Recently, the division judge bench of the Allahabad High Court held that where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law.
Brief facts:
The factual matrix of the case is that the brother of the Petitioner, who was the sitting chairman of the Town Area Chopan was murdered and the incident was reported to the concerned police station whereupon FIR was registered for the offences under Section 147, 148, 302, 120-B of the Indian Penal Code and Section 7 of Criminal Law Amendment Act, against Rakesh Jaiswal, Ravi Jalan and four unknown shooters. One assailant/accused Kashmir Paswan @ Rauket was arrested by the police from the spot with prohibited 9mm Carbine and its cartridges. The matter was investigated by the police and during investigation Sections 149 and 34 IPC were added. Six accused persons including Kashmir Paswan were arrested by the police. The investigation of the case was transferred to CBCID by the order dated 22.02.2019 and the Petitioner challenged the same by claiming that the order of transfer was passed in the violation of the guidelines provided for consideration of transfer requests and the same was also with the malafide intention. The division bench partly allowed the petitioner and quashed the order dated 22.02.2019.
Thereafter, the wives of the named accused moved an application in the court of CJM on 25.05.2019 and learned CJM had stayed the investigation. The department of home, Lucknow sent a letter to the superintendent of police and sought a report in respect of transfer of investigation of the present case. In response thereof, the Superintendent of Police submitted his report on 07.06.2019. Finally, the Principal Secretary, Department of Home, Government of U.P. passed an order on 26.06.2019 transferring the investigation of the instant case from Police Station Chopan, District Sonbhadra to CBCID, which is impugned in the present writ petition.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner contended that the present case is a fit case where the investigation is to be conducted by an independent central agency i.e. CBI/NIA. The investigating officer of CBCID in a hasty manner filed a police report under Section 173 (2) Cr.P.C. before the Court of CJM on 29.02.2020, wherein he submitted chargesheet against eight persons and exonerated the named accused persons Rakesh Jaiswal and Ravi Jalan. The protest petition was filed and the same was rejected by the learned CJM and then, the criminal revision was preferred and the same was allowed by the District and Session Judge. It was furthermore contended that further investigation can be directed even after filing of the charge sheet and commencement of the trial.
The learned counsel for the Petitioner relied upon the judgments titled Rampal Gautam vs. the State & another (2025), Hasanbhai Valibhai Qureshi vs. State of Gujrat and others (2004), Dharam Pal vs. State of Haryana and others (2016), and Arup Bhuyan vs. State of Assam and another (2023).
Contentions of the Respondent:
The Learned counsel appearing on behalf of the Respondent submitted that in the present case, the charge sheet has been submitted. The trial is at very advance stage and the prosecution witnesses had already been examined. Therefore, in the interest of justice, the investigation may not be transferred at this belated stage. It was furthermore submitted that the magistrate is not bound by the opinion given by the police and he may summon anybody else as accused, who is not even charge sheeted by the police. The informant has no power to ask the trial court to summon someone as an accused. The appropriate relief is to press an application under Section 319 Cr.P.C. at an appropriate stage of trial after recording the depositions of witnesses in the trial court.
Observation of the court:
The Hon’ble Court while relying upon the judgments titled Rubabbuddin Sheikh v. State of Gujarat & Ors. (2010), State of West Bengal & others v. Committee for Protection of Democratic Rights, West Bengal and others (2010), Vinay Tyagi v. Irshad Ali (2013) observed that a direction to conduct further investigation even after filing of the charge-sheet and commencement of the trial is permissible in law.
The court furthermore observed that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law.
The court noted that the Cr.P.C./BNSS is a complete self-contained Code, wherein the trial court is competent and empowered to summon any person as witness at any stage of enquiry, trial or other proceeding in view of Section 311 of Cr.P.C. (Section 348 of BNSS). It is well settled law that if the conditions under these Sections are satisfied, the Court can call upon a witness not only on the motion of either the prosecution or the defence but also it can do so on its own motion. The trial court is competent to recall any witness or witness already examined or to summon any witness even if the evidence on both sides is closed so long as the Court retains seisin of the criminal proceeding. The court relied upon the judgments titled Heera Lal vs. State of Madhya Pradesh (1997), and Mohanlal Shamji Soni vs. Union of India (1991).
Based on these considerations, the court was of the opinion that the court is not inclined to exercise the discretionary jurisdiction under Article 226 of Constitution of India.
The decision of the court:
With the above direction, the court dismissed the writ petition.
Case Title: Usman Ali Vs State of UP
Coram: Hon’ble Mr. Justice Mahesh Chandra Tripathi, Hon'ble Mr. Justice Prashant Kumar.
Case No.: CRIMINAL MISC. WRIT PETITION No. - 2611 of 2020
Advocate for the Petitioner: Md. Aman Khan
Advocates for the Respondent: A.S.G.I.,G.A.,Manish Singh,Prahlad Kumar Khare,Sanjay Kumar Yadav,Sikandar Khan,Sushma Singh,Vineet Sankalp
Picture Source :
