Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 1319 (ALL)

Dinesh Kumar Yadav v. State of U. P.

2021-11-09

SANGEETA CHANDRA

body2021
JUDGMENT : SANGEETA CHANDRA, J. 1. Heard the learned counsel for the petitioner and Shri S.P. Tiwari, who appears for the State-Respondents. 2. It is the case of the petitioner that he is an accused in F.I.R. dated 10.04.2021 where the complainant Chandra Shekhar had borrowed Rs. 20 lacs in the form of Recurring Deposit from the petitioner for the purpose of investment in real estate. The load had also been admitted by him. The complainant instead of refunding the amount has falsely implicated the petitioner. 3. The petitioner filed a cross F.I.R. 4. The complainant had approached this Court in a Petition No. 4300 of 2021 which was dismissed by this Court on 11.02.2021 refusing to interfere in the F.I.R. 5. The petitioner approached the Investigating Officer annexing all evidence with regard to Video and Photographs taken on 29.07.2019 saying that money had been given to the servant of the complainant. The Investigating Officer did not take the same on record. 6. It has been argued that in Sakiri Vasu vs. State of U.P. (2008) 2 SCC 409 and Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another, (2019) 17 SCC 1 . The Supreme Court has observed that a fair and just investigation is a fundamental right of the accused, and that the Magistrate can direct the Investigating Officer to take the evidence produced by the accused on record while submitting his report. The petitioner, therefore, filed an application before the Additional Chief Judicial Magistrate-1, Lucknow namely C.M. Application No. 4377/2021 under Section 156 (3) Cr.P.C. and prayed for a direction to the concerned Investigating Officer to take the above said evidence of the accused on record. This application was rejected on 20.09.2021 on the ground that the concerned Investigating Officer had filed a report on 19.08.2021 wherein it was stated that the accused had denied to give any statement to him. 7. Even after rejection of his application by the concerned Magistrate on 20.09.2021, the petitioner approached the Commissioner by filing application on 24.09.2021 mentioning that he wished to give evidence to the concerned Investigating Officer and the same be directed to be taken on record. 7. Even after rejection of his application by the concerned Magistrate on 20.09.2021, the petitioner approached the Commissioner by filing application on 24.09.2021 mentioning that he wished to give evidence to the concerned Investigating Officer and the same be directed to be taken on record. On failure to pay heed to such application, the petitioner was left with no other remedy but to approach this Court by filing Writ Petition No. 22926 (M/B) of 2021 (Dinesh Kumar Yadav vs. State of U.P. and Others) wherein this Court dismissed the petition observing that since the Investigation was under way, it is the prerogative of the Investigating Officer to record the statement/evidence of the petitioner as and when required and necessary and that no interference was called for by the Court in its extraordinary power under Article 226 of the Constitution of India. 8. After his petition was rejected on 07.10.2021, the petitioner sent a representation to the concerned Investigating Officer as well as to the Police Commissioner and the concerned Station House Officer on 18.10.2021 but no heed was paid. Apprehending that the concerned Investigating Officer shall file a report without taking into account the evidence produced by the petitioner, this petition has been filed praying for quashing of the order dated 20.09.2021 and for directing the Investigating Officer to conduct fair investigation in F.I.R. No. 297/2021. 9. Learned counsel for the petitioner has placed reliance upon judgment rendered in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (Supra) and has read out the Paragraph-42 of the said judgment to argue that the concerned Trial Court has power to direct the police to conduct further investigation as per law settled already by Hon'ble the Supreme Court in its earlier judgments. 10. Paragraph-42 of the said judgment rendered in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (Supra) as read out by the learned counsel for the petitioner is being quoted herein-below: “There is no good reason given by the Court in these decisions as to why a Magistrates powers to order further investigation would suddenly cease upon process being issued and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra) and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173 (8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156 (3) read with Section 156 (1) Section 2(h), and Section 173 (8) of the Cr.P.C., as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana vs. State (Delhi Administration), (1997) 1 SCC 361 and Reeta Nag vs. State of West Bengal and Others, (2009) 9 SCC 129 also stand overruled.” 11. Shri S.P. Tiwari, learned Additional Government Advocate has pointed out from the facts mentioned in the judgment rendered in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (Supra) that the case of the appellants therein was in a different fact situation and the observations made in Paragraph-42 have to be read in context of the facts in the case of Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another (supra). 12. This Court has carefully perused the judgment rendered by three Judges of Hon'ble the Supreme Court cited before this Court by the learned counsel for the petitioner. It appears from a perusal of the said judgment that F.I.R. was lodged on 22.12.2009 by one Nitinbhai Patel on behalf of Ramanbhai Patel and Shankerbhai Patel that they are absolutely independent owners of the disputed land situated in Surat, Gujarat since 1975. Because of recent price hike of lands situated at Surat, the accused had hatched a conspiracy in collusion with the heirs of the original tenure holder and tried to extort more money from the complainant. Pursuant to the filing of the F.I.R. the investigation was conducted by the police which resulted in report dated 22.04.2010 being submitted to the Judicial Magistrate. The Magistrate took cognizance and issued summons to the accused on 23.04.2010 under Sections 420, 465, 467, 471, 384 and 511 of the IPC. Pursuant to the summons the accused appeared before the Magistrate and filed an application for further investigation under Section 173 (8) of the Cr.P.C. and another application for discharge. Similar applications were filed by the other accused. By order dated 24.08.2011 the Magistrate rejected the applications that were filed for further investigation, stating that the fact sought to be placed by the applicants were in the nature of evidence of the defence and would be taken into account in the Trial. The Magistrate also rejected the discharge application. 13. Similar applications were filed by the other accused. By order dated 24.08.2011 the Magistrate rejected the applications that were filed for further investigation, stating that the fact sought to be placed by the applicants were in the nature of evidence of the defence and would be taken into account in the Trial. The Magistrate also rejected the discharge application. 13. Another application in the meanwhile, had been filed by the applicant Manubhai Heerabhai and other accused before the Magistrate under Section 156 (3) Cr.P.C. to order for investigation and to register an F.I.R. against the complainant. This application was rejected by the learned Magistrate by an order dated 09.09.2011. 14. The Criminal Revisions were filed thereafter which were decided by the Second Additional Sessions Judge, Surat, by a common order dated 10.09.2012. The Additional Sessions Judge went in detail into the facts that were alleged in the application under Section 173 (8) Cr.P.C. and found that the case has been made out for further investigation. He, therefore, directed for further investigation to be conducted. The investigation was handed over to the another Investigating Officer. Two further investigation reports were submitted thereafter by the police. 15. A Special Criminal Application No. 727/2012 was filed before the High Court challenging the order passed by the Revisional Court. The Court observed that the Investigating Officer furnished an interim investigation report not to the Magistrate but to the learned Additional Sessions Judge, which smacked of mala-fides as if the Investigating Officer wanted to favour the accused persons. The High Court further observed that for an interim investigation the reports which were submitted by the Investigating Officer virtually acquitted the accused persons. The High Court set aside the order passed by the learned Additional Sessions Judge, and remanded the same for a fresh consideration to the learned Additional Sessions Judge who would then decide as to whether the F.I.R. should be registered in so far as allegations contained in the application for further investigation are concerned. 16. The Supreme Court after recording the submissions made by the learned Senior Advocate appearing on behalf of the appellant observed in Paragraph-10 that the question of law that arose in the case of was “whether after a Charge-sheet is filed by the police, the Magistrate has power to order further investigation and if so upto what stage of a criminal procedure.” 17. The Court thereafter considered the entire gamut of sections in the Cr.P.C. relating to the power of Police Officer to investigation the cognizable offence and also considered the definition of “Complaint” “Enquiry” and “Investigation” as given in the Cr.P.C. The Supreme Court thereafter discussed in detail the observations of the Court made in earlier cases relating to Section 173 (8) of the Cr.P.C. as also Section 156 (3) Cr.P.C. The Supreme Court observed that the Magistrate's power under Section 156 (3) Cr.P.C. is very wide for which his judicial authority must be satisfied that a proper investigation by the police had taken place. After a report is submitted under Section 173 (2) Cr.P.C. this power would continue to enure and would be available at all stages of the progress of a criminal proceeding until the Trial itself commences. The Supreme Court, therefore, made such observations in Paragraph-42, which paragraph has been read out by the learned counsel for the petitioner. 18. In the case of the petitioner, however, it is evident that the police has not yet submitted any report under Section 173 (2) of the Cr.P.C. The Investigation in the two F.I.R. is still going on. The judgment as cited by the learned counsel for the petitioner is inapplicable to the case of the petitioner. 19. This Court has also perused the order impugned dated 20.09.2021. The learned Trial Court has observed that an application has been submitted by the accused Dinesh Kumar Yadav saying that a direction be issued to the Investigating Officer to record his statement. The concerned police station had reported that on 08.08.2021 the statement of the accused was recorded and that he had denied any offence, having been committed by him, and said that he would produce the evidence in Court through his counsel. The Court, therefore, observed that since the investigation was in progress, there was no presumption that the Investigating Officer shall not record the evidence produced by either side. The application of the petitioner was hence rejected. 20. This Court finds no legal and factual infirmity in such order. The petitioner has approached this Court prematurely. This Court cannot also issue any direction to the Investigating Officer on mere apprehension of unfair practice on the part of the Investigating Officer as alleged in this petition. 21. The application of the petitioner was hence rejected. 20. This Court finds no legal and factual infirmity in such order. The petitioner has approached this Court prematurely. This Court cannot also issue any direction to the Investigating Officer on mere apprehension of unfair practice on the part of the Investigating Officer as alleged in this petition. 21. The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others, AIR 2021 SC 1918 , has observed in Paragraph 8 onwards, the rights and duties of the police to investigate into cognizable offences. The Court has placed reliance upon the judgment rendered by the Privy Council in the case of King Emperor vs. Khwaja Nazir Ahmad, AIR 1945 PC 18 , to say that in India, there is a statutory right on the part of the police to investigate the circumstances of alleged cognizable crime without requiring any Authority from the judicial authorities. It is further observed that it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of inherent jurisdiction of the Court. It was observed that the functions of the judiciary and the police are complementary not overlapping, combination of investigating an offence with a duty for observance of law and order. It shall be appropriate to leave each to exercise its own function. The Court consider the question whether the High Court would be justified in interfering with the investigation by the police while exercising the inherent powers under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India. It observed that there is a clear cut and well demarcated spheres of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the Executive through the Police Department, the Superintendence over which is based in the State Government. The Executive which is charged with a duty to keep vigilance over the law and order situation is obliged to prevent crime and if an offence as alleged to have been committed, it is its moral duty to investigate into the offence and borne the offender to book. Once it investigates and finds offence having been committed it its duty to collect evidence for the purpose of proving the offence. Once it investigates and finds offence having been committed it its duty to collect evidence for the purpose of proving the offence. There is thus, a well and definitely demarcated field of crime detection and its subsequent adjudication between the police and the Magistrate. 22. In the case of Union of India vs. Prakash P. Hinduja, (2003) 6 SCC 195 , the Supreme Court observed in Paragraph-20 as under: “Thus, the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation, which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173 (2) Code of Criminal Procedure, this field being exclusively reserved for the Investigating Agency.” 23. In State of Orissa and Others vs. Ujjal Kumr Burdhan, (2012) 4 SCC 547 , the Supreme Court observed that unless a case of gross abuse of power is made out against those in-charge of investigation, the High Court should be loathe to interfere at early/premature stage of investigation. 24. The petition is dismissed as misconceived. No order as to costs.