the Court was informed that an additional charge sheet against two persons would be filed and it was left open for the trial Court to accept the charge sheet in accordance with law. Eleven progress/interim reports were filed by different investigating agencies, particularly by the CBI during the pendency of the Writ Petition. By an order dated 4th December 2008, a Division Bench of this Court was of the opinion that there are certain areas which still required to be investigated and that the investigating agency should look into all those matters and submit a ::: Downloaded on - 09/06/2013 14:48:00 ::: 9 report. A report was filed before this Court. By orders dated 12th January 2009 and 8th April 2009, further directions were issued to the CBI to produce a complete report and particular documents to satisfy the Court that there has been a just and fair investigation.
These records were produced and the first Investigating Officer, namely, N.S. Ghuge was called upon by the Court to clarify the position appearing from the record of the investigation, to which he had made a vague statement. Therefore, he was directed by an order dated 9th April 2009 to file a proper affidavit, clearing the doubt shown in the investigation and as pointed out by the learned Counsel appearing for the Petitioner. The investigating officer filed an affidavit dated 15th April 2009 which we shall shortly proceed to discuss.
8. Mr.Mahesh Jethmalani, Counsel appearing for the Petitioner contended that the investigation has been unjust and unfair; as the investigating agency has ignored material pieces of evidence primarily to favour two suspects, Dr. G.N. Patil and Dr. Ulhas Patil, who, according to the Petitioner, are influential persons. Despite the fact that the Court had been continuously supervising or monitoring the investigation of the case, the investigating agency ::: Downloaded on - 09/06/2013 14:48:01 ::: 10 has, according to the petitioner, withheld the record from the Court and complete records have not been filed along with the charge sheet/supplementary charge sheet under Section 173 of the Criminal Procedure Code. The mysterious death of Raju Mali while in custody, it was urged, casts a shadow of doubt on the investigation. The mobile records, the interview of the accused, panchnama dated 3rd October 2005 are some of the features pressed in aid to submit on the involvement of the above stated two persons. Accused Nos.1 and 2, according to Counsel appearing for the Petitioner, were the assailants, while accused Nos.3 and 4 were monitoring the commission of the crime in conspiracy with the said two persons.
9. The learned Additional Solicitor General, appearing for the CBI, submitted that once a charge sheet has been filed before the Court of competent jurisdiction in terms of Section 173 of the Criminal Procedure Code, 1973 this Court should not deal with the matter and control the investigation proceedings by issuing a writ of continuing mandamus. It was also contended that the investigating agency has conducted a conscious, just and fair investigation free of any influence and has taken recourse to all possible methods of ::: Downloaded on - 09/06/2013 14:48:01 ::: 11 technical investigation and, after collecting the evidence upon a further investigation, filed a first and second supplementary charge sheet. Material was found only against accused Nos.3 and 4. In the final report submitted before the Court on 12th January 2009, it has been stated as follows :
"16. Detailed analysis of the phone calls of Dr. G.N. Patil, Dr. Ulhas Patil, Damodhar Lokhande, Leeladhar Narkhede, Raju Mali and Sh. V.G. Patil was again made and further examination of Dr. G.N. Patil, Dr. Ulhas Patil and Shri Ramesh Chaudhary on the calls made or received by them was done to find out the nature of conversation amongst them during the relevant period. They were asked about each and every conversation with the accused persons, if any, from 16.9.05 to 21.9.05. However, it has not revealed any new fact.
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23. Pursuant to the orders of this Hon'ble Court, the Investigating Officer/other officers have spent 14 days at Jalgaon to ensure that the investigation is as thorough as possible and that there is no loose end left untied. After the aforementioned investigation, it is clear that the case of enmity of V.G. Patil with Dr. G.N. Patil or Dr. Ulhas Patil or Ramesh Chaudhary being the motive for murder of Shri V.G. Patil is hardly established. The further investigation has shown that although V.G. Patil and the other three were in two different political camps, but at social and personal level, they did not have enmity of the kind alleged by the Petitioner. The very fact that the children of V.G. Patil received education in the institution of G.N. Patil and his family, and the other facts revealed during investigation, is inconsistent ::: Downloaded on - 09/06/2013 14:48:01 ::: 12 with any motive from the side of Ulhas Patil, G.N. Patil or Ramesh Chaudhary to murder V.G. Patil.
24. In view of the fact that the CBI wanted to complete the investigation in its entirety, it continued to examine the witnesses and other concerned persons till 9.1.2009. Hence the report is being filed on 12.1.2009. It may also be mentioned that some of the witnesses were busy with the proceedings of the Legislative Assembly. In view of the above, the said delay in filing the report may kindly be condoned by this Hon'ble Court."
10. In view of the above, it was submitted that investigation falls in the domain of the investigating agency and unless some glaring or unconscionable factors were brought to the notice of the Court, the Court should leave the investigating agency to conduct investigation free and without any particular directive.
11. We are called upon to examine and determine the following questions :
(a) Whether this Court has fallen in legal error in issuing a writ of continuing mandamus (interim directions) despite the fact that the charge sheet report under Section 173 of the Criminal Procedure Code had been filed before the Court of competent jurisdiction. In other words whether ::: Downloaded on - 09/06/2013 14:48:01 ::: 13 the Court loses jurisdiction under Article 226 of the Constitution of India on the filing of the report under Section 173 of the Criminal Procedure Code before the Competent Court;
(b) Whether the investigation in the present case has been so unjust and unfair that despite filing of the report under Section 173 of the Criminal Procedure Code, this Writ Petition should be kept pending and the Court should supervise the investigation of the case when the trial of the case has commenced before the Sessions Court;
(c) Whether the investigating agency has ignored and/or not taken into consideration relevant pieces of evidence during the investigation and that this has caused prejudice to the Petitioner's interest, leaving her remediless; and the larger public interest has suffered as the investigating agency is trying to protect G.N. Patil and Dr. Ulhas Patil; and whether this Court should interfere and issue directions for impleadment or deletion of the accused; and ::: Downloaded on - 09/06/2013 14:48:01 ::: 14
(d) Depending on the discussion on the above issues, what interim directions should be issued by the Court including vacating the interim order.
12. From the narration of the above facts, it is clear that various parties have been approaching the High Court by filing Writ Petitions from time to time in relation to one or the other facets of this case. The FIR in this case was registered on 21st September 2005. The investigation was commenced by the local police station but was immediately transferred to the Crime Branch of the State.
Right from the beginning the accused or the suspects had been raising an objection before the Court that they are being falsely implicated in the case despite the fact that they have no role to play in the incident, primarily for the reason that it is based on political vendetta. On the other hand, the Petitioner and some other interested persons have consistently raised the plea that the suspects have high connections and they have been able to influence the investigation and the investigating agencies were not able to fairly perform their duties. Taking into consideration the various averments made, a Division Bench of this Court had ::: Downloaded on - 09/06/2013 14:48:01 ::: 15 transferred the investigation of the case to CBI and the investigation was taken over by CBI after the order dated 23rd February 2007.
Thereafter CBI filed a supplementary charge sheet in terms of Section 173(2) of the Criminal Procedure Code. The Petitioner was still dissatisfied and filed the present Writ Petition. Consequent upon the directions issued by the Court in the present Writ Petition from time to time, the CBI has dealt with the matter with all seriousness and the investigation was carried out with objectivity, with the aid of forensic science. Various tests like a Narco Analysis test were deployed and statements of the witnesses were recorded.
In the second supplementary charge sheet filed by CBI, accused Nos.3 and 4 have been reintroduced as accused despite the fact that the FIR lodged on 21st September 2005 has been quashed against them by the order of the Court dated 3rd February 2006. The directions contained in the order sheet and the progress reports placed on record by the CBI on 6th September 2007, 19th December 2007, 30th June 2008 and 25th July 2008, demonstrate that the exercise of the extra ordinary jurisdiction by different Benches of this Court under Article 226 of the Constitution was appropriate in the facts and circumstances of the case. The mere fact that a charge sheet had been filed on 22nd December 2005 would not as an ::: Downloaded on - 09/06/2013 14:48:01 ::: 16 absolute rule of law exclude the jurisdiction of the Court under Article 226 particularly in view of the circumstances of the case.
This view is also substantiated by the fact that the order transferring the investigation of the case to CBI was passed by the Court on 23rd February 2007 and the learned trial Court had granted permission for further investigation to the CBI under Section 173(8) of the Criminal Procedure Code.
13. We will now examine the law governing the field. In Vineet Narain vs Union of India and another,4 the Supreme Court was considering the investigation in the Hawala case with reference to particular documents as well as the manner in which the investigation was carried out. The Supreme Court, while issuing general directions in relation to pending as well as future investigation held as under :-
"8. The sum and substance of these orders is that the CBI and other governmental agencies had not carried out their public duty to investigate the offences disclosed; that none stands above the law so that an alleged offence by him is not required to be investigated; that we would monitor the investigations, in the sense that we would do what we permissibly could to see that the investigations progressed while yet ensuring that we did not direct or channel those investigations or in any other manner 4 (1998) 1 SCC 226 ::: Downloaded on - 09/06/2013 14:48:01 ::: 17 prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring court would end the moment a charge- sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigation were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive, this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of "continuing mandamus"."
14. While emphasizing the need for proper investigation the Supreme Court held that persons against whom there is a reasonable suspicion of committing a crime have to be treated equally under the law and probity in public life is of great significance. Clarifying the attitude of the Court in such proceedings, the Court said that the Court is to ensure that CBI and other government agencies do their duty strictly in conformity of law. In these proceedings the Court is not required to go into the merits of the case and these matters need to be considered by the competent Court in which a charge sheet is filed. However, the Court relied on the words of Lord Denning who said that, "once a duty exists there should be a means of enforcing it. This duty can be enforced, .... either by action at the suit of the Attorney General ::: Downloaded on - 09/06/2013 14:48:01 ::: 18 or by the prerogative order of mandamus". The Supreme Court further observed thus:
"3, The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: "Be you ever so high, the law is above you." Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies.
4. In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.
5. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
6. However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report6 must be promptly submitted to this Court for its satisfaction that the authorities concerned have not failed to perform their legal obligations and have reasonably ::: Downloaded on - 09/06/2013 14:48:01 ::: 19 come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if and when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court."
15. In Union of India and others vs Sushil Kumar Modi and others,5 the Supreme Court took the view that once a charge sheet is filed in the competent Court after completion of the investigation, the process of monitoring by the Court for the purpose of making the investigating agency perform its function of investigating into the offence comes to an end and thereafter it is only the Court in which the charge sheet is filed which has to deal with matters relating to the trial of the accused falling within the scope of Section 173(8) of the Criminal Procedure Code.
16. In M.C. Abraham vs State of Maharashtra6, the Supreme Court stated the principle that though the investigation is in progress, it is the statutory duty of the investigating agency to submit a report to the Magistrate. It is open to a High Court in appropriate cases to give directions for prompt investigation. The High Court cannot direct the investigating agency to submit a report that is in accord 5 (1998) 8 SCC 661 6 (2003) 2 SCC 649 ::: Downloaded on - 09/06/2013 14:48:01 ::: 20 with the views of the Court since that would be an unwarranted interference with the investigation of the case and would inhibit the exercise of statutory power by the investigating agency. The Court cannot direct the investigating agency to submit a full and complete investigation report in relation to the allegation made in the first information and even material collected during investigation.
17. In Popular Muthiah vs State represented by Inspector of Police,7 the Supreme Court held thus:
"21. The Code of Criminal Procedure is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following:
(i) The Court has the power to direct investigation in cognizable cases under Section 156(3) read with Section 190 of the Code of Criminal Procedure.
(ii) A Magistrate can postpone the issue of process and inquire into the case himself under Section 202 (1) of the Code of Criminal Procedure.
(iii) When a charge sheet is filed, the court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The Court can direct further 7 (2006)7 SCC 296 ::: Downloaded on - 09/06/2013 14:48:01 ::: 21 investigation into the matter.
(iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure.
(v) Once the case is committed, the Sessions Judge may refer the matter to the High Court.
(vi) In the event, without taking any further evidence, it is found that while passing the order of commitment, the Magistrate has committed an error in not referring the case of an accused or left out an accused after evidence is adduced, the court may proceed against a person who was not an accused provided it appear from the evidence that he should be tried with the accused.
(vii) The revisional court during pendency of the trial may exercise its revisional jurisdiction under Section 397 in which case, it may direct further inquiry in terms of Section 398 of the Code of Criminal Procedure.
(viii) The revisional powers of the High Court and the Sessions Court are pointed out in the Code separately; from a perusal whereof it would appear that the High Court exercises larger power.
(ix) In the event of any conviction by a court of Sessions, an appeal there against would lie to the High Court. The appellate court exercises the power laid down under Section 386 of the Code of Criminal Procedure in which event it may also take further direct evidence in terms of Section 391 thereof.
(x) The High Court has inherent power under Section 482 of the Code of Criminal Procedure to correct errors of the courts below and pass such orders as may be necessary to do justice to the parties and/ or to prevent the abuse of process of ::: Downloaded on - 09/06/2013 14:48:01 ::: 22 court.
22. The Code of Criminal Procedure, thus, provides for a corrective mechanism at each stage, viz., (i) investigation; (ii) trial; (iii) appeal and (iv) revision.
23 The Code of Criminal Procedure, 1973 in contrast to the old Code provides for cognizance of an offence and committal of a case as contradistinguished from cognizance of an offender or committal of an accused to the court of Sessions.
24 It is also significant to note that whereas inherent power of a court or a tribunal is generally recognised, such power has been recognized under the Code of Criminal Procedure only in the High Court and not in any other court. The High Court apart from exercising its revisional or inherent power indisputably may also exercise its supervisory jurisdiction in terms of Article 227 of the Constitution of India and in some matters in terms of Section 482 thereof. The High Court, therefore, has a prominent place in the Code of Criminal Procedure vis-a-vis the court of Sessions which is also possessed of a revisional power.
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30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that (i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be ::: Downloaded on - 09/06/2013 14:48:01 ::: 23 exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.
31. This Court in Dinesh Dutt Joshi v. State of Rajasthan and Another, [(2001) 8 SCC 570] while dealing with the inherent powers of the High Court held:
"The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."
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36. In State Through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan Guru and Others [(2003) 6 SCC 641], it was stated:
"Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case this power cannot be ::: Downloaded on - 09/06/2013 14:48:01 ::: 24 exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
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41. The power to direct enquiry may not, thus, be held to be confined only to the original but also of appellate jurisdiction. Such a power can be exercised also as against the persons who were not the accused at the stage of trial.
42. In Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], this Court held:
"Though such situations may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions Court to send a report to the High ::: Downloaded on - 09/06/2013 14:48:01 ::: 25 Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left-out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes."
[See also Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others, (1983) 1 SCC 1].
43. Such a power evidently can be exercised even after the trial is over."
18. The principle is that investigation has to be fair, just and in accordance with law. The investigation must be conducted with commitment, devotion and accountability as these are basic parameters of criminal investigation. Once the investigation is fair and satisfies the other established parameters there would hardly be any occasion for the High Court to interfere or to oversee the investigation over a prolonged period. In Nirmal Singh Kahlon vs State of Punjab and others,8 the Supreme Court held that fair investigation and fair trial are concomitants to the preservation of the fundamental right of an accused under Article 21 of the Constitution of India but the State has a larger obligation to maintain law and order and preserve peace and harmony in society. The Court has to exercise its supervisory power or power of 8 AIR 2009 SC 984 ::: Downloaded on - 09/06/2013 14:48:01 ::: 26 issuing mandamus in relation to a criminal investigation but it has to be exercised with great care and caution. The Court has to strike a balance between fair investigation and prevalence of the rule of law on the one hand and the interest of the accused on the other as it is presumed that the accused is innocent till proved guilty. Thus, any direction by the High Court which would impinge upon the powers of the investigating agency or the trial Court before whom the charge sheet is filed needs to be avoided.
19. This view also finds support from the dictum of the Supreme Court in T.T. Antony vs State of Kerala and others,9 where the Court held that a just balance has to be struck between citizens' rights under Articles 19 and 21 and the expansive power of the police to investigate.
20. The power of judicial review and supervisory control is implicit in the Constitution and there is no express provision excluding this power. Judicial intervention and judicial review in consonance with stated principles is the heart and soul of the constitutional scheme. The right of the police to investigate into a cognizable offence is statutory in nature. But, the plenary power of 9 (2001)6 SCC 181 ::: Downloaded on - 09/06/2013 14:48:01 ::: 27 the police to investigate cases is not unlimited. The power is subject to recognized limitations. The power of the High Court to direct investigation by CBI wherever the investigating agency does not proceed with the case properly is implicit and the High Court can direct investigation by a special investigating agency.
21. The judgment in Vineet Narain (supra) established the principle that there has to be a fair and proper conduct of investigation expeditiously. This principle remains unchanged and is in fact followed in subsequent judgments. The stage of investigation is not the sole criteria for determining whether or not the High Court should exercise its jurisdiction under Article 226. In Sushil Kumar Modi (supra), the Supreme Court held that where the charge sheet has been filed, the trial Court is to deal with all matters relating to trial of accused including matters falling within the scope of Section 173(8) of the Criminal Procedure Code.
Primarily, matters of trial and all further investigation can be dealt with by the trial Court handling the matter. But this is not an absolute rule of law which would completely oust the jurisdiction of a High Court under Article 226 whenever a charge sheet is filed before the trial Court. Such a jurisdiction can be exercised by the ::: Downloaded on - 09/06/2013 14:48:01 ::: 28 High Court within a limited compass and cannot be used as a means to interfere with the progress of the trial or, for that matter, further investigation but wherever there is a mala fide or colourable investigation or when the investigation is influenced by matters unconnected with a proper and fair investigation, the Court would have the jurisdiction to interfere in the matters. It is not for the High Court to appreciate matters of evidence but wherever an investigating agency has under extraneous influence conducted an investigation offensive to the preservation of the rule of law, the Court would have the jurisdiction to interfere and if necessary to monitor the investigation. The exercise of the power of monitoring vested in the High Court and the issuance of a continuing mandamus in the facts and circumstances of the present case was fully justified and it could continue even after filing of a report under Section 173 of the Criminal Procedure Code. However, that situation now does not arise inasmuch as we are finally disposing of the Writ Petition with certain directions.
22. Questions (b) and (c) can conveniently be dealt with together as they have a common basis. The petitioner contends that the investigation is tainted, unjust and unfair primarily with the ::: Downloaded on - 09/06/2013 14:48:01 ::: 29 object of protecting influential persons, (Dr.G.N. Patil and Dr. Ulhas Patil). It is also urged that the investigating agency has ignored material evidence or had not made complete and full efforts to detect the true culprits or to unravel the conspiracy in regard to the commission of the offence. In order to bring home this submission, Counsel appearing for the Petitioner, placed stress on the following material irregularities or unfairness apparent on the face of the record in the investigation conducted by CBI:-
(a) The memorandum/panchnama dated 3rd October 2005 has not been given its due importance and has not been critically examined;
(b) Complete records of mobile phones have not been affixed to the charge sheet/supplementary charge sheet filed by the investigating agency.
The records collected during investigation have not been correctly referred to in the reports as there were conversations on cell phones between the accused and the two suspects afore-referred.
In other words, the prosecution has withheld ::: Downloaded on - 09/06/2013 14:48:01 ::: 30 records from the Court;
(c) The Narco Analysis test of the witnesses/accused points towards the fact that there are other persons involved in the commission of the crime which has also been ignored by the investigating agency;
(d) The death of accused Raju Mali while in custody is a suspicious circumstance which demonstrates the unfairness of the investigation; and
(e) The writing alleged to be that of the deceased accused Raju Mali (a copy whereof was placed on record) is stated to be a sufficient basis for involving the persons in question.
23. Before we commence our discussion on the plea that the investigation was unfair, unjust and tainted, it is necessary for the Court to set the record straight, by observing that the State investigating agency and, for that matter CBI, have not withheld ::: Downloaded on - 09/06/2013 14:48:01 ::: 31 any records which were required to be produced under orders of the Court. The Investigating Officer Mr. Ghuge had made an attempt to avoid placing correct facts before the court which resulted in creating some ambiguity in the record of investigation.
Thus, he was directed to file an affidavit by an order dated 9th April 2009 which he filed on 15th April 2009. The record produced and the affidavits filed by different parties have been carefully examined by us. Prima facie we are unable to accept the contention made on behalf of the Petitioner that the investigating agency has withheld or failed to produce records as directed by the Court or the records which were necessary to be examined for the purpose of determining matters in controversy in the present case. The learned Solicitor General has not withheld any record from the court and had not expressed any reservation about producing the record for the perusal of the court.
24. Reference has also been made to an alleged statement of the deceased-accused Raju Pundlik Mali dated 1.10.2005 where he has stated that he was a leader of the Mali society and was in the party of Dr. Ulhas Patil, Ex M.P. and Mr. Jayant Patil and deceased Patil was in the opposite party. After referring to the other allegations, it ::: Downloaded on - 09/06/2013 14:48:01 ::: 32 is stated that on 16.9.2005 in the morning, he had brought his brother-in-law Raju Sonawane on a bicycle and met Dr. Ulhas Patil in his hospital and told him that he was going to murder V.G. Patil and that he should complete the work of releasing him from the case, which he had agreed. This statement is alleged to have been made to the police while in police custody. This accused died before CBI could interrogate him and before commencement of trial. An application for recording the statement of accused Raju Sonawane was filed under section 164(1) of the Criminal Procedure Code. On this application, the court has not passed any orders on the ground that the matter was pending before the High Court and the application may be considered after the stay is vacated by the High Court. It was argued on behalf of the CBI that the investigation of the case has been transferred earlier to CID and thereafter to CBI in February, 2007 and the CBI has thereafter investigated all the aspects of the matter and it has not found any convincing evidence regarding the alleged statement made in the year 2005 by the deceased-accused who died on 6.4.2007. As far as the application by accused Raju Sonawane is concerned, it was not moved by the said accused before the competent court though he was arrested in September, 2005. It has been filed in 2008 and is pending before ::: Downloaded on - 09/06/2013 14:48:01 ::: 33 the court. CBI does not have any objection to the application being decided in accordance with law by the Learned Trial Judge.
25. Another document which was produced by the petitioner during the course of the hearing of this writ petition is an alleged statement made by Raju Mali, deceased-accused which is undated.
This statement is alleged to have been written by the deceased-
accused and handed over to one of his relatives. It is contended that this statement was never produced before the trial court or CBI or even in this court though the accused died in 2007 and when the matter is pending during this period. Besides alleging that it is a fabricated document, it is also contended that it has been allegedly stated that deceased Raju Mali alone had murdered the deceased and Raju Sonawane (accused No.2) has nothing to do with it. The deceased-accused had acted on the instructions of Dr. Ulhas Patil and Mr. Jayant Patil but they did not help him all this time and therefore, he was disclosing their names. He has also raised a grievance against his wife who did not come to see him in his last days. The CBI had no occasion to look into the statement or to investigate its truthfulness or otherwise.
::: Downloaded on - 09/06/2013 14:48:01 ::: 3426. The names of various persons have been mentioned in different reports filed by the CBI, including of Narkhede and Lokhande, the two accused who have been added subsequently.
This is stated to be the result of further investigation by the CBI.
Accused Raju Sonawane was subjected to a polygraphic test from 22nd to 24th August, 2007 at New Delhi and the test has revealed deceptive responses on all critical questions asked to him relating to the murder of V.G. Patil. With the progress of the investigation subsequently, a report under section 173 had been filed by CBI also taking leave of the court under section 173(8) to file an additional chargesheet or to produce additional evidence at a subsequent stage.
27. The panchnama dated 3rd October 2005, is prepared by the police and refers to the statement of accused No.2 Raju C Sonawane, who is stated to have made the said statement before the panchas regarding the crime. Under this panchnama, the said accused has shown different places to the police and stated that Raju Mali had taken him to these places wherein he had got in touch with Dr.Ulhas Patil and said that he was going to kill V.G. Patil and that he should get him released on bail soon. This ::: Downloaded on - 09/06/2013 14:48:01 ::: 35 panchnama is allegedly signed by the police officer and the panchas and accused Raju C. Sonawane. According to CBI, it has investigated this aspect of the matter and was not able to find any cogent and reliable evidence to show the involvement of Dr. Ulhas Patil in the commission of the crime. Besides the fact that the alleged panchnama is stated to be a statement made by the accused while in police custody, it appears from the record that no recoveries admissible under Section 27 of the Evidence Act were made by the investigating agency in furtherance of this statement.
In fact, the statement itself refers to the showing of the building, etc. and nothing more.
28. These are the matters of evidence which need to be proved in accordance with law and their impact and evidentiary value have to be examined by the trial court of competent jurisdiction.
29. It has been contended before the court that the complete records of the Cell Phones indicate that there were conversations between the accused and the suspects prior to and immediately after the commission of the crime which had not been produced before the trial court or for that matter before this court. Some ::: Downloaded on - 09/06/2013 14:48:01 ::: 36 averments, though not with any certainty or supported by document, were made in the affidavit that has been filed on behalf of the petitioner. Filing of selected mobile phone records, therefore, was contended to be a serious defect in investigation. The first Investigating Officer in his investigation had made the following comments.
"I say that after the occurrence of the incident the media was constantly flashing news that the political opponents of V.G. Patil (deceased) were responsible for the said murder and since the petitioner Rajani Patil had specifically expressed the names of G.N. Patil and Mahindra Singh Patil as the political opponents of her husband, hence, during the course of investigation I recorded the statements of G.N. Patil and Mahindra Singh Patil. However, since there were other political opponents of the deceased V.G. Patil who were Ulhas Patil, Ramesh Choudhary, Udaysingh Patil and Suresh Panchal, hence, the call record details of all these political opponents were called for."
30. These notings were heavily relied upon by the petitioner to challenge the veracity and bonafides of the CBI in conducting the investigation. The records which were produced before the court did not support this contention of petitioner as, according to CBI, the Cell Phone records of various suspects did not show any link or evidence to connect the suspects with the commission of crime. The court had directed production of complete records which had been ::: Downloaded on - 09/06/2013 14:48:01 ::: 37 taken into custody by CBI, CID (Crime) and by the local police which were produced. The counsel appearing for the petitioner contended that the records produced which include the police files and diary entries should be permitted to be inspected and in fact, copies should be directed to be given to the petitioner before this court in exercise of the powers under Article 226 of the Constitution of India.
31. Having heard the learned counsel appearing for the parties, we had not permitted inspection of police files by the petitioner or the other accused at this stage of the proceedings. In Director, Central Bureau of Investigation vs. Niyamadevi,10 the Supreme Court while referring to the police files observed that very limited use can be made of the statements made to the police and in the police diaries and the court should not disclose material contained in police diaries and statements recorded during investigation. The Supreme Court held that during investigation, the High Court should have refrained from disclosing in its order material contained in those diaries and statements especially when the investigation in the case was in progress. The Supreme Court held that the observations made by the High Court amounted to an 10 1995(3) SCC 601 ::: Downloaded on - 09/06/2013 14:48:01 ::: 38 interference in the investigation at a premature stage. In the present case, substantial investigation has been concluded, and a chargesheet/supplementary chargesheets have been filed. The CBI has filed the extract of the Cell Phone records before the trial court alongwith the chargesheet while it has produced the complete original Cell Phone records of various concerned persons before this court. From the record, it appears that Cell Phone numbers of the parties are as under:
"9370627561, 9423187054, 9370003094, 9850484348, 9423188802, 9370003849"
32. The learned Additional Solicitor General emphasized that despite this, CBI had taken steps to re-examine the entire material in the light of the records and the statements of the witnesses and as already noticed, it has not been able to find any cogent or relevant evidence to file a charge sheet making the suspects as accused. It is material to refer to the relevant part of the reply filed by Shri R.S. Panwar, Additional Superintendent of Police, Central Bureau of Investigation, Special Crime Branch, Mumbai to the affidavit filed by the petitioner:
"41. Available evidence does not show conference calls between G.N. Patil, Narkhede and Lokhande.::: Downloaded on - 09/06/2013 14:48:01 ::: 39
This fact has been confirmed by the Nodal officer of Idea Cellular Limited, who has informed that Mobile No.9850484348 (which was registered in the name of Gajendra Singh B. Sisodia and was being used by G.N. Patil) did not have the call conferencing feature during September, 2005, and as such, the cellular number cannot make conference calls. He has also clarified that by observing the CDR, it cannot be stated if the calls wee conference calls. Call Detail Rcords of the phone numbers 9320003849 and 9423187054 are also not available with the concerned service providers. BSNL has also informed that since the CDR for the mobile number 9423187054 is not available, whether the subscriber made any conference calls or not cannot be verified.
42. The Nodal Officer of Idea Cellular Limited, has informed that Mobile No.9850484348, which was registered in the name of Gajendra Singh and was being used by G.N. Patil did not have the call conferencing feature during September, 2005 and as such, the cellular number cannot make conference calls.
43. Regarding para number 39 of the affidavit of the petitioner, I say that this averment of the petitioner is factually not correct to the extent that missed calls are traceable. In fact missed calls on mobiles cannot be traced. As regards the conference call from the phone of G.N. Patil to Narkhede and Lokhande at 9.23 am., this submissin is also factually not correct, as has been stated in the preceding paragraphs. In fact Damodar Lokhande has made a call at 9.23.11 to G.N. Patil and then again 2 seconds later at 9.23.13. Dr. G.N. Patil has not made any call to Damodar Lokhande or Leeladhar Narkhede."
33. We have examined the record and found that not even a single call had been made from the Cell Phone of the ::: Downloaded on - 09/06/2013 14:48:02 ::: 40 accused/deceased accused to these two suspects at the time of or proximate to the time of the commission of the crime. We do not propose to discuss the merits of the evidence on record as it will fall in the domain and jurisdiction of the trial court where the trial has already commenced. We have referred to the factual matrix of the case and noticed relevant records only for the purposes of examining the fairness or otherwise of the investigation conducted by the CBI.
34. In the last report dated 12th January, 2009 submitted on behalf of the CBI, it has also been noticed that during the investigation certain averments made in the Writ Petition and letters etc. were not found to be factually correct in as much as no primary Ashram Shala was opened by Government of Maharashtra in District - Jalgaon during the tenure of G.N. Patil, when he was District Congress President. The 7th Secondary Ashram Shala was sanctioned by Maharashtra Government in the year 2003 without recommendation of any political person and only on merit. There it has been submitted that there appeared to be no animosity between Shri G.N. Patil, V.G. Patil and Ulhas Patil, as even the children of Shri V.G. Patil were studying in the school of the suspect and there ::: Downloaded on - 09/06/2013 14:48:02 ::: 41 were no quarrels between them though they belonged to rival factions of the same party.
35. During the course of argument, reliance was also placed on behalf of the Petitioner upon the judgment of the Supreme Court in M.C. Mehta v. Union of India & Ors,11 to contend that there has to be a fair investigation and the jurisdiction of the Court to have control over the investigation is beyond any controversy. This proposition of law cannot be disputed and in fact this principle has been followed in this proceeding. But on facts, in that case, the investigation had shown involvement of suspects and all authorities except the Director of Prosecution and Senior Prosecutor had come to the conclusion that the charge-sheet as contemplated under the law should be filed. The Supreme Court while referring to various facets of investigation in that case finally directed the CBI to place material evidence collected by the Investigating Team along with the report of the Superintendent of Police before the concerned Special Court Juge, who would decide the matter in accordance with law.
36. In the present case earlier, a charge-sheet was filed and after 11 2007 AIR SCW 1025 ::: Downloaded on - 09/06/2013 14:48:02 ::: 42 further investigation under the orders of the Court, a supplementary charge-sheet against two accused was filed and still investigation is going on and leave under Section 173(8) of the Code of Criminal Procedure has been obtained. We of course, propose to issue certain directions in the present case shortly hereafter.
37. Another question that was raised was that the petitioner should be given copies of the statements, confessional or otherwise and reliance was placed on the judgment of a Division Bench of this Court in the case of Monica Susairaj v. The State of Maharashtra through CID, Unit-VIII, in Criminal Writ Petition No. 1337 of 2008 decided on 14th October, 2008, where the Court stated the principle as under:-
"35. In the light of aforesaid discussion, we hold as under :
A) There is no prohibition in law to supply a copy or a certified copy of a confessional statement of an accused, to the accused, at any stage before filing of charge sheet;
(B) However, the accused has no legal right to seek a copy or a certified copy of his/her confessional statement at any stage before filing of the charge sheet;
C) It is entirely within the discretion of the investigating agency or prosecution as to whether to ::: Downloaded on - 09/06/2013 14:48:02 ::: 43 supply and/or permit supply of copy of a confessional statement to an accused before filing of charge sheet. If the investigating agency is of the view that such a supply of copy at such stage to an accused is not going to adversely affect its investigation, it will be open for the investigating agency to supply and/or permit supply of such a copy at such a stage to the accused. However if the investigating agency is of the view that such a supply of copy at such stage to an accused is going to adversely affect its investigation, it will be open for the investigating agency not to supply and/or not to permit supply of such a copy at such a stage to the accused. In such an eventuality such a copy shall not be supplied to the accused at such a stage. The discretion of the investigating agency or the prosecution in the aforesaid limited regard is not justiciable;
D) In case, even before filing a charge-sheet, if the media gets an access to a confessional statement of an accused or even without getting such an access reports incorrectly anything as a part of confessional statement made by an accused, which results into character assassination of an accused (who till conviction is presumed to be innocent in law), it is bounden duty of the investigating agency to issue appropriate clarification to the media and it is the corresponding duty of the media to clarify the position at least to the extent that what was reported by the media to be a confessional statement of an accused is not correct."
38. From a reading of the above judgment, it is clear that documents which have been filed in the Court, are accessible to every person including the accused, prosecution and the Complainant. The Investigating Agency has a discretion, whether ::: Downloaded on - 09/06/2013 14:48:02 ::: 44 or not to supply a copy of the confessional statement before the filing of a charge-sheet. The CBI in the present case has supplied the documents which have been filed before the Court along with the report. The documents which are not part of the record have not been supplied by the CBI in the larger public interest. We have already dealt with this aspect by referring to the law laid down by the Supreme Court in Niyamadevi's case (supra). Yet, this controversy can well be examined by the learned Trial Judge who has to appreciate the case of the prosecution in its entirety and has to examine all aspects of the case including whether any person who is a suspect and/or is involved in the commission of crime ought to have been mentioned and impleaded in Column 10 of the chargesheet. It will not be appropriate for this court at this juncture to examine the culpability of the suspects to that extent particularly when the chargesheet before the court of competent jurisdiction has been filed and when the recording of evidence is yet to commence.
Thus, in the facts of the present case, we feel it appropriate to leave these questions for determination by the court of competent jurisdiction. The provisions of section 319 of the Criminal Procedure Code are wide enough to clothe the Trial court with ample powers to summon persons who need to be tried together ::: Downloaded on - 09/06/2013 14:48:02 ::: 45 with the accused for their involvement in the commission of the crime.
39. We have to keep in mind the caution spelt out by the Supreme Court in State of Bihar v. P.P. Sharma,12 where the Supreme Court said that the inherent jurisdiction of the High Court should not be used for appreciating documents and evidence placed before it as it may amount to a "pre-trial" of disputed questions.
The appreciation of evidence is the function of the trial court and should normally be left to that court. The Court observed as under:
"68. Another crucial question is whether the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, would interfere and quash the charge-sheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the counter-affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that no prima facie case was made out on merits and chances of ultimate conviction is "bleak". The court is not passive spectator in the drama of illegalities and injustice. The inherent power of the court under Article 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents "demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed", and "in such a situation and circumstances 12 1992 Supp (1) SCC 222 ::: Downloaded on - 09/06/2013 14:48:02 ::: 46 the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option but to grant the relief by quashing the FIR and both the charge-sheets".
Accordingly it quashed them. If this decision is upheld, in my considered view startling and disastrous consequence would ensue. Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to "killing a stillborn child". Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Article 226 and 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule.
Delay feeds injustice to social order and entertaining writ petitions would encourage to delay the trial by diverse tricks. It is not to suggest that under no circumstances a writ petition should be entertained. As was rightly done by Rajasthan High Court in this case at the instance of the directors of the company, wisdom lies to keep the hands back and relegate the accused to pursue the remedy under the Code. In several cases this Court quashed the criminal proceedings on the sole ground of delay. In a case FIR filed in 1954 for violation of the provisions of the Customs Act and Foreign Exchange Regulation Act was challenged in the Allahabad High Court. It was deliberately kept pending in the High Court and in this Court till 1990. The accusation was violation of law by named persons in the name of non-existing firm. The FIR was quashed in the year 1990 by another Bench of which I was a member solely on the ground of delay. He achieved his object of avoiding punishment. This ::: Downloaded on - 09/06/2013 14:48:02 ::: 47 would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to be true and relevant then they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course "in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. After the charge-sheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent court. It is not the case that no offence has been made out in the charge-sheets and the first information report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482 CrPC or Article 226 of the Constitution to quash the first information report."
40. A similar view was also expressed by the Supreme Court in Assistant Collector of Central Excise v. Jainson Hosiery Industries,13 where the court held that "it is right to point out that the High Courts will be careful to be extremely circumspect in granting these 13 1979(4) SCC 22 ::: Downloaded on - 09/06/2013 14:48:02 ::: 48 reliefs especially during the pendency of criminal investigation".
The Supreme Court observed that "investigation of a criminal offence is a very sensitive phase". The law has undoubtedly developed thereafter but the jurisdiction under Article 226 has not been so expanded to the extent that the court in exercise of its discretionary power would assume functions which squarely fall within the domain of the court dealing with the trial, unless rare and exceptional circumstances are made out which exfacie show that the investigation is so unfair, unjust or malafide that it could have the effect of completely prejudicing the trial to the disadvantage of the affected parties. There are certain matters which need to be explained by CBI particularly in regard to the statement of accused. Thus, it would be obligatory for CBI to place before the Trial court the entire material which would have effect on a just and fair decision of the case in bringing out the truth.
41. In various reports as well as the affidavit filed on behalf of the CBI, a definite stand has been taken before us that it has re-examined the entire matter including the doubt reflected in the investigation made by Inspector Ghuge. Nothing incriminating has come to the notice of CBI and furthermore, the affidavit filed by ::: Downloaded on - 09/06/2013 14:48:02 ::: 49 Inspector Ghuge before this court supports the case of the CBI. As already noticed, it is not for this court to examine, either way, the merits and effect of the evidence gathered in the investigation file and/or the evidence produced with the chargesheet under section 173 of the Criminal Procedure Code.
42. There is a fine distinction in law between a suspect and an accused. A suspect is a person against whom evidence and circumstances point towards the likelihood of a commission of an offence. An accused is a person against whom the investigating agency has sufficient material to show, at least prima facie, that he is involved in the crime and has committed an offence punishable under the provisions of the IPC. The Wednesbury principle has often been applied by courts in civil and/or writ jurisprudence. In Holgate-Mohammed v. Duke,14 the House of Lords considered various aspects of criminal investigation and tested them on the touch-stone of the Wednesbury principle. It was held thus-
".........Lord Green M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B.223, that have become too familiar to call for repetitious citation. The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the 14 (1984) 1 A,C, 437 ::: Downloaded on - 09/06/2013 14:48:02 ::: 50 exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.
The first of the Wednesbury principles is that the discretion must be exercised in good faith. The judge in the county court expressly found that Detective Constable offin in effecting the initial arrest acted in good faith. He thought that he was making a proper use of his power of arrest. So his exercise of that power by arresting Mrs. Holgate-
Mohammed was lawful, unless it can be shown to have been "unreasonable" under Wednesbury principles, of which the principle that is germane to the instant case is: "He [sc. the exerciser of the discretion] must exclude from his consideration matters which are irrelevant to what he has to consider."
As Lord Devlin, speaking for the Judicial Committee of the Privy Council in Hussien v. Chong Fook Kam [1970] A.C. 942, 948, said:
"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: `I suspect but I cannot prove.' Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage...."
i.e. bringing the suspect before a magistrates' court upon a charge of a criminal offence. The other side of the same coin is where the investigation, although diligently pursued, fails to produce prima facie proof which, as Lord Devlin in the same case also pointed out (p.949), must be in the form of evidence that ::: Downloaded on - 09/06/2013 14:48:02 ::: 51 would be admissible in a court of law. When the police have reached the conclusion that prima facie proof of the arrested person's guilt is unlikely to be discovered by further inquiries of him or of other potential witnesses, it is their duty to release him from custody unconditionally: Wiltshire v. Barrett [1966] 1 Q.B. 312."
43. In Indian Law as in the U.K. the power to investigate crime is statutory. A notified officer is entitled to investigate an offence in accordance with the provisions of the Criminal Procedure Code read with the Police Act or the Manual, as the case may. The exercise of statutory power has to be lawful and free of malice or unfairness.
The power must be exercised in good faith, not only at the time of examining a suspect but while taking a final view for sending the accused for trial. This power to investigate should continue during the entire investigation and even during trial and that is the precise reason why the court of competent jurisdiction is vested with a power as contemplated in sections 173(8) and 319 of the Criminal Procedure Code to practically re-examine the entire case of the prosecution based on and with reference to the evidence relied upon by the Investigating Agency which is collected even after the commencement of trial.
::: Downloaded on - 09/06/2013 14:48:02 ::: 5244. There are some facets of this case which require some scrutiny by the Court but cannot be gone into by this Court in exercise of its power under Article 226 of the Constitution of India and which can be appropriately examined by the Court of competent jurisdiction where the trial is pending.
45. Having discussed various aspects of this case and the rival contentions raised before us, we now proceed to record the order indicating our conclusions as well as the directions which need to be issued in the facts and circumstances of the present case and in the larger interests of the criminal justice delivery system :-
1. We hold that the exercise of monitoring the investigation and the power vested in the High Court to issue a writ of continuing mandamus would depend on the facts and circumstances of each case.
Where the investigation is so very unjust and unfair and is in unlawful exercise of statutory discretion, the court could interfere and monitor the investigation even after a report under section 173 of the Criminal Procedure Code, 1973 has been filed before the Court of competent jurisdiction;
::: Downloaded on - 09/06/2013 14:48:02 ::: 532. On the facts of the present case, we are unable to hold that the investigation of the case by CBI has been unjust and unfair or that the statutory discretion has been exercised by the investigating agency with malice, favouritism or mala fide so as to invite the intervention of this Court under the extra ordinary jurisdiction under Article 226 of the Constitution of India during the pendency of the trial before the competent Court;
3. Certain documents/affidavits have been produced before this Court, and probably for the first time, on which reliance was placed by the Petitioner during the course of the hearing of the Petition. We direct CBI to examine all such records and submit its report to the Trial Court within one month from the date of the pronouncement of this order. The CBI shall also file before the Trial Court all documents and evidence which it intends to rely upon or to refer during the course of the trial;
::: Downloaded on - 09/06/2013 14:48:02 ::: 544. Liberty is granted to the Petitioner, Applicant and Intervenors to move the Trial Court for any relief or such prayer as may be permissible to them in accordance with law. The applications, if any, filed by them may be dealt with and disposed of by the Trial Court as expeditiously as possible;
5. The Trial Court is free to pass any orders in furtherance to the power vested in it under Section 173(8) read with Section 319 of the Criminal Procedure Code, 1973 keeping in view the facts and circumstances of the present case;
6. The interim orders passed by the Division Bench of this Court staying further proceedings in the trial shall continue for a period of one month from today;
7. This order is without prejudice to the rights and contentions of parties, including the Petitioner, the accused and the investigating agency. The Trial ::: Downloaded on - 09/06/2013 14:48:02 ::: 55 Court dealing with the case would pass any orders as it may deem fit and proper in the circumstances of the case uninfluenced by any observations made in this order.
The petition shall stand disposed of in these terms.
ig CHIEF JUSTICE
DR. D.Y. CHANDRACHUD, J.
cri1278-07final
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