Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 116 (MP)

Jaivir Singh Bhadoriya v. State of M. P.

2010-01-27

S.K.GANGELE

body2010
ORDER 1. Petitioner has filed this petition for quashing of CID inquiry and also sought further direction to complete the investigation pending on the basis of a report lodged by the petitioner. 2. Petitioner came to attend a marriage ceremony of son of one Subhash Dubey at Gwalior on 26.11.2004. At around 10:30 O'clock in the night, when marriage ceremony had been going on at 'Mangal Vatika' Mela Ground, Gwalior, as per the petitioner, at that time Smt. Sarita Bhadoriya, Udayveer Singh Bhadoriya, Dinesh, Vivek, Arjun Singh and Umesh Singh armed with revolver and pistol came on the spot. Sarita Bhadoriya instructed the aforesaid persons to kill the petitioner. The accused persons opened fire at the petitioner. In the aforesaid incident petitioner received injuries over his chest and left leg. Other persons, namely, Dharmesh Singh Bhadoriya, Manendra Singh Rawat, Devendra Sharma, Kamlesh Sharma, Kailash, Chandra Prakash Mishra and Dinesh Chandra Sharma also received bullet injuries. Dinesh Chandra Sharma died subsequently. The petitioner was admitted at Jayarogya Hospital, Gwalior and on his report a Dehati Nalisi was lodged and police registered an offence vide Crime No.438/04 under sections 147,307,302 IPC. Thereafter, petitioner went to his home place at Itawah after his discharge from the hospital. The petitioner further alleged that the matter was not investigated properly and it was transferred to CID illegally. 3. As per the return filed by the respondents, after registration of first information report the investigation was conducted by the then ASI, Golaka-Mandir, Mr. Santosh Singh Kushwaha. He recorded statement of petitioner on 29.11.2004 and thereafter the case was transferred to CID vide order dated 29th December 2004, copy of the order has been filed as Annexure R-1. Then the CID, Gwalior, recorded statements of number of persons including Mr. Kailash Valmiki, Kapil Sharma, Sarita Bhadoriya, Arjun Singh Bhadodya, Jitendra, Rajesh Tripathi, Ramswaroop Singh Kushwaha. During investigation by the CID it came on record that the alleged accused Umesh Singh and Vivek Singh were arrested and lodged at Sub-Jail, Kailaras from 25.11.2004 in a Crime No.227/04 under section 34 of the Excise Act. They were sent to Jail, Sabalgarh on 26.11.2004 at 5:30 p.m. and released from Sabalgarh Jail on 27.11.2004 at 6:35 hours. Similarly, Dinesh Singh was also arrested in connection of an offence under sections 21, 30 of the Arms Act registered vide Crime No.278/01 on 25.11.2004 and released from jail on 27.11.2004. They were sent to Jail, Sabalgarh on 26.11.2004 at 5:30 p.m. and released from Sabalgarh Jail on 27.11.2004 at 6:35 hours. Similarly, Dinesh Singh was also arrested in connection of an offence under sections 21, 30 of the Arms Act registered vide Crime No.278/01 on 25.11.2004 and released from jail on 27.11.2004. The CID also recorded a finding that Udayveer Singh son of Arjun Singh Bhadoriya was at Sabalgarh for getting release of his brother from jail. On the basis of the above enquiry the CID, Bhopal found that the named accused in the FIR were not present at the scene of the occurrence, hence their involvement in the crime was false. The CID further recommended that charge-sheet against the accused persons be not filed. Copy of the letter dated 16.9.2005 has been filed as Annexure R-2. Thereafter, CID returned the case diary to the local police for further investigation. As per the respondents the investigation is still going on, however, the offenders of the crime could not be traced out as yet. 4. Learned counsel for the petitioner has submitted that the CID has not conducted the investigation properly. The act of handing over of investigation to CID was against the provisions of the Police Manual and it was done in order to save certain persons. Learned counsel further submitted that the accused persons could not get benefit of alibi at the time of investigation. 5. Contrary to this learned senior counsel appearing on behalf of intervener has submitted that the petition filed by the petitioner is not maintainable and the petitioner has a remedy to file appropriate objections before the criminal Court at the time of filing of charge-sheet or FR by the investigating agency. Learned senior counsel further submitted that the investigation is under progress, hence the petition filed by the petitioner is premature. Same arguments have been advanced by the learned Government Advocate. Learned counsel further submitted that looking to the nature' of the case, the investigation has rightly been handed over to the CID. 6. From the facts of the case, it is clear that the petitioner was injured in the incident and thereafter he lodged the first information report alleging names of certain persons, who fired at him. In the aforesaid incident one person died and other persons received injuries. In his statement petitioner has clearly deposed the names of accused persons. 6. From the facts of the case, it is clear that the petitioner was injured in the incident and thereafter he lodged the first information report alleging names of certain persons, who fired at him. In the aforesaid incident one person died and other persons received injuries. In his statement petitioner has clearly deposed the names of accused persons. By an order dated 29th December 2004 the investigation of the case was transferred to CID. Copy of the order dated 29th December, 2004 has been filed as Annexure R-1. In the aforesaid order no reason has been mentioned that why investigation was transferred to CID. In the return also no reason has been mentioned that why the investigation of the crime was transferred to CID. 7. Madhya Pradesh Police Regulation No.16 prescribes provision for investigation by CID, which is as under: "16. Serious Crime. -- The co-ordination of the work of the Criminal Investigation Department with that of the district police is entirely in the hands of the Deputy Inspector General In-charge of the Department. Superintendents will immediately report to him any case of special difficulty which baffles the local police, cases of professional or organised crime, and cases of counterfeit coining or note forgery. He will also be sent copies of the special and supplementary reports in all cases of dacoity, administering stupefying drugs by suspected professionals, and any other case of special interest. It will be for him to decide whether an officer of the Criminal Investigation Department should be deputed to assist the local police or whether the case should be taken out of the hands of the local police altogether by the Criminal Investigation Department. He will submit once a month for the information of the work done by the Criminal Investigation Department.". 8. It is clear from the aforesaid M.P. Police Regulation No.16 under certain circumstances as mentioned in the Regulation the investigation can be handed over to the Criminal Investigation Department. However, from the return and the order, Annexure R -1, it is no where clear that the eventuality mentioned in the Police Regulation No.16 for handing over of investigation to CID were in existence at the time of passing of the order, Annexure R-l neither in the order Annexure R-1 the reasons have been mentioned. 9. However, from the return and the order, Annexure R -1, it is no where clear that the eventuality mentioned in the Police Regulation No.16 for handing over of investigation to CID were in existence at the time of passing of the order, Annexure R-l neither in the order Annexure R-1 the reasons have been mentioned. 9. The CID has exonerated certain persons whose names were mentioned in the first information report on the ground that Umesh Singh and Vivek Singh, both sons of Arjun Singh, were arrested on 25.11.2004 in connection with an offence under section 34 of the Excise Act registered vide Crime No.227/04. They were sent to Sabalgarh Jail on 26.11.2004 at 5:30 p.m. and released from Jail on 27.11.2004 at 6:35 hours. Similarly, it has been submitted that Dinesh Singh was also arrested and sent to Jail at Dholpur on 26.11.2004 from 7:30 p.m. in connection with an offence under sections 21 and 30 of the Arms Act which was registered against him vide Crime No.278/01. He was released from Jail on 27.11.2004. It has further been recorded by the CID that Udayveer Singh Bhadoriya was also at Sabalgarh for securing release of his two brothers. However, from the record of the case, it is not clear that whether CID has investigated further that what was the identity of the persons, who were said to have been detained in prison in the names mentioned above. The petitioner in his letter written to DGP, Police Head Quarter, Bhopal, copy of which has been filed as Annexure P-6 has clearly stated that the identity of the persons, who were said to have been detained in prison, was fictitious and proper care was not taken by the CID to verify the identity of the persons. The petitioner further stated that the persons said to have been arrested in petty offences and their finger prints have also not been tallied from the finger prints, which had been taken at the time of their arrest by the jail authorities. Thereafter, the CID returned the case diary to the local police for further investigation. The petitioner further stated that the persons said to have been arrested in petty offences and their finger prints have also not been tallied from the finger prints, which had been taken at the time of their arrest by the jail authorities. Thereafter, the CID returned the case diary to the local police for further investigation. It has not been mentioned in the order, Annexure R-1, that why the CID has not conducted full and complete investigation of the case and after recording the finding that certain accused persons named in the first information report were not involved in the case, why the investigation has been returned back to the local police. 10. The Hon'ble Supreme Court in T.T. Antony v. State of Kerala and others [ (2001)6 SCC 181 ], has considered in detail the provisions of Chapter 12 of the Code of Criminal Procedure and the procedure of investigation of a criminal case, which is as under: "16. As points (i) and (ii) are interconnected, it will be convenient to deal with them together. Inasmuch as the germane question relates to registration of an FIR, we may usefully refer to section 154 of the Code of Criminal Procedure, 1973 (CrPC) which reads as under: "154. Information in cognizable cases. -- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence." 17. Sub-section (1) of section 154 of CrPC contains four mandates to an officer-in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information· shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of section 157 of CrPC which provides that immediately on receipt of the information the officer-in-charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Subsection (2) entitled the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer-in-charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by CrPC, if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer-in-charge of the police station in relation to that offence. 18. An information given under sub-section (1) of section 154 of CrPC is commonly known as first information report (FIR) though this term is not used in the Code. It is very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under sections 169 or 170 of CrPC, as the case may be, and forwarding of a police report under section 173 of CrPC. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 of CrPC apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the first information report - FIR postulated by section 154 of CrPC. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the CrPC. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the CrPC. Take a case where an FIR mentions cognizable offence under sections 307 or 326 IPC and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular, in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister. H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under section 173(2) or 173(8) of CrPC as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. 19. The scheme of the CrPC is that an officer-in-charge of a police station has to commence investigation as provided in section 156 or 157 of CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under sections 169 and 170 of CrPC, as the case may be, and forward his report to the concerned Magistrate under section 173(2) of CrPC. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the Court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of section 173 CrPC. 11. 11. Hon'ble the Supreme Court further in Divine Retreat Centre v. State of Kerala and others [ AIR 2008 SC 1614 ], after discussing earlier judgments, has held as under with regard to exercise of power of the High Court under Article 226 of the Constitution: "33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself. 34. In our view, the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the mid-stream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested. 35. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observation of process as provided for in the Code." 12. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observation of process as provided for in the Code." 12. As per the aforesaid principle of law laid down by Hon'ble Supreme Court, in my opinion, the investigation conducted by the CID is not proper. Apart from this, the handing over of investigation to the CID as per order, Annexure R-1, was contrary to the Police Regulation No.16 and it appears that the investigation was handed over to CID in order to save certain persons. 13. The arguments advanced by the learned senior counsel for the intervener that the petitioner may raise an objection before the Magistrate at the time of filing of charge-sheet or final report could not be accepted because when no fair investigation has been conducted by the investigating agency and the matter is still pending for the last four years in regard to an offence under sections 302 and 307 IPC it would be just and appropriate to interfere into the investigation by this Court under Article 226 of the Constitution. 14. Consequently, the petition of the petitioner is allowed. The handing over of investigation to CID vide order, Annexure R-1 and further investigation conducted by CID are hereby quashed. Respondents No.1, 2 and 4 are hereby directed to complete the investigation of the offence under supervision of an officer of the rank of Additional Superintendent of Police. It is further directed that the investigation be conducted on the basis of the enquiry which may be done by the investigating authority, however, the material and the findings of the CID investigation be ignored by the investigating agency. It is hereby clarified that this Court has not opined anything about merits of the case and the investigating authority is free to arrive at his own conclusions on the basis of the full and complete investigation of the case.