Rupesh Kumar Singh & Another vs State Of U.P. & 3 Others
2017 Latest Caselaw 2898 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 
                                                                    AFR
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 14395 of 2017
 
Petitioner :- Rupesh Kumar Singh & Another
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- B.K.Singh Raghuvanshi,Arvind Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri B.K. Singh Raghuvanshi, learned counsel for the petitioners and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Saghir Ahmad, learned AGA for the State.

The instant writ petition has been filed by the petitioners Rupesh Kumar Singh and Shiv Shankar Singh who are accused in Case Crime No.1604 of 2010 under Sections 167, 220 IPC and Case Crime No.1605 of 2010 under Sections 21/22 Narcotics Drugs and Psychotropic Substances Act, 1985, registered by Anti Corruption Cell, Varanasi, at Police Station Kotwali, District Jaunpur with the prayer that a writ of mandamus be issued directing the Investigating Agency to duly investigate the aforesaid cases fairly and consider the materials produced by the petitioners before them. A further prayer has been made for issuing a writ, order or direction in the nature of mandamus directing respondent nos.2 and 3 to change the Investigating Officer and get the matter reinvestigated by giving an opportunity to the petitioners and considering the materials/evidence produced by them before the Investigating Officer of Anti Corruption Cell, Varanasi and to pass appropriate order/direction on the application of the petitioners moved for permitting them to produce the material in support thereof before the Investigating Officer and consider the same during course of investigation.

A preliminary objection has been raised by Sri Ajit Kumar Singh, learned Additional Advocate General appearing for the respondents that the petitioners being accused have no right to have any say as regards manner and method of the investigation.

We have heard learned counsel for the parties and perused the averments made in the writ petition as well as law reports cited by learned counsel for the parties in support of their respective submissions made by them for and against the preliminary objection.

In support of the preliminary objection, learned counsel for the respondents has placed reliance upon the judgment rendered in the case of Smt. Ramwati and others Vs. State of U.P. and others, 2001 (1) 845 (All), wherein Hon'ble Apex Court while dealing with the right of an accused to have any say in regard to the manner and method of the investigation has in paragraph nos.9, 10 and 11 of its judgment which are being reproduced herein below held as hereunder:

"9. The F.I.R. shows that the incident took place at 5.30 p.m. on 3.5.2000 in a vegetable market. The accused are alleged to have fired from their respective weapons upon the two deceased who received firearm injuries and died on the spot. The F.I.R. was promptly lodged at 6.30 p.m. at P.S. Kotwali, which is two kilometres from the place of occurrence. Besides the first informant, names of 4 other persons are mentioned as witnesses of the incident. Prima facie, the case does not appear to be a highly complicated one and, therefore, it cannot be said that it is not possible for the local police to investigate the same. Therefore, the case does not fall within the purview of ground No. 1 mentioned in the Government Order. There is no averment in the writ petition nor there is any material to show that the case falls within the purview of grounds No. 2, 3 and 4 of the Government Order. In fact Sri U. C. Mishra, learned Counsel for the Petitioners could not point out any such fact or circumstances which may bring the case within the purview of the Government Order. A copy of the application moved by Petitioner No. 1 to the Chief Minister for transferring the investigation of the case to C.B., C.I.D. has been filed as Annexure-3 to the writ petition. What is mentioned therein is that the accused are wholly innocent and had been falsely implicated; that Ambrish Kumar accused, who is employed as clerk in a college in Niranjan Nagar was present on duty on the date of occurrence; that no witnesses of the neighbourhood had been named in the F.I.R. and all the witnesses were relations and that the local police was not conducting the investigation fairly. It was on this application that the initial order for transfer of investigation to C.B., C.I.D. was made which was communicated by the letter of the Deputy Secretary dated 29.5.2000 sent to the Director General of Police, U.P. The application sent by Petitioner No. 1, which formed the basis for transferring the case to C.B., C.I.D., itself does not disclose any such ground which may fall within the purview of Government Order dated 15.9.1995 so as to warrant transfer of the case to C.B., C.I.D.. There is no report of any superior officer of the police department that such local conditions had developed on account of which a doubt had arisen in mind of public at large that the local police was not investigating the case fairly. It is important to emphasise that ground No. 4 relates to the impression or feelings of public at large regarding the fairness of investigation and not that of the concerned persons, namely, the complainant or the accused. Whenever, the police will investigate the case and collect evidence against an accused, the accused is likely to make all kinds of allegations against the Investigation Officer and, therefore, the mere allegation of the accused that the police is not investigating the case fairly can be no ground for transferring the investigation of the case. Such an allegation by the accused would also not come within the purview of ground No. 4 of the Government Order. Except for the bald allegation of Petitioner No. 1, who is none else but the own mother of two accused, there was no material at all to show that the local police was not investigating the case fairly. The F.I.R. was lodged at 6.30 p.m. on 3.5.2000 and the decision of the State Government to transfer investigation to C.B., C.I.D. was taken before 27.5.2000. There is no averment in the writ petition that any report from the S.S.P. of the district or D.I.G. of the range has been called by the State Government. There is also no averment in the writ petition that either the nature of the case was so complicated or the conditions on the spot were such due to which fair investigation could not be done by the local police. In fact there is not even a whisper in the writ petition to show that the nature of the case or the situation on the spot was such so as to bring the case within the purview of the Government Order. The sequence of events, namely, order for transferring investigation to C.B., C.I.D. being passed within 24 days of occurrence also shows that the order was passed simply on the application moved by the mother of the accused without calling any report from S.P. or other district officers. If the Government has issued a Government Order laying down the conditions under which the investigation of a criminal case can be transferred to C.B., C.I.D., it is expected that the said order would be strictly followed. If the State Government itself does not follow the guidelines issued by it, it will only result in chaos affecting the system and a break down of the State machinery. We are, therefore, clearly of the opinion that the initial order passed by the State Government transferring the investigation of the case to C.B., C.I.D. was wholly unjustified on the facts and circumstances of the case and was clearly illegal. The impugned order of the State Government dated 19.1.2001 which has been communicated by telex message dated 30.1.2001 directing C.B., C.I.D. not to investigate the case and handing over investigation of the same to the local police is, therefore, perfectly legal and valid in law.

10. In Union of India v. W.N. Chadha : AIR 1993 SC 1082, the Supreme Court has held as follows in para 90 of the report:

.... The accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2)....

11. In M/s. Jayant Vitamins Ltd. v. Chaitanya Kumar and another. : JT 1992 (4) SC 487; 1995 (2) JIC 2126 (SC), it was held that the investigation into an offence is a statutory function of the police and superintendence thereof is vested in the State Government and the Court is not justified without any compelling and justifiable reason to interfere with the investigation. In C.B.I. v. Rajesh Gandhi : 1997 Cri LJ 63 (SC) , it was held by the apex Court that the accused cannot have a say in who should investigate the offence he is charged with. These authoritative pronouncements by the Supreme Court clearly show that the accused can have absolutely no say in the matter of investigation and normally the Court should be very reluctant to interfere in a matter of investigation until there are compelling reasons justifying such a course of action. The Petitioner Nos. 2 to 5 are accused of the criminal case and Petitioner No. 1 who is mother of two accused have, therefore, absolutely no right to challenge the impugned order of the State Government by which investigation has been transferred back to the local police."

While considering the same issue, Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi AIR 2005 SC 359 has in paragraph nos.23 and 25 held as hereunder:-

"23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's case holding that the trial court has powers to consider even materials which accused may produce at the stage of Section 227 of the Code has not been correctly decided.

25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is 'necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code'. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."

Similar observations made by Hon'ble Apex Court in paragraph no.24 of its judgment rendered in the case of Manohar Lal Sharma Vs. Principal Secretary and others, (2014) 2 SCC 532, are being reproduced herein below:

"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 animosity, the Court may intervene to protect the personal and/or property rights of the citizens."

Opposing the preliminary objection, learned counsel for the petitioners has placed reliance on paragraph no.27 of the judgment rendered in the case of Nirmal Singh Kahlon Vs. State of Punjab and others 2009 (1) SCC 441 which is being reproduced as hereunder:

"27. In terms of Section 3 of the Police Act, 1861, the State has the ultimate say in the matter of superintendence of investigation. Section 36 of the Code must be read harmoniously with the said provision. Therefore, when Section 36 of the Code uses the words `in rank', it should be given a purposive construction. Although a plain reading of the aforementioned provision appears to be containing three ingredients, namely, (i) the investigation must be carried out by an Officer in charge; (ii) which may be supervised by an Officer superior in rank; and (iii) in respect of a local area to which they are appointed, but in the context of the power of the State vis- `-vis the provisions of Act, the same, in our opinion, deserves a wider application.

An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation."

Similarly, reliance has been placed by learned counsel for the petitioners upon the case of Suprabha Tyagi Vs. State of U.P. and others reported in 2015(8) ADJ, 104. It will be useful to extract paragraph no.34 of the aforesaid judgment, on which learned counsel for the petitioners has laid emphasis, herein under:-

"34. In Navinchandra N. Majithia Vs. State of Meghalaya & Ors. AIR 2000 SC 3275, this Court considered a large number of its earlier judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial. Therefore, the court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: "The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence..... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. ....A vitiated investigation is the precursor for miscarriage of criminal justice."

Thus, the legal position which emerges from reading of the authorities cited by learned counsel for the parties on the issue under consideration is that 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 should 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 animosity, the Court may intervene to protect the personal and/or property rights of the citizens.

After having heard learned counsel for the parties at great length and perused the material brought on record as well as law reports placed before us, we find that the prayer made by the petitioners in this writ petition cannot be granted inasmuch as learned counsel for the petitioners has failed to place any material before us which may indicate that the police officer who is investigating the matter has either exercised his investigatory powers in breach of the statutory provisions or he has abused the investigatory power putting the petitioners' personal liberty in jeopardy. There is nothing on record which may indicate that the Investigating Officer in this case is not proceeding in a bonafide manner or the investigation is tainted with animosity. It goes without saying that an accused is also entitled to fair investigation but he has no right to insist upon the matter being investigated in a particular manner or by adopting a particular method.

We have no reason to distrust that the matter will not be investigated fairly.

Subject to the aforesaid observation, this writ petition stands dismissed.

Dt. 02.08.2017

rkg