Kushal Agarwal vs Mahendra Kumar Jain & Ors
2022 Latest Caselaw 4830 Cal

                 IN THE HIGH COURT AT CALCUTTA
                   CIVIL APPELLATE JURISDICTION
                            (Appellate Side)

                                                  MAT 922 of 2022
                                                  IA No. CAN 1 of 2022
                                                         CAN 2 of 2022

                                                  Reserved on: 13.07.2022
                                                  Pronounced on: 28.07.2022


Kushal Agarwal
                                                                 ...Appellant
                                     -Vs-
Mahendra Kumar Jain & Ors.


                                                                ...Respondents
Present:-
            Mr. Parag Tripathi, Sr. Advocate
            Mr. Ankit Agarwal,
            Mr. Srinivasan Ramaswamy,
            Mr. Nilay Sengupta,
            Mr. Sujit Banerjee, Advocates
                                     ... for the appellant
            Mr. Kalyan Banerjee, Sr. Advocate
            Mr. Debanjan Mandal,
            Mr. Anuj Singh,
            Mr. Ajay Agarwal,
            Mr. Somopriyo Chowdhury,
            Mr. Sanket Sarawgi,
            Mr. Arka Banerjee, Advocates
                                     ... for the respondent No.1
            Mr. Amitesh Banerjee, Sr. Advocate
            Mr. Chama Mukherjee,
            Mr. Siraj Gooptu, Advocates
                                     ... for the State


       Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA,
                                         CHIEF JUSTICE
                 THE HON'BLE JUSTICE RAJARSHI BHARADWAJ,
                                                   JUDGE

       Prakash Shrivastava, CJ:

       1.   This appeal is at the instance of one of the accused challenging the

       order of the learned Single Judge dated 14.06.2022 whereby W.P.A. No.
                                 2                            MAT 922 of 2022


17293 of 2021filed by the complainant has been allowed and a Special

Investigation Team has been formed to investigate the offences.

2.   Facts

in nutshell are that appellant was married to Rashika Jain

(daughter of respondent no. 1) on 09.02.2020. It is stated that on

16.02.2021 Rashika Jain fell down from the terrace of the appellant's

apartment and was taken to Woodlands Hospital and she had died on the

same day. Respondent No. 1 had lodged a complaint with the police on

17.02.2021 on the basis of which FIR No. 15/21 at Alipore Police

Station for the offences under Sections 306, 498A, 34 of the IPC was

registered. Respondent No. 1 on or about 7th of October, 2021 had filed

W.P.A. No. 17293 of 2021 raising grievance against the unsatisfactory

investigation and making a prayer for constituting the Special

Investigation Team to investigate the offences in Alipore Police Station

Case No. 15 of 2021. By the order under challenge, learned Single

Judge has allowed the prayer.

3. Submission of the learned Counsel for the appellant is that the writ

petition filed by the respondent No.1 was not maintainable because he

had filed an application under Section 156(3) of the Cr.P.C. and without

disclosing this fact, simultaneously, he had invoked the writ jurisdiction.

He further submits that even otherwise in respect of the grievance

relating to improper investigation the writ petition was not maintainable

and the appropriate remedy was to approach the Judicial Magistrate and

in support of his submission he has placed reliance upon the judgment

of the Hon'ble Supreme Court in the matter of Sakiri Vasu vs. State of

Uttar Pradesh and Others reported in (2008) 2 SCC 409, in the matter

of Sudhir Bhaskarrao Tambe vs. Hemant Yashwant Dhage and

Others reported in (2016) 6 SCC 277 and in the matter of M.

3 MAT 922 of 2022

Subramaniam and Another vs. S. Janaki and Another reported in

(2020) 16 SCC 728. He has further submitted that before the learned

Single Judge, order of the Judicial Magistrate dated 06.05.2022 was not

produced wherein learned Judicial Magistrate had recorded satisfaction

about the investigation and the said order has not been dealt with by the

learned Single Judge. He has also submitted that merely because in the

application before the Judicial Magistrate, respondent no. 1 had not

mentioned any provision of law that will not make any difference as the

contents of the application reveal that it was an application under

Section 156(3) of the Cr.P.C. and in support of his submission he has

placed reliance upon in the matter of P.K. Palanisamy vs. N.

Arumugham and Another reported in (2003) 9 SCC 173. He has also

submitted that on the groud of suppressing the order of the Judicial

Magistrate dated 06.05.2022, the writ petition itself is liable to be

dismissed and in support of his submission he has place reliance upon

the Division Bench order of the Delhi High Court in the matter of

Satish Khosla vs. Eli Lilly Ranbaxy Ltd. reported in 1988 (44) DRJ

(DB). He has raised the submission that the averment made by the

respondent No. 1 in the affidavit before this Court in respect of as to

what transpired before the learned Single Judge at the time of hearing

cannot be looked into as the same does not form part of the record of the

learned Single Judge. In support of his submission, he has placed

reliance upon the judgment of Hon'ble Supreme Court in the matter of

State of Maharashtra vs. Ramdas Shrinivas Nayak and Another

reported in (1982) 2 SCC 463. He has also submitted that learned Single

Judge has not examined the case diary and that delay in investigation is

attributable to the respondent No. 1 and in this regard he has submitted 4 MAT 922 of 2022

that the password of the seized mobile phone was belatedly supplied by

the respondent No. 1 and that other 4 queries raised in the

communication dated 10.02.2022 sent by the police to the respondent

No. 1 were not replied.

4. Learned Counsel for the respondent No. 1 has opposed the appeal

by submitting that a limited direction of constituting the SIT for

investigation has been issued by the learned Single Judge and the

appellant accused has no right to choose investigating agency and that

no appeal has been preferred by the State. He has further submitted that

entire arguments are focused on the appellant but there are 2 more

accused in the FIR against whom no action has been taken and police is

hand in glove with the accused. He has further submitted that the

warrant of arrest was issued only against the appellant, not against other

2 accused persons and even against the appellant no action has been

taken. He further submits that application filed before the Judicial

Magistrate was for monitoring the investigation and it was not an

application under Section 156(3) of the Cr.P.C. and that even otherwise

the Judicial Magistrate has no power to form SIT. He also submits that

about 11 months after making seizure of the iPhone on 10.02.2022

notice was issued by the police to respondent No. 1 to provide the

password which shows the inaction on the part of the police and the

password was immediately provided on 22.02.2022. He also submits

that the Advocates for the appellant had appeared before the learned

Single Judge and were present at the time of argument but they did not

mark their appearance. He also submits that the order of the Judicial

Magistrate was duly brought to the notice of the learned Single Judge

and that the order under challenge is only an interlocutory order. In 5 MAT 922 of 2022

support of his submission that victim also has a right of speedy trial, he

has relied upon the judgment in the matter of Dilawar vs. State of

Haryana and Another reported in (2018) 16 SCC 521. In support of

his submission that accused has no right of choose investigating agency,

he has also placed reliance in the matter of Union of India and

Another vs. W.N. Chadha reported in 1993 Supp (4) SCC 260, in the

matter of Romila Thapar and Others vs. Union of India and Others

reported in (2018) 10 SCC 753. In support of his submission that

Judicial Magistrate has limited power under Section 156(3) of the

Cr.P.C., he has place reliance upon in the matter of Chandra Babu

Alias Moses vs. State Through Inspector of Police and Others

reported in (2015) 8 SCC 774. He has also place reliance upon in the

matter of Arnab Ranjan Goswami vs. Union of India and Others

reported in (2020) 14 SCC 12, in the matter of Gujarat Steel Tubes

Ltd. and Others vs Gujarat Steel Tubes Mazdoor Sabha and Others

reported in AIR 1980 SC 1896, and in the matter of State of West

Bengal and Others vs. Committee For Protection of Democratic

Rights, West Bengal and Others reported in (2010) 3 SCC 571.

5. Learned Counsel for the State has submitted that the delay in

obtaining the CFSL report is normal as there is a long queue in CFSL.

He has further submitted that the present SIT is investigating the

offences and the stand of the State is neutral, neither supporting the

appellant nor the respondent No. 1.

6. We have heard the learned Counsel for the parties and perused the

record.

7. Undisputed position is that the daughter of the respondent No. 1

was married to the appellant on 09.02.2020 and on 16.02.2021 she had 6 MAT 922 of 2022

died allegedly on account of falling from the terrace of the appellant's

apartment. It is also not in dispute that the FIR 15 of 2021 for offences

under Section 306, 498A, 34 of the IPC was registered at Police Station

Alipore on 17.02.2021. Till the passing of the order of the learned

Single Judge on 14.06.2022 i.e. almost after 15 months of registration of

the FIR, the investigation was not completed and charge sheet was not

filed.

8. The allegation that the investigation was delayed due to the

respondent No. 1 is not substantiated as the only document which is

brought to the notice of this Court is the communication dated

10.02.2022 sent after more than a year of registration of the offence, to

the respondent No. 1 requiring him to furnish certain information

including the passwords of the iPhone which was seized. The passwords

in the separate sealed envelope were provided by the respondent No. 1

vide communication dated 23.02.2022, therefore on this basis we cannot

hold that the respondent No. 1 had delayed the investigation.

9. Learned Single Judge in the order under appeal has taken note of

the social position of the parties and issue of delay. It has been found

that the investigation has been rather slow and directionless. The

respondent No. 6 in the writ petition i.e. the investigating officer has

been found to be lacking in experience and also having lack of adequate

support and machinery. In the said background, learned Single Judge,

considering the gravity of offences and the delay, had opined that the

Special Investigation Team consisting of senior and experienced police

officers should be constituted. It is worth noting that the respondent No.

6 is also a part of the SIT. Learned Single Judge has not transferred the

investigation to any outside agency but the SIT is headed by the Special 7 MAT 922 of 2022

Commissioner of Police (II), Kolkata Police who has been directed to

constitute her own team of competent officers to take over the

investigation.

10. Hon'ble Supreme Court in the matter of W.N. Chadha (supra) in

paragraph 92 has held that the accused has no right to have any say as

regards the manner and method of investigation and also has no

participation as a matter of right during the course of investigation of a

case instituted on a police report till the investigation culminates in

filing final report under Section 173(2) of the Code.

11. In the matter of Romila Thapar and Others (supra), the position

of law that the accused has no right with reference to manner of

investigation has been reiterated as under:

"25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary." (emphasis supplied)

26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: (SCC pp. 370-

71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai 8 MAT 922 of 2022

Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."

12. In the matter of Arnab Ranjan Goswami (supra) in paragraph

52, the Hon'ble Supreme Court has taken the view that the displeasure

of an accused person about the manner in which the investigation

proceeds or an unsubstantiated allegation of a conflict of interest against

the police conducting the investigation must not delay the legitimate

course of law and warrant the invocation of the extraordinary power of

the Court to transfer the investigation to CBI.

13. Hence, in view of the aforesaid judicial pronouncement, it is not

open to the appellant to raise a complaint against the direction of the

learned Single Judge to constitute the SIT specially when no prejudice is

shown to have been caused to the appellant on account of such a

direction.

14. The investigation is apparently delayed in the present case and

Hon'ble Supreme Court in the matter of Dilawar (supra) has held that

no investigating agency can take unduly long time in completing the 9 MAT 922 of 2022

investigation and that speedy investigation is recognized as a part of

fundamental right of fair procedure under Article 21 of the Constitution.

15. So far as the arguments raised by the learned Counsel for the

appellant that the respondent No. 1 had already availed the remedy

under Section 156(3) of the Cr.P.C., therefore, writ cannot be

maintained, we find that under Section 156(3) of the Cr.P.C. Judicial

Magistrate does not have power to constitute SIT. The Hon'ble Supreme

Court in the matter of Chandra Babu Alias Moses (supra) in

paragraph 21 has taken note of the wider power of the superior Court to

direct further, fresh, de novo investigation etc. under Section 482 of the

Code and it has been found that Judicial Magistrate can only direct

further investigation.

16. That apart, a perusal of the order of the learned Single Judge also

reveals that the order of the Judicial Magistrate passed under Section

156(3) of the Cr.P.C. rejecting the prayer for day to day monitoring of

the investigation was brought to the notice of the learned Single Judge

by the learned Senior Counsel appearing for the State and the police

report in this regard was also taken on record. Hence, the submission of

learned Counsel for the appellant based upon the judgment in the case of

Sakiri Vasu (supra), Sudhir Bhaskarrao Tambe (supra), M.

Subramaniam and Another (supra) in respect of the remedy before

the Judicial Magistrate are of no help to them. Similarly, no benefit can

be extended to the appellant on the basis of the Division Bench

judgment in the case of Satish Khosla (supra) to the appellant as the

order of the Judicial Magistrate under Section 156(3) of the Cr.P.C. was

before the Single Bench.

10 MAT 922 of 2022

17. Counsel for the appellant relying upon the judgment in the matter

of P.K. Palanisamy (supra) has raised an issue that even if in the

application filed before the Judicial Magistrate for monitoring the

investigation, no provision of law was mentioned, then also it can be

ascertained from the contents thereof that it was an application under

Section 156(3) of the Cr.P.C. In the case of P.K. Palanisamy (supra)

well-settled principle of law has been reiterated and non-mentioning of a

provision does not invalidate the order if the Court or statutory authority

had a requisite jurisdiction therefor. In the present case there is no issue

of invalidation of order passed by the Judicial Magistrate dated

06.05.2022. Even otherwise if the proceedings were taken up before the

Judicial Magistrate under Section 156(3) of the Cr.P.C. that would not

take away right of the respondent No. 1 to file a writ petition seeking

investigation by SIT because such a power does not exist with the

Judicial Magistrate.

18. So far as the allegation of the respondent No. 1 as contained in

affidavit in opposition that the Counsel for the appellant were present in

the Court at the time of hearing by the learned Single Judge, we find

that it is not substantiated by the order of the learned Single under

challenge mentioning the appearance of counsel for the parties,

therefore, such a contention cannot be accepted. Hon'ble Supreme Court

in the matter of Ramdas Shrinivas Nayak and Another (supra) has

held that the Court cannot launch into the enquiry as to what transpired

in the Court below. Public policy bars and the Judicial decorum also

restricts it as the matters of judicial record are unquestionable and are

not open to doubt.

11 MAT 922 of 2022

19. It is also worth noting that this being an intra-court appeal, once

the view taken by the learned Single Judge is found to be possible and

proper view, then no case for interference is made out. Hon'ble

Supreme Court in the matter of Gujarat Steel Tubes Ltd. and Others

(supra) in paragraph 73 has held that Appellate Court interferes not

when the order appealed is not right but only when it is clearly wrong

and that the difference is real, though fine.

20. Having regard to the above analysis, we find no error in the order

of the learned Single Judge and no ground for inference is made out.

The appeal is accordingly dismissed.

21. Any observation made in this order or in the order of the learned

Single Judge will not prejudice the rights of the parties in trial.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE

Kolkata 28.07.2022 ________ PA(SS)

(A.F.R. / N.A.F.R.)