Saurabh Agarwal vs State Of U.P. And 8 Others
2018 Latest Caselaw 1090 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 08.01.2018   
 
AFR                                                   Delivered on : 30.05.2018   
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 17994 of 2016
 
Petitioner :- Saurabh Agarwal
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Anil Kumar Bajpai
 
Counsel for Respondent :- G.A.,Sushil Kumar Rao
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Ajit Kumar,J.

(Delivered by Hon'ble Ajit Kumar J.)

By means of this writ petition the petitioner is challenging the order dated 15.03.2016 passed by the Senior Superintendent of Police, Allahabad transferring the investigation to C.B.C.I.D. Crime Branch pertaining to case crime no. 80 of 2015 under Sections 419, 420, 467 and 468 I.P.C. Police Station Karchhana, District-Allahabad.

Fact matrix of the case is that the petitioner lodged a First Information Report dated 11.02.2015 against the respondent Nos. 6, 8 and 9 with the allegation that a revocable general power of attorney executed by his father, namely, Krishna Bihari Agarwal dated 06.04.2005 in favour of his elder brother Shyam Sunder Agarwal to which Azad Singh was a witness, was misused by Azad Singh as he produced some one else as Shyam Sunder Agarwal and got a sale deed executed on 24.07.2009 in favour of his daughter Smt. Manjula Singh, the 7th respondent. The further allegation is that though Shyam sunder Agarwal had already died on 01.06.2010 and yet the 6th respondent got other sale deed executed in his favour on 11.07.2012 by an imposter as Shyam Sunder Agarwal.

It appears that during investigation Smt. Manjula Singh made some application to Deputy Director General of Police, Allahabad on 04.03.2016 for investigation by some independent agency and report was called for on the same. Accordingly after due application of mind and expressing difficulties in investigation for non-availability of experienced and senior Police Officer at the concerned police station, the Circle Officer vide letter dated 16.04.2016 recommended transfer of investigation by some other agency. Similar recommendation was made by the Additional Superintendent of Police, Yamunapur, Allahabad on 26.04.2016.

The Senior Superintendent of Police, Allahabad vide order dated 29/30.04.2016 transferred the investigation of both cases bearing case crime no. 31 of 2015 under Sections 419, 420, 447 I.P.C. and case crime no. 80 of 2015 under Sections 419, 420, 467 and 468 I.P.C. P.S. Karchhana to the Crime Branch. This order has been filed as Annexure-8 to the Counter Affidavit filed by 6th respondent.

It appears that soon after the transfer the investigation was taken up by the Crime Branch and was concluded by 29.07.2016 and forwarded to the higher authority. The present writ petition was filed on 05.08.2016 without disclosing about the progress made in the investigation by the Crime Branch and without annexing therewith the order of transfer. The relevant relief as claimed in the present writ petition is quoted hereunder:

"a. Issue a writ, order or direction in the nature of certiorari calling for the records of the order passed by the Senior Superintendent of Police, Allahabad on the application of the accused namely Smt. Manjula Singh, submitted on 15.03.2016 and quashing the same, by which the investigation of the First Information Report dated 11.02.2015 lodged by the petitioner bearing Case Crime No. 80 of 2015, under Section 419, 420, 467, 468 I.P.C. Police Station Karchhana, District Allahabad has been transferred to Crime Branch from the local police of Police Station Karchhana, District Allahabad;

b. Issue a writ, order or direction in the nature of mandamus commanding upon the earlier Investigating Officer of Police Station Karchhana, District Allahabad to proceed with the investigation of First Information Report dated 11.02.2015 bearing Case Crime No.80 of 2015, under Section 419, 420, 467, 468 I.P.C. Police Station Karchhana, District Allahabad, ignoring the investigation, if at all conducted by the police of Crime Branch, Allahabad;

c. Issue a writ, order or direction in the nature of mandamus restraining the Inspector, P.S. Crime Branch, Allahabad from filing any report under Section 173 Cr.P.C. in connection with the First Information Report dated 11.02.2015 bearing Case Crime No.80 of 2015, under Section 419, 420, 467, 468 I.P.C. Police Station Karchhana, District Allahabad."

While entertaining the writ petition this Court passed following order on 09.08.2016:

"Supplementary affidavit filed today by the learned counsel for the petitioner is taken on record.

Heard Anil Kumar Bajpai, learned counsel for the applicant and Shri Vikas Sahai, learned A.G.A. for the State.

This petition has been filed with a prayer for calling for the records of the order passed by the Senior Superintendent of Police, Allahabad on the application of the accused smt. Manjula Singh and quashing the same by which the investigation of the First Information Report dated 11.2.2015 lodged by the petitioner bearing case crime no. 80 of 2015 under sections 419, 420, 467, 468 I.P.C. P.S. Karchhana District Allahabad has been transferred to Crime Branch from the local police and further restraining the Inspector P.S. Crime Branch Allahabad from filing any report under section173 Cr.P.c. in connection with the First Information Report dated 11.2.2015 bearing case Crime No. 80 of 2015under sections 419, 420, 467, 468 I.P.C. P.S. Karchhana District Allahabad.

Learned counsel for the petitioner submits that petitioner is informant of the case and he has lodged the First Information Report against respondent nos. 6 to 9, who have filed the Criminal Misc. Writ Petition no. 20466 of 2015 which was disposed on 27.8.2015 and at the instance of Smt. Manjula Singh, who is daughter of respondent no.5 the case was transferred to the Crime Branch by the Senior Superintendent Police without giving any reason. He has further argued that the said order has not been supplied to the petitioner.In support of his contention he has placed reliance of the judgement of Apex Court in Sanjiv Rajendra Bhatt Vs. Union of India 2016(92) ACC496 and he has drawn attention of the court to the paragraph-54 of the judgement.

Notice on behalf of opposite party nos. 1 to 5 has been accepted by learned A.G.A.

Issue notice to opposite party nos. 6 to 9 returnable within four weeks at the address given in the application.

Opposite party no. 6 to 9 may file counter affidavit within four weeks. Learned A.G.A. may also file counter affidavit within the same period. Rejoinder affidavit may thereafter be filed within two weeks.

List on 19.9.2016.

Till the next date of listing, the operation of the order passed by the Senior Superintendent of Police, Allahabad shall remain stayed.If any order pass by Senior Superintendent of Police, Allahabad same shall be kept in abeyance."

It appears that by the time the order could be communicated to the concerned authority the chargesheet dated 29.07.2016 got filed in court on 15.08.2016 and the court took cognizance of the case.

We may point out here that chargesheet has been filed against the main accused Azad Singh, the 6th respondent under Section 420 I.P.C. in case crime no. 80 of 2015.

If we look at the sequence of events from lodging of the F.I.R. till the filing of chargesheet, we find that in the entire writ petition there is hardly any pleading questioning the investigation by police. The entire challenge is to the transfer of investigation as it is claimed to be at the behest of the complaint. As discussed above, we find that transfer of investigation from police to the crime branch is not without application of mind. Then the next plea is why CBI may not as an independent Agency be directed to conduct the investigation.

The power and jurisdiction of this Court as Constitutional law court for directing investigation by CBI of course, is there but such exercise of discretion will depend on facts of each case. There can be no general rule that as and when a petition is filed seeking direction receiving apprehension of investigation being not fair, this Court will ipso facto issue such direction. A mere apprehension will not become a truth. Fair investigation into the allegation made in the F.IR. by the informant/complaint is his fundamental right and equally a fundamental duty of investigating agency specially when controlled and governed by a Statute. The police Act takes sufficient care and code of criminal procedure lays down procedure ensuring accountability of the investigating officer. All this is aimed at instilling faith of the victim in particular and public at large in general. When a Constitutional provision guarantees that no body can be deprived of his life and liberty except in accordance with law, it only ensures that every act in public domain has to be governed by rule of law. Article 14 further guarantees equality, a fundamental right and whatever is arbitrary is hit by this Article.

Now the Constitutional law courts will have to test on the above stated basic principles every investigation to ensure whether it warranted interference and required investigation by Central Investigating Agency/ Independent Agency. The present writ petition was filed only on 05.08.2016, the date by which investigation in the case was already concluded by the Crime Branch and chargesheet was prepared on 29.07.2016. So the writ petition seeking quashing of an order of transfer of investigation which had already been given effect to and was carried out, virtually got rendered infructuous. It appears, the interim order was passed by this Court only because of lack of proper information regarding stage of investigation by Crime Branch, in the writ petition. The order staying the investigation that had already stood concluded, lost its significance in the given facts and circumstances of the case.

We have noticed that even after the counter affidavit was filed bringing to the notice of the petitioner as well, that investigation got concluded, the petitioner did not care to suitably amend the writ petition and asserted that entire chain of events after 05.08.2016 was a result of an act which would be wholly illegal and non est in the face of interim order of this court. Such a situation could have entitled the petitioner, in our opinion, at the most to initiate proceeding of a possible contempt but that was not resorted to. Since the chargesheet has been filed and court has taken cognizance of the case upon the said chargesheet, no further relief can be granted in the present writ petition, which according to our considered opinion got rendered infructuous.

Confronted with the query regarding cause of action if any, surviving in the present fact situation of the case, it goes without saying that petitioner has to raise basic pleadings indicating the inherent flaw in investigation which culminated into the submission of chargesheet. Learned counsel could not point out as to what prejudice is caused, except the plea that investigation could not have been transferred at the instance of accused person and main thrust is that investigation should be conducted by CBI to meet the ends of justice. Emphasizing the circumstances in the nature of rare and exceptional case the Supreme Court in the case of Dharam Pal v. State of Haryana and Others (2016) 4 SCC 160, vide paragraphs 16 to 18 has held thus:

"16. On a perusal of the said authority in Committee for Protection of Democratic Rights case, we really do not find any aspect which would support the stand put forth by the learned counsel for CBI. On the contrary, as we perceive, the Constitution Bench has laid great emphasis on instilling of faith of the victim and the public at large in the investigating agency. True it is, the facts in the said case were different and related to alleged crimes committed by certain State officials, but the base of confidence in investigation has been significantly highlighted.

17. In the context, we may profitably refer to a two-Judge Bench decision in Narmada Bai v. State of Gujarat (2011) 5 SCC 79. The Court, in the factual matrix of the case, has emphasised that: (SCC p. 99, para 59)

"59. ...If the majesty of the rule of law is to be upheld and if it is to be ensured that the guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust the investigation to CBI. "

18. A three-Judge Bench in K.V. Rajendran v. Supt. Of Police (2013) 12 SCC 480 reiterating the said principle stated that: (SCC p.485, para 13)

"13. ... 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."

In the case in hand as discussed earlier, we hardly find pleadings sufficient enough to bring this case in the category of rare and exceptional case. The disputed questions of fact regarding execution of sale deed on the ground of fraud and forgery is already drawing attention of civil court admittedly in civil suit. A sale deed is necessarily required to be cancelled by a court of competent jurisdiction and unless and until it is cancelled by a lawfully executable decree, it is a valid instrument of conveyance and transfer of title holds good in law. In civil suit parties will lead evidence for and against to prove or disprove the act of sale and no amount of police investigation in criminal law is going to have bearing in civil proceedings.

He admitted that sale deeds that he has questioned in the F.I.R. has already been challenged in the civil suit which is in progress. A factual controversy about a document to be void or voidable renders the issue debatable and no definite opinion can be given so as to warrant an eminent action in criminal law. The veracity of an instrument of conveyance is a matter of civil adjudication, and of course, fraud being proved by a decree can invite an action in criminal law against the erring person. Such a case, therefore, in our considered opinion, does not fall in the category of those cases where investigation by an agency of the status of Central Bureau of Investigation could be said to be warranted. An act of fraud, if alleged, resulted in a dispute between the two individuals, is not of such significance as may be termed as an act in realm of public duty and prejudicial to public interest requiring investigation by some independent agency.

Recently a Division Bench of this court in case of Kumari Aayasha Vs. State of U.P. and others [2018 (1) ADJ 85 (DB)] declined to interfere with the order of S.S.P., Muzzaffarnagar transferring investigation to C.B.C.I.D. from local police as it found the decision of S.S.P. not vitiated in law. This court clearly outlined the principle that unless a decision making process was too unreasonable to be upheld, the court will be reluctant to go for judicial review of such a decision making.

Moreover, petitioner through his pleadings as raised in the writ petition has not been able to demonstrate as to how the investigation transferred to Crime Branch has resulted in an unreasonable and arbitrary exercise of power by the competent authority. The competence being not questionable, the action is to be tested on the anvil of Article 14 of the Constitution. As the courts have reiterated time and again whatever is arbitrary is hit by Article 14, we hardly find any traces of arbitrariness in the administrative action sought to be impugned in the present writ petition. The consideration that have weighed the decision of the higher authorities, competent to take action, show that there has been due application of mind.

Apart from above, we may refer to the relevant provisions of Cr.P.C. that take full care of fair investigation and fair trial. The provisions as contained under Section 173 (8), 311 and 819 read as under:

"173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

311. Power to summon material witness, or examine person persent- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

319. Power to proceed against other persons appearing to be guilty of offence- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committeed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. "

Looking to the above quoted provisions, we find that Cr.P.C. lays down a very comprehensive procedure to deal with any requirement to do whatever is necessary procedurally in order to do complete justice. Explaining away the powers of the Magistrate after taking cognizance on police report submitted under Section 173 as a prolific legislative intendment in bringing about detail procedural stages prescribed in Cr.P.C., the Apex Court in the case of Amrutbhai Shambhubhai Patel (2017) 4 SCC 177 held thus:

"29. The question that fell for appraisal in Randhir Singh Rana v. State (Delhi Admn.), (1997) 1 SCC 361 was as to whether a Judicial Magistrate, after taking cognizance of an offence, on the basis of a police report and after appearance of the accused in pursuance of the process issued, can order of its own, further investigation in the case. The significantly additional feature of this query is the stage of the proceedings for directing further investigation in the case i.e. after the appearance of the accused in pursuance of the process already issued. This Court reiterated that such power was available to the police, after submission of the charge-sheet as was evident from Section 173(8) in Chapter XII of the Code, 1973. That it was not in dispute as well that before taking cognizance of the offence under Section 190 of Chapter XIV, the Magistrate could himself order investigation as contemplated by Section 156(3) of the Code was noted as well. This Court also noticed the power under Section 311 under Chapter XXIV to summon any person as a witness at any stage of an inquiry/trial or other proceedings, if the same appeared to be essential to the just decision of the case.

30. It recalled its earlier rendering in Tula Ram and others v. Kishore Singh, (1977) 4 SCC 459 to the effect that the Magistrate could order investigation under Section 156(3) only at the pre-cognizance stage under Sections 190, 200 and 204 Cr.P.C and that after he decides to take cognizance under the provisions of Chapter XIV, he would not be entitled in law to order any investigation under Section 156(3), and further though in cases not falling within the proviso to Section 202, he could order such investigation by the police, the same would be in the nature of an inquiry only as contemplated by Section 202.

31. This Court also recounted its observations in Ram Lal Narang v. State (Delhi Admn.) (1979) 2 SCC 322 to the effect that on the Magistrate taking cognizance upon a police report, the right of the police to further investigate even under the 1898 Code was not exhausted and it could exercise such right often as necessary, when fresh information would come to light. That this proposition was integrated in explicit terms in sub-Section (8) of Section 173 of the new Code, was noticed. The desirability of the police to ordinarily inform the Court and seek its formal permission to make further investigation, when fresh facts come to light, was stressed upon to maintain the independence of the judiciary, the interest of the purity of administration of criminal justice and the interest of the comity of the various agencies and institutions entrusted with different stages of such dispensation.

32. The pronouncement of this Court in Devarapalli Lakshminarayana Reddy and others v. V. Narayana Reddy and others, (1976) 3 SCC 252 emphasizing on the distinction in the power to order police investigation under Section 156(3) and under Section 202(1) Cr.P.C, was referred to. It was ruled that the two powers operate in separate distinct spheres at different stages, the former being exercisable at the pre-cognizance stage and the latter at the post-cognizance stage when the Magistrate is in seisin of the case. It was underlined that in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) could be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a), but once such cognizance is taken and he embarks upon the procedure embodied in Chapter XV, he would not be competent to revert to the pre-cognizance stage and avail Section 156(3). On the other hand, it was observed that Section 202 would be invocable at a stage when some evidence has been collected by the Magistrate in the proceedings under Chapter XV, but is deemed to be insufficient to take a decision as to the next step and in such an event, the Magistrate would be empowered under Section 202 to direct, within the limits circumscribed by that provision, an investigation for the purpose of deciding whether or not, there is sufficient ground for proceeding. It was thus exposited that the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing the proceedings already instituted upon a complaint before him. It was thus concluded on an appraisal of the curial postulations abovereferred to, that the Magistrate of his own, cannot order further investigation after the accused had entered appearance pursuant to a process issued to him subsequent to the taking of the cognizance by him.

33. The scope of the judicial audit in Reeta Nag v. State of W.B. (2009) 9 SCC 129, to reiterate, was whether, after the charge-sheet had been filed by the investigating agency under Section 173(2) Cr.P.C, and charge had been framed against some of the accused persons on the basis thereof, and other co-accused had been discharged, the Magistrate could direct the investigating agency to conduct a reinvestigation or further investigation under sub-Section (8) of Section 173. The recorded facts revealed that the Magistrate had in the contextual facts directed for re-investigation and to submit a report, though prior thereto, he had taken cognizance of the offences involved against six of the original sixteen accused persons, discharging the rest. The informant had thereafter filed an application for re-investigation of the case and the prayer was acceded to. This Court referred to its earlier decisions in Sankatha Singh and others v. State of Uttar Pradesh, AIR 1962 SC 1208 and Master Construction Company (P) Ltd. v. State of Orissa and another, AIR 1966 SC 1047 to the effect that after the Magistrate had passed a final order framing charge against some of the accused persons, it was no longer within his competence or jurisdiction to direct a reinvestigation into the case. The decision in Randhir Singh Rana v. State (Delhi Admn.), (997) 1 SCC 361, which propounded as well that after taking cognizance of an offence on the basis of a police report and after the appearance of the accused, a Magistrate cannot of his own order further investigation, though such an order could be passed on the application of the investigating authority, was recorded. It was reiterated with reference to the earlier determination of this Court in Dinesh Dalmia v. CBI, (2007) 8 SCC 770 that the power of the investigating officer to make a prayer for conducting further investigation in terms of Section 173(8) of the Code was not taken away only because a charge-sheet had been filed under Section 173(2) and a further investigation was permissible even if cognizance had been taken by the Magistrate. This Court, therefore summed up by enouncing that once a charge-sheet was filed under Section 173(2) Cr.P.C and either charges have been framed or the accused have been discharged, the Magistrate may on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authority, permit further investigation under Section 173(8), but he cannot suo motu direct a further investigation or order a re-investigation into a case on account of the bar of Section 167(2) of the Code. It was thus held that as the investigating authority did not apply for further investigation and an application to that effect had been filed by the defacto complainant under Section 173(8), the order acceding to the said prayer was beyond the jurisdictional competence of the Magistrate. It was, however observed, that a Magistrate could, if deemed necessary, take recourse to the provisions of Section 319 Cr.P.C at the stage of trial.

34. This decision reinforces the view that after cognizance is taken by the Magistrate on the basis of a report submitted by the police on the completion of the investigation, no direction for further investigation can be made by the Magistrate suo motu and it would be permissible only if such a request is made by the investigating authority on the detection of fresh facts having bearing on the case and necessitating further exploration thereof in the interest of complete and fair trial. "

In view of the law stated above and the wide scope of Section 311 and 319 of Cr.P.C., we are of the opinion that petitioner herein has ample opportunity to have recourse to law to enforce his alleged Rights, if so advised. We having not found any inherent lacunae in the investigation that concluded in filing of the chargesheet and the court having already taken cognizance, inasmuch as petitioner having failed to make out a case for any further investigation by any other agency. In view of the above discussions, we decline to interfere and exercise any discretion to direct for any further investigation by any other agency including CBI.

Writ petition is accordingly dismissed.

Order Date :- 30.05.2018

S. Thakur