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2022 DIGILAW 794 (PAT)

Surendra Singh v. State of Bihar

2022-09-09

RAJEEV RANJAN PRASAD

body2022
ORDER These batch of writ petitions have been listed together finding that they relate to the same subject matter and the reliefs prayed in the writ petitions are of similar nature. This Court has been noticing recently that a large number of writ petitions are coming to this Court directly seeking a direction to the investigating agency to conduct a proper, fair and impartial investigation, to arrest the accused persons and to complete the investigation which is pending for a long time. In some cases prayers have been made to direct a further investigation after submission of the charge-sheet. 2. In these writ applications since the prayers contained are of the kinds stated hereinabove, this Court having discussed the issues involved in these cases with the learned counsel for the petitioner(s) and learned counsel for the State reached to a conclusion that a common order in these cases would serve the ends of justice. The cases in which requests were made to segregate and hear separately would be dealt with on case to case basis here-in-after. 3. Without going into the merit of the case, this Court proposes to dispose of these writ applications with appropriate directions in terms of the judgment of the Hon’ble Supreme Court which are being discussed hereinafter. A glance over the case-laws (i) As back as in the year 1979, the Hon’ble Apex Court in the case of Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna reported in AIR 1979 SC 1360 ; held that speedy trial is a part of fundamental right to the life and liberty. It is an integral and essential part of the fundamental right enshrined in Article 21 of the Constitution of India. A proper and fair investigation has been held to be an essential component of the concept of speedy trial and it has it’s roots embedded in a reasonably fair and just procedure. The Hon’ble Supreme Court has in so many words held in the case of Hussainara Khatoon (supra) that the State is under constitutional mandate to ensure a speedy trial and whatever is necessary for this purpose has to be done by the State. The Hon’ble Supreme Court has in so many words held in the case of Hussainara Khatoon (supra) that the State is under constitutional mandate to ensure a speedy trial and whatever is necessary for this purpose has to be done by the State. Positive action such as augmenting and strengthening the investigating machinery, setting up new courts, building, building new court houses, providing more staff and equipments to the courts, appointment of additional judges and other measures have been mentioned as part of those measures which would be necessary to ensure speedy trial. (ii) In A.R. Antulay Vs. R.S. Nayak, (1992) 1 SCC 225 the Hon’ble Supreme Court held that right to speedy trial flowing from Article 21 of the Constitution of India encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. And “in every case, where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?” (iii) In the case of Sakiri Vasu Vs. State of U.P. and Others reported in AIR 2008 SC 907 , the appellant moved an application before the Hon’ble Apex Court seeking an order for an inquiry to the Central Bureau of Investigation in the matter of the alleged murder of son of the appellant. The Hon’ble Supreme Court while acknowledging and reiterating the right of an aggrieved person to claim that an offence which he alleges be investigated properly reiterated that he has no right to claim that it be investigated by any particular agency of his choice. Judgment of the Hon’ble Supreme Court in the case of Central Bureau of Investigation & Another Vs. Rajesh Gandhi and Another reported in 1996 AIR SCW 4249 has been referred to in the case of Sakiri Vasu (supra). The Hon’ble Apex Court categorically held that after registering the FIR if no proper investigation is being held, it would be open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned. The views expressed by Hon’ble Court are being reproduced hereunder:— “….if such an application under Section 156(3) Cr.P.C. is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The views expressed by Hon’ble Court are being reproduced hereunder:— “….if such an application under Section 156(3) Cr.P.C. is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.” (iv) This court deems it just and proper to reproduce paragraph 13, 14, 15, 16, 17, 27, 29 & 30 from the judgment in the case of Sakiri Vasu (supra) as under:— “13. The same view was taken by this Court in Dilawar Singh Vs. State of Delhi [ (2007) 12 SCC 641 : JT (2007) 10 SC 585] (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. 14. Section 156(3) states: “Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words ‘as abovementioned’ obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. 15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar Vs. A.C. Saldanna, AIR 1980 SC 326 (para 19). 17. Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar Vs. A.C. Saldanna, AIR 1980 SC 326 (para 19). 17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC. 29. In Union of India Vs. Prakash P. Hinduja and another, 2003 (6) SCC 195 (vide para 13), it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) CrPC is satisfied that proper investigation has not been done, or is not being done by the officer in charge of the police station concerned, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). 30. 30. It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer in charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer in charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI Vs. State of Rajasthan and another, 2001(3) SCC 333 (vide para 11); R.P. Kapur Vs. S.P. Singh, AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar Vs. A.C. Saldanna (supra).” (v) Recently in the case of Amar Nath Choubey Vs. Union of India and others reported in (2021) 11 SCC 804 ; the Hon’ble Supreme Court was considering a case wherein the appellant had earlier moved the Hon’ble Allahabad High Court complaining of the lackadaisical manner in which the police was investigating because some powerful political personalities were also involved. The Investigating Officers were also being changed on regular intervals. The application was filed seeking a mandamus for a proper inquiry into the murder of father of the appellant including by the CBI. In the said case, a closure report had been filed by the investigating agency. In that context the Hon’ble Supreme Court looked into the scope and ambit of Section 155 to 157 of the Code of Criminal Procedure which deals with the investigation – duty of police and aim of investigation and held that a fair investigation is a necessary concomitant of Articles 14 and 21 of the Constitution of India and being a constitutional Court, this Court has the bounden obligation to ensure adherence by the police. Paragraph ‘11’ & ‘12’ of the judgment of the Hon’ble Supreme Court in Amar Nath Choubey (supra) are being quoted hereunder for a ready reference:— “11. The police has a statutory duty to investigate into any crime in accordance with law as provided in the code of Criminal procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. The police has a statutory duty to investigate into any crime in accordance with law as provided in the code of Criminal procedure. Investigation is the exclusive privilege and prerogative of the police which cannot be interfered with. But if the police does not perform its statutory duty in accordance with law or is remiss in the performance of its duty, the court cannot abdicate its duties on the precocious plea that investigation is the exclusive prerogative of the police. Once the conscience of the court is satisfied, from the materials on record, that the police has not investigated properly or apparently is remiss in the investigation, the court has a bounden constitutional obligation to ensure that the investigation is conducted in accordance with law. If the court gives any directions for that purpose within the contours of the law, it cannot amount to interference with investigation. A fair investigation is, but a necessary concomitant of Articles 14 and 21 of the Constitution of India and this Court has the bounden obligation to ensure adherence by the police. 12. In Manohar Lal Sharma Vs. Union of India reported in (2014) 2 SCC 532 : (2014) 4 SCC (Cri) 1, this Court observed as follows: “24. In the criminal justice system the investigation of an offence is the domain of the police. The power to investigate into the cognizable offences by the police officer is ordinarily not impinged by any fetters. However, such power has to be exercised consistent with the statutory provisions and for legitimate purpose. The courts ordinarily do not interfere in the matters of investigation by police, particularly, when the facts and circumstances do not indicate that the investigating officer is not functioning bona fide. In very exceptional cases, however, where the court finds that the police officer has exercised his investigatory powers in breach of the statutory provision putting the personal liberty and/or the property of the citizen in jeopardy by illegal and improper use of the power or there is abuse of the investigatory power and process by the police officer or the investigation by the police is found to be not bona fide or the investigation is tainted with animonsity, the court may intervene to protect the personal and/or property rights of the citizens. 25. 25. Lord Denning (The Due Process of Law, First Indian Reprint 1993, p.102) has described the role of the police thus: ‘In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well-trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more force that the occasion warrants.’ 26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book. 39. … In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time bound manner without any external interference.” (vi) Recently in the case of Mohammed Zubair Vs. State of NCT of Delhi & Ors. reported in AIR 2022 SC 3649; the Hon’ble Apex Court has inter alia reiterated paragraph ‘60’ of the judgment rendered in the case of Arnab Ranjan Goswami Vs. Union of India reported in (2020) 14 SCC 12 which is being reproduced hereunder:— “60. …. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment….” (emphasis supplied) 4. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment….” (emphasis supplied) 4. From a bare reading of the aforementioned judgments, it would be crystal clear that the Hon’ble Supreme Court of this country has been drawing the attention of the stake holders towards the need of fair and proper investigation and while doing so this should be alive to both ends of the spectrum. Grievance of the petitioners 5. In all these cases the grievance of the writ petitioner(s) is that while a First Information Report has been lodged in respect of the occurrence alleged, the investigating agency is not conducting a proper and fair investigation. They have made submissions showing why they are aggrieved with the conduct of the investigating agency. The aggrieved petitioner(s) have made representations before the senior police officers such as Superintendent of Police, Deputy Inspector General of Police and also to the officers above his rank but they have not received any response. In most of the writ applications, the State has not filed any counter affidavit. In some of the cases in which counter affidavits have been filed, the up-to-date stage of the investigation has not been provided. 6. Learned counsel for the State are not in a position to inform this Court as to the present stage of the case. Due to pendency of the cases for a substantial period, in some of the cases even the learned counsel for the petitioner(s) are not aware of the present stage. 7. This Court cannot remain oblivious of the fact that in recent years this Court has witnessed influx of writ applications seeking a direction to the police authorities to conduct proper and fair investigation. They have a general complain that the investigating officers are not working on the case, they are not examining the important witnesses, no step is being taken to arrest the accused in the cases registered for the serious and heinous kind of offences and their representations to the senior police officers are not being paid heed to. They have a general complain that the investigating officers are not working on the case, they are not examining the important witnesses, no step is being taken to arrest the accused in the cases registered for the serious and heinous kind of offences and their representations to the senior police officers are not being paid heed to. In all these cases, however the petitioner(s) have not filed any application under Section 156(3) Cr.P.C. before the learned jurisdictional Magistrate, no reason for the same has been provided in the writ applications. 8. In some of the cases when this Court called upon learned counsel for the petitioner(s) to say as to why they have not approached the court of learned Magistrate, in a feeble voice only they could inform this Court that perhaps the investigating agency would not seriously pay heed to the orders of the learned Magistrate and it is their common submissions that unless and until this Court issues a mandamus to the senior police officers of the State their experience at the bar says that no significant step towards proper and fair investigation, arrest of the absconders and/or completion of investigation is likely to be taken with utmost expedition. In some of the cases, the investigation is pending for over 5 to 7 years. 9. This Court is afraid that the manner in which the public faith in the police administration in the matter of conduct of proper and fair investigation is eroding, the very credibility of the investigating agency is at the stake and unless some stringent but well informed measures are immediately taken to bring about a complete change in the conduct of investigation, the manner of investigation and other related matters, it will not be possible to keep the public faith intact and that will be a disastrous situation. 10. In the aforementioned background of the facts and circumstances, keeping in view the law on the subject, this Court is issuing the following directions:— (I) In the cases where the investigation of the case is still pending, the concerned writ petitioner/an aggrieved person (hereinafter referred to as the ‘writ petitioner’ or ‘an aggrieved person’) may file an appropriate application before the Senior Superintendent of Police/Superintendent of Police of the concerned district drawing his attention towards the pending investigation. The aggrieved person shall submit his stand by way of an application with all supporting materials in the office of Senior Superintendent of Police/Superintendent of Police or send the same through registered post/speed post/email, as the case may be. A copy of the same shall also be sent to the investigating officer of the case. (II) On receipt of such application from the aggrieved person, the Senior Superintendent of Police/ Superintendent of Police shall himself supervise the said case within a period of two weeks, wherever necessary he shall give a chance of hearing to the aggrieved person and all endeavours be made to consider the submissions as well as the materials produced before him. (III) The Senior Superintendent of Police/ Superintendent of Police shall issue necessary instructions to any other supervising authority such as Dy.S.P. and also to the I.Os. of the case to complete the investigation from all angles within a reasonable period. What will be the reasonable period will depend upon the nature of the case and the kind of materials which are required to be dealt with. It is to be kept in mind that only because the Criminal Procedure Code does not provide for maximum limit within which an investigation is to be completed, it does not mean that the investigation is to be kept pending for decades. There are many judicial pronouncements of the Hon’ble Supreme Court in which the prosecution has been quashed because the investigating agency failed to complete the investigation of the case despite lapse of several years. Undue delay in completion of investigation erodes public faith and confidence in the investigating agency. (IV) Upon receipt of a request/application /representation from a person connected with the case and aggrieved by and dissatisfied with the investigation alleging improper investigation, complaints of threat to him or his family or the witnesses by his opponents, accused or his associates, it is the Sr. (IV) Upon receipt of a request/application /representation from a person connected with the case and aggrieved by and dissatisfied with the investigation alleging improper investigation, complaints of threat to him or his family or the witnesses by his opponents, accused or his associates, it is the Sr. Superintendent of Police/Superintendent of Police of the concerned district and the Station House Officer of the concerned police station as well as the I.O. of the case who would be duty bound to enter or caused to be entered the information in the station diary of the police station and examine or caused to be examined the threat perception of the informant and/or his family members/witnesses and take appropriate steps at the earliest, in the cases where threat perceptions are found to be genuine, they would take immediate measures to protect the life of the person(s) under threat. Delay in examining the request/representation leading to any serious consequences shall in itself be a matter of enquiry and action against the erring police officials. (V) As regards the grievance that accused persons are not being arrested in cases involving serious and heinous offences the Senior Superintendent of Police/Superintendent of Police/Investigating Officer shall take appropriate steps keeping in view the law and judgments of the Hon’ble Apex Court on the subject. In the matter of absconding accused the I.O. must take immediate steps to arrest him and exhaust all other procedures in accordance with law with utmost expedition. (VI) This Court has already reproduced the extracts from judgment of the Hon’ble Supreme Court in the case of Sakiri Vasu (supra). In the light of the said judgment, this Court directs that in all these cases the learned Magistrate(s) in whose court the case is pending, shall, without seeking any application from the informant monitor the investigation. They are fully competent to take a view as to whether a proper investigation is taking place or not. Learned Magistrates are expected to exercise their powers under Section 156(3) Cr.P.C. to ensure that investigation of the case pending before the learned Magistrate is duly investigated. They are fully competent to take a view as to whether a proper investigation is taking place or not. Learned Magistrates are expected to exercise their powers under Section 156(3) Cr.P.C. to ensure that investigation of the case pending before the learned Magistrate is duly investigated. If it is found that the Investigating Officer is not proceeding with the investigation expeditiously and is keeping the same pending without rhyme or reason and in the opinion of the learned Magistrate it is found to be a case of inaction on the part of the Investigating Officer, the learned Magistrate would be well within his powers to direct the Senior Superintendent of Police/Superintendent of Police to change the Investigating Officer, to supervise the case himself by the Senior Superintendent of Police/Superintendent of Police and to take appropriate measures in accordance with law. While exercising his power under Section 156(3) Cr.P.C., the learned Magistrate shall definitely monitor the investigation, though he cannot investigate the case himself and will not act as supervisory authority but it is certainly within his domain to ensure that the investigation is done properly and for this purpose without interfering with the power of the Investigating Officer or the Supervising Authority to conduct an investigation, the learned Magistrate may issue appropriate directions which in his opinion is required for conduct of proper investigation. What would be the nature of such direction(s) in a given case cannot be put in a straight jacket formula and it is for the learned Magistrate to look into this aspect of the matter on case to case basis. An application filed by an aggrieved person with prior service of copy upon the learned Public Prosecutor/A.P.P. seeking directions for proper investigation must be heard expeditiously and the same be disposed of within a period of 30 days from the date on which such application is moved before the learned Magistrate on the first date. If the learned Magistrate fails to exercise his power under Section 156(3) Cr.P.C. either on his own or on filing of the application by the aggrieved person, an appropriate application may be brought before this Court for an order/direction and monitoring as the case may be. If the learned Magistrate fails to exercise his power under Section 156(3) Cr.P.C. either on his own or on filing of the application by the aggrieved person, an appropriate application may be brought before this Court for an order/direction and monitoring as the case may be. (VII) If any of the directions issued by the learned Magistrate in accordance with the order of this Court as stated above to the Senior Superintendent of Police/Superintendent of Police/investigating officer, unless otherwise interfered with by a competent court of law, is not given effect to by the concerned authorities, it will be taken to be a case of contempt of this Court and the learned Magistrate may inform this Court as regards the willful disobedience or disregard shown to the order/orders, direction/directions issued by him in terms of this judgment. In such circumstance an aggrieved person may also file an application seeking initiation of contempt. (VIII) All the stake-holders in the present writ applications shall act accordingly. A copy of this order be sent to the Director General of Police, Bihar to enable him to issue necessary instructions at the earliest. 11. Let a copy of this order be sent to all the learned district courts across the State of Bihar for circulation among the Judicial Officers of the Judgeships. 12. These writ applications stand disposed of.