BOHATIE DEVI (DEAD) THROUGH LR versus THE STATE OF UTTAR PRADESH & ORS on 28 April 2023

644

SUPREME COURT REPORTS

[2023] 5 S.C.R.

ABOHATIE DEVI (DEAD) THROUGH LR

v.

THE STATE OF UTTAR PRADESH & ORS

(Criminal Appeal No. 1294 of 2023)

BAPRIL 28, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Code of Criminal Procedure, 1973 – ss.158, 173(3) –Reinvestigation by another agency – Order passed by Secretary(Home), State of U.P., Lucknow for reinvestigation by CBCID –CLegality of – Held: s.173(3) r/w s.158 does not permit the Secretary(Home) to order for further investigation/reinvestigation by anotheragency, other than the officer in charge of the concerned PoliceStation and/or his superior officer – For reinvestigation, the priorpermission/approval of the Magistrate is required – In the presentDcase, the Secretary (Home) passed an order for reinvestigation byCBCID and thereafter, the CBCID sent the intimation to theMagistrate – Thus, no prior approval/permission was accorded bythe Magistrate – Order passed by the Secretary (Home) orderingreinvestigation by another agency and that too, on the basis of theapplication/complaint submitted by mother of the accused isEunknown to law – Impugned judgment passed by the High Court isquashed and set aside – Order passed by the Secretary (Home) andconsequently, further investigation/reinvestigation by the CBCID isalso quashed and set aside – Penal code – ss.302, 120B.

Disposing of the appeals, the CourtF

HELD: 1.1 Respondent Nos. 8 and 11 as such have beenchargesheeted for the offence under Sections 302 and 120B ofthe IPC of which the cognizance has been taken by the Magistrateon 21.12.2016. That thereafter, respondent No. 8 as such movedthe quashing petition before the High Court for quashing theGentire criminal proceedings including the chargesheet/supplementary chargesheet. The High Court dismissed thequashing petition. Therefore, the accused must have taken allthe defences which might have been available to him whileconsidering quashing petition including the ground on which nowHfurther investigation/reinvestigation is ordered by another agency, namely, CBCID. Thereafter, respondent No. 8approached this Court and the Special Leave Petition came to bedismissed by this Court and the interim protection in favour ofrespondent No. 8 came to be vacated. That thereafter, non-bailable warrant was issued against respondent No. 8 and onlythereafter, mother of respondent No. 8 – accused moved anapplication before the Secretary (Home) for further investigationand he transferred the investigation to CBCID, inter-alia, on theground that the so-called eye witnesses of the murder were notthe eye witnesses. The request of the mother of accused hasbeen accepted by the Secretary (Home) and the investigationwas transferred to another agency, namely, CBCID despite thefact that after the first chargesheet, the investigation was handedover to the District Crime Branch to further investigate the caseand they filed the supplementary chargesheet in which respondentNos. 8 and 11 were even chargesheeted. Therefore, as such it isnot a case of further investigation, but is a case of reinvestigationby another agency. The order passed by the Secretary (Home)transferring the investigation/ordering further investigation byanother agency and that too, on the basis of the application/complaint submitted by mother of the accused is unknown to law.[Para 7][651-F-H; 652-A-B]

1.2 There cannot be any dispute that even after thechargesheet is filed, it is the right of the investigating officer tofurther investigate in respect of offence even after a report undersub-section (2) of Section 173 of Cr.PC forwarded to a Magistrateand as observed and held by this Court the prior approval of theMagistrate is not required. However, as per the settled positionof law, so far as the reinvestigation is concerned, the priorpermission/approval of the Magistrate is required. In the presentcase, the Secretary (Home) has passed an order for furtherinvestigation by CBCID and thereafter, the CBCID has sent theintimation to the Magistrate. No prior approval/permission asobserved by the High Court has been accorded by the Magistrate.The High Court in the impugned judgment and order has observedthat the further investigation is ordered with the concurrence ofthe Magistrate, which is factually incorrect. In any case, as it is acase of reinvestigation, the same is not permissible and that tooby another agency without the prior permission of the Magistrate AB

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Aeven while exercising the powers under Section 173(8) of theCr.PC. So far as the investigation is concerned under the schemeof the Cr.PC, the Police Officer of the concerned Police Station,who is the investigating officer, has to investigate/furtherinvestigate the case under the supervision of Superintendent ofPolice. So far as the Secretary (Home) is concerned, he does notBcome into picture at all. If such powers are given to the Secretary(Home) in that case any accused who is already chargesheetedmay approach the Secretary (Home) and may get an order offurther investigation or reinvestigation by another agency andobtain the fresh report nullifying the earlier chargesheet and gethimself discharged. If the accused is aggrieved by theCchargesheet in that case, the remedy available to him would beeither to file the quashing petition under Section 482 of Cr.PCand/or to move an appropriate application for discharge beforethe Magistrate and it is for the High Court and/or the Magistrateas the case may be, to quash criminal proceedings or discharge the accused. The Secretary (Home) and/or any accused who isDalready chargesheeted cannot be permitted to circumvent suchprovision. In the present case, respondent No. 8 – accused earlierdid file the quashing petition, but failed. [Paras 7.1, 7.2][652-D-H; 653-A-E]

1.3 Section 173(3) read with Section 158 does not permit Ethe Secretary (Home) to order for further investigation/reinvestigation by another agency, other than the officer in chargeof the concerned Police Station and/or his superior officer. [Para7.3][653-G]

State of Andhra Pradesh Vs. A.S. Peter(2008) 2 SCC383 : [2007] 13 SCR 517; Ram Lal Narang Vs. StateF(Delhi Administration)(1979) 2 SCC 322 : [1979] 2SCR 923 – referred to.

Case Law Reference

[2007] 13 SCR 517referred toPara 5.1[1979] 2 SCR 923referred toPara 5.2

GCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1294 of 2023.

With

Criminal Appeal No. 1295 of 2023From the Judgment and Order dated 17.11.2020 of the High CourtHof Judicature at Allahabad in CRLMWP No.7093 of 2019.

Ardhendumauli Kumar Prasad, A.A.G., Ms. Vibha Datta Makhija,S Nagamuthu, Rameshwar Singh Malik, Sr. Advs., Atul Kumar,Abhimanyu Sharma, Ms. Deepali, Pulak Bagchi, Tarun Gupta, JiteshMalik, R Sudhakaran, Abhaya Nath Das, Satish Kumar, Harikesh Singh,Sandeep Sinhmar, Satish Hooda, Satyendra Kumar, Anand Sanjay M.Nuli, Prashant Chowdhari, K.P. Singh, Kanishk Chowdhari, Sarvesh SinghBaghel, Ms. Deepika Kalia, Sidharth Sengar, Advs. for the appearingparties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Allahabad in Criminal Misc. WritPetition No. 7093/2019, by which, the High Court has dismissed the saidwrit petition preferred by the appellant herein – mother of the deceased– Satyveer alias Kallu, in which, the appellant challenged order dated13.02.2019 passed by the Secretary (Home), State of UP, Lucknow,whereby he ordered for further investigation by CBCID of Case CrimeNo. 1069/2014, the original writ petitioner has preferred the presentappeal.

2. The facts leading to the present appeal in a nutshell are asunder: - 2.1 That son of the appellant – Satyaveer @ Kallu was murderedby un-known persons. An FIR was lodged by the informant Sanjeevson-in-law of the appellant against Smt. Anju and two un-known persons.The investigation was carried out by the Inspector of Police, Baraut,District Baghpat who submitted chargesheet on 01.03.2015 against twopersons of which cognizance was taken by the learned Magistrate on31.03.2015. That thereafter, on the complaint/application by the appellant,the investigation was handed over to the District Crime Branch. Asupplementary chargesheet was filed on 02.12.2016 against one AshwaniKumar – respondent No. 8 herein (son of respondent No. 9 herein) andSmt. Anju - respondent No. 11 herein. The learned Magistrate tookcognizance of the same on 21.12.2016. That thereafter, respondent No.8, namely, Ashwani Kumar filed the quashing petition before the HighCourt for quashing of the entire criminal proceedings of Case No. 7626/2016 originating out of Case Crime No. 1069/2014 as well as for quashingof the chargesheet dated 02.12.2016. The said application came to be AB

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Adismissed by the High Court on 05.07.2017. Being aggrieved of orderdated 05.07.2017, respondent No. 8 – Ashwani Kumar approached thisCourt by way of Special Leave Petition (Crl) No. 599/2017 which wasdismissed by this Court on 24.08.2018. This Court also vacated the interimprotection granted to respondent No. 8 vide order dated 15.09.2017.The learned CJM, Baghpat issued non-bailable warrant againstBrespondent No. 8 vide order dated 08.09.2018. That thereafter and afternon-bailable warrant was issued against respondent No. 8 herein, motherof Ashwani Kumar – accused moved an application dated 23.01.2019 tothe Secretary (Home), State of Uttar Pradesh for transferring theinvestigation to CBCID, inter-alia, on the ground that respondent No. 8Chas been arraigned as accused on the basis of statements of two witnesseswho in fact were in the Jail and therefore, their statements cannot bebelieved. That by order dated 13.02.2019, Secretary (Home) State ofU.P., Lucknow, ordered further investigation by CBCID. The orderpassed by the Secretary (Home) transferring investigation to CBCIDwas impugned before the High Court by way of present petition. By theDimpugned judgment and order the High Court has dismissed the writpetition by observing that further investigation was ordered after intimationto the learned Magistrate and therefore, there is no infirmity in the orderpassed by the Secretary (Home) directing further investigation. Theimpugned judgment and order passed by the High Court is the subjectEmatter of present appeal.

3. Ms. Vibha Datta Makhija, learned Senior Advocate hasappeared on behalf of the appellant and Shri S. Nagamuthu and ShriRameshwar Singh Malik, learned Senior Advocates have appeared onbehalf of respondent Nos. 8 and 11. Shri Anand Sanjay M. Nuli, learnedFcounsel has appeared on behalf of the intervenor.

4. Ms. Makhija, learned Senior Advocate appearing on behalf ofthe appellant has vehemently submitted that the order passed by theSecretary (Home) transferring the investigation to CBCID is absolutelyillegal and contrary to the provisions of the Code of Criminal ProcedureG(Cr.PC).

4.1 It is submitted that in the present case after thoroughinvestigation by the investigating agency of the State, respondent Nos. 8and 11 were chargesheeted. It is submitted that once chargesheetedthereafter, at the instance of mother of one of the accused, the SecretaryH(Home) could not have transferred the investigation.

4.2 It is vehemently submitted that such an order of transfer ofinvestigation by the Secretary (Home) and that too at the instance ofmother of one of the accused, is un-known to law and is not permissibleat all.

4.3 It is further submitted by Ms. Makhija, learned Senior Advocatethat in fact, the grounds on which the investigation was sought to betransferred can be said to be the defences on behalf of the accusedwhich are required to be considered at the time of trial. It is submittedthat as such by passing the order of transfer of investigation to CBCIDand the subsequent investigation by CBCID virtually acquits the accusedwho are chargesheeted in the supplementary chargesheet and wouldtantamount to nullify the chargesheet against respondent Nos. 8 and 11,which as such is not permissible.

4.4 It is further submitted by Ms. Makhija, learned Senior Advocateappearing on behalf of the appellant that in fact it is not a case of furtherinvestigation but it is a case of reinvestigation and therefore, forreinvestigation the prior approval of the Magistrate is must. It is submittedthat in the present case, the Secretary (Home) first took a decision andpassed the order to transfer the investigation to CBCID and thereafter,the IO only intimated the learned Magistrate about transfer ofinvestigation, which cannot be said to be following due procedure asrequired by law, more particularly, Section 173(8) of the Cr.PC.

4.5 It is further submitted that even on facts also, the High Courthas materially erred in observing that the order directing furtherinvestigation was passed with the concurrence of the concernedMagistrate. It is submitted that even learned counsel for respondent No.8 was wrong in making the submission before the High Court that theorder passed by the Secretary (Home) of further investigation was passedafter taking leave of the Magistrate competent to do so. It is submittedthat nothing is on record that any leave was sought and granted by thelearned Magistrate. It is submitted that what is there on record is onlythe intimation to the learned Magistrate and nothing more than that.

4.6 It is further submitted that the High Court has not properlyappreciated and considered the fact that respondent Nos. 8 and 11 werechargesheeted pursuant to supplementary chargesheet dated 02.12.2016of which the learned Magistrate took cognizance on 21.12.2016 and thatthereafter, respondent No. 8 prayed for quashing of the entire criminalproceedings including the chargesheet and respondent No. 8 failed up to A

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Athis Court and only thereafter, when the non-bailable warrant was issued,on his behalf an application was moved for transfer of investigation. It issubmitted that once the chargesheet was filed and even the quashingpetition came to be dismissed up to this Court, thereafter, it was not openfor the accused or on his behalf to move an application for furtherinvestigation/reinvestigation.B4.7 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the order passed by the Secretary (Home)transferring the investigation to CBCID.

5. While opposing the present appeal Shri Ardhendumauli KumarCPrasad, learned AAG appearing on behalf of the State has vehementlysubmitted that having being satisfied that a case is made out for furtherinvestigation and to do the complete justice to the parties including theaccused, no error has been committed by the Secretary (Home) in orderingfurther investigation by CBCID. It is submitted that the order passed bythe Secretary (Home) being the head of the department was onDadministrative side and thereafter, the concerned IO intimated to thelearned Magistrate about transfer of investigation/further investigationwhich is the requirement under the law.

5.1 While opposing the present appeal, Shri S. Nagamuthu andShri Rameshwar Singh Malik, learned Senior Advocates appearing onEbehalf of respondent Nos. 8 and 11 have vehemently submitted that fairinvestigation is the right of the accused as well as the victim. It is submittedthat Section 173(8) of Cr.PC permits/authorises the investigating officer(IO) to further investigate the case for which the permission of learnedMagistrate is not required. It is submitted that under Section 173(8) ofFCr.PC, it is the right of IO for further investigation. Reliance is placed onthe decision of this Court in the case of State ofAndhra Pradesh Vs.A.S. Peter (2008) 2 SCC 383 (para 9).

5.2 It is submitted that as observed and held in the case of RamLal Narang Vs. State (Delhi Administration) (1979) 2 SCC 322, inGthe interest of both the prosecution and the defence, the Police shouldhave the power to make further investigation and submit a supplementalreport.

5.3 It is further submitted by learned senior counsel appearing onbehalf of the accused that in the present case even, further investigationwas carried out by the District Crime Branch (other than the IO of theH

concerned Police Station) which was on the application/complaint bythe appellant and respondent Nos. 8 and 11 came to be chargesheetedpursuant to the supplementary chargesheet. It is submitted that thereafter,when further investigation has been ordered by CBCID on the applicationof mother of the accused thereafter it is not open for the appellant tomake a grievance that further investigation cannot be ordered by anotheragency – CBCID.

5.4 It is further submitted by learned senior counsel appearing onbehalf of the accused that even as per Section 173(3) read with Section158 of Cr.PC, the investigation by another agency is permissible.

5.5 It is further submitted by Shri Nagamuthu, learned SeniorAdvocate appearing on behalf of respondent No. 8 that after theinvestigation by CBCID as ordered, a further report shall be submittedbefore the learned Magistrate and thereafter, there shall be three reportsbefore the learned Magistrate, one on the basis of chargesheet, secondon the basis of supplementary chargesheet and third on the basis offurther investigation by CBCID and thereafter, it is ultimately for thelearned Magistrate to consider the reports. It is submitted that therefore,let the third report also be considered by the learned Magistrate andtherefore, the impugned order may not be interfered with by this Court.

6. Heard learned counsel appearing on behalf of the respectiveparties at length. We have also heard Shri Anand S. Nuli, learned counselappearing on behalf of the intervenor.

7. At the outset, it is required to be noted that respondent Nos. 8and 11 as such have been chargesheeted for the offence under Sections302 and 120B of the IPC of which the cognizance has been taken by thelearned Magistrate on 21.12.2016. That thereafter, respondent No. 8 assuch moved the quashing petition before the High Court for quashingthe entire criminal proceedings including the chargesheet/supplementarychargesheet. The High Court dismissed the quashing petition. Therefore,the accused must have taken all the defences which might have beenavailable to him while considering quashing petition including the groundon which now further investigation/reinvestigation is ordered by anotheragency, namely, CBCID. It is required to be noted that thereafter,respondent No. 8 approached this Court and the Special Leave Petitioncame to be dismissed by this Court and the interim protection in favourof respondent No. 8 came to be vacated. That thereafter, non-bailable AB

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Awarrant was issued against respondent No. 8 and only thereafter, motherof respondent No. 8 – accused moved an application before the Secretary(Home) for further investigation and he transferred the investigation toCBCID, inter-alia, on the ground that the so-called eye witnesses ofthe murder were not the eye witnesses. The request of the mother ofaccused has been accepted by the Secretary (Home) and theBinvestigation was transferred to another agency, namely, CBCID despitethe fact that after the first chargesheet, the investigation was handedover to the District Crime Branch to further investigate the case andthey filed the supplementary chargesheet in which respondent Nos. 8and 11 were even chargesheeted. Therefore, as such it is not a case ofCfurther investigation, but is a case of reinvestigation by another agency.The order passed by the Secretary (Home) transferring the investigation/ordering further investigation by another agency and that too, on thebasis of the application/complaint submitted by mother of the accused isun-known to law.

D7.1 There cannot be any dispute that even after the chargesheetis filed, it is the right of the investigating officer to further investigate inrespect of offence even after a report under sub-section (2) of Section173 of Cr.PC forwarded to a Magistrate and as observed and held bythis Court the prior approval of the Magistrate is not required. However,as per the settled position of law, so far as the reinvestigation is concerned,Ethe prior permission/approval of the Magistrate is required. In the presentcase, the Secretary (Home) has passed an order for further investigationby CBCID and thereafter, the CBCID has sent the intimation to thelearned Magistrate. No prior approval/permission as observed by theHigh Court has been accorded by the learned Magistrate. The HighFCourt in the impugned judgment and order has observed that the furtherinvestigation is ordered with the concurrence of the Magistrate, which isfactually incorrect. What is on record is only an intimation to the learnedMagistrate which in any case cannot be said to be concurrence of thelearned Magistrate.

G7.2 In any case, as it is a case of reinvestigation, the same is notpermissible and that too by another agency without the prior permissionof the learned Magistrate even while exercising the powers under Section173(8) of the Cr.PC. Under what authority of law, the Secretary (Home)has transferred the investigation to another agency and/or ordered furtherinvestigation by another agency is not pointed out and that too at theH

instance of the accused on the grounds which as such can be said to bethe defences of the accused which are required to be considered at thetime of trial. The case on behalf of the accused that as the Secretary(Home) is the head of the department and the further investigation wasordered by another agency on administrative side and therefore, theSecretary (Home) is justified in ordering further investigation by CBCIDcannot be accepted. So far as the investigation is concerned under thescheme of the Cr.PC, the Police Officer of the concerned Police Station,who is the investigating officer, has to investigate/further investigate thecase under the supervision of Superintendent of Police. So far as theSecretary (Home) is concerned, he does not come into picture at all. Ifsuch powers are given to the Secretary (Home) in that case any accusedwho is already chargesheeted may approach the Secretary (Home) andmay get an order of further investigation or reinvestigation by anotheragency and obtain the fresh report nullifying the earlier chargesheet andget himself discharged. If the accused is aggrieved by the chargesheetin that case, the remedy available to him would be either to file thequashing petition under Section 482 of Cr.PC and/or to move anappropriate application for discharge before the learned Magistrate andit is for the High Court and/or the learned Magistrate as the case maybe, to quash criminal proceedings or discharge the accused. The Secretary(Home) and/or any accused who is already chargesheeted cannot bepermitted to circumvent such provision. It is to be noted that in the presentcase, respondent No. 8 – accused earlier did file the quashing petition,but failed.

7.3 Now, so far as the submission on behalf of the accused relyingupon Section 173(3) of Cr.PC is concerned, it provides how to submit/send a report to the Magistrate and who shall send the report to theMagistrate. It provides that where a superior officer of police has beenappointed under Section 158, the report, shall be submitted through thatofficer, and he may, pending the orders of the Magistrate, direct theofficer in charge of the police station to make further investigation.Therefore, Section 173(3) read with Section 158 does not permit theSecretary (Home) to order for further investigation/reinvestigation byanother agency, other than the officer in charge of the concerned PoliceStation and/or his superior officer.

8. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed by AB

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Athe High Court is hereby quashed and set aside. Consequently, orderdated 13.02.2019 passed by the Secretary (Home) impugned before theHigh Court, by which, the Secretary (Home), State of U.P., Lucknowordered for reinvestigation by CBCID of Case Crime No. 1069/2014under Sections 302 and 120B of IPC, Police Station Baraut, District, ishereby quashed and set aside. Consequently, further investigation /Breinvestigation by the CBCID is also hereby quashed and set aside.However, it is observed that all the defences which may be available tothe accused are to be considered by the learned Trial Court at the timeof trial. Present appeal is accordingly allowed.

As we have allowed Criminal Appeal arising out of SLP (Crl.)CNo. 4394/2021 filed by the mother of the deceased (now dead throughLR), connected Criminal Appeal arising out of SLP (Crl.) No. 7708/2021 filed by original accused Nos. 6 and 7 against issuance of non-bailable warrants against them stands dismissed.

DDivya PandeyAppeals disposed of.(Assisted by : Abhishek Pratap Singh and Roopanshi Virang, LCRAs)

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