MISCELLANEOUS APPLICATION 154 of 2001 on 24 May 1999

Facts

Reserved.COURT NO.3Criminal Misc. Application No. 154 of 2001(Old no.2691 of 1999)Rajesh Bharadwaj …Applicant. Vs. State …Respondent. WITHCriminal Revision no.99 of 2001(Old no.1453 of 1999)Rajesh Bharadwaj …Revisionist. Vs. State …Respondent. Criminal Misc. Application No. 213 of 2001(Old no.1874 of 2000)Vivek Kumar Khanna …Applicant. Vs. State …Respondent. ANDCriminal Misc. Application No.395 of 2001(Old no.853 of 2000)Anil …Applicant. Vs. State …Respondent. …. Hon’ble Irshad Hussain, J.

Above noted miscellaneous criminal application no.154 of 2001has been filed by charge-sheeted accused under section 482 read withsection 397(1) of the Code of Criminal Procedure (hereinafter referredto as the “Code”) for quashing of charge-sheet no.12 of 1999 dated 24.05.1999 and order dated 27.05.1999 passed thereon by theAdditional C.J.M.-I, Hardwar.

Criminal revision no.99 of 2001 under section 397(1) of theCode has also been filed with the same object seeking quashing of theorder of taking cognizance and summoning the said accused-petitionerpassed on 27.05.1999.

The petition no.213 of 2001 has been preferred by theinformant for setting aside the order dated 23.02.2000 passed byAdditional Sessions Judge-III, Hardwar directing separation andcommencement of the proceedings of S.T. No.13 of 1997 as againstaccused Rakesh Raturi and Bittu alias Madhukar thereby directingstay of trial in regard to third accused Anil Paudda.

Criminal miscellaneous application no.395 of 2001 notedabove has been filed by the accused-petitioner Anil Paudda to quashthe order dated 15.12.1999 passed by III Additional Sessions Judge,Hardwar, whereby the application of this petitioner to stay theproceedings of the session trial No. 13 of 1997 till the petitionspreferred by accused-petitioner Rajesh Bharadwaj (which are referredabove) are not disposed of on merit by the High Court, was rejected.

Heard Sri Daya Shankar Misra, Senior Advocate, learnedcounsel for the petitioner Rajesh Bharadwaj and Sri B.A. Khan,learned counsel of the informant-petitioner Vivek Khanna and thelearned A.G.A.

Brief facts relating to the aforesaid petitions are that onj acommission of murder of Pankaj Khanna at about 8:45 P.M. on01.06.1996 in the town of Kankhal, district Hardwar, first informationreport was lodged by victim’s brother/informant Vivek Khanna at9:30 P.M., the same day. The murder was committed by five personsand out of these one suspect Rajesh Bharadwaj also resident of thesame town, was specifically mentioned by name in the F.I.R. On itsbasis case crime no.75 of 1996, under sections 147, 148, 149, 302 I.P.C. was registered and investigation of the case was taken up byS.H.O., P.S. Kankhal, district Hardwar. On 22.08.1996 charge-sheetno.81 of 1996 in the crime was submitted against two accused, viz.,

Bittu alias Madhukar and Anil Paudda who is the petitioner of one ofthe petitions under judgment. The Magistrate concerned tookcognizance of the offence against these accused on 16.09.1996.Supplementary charge-sheet no.81-A of 1996 dated 01.09.1996 wassubmitted against another accused Rakesh Raturi in said crime andthe Magistrate concerned took cognizance of the offence against thisaccused on 14.10.1996. The father of the victim had beencomplaining that the police had shielded other culprits of the crimeand ultimately the state government decided to entrust theinvestigation to C.B. C.I.D. and in pursuance thereof by order dated13.06.1997, the investigation was entrusted to said crime branch. Inconsequence thereof Inspector R.D.Gaur of C.B. C.I.D. was handedover the investigation which was later on taken up by anotherInspector of the said crime branch and on completion of theinvestigation charge-sheet no. 12 of 1999 in the said crime wassubmitted against accused Rajesh Bharadwaj on 24.05.1999 andagainst him cognizance was taken by the concerned Magistrate on27.05.1999. The charge-sheet filed on 24.05.1999 and the order oftaking cognizance dated 27.05.1999 are impugned in theaforementioned two petitions preferred by accused-petitioner RajeshBharadwaj. All the above named accused who have been charge-sheeted have according to law been committed to the court of sessionfor their trial for commission of offence of murder etc. of abovebvnamed victim.

Learned counsel for the accused-petitioner Rajesh Bharadwaj inorder to assail the legality and propriety of the charge-sheet no.12 of1999 dated 24.05.1999 and order dated 27.05.1999 taking cognizanceby the learned Magistrate submitted that neither in law there can be asecond F.I.R. of an offence nor after submission of the charge-sheetfresh investigation or re-investigation of a crime can be made andsince it has so happened in the case of the accused-petitioner thecharge-sheet in question as well as the summoning order after takingcognizance by the Magistrate are liable to be quashed and set aside.Referring to the earlier two charge-sheets nos. 81/96 and 81A/96

Arguments

against three accused, learned counsel submitted that another F.I.R. bythe informant so as to seek the further indulgence of the state to directinvestigation against another suspect of the crime could not have beenentertained and the same could not have been made basis for taking adecision that investigation of the crime shall be conducted by C.B.C.I.D. Learned counsel in support of the argument that therecannot be a second F.I.R. and no fresh investigation on receipt of thesame placed reliance on the decision of the Hon’ble Supreme Court inthe matter of T.T.Antony Vs. State of Kerala and others, (2001) 6Supreme Court Cases, 181. The facts of the case before the Hon’bleSupreme Court were at variance because second F.I.R. was registeredon the direction of Director General of Police and investigation wasinitiated on the second F.I.R. This is not so in the instant case becauseas is evident from the averment of the affidavit of Inspector JitendraKumar, C.B.C.I.D., Meerut the informant has raised some grievancebefore the state government which after due consideration and takinginto account the facts and circumstances of the case ordered furtherinvestigation to be carried out by its own police agency, C.B.C.I.D. Itis not a case of registering a second F.I.R. and therefore, the reporteddecision is of no help to the cause of the petitioner.

The submission of the learned counsel for the petitioner wasthat the State government could not have legally directed re-investigation after the charge-sheets had already been filed by civilpolice against the culprits. Learned counsel did not dispute that underthe provisions of section 173(8) of Code further investigation ispermissible, but the provision does not warrant initiation of re-investigation of fresh investigation after the report by the police ascontemplated under section 173(2) of the Code has been submitted.Learned counsel in support of the argument placed reliance on thedecision of Hon’ble Supreme Court in the case ofK.Chandrasekhar Vs. State of Kerala and others, 1998 CriminalLaw Journal, 2897. In view of the submission the question whichfalls for consideration is whether the alleged charge-sheet dated24.05.1999, Annexure-8 to the affidavit of the accused-petitioner Rajesh Bharadwaj is the outcome of further investigation or of freshinvestigation/re-investigation by C.B. C.I.D. and whether the ratio ofthe above decision apply to the facts of the instant case or not.

Ratio decidendi

Annexure-6 and Annexure-7 to the above affidavit are the copyof order dated 13.06.1997 of the state government directinginvestigation in the crime by C.B. C.I.D. and copy of the order of theDy. S.P. of the C.B. C.I.D. entrusting the investigation to InspectorR.D.Gaur respectively. Perusal of these documents do not lead to theinference that the state government took decision and directed re-investigation or fresh investigation of the crime to be started ab initiowiping out the earlier investigation altogether. It is of significance thatnecessity for the action so taken by the government arose on accountof the fact that informant complained that the local police which hadinvestigated the crime had shielded other culprit of the crime. Themater was also agitated earlier before the Magistrate concerned andlater on before the district authorities and the state government as isevident from the copy of the representation which is annexure to theaffidavit of Inspector Jitendra Kumar of C.B. C.I.D., Meerut and alsothe copy of the order dated 05.04.1997 passed by C.J.M., Hardwar onthe application of the father of the victim. The claim made by thefather of the victim and the informant was well founded because as aresult of the investigation by C.B. C.I.D. it was found that the then S.H.O. of P.S. Kankhal and one S.I. posted there and also clerk-constable of the said police station have made manipulations in theofficial papers with a view to save another culprit from beingarraigned and charge-sheeted as an accused of the crime. In viewthereof decision was taken and accordingly F.I.R. was lodged againstthese three police personnel for offences punishable under sections120-B, 217 and 218 of I.P.C. F.I.R. is Annexure-7 to the counteraffidavit referred to above. There is nothing on record to show that itwas a decision to initiate fresh investigation or re-investigation of thecrime, but considering the allegations against the police personnelwhich were not without any basis the decision taken by thegovernment was bonafide and that too to initiate further investigation of the crime by its won police agency C.B. C.I.D. Merely becauseword “further” as an adjunct to investigation in the order of thegovernment has not been added it cannot be argued that the decisionwas for re-investigation or fresh investigation of the crime. Therecord of the proceedings does not indicate that any interference wasintended in the earlier investigation and further that investigation wasnot to be started ab initio wiping out the earlier investigationaltogether. It was only a decision to further investigate the crime sothat the apparently well founded grievance of the victim’s father andthe informant could legally be redressed. On the face of the facts andcircumstances of the case the learned counsel for the informant andrespondent-State have also rightly submitted that it is a case of furtherinvestigation as contemplated by the provision of section 173(8) of theCode and therefore, legality of the charge-sheet and the order oftaking cognizance cannot be disputed.

It also need to be mentioned that the facts of the above reportedcase are distinguishable. In the case before the Hon’ble SupremeCourt, consent under section 6 of the Delhi Special PoliceEstablishment Act, 1946 was given and investigation of crimeno.246/1994 was also entrusted to C.B.I. After investigation C.B.I.filed its report in the final form which was accepted by the competentMagistrate and the accused were discharged. Later on the stategovernment decided to withdraw the consent as given earlier and tohave the case investigated by a special team of the state policeofficers. Considering the peculiar facts and circumstances of the caseit was found a case of directing fresh or re-investigation of the crimewhich was found to be started ab initio wiping out the earlierinvestigation altogether. This apart it was also found that the exerciseto direct such an investigation was not bonafide and it wasaccordingly held that subsequent withdrawal of the consent by stategovernment for investigation of case by state police is impermissible.As mentioned above the facts of the instant case are at variancebecause neither there was any malafide exercise of power by the Statenor it was a case of fresh or re-investigation after wiping out the earlier investigation altogether and also that the further investigationwas the need of the situation by another state agency C.B. C.I.D.,which ultimately resulted in bringing the police personnel to bookwho have prepared false record or made manipulation with intent tosave a culprit from punishment as has been alleged by the victim’sfather and the first informant. In view thereof, the above reporteddecision has no bearing on the facts of the instant case.

It was further submitted that since no formal permission fromthe court for further investigation by different agency, viz., the C.B. C.I.D. was obtained, the impugned charge-sheet is bad in law andillegal. In support reliance was placed in the matter of VijayakumarVs. Kamarudhin and others, 1999 Criminal Law Journal, 1294.In the reported decision it has been observed that there is no statutoryrequirement for police to obtain permission from the court to conductfurther investigation in the case. Further in view of the apex court’sdecision in Ram Lal Narang Vs. State, A.I.R. 1979, S.C., 179, theabove proposition as convassed by the learned counsel for thepetitioner was laid down down by the Hon’ble Judge of the KeralaHigh Court. The Hon’ble Supreme Court in the case referred hadtaken the view as under:

“In our view not withtanding that a Magistrate hadtaken cognizance of the offence upon a police reportsubmitted under section 173 of the 1989 Code the rightof the police to further investigation was not exhaustedand the police could exercise such right as often asnecessary when fresh information came to light. Wherethe police desired to make a further investigation thepolice could express their regard and respect for the courtby seeking its formal permission to make furtherinvestigation.

From above it is evident that as a matter of propriety in theinterest of the purity of the administration of criminal justice formalpermission of the court to make further investigation was founddesirable. In the instant case from the averment of counter affidavit ofInspector Jitendra Kumar it is evident that application of formal

information regarding further investigation was submitted before thecourt on 03.02.1998, copy of which is Annexure CA-1 to the saidaffidavit. Although from the record copy of order said to have beenpassed by the court has not been brought on record, however in thepeculiar circumstances of the case the assertion made in the affidavitcannot be lightly ignored. Moreover the further investigationparticularly when there is a complaint that local police had tried tosave the culprit by making interpolation in the papers furtherinvestigation could have only been proceeded to after receiving therelevant documents and case diary from the court concerned. Asmentioned above simultaneous to the submission of the allegedcharge-sheet after further investigation an F.I.R. was lodged againstthree police personnel under sections 120-B/217/218 I.P.C. indicatingthat the Inspector of the C.B. C.I.D. who made further investigationhave had access to the documents and case diary with the permissionof the court concerned. Considering these aspects I feel no hesistationin coming to the conclusion that formal permission of the court wasalso obtained in regard to the further investigation of the crime. Theabove decision relied upon by the learned counsel also does not helpto the cause of the petitioner.

It was next argued by the learned counsel that the impugnedorder dated 27.05.1999 taking cognizance of the charge-sheet inquestion is illegal as the same appear to have been passedmechanically on receipt of the charge-sheet in question withoutconsciously considering the merit of the case and the propriety offiling of the charge-sheet against the accused-petitioner. At the stageof taking of cognizance of the charge-sheet and passing summoningorder detailed discussion of the allegations and the evidence is notrequired. If the learned Magistrate in his said order has not dealt withthe facts and other aspects of the case while taking the cognizance ofthe offence and summoning the accused-petitioner it would not meanthat the learned Magistrate had not considered the propriety of thecharge-sheet in question and the evidence collected during furtherinvestigation. In view thereof the order impugned cannot be said to be illegal or unjustified and the same is not liable to be set aside orquashed.

For the reasons aforesaid both the petitions of accused-petitioners Rajesh Bharadwaj are devoid of merit and are thereforeliable to be dismissed. As a consequence of this, the other twopetitions become infructuous as the stay granted in the above petitionsstand vacated and all these sessions trials against all the accused shallcommence according to law. It may also be pointed out that accused-petitioner Anil had preferred an application paper no.63-B inS.T.No.13 of 1997 seeking indulgence of the court to have theproceedings stayed in view of the stay granted in the above petitionpreferred by co-accused Rajesh Bharadwaj. The prayer was refusedper order dated 15.12.1999 which was assailed by filing the separatepetition by this accused. In view of the dismissal of the petitions ofaccused Rajesh Bharadwaj and vacation of the stay, this accused-petitioner ceased to have any legal grievance.

The other petition which was preferred by the informantaggrieved by the order dated 23.02.2000 passed by the learnedSessions Judge in the said session trial also does not require anyconsideration because the proceedings shall commence against all theaccused in the session trials which have been consolidated by thelearned Sessions Judge concerned for trial. In short these twopetitions are also liable to be dismissed.

All these petitions are hereby dismissed and the stay ordersdated 03.02.2000 and 07.03.2000 passed in petitions nos. 395 of 2001 (old no.853 of 2000) and 213 of 2001 (old no.1874 of 2000)respectively are vacated. Learned Sessions Judge shall proceed todispose of the session trials at the earliest according to law.

24.04.2003./B.

(Irshad Hussain, J.)