Gyan Prakash Tiwari And Ors. vs The State Of U.P Thru Principal ...
2017 Latest Caselaw 3464 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.                                                  Reserved on 25.7.2017
 
Delivered on  22.8.2017
 
Court No. - 9
 
Case :- MISC. BENCH No. - 4399 of 2015
 
Petitioner :- Gyan Prakash Tiwari And Ors.
 
Respondent :- The State Of U.P Thru Principal Secy., Home 			    Lucknow And Ors.
 
Counsel for Petitioner :- Vivek Raj Singh,Adwait Vikram 						Singh,Rahul Singh
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Rekha Dikshit,J.

(Delivered by Ramesh Sinha,J.)

1. Heard Sri Vivek Raj Singh, learned counsel for the petitioners, Sri S.P.Singh, learned AGA for the State and perused the record.

2. This writ petition has been filed with a prayer to quash the impugned order dated 30th January, 2012 transferring the case to C.B.C.I.D., recommendation dated 3rd March, 2015 recommending sanction for prosecution of petitioners, order dated 30th March, 2015 granting permission for prosecution of petitioners and order dated 15th April, 2015 for arrest of the petitioners.

3. The prosecution case in brief is that; an FIR was lodged against the petitioners by respondent no.4, namely, Mahadei, wife of the deceased, on 10th October, 2009 which was registered as Case Crime No.1356 of 2009, under Section 304 I.P.C., Police Station Sursa, District Hardoi alleging therein that on 7.10.2009 while the deceased, namely, Ram Kumar Pal was going on a tractor on his work, he was intercepted by the petitioners, alighted by them and they had beaten him brutally and on receiving an information his wife, i.e., respondent no.4 took him to the District Hospital, Hardoi, from where he was referred to higher centre and brought to Katiyar Nursing Home where he died on 10.9.2009 at 5.30 P.M. on account of septicemia. After concluding the investigation, police submitted a final report on 29.1.2010. The complainant was not the eye witness of the occurrence and she did not file any protest petition against the final report. Moreover, she filed an affidavit on 16.3.2011 before the Additional Chief Judicial Magistrate, District Hardoi admitting the fact that she lodged a false FIR on instigation of villagers and she admitted that her husband, who was deceased, was a labourer and a sack full of grains fell on him during his work and on account of the injuries caused to her husband she got him treated to his injuries and on account of the said injuries, her husband developed septicemia and died during the course of treatment.

4. On the basis of final report dated 29.1.2010 submitted by the investigating agency and after considering the affidavit dated 16.3.2011 of respondent no.4, Smt. Mahadei, the learned A.C.J.M. District Hardoi accepted the final report on 6.12.2014.

5. The respondent no.6, namely, Suhas Chakma, Director of National Compaign for Prevention of Torture, New Delhi, made a complaint on 13.10.2009 to the National Human Right Commission (here-in-after referred to as "NHRC') regarding the incident dated 7.10.2009 in which the deceased died, stating therein that the deceased was mercilessly beaten by the petitioners, who are police personnel, who were demanding some money from him and when he refused to pay the same he was beaten by them on account of which after two days he died in an hospital. On the said complaint of respondent no.6, NHRC issued a letter on 28.12.2011 to the Chief Secretary, Government of Uttar Pradesh, Lucknow for getting the status of the Case Crime No.1356 of 2009 being re-investigated by the C.B.C.I.D. as well as disciplinary action taken against the petitioners. On which the State Government vide order dated 30.1.2012 directed the C.B.C.I.D. to investigate the said case and matter was investigated by the C.B.C.I.D. which is stated to have moved an application on 29.2.2012 under Sections 173(8) Cr.P.C. before the learned Magistrate concerned praying for conducting further investigation in the case. A copy of the same is annexed as Annexure-CA3 (at page26) of the counter affidavit. No orders were passed by the learned Magistrate on the said application and the learned Magistrate accepted the final report on 6.12.2014.

6. Thereafter, a recommendation was made for grant of sanction of prosecution of the petitioners by the Principal Secretary, Law and Legal Remembrancer, U.P. on 3.3.2015 and on 30.3.2015 the State Government granted sanction for prosecution of the petitioners in the present case, hence, the present petition by the petitioners challenging the transfer of the investigation of the case to C.B.C.I.D. vide order dated 30.1.2012, recommendation for grant of sanction of the petitioners dated 3.3.2015, grant of sanction of prosecution of the petitioners by the State Government on 30.3.2015 and order dated 15.4.2015 of the C.B.C.I.D., Lucknow to arrest the petitioners.

7. On 9.7.2015, another Bench of this Court passed the following order, which is quoted here-in-below:-

" This petition seeks issuance of a writ in the nature of Certiorari to quash order dated 30th of January, 2012 transferring the case to CB, CID; recommendation dated 3rd of March, 2015 recommending sanction for prosecution of the petitioners; order dated 30th of March, 2015 granting permission for prosecution of petitioners; and order dated 15th of April, 2015.

Shri Vivek Raj Singh, learned counsel appearing for the petitioners, has relied on (2013) 5 Supreme Court Cases 762, Vinay Tyagi Vs. Irshad Ali @ Deepak and others to contend that order of further investigation has been obtained by the Investigating Agency for mala fide reason at the instance of political heavyweight, respondent nos.5 and 6. It has further been contended that in para 22 of the Judgment rendered in Vinay Tyagi's case (supra), the Hon'ble Supreme Court has elaborated the scope of further investigation after filing of closure report under Section 173 Cr.P.C. In terms of the language of Section 173 (8) Cr.P.C., scope of the provisions has been detailed to say that further investigation can be sought on discovery of further oral and documentary evidence at subsequent stage to filing of the report.

It has been pointed out that in the application made on behalf of CB, CID, no such oral or documentary evidence has been brought out to make out a ground for further investigation. In such circumstance, investigation itself should not have been undertaken. Also sanction to prosecute could not have been granted in pursuance to such proceedings carried in an illegal manner.

While giving sequence of events, it has been pointed out that the petitioners were serving as police personnel. A labourer namely Ram Kumar Pal died on account of Septicemia on 9th of October, 2009. The petitioners were falsely implicated on a complaint made by wife of the deceased. Crime No.1356 of 2009 under Section 304 of the Indian Penal Code, Police Station Sursa, District Hardoi was registered on 10th of October, 2009. Investigation was conducted. No incriminating material was found so as to indicate culpability of the petitioners. Closure report dated 29th of January, 2010 was filed in the court of concerned Magistrate. It has been pointed out that although investigation was pending, respondent no.6 made an application before National Human Rights Commission in regard to investigation of the case on 13th of October, 2009.

It has been vehemently contended that mala fide intention of respondent no.6 is evident from the fact that although investigation was underway, yet, the application was made and that too without any relevant basis.

It has been further pointed out that while the closure report was pending before the Magistrate, an application was made on behalf of CB, CID dated 29th of February, 2012 received in the court on 2nd of March, 2012.

In the contention of learned counsel for the petitioners, the application seeking further investigation is neither in terms of provisions of sub-Section (8) of Section 173 Cr.P.C. nor in terms of Judgment rendered in Vinay Tyagi's case (supra) (para 22) (Copy of the application has been handed over to the Court by Shri R.K. Dwivedi, learned counsel for the respondent-State, which is taken on record).

It has been highlighted that the closure report was put to the complainant/ aggrieved/ widow of the deceased by the Magistrate. The complainant did not file any protest petition, rather accepted the closure report. Closure report was accepted on 6th of December, 2014.

We have considered the contention of learned counsel for the petitioner.

Para 22 of the Judgment rendered by Hon'ble Supreme Court in Vinay Tyagi's case (supra) reads as under:

"Further investigation" is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173 (8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as a "further investigation". The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as "supplementary report". "Supplementary report" would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a "reinvestigation", "fresh" or "de novo" investigation."

[emphasis supplied by us]

Considering the scope of Section 173 (8) Cr.P.C. as interpreted by Hon'ble Supreme Court in Vinay Tyagi's case (supra), and also the fact that the aggrieved person accepted the closure report in a court of law in due process of court, issue notice to respondent nos.4 to 6, to be served through Chief Judicial Magistrate, Hardoi, returnable on 17th of August, 2015.

List this case on 17th of August, 2015.

Till the next date of listing, further proceedings including arrest of the petitioner shall remain stayed."

8. Learned counsel for the petitioners submitted that after submission of the final report by the investigating agency on 29.1.2010 before the competent court, no protest petition was filed by respondent no.4 who is informant of the case. Moreover, she had filed an affidavit on 16.3.2011 stating that a false case has been registered against the petitioners and she was not the eye witness of the occurrence and only on the instigation of the villagers, she lodged the FIR against the petitioners. He further submitted that Rs.5 lacs was also awarded to the respondent no.5 by the State Government as compensation on the recommendation of National Human Right Commission, New Delhi vide order dated 8.4.2011. He further argued that the learned Magistrate accepted the final report vide order dated 6.12.2014 and the said order passed by the learned Magistrate accepting the final report has attained its finality and the complaint which has been filed by respondent no.6 before the NHRC was for oblique motive for getting the investigation transferred to CBCID and for taking disciplinary against the petitioners. He argued that C.B.C.I.D. moved an application under Section 173(2) Cr.P.C. for further investigation in the matter, though there was no occasion for the same as no fresh material was collected by it in the shape of oral or documentary evidence and the learned Magistrate has also not granted any permission for further investigation on the application of the Investigating Officer of C.B.C.I.D. and in view of the case law of Vinay Tyagi's case (supra), no orders for reinvestigation, fresh or de-dono investigation can take place and C.B.C.I.D. had started reinvestigation in the matter which is against the judgment of the Apex Court as has been held in the case of Vinay Tyagi's case (supra).

9. He further submitted that sanction for prosecution of the petitioners after acceptance of the final report by the learned Magistrate in the case case is absolutely illegal as the competent authority has not considered the fact that final report has already been accepted by the learned Magistrate on 6.12.2014, which was not all considered by the competent authority which granted sanction of prosecution of the petitioners vide order dated 30.3.2015, is against the provisions of law, hence, is liable to be set aside by this Court.

10. Per contra, learned AGA vehemently opposed the arguments advanced by learned counsel for the petitioners and has submitted that the application under Section 173(8) Cr.P.C. seeking permission from the learned Magistrate for further investigation in the matter was filed on 29.2.2012 and the same was placed on record on 2.3.2012 but the learned Magistrate has ignored the said application and accepted the final report, though during the course of further investigation sufficient incriminating materials have been collected, which warrants the trial of the petitioners and they are liable to be convicted, hence, sanction granted by the competent authority for prosecution of the petitioners is absolutely illegal and requires no interference by this Court.

11. Considered the submissions advanced by learned counsel for the parties.

12. It is an admitted fact that after investigation, final report was submitted by the investigating agency on 29.1.2010 and no protest petition was filed by respondent no.4, namely, Mahadei, wife of the deceased, against it. Moreover, she had filed an affidavit before the learned Magistrate on 16.3.2011 wherein she stated that she was not an eye witness of the occurrence and false FIR has been registered against the petitioners at the instigation of the villagers and respondent no.6 namely, Suhas Chakma, Director of National Compaign for Prevention of Torture, New Delhi had made a complaint on 13.10.2009 to the NHRC regarding the incident dated 7.10.2009 for his oblique motive, which recommended the matter to the Chief Secretary, Government of Uttar Pradesh, Lucknow for getting the status of the said case investigated by the C.B.C.I.D. as well as disciplinary action be taken against the petitioners. In pursuance of the same, the State Government transferred the investigation of the case to C.B.C.I.D. and investigating officer of the C.B.C.I.D. on 29.2.2012 moved an application under Section 173(8) Cr.P.C. for further investigation in the case.

13. Sri S.P. Singh, learned AGA has admitted that further investigation conducted by the C.B.C.I.D.may not come within the purview of the judgement rendered by the Apex Court in the case of Vinay Tyagi's case (supra), but he states that prosecuting agency is having sufficient material against the petitioners who are police personnel and had influenced the investigation till filing of the final report of Police Station Sursa, District Hardoi. The said fact has been mentioned in para-7 of the counter affidavit dated 4.12.2016 swared by Sri Jokhan Rakesh, Deputy Superintendent of Police, C.B.C.I.D.

14. Thus, the contention raised by learned counsel for the petitioners has substance that further investigation, which has been conducted in the present case in view of Section 173(8) Cr.P.C., is not permissible as the learned Magistrate has not granted any permission for the same. Moreover, C.B.C.I.D. carried out the reinvestigation in the matter which is also against the dictum of the Apex Court in the case of Vinay Tyagi's case (supra).

15. From perusal of the order dated 30.3.2015 granting permission for prosecution of the petitioners by the State Government shows that competent authority has not considered the fact regarding acceptance of final report by the learned Magistrate on 6.12.2014 and has granted sanction for prosecution of the petitioners on the material collected during the course of investigation by C.B.C.I.D. which is against the provisions of law, as the final report which has been accepted by the learned Magistrate has attained its finality as so long as the said order is not challenged by the respondent no.4 who is wife of the deceased, before any superior Court, the grant of sanction for prosecution of the petitioners is not sustainable in the eyes of law. Since the respondent nos. 4 to 6 have not appeared before this Court though notice was issued to them but they have not responded to it. Hence, the impugned order granting sanction for prosecution of the petitioners by respondent no.1 and the order dated 15.4.2015 of the C.B.C.I.D., Lucknow for the arrest of the petitioners are liable to be quashed and are, accordingly. quashed.

16. Accordingly, the writ petition stands partly allowed.

17. However, it will be open for the competent authority to consider the matter for grant of sanction of prosecution of the petitioners afresh, if the order accepting the final report has been challenged and set aside by any superior court.

(Rekha Dikshit,J.)     (Ramesh Sinha, J.)
 
Order Date:22.8.2017
 
NS