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2010 DIGILAW 273 (CHH)

Rekha Devi Singh v. State of C. G.

2010-11-24

SATISH K.AGNIHOTRI

body2010
ORDER Satish K. Agnihotri, J. 1. By this petition, the Petitioner seeks a writ in the nature of mandamus directing the Respondents to investigate into the matter with regard to alleged murder of his husband or, in alternative, to set an enquiry either by the Central Bureau of Investigation or Crime Investigation Department or any other investigating agency for reinvestigating the matter. 2. The facts, in nutshell, as projected by the Petitioner, are that Petitioner is the wife of Late Devcharan Singh, who was murdered on 22.10.2008. He was working with the Railway Department, as contractor. Devcharan Singh (in the affidavit and some other documents, the deceased person is named as Durga Charan Singh, and the Petitioner as wife of Durga Charan Singh) died on receiving a gun shot injury in the chest which was allegedly fired by a short heighted person, when the deceased was in front of the Railway Construction Office campus alongwith one Surendra Singh. The grievance of the Petitioner is that the Respondent authorities are not conducting the investigation in a fair manner in respect of crime No. 347/2008, registered on account of murder of her husband, and crime No. 466/2008 registered in respect of theft in the house of Surendra Singh, where at the relevant point of time, the deceased was residing as tenant. 3. Smt. Kochar, learned Counsel appearing for the Petitioner would submit that the Respondent authorities are trying to save the actual culprits and have falsely implicated Jai Prakash Singh, in the case. Even after making various representations and affidavits by the Petitioner as well as brother of the deceased, Shivcharan Singh, before the Respondent authorities, the Respondent No. 6 has declined to seize the CD. and other relevant materials or to consider the representation/affidavit, which may be helpful in identifying the actual culprits. The investigation of the Respondent authorities appears to be doubtful as even the physical appearance of one of the accused namely Mohammad Ashraf Ali, who is alleged to have fired gun shot on the deceased, does not match with what has been recorded in the F.I.R. which goes to show that the actual culprits are still out of the clutches of the investigating authorities. On the contrary, the Respondent authorities are harassing the Petitioner and have falsely implicated one Jai Prakash Singh, who is close relative of the deceased. 4. On the contrary, the Respondent authorities are harassing the Petitioner and have falsely implicated one Jai Prakash Singh, who is close relative of the deceased. 4. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State/Respondents would submit that the investigation conducted by the Respondents is fair, just and proper. If the Petitioner has any grievance with regard to the investigation made by the Respondent-authorities, the Petitioner ought to have approached the concerned magistrate under the provisions of the Code of Criminal Procedure, 1973 as the Challan has already been filed before the Court of Judicial Magistrate First Class, Bilaspur. After filing of the challan, if any steps are required to be taken regarding investigation of the matter, the same can be done only after passing of the order by the concerned Magistrate. So far as implication of Jai Prakash Singh as accused in the case, is concerned, there is enough material on record to show that he was also one of the conspirators. 5. Heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. There is no quarrel that the High Court, being a sentinel of justice is vested with extraordinary power and jurisdiction under Article 226 of the Constitution of India to ensure that the fundamental, legal or other rights of the citizens are duly protected. This Court has jurisdiction to ensure that there has been a proper investigation. In rarest of the rare case, where process of law has not been duly followed in investigation and an error is apparent on the face of it, the High Court may entertain to set the process right in exercise of its extraordinary jurisdiction. (See: Babubhai Jamnadas Patel v. State of Gujarat and Ors. (2009) 9 SCC 610). 7. In the case on hand, admittedly, the investigation has been done and the charge sheet has been filed before the Judicial Magistrate, First Class. Thereafter, the matter has been committed to trial. Under the provisions of Section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ' Code of Criminal Procedure) the Magistrate is empowered to direct further investigation even after a report under Sub-section (2) has been forwarded to the Magistrate and the Magistrate has taken cognizance of the offence. Section 173(8) of the Code of Criminal Procedure reads as under: 173. Section 173(8) of the Code of Criminal Procedure reads as under: 173. (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2). 8. In the case on hand, it appears that the Petitioner has not approached the Magistrate seeking further investigation on the basis of allegations that the important evidences and statement alongwith materials have been ignored by the investigating agency. 9. The State/Respondents, in its affidavit dated 7.7.2010 has submitted as under: 5. That, apart from that in the present case, after registration of first information report lodged by one Surendra Singh in Crime No. 347/2008 for offence under Section 302, 120-B r/w 34 of the I.P.C. and Sections 25 and 27 of the Arms Act, the investigation was carried out against the accused persons and during the investigation it was found that with the conspiracy of co-accused i.e. Jai Prakash Singh @ Lallu Singh and other co-accused person i.e. one Mohd. Asarf Ali, who was shooter in the case, committed murder of the deceased Durgacharan Singh. The statements of all the witnesses were taken under Section 161 of the Code of Criminal Procedure including the Petitioner herself and thereafter the memorandum of accused persons was also recorded under Section 27 of the Evidence Act and the test identification parade was also held in which complainant Surendra Singh had correctly identified Mohd. Asarf as a shooter who has killed Durgacharan Singh. The charge-sheet under Section 173 of Code of Criminal Procedure was filed before the Judicial Magistrate First Class, Bilaspur (presiding over by Shri Narayan Singh) against Mohd. Asarf Ali showing Barmeshwar Pandey S/o Ramchandra Pandey, R/o Prabodhpur, P.S. Baliya (U.P.), Sajay Singh, S/o Bhuneshwar Prasad Singh, R/o Torwa Basti Bilaspur and Jai Prakash Singh @ Lallu Singh S/o Krishna Singh, R/o Kokati, P.S. Baliya (U.P.) showing them absconding. Asarf Ali showing Barmeshwar Pandey S/o Ramchandra Pandey, R/o Prabodhpur, P.S. Baliya (U.P.), Sajay Singh, S/o Bhuneshwar Prasad Singh, R/o Torwa Basti Bilaspur and Jai Prakash Singh @ Lallu Singh S/o Krishna Singh, R/o Kokati, P.S. Baliya (U.P.) showing them absconding. A copy of the final report is being filed as Annexure R/5. It is further submitted that the said court has passed a committal order and sent the case to the learned Sessions Judge, Bilaspur Chhattisgarh for trial and thereafter the learned Sessions Judge, Bilaspur has made over the case in the court of 8th Additional Sessions Judge, Bilaspur and said court has framed the charges against the accused after perusal of the case and material available on record on 16/03/2010. A copy of the order-sheet dated 16/03/2010 is being annexed herewith as Annexure R/6. Thereafter, the case was transferred to court of 9th Additional Sessions Judge (F.T.C.) Bilaspur for trial and now the case has been fixed for prosecution evidence and summons have also been issued to the prosecution witnesses. A copy of the order sheet dated 17.6.2010 issuing summons to the prosecution witness is being filed as Annexure R/7. There cannot be a writ petition maintainable under Article 226 of the Constitution of India. High Court cannot enter into question of facts in exercise of its power under Article 226 and thereby assume role of a fact finding forum. 10. Smt. Kochar relies on a decision of Division Bench of this Court in Sonalal Soni v. State of Chhattisgarh and Ors. 2005 Cri.L.J. 4461, wherein when the trial was still pending, the Court directed the S.D.O.(P) to take further investigation in exercise of its power under Article 226 of the Constitution of India, relying on a decision of the Supreme Court in Zahira Habibulla H. Sheikh v. State of Gujarat AIR 2004 SCW 2325. 11. The facts in Zahira Habibullah H. Sheikh AIR 2004 SCW 2325 is entirely different as very special circumstances where allegations were that the state administration was in hand in glove with the investigating agency and the allegations were against the senior state functionaries. In the case on hand, it does not fall within the category of rarest of the rare or exceptional case which necessitates direction for further investigation by the High Court. In the case on hand, it does not fall within the category of rarest of the rare or exceptional case which necessitates direction for further investigation by the High Court. If an application is made to the Magistrate concerned, the Magistrate has full competence to examine the facts of the application, other documents produced before him, and offences and thereafter he may consider ordering further investigation. Thus, I am of the considered opinion that this Court, in exercise of its extraordinary power under Article 226 of the Constitution of India, would not take a diversion from well settled practice of approaching the Magistrate for further investigation in normal circumstances, under the provisions of Section 173(8) of the Code of Criminal Procedure. 12. In State of Bihar and Anr. v. P.P. Sharma, IAS and Anr. 1992 Supp (1) SCC 222, the Supreme Court observed that it was repeatedly held that appreciation of evidence was the function of the criminal court. The High Court under the circumstances could not have assumed the jurisdiction and put an end to the process of investigation and trial, provided under the law. 13. In M.C. Abraham and Anr. v. State of Maharashtra and Ors. (2003) 2 SCC 649, the Supreme Court held as under: 17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation. 18. In the instant case the investigation is in progress. 18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the Magistrate concerned. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge-sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. 14. In Divine Retreat Centre v. State of Kerala and Ors. (2008) 3 SCC 542, the Supreme Court held as under: 41. 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 the rarest of the rare case 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 observance of process as provided for in the Code. 15. The Supreme Court, in Virender Prasad Singh v. Rajesh Bhardwaj and Ors. AIR 2010 SCW 4902, a direction was made by the High Court for re-examination of the complete investigation, wherein the Supreme Court observed that "an extremely unusual order passed by the High Court has fallen for consideration in the appeal which has been filed on behalf of the Appellant/complainant Virender Prasad Singh". The Supreme Court having considered in all respects of the matter, observed as under: 19. Heavy reliance was placed on Rubabbuddin Sheikh v. State of Gujarat and Ors. 2010 (2) SCC 200 : AIR (2010) SCW 722. However, we do not find any factual similarly. The Supreme Court having considered in all respects of the matter, observed as under: 19. Heavy reliance was placed on Rubabbuddin Sheikh v. State of Gujarat and Ors. 2010 (2) SCC 200 : AIR (2010) SCW 722. However, we do not find any factual similarly. That was a case where the extreme step was taken by this Court, particularly, in view of the fact that the police officers who were investigating officers themselves came under the cloud because of the allegations against them. Such is not the position here. This is apart from the fact that factually we do not see any reason why the extreme step is required to be taken in this case even after the charge sheet has been filed. 20. This Court had taken that unusual course in Rubabbuddin Sheikh's case (cited supra), in the words of the Court: in the facts and circumstances of the present case and to do complete justice in the matter and to instill confidence in the public mind Before this course was undertaken, the Court had found out factual discrepancies apparent on the face in the eight Action Taken Reports and the charge-sheet it was also noted that the crime was committed? by the police personnel themselves while investigation conducted was not at all satisfactory. We do not find any such circumstance in the present case. We may also refer to the observations made in another ruling as Mithaibhai Pashabhai Patel and Anr. v. State of Gujarat 2009 (6) SCC 332 : AIR 2009 SC (supp) 1658 : AIR 2009 SCW 3780. In paragraph 13 of the said decision, this Court has observed: it is beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior Court in exercise of its Constitutional power, namely, under Article 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction. 21. The Court further referred a decision in Ramchandran v. R. Udhayakumar 2008 (5) SCC 413 : AIR 2008 SC 3102 : AIR 2008 SCW 5469 and observed therein: at this juncture, it would be necessary to take note of Section 173 of the Code. 21. The Court further referred a decision in Ramchandran v. R. Udhayakumar 2008 (5) SCC 413 : AIR 2008 SC 3102 : AIR 2008 SCW 5469 and observed therein: at this juncture, it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that after completion of investigation under Sub-section (2) of Section 173 of the Code, the police has right to further investigate under Sub-section (8), but no fresh investigation or re-investigation 22. The plea raised by the accused herein was not for further investigation under Section 173(8) but for re-investigation by some other agency. In the circumstances of this case, the accused had not justified his plea at all for re-investigation or fresh investigation by another agency. On its own, the High Court did not go into that exercise to decide as to whether the investigation was required to be done by any other agency. It required help of DGP level officer and his opinion to decide whether the earlier investigation was done properly or not. WE are afraid that was not the task. To decide so was the task of the Court alone and no opinion could have been sought for, particularly in the circumstances of this case. Nothing seems to have been established which would justify calling for such opinion. However, we are not going into that question as we have already stated earlier. Once the charge-sheet was filed, ordinarily it could only be the power of the Court to decide upon its correctness or otherwise. 16. Thus, in view of the foregoing and having regard to the facts situation of the case, no order for re-investigation or further investigation can be passed by this Court, when, after completion of investigation, challan has been filed and trial is pending consideration before the Sessions Court. However, liberty is reserved to the Petitioner to make appropriate applications under the provisions of Section 173(8) of the Code of Criminal Procedure. if so advised, and the Magistrate may thereafter consider all the facts on merits in accordance with law, and pass appropriate orders. 17. The observations, if any, made hereinabove, shall not be considered as opinion of this Court and the same shall not come in the way of Magistrate while considering the application, as aforestated, if filed. 18. if so advised, and the Magistrate may thereafter consider all the facts on merits in accordance with law, and pass appropriate orders. 17. The observations, if any, made hereinabove, shall not be considered as opinion of this Court and the same shall not come in the way of Magistrate while considering the application, as aforestated, if filed. 18. With the aforesaid observation and direction, the writ petition is dismissed. No order as to costs.