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2015 DIGILAW 524 (JK)

Mohd. Aroof Khan & Anr. v. State & Ors.

2015-10-01

JANAK RAJ KOTWAL

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JUDGMENT 1. In OWP No. 1016/2011, petitioner Mohd. Aroof Khan seeks direction for re-investigation in FIR No. 16 of 2011 of Police Station, Surankote in which police has submitted charge-sheet for commission of offences under sections 302 RPC & 27/30 Arms Act against accused Sarwar Khan, respondent herein, in the year 2011 and trial is pending before the Court of learned Sessions Judge, Poonch. In CRTA No. 30/2012, petitioner, Razia Begum Khan seeks transfer of the trial of the case to a court of competent jurisdiction at Jammu or at any other place. Both the matters have been heard together and are being disposed of by this common judgment. 2. Learned counsels for the parties have been heard and record perused. OWP No. 1016/2011: 3. The prosecution case shorn of all unnecessary details is that on 20.03.2011 at 8.15 pm Police Station, Surankote received a source information that Mohd. Aroof Khan (for short the deceased) died because of an accidental gunshot by the accused in 'Dera-Gali' jungle where they had gone for hunting. On this information offences under sections 304 RPC and 27/30 Arms Act were registered as FIR No. 16/2011 and investigation was entrusted to Munshi Khan, ASI. Accused was arrested on 28.03.2011. In the course of investigation the Deputy Inspector General of Police (DIG), Rajouri-Poonch Range constituted a Special Investigation Team (SIT) headed by Dy. S. P. Surankote. The SIT after investigation found that the accused was nourishing enmity with the deceased under the disguise of friendship, he had taken the deceased to the jungle for hunting under a pre-planned scheme and fired at him through his 12 bore gun from a distance of about 42 feet with the intention of causing his death. He left the deceased, who was struggling for his life, in the jungle and came to his house after travelling a distance of 13/14 kms on foot and lodged report to the police at Thanamandi. The SIT, thus, concluded that the accused had shot dead the deceased through a 12 Bore Gun which belonged to his father. 4. After completion of investigation SHO Police Station, Surankote submitted charge-sheet for commission of offence under section 302 RPC & 27/30 Arms Act against the accused in the committal court and after committal the case came up for trial before the court of Sessions Judge, Poonch on 01.06.2011. 4. After completion of investigation SHO Police Station, Surankote submitted charge-sheet for commission of offence under section 302 RPC & 27/30 Arms Act against the accused in the committal court and after committal the case came up for trial before the court of Sessions Judge, Poonch on 01.06.2011. On 20.07.2011 P.P. filed an application before the trial court for a direction to SSP, Poonch for further investigation of the case. Accused filed objections to this application. During the pendency of that application the petitioner filed this writ petition in this Court and on 11.10.2011 the P.P withdrew the application filed by him because of pendency of this petition. On 12.10.2011 learned Sessions Judge after examining the record of the case and hearing both sides framed charges under section 302 RPC and 27/30 Arms Act against the accused, who pleaded not guilty and the prosecution entered its evidence. On 06.06.2012, this Court in this writ petition ordered that pendency of the writ petition shall not stand in the way of trial court proceedings and the trial shall proceed in accordance with law. On 12.10.2012, mother of the deceased filed aforementioned transfer application in this Court and this Court by the order passed on 17.10.2012, while issuing notice to the respondents, stayed the proceedings before the trial court. 5. In seeking re-investigation of the case the petitioner, who is brother of the deceased, has alleged that the investigation even by the SIT had been a mere eye wash inasmuch as the statements of material witnesses were not recorded in terms of section 161 Cr. P.C. or section 164-A and the real culprits have been left out. It is contended on the basis of the photographs of the dead body produced by the petitioner that the deceased did not die only due to accidental gunshot at his temple as a shot was fired at his hip also. Petitioner has also challenged prosecution version that the gunshot had been fired from a distance of 42 ft. It is alleged that there had been active involvement of a Minister of State in the murder of the deceased and because of that the investigation has not been properly conducted. 6. A question of law was raised at the Bar whether this Court can issue a direction for re-investigation of a case after filing of the charge-sheet in the court by the police. 6. A question of law was raised at the Bar whether this Court can issue a direction for re-investigation of a case after filing of the charge-sheet in the court by the police. This question arises as no provision for re-investigation of a case after filing of the charge-sheet in the court has been provided under the Code of Criminal Procedure (for short the Code), Mr. B.S. Salathia, learned Senior Advocate appearing for the accused, pointed out that the prayer in the writ petition is for re-investigation of the case which, however, is not permissible under the Code and cannot even been directed by this Court. Mr. Salathia relied upon Mithabhai Pashabhi Patel v. State of Gujarat, (2009) 6 SCC 332 . 7. Mr. Sunil Sethi, learned Senior Advocate appearing for the petitioner, argued that the power of this Court under Article 226 of the Constitution is not circumvented by the Code or for that matter by any other law and this Court can direct re-investigation of a case even after filing of the charge-sheet when it is necessary to do so in the interest of justice even if there is no specific provision in the Code. Mr. Sethi urged that the deceased has been murdered in a cold blood in furtherance of a well hatched conspiracy by some persons including a Minister of State but the investigating agency acting under the influence of the said Minister failed in discharging its duty to bring to the book the real culprits and therefore, this Court can direct re-investigation to do complete justice to the deceased and to bring the culprits to justice. Mr. Sethi submitted further that what is sought by the petitioner is investigation of the case to identify the real culprits, may it be by directing re-investigation or further investigation as may be found expedient in the interest of justice. While admitting that the prayer in the writ petition is for directing re-investigation of the case by constituting another SIT, learned counsel pointed out that the petitioner, nonetheless, has sought "re-investigation/further investigation" in the heading of the petition. Mr. While admitting that the prayer in the writ petition is for directing re-investigation of the case by constituting another SIT, learned counsel pointed out that the petitioner, nonetheless, has sought "re-investigation/further investigation" in the heading of the petition. Mr. Sethi read out to the Court the post mortem examination report lying on the trial court file and sought to make out that the location of injuries found on the dead body of the deceased would show that at least two gunshots were fired by two persons from different directions at the deceased and rules out the possibility of a single accidental fire from a distance of 42 ft. Mr. Sethi also submitted that the SIT has failed to record statements of witnesses, who could have thrown light on the entire episode and unfolded the conspiracy angle involved in the case and even of the person, who lodged the FIR, said to be reliable source. Mr. Sethi submitted further that not only the conspiracy angle has not been unfolded and real culprits not identified but the investigation has been conducted in a manner that even the accused sent for trial is likely to get benefit thereof in particular having regard to the nature of injuries found on the body of the deceased. Mr. Sethi thus concluded that the case is fit where investigation should be held de novo or in any case police should investigate the case further to unfold the conspiracy angle and identify the conspirators for which sufficient evidence is available. 8. Per contra, Mr. Vishal Sharma, learned Additional Advocate General appearing for the State defended the investigation mainly on the ground that the statement of the petitioner, who is real brother of the deceased, recorded under section 164-A of the Code had been the basis of converting offence under section 304 RPC to 302 RPC and whatever contended in the petition by him is contrary to his statement under section 164-A. Mr. Sharma argued further that a question of directing further investigation in a case can be raised before the trial court and no case for invoking writ jurisdiction of this Court is made out. 9. Mr. Sharma argued further that a question of directing further investigation in a case can be raised before the trial court and no case for invoking writ jurisdiction of this Court is made out. 9. Mr. B. S. Salathia, learned Senior Advocate appearing for the accused pointed out that the conspiracy angle was not even indicated by the petitioner in his statement recorded under section 164-A of the Code and this Court in writ jurisdiction cannot interpret the medical report in a manner to arrive at a conclusion about nature and direction of the injuries and involvement of more than one persons. 10. Power of the police to conduct further investigation on its own and collect more information and evidence even after filing of the charge sheet and taking of the cognizance by the court is well recognized and protected under the Code. Sub-section (1) of section 173 of the Code provides that investigation of a case shall be completed without any unnecessary delay and sub-section (2) mandates that as soon as investigation in a case is completed the Officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. This report is usually known as charge-sheet/challan if the I. O. finds sufficient evidence or reasonable ground or suspicion for putting the accused to trial for commission of offence as provided under section 170 or a final report if no such case is made out as provided under section 169. when a charge-sheet is submitted by the police the Magistrate takes cognizance of the case under section 190 (1) (b) of the Code. Sub-section (8) of Section 173 recognizes power of the police to continue with further investigation of the case even after filing of the report under sub-section (2) in the' court and therefore, operates after filing of the said report. Filing of the charge-sheet, therefore, will not come in the way of the investigating police in collecting further evidence or even ascertaining involvement of persons other than those already identified and sent for trial. As the power of the police to further investigate a case is recognized and expressly protected under sub-section (8) of section 173 no specific direction in this regard by the court is required and not even a permission is required. As the power of the police to further investigate a case is recognized and expressly protected under sub-section (8) of section 173 no specific direction in this regard by the court is required and not even a permission is required. Seeking permission of the court in which trial of the case is pending on the charge-sheet already filed, however, is advisable to keep that court informed about the continuation of further investigation in the case. 11. The very power to further investigate a case even after filing of the report under section 173(2) of the Code casts a corresponding duty on the police to conduct such investigation whenever and wherever it is necessary. The court on the application of an aggrieved person can, therefore, also issue direction to the police to conduct further investigation in a case if the court, having regard to the facts and circumstances of the case, is satisfied about the necessity of such investigation for securing the ends of justice. 12. The Code while providing for and making it possible to issue a direction for further investigation in a case, however, does not provide for re-investigation of a case. Neither the trial court nor any Magistrate, therefore, has the power to direct re-investigation of a case after the report (charge-sheet/final report) has been filed by the investigating agency. As the Code does not provide for re-investigation of a case, it is settled as a principle that even the High Court in exercise of writ jurisdiction under Article 226 of the Constitution or inherent jurisdiction under section 561-A of the Code should not ordinarily issue direction for re-investigation of a case after filing of the report under section 173(2) though such a direction may be issued in exceptional circumstances. 13. In Ramachanderan v. R. Udhayakumar (2008) 5 SCC, 413, the Supreme Court while referring to K. Chandrasekhar v. State of Kerala and ors., (1998) 5 SCC, 223 has held that from a plain reading of section 173 of the Code, it is evident that even after completion of investigation under sub-section (2) of section 173, police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. 14. 14. In Rama Choudhary v. State of Bihar, (2009) 5 SCC, 366, Supreme Court while referring to sub-sections (1), (2) & (8) of section 173 of the Code has held that whereas further investigation of the case is statutory right of the police, re-investigation without prior permission is prohibited. Their lordships in para 9 of the reporting have observed: "9.The above said provision also makes it clear that further investigation is permissible, however, re-investigation is prohibited. The law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out a further investigation even after filing of the charge sheet is a statutory right of the police. Re-investigation without prior permission is prohibited. On the other hand, further investigation is permissible." 15. In Mithabhai Patel v. State of Gujarat, (2009) 6 SCC 332 Supreme Court while referring to Ramachanderan's case (supra)has held: "13. It is, however, beyond any cavil that 'further investigation' and 're- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 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 could would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar, [ (2008) 5 SCC 413 ], opined as under: "7. 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 even 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 not fresh investigation or reinvestigation..." A distinction, therefore, exists between a re-investigation and further investigation." 16. In State of Punjab v. Central Bureau of Investigation & ors,, reported as 2011(9) SCC 182 Supreme Court held as under: "13. Sub-section (1) of Section 173 of the Cr. In State of Punjab v. Central Bureau of Investigation & ors,, reported as 2011(9) SCC 182 Supreme Court held as under: "13. Sub-section (1) of Section 173 of the Cr. P.C. provides that every investigation by the police shall be completed without unnecessary delay and sub-section (2) of Section 173 provides that as soon as such investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Under sub-section (2) of Section 173, a police report (charge sheet or challan) is filed by the police after investigation is complete. Sub-section (8) of Section 173 states that nothing in the Section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, even where charge sheet or challan has been filed by the police under sub-section (2)15 of Section 173, the police can undertake further investigation but not fresh investigation or re-investigation in respect of an offence under subsection (8) of Section 173 of the Cr. P.C. 14. Section 482 of the Cr. P.C., however, states that nothing in the Cr. P.C. shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under the Cr. P.C. or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Thus, the provisions of the Cr. P.C. do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Court or to prevent the abuse of any process of the Court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 of the Cr. P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Cr. P.C. for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice." 17. P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 of the Cr. P.C. for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice." 17. It is noticed that the evidence tendered by the prosecution with the charge-sheet filed against the accused comprises of a statement of the petitioner recorded under section 164-A of the Code on 05.04.2011. It is also noticed that this statement was recorded after constitution of the SIT by the DIG Rajouri-Poonch Range vide his order dated 02.04.2011. It is also noticed that at the time of constitution of the SIT, offence under investigation was one under section 304 RPC. The SIT besides recording statement of the petitioner in terms of section 164-A on 05.04.2011 also recorded statements of number of other witnesses, most of whom as per their statements were family members or close relatives of the deceased. On the basis of evidence collected by the SIT, charge- sheet has been filed for commission of offence under section 302 RPC and the trial Court has similarly framed charge against the accused. 18. Petitioner has now come forward with allegation of conspiracy in the killing of the deceased. To say the least to avoid any unfairness to the case of the parties and trial of the case, the story set out in this writ petition does not match with what has been stated by the petitioner in his statement recorded under section 164-A of the Code on 05.04.2011 in which neither there is any indication of any conspiracy angle nor involvement of any person other than the accused. It is rather stated by him that brother of the accused was having political rivalry with the deceased and the accused had been threatening the deceased with dire consequences and shot him dead in the jungle and left him dying there. No credence can be given to a version put forth by a medium outside the ambit of the proceedings in the trial as the veracity of the new version including requirement of further investigation on the basis thereof can be tested by the trial court after the petitioner and the other witnesses make their statements as prosecution witnesses. No credence can be given to a version put forth by a medium outside the ambit of the proceedings in the trial as the veracity of the new version including requirement of further investigation on the basis thereof can be tested by the trial court after the petitioner and the other witnesses make their statements as prosecution witnesses. No case for directing further investigation much less re-investigation by this Court is made out. 19. Viewed thus, this writ petition is dismissed as without any merit. CRTA No. 30/2012: 20. Transfer of the trial arising in FIR No. 16 of 2011 of Police Station, Surankote from the Court of learned Sessions Judge, Poonch to a court of competent jurisdiction at Jammu or any other place is sought on the ground that the 'accused' and 'main conspirators' involved in the case are not allowing fair trial inasmuch as they are intimidating and threatening the prosecution witnesses, to compel them not to put truth before the trial Court. It is alleged that such threats are being executed to the witnesses at Jammu and in this regard on a complaint filed by son of the applicant proceedings under section 107 Cr. P.C. & 117 of the Code have been commenced against the persons involved in threatening the witnesses. In support of the allegations, applicant has produced affidavits said to have been sworn in by the witnesses of the case. 21. Mr. Sunil Sethi, learned Senior Advocate appearing for the applicant reiterated the grounds on which transfer of the trial has been sought and also read out the affidavits said to have been sworn in by the witnesses. 22. Mr. B.S. Salathia, learned Senior Advocate, per contra argued that transfer application has been filed only to delay the trial to prolong judicial detention of the accused after stay of the proceedings was refused by this Court in OWP No. 1016/2011 filed by son of the applicant and a direction was issued to the trial Court to go ahead with the trial vide order dated 06.06.2012 passed in the writ petition. 23. In face of the rival contentions, it has been noticed that after committal of the case by the committal Court, case came up before the trial Court on 01.06.2011 and learned trial Court framed charges on 12.10.2011. Prosecution entered its evidence and learned trial Court was in the process of recording the evidence. 23. In face of the rival contentions, it has been noticed that after committal of the case by the committal Court, case came up before the trial Court on 01.06.2011 and learned trial Court framed charges on 12.10.2011. Prosecution entered its evidence and learned trial Court was in the process of recording the evidence. Alongside brother of the deceased had filed OWP No. 1016/2011 seeking direction for re-investigation of the case. In that writ petition this Court on 06.06.2012 ordered that pendency of the writ petition shall not stand in the way of the trial court proceedings. On 12.10.2012, this transfer application came to be filed by the mother of the deceased along with application for stay of proceedings and this Court by order passed on 17.10.2012 stayed the proceedings before the trial Court. It is noticed that the applicant, who is none other than the mother of the petitioner in OWP No. 1016/2011, in this transfer application, while stating that OWP No. 1016/2011 has been filed and is pending before this Court did not disclose that the writ Court has issued direction that proceedings before the trial Court shall continue and filing of the writ petition shall not come in the way of the said proceedings. 24. The record on the trial Court file and the minutes recorded therein would show that statements of as many as 10 witnesses were recorded by the time a copy of the order passed by this Court on 17.10.2012 whereby proceedings were stayed came to be produced before the learned Sessions Judge. At no point of time any complaint about threat to any or some of the prosecution witnesses seems to have been made to the learned trial Court. Learned counsel for the respondents pointed out and rightly so that none of the prosecution witnesses listed in the charge sheet hails from Jammu whereas in the aforementioned affidavits all the aforementioned witnesses are shown as residents of Jammu. 25. Learned counsel for the respondents pointed out and rightly so that none of the prosecution witnesses listed in the charge sheet hails from Jammu whereas in the aforementioned affidavits all the aforementioned witnesses are shown as residents of Jammu. 25. Having regard to the fact that no complaint about threat to the witnesses was made to the learned trial court, the time at which the transfer application has been filed and non-disclosure in this application of the direction as regards continuation of trial issued in the writ petition persuades me to take a view that this transfer application is not based on a real apprehension of threat to the lives of the witnesses or any interference with the trial before the trial Court and is aimed at delaying the trial. There are as many as 49 witnesses cited by the prosecution all of whom hail from the areas falling within the territorial jurisdiction of the trial court so transfer of the case to any other court will adversely affect the trial. Any question about apprehension of threat to the witnesses can well be raised before and taken care of by the learned trial court. 26. Viewed thus, this transfer application is dismissed too as without any merit. 27. Record of the trial Court be remitted back immediately along with copy of this order. Petition dismissed