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2003 DIGILAW 897 (PAT)

Kishore Kumar Munna v. State Of Bihar

2003-08-26

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha and B.N.P.Singh JJ. 1. This writ petition has been filed for a writ in the nature of habeas corpus for production of one Rohit Kumar Jha, and for other consequential reliefs as may be considered fit and proper. 2. Said Rohit Kumar Jha, resident of village Nagarpara within Bihpur Police Station of Bhagalpur district was posted as Estimating Officer in the Works Division of the REO at Saharsa at the relevant time. On 4.12.2002 his wife Neela Jha lodged a missing reporttreated as fardbeyanat the Saharsa Police Station alleging that her husband had gone out to meet the Executive Engineer at about 6.45 A.M. but had not returned home. On enquiry, she learnt that he did not reach the house of the Executive Engineer. He was reportedly seen by one Guddu Singh near house of Dr. Nutan Jha going towards west on a cycle rickshaw and BijayThakur, Choukidar of the departmental godown near Saharsa Law College. At about 7.30-7.45 A.M. one Lallu Jha along with another person had come on motorcycle to meet her husband. Some time after one Brahmanand Jha, another contractor, came. Subhash Singh, a Junior Engineer, also came searching her husband. In the circumstances, she expressed fear that her husband had been kidnapped and taken somewhere for oblique motive. She disclosed that her husband was in a perturbed state of mind due to official work for the last couple of days. 3. On the basis of the said report, Saharsa P.S. Case No. 193 dated 4.12.2002 was registered under Sections 365/34 of the Indian Penal Code and investigation was taken up. The case of the petitioner is that the then Superintendent of Police examined Neela Jha on several times to ascertain if she suspected the role of any person in the kidnapping of her husband. She however, did not name any person. The S.P. also examined relatives of Rohit Jna besides contractors and others. On 16.1.2003, Neela Jha informed the S.P. in writing that the Executive Engineer and Brahmanand Jha knew facts about her husband. The Executive Engineer managed to get himself transferred in haste even without handing over charge to his successor to escape the interrogation. One Shailendra Yadav purportedly made statement in presence of Ashok Kumar Singh, a Minister in the Council of Ministers of the State, and the Superintendent of Police implicating the petitioner in the kidnapping of Rohit Jha. The Executive Engineer managed to get himself transferred in haste even without handing over charge to his successor to escape the interrogation. One Shailendra Yadav purportedly made statement in presence of Ashok Kumar Singh, a Minister in the Council of Ministers of the State, and the Superintendent of Police implicating the petitioner in the kidnapping of Rohit Jha. Shailendra Yadav however, in his statement before the Magistrate under Section 164 Cr.P.C. categorically stated that being allured by the Minister Shri Ashok Kumar Singh to provide him job, contract and money he had made the earlier statement. He further disclosed that when he was about to enter the campus of the Court he was threatened by a leader of the RJD. The case of the petitioner is that Ashok Kumar Singh has been hostile to him as he had contested the last general election against him as an independent candidate. It is said that he put pressure on the then Superintendent of Police Smt. U.S. Anupam to arrest the petitioner but she refused to do so; instead she went on long feave. His successor Ajitab Kumar joined the district on 24.3.2003 and on the same day ordered arrest of the petitioner without caring to examine the case diary etc. This he did under the influence of the DIG of Police Kosi Range, Saharsa, who according to the petitioner, was too willing to oblige Minister Ashok Kumar Singh. Pursuant to the said order of the Superintendent of Police the petitioner was taken in custody from his house on 25.3.2003. Though Neela Jha all along had maintained that she did not know the petitioner, all of a sudden, taking a U-turn she made positive statement implicating the petitioner in the kidnapping of Rohit Jha. This, according to the petitioner was under the influence of Minister Ashok Kumar Singh. The petitioner has enclosed copies of the Sanha lodged by him with the Sub-divisional Officer apprehending danger to his life and the informatory petition filed by said Shailendra Yadav before the Sub-divisional Officer, Saharsa. It is alleged that the Executive Engineer used to frequently visit the house of Rohit Jha which put him in a perturbed state of mind and he had started taking medicines. It is alleged that the Executive Engineer used to frequently visit the house of Rohit Jha which put him in a perturbed state of mind and he had started taking medicines. The petitioner apprehends that Rohit Jha had been kept somewhere in Nepal for oblique motive and his disappearance has been utilised to implicate him to harass him and, at the same time, shield the real guilty. 4. The further case of the petitioner is that considering the nature of the case the Director General & Inspector General of Police (DGP) Bihar recommended to the State Government that the case be entrusted to the CBI for investigation. However, the State Government was sitting tight in the matter apparently under the influence of the Minister Ashok Kumar Singh. Instead, a decision was taken to entrust the investigation to the Criminal Investigation Department (CID). It is alleged that the experience in the State of Bihar shows that whenever the case is intended to be thrown in the cold storage in order to protect any influential accused, the cases are handed over to the CtD. 5. On 8.5.2003 the writ petition was filed with the aforesaid averments. On 9.5.2003 the Court directed the standing counsel to take instructions from the S.P. Saharsa as well as the D.G.P Bihar. On 19.5.2003 the Court directed the D.G.P. Bihar to file affidavit sworn by himself either accepting or denying the correctness of newspaper report as per which he (DGP) had recommended to the State Government that the case be entrusted to the CBI for investigation. On 2.6.2003 the hearing was adjourned as the respondents did not file any counter affidavit. On 23.6.2003 the case was again adjourned to 1.7.2003. On 2.7.2003, the Court was informed that on 19.5.2003 notification under Section 6 of the Delhi Special Police Establishment Act, 1946 had been issued according consent of the State Government for investigation of the case i.e. Saharsa P.S. Case No. 193/2002 by the CBI. The Police Headquarters informed the Superintendent of Police, Saharsa about the said development on 26.5.2003. Curiously, in haste, chargesheet was submitted against the petitioner and others on 20.6.2003. The Police Headquarters informed the Superintendent of Police, Saharsa about the said development on 26.5.2003. Curiously, in haste, chargesheet was submitted against the petitioner and others on 20.6.2003. When these facts came to the notice of the Court, by order dated 2.7.2003 the Superintendent of Police Saharsa and the Investigating Officer of the case were directed to submit explanation as to how chargesheet was submitted in the case when decision had been taken by the State Government to entrust the investigation to the CBI. Pursuant to the said order the Superintendent of Police and the Investigating Officer filed their separate show cause. 6. In his show cause the Superintendent of Police Saharsa admitted to have received the aforesaid letter dated 26.5.2003 informing him about the decision of the State Government to entrust the investigation of the case to the CBI vide notification dated 19.5.2003. The Superintendent of Police, in fact, disclosed that on 18.6.2003 an A.S.I. of Police, Shri R.P. Sharma, attached with Special Crime Branch-II, C.B.I. New Delhi, had contacted his office along with a letter dated 13.6.2003 from the Superintendent of Police, C.B.I., Special Crime Branch II, New Delhi, by which request had been made to hand over photo copies of the F.I.R., case diaries and other documents pertaining to the case to Shri R.P.Sharma, and in the light of the said request letter the papers, in fact, had been handed over to Shri R.P. Sharma on 18.6.2003 itself. However, no reply had been received from the CBI till date about taking over of the investigation of the case and in the circumstances, the district police continued investigation of the case. The Superintendent of Police contended that if the investigation reveals sufficient evidence against the accused, the chargesheet had to be submitted within the stipulated period so that the accused persons do not take benefit of Section 167(2) of the Criminal Procedure Code. That is how the Superintendent of Police sought to defend submission of the chargesheet. It is not necessary to refer to the show cause of the Investigating Officer. 7. In view of the stand of the Superintendent of Police and the Investigation Officer, by order dated 14.7.2003 this Court directed the CBI to submit its response. That is how the Superintendent of Police sought to defend submission of the chargesheet. It is not necessary to refer to the show cause of the Investigating Officer. 7. In view of the stand of the Superintendent of Police and the Investigation Officer, by order dated 14.7.2003 this Court directed the CBI to submit its response. On 5.8.2003 when the case was taken up next, Shri Rakesh Kumar, CBI counsel, informed the court that unless corresponding notification under Section 5 of the Delhi Special Police Establishment Act. 1946 is issued by the Central Government, the CBI cannot take up investigation. In fact, an affidavit to this effect was also filed. In view of this stand of the CBI, Shri P.K. Shahi, Standing Counsel Central Government, was directed to take instructions from the Central Government about its stand in the matter. When the case was taken up next on 12.8.2003 Shri Shahi passed on a copy of D.O. No. 228/46/ 2003. DSPE dated 11.8.2003, the relevant part of which runs as under : "Whenever a request from a State Government, with or without a Section 6 notification, is received for investigation by the CBI in a particular case, the proposal is forwarded to the CBI for examining the feasibility of undertaking the investigation of the said case. Based on the inputs of the CBI. a decision is taken to extend the powers and jurisdiction of members of Delhi Special Police Establishment for the investigation of any offences or class of offences in a State. In this case too, comments of the (sic) were received before the decision for not issuing a Section 5 notification was taken." In the circumstances, the CBI counsel was directed to produce copy of the comments submitted by it to the Central Government which led to non-issuance of the notification under Section 5 of the Delhi Special Police Establishment Act. The comments issued under the signature of Shri M.K. Jha, S.P. CBI/SCB-ll/New Delhi dated 30.7.2003 was produced by Shri Rakesh Kumar, CBI counsel on 21.8.2003. From perusal of the comments it appears that the CBI is of the view that as investigation in the case has already been completed and the chargesheet filed, and secondly, as the case is of local nature having no inter-State/international ramification, there was no justification to warrant CBI investigation. From perusal of the comments it appears that the CBI is of the view that as investigation in the case has already been completed and the chargesheet filed, and secondly, as the case is of local nature having no inter-State/international ramification, there was no justification to warrant CBI investigation. The counsel for the parties were finally heard on 21.8.2003 and the order was reserved. 8. Though as indicated at the outset the writ petition was filed for production of Rohit Kumar Jha, there is no point in pursuing this aspect of the case in the present proceeding in view of the submission of the chargesheet by the District Police under Sections 364/120B/34 of the Indian Penal Code. Section 364 of the Penal Code envisages the offences of kidnapping or abduction of any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. In the facts of the case, briefly noticed above, the point which arises for consideration is whether the chargesheet submitted by the district police should be treated as final, or the Court should direct investigation into the case by the CBI. In the scheme of things under the Criminal Procedure Code the State/District Police which has statutory power to investigate into criminal cases. However, where it is found that the investigation by the local police was perfunctory and incomplete or unfair, it is open to the Court to direct investigation by the CBI. The issue was settled by the Supreme Court in State of West Bengal & Ors. V/s. Sampat Lal and Ors., AIR 1985 SC 195 , wherein observing that though there is a well defined hierarchical administrative setup of the police in the State, creating a new channel of inquiry or investigation is likely to undermine the importance of the statutory agency which is likely to give an impression that "everything is not well with the statutory agency and it is likely to cast a stigma on the regular police hierarchy", the apex Court observed that the power to direct CBI investigation can be exercised by the Court notwithstanding the non-issuance of the notification under Section 6 of the Delhi Special Police Establishment Act in appropriate cases. To quote, "in our considered opinion Section 6 of the Act does not apply when the Court gives direction to CBI to conduct investigation and counsel for the parties directly did not dispute this position." In the instant case, the State Government has already issued the necessary notification under Section 6 of the said Act. 9. In fact, while considering the propriety and validity of the action of the district police in submitting the chargesheet on 20.6.2003, this comes to our mind first. The State Governments notification according its consent for CBI investigation had been duly communicated by the Police Headquarters to the DIG of Police, Koshi Range as well as the S.P. Saharsa on or about 26.5.2003. Pursuant to the said notification on 13.6.2003 the S.P CBI Crime Branch-II, New Delhi had deputed Shri R.P Sharma an A.S.I., to collect the papers from the District police. On 18.6.2003 Shri R.P. Sharma contacted the Superintendent of Police, Saharsa and papers were handed over to him on the same day. It is indeed curious that chargesheet should be submitted within two days thereafter. The Superintendent of Police in his show cause vide paragraph 10 thereof, states that his office had not received any information from the office of CBI about taking over investigation of the case. When the papers had been collected by the CBI from the District police only on 18.6.2003, it is beyond our comprehension as to how within two days the CBI could have sent its response to the district police. It may be recalled that the DGP had reportedly recommended to the State Government that investigation be entrusted to the CBI. We directed the DGP to swear affidavit-either accepting or denying correctness of the statement but no such affidavit was filed by him. 10. As a matter of fact, the fact that the DGP had made such recommendation is borne out from the proceedings of the Bihar Legislative Assembly dated 24.3.2003. It appears from the proceedings that a good deal of discussion took place in the House pursuant to call attention motion by a Member Shri Ashwini Kumar Choube. It was agreed that the Speaker would hold a meeting and discuss the case with the Minister Incharge, Leader of the Opposition, Secretary, Home (Police) Department and the DGP. It appears from the proceedings that a good deal of discussion took place in the House pursuant to call attention motion by a Member Shri Ashwini Kumar Choube. It was agreed that the Speaker would hold a meeting and discuss the case with the Minister Incharge, Leader of the Opposition, Secretary, Home (Police) Department and the DGP. It is relevant to mention that copy of the notification dated 19.5.2003 under Section 6 of the Delhi Special Police Establishment Act was sent to Deputy Secretary, Bihar Legislative Assembly, giving reference to his letter dated 22.4.2003 and the aforesaid call attention motion which prima facie indicates that a meeting was in fact held in the Chambers of the Speaker in which decision was taken to ask the State Government to entrust investigation to the CBI and it was pursuant to the said recommendation of the house that on 19.5.2003 the State Government issued notification. Perusal of the proceedings of the house dated 24.3.2003 shows that members were of the view that disappearance of Rohit Kumar Jha was result of a wider conspiracy involving influential persons having inter-State ramification. 11. It is true that notwithstanding issuanee of request of the State Government and notification under Section 6 of the Delhi Special Police establishment Act, the CBI does not take up investigation without corresponding notification under Section 5 of the Act by the Central Government, but as indicated above, the Central Government in the instant case merely went by the word of the CBI without any application of mind. The clear stand of the Central Government is that whenever a request is received from the State Government, with or without under Section 6 notification, the proposal is forwarded to the CBI for examining the feasibility of the investigation by it, and based on the inputs provided by the CBI, a decision is taken to extend the powers and jurisdiction of members of Delhi Special Police Establishment for investigation of any case otherwise to be investigated by the State Police. In the comments which the CBI sent to the Central Government the only grounds stated were that the investigation was complete and chargesheet had already been submitted in the case, and that the case is of local nature. 12. While it is a fact that chargesheet has been filed against the petitioners and few others, it is not correct to say that investigation is complete. 12. While it is a fact that chargesheet has been filed against the petitioners and few others, it is not correct to say that investigation is complete. The chargesheet itself say that the investigation has been kept pending as against other accused. Even otherwise, where chargesheet has been submitted at the close of the investigation, there is provision for further investigation under section 173(8) of the Criminal Procedure Code. A question arose as to whether in the event the Court directs investigation by the CBI it should be treated as further investigation under Section 173(8) of the Criminal Procedure Code or investigation de novo. In this regard attention of the Court was drawn to a decision of this Court in the case of Rajan Tiwary V/s. Union of India, 2002 (4) PLJR 327. The facts of that case, it appears, were more or less similar to the present case inasmuch as in that case too chargesheet was submitted by the State police and there was a consent notification by the State Government under section 6 of the Delhi Special Police Establishment Act. The learned Judge observed that if the State Government had the power to take away the investigation from the State police and entrust it to the CBI, and this had been done before the State Police submitted chargesheet, it cannot be a case of further investigation and hence the CBI was competent to make investigation in the manner as it deemed fit and proper to reach its own conclusion. The learned Judge observed that grant of consent by the State Government tantamounts to taking investigation from the State police and transferring it to the CBI. 13. We are in respectful agreement with the views of the learned Judge. Had the notification under Section 5 of the Delhi Special Police Establishment Act been issued in this case, the CBI would have taken up investigation de novo notwithstanding the submission of the chargesheet. Thus the only fact which stares in the instant case is refusal by the Central Government to issue corresponding notification under Section 5 of the said Act. But as seen above, non-issuance of notification was without independent application of mind, and for reasons which do not appear to be factually correct. Though chargesheet has been submitted against some of the accused, investigation is still kept pending. But as seen above, non-issuance of notification was without independent application of mind, and for reasons which do not appear to be factually correct. Though chargesheet has been submitted against some of the accused, investigation is still kept pending. Besides it does not appear to be a simple case of kidnapping having limited or local ramifications. The case appears to be result of a wide conspiracy involving a number of persons, some of them influential enough to change the course of investigation and get the chargesheet submitted in haste even though the State Government issued consent notification under Section 6 of the Act-to pre-empt CBI investigation. From the case diary etc. too, shown to us earlier, it does not appear that a fair, honest and complete investigation was made by the district police before submitting the chargesheet. We say no more on this point as that may be prejudicial to the interest of the potential accused. The circumstances in which the chargesheet was submitted are not at all inspiring and it would not be in the interest of justice to decline the request for CBI investigation on technical ground like submission of chargesheet or the case being of local nature. There are umpteen cases in which CBI has taken up investigation even though the occurrence has no inter-State or international ramifications. 14. In the facts and circumstances, we direct the CBI through its Director to take up the investigation of Saharsa P.S. Case No. 193/2002, complete the investigation within six months of receipt of copy of the order and take the matter to its logical end in accordance with law. 15. In the result, the writ petition is allowed in the manner indicated above.