Karnataka High Court
Sri Basavaraj Shivappa Muttagi vs State Of Karnataka on 16 October, 2021
Author: B.Veerappa And Gowda
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
WRIT PETITION No.51012/2019 (GM-RES)
C/W
WRIT PETITION Nos.52575/2019, 15828/2021, 16081/2021,
16088/2021 (GM-RES)
IN WP 51012/2019:
BETWEEN:
SRI BASAVARAJ SHIVAPPA MUTTAGI,
S/O SHIVAPPA MUTTAGI,
AGED ABOUT 37 YEARS,
R/O MANAGUNDI VILLAGE,
DHARWAD TALUK,
DHARWAD DIST. - 580 001.
...PETITIONER
(BY SRI SRIKANTH PATIL, ADVOCATE (PHYSICAL HEARING))
AND:
1. STATE OF KARNATAKA,
THROUGH ADDL. CHIEF SECRETARY,
2
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH,
NO.36, BELLARY ROAD,
GANGANAGAR,
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI PRABHULING K NAVADGI, ADVOCATE GENERAL
ALONGWITH SRI H.R. SHOWRI, HCGP FOR R1 (PHYSICAL
HEARING)
SRI S.V. RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
ALONGWITH SRI P. PRASANNA KUMAR, ADVOCATE FOR R2;
(VIDEO CONFERENCING)
SRI VIVEK S REDDY SENIOR COUNSEL FOR
SRI DEEPAK SHETTY, ADVOCATE FOR IMPLEADING RESPONDENT
ON IA 1/2021 (PHYSICAL HEARING)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 06.09.2019, PASSED BY THE R-1, ACCORDING SANCTION
TO THE CENTRAL BUREAU OF INVESTIGATION, TO CONDUCT
FURTHER INVESTIGATION WITH RESPECT TO CRIME NO.135/2016,
REGISTERED WITH THE DHARWAD SUB-URBAN POLICE STATION,
DHARWAD, VIDE ANNEXURE-A AND QUASH THE FIR DATED
24.09.2019 VIDE ANNEXURE-B.
IN WP 52575/2019:
BETWEEN:
MR. VINAYAK,
S/O SRI BASAVARAJA KATAGI,
AGED ABOUT 37 YEARS,
R/O DHARWAD BASAPPA CHOWK,
3
KURUBARA ONI,
DHARWAD-580029.
...PETITIONER
(BY SRI C.H. JADHAV, SENIOR COUNSEL FOR
SRI SHIVAYOGESH, ADVOCATE (VIDEO CONFERENCING)
AND:
1. STATE OF KARNATAKA,
THROUGH ADDL. CHIEF SECRETARY,
HOME DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH,
NO.36, BELLARY ROAD,
GANGANAGAR,
BANGALORE - 560 032.
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
BANGALORE-560001.
...RESPONDENTS
(BY SRI PRABHULING K NAVADGI, ADVOCATE GENERAL
ALONGWITH SRI H.R. SHOWRI, HCGP FOR R1 (PHYSICAL
HEARING)
SRI S.V. RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
ALONGWITH SRI P. PRASANNA KUMAR, ADVOCATE FOR R2 (VIDEO
CONFERENCING)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 06.09.2019, PASSED BY THE R-1, ACCORDING SANCTION
TO THE CENTRAL BUREAU OF INVESTIGATION, TO CONDUCT
4
FURTHER INVESTIGATION WITH RESPECT TO CRIME NO.135/2016,
REGISTERED WITH THE DHARWAD SUB-URBAN POLICE STATION,
DHARWAD, VIDE ANNEXURE-A AND QUASH THE FIR DATED
24.09.2019 VIDE ANNEXURE- B.
IN WP 15828/2021:
BETWEEN:
VINAY KULKARNI,
S/O RAJSHEKARAPPA KULKARNI,
AGED ABOUT 52 YEARS,
R/AT NAYAKNUR, NAVALGUND TALUQ,
DHARWAD DISTRICT-580002.
...PETITIONER
(BY SRI MUKUL ROHTAGI, SENIOR COUNSEL FOR
SRI GIRISH GANAPATHRAO NILEGAR, ADVOCATE(VIDEO
CONFERENCING)
AND:
1. STATE OF KARNATAKA,
THROUGH ITS SECRETARY MINISTRY
OF HOME AFFAIRS, ,
VIDHANA SOUDHA,
BENGALURU - 560 001.
2. CENTRAL BUREAU OF INVESTIGATION,
ANTI CORRUPTION BRANCH,
THROUGH ITS DIRECTOR,
NO.36, BELLARY ROAD,
GANGANAGAR,
BANGALORE - 560 032.
...RESPONDENTS
5
(BY SRI TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA
ALONGWITH SRI H.R. SHOWRI, HCGP FOR R1;(VIDEO
CONFERENCING)
SRI S.V. RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
ALONGWITH SRI P. PRASANNA KUMAR, ADVOCATE FOR R2(VIDEO
CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.09.2019 BEARING NO. HD 48 PCB
2016, ENTRUSTING THE MATTER TO THE 2ND RESPONDENT,
UNDER SECTION 6 OF DELHI SPECIAL POLICE ESTABLISHMENT
ACT 1946, FOR FURTHER INVESTIGATION (ANNEXURE - A) AS
VOID AND CONSEQUENTLY AND QUASH THE FIR (RE-REGISTERED)
BY THE 2ND RESPONDENT DATED 24.09.2019 BEARING NO. RC
17(S)/2019/CBI/ACB/BLR AT ANNEXURE - H.
IN WP 16081/2021:
BETWEEN:
SHRI SOMASHEKAR,
S/O BASAPPA NYAMAGOUDA
AGED 53 YEARS,
OCC. GOVERNMENT SERVANT
(NOW UNDER SUSPENSION)
R/AT NO. KADAKOL VILLAGE AND POST,
JAMAKHANDI TALUK,
BAGALKOT - 587 119.
...PETITIONER
(BY SRI S.M. CHANDRASHEKAR, SENIOR COUNSEL FOR
SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE (PHYSICAL
HEARING )
6
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOME AFFAIRS
STATE OF KARNATAKA
VIDHAN SOUDHA
BENGALURU - 560 001
REPRESENTED BY ITS HOME SECRETARY.
2. THE CENTRAL BUREAU OF INVESTIGATION
ATNI CORRUPTION BRANCH
NO.16, BALLARI ROAD
GANGANAGAR, BENGALURU - 560 032.
REPRESENTED BY ITS DIRECTOR
...RESPONDENTS
(BY SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL
ALONGWITH SRI H.R. SHOWRI, HCGP FOR R1 (PHYSICAL
HEARING)
SRI S.V. RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
ALONGWITH SRI P. PRASANNA KUMAR, ADVOCATE FOR R2(VIDEO
CONFERENCING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
DATED 06.09.2019 PASSED BY R1 PRODUCED AT ANNEXURE-G
AND CONSEQUENTLY, QUASH THE FIRST INFORMATION REPORT
(RE-REGISTERED) BEARING NO.RC.17(S)/2019 DATED 24.09.2019
REGISTERED BY R2 AT ANNEXURE-H AND ORDER ON REMAND
APPLICATION DATED 08.07.2021 WHEREIN THE PETITIONER IS
ARRAIGNED AS ACCUSED NO.21 PRODUCED AT ANNEXURE-K IN
SO FAR AS THE PETITIONER IS CONCERNED FOR THE OFFENCES
PUNISHABLE U/S 120B, 302, 201, 143, 147, 148 R/W SECTION 149
7
OF IPC AND ALL PENDING AND FURTHER PROCEEDINGS PURSUANT
THERETO.
IN WP 16088/2021:
BETWEEN:
SRI CHANDRASHEKAR INDI,
S/O SHARANABASAPPA INDI,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O NO.27, SHANKESHWAR VILLA,
II CROSS, ATHANI ROAD,
VIJAYAPURA, KARNATAKA -586108.
(NOW ON BAIL)
...PETITIONER
(BY DR. ASHWANI KUMAR, SENIOR COUNSEL FOR
SRI CHANDRAMOULI H. S., ADVOCATE(VIDEO CONFERENCING))
AND:
1. THE STATE OF KARNATAKA
THROUGH THE
ADDL. CHIEF SECRETARY
HOME DEPT.
VIDHANA SOUDHA,
BENGALURU-560001.
2. THE CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH
NO.36, BELLARY ROAD,
GANGANAGAR,
BENGALURU-560032.
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU-560001
8
3. THE STATE OF KARNATAKA
BY DHARWAD SUB URBAN P S
REP BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNTAKA
BENGALURU-560001
...RESPONDENTS
(BY SRI PRABHULING K. NAVADGI, ADVOCATE GENERAL
ALONGWITH SRI H.R. SHOWRI, HCGP FOR R1;(PHYSICAL
HEARING)
SRI S.V. RAJU, ADDITIONAL SOLICITOR GENERAL OF INDIA
ALONGWITH SRI P. PRASANNA KUMAR, ADVOCATE FOR R2 (VIDEO
CONFERENCING))
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
SANCTION ORDER DATED 06.09.2019 IN ANNEXURE-F BEARING
NO.HD 48 PCB 2016 ACCORDING SANCTION TO CBI TO CONDUCT
FURTHER INVESTIGATION AND TO QUASH THE FIR BEARING NO.
RC 17(S)/2019/CBI/ACB/BLR REGISTERED BY R-2 QUA THE
PETITIONER AND ALL THE CONSEQUENT PROCEEDINGS ARISING
THERE FROM.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, B.VEERAPPA J., PASSED THE FOLLOWING:
9
ORDER
(i) Writ Petition No.51012/2019 is filed by Accused No.1 -
Basavaraj Shivappa Muttagi;
(ii) Writ Petition No.52575/2019 is filed by Accused No. 5 -
Vinayak;
(iii) Writ Petition No.15828/21 is filed by Accused No.15 -
Vinay Kulkarni;
(iv) Writ Petition No.16088/21 is filed by Accused No.16 -
Chandrashekar Indi; and
(v) Writ Petition No.16081/21 is filed by Accused No.21 -
Somashekar.
I - Facts of the case
2. This is a classic case where the political parties and the
Police authorities have tried to misuse their power to bury the truth
in respect of an unnatural death of one Yogishgouda goudar.
3. These writ petitions are filed by the accused persons
stated supra under Articles 226 and 227 of the Constitution of India
r/w Section 482 of the Code of Criminal Procedure, praying for a
writ in the nature of certiorari to quash the Government Order
dated 6.9.2019 made in HD 48 PCB 2016 as per Annexure-A,
according sanction to the Central Bureau of Investigation ('CBI' for
short), under Section - 6 of Delhi Special Police Establishment Act,
1946, to conduct further investigation with respect to Crime
No.135/2016, registered with the Dharwad Sub-Urban Police
Station, Dharwad for the offence punishable under Section 302 of
IPC and writ in the nature of certiorari to quash the FIR dated
24.6.2019 bearing No.RC 17(S)/2019/CBI/ACB/BLR as per
Annexure - B.
4. The genesis of the present case lies in FIR bearing
No.135/2016, which came to be registered with the Dharwad Sub-
Urban Police Station in pursuance to an information dated
15.6.2016, preferred by one Smt. Mallavva w/o Yogishgouda
Goudar, wherein it was alleged that her husband i.e., deceased was
actually involved in politics and due to his political activities, the
deceased Yogishgouda Goudar had prior to 2 days from the date of
incident, received an anonymous letter threatening him that, he
would be murdered just like his elder brother - late Sri Udaygowd
Gowdar. It is further alleged that the deceased Yogishgouda
Goudar had around 25 criminal cases pending in five Police
Stations, which includes six murder cases. Further, he is also listed
as 'Rowdy' in Dharwad Rural and other Police Stations and there
were 12 criminal cases in Dharwad Rural Police Station, 6 criminal
cases in Navalgund Police Station, one criminal case in Garaga
Police Station, 2 criminal cases in Dharwad New Town Police Station
and four criminal cases in Dharwad City Police Station for various
offences registered against him.
5. It was further alleged that the deceased Yogishgouda
Goudar had ignored threatening letter and had been going on with
his day to day affairs, which included attending Gym at 7.30 am in
the morning. It was further alleged that on 15.6.2016, when the
deceased Yogishgouda Goudar, had proceeded to Gym, and when
he was about to enter the Gym, some unknown persons had
assaulted him with weapons and caused his death. On such
allegation, the Dharwad Sub-Urban Police had registered the
information dated 15.6.2016, as FIR No.135/2016 against unknown
persons for the offence punishable under Section 302 of IPC. After
investigation, the Police filed the charge sheet against six accused
persons for the offences punishable under Sections 143, 147, 148,
120B, 302, 201 r/w Section 149 of IPC and advanced the
prosecution theory that, the petitioners/accused persons and the
deceased Yogishgouda Goudar, were known to each other and
were politically connected from rival parties. It was further alleged
by the police that, the Accused No.1 (petitioner in W.P.
No.51012/2019) had entered into an agreement to purchase the
lands to an extent of 25 acres 08 guntas in Belligatti village. It
was further alleged that, at that time, the deceased had interfered
and threatened the Accused No.1 that, in the event of him
purchasing the said lands, he would kill the Accused No.1. It was
further alleged that on such premise, the Accused No.1 had entered
into a conspiracy with Accused Nos.2 to 6 and on 15.6.2016, with a
premeditated intention to kill the deceased, had alongwith Accused
Nos.2 to 6 assaulted the deceased near the Gym and caused the
death of the deceased.
6. It is further contended that subsequent to the filing of the
final report by the jurisdictional Police, the mother of the deceased
i.e. Tungamma and brother of the deceased i.e. Gurunath Gouda,
had filed W.P. No.58183-184/2017 before High Court of Karnataka,
Dharwad Bench seeking writ of mandamus directing the
investigation in respect of the information dated 15.6.2016,
registered as FIR No.135/2016, with Dharwad Sub-Urban Police to
be transferred and conducted by CBI. Such a prayer was sought for
on the premise that, the jurisdictional Police had not conducted a
fair and impartial investigation and hence the resultant final report
was also defective and therefore further investigation into the said
matter was necessary by an independent agency like CBI. The
learned Single Judge of High Court of Karnataka, Dharwad Bench
on consideration of the writ petition, was pleased to dismiss the
same by the order dated 1.3.2019 and recorded a finding that
mother of the deceased i.e., Tungamma and the brother of the
deceased i.e., GurunathGouda, had not made out any grounds to
refer the matter to CBI. Being aggrieved by the order dated
1.3.2019 passed in the writ petition, SLP (Crl) Nos.5760-61/2019
was filed by the mother and brother of the deceased before the
Hon'ble Supreme Court and the same was dismissed by the order
dated 22.7.2019. Thus, the order dated 1.3.2019 passed in the
writ petition has reached finality.
7. In the meanwhile, the said matter in FIR 135/2016,
wherein, the final report was filed by the jurisdictional Police, had
been committed to the Court of IV Additional District & Sessions
Judge, Dharwad and was renumbered as S.C. No.50/2017 and 63
prosecution witnesses were examined (including the brother of the
deceased i.e., GurunathGouda) and the statements of the accused
persons under 313 of the Code of Criminal Procedure were recorded
and the matter was at the stage of arguments on behalf of the
accused. It is further contended that the brother of the deceased
i.e., GurunathGouda, had filed an application under Section 319 of
the Code of Criminal Procedure, seeking to include one Mr. Vinay
Kulkarni and Mr. Manjunath Basannavar, as additional accused in
the said case bearing S.C. No. 50/2017, pending on the file of the
IV Addl. District & Sessions Judge, Dharwad. The learned
Sessions Judge on consideration of the said application, has
dismissed the same by the order dated 26.8.2019 and said order
has reached finality.
8. It is further contended that when the situation was thus,
the respondent - State in utter disregard to the mandate laid down
by the Hon'ble Supreme Court in the case of Vinay Tyagi -vs-
Irshad Ali and others reported in (2013)5 SCC 762 and the
legislative mandate as laid down under Section 173(8) of the Code
of Criminal Procedure and with an intent to undo the dictum of this
Court in Writ Petition Nos.58183-184/2017 and the Hon'ble
Supreme Court in SLP (Crl.) NOs.5760-61/2019, has accorded
sanction to the CBI under Section 6 of the Delhi Police Special
Police Establishment Act, 1946 to conduct further investigation in
Crime No.135/2016, registered with the Dharwad Sub-Urban Police
Station. Thereafter, the 2nd respondent CBI without application of
mind and in gross negligence of the mandate as laid down by the
Hon'ble Supreme Court in the case of T.T. Anthony -vs- State of
Kerala and others reported in (2001)6 SCC 181, went ahead and
registered a separate FIR bearing No.RC.17(S)/19/CBI/ACB/BLR,
and is now indulging in investigating the subject matter of S.C.
No.50/2017, pending on the file of the IV Addl. District & Sessions
Judge, Dharwad.
9. The Accused No.1 had earlier filed Writ Petition
No.43770/2019 and Accused No.5 has preferred Writ Petition No.
50468/2019 challenging the very order dated 6.9.2019 passed by
the 1st respondent - State Government, referring the matter to the
2nd respondent CBI. When the matters were pending and being
heard, the 2nd respondent had registered the FIR on 24.9.2019 in
RC.17(S)/2019/CBI/ACB/BLR. When the matters stood thus, in
view of the subsequent developments and since no interim order
was granted, the petitioner in Writ Petition No.51012/2019 (i.e.,
Accused No.1) and petitioner in Writ Petition No.52575/2019 (i.e.,
Accused No.5) had filed memos to withdraw Writ Petition
Nos.43770/2019 and 50468/2019, with liberty to challenge the
impugned order dated 6.9.2019 as well as the FIR dated 24.9.2019
and the said writ petitions came to be dismissed as withdrawn with
liberty to file fresh petitions, comprehensively, challenging the
order dated 6.9.2019. Accordingly, the present writ petitions are
filed for the reliefs sought for.
II - Common statement of objections filed by the State in W.P.
No.51012/2019 c/w W.P. No.52575/2019
10. The state filed common objections in W.P.
No.51012/2019 c/w W.P. No.52575/2019. It is stated in the
objections that the State Government received a representation
from the brother of the deceased Yogishgouda Goudar dated
6.8.2019, wherein serious allegations were made regarding tainted
investigation, threatening of the witnesses by the Police Officer,
political interference including transfer of Public Prosecutor and
grave concerns were expressed. After considering the said
representation and the order passed by High Court of Karnataka,
Dharwad Bench in Writ Petition Nos.58183-184/2017 dated
1.3.2019 and considering the legal position in the matter,
Government of Karnataka has decided to refer further investigation
in Crime No.135/2016 of Dharwad Sub-Urban Police Station to CBI
vide Government Order dated 6.9.2019, in exercise of powers
under Section 6 of Delhi Special Police Establishment Act, 1946.
Assailing the said order, the petitioner in W.P. 51012/2019 (i.e.,
Accused No.1) has preferred a Writ Petition No.43770/2019 and the
petitioner in W.P. No.52575/2019 (i.e., Accused No.5) has
preferred Writ Petition No.50468/2019. Since no interim order was
granted, said writ petitions were withdrawn on 4.11.2019 and
25.11.2019 respectively. The present writ petitions were filed
seeking the very same prayer of writ of certiorari to quash the
Government Order dated 6.9.2019.
11. It is further contended that the petitioners in Writ
Petition Nos.51012/2019 and 52575/2019 are Accused Nos.1 and
5 respectively in Crime No.135/2016 of Dharwad Sub-Urban Police
Station. After investigation, the Police filed the charge sheet
against six accused persons in C.C. No.964/2016 on the file of the
Principal Civil Judge and Principal JMFC, Dharwad for having
committed the offences punishable under Sections 143, 147, 148,
120B, 302, 201 r/w Section 149 of IPC. After committal to the
Sessions Court, it was renumbered as S.C. No.50/2017 and
presently pending before the Special Court (CCH-82), Bengaluru in
Special Case No.565/2020.
12. It is further contended that the learned Single judge of
this Court was pleased to pass an interim order dated 21.11.2019,
thereby staying the operation of Annexures 'A' and 'B' to the Writ
Petition No.51012/019. Being aggrieved by the said order passed
by this Court, both the respondents have approached the Hon'ble
Supreme Court and 2nd respondent/CBI filed Special Leave Petition
(Criminal) No.1348/2020 and the Government of Karnataka has
filed Special Leave Petition (Criminal) No.2534/2020 and the
Hon'ble Supreme Court by an order dated 20.2.2020 was pleased to
pass an interim order staying the operation of the order dated
21.11.2019 passed by the learned Single Judge of this Court.
13. It is further contended that in view of the interim order
passed by the Apex Court, the investigation was conducted by the
CBI and new facts came to light and the CBI has filed two additional
charge sheets with new materials and arraying additional accused
persons and so far, there are 21 accused persons in the said case.
In view of the investigation material and since the report brought
on record, new and shocking facts of the case, the learned Special
Judge has taken cognizance of the additional materials as well. It is
further stated in the objections that in the course of further
investigation by CBI, it has come to light that some of the Police
officials including previous Investigating Officer, are also found to
be involved in the said case and they have also been arrayed as
Accused Nos.19 and 20. After considering the charge sheet
material, the Government of Karnataka has accorded sanction to
prosecute the said two accused persons as well and the
departmental enquiry has also been initiated against them by the
sanction accorded as per Government Order dated 9.8.2021. In
view of the above, much water has flowed since passing of the
order dated 6.9.2019 by the State Government (Annexure-A) and
that the Executive Order has now merged with the subsequent
material that came into light in the course of further investigation
and the judicial notice of the same has already been taken by the
Special Judge. Hence, the Government Order dated 6.9.2019 at
Annexure-A to the writ petition cannot be looked in isolation and
has to be considered keeping all the subsequent developments in
mind. Therefore, the writ petitions are liable to be dismissed.
14. The State Government further stated in the objections
that the representation dated 6.8.2019 given by brother of the
deceased contained detailed facts that have taken place, expressing
serious concern regarding loopholes in the investigation and also
tampering with the witnesses by Police authorities and suspecting
the political vengeances as a motive behind the murder and the
interference of the former Minister in the murder and also in the
investigation and administration of justice including transferring of
the Public Prosecutor, handling the case in a surprising manner by
making a special request to replace or transfer of Public Prosecutor
with a specific request to post a particular Public Prosecutor. The
letter contained several facts which had taken place subsequent to
dismissal order passed by High Court of Karnataka, Dharwad Bench
in Writ Petition Nos.58183-184/2017 dated 1.3.2019.
15. It is further stated in the objections that the letter prima
facie throws light on the fact that everything is not right in the
present investigation and investigation has not been conducted in a
fair manner and on being satisfied on the requirements of handing
over the further investigation at the hands of an independent
agency like CBI and on ascertaining the legal position about power
of the State to refer the matter to other agency for further
investigation even in the light of the order passed by High Court of
Karnataka, Dharwad Bench in W.P. NOs.58183-84/2017, the order
at Annexure-A to the writ petition is passed. There is no infirmity
or illegality or irregularity in the order passed by the State
Government as per Annexure-A. The new facts which have came to
light subsequent to the orders impugned in the writ petitions would
certainly justify the decision of the State to refer the matter for
further investigation to CBI and most of the concern expressed in
the representation dated 6.8.2019 turns out to be a genuine
concern. Therefore, the order at Annexure-A needs to be upheld
and the writ petitions are liable to be dismissed.
16. It is further contended that there are several facts,
which had taken place subsequent to fling of the writ petitions and
not brought to the notice of this Court and which were brought to
the notice of the State Government in the representation dated
6.8.2019, such as
(a) Transferring of the Public Prosecutor, who has
conducted the case just before the recording of
statement of accused under Section 313 of the Code
of Criminal Procedure;
(b) Replacing the said Public Prosecutor with another
Public Prosecutor, who has not at all conducted the
case properly and such transfer having taken place
at the instance of the then District in-charge
Minister;
(c) A representation given in that regard by the victims
of the crime to the Home Minister requesting him to
continue the previous Public Prosecutor on
17.7.2019;
(d) The witness CW.32/PW32, Mr. Nagendra Todkar,
deposing before the Court that there was no land
dispute with the deceased.
(e) All these aspects raising serious suspicion about the
involvement of the former Minister in deviating the
investigation and the Police officials acting under the
influence of the Minister has been reflected in the
investigation alleged.
Considering all these aspects, and since the alleged involvement of
the former Minister in the murder of the local body representative
had also got media attention, the Government of Karnataka has
exercised the power vested under Section - 6 of the Delhi Special
Police Establishment Act, 1946 and Section 173(8) of the Code of
Criminal Procedure. The power of the State to consider right of the
victims of crime to approach the State and seek their remedy,
cannot be curtailed and as such the State passed the order as
per Annexure - A. Further, the investigation is a prerogative of the
Executive and further investigation under Section 173(8) of the
Code of Criminal Procedure is a statutory right as held by the Apex
Court time and again. It is further contended that brother of the
deceased filed Criminal Appeal No.100046/2019 in the High Court
of Karnataka, Dharwad Bench against the order dated 9.1.2019
passed by the Sessions Judge in S.C. No.50/2017 rejecting the
application under section 195A of the Code of Criminal Procedure
and the said Criminal Appeal has been allowed directing the Court
below to consider the application afresh and dispose of same on
merits, thereby the State Government was compelled to take a
decision referring the matter for further investigation as per
Annexure - A. In support of its contentions, State Government
relied upon several judgments of the Hon'ble Supreme Court.
III - Objections filed by the CBI in W.P. No.51012/2019
17. The 2nd respondent/CBI filed objections in Writ Petition
No.51012/2019, wherein it is stated that on the basis of the
information given on 15.6.2016 by Smt. Mallava Goudr w/o
deceased Yogishgouda Goudar, Crime No.135/2016 came to be
registered against unknown persons in the Dharwad Sub-Urban
Police Station, Dharwad for the offence punishable under Section
302 of IPC and after investigation, the Investigating Officer filed the
charge sheet against six accused persons in C.C. No.964/2016 for
having committed the offences under Sections 143, 147, 148,
120B, 302, 201 r/w Section 149 of IPC. The prosecution, in all
examined 63 witnesses in S.C No.50/2017 on the file of the IV
Addl. District & Sessions Judge, Dharwad. During the course of
the trial, Smt. Thungamma, mother of the deceased and Sri
Gurunatha Goudr, brother of the deceased filed Writ Petition
Nos.58183-184/2017 with a prayer to hand over investigation of
the above case to CBI and the said writ petition came to be
rejected on 1.3.2019 reserving liberty to invoke the provisions of
Section 319 of the Code of Criminal Procedure. After the said order
passed by this Court, the brother of the deceased viz., Mr.
Gurunath Goudr examined in S.C. No.50/2017 as PW.58 (CW.19).
During the course of his evidence, he has stated that the Police
have not investigated the case properly and that one more car
which was involved in the incident has been left out from the
investigation and 60 footages around the place of incident have not
been obtained by the State Police, and that his mother Mallava
Goudr has given complaint to the Government in that regard. He
has also deposed about the involvement of Police Officers of the
rank of Dy.SP and a senior politician in the incident and during the
said period, he has also given a complaint to the State of Karnataka
requesting for handing over of the above case for investigation by
the CBI. The said complaint given by Gurunath Goudr would clearly
indicate the involvement of the Police officials of the rank of Dy.SP
and other officials in the entire incident and in filing final report
without proper investigation. Based on the said complaint of
Gurunath Goudar, the State of Karnataka by exercising its powers
under Section 6 of the DSPE Act, has passed the impugned order at
Annexure-A.
18. It is further stated in the objections that a perusal of the
said order would clearly indicate that the State Government after
taking into account the position of law that the power to further
investigate a criminal case under Sections 156 & 173(8) of the
Code of Criminal Procedure is absolute right of the State and that
the power under Section-6 of Delhi Special Police Establishment Act
is an independent power of the State Government, was pleased to
issue Government Order dated 6.9.2019 handing over investigation
of the above case to the CBI. Accordingly, in accordance with
the provisions of the CBI Manual, which mandates the CBI to
re-register the FIRs of case transferred by other agencies as a
regular case for administration and statistical purposes, the 2nd
respondent re- registered the FIR as 17(S)/2019. As could be
seen from the impugned order at Annexure-A dated 6.9.2019
passed by the State Government, it is clear that what was handed
over to CBI is only further investigation of the case and as can be
seen from the Memo filed by the CBI before the jurisdictional
Court under Section 173(8) of the Code of Criminal Procedure, it
was intimated to the jurisdictional Court about CBI conducting
further investigation of the case. Therefore, the contention of the
petitioners that the 2nd respondent - CBI has registered 2nd FIR in
respect of the same incident, is not correct.
19. It is further stated in the objections that as per clause
10.5 of the CBI Manual, in case of investigation being transferred to
DSPE by local Police or any other law enforcement authority, the
original First Information Report registered by them may be
reproduced with all its details such as FIR number, date of
registration, name of the police station, sections of law etc.,
Further, the Manual also clarifies that it must be remembered that
it would not be treated as fresh FIR but a new number as per
prevalent scheme of DSPE may be assigned for the purpose of
maintaining uniformity in record keeping in CBI. Therefore, the FIR
registered by the 2nd respondent/CBI does not amount to a second
FIR for the same incident, but one registered for its administrative
convenience and for statistical purpose.
20. It is further contended that in the judgment relied upon
by the learned counsel for the petitioners in the case of T.T.
Anthony -vs- State of Kerala and others reported in (2001)6
SCC 181, the Apex Court held that the Police authorities cannot
register multiple FIRs for the very same incident. The Apex Court
in the said case was dealing with a scenario wherein the police
authority had registered a 2nd FIR based on a subsequent
information with regard to the same incident and sought to initiate
fresh investigation. The said case relied upon by the petitioners, is
not applicable to the present matter since the 2nd respondent/CBI
registered FIR in RC No.17(S)/2019 based on the Government
notification produced at Annexure-A. Further in the present case,
the 2nd respondent/CBI has not initiated de novo investigation
against the accused persons as the State has accorded sanction
only to conduct further investigation, which is further fortified from
the application filed by the CBI before the learned Magistrate under
Section 173(8) of the Code of Criminal Procedure seeking to further
investigate the matter. Therefore the contention raised by the
petitioners in this regard, cannot be accepted.
21. It is further contended that soon after taking up the
further investigation by the CBI, the involvement of one more car
in the incident and involvement of other persons, who are actually
not shown as accused in the case has been revealed. Further
investigation by the CBI has also disclosed criminal intimidation to
the witnesses prior to the day of giving their evidence in trial before
the jurisdictional court. The progress made in the further
investigation conducted by the 2nd respondent is submitted before
this court in a sealed cover. It is further stated that the accused
has no locus standi to say which investigating agency has to
investigate a criminal case. The power of the State Government and
the Central Government under Sections 6 and 5 of the DSPE Act
are vested powers of the Government independent to the power of
the High Court and Supreme Court. In the circumstances,
respondent - CBI sought to reject all the writ petitions.
IV- Additional objections filed by the CBI on 30th August, 2021
22. In continuation of the statement of objections filed on
17th December, 2019, it is contended by the 2nd respondent that
the relief sought for quashing the FIR is not maintainable and
admittedly, the 2nd respondent - CBI has filed supplementary
charge sheets and the jurisdictional Court has taken the cognizance
of the same. As there are subsequent developments upon
registration of the main FIR, the present writ petitions challenging
the FIR do not survive for consideration and thereby the relief
sought for in the present writ petitions are liable to be rejected. It
is further contended that consequent upon sanction accorded by the
1st respondent-State Government, the 2nd respondent registered
FIR numbered as RC No.17(S)/2019, conducted investigation, filed
the first supplementary charge sheet on 20th May, 2020 before the
jurisdictional Court and the Apex Court time and again has held
that the accused has no choice with regard to mode of investigation
or the agency which has to carry out investigation. It is further
contended that in pursuance of the information of Smt. Mallava
Goudar, wife of deceased dated 15.6.2016, the Dharwad Sub Urban
Police Station registered a case in Crime No.135/2016 against
unknown accused persons for the offence punishable under Section
302 of IPC and took up the investigation. The jurisdictional police
after conducting investigation filed charge sheet against six accused
persons for having committed the murder of the deceased. On
filing of the charge sheet, the JMFC Court, Dharwad was pleased to
take cognizance and register a criminal case in C.C.No.964/2016 for
the offences punishable under Sections 143, 147, 148, 120B, 302,
201 r/w 149 of IPC., and the matter was committed to the Court of
Sessions numbering as S.C.No.50/2017. It is further contended
that after framing of charges, the prosecution examined 63
witnesses and during the pendency of the trial, Smt. Thungamma
(Mother of the deceased) and one Sri Gurunatha Goudar (brother
of the deceased) filed Writ Petitions before this Court i.e.,
W.P.No.58183-184/2017 which were rejected. However liberty was
reserved to the petitioners to move an application under Section
319 of Cr.P.C. During the course of evidence of the prosecution
witnesses, the said Sri Gurunath Goudar, examined as P.W.58,
deposed that the State Police had not investigated the case
properly since the vital evidence was not considered. He further
deposed that there was one more car that was involved in the
incident and about 60 footages around the place of incident had not
been collected since the police officers of the rank of Dy.S.P. and a
Senior Politician were involved in the said case. During the said
period, the said Gurunath Goudar also submitted a requisition to
the State Government to transfer the case to the CBI categorically
mentioning the involvement of the police officers in the said case.
23. The 2nd respondent further contended that acting on the
said requisition, the 1st respondent-State Government accorded
sanction under Section 6 of the Delhi Special Police Establishment
Act (for short hereinafter referred to as 'DSPE Act') on 6.092019
to the 2nd respondent to conduct further investigation of the case
in Crime No.135/2016. On receipt of the sanction order, the 2nd
respondent filed a memo before the learned Principal Civil Judge
(Jr. Division) and JMFC Court, Dharwad under Section 173(8) of
Cr.P.C., intimating about the 2nd respondent undertaking further
investigation in the said case as per Annexures-R2 and R3 produced
along with additional statement of objections. The 2nd respondent
further contended that, in accordance with the provisions of CBI
Manual, for administrative and statistical purposes, FIR of the
Dharwad Sub-Urban Police Station was re-registered as RC
No.17(S)/2019 and thereafter, further investigation was
commenced by the CBI. Accordingly, the accused persons, who
were apprehended, approached this Court challenging the sanction
order as well as the FIR filed against them.
24. It is further contended that, this Court by the order dated
21.11.2019 granted an interim stay of operation of the order
according sanction as per Annexure-R4 and being aggrieved by the
said stay order, the 2nd respondent approached the Apex Court by
way of SLP (Crl) No.1348/2020 wherein by the order dated
20.2.2020, the Apex Court stayed the operation of the interim order
dated 21.11.2019 granted by the learned Single Judge of this Court
as per Annexure-R5 resulting in conducting further investigation by
the 2nd respondent-CBI.
25. It is further contended that, in the further investigation
carried out by the 2nd respondent, it was revealed that accused
No.1- Basavaraj Shivappa Muttagi, a political worker and office
bearer of various organizations like Jaya Karnataka Organisation
and Nava Yuva Shakti with serious political ambitions acted as a
prime conspirator of the murder of the deceased, who contested the
Zilla Panchayat Election, Dharwad during 2016 and has won the
election and therefore, accused No.1 conspired with others accused
persons including accused No.5 and decided to eliminate the
deceased on account of political reasons and to further his political
career. In furtherance of the same, accused No.1 decided to bring
his associates from outside Dharwad to execute the murder of the
deceased and surrender himself along with accused Nos.2 to 6
before the local police in place of the assailants. As such, accused
Nos.8 to 14 together agreed to come to Dharwad and commit the
murder of deceased. Accordingly, they visited Dharwad in the 1st
week of June, 2016 and assembled in an old house bearing CTS
No.4/39/L measuring 14 guntas situated at No.17, Saraswatpur,
Dharwad, which possession was illegally taken by Sri Vinayak
Katagi -accused No.5. All the accused persons stayed in the said
residence and conspired for murder of the deceased. The tower
locations of mobile numbers issued in the names of the accused
persons via., accused Nos.1 to 7 showed their presence in the
above said area during the above period. Accused Nos.8 to 14
went to Dandeli and again reached Dharwad on 13.6.2016 and
stayed in the old house stated supra and accused persons conspired
to commit murder of the deceased at the Uday Gym near Saptapur
Post Office when the deceased used to go for training between 7.30
and 9.30 a.m. Accordingly on 14.6.2019 accused Nos.7 and 9
wearing red jackets, hiding weapons, came to the Uday Gym by
7.23 a.m. in a Hero Honda Splendor motor cycle bearing
registration No.KA-25 EA 6230 driven by accused No.7; Accused
No.11 wearing a green checks shirt came by walking carrying a bag
with weapons by 7.25 a.m; accused No.12 with two other accused
persons came in a white scooter bearing registration No. KA 25 EU
2609 by 7.27 a.m; later accused Nos.8 and 13 also reached the
spot. Further accused Nos.7 to 9 and 13 moved around the Uday
Gym on the road on the two wheelers waiting for the deceased to
arrive. Though the deceased arrived by 7.34 a.m. in his silver
colour Innova, he returned immediately and the said attempt could
not be made successful by the accused. After unsuccessful
attempt, accused persons assembled at the old house at
Saraswatpur, Dharwad and decided to commit the murder of the
deceased on the next day.
26. In furtherance of their conspiracy, again on 15.6.2016 ,
accused Nos.7 and 9 reached the Uday Gym by 6.46 a.m. in a Hero
Honda Splendor motor cycle equipped with weapons in their jackets
and moved to and fro on the road around the Gym in the motor
cycle and finally by 7.34 a.m. again came back to the Gym. After
parking the vehicle near the Gym, accused No.9 sat on the wall
near the Gym holding a newspaper hiding his face while accused
No.7 stood on the stairs waiting for the deceased to arrive.
Accused Nos.10 to 12 and 14 reached the area in a white Tavera
car bearing registration No.KA 25 D 0420 driven by accused No.4.
After being dropped at the 1st cross Road, 60 meters right of the
Gym building, accused No.11 carrying a bag with weapons and
accused No.12 came bear the Gym at 7.32 a.m. followed by
accused Nos.10 and 14 at 7.33 a.m. waiting for the deceased to
arrive. Accused Nos.1 to 3 and 5 waited near KCD Circle to co-
ordinate the plan and they remained in touch through phone calls
with accused No.6, who intimated about the movement of the
deceased and with accused No.4, who was driving the Tavera
vehicle carrying other accused and accused No.7, who was waiting
at the spot. On arrival of the deceased at 7.36 a.m. in a silver
colour Innova, when the deceased was about to enter the Uday
Gym, accused No.7, who was waiting on the stairs, sprinkled chilli
powder to the eyes of the deceased from a packet carried by him
and stabbed him on his neck with dagger and unsettled the
deceased, while accused No.9, who was holding newspaper
attacked him on his head with long mattchu and when the deceased
fell down, accused Nos.8, 10 to 14 rushed to the Gym and dragged
him to the Gym and attacked him on his head and other parts of
the body with longs and other weapons carried in the bag by
accused Nos.8 and 11 and thereby committed the murder of the
deceased. After execution of the murder of the deceased by 7.38
a.m., accused Nos.7 to 14 left from the scene of crime, accused
No.11 carrying his bag along with accused No.13 went running
towards the Tavera vehicle parked at the 1st cross road, while
accused No.10 carrying the weapon along with accused No.8
escaped on the white scooter driven by accused No.14. Accused
Nos.12 and 9 escaped on the Hero Honda Splendor vehicle driven
by accused No.7 and all accused fled from the spot. Accused No.1
along with other accused persons traveled in the Chevrolet car
bearing registration No. KA 25 P 8526, reached near the Uday Gym
by 7.42 a.m. to confirm execution of the murder of the deceased
and thereafter fled from the scene of crime which facts were visible
in the CCTV footage collected during the investigation and are
corroborated by the evidence of the witnesses.
27. It is further contended that supplementary charge sheet
filed revealed that in the further investigation was carried out by
the 2nd respondent, where accused No.16, being resident of Bijapur
and the maternal uncle of Vinay Kulkarni accused No.15, had
participated in the larger conspiracy leading to murder of the
deceased and he was arrested on 13.12.2020 as he was involved in
arranging three country made pistols from Bijapur and in handing
over the same to accused No.1 for the purpose of commission of
murder of the deceased. Accused No.15 the Minister in the
Government of Karnataka was previously MLA for the Dharwad
Constitutency and Proprietor of M/s Vinay Diary situated at Hatti
Kala Village near Dharwad City, had political rivalry and personal
enmity with the deceased, who had refused to accept his request
from contesting in the Zilla Panchayath Election 2016. There were
serious verbal altercation between accused No.15 and deceased
about a month prior to the murder. It was further revealed that
during the Zilla Panchayath Meeting dated 23.4.2016 there were
verbal altercations and heated exchanges between them and
thereby, animosity generated and accused No.15 decided to
eliminate the deceased on account of political and personal reasons.
28. It is further contended that, accused No.15 conspired
with accused Nos.1 and 16 along with other accused persons in
order to commit the murder of the deceased following the Zilla
Panchayath Meeting dated 23.4.2016. Accused No.1 - Basavaraj
Muttagi agreed to execute the crime on the assurance of accused
No.15 and accused No.16, who had close acquaintance with
accused No.1 and was in touch with him constantly between
26.1.2016 and 2.6.2016. Furthermore, tower locations of the
mobile number of accused Nos.15 and 1 revealed that they were
found at nearby locations for about six times between 23.4.2016 to
31.5.2016 and also were in constant touch with separate mobile
phones or through their associates after 2.6.2016 ever since they
conspired to commit the murder of the deceased. It is further
contended that on the abovesaid findings, the second
supplementary charge sheet was filed by the CBI before the trial
Court against accused Nos.1, 15 to 17 for having committed the
offences punishable under the provisions of Sections 120B, 302,
201, 143, 147, 148 r/w 149 IPC and Sections 25, 3, 5, 7 and 29 of
the Arms Act. The investigation also revealed that public servants
were also involved in the crime and after completion of the majority
of the investigations, the supplementary sheets were filed by the
2nd respondent-CBI as against 17 accused persons. However, the
Hon'ble Supreme Court stayed the operation of the order dated
21.11.2019 passed by the learned Single Judge, consequence of
which, the 2nd respondent proceeded to conduct the investigation
and accordingly, the charge sheets are filed. Similar objections are
filed by the state as well as Respondent No.2 in other Writ Petitions.
Therefore, sought to dismiss the writ petitions filed by the accused.
29. We have heard the learned Counsel for the parties.
V - Writ Petition No.51012/2019 filed by accused No.1 -Basavaraj
Shivappa Muttagi
Arguments advanced by Sri Srikanth Patil, learned Counsel
for the petitioner
30. Sri Srikanth Patil, learned Counsel appearing for the
petitioner-accused No.1-Basavaraj Shivappa Muttagi in Writ Petition
No.51012/2019 contended that in view of the order dated 1st
March, 2019 passed by this Court in Writ Petition Nos.58183-
184/2017 and confirmed by the Hon'ble Supreme Court in SLP
Nos.5760-61/2019 on 22.7.2019, the impugned order passed by
the State Government according sanction to CBI for further
investigation on 6.9.2019 and registering the FIR on 24.9.2019 as
per Annexures-A and B are not sustainable and therefore, are liable
to be quashed. Since the impugned order Annexure-A is passed by
the State Government in the absence of any request by the family
members of the deceased, it is nothing but political motivation. He
would further contend that powers to refer further investigation to
different agency does not come under the provisions of Section 6 of
the Delhi Special Police Establishment Act, 1946 . In the statement
of objections filed by the State Government, though paragraph-1
reveals that a representation dated 6.8.2019 was received from the
brother of the deceased, but there is no reference in the order
passed by the State Government and on that ground also, the
impugned order passed by the State Government cannot be
sustained. The learned Counsel would further contend that the 1st
respondent-State Government ought not to have issued the
Notification according sanction to conduct further investigation in
Crime No.135/2016 by the CBI which was earlier investigated by
the local police and the final report was filed before the
jurisdictional Magistrate as well as the matter was committed to the
Sessions Court and the learned Sessions Judge after framing the
charges in S.C.No.50/2017 and examining 61 witnesses has
recorded the statement of the accused persons under Section 313
of Cr.P.C. Therefore, the impugned order of sanction for further
investigation is contrary to law as it is passed without obtaining
consent of the jurisdictional Court and cannot be sustained in view
of the dictum of the Hon'ble Supreme Court in the case of Vinay
Tyagi -vs- Irshad Ali and Others reported in (2013) 5 SCC 762
particularly paragraph-6. He would further contend that the
impugned order passed by the State Government referring the
matter to the CBI is arbitrary, illegal and without authority of law
amounting to abuse of process of the law only with a view to over
come the order dated 1.3.2019 passed by this Court in
W.P.Nos.58183-184/2017 and confirmed by the Hon'ble Supreme
Court by the order dated 22.7.2019 passed in S.L.P.(Crl) Nos.5760-
61/2019. He further contended that the action of the 2nd
respondent CBI registering the FIR is contrary to the dictum of the
Hon'ble Supreme Court in T.T. Anthony -vs- State of Keral and
Others reported in (2001)6 SCC 181. He would further contend
that the order passed by the State Government is contrary to the
dictum of the Hon'ble Supreme Court and as such, the same cannot
be sustained. In support of his contentions, he also relied upon the
dictum of the Hon'ble Supreme Court in the case of State of Tamil
Nadu -vs- State of Kerala and Another reported in (2014) 12 SCC
696 paragraph-126 with regard to separation of powers between
the Legislature, Executive and Judiciary.
VI - Writ Petition No.52575/2019 filed by accused No.5 - Vinayak
Arguments advanced by Sri C.H. Jadhav, learned Senior Counsel
for Sri Shivayogesh, advocate for accused No.5
31. Sri C.H. Jadhav, learned Senior Counsel for accused No.5
contended that the orders passed by the State Government -
Annexure-A entrusting the matter to the CBI is malafide exercise
and cannot be sustained in view of the fact that it is passed only to
circumvent or overcome the decision of this Court in
W.P.Nos.58183-184/2017 and confirmed by the Hon'ble Supreme
Court. He further contended that Annexure-A passed by the
respondent according sanction to the CBI under the provisions of
Section 6 of the DSPE Act for further investigation would amount to
abuse of process of law and further tantamount to undoing the case
afresh, at the stage of arguments, which is not impermissible since
the respondent cannot undo a trial which has already been
completed, that too, when the matter is being posted for judgment
after completion of the evidence of 63 witnesses as well as
recording of the statement of the accused persons under Section
313 of Cr.P.C. and even prior to issuance of the impugned order
and as such, the very entrustment and registering FIR cannot be
sustained. He would further contend that if at all the impugned
order was passed only to entrust 'further investigation' into the
matter registered as FIR No.135/2016 with the jurisdictional police,
the same would be a gross impropriety and would be without
authority of law as the same was done without consent of the
jurisdictional Court. The police will have to seek permission of the
Court to continue 'further investigation' and file supplementary
charge sheet as held by the Hon'ble Supreme Court in the case of
Vinay Tyagi -vs- Irshad Ali and Others reported in (2013)5 SCC
762.
32. The learned Senior Counsel further contended that
issuing of Notification by the State Government is highly arbitrary
and illegal as the same has been issued only with a view to wreck
political vengeance and the 1st respondent is trying to scuttle the
investigation by political force by referring the matter to the 2nd
respondent. He would further submit that the State Government
headed by the current incumbent Chief Minister came to be formed
on 26.7.2019 and immediately, thereafter, by means of impugned
notification dated 6.9.2019, the matter was referred to the 2nd
respondent-CBI which clearly depicts that immediately after change
of Government, the impugned notification has been issued at the
instance of Sri Gurunath Gowda and Smt. Thungamma, who have
failed to succeed before this Court as well as the Hon'ble Supreme
Court. Therefore, he sought to allow the writ petition.
33. In support of his contentions, the learned Senior Counsel
relied upon the following dictums of the Hon'ble Supreme Court:
a) P. Sambamurthy and Others -vs- State of Andhra
Pradesh and Another reported in (1987)1 SCC 362
paragraphs-3 to 5;
b) State of Punjab -vs- Bhag Singh reported in (2004)1
SCC 547 paragraph-5 with regard to binding precedent
under Article 141 of the Constitution of India;
c) State of Tamil Nadu -vs- State of Kerala and Another
reported in (2014) 12 SCC 696 paragraphs-105 and
107;
d) State of West Bengal and Others -vs- Committee for
Protection of Democratic Rights, West Bengal and
Others reported in (2010) 3 SCC 571, paragraphs-69
and 70 (Constitutional powers of the Court); and
e) Kalabharati Advertising -vs- Hemant Vimalnath
Narichania and Others reported in (2010)9 SCC 437
paragraphs-15 to 19, 19 to 23, 35 and 36 to the effect
that once foundation fails, all other proceedings will be
invalid.
VII - Writ Petition No.16081/2021 filed by accused No.21 -
Somashekar Nyamagouda
Arguments advanced by Sri S.M. Chandrashekar, learned Senior
Counsel for Sri Sri Shivaprasad Shantanagoudar, Advocate for the
petitioner
34. The learned Senior Counsel for accused No.21 contended
that the impugned order passed by 1st respondent-State
Government is contrary to the material on record and cannot be
sustained as accused No.21 joined the Government Service as
Deputy Director, APMC at Tiptur and Byadgi in the year 2006 and
thereafter, he was appointed as Private Secretary to Cabinet
Minister - Shri Vinay Kulkarni in the Government of Karnataka in
November, 2015. It is further contended that the impugned orders
were stayed by the learned Single Judge of this Court on
21.11.2019 which was the subject matter of SLP filed by the State
Government as well as the CBI wherein the Hon'ble Supreme Court
stayed the order passed by the learned Single of this Court staying
investigation conducted/carried out by the CBI. He would further
contend that admittedly, the writ petitions filed by the mother and
brother of the deceased for entrustment of matter to the CBI in
Writ Petition Nos.58183-58184/2017 came to be dismissed on
1.3.2019 with certain observations that absolutely, there is no
material for further investigation and the same was confirmed by
the Hon'ble Supreme Court in SLP Nos.5760-61/2019 on
22.7.2019. However, an application under Section 319 of Cr.P.C.,
was filed by Smt. Tungamma, mother of the deceased on
16.7.2019 which came to be rejected on 26.8.2019. He would
further contend that there was change of Government on 26.7.2019
and the Government Order came to be passed on 6.9.2019 and in
the note dated 13.8.2019 from the Chief Secretary to Government,
the Government Order with reference to same has observed that no
changed circumstance was shown to pass Annexure-A and
therefore, the same cannot be sustained and is liable to be
quashed.
35. The learned Senior Counsel further contended that the
State Government ought not to have passed the impugned order
under the provisions of Sub-section (8) of Section 173 for further
investigation in Crime No.135/2016 for the offence punishable
under Section 302 of IPC which is impermissible in view of the
earlier order passed by this Court and confirmed by the Hon'ble
Supreme Court. The State Government is not empowered to pass
Annexure-A in view of the earlier orders passed by this Court and
confirmed by the Hon'ble Supreme Court, as no permission was
obtained from the concerned Court and as such, the same is
contrary to the dictum of the Hon'ble Supreme Court in the case of
T.T. Antony -vs- State of Kerala and Others reported in (2001)6
SCC 181 at paragraph-21 and therefore, according sanction to the
2nd respondent to file second FIR on the same incident is
impermissible.
36. The learned Senior Counsel further submitted that after
filing of charge sheet, any further investigation should be preceded
by discovery of new facts provided the same is approved by the
Magistrate, who is the supervisory authority in such a situation
dealing with further investigation as held by the Hon'ble Supreme
Court in Ram Lal Narang -vs- State (Delhi Administration)
reported in (1979)2 SCC 322. The observation made in the
impugned order for further investigation under Sections 156 and
173(8) of Cr.P.C., is a statutory right and is completely misplaced.
The authority to conduct further investigation should be backed by
material emerging from records necessitating the same and not
merely on the ground that such authority exists. Therefore, the
impugned order passed by the State Government is opposed to
fundamental principles of criminal jurisprudence and as such, it is
liable to be quashed.
37. The learned Senior Counsel would further contend that
the impugned order passed by the State Government entrusting the
matter to CBI is impermissible and the said exercise done, without
approval of the learned Magistrate also renders that the impugned
final report filed by the CBI is void ab initio, and the orders passed
by the State Government and all other subsequent proceedings are
contrary to dictum of the Hon'ble Supreme Court in the case of
Vinubhai Haribhai Malaviya and Others -vs- State of Gujarat and
Another reported in (2019)17 SCC 1. The emerging satisfaction of
the State Government for further investigation that too at the stage
when the trial was concluded, recording of the evidence and
statement under Section 313 Cr.P.C., was also completed and
thereafter, when the matter was posted for final arguments and
even after hearing the public prosecutor in part as reflected in order
sheet dated 12.7.2019, casts a shadow of suspicion over the
bonafides of the impugned order passed by the State Government.
Therefore, the impugned order passed by the State Government by
incompetent persons for further investigation and pursuant
proceedings cannot be sustained as they are blatant violation of
Article 21 of the Constitution of India leading to illegal arrest of the
petitioner and depriving liberty of the petitioner without following
the procedure established by law.
38. The learned Senior Counsel further contended that the
State Government has passed impugned order under Section 6 of
the DSPE Act without any authority of law as it can only exercised
the powers under Section 173(8) of Cr.P.C. after obtaining
permission from learned JMFC. He would further contend that the
interim order granted by this Court on 21.11.2019 clearly depicts
that the prayer sought in the writ petition was for quashing of the
Government Order entrusting the matter to the CBI, according
sanction to the CBI to conduct further investigation and all further
proceedings since the orders passed by the State Government is
nothing but re-investigation after arraying the Investigating Officers
as accused No.19 to 21 and therefore, the provisions of Section
173(8) of Cr.P.C. would not attract. He further contended that the
definition of 'Investigation' under Section 2(h) of Cr.P.C., includes
all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a
Magistrate), who is authorized by a Magistrate in this behalf and the
State Government absolutely has no power to refer the matter to
the CBI as it has not assigned any reason for entrusting the matter
to CBI. Therefore, absolutely there is no power for the State
Government to refer the matter to CBI and no reasons are assigned
by the Government for entrustment. He would further contend that
in view of the dictum of the Hon'ble Supreme Court in the case of
Chandra Babu Alias Moses -vs- State Through Inspector of Police
and Others reported in (2015)8 SCC 774, the Court cannot
reinvestigate the matter which has already been done and the
impugned order passed by the State Government on the basis of
the requisition made by the mother and brother of the deceased
suppressing all the materials cannot be sustained. The learned
Senior Counsel further contended that the decision of the State
Government in the case of State of Bihar -vs- J.A.C. Saldanha
reported in (1980) 1 SCC 554 has no application to the facts and
circumstances of the present case.
39. The learned Senior Counsel relying upon the judgment of
the Hon'ble Supreme Court in the case of State of Punjab vs.
Davinder Pal Singh Bhullar and Others reported in (2011) 14 SCC
770 contended that if the reach of the conclusion is illegal, all
consequential proceedings in pursuance of Annexure-A also become
invalid. The learned Senior Counsel further contended that the
under the First Schedule of the Karnataka Government Transactions
Business Rules, 1977, the decision of the Cabinet is mandatory and
there is no Notification issued under Section 3 of the DSPE Act to
investigate the crime already investigated by the local police. Since
the provisions of Section 5 of DSPE Act, envisages only
investigation of any offences or classes of offences specified in
a notification under Section 3, the orders passed by the State
Government entrusting the matter to CBI is totally without
jurisdiction and contrary to the provisions of Section 6 of DSPE Act
where it was without consent of CBI. He would further contend that
the impugned order passed by the State Government in suo motu
sanctioning to conduct further investigation and to transfer
investigation to CBI is prima facie arbitrary, illegal and also violative
of Articles 14 and 21 of the Constitution of India.
40. In support of his contentions, the learned Senior Counsel
relied upon the following dictums of the Hon'ble Supreme Court:
a) Pritam Singh and Another -vs- The State of
Punjab reported in AIR 1956 SC 415,
paragraphs 15 and 20 (Res judicata in
criminal trials - Acquittal of accused on certain
charge - Verdict binding in all subsequent
proceedings);
b) Bhagat Ram -vs- State of Rajasthan (in Crl. A.
No.36/1969) and State of Rajasthan Vs. Ram
Swaroop (in Crl. A.No.202/1970) reported in
(1972)2 SCC 466, paragraph-13 (principle of
Res Judicata is also applicable to criminal
proceedings and is not permissible in the
subsequent stage of the same proceedings or
in some other subsequent proceedings to
convict a person for an offence in respect of
which an order for his acquittal has already
been recorded. The plea of autrefois acquit as
a bar to prosecution embodied in Section 403
of the Code of Criminal Procedure is based
upon the above wholesome principle;
c) Kunhayammed and Others -vs- State of
Kerala and Another reported in (2000) 6 SCC
359, paragraph-44 (v) with regard to refusing
leave to appeal is a speaking order i.e., gives
reasons for refusing the grant of leave, then
the order has two implications. But, this does
not amount to saying that the order of the
Court, Tribunal or Authority below has stood
merged in the orer of the Supreme Court
rejecting the SLP or that the order of the
Supreme Court is the only order binding as
res judicata in subsequent proceedings
between the parties;
d) Special Leave Petition (Criminal) Nos. 5760-
61/2019 preferred by Tungamma and Another
-vs- Union of India and Others filed against
the order dated 1.3.2019 passed by the
learned Single Judge of this Court in
W.P.Nos.58183/2017 and 58184/2017 on
perusal of the relevant material were
dismissed on 22.7.2019;
e) Khoday Distilleries Limited (now known as
khoday India limited) and Others -vs- Sri
Mahadeshwara Sahakara Sakkare Karkhane
Limited, Kollegal (under liquidation)
represented by the Liquidator reported in
(2019) 4 SCC 376 - paragraphs-22 and 23
with regard to Rule of Law;
f) P. Sambamurthy and Others -vs- State of
Andhra Pradesh and Another reported in
(1987) 1 SCC 362 paragraphs-4 and 5 with
regard to Rule of Law;
g) Union of India -vs- K.M. Shankarappa
reported in (2001) 1 SCC 582 paragraph-7;
h) State of Tamilandu -vs- State of Kerala and
Another reported in (2014) 12 SCC 696
paragraph-98;
i) Delhi International Airport Limited -vs-
International Lease Finance Corporation and
Others reported in (2015) 8 SCC 446
paragraph-22;
j) Hasanbhai Valibhai Qureshi -vs- State of
Gujarat and Others reported in (2004) 5 SCC
347 paragraphs-12 and 13 - Section 173(8) of
Cr.P.C. ;
k) Vinubhai Haribhai Malaviya and Others -vs-
State of Gujarath and Another reported in
(2019) 17 SCC 1 paragraphs-18, 22, 23, 29,
36(40) and 40;
l) Suganthi Suresh Kumar -vs- Jagadeeshan
reported in (2002) 2 SCC 420;
m) Chandra Babu alias Moses -vs- State, through
Inspector of Police and Others reported in
(2015) 8 SCC 774 paragraph-22 - re-
investigation cannot be done;
n) M. Mahendra Kumar -vs- M. Mani and Others
reported in (2015) 11 SCC 519 paragraphs-5
and 6;
o) State of West Bengal and Others -vs-
Committee for Protection Of Democratic
Rights, West Bengal and Others reported in
(2010) 3 SCC 571;
p) Athul Rao -vs- State of Karnataka reported in
(2018) 14 SCC 298; and
q) Md. Ghouseuddin -vs- Syed Riazul Hussain
and Another in Crl.A. 585/2021 (SC);
VIII - Writ Petition No. 16088/2021 filed by accused No.16 -
Chandrashekar Indi
Arguments advanced by Dr. Ashwani Kumar, learned Senior
Counsel along with Sri H.S. Chandramouli, learned Senior Counsel
for petitioner
41. Dr. Ashwani Kumar, learned Senior Counsel for the
petitioner-accused No.16 contended that the impugned order dated
6.9.2019 passed by the State Government is manifestly arbitrary
and an abuse of process of law since it is in violation of Articles 14
and 19 of the Constitution of India. He would further contend that
the impugned order passed by the State Government is an mala-
fide exercise of powers which is politically motivated and cannot be
sustained. The entrustment of the matter to the 2nd respondent-
Agency under Section 173(8) of Cr.P.C. for further investigation by
the State Government is in derogation and utter disregard to the
order dated 1.3.2019 passed by this Court in W.P.Nos.58183-
184/2017 and confirmed by the judgment dated 22.7.2019 passed
by the Hon'ble Supreme Court in SLP (Crl) Nos.5760-61/2019 and
therefore, the same being illegal and void is liable to be quashed.
He would further contend that accused No.16 was not a party to the
original FIR filed in Crime No.135/2016 and he has been falsely
implicated in pursuance of the impugned order passed by the State
Government and as such, the further investigation conducted by
the CBI-2nd respondent is without any basis and cannot be
sustained. He would further contend that in paragraph-3 of the
Government Order dated 6.9.2019, neither any reason for handing
over further investigation to the 2nd respondent - CBI nor any of its
right to disprove the investigation is mentioned which was accepted
by the learned Single Judge of this Court and confirmed by the
Hon'ble Supreme Court. The State Government has no
independent authority to pass any order for re-investigation as the
same is impermissible since the application filed under Section 319
Cr.P.C. by the legal representatives of the deceased had been
rejected. The provisions of Section 173(8) of Cr.P.C., cannot be
exercised by the 2nd respondent-a new agency without the consent
of the Court. When the new Government assumed the Office on
26.7.2019 and on a representation made by the kith and kin of the
deceased to the then Hon'ble Chief Minister on 6th August, 2019,
the impugned order has been passed on 6.9.2019 which clearly
depicts that it is politically motivated. Inspite of the opinion of the
Commissioner of Police that there is no reason for entrusting the
matter to the CBI, the State Government has proceeded to pass an
unreasonable order in violation of Section 300 of the Code of
Criminal Procedure.
42. The learned Senior Counsel would further contend that in
the original case, all the witnesses were examined and when the
matter was posted for arguments, after recording the statement of
the accused persons under Section 313 of Cr.P.C., at that stage,
the impugned order has been passed and as it is politically
motivated, the same cannot be sustained. He would further
contend that accused No.15 was neither a Minister nor a MLA nor
accused No.16 was in any position of authority to facilitate the
murder. There is no suggestion that the State's investigating
agencies have either misdirected themselves or were incapable of
conducting fair investigation of the case. The Police Authorities of
the State have infact opposed the transfer of the case to the CBI
and also no request was received by the CBI for investigation of the
case and therefore, the question of consent by the State
Government in terms of Section 6 of the DSPE Act to the CBI does
not arise. He would further contend that prior approval of the
concerned Court for further investigation is mandatory, but the
same has not been done in the present case as held by the Hon'ble
Supreme Court in the case of Vinay Tyagi stated supra [(2013)5
SCC 762]. So also in the case of Hasanbhai Valibhai Quereshi -vs-
State of Gujarat reported in (2004)5 SCC 347 at paragraph-13;
Ram Lal Narang -vs- State (Delhi Administration) reported in
(1979) 2 SCC 322 at paragraph-21 and T.T. Anthony -vs- State of
Kerala and Others reported in (2001)6 SCC 181 at pagraph-27.
Accordingly, the impugned order defeats the constitutional goal of
fair and speedy trial and therefore infracts Article 21 of the
Constitution of India.
43. The learned Senior Counsel would further contend that in
respect of accused No.16, considering the facts of the present case,
the impugned order, in effect, tantamounted to a reinvestigation/de
novo investigation, which is impermissible in law except by the
Constitutional Court for compelling reasons and in rare cases as
held by the Hon'ble Supreme Court in the case of Dharam Pal -vs-
State of Haryana and Others reported in (2016)4 SCC 160 and
Vinay Tyagi (supra).
44. The learned Senior Counsel would further contend that
the power of further investigation, either by the Court or
investigating agencies can be exercised till the commencement of
trial i.e, framing of charges by the Court. Admittedly, in the
present case, the trial Court has already completed recording of
statement of the accused under Section 313 of Cr.P.C. and
therefore, the impugned order passed by the State Government
entrusting the matter to CBI for further investigation is
impermissible in view of the dictum of the Hon'ble Supreme Court
in the case of Vinubhai Hirabhai Malaviya and Others -vs- State of
Gujarat and Another reported in (2019) 17 SCC 1 at paragraphs-
23, 25, 26 and 42. Therefore, he sought to allow the writ petition
filed by accused No.16.
45. In support of his contentions, the learned Senior Counsel
relied upon the following dictums of the Hon'ble Supreme Court:
a) Sudipta Lenka -vs- State of Odisha reported in
(2014) 11 SCC 527 paragraphs-13 to 15;
b) State of West Bengal and Others -vs- Committee
for Protection of Democratic Rights, West Bengal
and Others reported in (2010) 3 SCC 571
paragraphs-28 and 35; and
c) Chandra Babu Alia Moses -vs- State through
Inspector of Police and Others reported in
(2015)8 SCC 774 - paragraph-38.
IX - Writ Petition No.15828/2021 filed by accused No.15 - Vinay
Kulkarni
Arguments advanced by Sri Mukul Rohtagi, learned Senior Counsel
for Sri Girish Ganapathrao Nilegar, Advocate for the petitioner
46. Sri Mukul Rohtagi, learned Senior Counsel for accused
No.15 contended with vehemence that the impugned order passed
by the State Government is manifestly arbitrary, abuse of process
of law and cannot be sustained since the impugned order entrusting
the matter to CBI for further investigation is impermissible. He
would further contend that the incident of murder occurred on
15.6.2016, trial commenced on 12.7.2017 and FIR was filed on
9.9.2016 that too after completion of recording of evidence of 63
witnesses, as well as the statement of the accused persons under
the provisions of Section 313 of Cr.P.C. and at that stage, the
impugned order is passed without application of mind which cannot
be sustained. He would further contend that on 26.8.2019, though
an application under Section 319 of Cr.P.C. was filed by the brother
of the deceased seeking to array the petitioner and another as
accused persons in S.C.No.50/2017, the same was dismissed by the
trial Court which has reached finality. Hence, the impugned order
passed by the State Government entrusting the matter to the 2nd
respondent Agency under the provisions of Section 173(8) of
Cr.P.C., for further investigation is derogatory and utter disregard
to the judgment dated 1.3.2019 passed by this Court in
W.P.Nos.58183-184/2017 and confirmed by the Hon'ble Supreme
Court on 22.7.2019 in SLP (Crl) Nos.5760-61/2019 when the same
has reached finality and therefore, the State Government has no
jurisdiction to hand over the case to CBI as it is contrary to the
orders passed by this Court and Apex Court and on that ground also
the impugned order is liable to be quashed.
47. The learned Senior Counsel further contended that the
State Government has no power to over reach the order passed by
this Court and affirmed by the Hon'ble Supreme Court in SLP stated
supra as there is no necessity for fresh investigation or re-
investigation as the trial has already been concluded. Once the trial
has commenced, there cannot be further investigation conducted on
6.9.2019 by new agency after completion of trial as it is
impermissible and thereby Annexures-A and B are null and void in
the eye of law. He would further contend that the 2nd respondent
-CBI has filed three charge sheets - i.e., on 20.5.2020 in which,
the name of accused No.15 was not found; second charge sheet on
31.1.2021 implicating the petitioner -accused No.15; and in the
third charge sheet filed on 15.9.2021 accused Nos.18 to 21 were
included after obtaining the sanction from the Government without
obtaining prior permission from the Court as held by the Hon'ble
Supreme Court in the case of Vinay Tyagi reported in (2013)5 SCC
762 which is not permissible.
48. The learned Senior Counsel would further contend that
the executive power of the State does not have right to change the
basis of judicial order to nullify the effect of final adjudication on an
issue which assumes the status of judgment and decree and
thereby, the impugned order passed by the State Government is
nullity and the same cannot be note for any purpose to prejudice
the life and liberty of the petitioner-accused No.15. It is further
contended that accused No.15 was arrested in pursuance of the
proceedings as per the impugned order and taken into custody from
5.11.2020 to 21.8.2021 and as such, the custody of the petitioner
is nothing but illegal detention. Hence, in order to uphold the
majesty and rule of law, the impugned order dated 6.9.2019 is
liable to be quashed as it is void ab initio. It is further contended
that the impugned order passed by the State Government on the
advice of the learned Advocate General to entrust the matter to the
2nd respondent for further investigation is an exercise of statutory
power under Section 156 r/w 173(8) of the Criminal Procedure
Code which is not available with the Executive and hence, the
impugned order is in derogation of the judgment and decree under
Article 142 of the Constitution of India.
49. The learned Senior Counsel further contended that the
State Government exercise of powers under Section 6 of the DSPE
Act is arbitrary, capricious and violative of Articles 14 and 21 of the
Constitution of India as the victim's family had already failed in all
remedies available under Criminal Procedural Code. The State
Government ought not to have entrusted the matter to the 2nd
respondent for further investigation as the same is impermissible
and the same has been done with political vengeance and hence,
the same cannot be sustained. Therefore, he sought to allow the
writ petition.
50. In support of his contentions, the learned Senior Counsel
relied upon the following dictums of the Hon'ble Supreme Court:
a) Vinay Tyagi -vs- Irshad Ali Alias Deepak and
Others reported in (2013)5 SCC 762
paragraphs-22, 23 and 40 with regard to
further investigation not permissible;
b) Vinubhai Haribhai Malaviya and Others -vs-
State of Gujarat and Others reported in
(2019)17 SCC 1 paragraph-36 - de nova or
further investigation not permissible after
commencement of trial;
c) State of Punjab -vs- Davinder Pal Singh
Bhullar and Others reported in (2011)14 SCC
770 - paragraphs, 101, 111, 115 and 116
where initial action is not in consonance with
law, held all other subsequent and
consequential proceeds will automatically
become invalid; and
d) Hardeep Singh -vs- State of Pubjab reported
in (2014)3 SCC 92 - paragraphs-15 and 17.
X - ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS
51. Sri Tushar Mehta, learned Solicitor General of India
appearing for the Government in Writ Petition No. 15828/2021
contended that on 2.5.2020 a report came to be filed before the
Court under the provisions of Section 173(8) of Cr.P.C. Admittedly
a charge sheet had been filed after further investigation by the 2nd
respondent and cognizance of the offences stated in the charge
sheet had been taken by the competent Court on 7.6.2021 in
exercise of its judicial power and since the said order was not at all
challenged, the present writ petitions could not maintained. He
would further contend that the exercise of judicial power rejecting
the prayer of the CBI by the learned Single Judge of this Court and
confirmed by the Hon'ble Supreme Court are totally different and
were in no way relatable to the executive power of the State
Government for according sanction to the CBI for further
investigation. The Hon'ble Supreme Court by the order dated
20.2.2020 stayed the order passed by the learned Single Judge of
this Court at the instance of CBI-2nd respondent and State
Government, had filed SLP challenging the interim order of stay
granted by the learned Single Judge of this Court, wherein the
investigating officer was permitted to proceed with further
investigation. Though an application was filed for vacating the
interim order before the Hon'ble Supreme Court, no orders were
passed and the interim order was continued from 20th February,
2020 till 11.8.2021 and even after disposal of SLP, the interim
order of stay of operation of the judgment passed by the learned
Single Judge was still in force and consequently, the first charge
came to be filed against accused Nos.8, 10 to 14 on 2.5.2020 and
on 30.1.2021 and accused No.15 was arrested on 5.11.2020,
cognizance was taken by the competent Court after application of
mind on 7.6.2021. Supplementary charge sheet came to be filed
against accused Nos.18 to 21 by the 2nd respondent-CBI on
15.9.2021, among whom, accused No.19 was the earlier
Investigating Officer of the case, who was found part of the
conspiracy and accused No.20, who was the immediate
Supervisory Officer to accused No.19 had carried out defective
investigation of the case and since they both (accused Nos.19 and
20) were found to have taken illegal gratification to scuttle the
investigation. The State Government has accorded sanction to
prosecute accused Nos.19 and 20 on 9.8.2021 as per Annexures-R6
and R7 to the statement of objections filed by the State. He further
contended that under the provisions of Section 319 Cr.P.C., an
application was filed by the complainants to implead accused No.19,
the investigating officer in the case, who had subsequently
conspired to dilute the case. Since at that time, as no evidence or
material was placed before the Court against accused No.19, the
learned Single Judge of this Court dismissed the writ petition
holding that there is no material for further investigation by the CBI
and as such, the application filed under Section 319 Cr.P.C., was
also rejected.
52. The learned Solicitor General of India further drew the
attention of the Court to List II Entry 2 of Seventh Schedule of the
Constitution of India referring to Police (including railway and
village police) subject to the provisions of Entry 2A of List I.] Entry
8 of List I of the Seventh Schedule to the Constitution of India
refers to Central Bureau of Intelligence and Investigation. Further
Section 6 of the Delhi Special Police Establishment Act envisages
consent of the State Government to exercise powers and
jurisdiction i.e., willingness. He further contended that Section 2
(2) of the DSPE Act stipulates Constitution and Powers of Special
Police Establishment. The State power under Section 6 of the said
Act is an ordinary exercise of executive powers. The investigation
is against the State and not against any individual to dig out the
truth.
53. The learned Solicitor General of India further contended
that Constitution rests on the balance between three organs of the
State viz., Executive, Legislature and Judiciary. The balance is
maintained under the Constitution under several provisions. Article
245 of the Constitution of India is one such provision which
demarcates power of Parliament and the power of State Legislature.
Article 73 and Article 162 of the Constitution of India respectively
provide that the executive power of the Central Government and
the State Government shall extend to matters relating to the
subject which form a part of the List in the Seventh Schedule and in
respect of which the legislature and the Central Government
(Parliament) and of such State has the power to make law.
54. The learned Solicitor General of India further contended
that whenever, the question of investigation by a central
investigating agency into criminal offences taking place within
States comes up, the essential question to be answered is whether
there is any imbalance in the federal structure and whether the
central agency can encroach upon the field of criminal investigation
reserved for the State agencies under List II read with Article 73 of
the Constitution of India as held by the Hon'ble Supreme Court in
the case of State of West Bengal -vs- Committee for Protection of
Democratic Rights reported in (2010) 3 SCC 571.
55. The learned Solicitor General of India further contended
that the provisions of Section 6 of the Delhi Special Police
Establishment Act balances the power of the Central Government to
get offences investigated through central agency despite the
exclusive domain of the State Government for such investigation
being covered by Entry 2 of List II. The provisions of Section 6 of
DSPE Act permits a central agency to investigate an offence having
taken place in the said territory with the consent of the State
Government. In other words, if the State Government agrees that
central agency be permitted to investigate an offence falling within
its jurisdiction, it is an "ordinary exercise of executive powers" by
the State Government. This ordinary exercise of executive power is
an independent power which can be exercised at any stage by the
State Government and will not have any impact or create any
imbalance in the federal structure.
56. It is further contended that separation of powers is a part
of the basic structure of the Constitution, the 'ordinary' executive
power of the State Government under Section 6 and 'extraordinary
judicial power' of the constitutional courts are mutually exclusive
and are not interdependent. There is no particular form to give
consent under Section 6 of DSPE Act as held by the Hon'ble
Supreme Court in the case of M. Balakrishna Reddy -vs- CBI
reported in (2008) 4 SCC 409 (paragraph-71). He further
contended that the parameters for exercise of both these distinct
powers are naturally different and it is always possible and
permissible, that even after the constitutional court declines to
exercise its extraordinary judicial power holding that the case does
not involve circumstances which are rare or exceptional, the State
Government can exercise its ordinary executive powers under
Section 6 in granting consent and the Central Government can,
thereafter, exercise its power by accepting the investigation
entrusted to it by the State Government. The said process is
uninhibited by the high prerogative judicial powers of entrustment
of inquiry to CBI and the same is independent and does not have
any fetters with regard to whether extraordinary judicial power is or
is not exercised as the constitutional court did not find the matter
to be extraordinary and containing such facts which justify exercise
of jurisdiction which is to be exercised 'cautiously, sparingly and
under certain circumstances only'. Therefore, the power of the
State Government is not curtailed by such higher standards.
57. The learned Solicitor General of India further contended
that powers can be exercised by the trial Court under Section 319
of Cr.P.C., is only when it appears from the evidence placed before
the trial Court. In a fact situation, where the investigating officers,
who collected the evidence, which is before the trial Court, are
themselves found to be accused, subsequently, inter alia, for
shielding the real offenders, ignoring the relevant evidence etc., the
order of the competent court rejecting application under Section
319, cannot be pleaded as a bar against further investigation
conducted by CBI as held by the Hon'ble Supreme Court in the case
of Hardeep Singh -vs- State of Punjab reported in (2014) 3 SCC
92.
58. It is further contended that after exercising of powers by
the State Government under Section 6 of the DSPE Act, the CBI
after investigation has filed charge sheets. Most importantly, the
Court of competent jurisdiction has already taken cognizance under
Chapter XIV of the Code of Criminal Procedure. Neither the charge
sheets are challenged nor the judicial order of the competent court
taking cognizance is under challenge either in these proceedings or
anywhere else. Hence, there are abundant materials against the
accused persons for further investigation and this Court, in exercise
of power under Articles 226 and 227 of the Constitution of India r/w
Section 482 Cr.P.C., cannot interfere with the impugned order
passed by the State Government in pursuance of which the CBI has
further investigated, Court has taken cognizance and accused
persons, who were also arrested are on bail granted by the Hon'ble
Supreme Court in Criminal Appeal No.887/2021 on 11.8.2021.
59. It is further contended that the interim order dated
21.11.2019 granted by the learned Single Judge of this Court in the
present writ petitions prevented the CBI from conducting further
investigation and the said interim order was stayed by the Hon'ble
Supreme Court on 20th February 2020 in SLP Nos.5760-61/2019
and the same is ordered to be continued till the writ petitions are
decided. The action taken by the CBI are not the subject matter of
outcome of the present writ petitions. Therefore, the challenge to
the order of the State Government under Section 6 of the DSPE Act
has become infructuous by virtue of the subsequent intervening
facts and the petitioners are not entitled to any relief. He would
further contend that, since the competent court found the evidence
collected by the CBI to be enough to take cognizance and failure of
justice or prejudice is not even pleaded by the accused, the only
stage, now left is to proceed and with all post cognizance stages as
per the Code of Criminal Procedure as held by the Hon'ble Supreme
Court in the cases of H.R. Rishbud -vs- State of Delhi reported in
(1955)1 SCR 1150; Sailendra Nath Bose -vs- State of Bihar
reported in (1968) 3 SCR 563; and Fertico Marketing &
Investment (P) Ltd. -vs- CBI reported in (2021) 2 SCC 525.
60. It is further submitted that further investigation into any
criminal offence is a statutory right of the police. It is, in fact, a
right coupled with duty not only in the interest of the victim, but
also in the interest of the accused as in a given set of facts, it might
transpire that either wrong persons were implicated or real culprits
were left out either by default or by design, which is impermissible
in view of the dictum of the Hon'ble Supreme Court in the case of
Ram Lal Narang -vs- State (Delhi Administration) reported in
(1979)2 SCC 322 as well as in Ram Chaudhary -vs- State of Bihar
reported in (2009) 6 SCC 346.
61. It is further contended that the judgment in Vinubhai
Haribhai Malaviya -vs- State of Gujarat reported in (2019) 17 SCC
1 merely considers and examines the power of the Magistrate to
'direct' further investigation under Section 173(8) of Cr.P.C. The
Hon'ble Supreme Court in the said case of Vinubhai (supra) neither
examined the power of investigating agency to conduct further
investigation nor recorded any finding on the said proposition. As
such a contingency did not arise in the said case and the said case
has no application to the facts and circumstances of the present
case.
62. The learned Solicitor General of India further contended
that the provisions of Section 173(8) of Cr.P.C. is in absolute terms
and stipulates no fetters to its exercise. Article 21 which brings
within its ambit a free, fair and neutral investigation also mandates
an obligation to unearth the truth and therefore, any restricted or
truncated interpretation on the power of the investigating agency to
conduct further investigation under Section 173(8) will be violative
of Article 21 of the Constitution. The stage at which the
investigating agency can conduct further investigation depends
upon the facts of each case. The only test to decide the correct
stage for further investigation is the test of Article 21 of the
Constitution of India i.e., to unearth the truth at any stage.
63. It is further contended that if the provisions of Section 6
of the DSPE Act, Section 173(8) of Cr.P.C. and other provisions are
to be read in the context of rights and obligations flowing from
Article 21 of the Constitution of India, no stage in the process can
be said to have vitiated even if it is assumed (for the sake of
arguments) that the investigation conducted by the CBI was
irregular either on the ground of legality of the order under Section
6 or on the ground of stage at which the further investigation took
place.
64. It is further contended that this Court is exercising its
extraordinary discretionary of the prerogative writ jurisdiction. It is
settled position in law that even if it is assumed that petitioners
have made out a case, it is not obligatory for the Court to entrust
them with the writ of this Court, if issuance of a writ would result in
miscarriage of justice which is apparent from the facts of the
present case as held by the Hon'ble Supreme Court in the case of
Ramesh Chandra Sankla -vs- Vikram Cement reported in (2008)
14 SCC 58 and Shiv Shankar Dal Mills -vs- State of Haryana
reported in (1980) 2 SCC 437. Therefore, the impugned order is
passed by the State Government and in pursuance of the same, the
investigation is carried out by the 2nd respondent-CBI and charge
sheet is filed in view of the interim order dated 20.2.2020 granted
by the Hon'ble Supreme Court and is being continued till today and
is ordered to be continued till these writ petitions are decided and
hence, the petitioners are not entitled for any relief before this
Court under Articles 226 and 227 of the Constitution of India.
65. The learned Solicitor General further contended that the
accused is not entitled to say what agency should investigate him
and investigation by CBI is permissible even after filing of charge
sheet by the local police as held by the Hon'ble Supreme Court in
the case of CBI -vs- Rajesh Gandhi reported in (1996) 11 SCC 253
at paragraph-8. As is in the present case, where there are
allegations against police officers, investigation has been
transferred or entrusted to the CBI and where there exists a
credible allegation/accusation against the local police personnel, it
would be desirable in the larger interest of justice to entrust the
investigation to CBI forthwith so as to assure investigation
credibility as held by the Hon'ble Supreme Court in the cases of
Rubabbuddin Sheikh -vs- State of Gujarat reported in (2010)2 SCC
200 paragraphs-53, 60, 82 and R.S. Sodhi -vs- State of U.P. and
Others reported in 1994 Supp.(1) SCC 143. Therefore, he sought
to dismiss the writ petitions filed by the accused persons.
66. In support of his contentions, the learned Solicitor
General of India relied upon the following decisions of the Hon'ble
Supreme Court:
a. State of West Bengal -vs- Committee for
Protection of Democratic Rights reported in
(2010)3 SCC 571 - paragraphs-13, 16, 17,
21, 36, 39, 43, 68 and 70;
b. H.N. Rishbud -vs- State of Bihar reported in
AIR 1955 SC 196 - paragraph-9;
c. Sailendra Nath Bose -vs- State of Bihar
reported in AIR 1968 SC 1292 - paragraph-7;
d. Fertico Mktg & Investment (P) Ltd. -vs- CBI
reported in (2021)2 SCC 525 - paragraphs-5,
7 and 12;
e. Hardeep Singh -vs- State of Punjab reported
in (2014) 3 SCC 92- paragraphs-22, 23, 24
and 26;
f. Rama Chaudhary -vs- State of Bihar reported
in (2009) 6 SCC 346 - paragraphs-3, 4, 15,
16, 17 and 22;
g. State of Orissa -vs- Mahima reported in
(2007) 15 SCC 580 paragraphs-8 and 9;
h. Ram Lal Narang -vs- State (Delhi Admn.)
reported in (1979) 2 SCC 322 - paragraphs-
12, 13, 15 and 20;
i. Ramesh Chandra Sankla -vs- Vikram Cement
reported in (2008) 14 SCC 58 - paragraphs-
19;
j. Saurashtra Paper and Board Mills Pvt. Ltd.,
-vs- State of Gujarat reported in (1992) SCC
Online Guj 328;
67. Sri Prabhuling K. Navadgi, learned Advocate General
appearing for respondent No.1/State Government in other writ
petitions while justifying the order passed by the State Government
contended that in pursuance of the interim order dated 20.2.2020
granted by the Hon'ble Supreme Court staying operation of the
order dated 19.11.2010 passed by the learned Single Judge of this
Court in writ petitions and permitting the investigating officer to
proceed with the investigation, after completion of investigation,
supplementary charge sheets are filed and there are abundant
materials against accused Nos.8, 10, 14, 15 and other new accused
persons. Admittedly, cognizance taken by the competent Court and
charge sheets filed are not at all challenged. Therefore, he sought
to dismiss the writ petitions by adopting the arguments advanced
by the learned Solicitor General of India.
68. Sri S.V. Raju, learned Additional Solicitor General along
with Sri P. Prasanna Kumar, learned Counsel for respondent No.2-
CBI contended that once the Court has taken cognizance, defects if
any in the investigations stood cured and the Court cannot quash
the entrustment of case to the CBI for further investigation in view
of subsequent developments that have taken place pursuant to the
interim order passed by the Hon'ble Supreme Court staying the
orders passed by the learned Single Judge of this Court. He would
further contend that even after arrest of accused Nos.15 and
others, this Court rejected the bail petition and ultimately, the
Hon'ble Supreme Court granted bail with stringent conditions and
the interim order granted by the Hon'ble Supreme Court still
continues and therefore, the petitioners are not entitled to any
relief, at this stage, when the CBI, after further investigation, has
filed supplementary final reports in view of subsequent
developments and as such, no prejudice would be caused to the
accused persons in facing trial. He would further contend that in
pursuance of the order passed by the learned Single Judge
dismissing the writ petitions for entrustment of the crime for further
investigation to the 2nd respondent-CBI, at the instance of the
complainants, confirmed by the Hon'ble Supreme Court, an
application came to be filed by the complainants under Section 319
of Cr.P.C. in S.C.No.50/2019 which came to be dismissed on
26.9.2019 and the same was the subject matter of Criminal Petition
No.101725/2019 wherein this Court allowed the petition and
remanded the matter for reconsideration and after reconsideration,
an application came to be rejected against which,
W.P.No.51012/2019 came to be filed and in view of the
entrustment of the matter to the CBI and after investigation, the
writ petition came to be dismissed as having become infructuous.
69. The learned Additional Solicitor General further
contended that the provisions of Section 173 of Cr.P.C., does not
preclude the police from conducting a further investigation in
respect of an offence after a report under sub- section (2) of
Cr.P.C., has been forwarded to the Magistrate and, where upon
such further investigation, the officer in charge of the police station
obtains further evidence, oral or documentary, he is required to
forward to the Magistrate a further report or reports regarding such
evidence in the form prescribed. The powers of the State
Government to entrust the matter is independent. He further
contended that after entrustment of the matter, before undertaking
further investigation, two memos under Section 173(8) of Cr.P.C.
came to be filed before the jurisdictional Court soon after the 2nd
respondent communicated the aforesaid order to the 1st respondent
under the provisions of Section 5 of the DSPE Act intimating the
Court that the CBI-2nd respondent taking up further investigation of
the crime in question. Since the jurisdictional Court has not
rejected the memo, it was presumed that prior permission was
accorded for necessary investigation. Therefore, no statutory
permission was required for further investigation in view of the
provisions of Section 173(8) of Cr.P.C. He would further contend
that the petitioners are challenging only the orders passed by the
State Government and registering the FIR, but not the cognizance
taken by the jurisdictional Court as well as subsequent final reports
filed and the same was taken cognizance by the Hon'ble Supreme
Court while disposing of the Special Leave Petitions and specifically
referring the same in the final order.
70. The learned Additional Soliticor General further
contended that the judgment relied upon by the learned Counsel for
the accused persons in the case of Vinubhai case reported in
(2002)4 SCC 638 particularly paragraph-7 has no application to the
facts and circumstances of the present case. Therefore, he sought
to dismiss the writ petitions.
71. The learned Additional Solicitor General further
contended that as there was change of Public Prosecutor and in
view of involvement of accused No.19, who was the Investigating
Officer and Supervisory Officer-accused No.20, who received illegal
gratification, the State Government, in the interest of justice,
thought it fit to entrust the matter to the 2nd respondent-CBI and
no prejudice would be caused to the accused persons in facing the
trial as the investigation has already been completed and the
investigating authorities have found that there is material against
the accused persons. Since in all the writ petitions, the accused
having not made out any case as to how they would be prejudiced,
if they face the trial, the same are liable to be dismissed.
72. In support of his contentions, learned Additional Solicitor
General relied upon the following dictums of the Hon'ble Supreme
Court:
a) (2008)2 SCC 383 - paragraphs-4 and 17
(granting permission for necessary
implication);
b) Fertico Mktg & Investment (P) Ltd. -vs- CBI
reported in (2021) 2 SCR 525 - paragraph-
12; and
c) Pradeep Ram -vs- State of Jharkhand,
(2019) 17 SCC 326 - paragraph 45 with
regard to continuation of FIR.
73. Sri Vivek Reddy, learned Senior Counsel appearing on
behalf of Sri Deepak Shetty, learned Counsel for impleading
applicants i.e., the original complainants in W.P.No.51012/2019
contended that in view of the fact that the applicants were not in a
position to produce any material documents, their application filed
under Section 319 of Cr.P.C., came to be rejected by the trial
Court. He also contended that earlier writ petitions filed by the
complainants against accused Nos.19 and 20, who were the
investigating authorities as well as investigating officers and
supervisory authority, colluded in the crime and due to non-
availability of material documents, they could not produce the
same, thereby the learned Single Judge dismissed the writ petitions
which was confirmed by the Hon'ble Supreme Court. He further
contended that the trial Court by the order dated 9.1.2019 rejected
the application filed under Section 195 of Cr.P.C., for summoning of
the witnesses which was the subject matter of Criminal Appeal
No.10046/2019 and the same came to be allowed and remanded
and after remand, the jurisdictional police have filed FIR ending in
filing of 'B' report and the same was the subject matter of PCR
236/2019 pending before the Principal Civil Judge, Dharwad. He
would further contend that after entrusting the matter to the 2nd
respondent-CBI by the State Government, CBI arrested accused
persons as they found material against them and consequently,
after investigation charge sheets are filed, Court has taken
cognizance and now at this stage, it is not open for this Court to
interfere with the impugned order, Annexure-A passed by the State
Government registering FIR by the CBI in exercise of powers under
Articles 226 and 227 of the Constitution of India. He also submitted
that he would also adopt the arguments advanced by the learned
Solicitor General of India as well as Additional Solicitor General and
sought to dismiss the writ petitions.
XI - Points for determination
74. In view of the aforesaid rival contentions urged by the
learned counsel for the parties, the points that would arise for our
consideration in these writ petitions are:
i) Whether the petitioners - Accused Nos.1,5,15,16 and
21, in these writ petitions have made out a case to
quash the impugned Government Order bearing
No.HD 48 PCB 2016, Bengaluru, dated 6.9.2019, by
which sanction has been accorded to the Central
Bureau of Investigation, under Section (6) of Delhi
Special Police Establishment Act, 1946 for further
investigation of Crime No.135/2016 under Section 302
of IPC lodged in Dharwad Sub-Urban Police Station,
Dharwad, and to quash the FIR dated 24.9.2019 made
in Bangalore/CBI/ACB/BLR 2019 RC 17(S)/2019, by
the Superintendent of Police, Central Bureau of
Investigation, in the facts and circumstances of the
present case ?
ii) Whether the Investigating Officer of the 2nd
respondent/CBI is empowered to proceed with the
investigation, in view of the interim order passed by
the Hon'ble Supreme Court dated 20.2.2020 in SLP
(Criminal) No.1348/2020 (from 20.2.2000 to
11.8.2021) staying the operation of the order passed
by the learned Single Judge of this Court dated
21.11.2019 made in W.P. No.51012/2019, in the
peculiar facts and circumstances of the present case ?
XII - Consideration
75. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material on record including the original records
maintained by the Government, which culminated in the passing of
the Government Order bearing No.HD 48 PCB 2016, Bengaluru,
dated 6.9.2019.
76. It is the case of the applicant Nos.1 and 2, who filed
impleading application - I.A. No.1/2021 in Writ Petition
No.51012/2020 that they are mother and brother of the deceased
Yogishgouda Goudar respectively and that Accused No.15 - Vinay
Kulkarni was the Sitting Member of Karnataka Legislative Assembly
from Dharwad-Rural Constituency and the Minister for Mines &
Geology, Government of Karnataka and also in-charge Minister of
Dharwad district as on the date of commission of the offence i.e.,
on 15.6.2016. Both the deceased Yogishgouda Goudar and
Accused No.15 - Vinay Kulkarni are political rivals and their rivalry
escalated to personal level in the recent past and one such incident
took place on 23.4.2016 in the Taluka Level Meeting for supply of
drinking water and Draught Management, which was presided over
by Mr.Vinay Kulkarni (Accused No.15) since he was district in-
charge Minister. The deceased Yogishgouda Goudar also attended
the said meeting as he was the Member of Zilla Panchayat at the
relevant point of time. In the said meeting, there was a serious
altercation between Mr. Vinay Kulkarni (Accused No.15) and the
deceased Yogishgouda Goudar regarding supply of drinking water in
the district.
77. It is alleged in the present writ petitions that though
there was threat to the deceased Yogishgouda Goudar, he had
ignored the threatening letters and had been going on with his day
to day affairs, which included attending Gym at 7.30 a.m. in the
morning. It was further alleged that, on 15.6.2016, when the
deceased had proceeded to Gym which was located within the
jurisdiction of Dharwad Sub-Urban Police Station and when he was
about to enter the Gym, certain unknown persons assaulted him
with weapons and caused his death. On the basis of the information
received, Dharwad Sub-Urban Police registered Crime No.135/2016
on 15.6.2016 against unknown persons for the offence punishable
under Section 302 of IPC and after investigation, the Investigating
Officer filed the final report against six accused persons (Accused
No.1 is the petitioner in W.P. No.51012/2019) for the offences
punishable under Sections 143, 147, 148, 120B, 302, 201 r/w 149
of IPC. After registering the case, the jurisdictional court taken
cognizance and committed the matter to the Sessions Court. The
Sessions Court proceeded for the trial and also recorded the
statements of the accused persons under the provisions of Section
313 of the Code of Criminal Procedure.
78. At that stage, Smt. Tungamma and Gurnnathagouda, the
mother and brother of the deceased filed Writ Petition Nos.58183-
184/17 for a writ of mandamus directing the CBI to investigate the
murder of Yogishgouda Goudar and submit report and to take
action as per law and direct the Respondent Nos.4 and 5 therein
(State of Karnataka, Represented by its Chief Secretary and the
Secretary, Home Department, Government of Karnataka
respectively) to initiate action against all erring police officials who
shielded respondent No.10 therein i.e., Mr. Vinay Kulkarni and
other culprits in the conspiracy of murder of Yogishgouda Goudar.
79. It was alleged in the said writ petition that the incident of
murder of Yogishgouda Goudar had taken place on 15.6.2016
between 7.37 a.m and 7.38 a.m. and that Accused Nos.1 to 6
gathered before the Uday Gym, Saptapur, Dharwad and killed the
deceased Yogishgouda Goudar mercilessly and there was recorded
CCTV footage of next building of the place where the offence
committed. The investigation only relied upon 3 minutes footage.
The murder may be there at the spot prior to the said incident. But
taking into consideration of the CCTV footage of 3 minutes is
wholly suspicious. Even there is ATM in the said building, where
incident took place and investigating Officer relied upon the CCTV
footage of next building, which creates doubt on the investigation.
The CCTV footage relied upon by the police authorities also reveals
that the Hyundai Accent Car (Black) was involved in the said
murder. Accused persons gave signal to the said car which comes
from the KCD towards Saptapur circle and surprisingly, the said car
again returned back towards KCD circle within 70-75 seconds. But,
the Police official did not enquire about the said car, even though it
is important clue in this case. Surprisingly, the driver and
conductor of the bus belonging to BTS was examined by the Police,
but they have failed to examine the car, which is part of the said
murder.
80. It was further alleged in the said writ petition that FIR
was registered in Crime No.135/2016 on 15.6.2016 at 9.30 a.m.
and within a span of one hour, the Home Minister statement was
published in the News channel immediately that the murder was
due to the land disputes and it shows it was fully planned murder
with political influence and accused were not traced till 17.7.2016,
Even the Investigating Officer confirmed on 15.6.2016 that still no
reason was found about the murder. The fact that the Home
Minister could make such a statement itself created a doubt about
the fair investigation and Accused Nos.1 to 5 were arrested on
17.6.2016 at 6.30 a.m. and Accused No.6 was arrested on
20.6.2016. Recoveries were made and there is no mahazar drawn
by the Investigating Officer of the place of arrest of the accused
persons nor the exact place of their arrest was mentioned
anywhere.
81. It was further alleged that the resident of Vikasa Nagar,
Dharwad, informed the Police that one unattended black colour
Hyundai Accent car was parked in the locality since a week prior to
the incident and the Police came to the spot and taken car and
promptly returned the said car to its owner without any enquiry. It
is further contended that the presence of the widow of the deceased
was secured before the court and she has been examined and the
trial judge did not record her statement which actually deposed and
further alleged that Respondent No.10 therein i.e., Accused No.15
is the master mind in the conspiracy to murder her husband and
trial Judge initially refused to mark the caution letter as Exhibit and
after serious efforts made by the Public Prosecutor, the letters are
marked as Ex.P1 and P2.
82. It is further contended in the said writ petition that
respondent No.11 therein viz., Mr. Tulajappa Sulfi, who was
working as Deputy Superintendent of Police in the office of
Inspector General, Belgavi, visited the residence of petitioner No.2
therein i.e., Gurunathagouda on 27.10.2017 around 11.15 a.m. and
threatened him to settle the matter with Minister - Vinay Kulkrni
and give evidence in favour of the accused of his brother's murder
and again he visited the residence of Gurunathagouda at about
6.00 p.m. and asked him to speak to Minister - Vinay Kulkrni over
his mobile. Reluctantly, the 2nd petitioner therein did speak to
Minister and he was told to settle the case by compromising with
the accused. The said Deputy Superintendent of Police was very
close to the said Minister and even though he is not at all related to
the case in the official capacity, he tried to help the accused as well
as the Minister from escaping the clutches of law by forcing the
witnesses to give evidence in favour of accused and same raised
doubt on fair trial as well as on the fair investigation.
Accordingly, the petitioners therein lodged a complaint to the then
Hon'ble Chief Justice of Karnataka on 3.11.2019 seeking change of
Court of trial, specifically stating in an affidavit about no-
confidence in the trial Judge. It is further contended that even
though all these efforts are made by the petitioners therein and
approached the concerned department Minister and Chief Minister,
no steps are taken and therefore without any other alternative and
efficacious remedy, the petitioners therein approached this Court
invoking writ jurisdiction. The State opposed the said writ petition
by filing objections.
83. Considering the entire material on record, the learned
Single Judge has recorded a finding in the said writ petition that it
is not a case to order for CBI investigation and there must be some
material on record to show that the Investigating Officer has
committed an error in conducting the investigation and shabby
investigation is conducted and in the absence of prima facie
material to come to the conclusion that there was unfair
investigation, this Court cannot exercise its writ jurisdiction to order
for CBI investigation. Ultimately, this Court held that there is no
material to invoke Section 173(8) of the Code of Criminal Procedure
asking the Investigating Officer to investigate and file additional
charge sheet and having considered the contention of the
petitioners therein, only the scope of Section 319 of the Code of
Criminal Procedure can be invoked if CW.19 who did not appear
before the Court place any material before the court to array the
real culprit. Accordingly, dismissed the said writ petition.
84. It is also not in dispute that against the said order
passed, the mother and brother of the deceased filed Petition for
Special Leave to Appeal (crl.) Nos.5760-61/2019 and the Hon'ble
Supreme Court dismissed the said SLP on 22.7.2019.
85. It is an undisputed fact that an application filed under
section 319 of the Code of Criminal procedure came to be dismissed
by the trial Court by an order dated 26.8.2019. Against the said
order, the brother of the deceased i.e., Gurunathgouda filed
Criminal Petition No.101725/2019 before this Court. In the said
criminal petition, learned counsel for the petitioner therein
submitted that the petition may be dismissed as having become
infructuous in the light of the subsequent developments.
Accordingly, the said criminal petition came to dismissed by the
order dated 7.6.2011.
86. It is also not in dispute that thereafter the impleading
applicant No.2 - Gurunathagouda gave representation dated
6.8.2019 to the Chief Minister of Karnataka narrating all the facts
including those which are happened after dismissal of Writ Petition
Nos.58183-58184/2017 with regard to shabby investigation
conducted by the Investigating Officers i.e., Tulajappa Sulfi, Dy.SP,
I.G. Office, Belgavi and Chandrashekhar, Dy.S.P., Dharwad and
Ex-Minister Vinay Kulkarni threatening the witnesses to give
evidence favouring the accused etc., It is also brought to the
notice of Government regarding observations made by this Court in
Criminal Appeal No.100046/2019.
87. Considering the entire material on record and taking
into consideration the opinion expressed by the learned Advocate
General of Government of Karnataka and considering the provisions
of Sections 156 and 173(8) of Criminal Procedure Code,
Government was satisfied that the further investigation of Crime
No.135/2016 of IPC of Dharwad Sub-Urban Police Station, Dharwad
was needed to be handed over to CBI, in order to meet the ends of
justice. Accordingly, by the impugned Government Order dated
6.9.2019, sanction has been accorded to the CBI, under Section 6
of Delhi Special Police Establishment Act, 1946 for further
investigation of Crime No.135/2016 of Dharwad Sub-Urban Police
Station, Dharwad. The same was issued by order and in the name
of the Governor of Karnataka after applying its mind and taking into
consideration the peculiar facts and circumstances of the present
case. Accordingly, the FIR came to be registered on 24.9.2019 as
per Annexure-B. In these writ petitions, the petitioners have
sought for writ in the nature of certiorari for quashing the
Government Order dated 6.9.2019 and the FIR dated 24.9.2019.
88. It is also not in dispute that the learned Single Judge of
this Court in Writ Petition No.51012/2019 by the order dated
21.11.2019, while issuing notice to the 2nd respondent - CBI, has
granted interim relief staying all further proceedings pursuant to
Government Order dated 6.9.2019 and FIR dated 24.9.2019, till
the next date of hearing. Subsequently, the interim order was
extended from time to time. Aggrieved by the said interim order
passed by the learned Single Judge of this Court, the CBI filed
SLP (Crl.) 1348/2020 before the Hon'ble Supreme Court. The
Hon'ble Supreme Court by the order dated 20.2.2020 while issuing
notice in the Special Leave Petition, as an interim measure, directed
that there would be stay of operation of the order passed by the
learned Single Judge of this Court. Resultantly, the investigation
was conducted and carried out by the CBI. The Investigating
Officer of the CBI filed the 1st supplementary charge sheet on
20.5.2020 adding Accused Nos.7 to 14 to the array of the accused
and same was taken cognizance of by the Court. Thereafter on
30.1.2021 2nd supplementary charge sheet was filed adding
Accused Nos.15 to 17. Further, since Accused Nos.19 and 20 were
public servants, sanction to prosecute them has also been obtained
by the CBI. The concerned court took the cognizance of all the
additional charge sheets filed by the order dated 7.6.2021, thereby
the case stands registered as against Accused Nos.15 to 17 as well.
89. The Hon'ble Supreme Court while disposing of Petition for
SLP (Crl.) 1348/2020 on 11.8.2021, has made certain observations,
which are as under:
"By order dated 20.02.2020, this Court issued
notice in the Special Leave Petition and as an interim
measure, directed that there would be stay of operation
of the order passed by the High Court. Resultantly, the
investigation was conducted and carried out by the CBI.
We have been given to understand that after such
investigation was carried out, a Challan was filed by the
CBI on 02.05.2020 adding Accused Nos.7 to 14 in the
array of the accused. Cognizance in respect of first
Challan filed by the CBI was taken on 02.05.2020 itself.
Thereafter, further Challans have been filed on
behalf of the CBI adding four more persons as accused.
Since Accused Nos.19 and 20 are public servants,
sanction to prosecute them has also been obtained by
the CBI.
Cognizance in respect of said Challans has been
taken by the concerned Court vide order dated
07.06.2021 and the case now stands registered as
against Accused Nos.15 to 17 as well.
It thus emerges:
a) The main issue as raised in the writ petition is
not yet gone into by the High Court.
b) The matter in this Court arises from an interim
order.
c) As a result of the interim order passed by this
Court, the aforesaid developments have already
taken place.
d) The interim order passed by this Court on
20.02.2020 continues to operate.
In the aforesaid circumstances, without going into the
merits or demerits of the rival contentions, we request
the High Court to take up Writ Petition No.51012 of
2019 for disposal as early as possible and preferably
within two months from the receipt of copy
of this order. Considering the issues raised in the
matter, we request the Chief Justice of the High Court
to assign the matter to a Division Bench of the High
Court, if the relevant Rules so permit.
Pending such consideration, the interim order
passed by this Court on 20.02.2020 shall continue to
operate.
We shall not be taken to have expressed any
opinion on the merits of the matter and all contentions
as are available to the parties are left open to be
advanced before and considered by the High Court.
With these observations, the Special Leave
Petition (Crl.)No.1348 of 2020 stands disposed of.
Pending applications, if any, also stand disposed
of." (emphasis supplied)
The said order passed by the Hon'ble Supreme Court binds all the
parties.
90. On careful perusal of the material documents including
the objections filed by the respondents, it clearly depicts that the
deceased Yogishgouda Goudar was a member of the Zilla
Panchayath from Bharatiya Janatha Party ('BJP') and the accused,
especially Accused No.15 was in the congress party and there was a
verbal altercation between the deceased and accused in the
meeting held on 24.4.2015, thereby the Accused No.15 and other
accused have developed vengeance. Accordingly, after entering
into conspiracy, on 15.6.2016 the deceased was killed near the
Gym within the jurisdiction of Dharwad Sub-Urban Police Station
and the Police registered the case for the offence punishable under
the provisions of Section 302 of IPC in Crime No.135/2016 against
unknown persons. During the course of examination of the
prosecution witnesses in SC 50/2017, mother and brother of the
deceased approached the then Chief Minister with a representation
requesting to refer the matter to CBI and the said representation
was not fructified into action. It is further alleged that
Gurunathgouda, brother of the deceased has been examined as
PW.58 and during the course of his evidence, he has stated that the
police have not investigated the case properly and that one more
car which was involved in the incident has been left out from the
investigation and CCTV footages around the place of incident has
not been obtained by the State Police, and that mother of the
deceased also given complaint to the Government in that regard.
During the said period, the said Gurunathgoudar had also given a
complaint to the State of Karnataka requesting for handing over of
the case for investigation by the CBI. The said complaint would
clearly indicate the involvement of the police offices of the rank of
Deputy Superintendent of Police and a senior politician in the
incident and filing of the final report without proper investigation.
Therefore, mother and brother of the deceased filed Writ Petition
Nos. 58183-58184/2017 with a prayer to hand over the case to the
CBI. The Government opposed the said writ petition filed by
mother and brother of the deceased to refer the matter to CBI, in
order to shield the Accused No.15 and other accused persons, who
are the members of the congress party and thereby the writ
petition came to be dismissed and same is upheld by the Hon'ble
Supreme Court. It is contended that thereafter new Government
was established and one more representation was made by mother
and brother of the deceased to the Chief Minister and based on
their representation, the present Government proceeded to entrust
the matter to the CBI, the 2nd respondent on 6.9.2019 after
obtaining opinion from the learned Advocate General of the State of
Karnataka. It is further contended in the grounds of the writ
petition that the impugned Government Order dated 6.9.2019 is
malicious and politically motivated only in order to take vengeance
against the Accused No.15 - Vinay Kulkarni, who was the then
Minister of Congress party and keeping in mind that the deceased
Yogishgouda Goudar was a member of the Zilla Panchayath from
BJP. It is further contended that the State Government has no
authority to issue the impugned Government Order, in view of the
order passed by this Court dated 1.3.2019 in the earlier writ
petition rejecting the prayer for entrustment of the matter to CBI
and confirmed by the Hon'ble Supreme Court. There is a
allegation and counter allegation between the two political parties.
Admittedly Accused No.15 and other accused persons belong to
Congress party as alleged by the respondents in the Statement of
objections as well as in the submissions made by the learned
counsel for the parties and the deceased Yogishgouda Goudar
belong to BJP as alleged in the grounds of the present writ petition
and as contended by the learned counsel for the
petitioners/accused persons, which clearly indicates that the
political parties are trying to settle the scores against each other
taking the advantage of the judicial process.
91. "It is well settled that the State Government acting under
the Constitution, is under constitutional duty coupled with power.
Every Government is a trustee of the society and in all facets of
public administration, every Government has to exhibit honesty,
integrity, sincerity and faithfulness in implementation of the
political, social, economic and constitutional policies to integrate the
nation, to achieve excellence and efficiency in the public
administration. Government is entrusted with duty and power to
implement constitutional policy under Articles 14, 21 and 300A and
all inter-related directive principles of state policy under the
Constitution, should exhibit transparency in implementation and of
accountable for due effectuation of constitutional goals.
Unfortunately, even after lapse of 75 years of independence of our
country, no political party is fighting to protect the rights of every
citizen of the country and every political party have their own
agenda and design to continue in the power for ever and every
political party is trying to take advantage of the judicial process and
misuse their power including the Investigating Officers, Police
officials and official missionary."
92. It is well settled that criminalization of politics is an
anathema to the sacredness of democracy. Commenting on
criminalization of politics, the Hon'ble Supreme Court lamented the
faults and imperfection which have impeded the country in reaching
the expectations which heralded its conception. The growth and
spread of crime indicates Indian society has been pervading and
criminal elements developed an extensive network of contacts and
the nexus between the politicians, bureaucrats and criminal
elements in our country has been on rise, the adverse effects of
which are increasingly being felt on various aspects of social life in
India. Indeed, the situation has worsened to such an extent that
the President of our country felt constrained to make references to
the phenomenon in his Addresses to the Nation on the eve of
Republic day in 1996 as well as in 1997 and hence it required to be
handled with extreme care and circumspection.
93. The Hon'ble Supreme Court while considering the
criminalization of politics in the case of Anukul Chandra Pradhan
v. Union of India, reported in (1997) 6 SCC 1, has held at
paragraph-5 as under:
5. There are provisions made in the election law which
exclude persons with criminal background of the kind
specified therein, from the election scene as candidates
and voters. The object is to prevent criminalisation of
politics and maintain probity in elections. Any provision
enacted with a view to promote this object must be
welcomed and upheld as subserving the constitutional
purpose. The elbow room available to the legislature in
classification depends on the context and the object for
enactment of the provision. The existing conditions in
which the law has to be applied cannot be ignored in
adjudging its validity because it is relatable to the
object sought to be achieved by the legislation.
Criminalisation of politics is the bane of society and
negation of democracy. It is subversive of free and fair
elections which is a basic feature of the Constitution.
Thus, a provision made in the election law to promote
the object of free and fair elections and facilitate
maintenance of law and order which are the essence of
democracy must, therefore, be so viewed. More elbow
room to the legislature for classification has to be
available to achieve the professed object.
94. It is high time for the judiciary to protect the fundamental
rights of the citizens of this country to ensure justice must not only
be done but must be seen to be done and majesty of rule of law is
to be upheld and it is to be ensured that guilty are punished in
accordance with law notwithstanding their status and authority
which they might have enjoyed. This Court being the protector of
the civil liberties of the citizens, has not only power and jurisdiction
but also an obligation to protect the fundamental rights guaranteed
by part III in general and Article 21 of the Constitution in particular,
zealously and vigilantly.
95. Keeping in mind the aforesaid principles, it is relevant to
consider at this stage whether the State Government is justified in
entrusting the matter to the CBI in pursuance of the impugned
Government Order dated 6.9.2019, in view of the representation
made by the kith and kin of the deceased. A careful perusal of the
records which culminated into passing of the impugned Government
Order dated 6.9.2019 clearly indicates that the State Government
was aware of the fact that the complainant had earlier approached
this Court requesting to hand over the case to the CBI and this
Court has dismissed the said writ petition. After considering the
entire material on record, the State Government was of the opinion
that the matter has to be entrusted to the CBI for further
investigation, which is an independent authority and there is no bar
for the State Government to exercise its sovereign power to entrust
the matter to the CBI under Section 6 of the Delhi Special Police
Establishment Act, 1946 for further investigation in Crime 135/2016
for the offence under section 302 IPC, in order to meet the ends of
justice, Accordingly, the Central Government also issued notification
on 23.9.2019 extending the powers and jurisdiction of the
members of the Delhi Special Police Establishment in whole State of
Karnataka for further investigation of Crime No.135/2016 under
Section 302 IPC lodged in in Dharwad Sub-Urban Police Station,
Dharwad.
96. It is also not in dispute that the present writ petitions are
filed challenging the validity of the Government Order dated
6.9.2019 entrusting the matter for further investigation to CBI and
for quashing of FIR dated 24.9.2019. The learned Single Judge of
this Court granted the interim order on 21.11.2019 staying all
further proceedings pursuant to the Government Order dated
6.9.2019 and FIR dated 24.9.2019, till the next date of hearing
and the said interim order was extended from time to time. It is
also not in dispute that the CBI filed SLP (crl.) 1348/2020
challenging the order dated 21.11.2019 passed in W.P.
No.51012/2019. The Hon'ble Supreme Court by the order dated
20.2.2020 issued notice in the SLP and as an interim measure,
directed that there would be stay of operation of the order dated
21.11.2019 passed by this Court. Resultantly, the investigation was
conducted and carried out by the CBI. After investigation, filed the
supplementary charge sheet on 20.5.2020 adding Accused Nos.7
to 14 in the array of accused and the cognisance was taken by the
competent Court. Thereafter, another supplementary charge sheet
was filed on 30.1.2021 adding Accused Nos.15 to 17. Cognizance
in respect of the said charge sheets were taken on 7.6.2021. Since
Accused Nos.19 and 20 are public servants, sanction to prosecute
them has also been obtained by the CBI. In these writ petitions,
none of the petitioners have challenged the charge sheets filed
against the accused persons nor challenged the cognizance taken
by the Court after applying its judicial mind.
97. It is also relevant to state that soon after Government
Order dated 6.9.2019 issued by the State Government handing
over the matter to the CBI, the 2nd respondent filed memo dated
27.9.2019 before the Principal Civil Judge (Jr.Division) & JMFC,
Dharwad under the provisions of Section 173(8) and also one more
memo dated 27.9.2019 filed on the file of the learned IV Addl.
District & Sessions Judge, Dharwad under provisions of Section
173(8) of the Code of Criminal Procedure intimating the Court
about CBI taking up the matter for further investigation.
98. The 2nd charge sheet filed depicts that the further
investigation conducted has revealed that Accused No.1 had
arranged accused outside Dharwad to execute the murder of the
deceased Yogishgouda Goudar and the said accused persons were
not arrested by the local police in their investigation and Accused
No.1 surrendered voluntarily during the investigation as a part of
larger conspiracy. The analysis of CCTV footage and the
confrontation of the same with witnesses and the charge-sheeted
accused led to the identification of eight other accused persons who
were arrested by CBI. The accused were taken to police custody
and later remanded to judicial custody. A supplementary charge
sheet was filed by the CBI on 20.5.2020 under section 173(8) of
the Code of Criminal Procedure against Accused Nos.1 to 14
including the eight accused persons arrested by the CBI (Accused
Nos.7 to 14) in addition to six accused charge sheeted by the local
police (Accused Nos.1 to 6). Accordingly, the Court has taken
cognizance of the same as 352/2020 and the CBI continued with
the further investigation. The further investigation revealed the
participation of Shri Vinay Kulkarni (Accused No.15) in the
conspiracy leading to the murder of Yogishgoud Goudar and he was
arrested on 5.11.2020. The further investigation revealed
participation of Shri Chandrashekar Indi (Accused No.16), who is
the maternal uncle of Accused No.15. Accused No.16 is a
business man by profession running a dealership of toilet cleaning
materials and he used to visit Dharwad regularly to meet Accused
No.15 and Accused No.16 was arrested on 13.12.2020 for his
involvement in arranging three country made made pistols from
Bijapur and handing over to Accused No.1 with a purpose to use it
to execute the murder of Sri Yogishgoud Goudar. The further
investigation has revealed that there was personal enmity between
Accused No.15 and the deceased as the deceased declined the
request of the Accused No.15 to step back from the Zilla panchayat
election of 2016. The further investigation has revealed that a
serious verbal altercation had occurred between the deceased
Yogishgoud Goudar and Accused No.15, in a Zilla Panchayat
meeting, a month and half prior to the murder. The said Zilla
Panchayat meeting was held on 23.4.2016 and it was chaired by
Mr. Vinay Kulkarni (Accused No.15), as in-charge Minister of
Dharwad district. It is revealed that the deceased YogishGoudar
has also attended the said meeting representing his constituency.
The said fact has been confirmed by the witnesses (CW.41 to
CW.43) who attended the meeting. The further investigation
revealed that Mr. Vinay Kulkarni (Accused No.15) had conspired
with his close associates - Accused Nos.1 and 16 and others for the
murder of the deceased Yogishgouda Goudar following the Zilla
Panchayat meeting on 23.4.2016. The accused persons acted as
prime conspirators of the murder of the deceased Yogishgouda
Goudar. The investigation further revealed that for a period from
January 2016 to June 2016, CDR of the personal mobile number of
Mr. Vinay Kulkarni (Accused No.15) (9663406677) showed that he
was in touch with Shri Basavaraj Muttagi (Accused No.1) in his
mobile number (9538659906) on 57 occasions. Further,
Accused No.1 was also in touch with the mobile number registered
in the name of wife of the petitioner (9611683099) and the CDR
indicates 54 calls made between 16.4.2016 to 30.5.2016 a total of
94 calls from January 2016 till 30.5.2016. Apart from those calls,
the tower locations of the mobile numbers registered in the name of
Mr. Vinay Kulkarni (Accused NO.15) and Shri Basavaraj Muttagi
(Accused No.1) were found at near locations for six times from the
period 23.4.2016 to 31.5.2016 suggesting that they met several
times prior to the murder.
99. The further investigation revealed in pursuance of the
conspiracy, Sri Vinay Kulkarni (Accused No.15) made arrangements
for the surrender of Accused Nos.1 to 6 in place of the accused
who executed the crime (Accused Nos.7 to 14). The Accused Nos.1
to 5 surrendered before the then ACP Shri Vasudev Rama Nilkeni
whose arrest was recorded by then Investigating Officer Shri C.
Tingerikar on 17.6.2016. Later, the arrest of Accused No.6 was
also recorded on 20.6.2016. The further investigation revealed that
Accused No.15 had interfered in the legal process during trial,
which resulted in the witnesses turning hostile. The further
investigation revealed that Accused No.15 who was the then
Minister misused the political power to intimidate the eye witnesses
including a lady witness who were common people of the society so
as to prevent them from deposing the entire truth before the trial
Court. The further investigation also revealed that the panch
witnesses were also intimidated to prevent them from deposing the
truth on the directions of Accused No.15. It is also revealed that
Accused NO.16 used to visit Dharwad to attend and monitor the
trial proceedings in S.C. No.50/2017 and he used to stay at Hotel
Central Park, near court circle, Dharwad and Hotel Ankita Residency
located near to Dharwad Sessions Court complex at Dharwad. The
above overt acts and circumstances disclose the commission of
offence by Accused Nos.1,15, 16 and 17 under the provisions of
Sections 120B r/w 302, 201, 143, 147, 148 r/w 149 of IPC and
under Section 25 r/w Section 3, 5, 8 and 29 of the Arms Act. The
further investigation conducted by the 2nd respondent revealed that
88 witnesses were examined and 75 documents were produced,
which depicts the involvement of the accused persons in the
homicidal death of the deceased.
100. The material on record depicts that the Public
Prosecutor, who was in-charge of the crime was changed during
trial. The material also revealed that during the course of further
investigation by CBI, it has come to light that some of the Police
officials including previous Investigating Officer are also found to be
involved in the case, were found to have taken gratification to
scuttle the investigation and they have been arrayed as Accused
Nos.19 and 20. Accused No.19 is the previous Investigating Officer
and Accused No.20 is the Supervisory Officer of Accused No.19.
After considering the charge sheet material, the Government of
Karnataka has accorded sanction to prosecute the said accused
persons as well and departmental enquiry has also been initiated
against them. The material on record clearly depicts that there are
overt acts against the accused persons in the supplementary charge
sheets and the competent Court took cognizance of the additional
charge sheets. Therefore, the contention of the learned counsel
for the petitioners that the investigation is defective, malafide and
there is no permission obtained from the Court, cannot be accepted
and same is devoid of any merit.
101. It is relevant to consider the provisions of 173(8) of the
Code of Criminal Procedure, which reads 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)."
102. A careful reading of the said provisions, makes it clear
sub section (8) of Section 173 of the Code of Criminal Procedure
does talk about "further investigation". The term, "further
investigation" has, however, not been defined in the Code and
must therefore depend on the facts of each case as culled from the
record. The further investigation conducted by the 2nd respondent
revealed that 88 witnesses were examined and 75 documents were
produced, which depicts the overt acts against the additional
accused persons and accordingly filed the supplementary charge
sheets before the Court, which clearly indicates that the nature of
the investigation conducted by the 2nd respondent amounts to
continuation of further investigation in Crime No.135/16 and not re-
investigation as contended by the learned counsel for the
petitioners.
103. The Hon'ble Supreme Court while considering the
provisions of Section 173(8) of the Code of Criminal Procedure in
the case of Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj -vs- State of A.P. reported in
1999 Crl.J. 3661, held at paragraph-10 as under:
10. Power of the police to conduct further investigation,
after laying final report, is recognised under Section
173(8) of the Code of Criminal Procedure. Even after
the court took cognizance of any offence on the
strength of the police report first submitted, it is open
to the police to conduct further investigation. This has
been so stated by this Court in Ram Lal Narang v. State
(Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479
: AIR 1979 SC 1791] . The only rider provided by the
aforesaid decision is that it would be desirable that the
police should inform the court and seek formal
permission to make further investigation.
104. Admittedly, in the present case, the 2nd respondent has
informed the Court by filing a memo and subsequently
supplementary charge sheets also filed and the competent Court
took the cognizance, thereby a permission was granted by the
Court by necessary implication as held by the Hon'ble Supreme
Court in the case of State of A.P. v. A.S. Peter, reported in
(2008)2 SCC 383 at paragraphs 4 and 17, which reads as under:
4. Before carrying out the said investigation, the
Inspector of Police, CID filed a memo in the said court
with the prayer that the matter be adjourned. Although
it does not appear that any express permission was
granted for carrying out further investigation, the
prayer of adjournment was allowed in terms of the said
memo. Further investigation was carried out whereafter
an additional charge-sheet was filed against Accused 1
to 3 in the Court of the IVth Additional Munsif
Magistrate, Chittoor for offences under Sections 199,
200, 204 and 120 of the Penal Code. More accused
persons were also added in the charge-sheet in the
category of the accused. Indisputably, the case was
transferred from the Tirupati Court to a Designated
Court at Chittoor.
17. It is not a case where investigation was carried out
in relation to a separate conspiracy. As allegations had
been made against the officer of a local police station in
regard to the mode and manner in which investigation
was carried out, a further investigation was directed.
The court was informed thereabout. Although, no
express permission was granted, but evidently, such a
permission was granted by necessary implication as
further proceeding was stayed by the learned
Magistrate. It is also not a case where two charge-
sheets were filed before two different courts. The court
designated to deal with the matters wherein
investigation had been carried out by CID, is located at
Chittoor. It is in the aforementioned situation, the
Sessions Judge transferred the case pending in the
Tirupati Court to the Designated Court at Chittoor.
Cognizance of further offence had also been taken by
the Chittoor Court.
105. By careful perusal of the provisions of Section 173(8) of
the Code of Criminal Procedure, it is cleat that it does not prohibit
the Police for conducting further investigation nor does it impinge
on the power of the State Government to entrust the matter to CBI
for further investigation under of Section - 6 of the Delhi Special
Police Establishment Act, 1946. The Hon'ble Supreme Court while
considering the provisions of Section 173(8), 36 and 156 of the
Code of Criminal procedure in the case of State of Bihar v. J.A.C.
Saldanha reported in (1980) 1 SCC 554, held at paragraphs - 13,
14, 17 and 19 as under:
13. It was, however, contended that State Government
has no power to direct further investigation, that being
the power of the officer in charge of a police station
under sub-section (8) of Section 173 of the Code, or the
power of the Magistrate to direct further investigation
under sub-section (3) of Section 156, and, therefore,
the State Government under orders of the Chief
Minister was not competent to direct further
investigation in the case.
14. The State of Bihar is governed by the Indian Police
Act, 1861, ("Act" for short), because it has not enacted
any Police Act of its own. In Section 1 of the Act the
word "Police" is defined to include all persons who shall
be enrolled under the Act and the words "general police
district" are defined to embrace any presidency, State
or place, or any part of any presidency, State or place,
in which the Act shall be ordered to take effect. Section
3 of the Indian Police Act provides as under:
3. The superintendence of the police
throughout a general police district shall vest
in and, shall be exercised by the State
Government to which such district is
subordinate; and except as authorised under
the provisions of this Act, no person, officer
or court shall be empowered by the State
Government to supersede or control any
police functionary.
Section 12 confers power on the Inspector General of
Police, subject to the approval of the State Government,
to make rules and it was stated that the Bihar Police
Manual, 1978, has been issued in exercise of the power
conferred by Section 12. Section 22 provides that every
police officer shall, for all purposes in the Act contained,
be considered to be always on duty, and may at any
time be employed as a police officer in any part of the
general police district. The Act, as its long title shows,
was enacted to reorganise the police and to make it a
more efficient instrument for the prevention and
detection of crime. Investigation comprehends detection
of the crime. General police district covers the entire
State. Inspector General, Vigilance, being appointed for
the whole of the State, is a police officer considered to
be on duty for all purposes of the Act in the whole of
the State and it is open to the State Government to
employ him as police officer in any part of the general
district. This would effectively answer the contention of
Respondent 1 that Inspector General, Vigilance, being
only in charge of bribery and corruption cases, could
not be directed by the State Government in exercise of
its executive administrative function to take over
investigation of a cognisable offence registered at
railway police station because when he was directed to
take over the investigation it would mean that he was
employed as a police officer in that police station for the
detection of the crime.
17. The High Court construed the expression
"superintendence" in Section 3 of the Act to mean
"general supervision of the management of the police
department and does not vest the State Government
with authority to decide what the police alone is
authorised to decide". There is nothing in the Act to
indicate such a narrow construction of the word
"superintendence". Nothing was pointed out to us to put
a narrow construction on this general power of
superintendence conferred under the Act on the State
Government and there is no justification for limiting the
broad spectrum of power comprehended in power of
superintendence. Accordingly superintendence would
comprehend the power to direct further investigation if
the circumstances so warrant and there is nothing in
the Code providing to the contrary so as to limit or
fetter this power. Sub-section (8) of Section 173 was
pressed into service to show that the power of further
investigation after the submission of a report under
Section 173(2) would be with the officer in charge of a
police station. Sub-section (8) of Section 173 is not the
source of power of the State Government to direct
further investigation. Section 173(8) enables an officer
in charge of a police station to carry on further
investigation even after a report under Section 173(2)
is submitted to court. But if State Government has
otherwise power to direct further investigation it is
neither curtailed, limited nor denied by Section 173(8),
more so, when the State Government directs an officer
superior in rank to an officer in charge of police station
thereby enjoying all powers of an officer in charge of a
police station to further investigate the case. Such a
situation would be covered by the combined reading of
Section 173(8) with Section 36 of the Code. Such power
is claimed as flowing from the power of superintendence
over police to direct a police officer to do or not to do a
certain thing because at the stage of investigation the
power is enjoyed as executive power untrammelled by
the judiciary. It was incidentally submitted that it is an
undisputed dictum of law that when a statute requires a
thing to be done in a certain manner it shall be done in
that manner alone and the court would not expect its
being done in some other manner (see State of Gujarat
v. Shantilal Mangaldas [(1969) 1 SCC 509 : (1969) 3
SCR 341, 372] ). Expounding the submission it was
stated that sub-section (8) of Section 173 clearly
indicates the power of further investigation after
submission of a report and that power is conferred on
the officer in charge of a police station only and,
therefore, the State Government was incompetent to
direct further investigation. It was further contended
that in view of the provision contained in Section 173(8)
it would not be open to the court to so interpret the
word "superintendence" in Section 3 of the Police Act as
to empower the State Government to direct
investigation being done by some one other than the
statutory authority envisaged by Section 173(8)
because such an interpretation would derogate from the
principle that where a thing is required by a statute to
be done in a particular way it shall be deemed to have
prohibited that thing being done in any other way. In Ex
parte Stephen [(1876) 3 Ch D 659] the principle is
stated that if a statute directs a thing to be done in a
certain way that thing shall not, even if there be no
negative words, be done in any other way. Subba Rao,
J. in Patna Improvement Trust v. Smt Lakshmi Devi
[AIR 1963 SC 1077 : 1963 Supp 2 SCR 812, 823 :
(1965) 1 SCJ 119] spelt out the combined effect of the
aforementioned principles thus:
"A general Act must yield to a special Act
dealing with a specific subject-matter and
that if an Act directs a thing to be done in a
particular way, it shall be deemed to have
prohibited the doing of that thing in any other
way."
19. The power of the Magistrate under Section 156(3)
to direct further investigation is clearly an independent
power and does not stand in conflict with the power of
the State Government as spelt out hereinbefore. The
power conferred upon the Magistrate under Section
156(3) can be exercised by the Magistrate even after
submission of a report by the investigating officer which
would mean that it would be open to the Magistrate not
to accept the conclusion of the investigating officer and
direct further investigation. This provision does not in
any way affect the power of the investigating officer to
further investigate the case even after submission of
the report as provided in Section 173(8). Therefore, the
High Court was in error in holding that the State
Government in exercise of the power of
superintendence under Section 3 of the Act lacked the
power to direct further investigation into the case. In
reaching this conclusion we have kept out of
consideration the provision contained in Section 156(2)
that an investigation by an officer in charge of a police
station, which expression includes police officer superior
in rank to such officer, cannot be questioned on the
ground that such investigating officer had no
jurisdiction to carry on the investigation; otherwise that
provision would have been a short answer to the
contention raised on behalf of Respondent 1.
106. A careful reading of the impugned Government Order
dated 6.9.2019 clearly depicts that considering the entire material
on record, the Government was satisfied that further investigation
of Crime No.135/2016 under Section 302 of IPC of Dharwad Sub-
Urban Police Station, Dharwad was needed to be handed over to
CBI in order to meet the ends of justice. The order also depicts
that sanction accorded by the Government to the CBI under Section
- 6 of Delhi Special Police Establishment Act, 1946 only for further
investigation and therefore, the contention of learned counsel for
the petitioners that it was for re-investigation of the entire matter,
cannot be accepted. The Government Order clearly depicts that it
is only a further investigation, in continuation of the 1st FIR filed.
The contention that absolutely there is no reason for disapproval of
the investigation by the local police and Government has no
independent power, cannot be accepted. As already stated supra,
the entire original records maintained by the Government
culminating into passing of the impugned order clearly depicts that
the representation made by the kith and kin of the deceased
requesting for entrustment of the matter to CBI for further
investigation, has been scrupulously considered in accordance with
the provisions of Business Transaction Rules by the concerned
authorities of the Government and the Home Minister and the Chief
Minister and after application of mind and after being satisfied that
it is a fit case to refer the matter to CBI, it has issued the impugned
Government Order by order and in the name of the Governor of
Karnataka. Therefore, it is a clear case of further investigation and
not re-investigation as alleged.
107. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of Pradeep Ram v. State of
Jharkhand reported in (2019) 17 SCC 326, wherein at paragraph-
45 it is held as under:
45. Sub-section (6) of Section 6 prohibits the State
Government or any police officer of the State
Government to proceed with the investigation. In the
present case, when Order was issued by the Central
Government on 13-2-2018, it was not competent for
the police officer of the State Government to proceed
with the investigation. We, thus, are of the opinion that
FIR, which was re-registered by NIA on 16-2-2018
cannot be held to be second FIR of the offences rather
it was re-registration of the FIR to give effect to the
provisions of the NIA Act and re-registration of the FIR
is only procedural Act to initiate the investigation and
the trial under the NIA Act. The re-registration of the
FIR, thus, is neither barred nor can be held that it is
second FIR.
108. It is relevant to state at this stage that Entry 2 of List II
of the Seventh Schedule of the Constitution of India refers to Police
(including railway and village police) subject to the provisions of
Entry 2-A of List I. Entry 8 of List I of the Seventh Schedule
refers to CBI. Section 6 of the Delhi Special Police Establishment
Act states that nothing contained in Section 5 shall be deemed to
enable any member of the Delhi Special Police Establishment to
exercise powers and jurisdiction in any area in a State, without the
consent of the Government of that State. As already stated supra,
on the basis of the entrustment, the Central Government issued
notification on 23.9.2019 extending the powers and jurisdiction of
the members of the Delhi Special Police Establishment in whole
State of Karnataka for further investigation of Crime No. 135/2016
under Section 302 IPC lodged in Dharwad Sub-Urban Police
Station, Dharwad. The provisions of Section 6 of the Delhi Special
Police Establishment Act, balances the power of the Central
Government to get offences investigated through central agency
despite the exclusive domain of the State Government for such
investigation being covered by a Entry 2 of List II.
109. The Hon'ble Supreme Court while considering the
provisions of Section 6 of the Delhi Special Police Establishment Act
and Lists under the Seventh Schedule of the Constitution of India,
in the case of State of W.B. v. Committee for Protection of
Democratic Rights, reported in (2010) 3 SCC 571, has held at
paragraphs - 13, 16, 17, 21 36 39 43 68(ii) (v) (vi) and (vii) and 70
as under:
13. Learned counsel went to the extent of arguing that
even when the State police is not in a position to
conduct an impartial investigation because of
extraneous influences, the Court still cannot exercise
executive power of directing the police force of another
State to carry out investigations without the consent of
that State. In such a situation, the matter is best left to
the wisdom of Parliament to enact an appropriate
legislation to take care of the situation. According to the
learned counsel, till that is done, even such an extreme
situation would not justify the Court upsetting the
federal or quasi-federal system created by the
Constitution.
16. Shri Goolam E. Vahanvati, learned Attorney General
for India, appearing on behalf of the Union of India,
submitted that the entire approach of the State being
based on an assumption that the alleged restriction on
Parliament's legislative power under Entry 80 of List I of
the Seventh Schedule to the Constitution and restriction
on the power of the Central Government under Section
6 of the Special Police Act to issue a notification binds
the constitutional courts i.e. the Supreme Court and the
High Courts is fallacious, inasmuch as the restrictions
on the Central Government and Parliament cannot be
inferentially extended to be restrictions on the
constitutional courts in exercise of their powers under
Articles 32 and 226 of the Constitution as it is the
obligation of the superior courts to protect the citizens
and enforce their fundamental rights.
17. Learned counsel vehemently argued that the stand
of the appellants that the exercise of power by the
Supreme Court or the High Courts to refer investigation
to CBI directly without prior approval of the State
Government concerned would violate the federal
structure of the Constitution is again misconceived as it
overlooks the basic fact that in a federal structure it is
the duty of the courts to uphold the constitutional
values and to enforce the constitutional limitations as
an ultimate interpreter of the Constitution. In support of
the proposition, learned counsel placed reliance on the
decisions of this Court in State of Rajasthan v. Union of
India [(1977) 3 SCC 592] , S.R. Bommai v. Union of
India [(1994) 3 SCC 1] and Kuldip Nayar v. Union of
India [(2006) 7 SCC 1] .
21. In order to appreciate the controversy, a brief
reference to some of the provisions in the Constitution
would be necessary. The Constitution of India is divided
into several parts, each part dealing in detail with
different aspects of the social, economic, political and
administrative set-up. For the present case, we are
mainly concerned with Part III of the Constitution,
which enumerates the fundamental rights guaranteed
by the State primarily to citizens and in some cases to
every resident of India and Part XI thereof, which
pertains to the relations between the Union and the
States.
36. Having noticed the scope and amplitude of Sections
5 and 6 of the Special Police Act, the question for
consideration is whether the restriction imposed on the
powers of the Central Government would apply mutatis
mutandis to the constitutional courts as well. As stated
above, the main thrust of the argument of Shri K.K.
Venugopal, learned Senior Counsel, is that the course
adopted by the High Court in directing CBI to undertake
investigation in the State of West Bengal without the
consent of the State is incompatible with the federal
structure as also the doctrine of separation of powers
between the three organs of the State, embodied in the
Constitution even when the High Court, on the material
before it, was convinced that the State police was
dragging its feet insofar as investigation into the 4-1-
2001 carnage was concerned.
39. It is trite that in the constitutional scheme adopted
in India, besides supremacy of the Constitution, the
separation of powers between the legislature, the
executive and the judiciary constitutes the basic
features of the Constitution. In fact, the importance of
separation of powers in our system of governance was
recognised in Special Reference No. 1 of 1964 [AIR
1965 SC 745 : (1965) 1 SCR 413] , even before the
basic structure doctrine came to be propounded in the
celebrated case of Kesavananda Bharati v. State of
Kerala [(1973) 4 SCC 225] , wherein while finding
certain basic features of the Constitution, it was opined
that separation of powers is part of the basic structure
of the Constitution. Later, similar view was echoed in
Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1]
and in a series of other cases on the point.
Nevertheless, apart from the fact that our Constitution
does not envisage a rigid and strict separation of
powers between the said three organs of the State, the
power of judicial review stands entirely on a different
pedestal. Being itself part of the basic structure of the
Constitution, it cannot be ousted or abridged by even a
constitutional amendment. (See L. Chandra Kumar v.
Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S)
577] .) Besides, judicial review is otherwise essential for
resolving the disputes regarding the limits of
constitutional power and entering the constitutional
limitations as an ultimate interpreter of the
Constitution.
43. Having discussed the scope and width of the
doctrine of separation of powers, the moot question for
consideration in the present case is that when the
fundamental rights, as enshrined in Part III of the
Constitution, which include the right to equality (Article
14); the freedom of speech [Article 19(1)(a)] and the
right not to be deprived of life and liberty except by
procedure established by law (Article 21), as alleged in
the instant case, are violated, can their violation be
immunised from judicial scrutiny on the touchstone of
doctrine of separation of powers between the
legislature, executive and the judiciary.
68(ii) Article 21 of the Constitution in its broad
perspective seeks to protect the persons of their lives
and personal liberties except according to the procedure
established by law. The said article in its broad
application not only takes within its fold enforcement of
the rights of an accused but also the rights of the
victim. The State has a duty to enforce the human
rights of a citizen providing for fair and impartial
investigation against any person accused of commission
of a cognizable offence, which may include its own
officers. In certain situations even a witness to the
crime may seek for and shall be granted protection by
the State.
(v) Restriction on Parliament by the Constitution and
restriction on the executive by Parliament under an
enactment, do not amount to restriction on the power
of the Judiciary under Articles 32 and 226 of the
Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh
Schedule on the one hand and Entry 2-A and Entry 80
of List I on the other, an investigation by another
agency is permissible subject to grant of consent by the
State concerned, there is no reason as to why, in an
exceptional situation, the Court would be precluded
from exercising the same power which the Union could
exercise in terms of the provisions of the statute. In our
opinion, exercise of such power by the constitutional
courts would not violate the doctrine of separation of
powers. In fact, if in such a situation the Court fails to
grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that
subject to the consent by the State, CBI can take up
investigation in relation to the crime which was
otherwise within the jurisdiction of the State police, the
Court can also exercise its constitutional power of
judicial review and direct CBI to take up the
investigation within the jurisdiction of the State. The
power of the High Court under Article 226 of the
Constitution cannot be taken away, curtailed or diluted
by Section 6 of the Special Police Act. Irrespective of
there being any statutory provision acting as a
restriction on the powers of the Courts, the restriction
imposed by Section 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on
the powers of the constitutional courts. Therefore,
exercise of power of judicial review by the High Court,
in our opinion, would not amount to infringement of
either the doctrine of separation of power or the federal
structure.
70. Before parting with the case, we deem it necessary
to emphasise that despite wide powers conferred by
Articles 32 and 226 of the Constitution, while passing
any order, the Courts must bear in mind certain self-
imposed limitations on the exercise of these
constitutional powers. The very plenitude of the power
under the said articles requires great caution in its
exercise. Insofar as the question of issuing a direction
to CBI to conduct investigation in a case is concerned,
although no inflexible guidelines can be laid down to
decide whether or not such power should be exercised
but time and again it has been reiterated that such an
order is not to be passed as a matter of routine or
merely because a party has levelled some allegations
against the local police. This extraordinary power must
be exercised sparingly, cautiously and in exceptional
situations where it becomes necessary to provide
credibility and instil confidence in investigations or
where the incident may have national and international
ramifications or where such an order may be necessary
for doing complete justice and enforcing the
fundamental rights. Otherwise CBI would be flooded
with a large number of cases and with limited
resources, may find it difficult to properly investigate
even serious cases and in the process lose its credibility
and purpose with unsatisfactory investigations.
110. The Hon'ble Supreme Court while considering the scope
of the provisions of Sections 5 and 6 of the Delhi Special Police
Establishment Act, 1946 in the case of Fertico Mktg. &
Investment (P) Ltd. v. CBI, reported in (2021) 2 SCC 525, has
held at paragraphs 5, 7 and 12 and 16 and 17 and 22
5. The learned Single Judge of the High Court vide his
order dated 24-2-2015 [Fertico Mktg. & Investment (P)
Ltd. v. CBI, 2015 SCC OnLine All 5339] , framed the
following four questions for determination : [Fertico
Mktg. & Investment (P) Ltd. case [Fertico Mktg. &
Investment (P) Ltd. v. CBI, 2015 SCC OnLine All 5339]
SCC OnLine All para 46]
"46. ... Q. No. 1.--Whether the investigation
conducted by CBI in these bunch of cases is
illegal and without jurisdiction for non-
compliance with Section 6 of the DSPE Act? If
so, its effect?
Q. No. 2.--Whether the cases are
overwhelmingly and predominatingly of civil
nature as purely bases on breach of contract
(FSA) and the criminal prosecutions are liable
to be quashed?
Q. No. 3.--Whether CBI did not follow the
doctrine of parity in filing the criminal
prosecutions against the petitioners? If so, its
effect?
Q. No. 4.--Whether in absence of
officers/official of NCL, charge of criminal
conspiracy under Section 120-B IPC could be
made out?"
7. The learned Single Judge vide his detailed order
dated 24-2-2015 [Fertico Mktg. & Investment (P) Ltd.
v. CBI, 2015 SCC OnLine All 5339] , referred the
following two questions to the Division Bench : [Fertico
Mktg. & Investment (P) Ltd. case [Fertico Mktg. &
Investment (P) Ltd. v. CBI, 2015 SCC OnLine All 5339]
, SCC OnLine All para 83]
"83. ... 1. Whether investigation of such
cases having involvement of public servant
under control of the State Government of
U.P. as well as private individuals for
offences punishable under the Prevention of
Corruption Act, 1988 (49 of 1988), and
attempts, abetments and conspiracies in
relation to all or any of the offence or
offences mentioned above and any other
offence or offences committed in the course
of the transaction and arising out of the
same facts under the G.O. of the State
Government dated 15-6-1989 can be
investigated by CBI assuming suo motu
jurisdiction under Section 6 of the DSPE Act
without the previous permission or consent
of the State Government?
2. Whether total non-compliance/absence of
previous consent of the State Government
under Section 6 of the DSPE Act could be
cured by grant of prosecution sanction
under Section 197 CrPC or under Section 19
of the PC Act by the State Government or
competent authority?"
12. Shri Mukul Rohatgi, learned Senior Counsel
appearing on behalf of the appellants submitted that in
the absence of the consent of the State Government
under Section 6 of the DSPE Act, the DSPE (CBI) had no
powers to conduct investigation in view of the
provisions contained in Section 6 of the DSPE Act. He
submitted that the consent of the State Government is
mandatory as is seen from Section 6 of the DSPE Act.
The learned Senior Counsel would submit that failure in
obtaining the consent prior to registration of the FIR
would go to the root of the matter and vitiate the entire
investigation. He submitted that the appellants-private
individuals have been charged with the offences
punishable under Sections 120-B and 420 IPC and
Section 13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act. He submitted that an
offence under the provisions of the Prevention of
Corruption Act can be registered only against public
servant.
16. It will be relevant to refer to Sections 5 and 6 of the
DSPE Act as under:
5. Extension of powers and jurisdiction of
Special Police Establishment to other areas.--
(1) The Central Government may by
order extend to any area (including
Railway areas) in a State, not being a
Union Territory, the powers and
jurisdiction of members of the Delhi
Special Police Establishment for the
investigation of any offences or classes
of offences specified in a notification
under Section 3.
(2) When by an order under sub-
section (1) the powers and jurisdiction
of members of the said Police
Establishment are extended to any such
area, a member thereof may, subject to
any orders which the Central
Government may make in this behalf,
discharge the functions of a police
officer in that area and shall, while so
discharging such functions, be deemed
to be a member of the police force of
that area and be vested with the
powers, functions and privileges and be
subject to the liabilities of a police
officer belonging to that police force.
(3) Where any such order under sub-
section (1) is made in relation to any
area, then, without prejudice to the
provisions of sub-section (2), any
member of the Delhi Special Police
Establishment of or above the rank of
Sub-Inspector may, subject to any
orders which the Central Government
may make in this behalf, exercise the
powers of the officer in charge of a
police station in that area and when so
exercising such powers, shall be
deemed to be an officer in charge of a
police station discharging the functions
of such an officer within the limits of his
station.
6. Consent of State Government to exercise
of powers and jurisdiction.--Nothing
contained in Section 5 shall be deemed to
enable any member of the Delhi Special
Police Establishment to exercise powers and
jurisdiction in any area in a State, not being a
Union Territory or railway area, without the
consent of the Government of that State."
17. It could thus be seen that though Section 5 enables
the Central Government to extend the powers and
jurisdiction of Members of the DSPE beyond the Union
Territories to a State, the same is not permissible
unless a State grants its consent for such an extension
within the area of the State concerned under Section 6
of the DSPE Act. Obviously, the provisions are in tune
with the federal character of the Constitution, which has
been held to be one of the basic structures of the
Constitution.
22. As early as in 1955, the question arose for
consideration before this Court, as to whether an
investigation carried out by a police officer below the
rank of Deputy Superintendent of Police, under Section
5(4) of the Prevention of Corruption Act, 1947, without
the order of the Magistrate of First Class, was
mandatory or directory? While holding that the
provision is mandatory, this Court considered a
question as to whether and to what extent, the trial
which follows such investigation, is vitiated. The Court
in H.N. Rishbud v. State of Delhi [H.N. Rishbud v. State
of Delhi, (1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955
Cri LJ 526] , observed as under : (AIR p. 204, para 9)
"9. ... If, therefore, cognizance is in fact
taken, on a police report vitiated by the
breach of a mandatory provision relating to
investigation, there can be no doubt that the
result of the trial which follows it cannot be
set aside unless the illegality in the
investigation can be shown to have brought
about a miscarriage of justice. That an
illegality committed in the course of
investigation does not affect the competence
and the jurisdiction of the Court for trial is
well settled as appears from the cases in
Parbhu v. King Emperor [Parbhu v. King
Emperor, 1944 SCC OnLine PC 1 : (1943-44)
71 IA 75 : AIR 1944 PC 73] and Lumbhardar
Zutshi v. R. [Lumbhardar Zutshi v. R., 1949
SCC OnLine PC 64 : (1949-50) 77 IA 62 : AIR
1950 PC 26]
These no doubt relate to the illegality of
arrest in the course of investigation while we
are concerned in the present cases with the
illegality with reference to the machinery for
the collection of the evidence. This
distinction may have a bearing on the
question of prejudice or miscarriage of
justice, but both the cases clearly show that
invalidity of the investigation has no relation
to the competence of the Court. We are,
therefore, clearly, also, of the opinion that
where the cognizance of the case has in fact
been taken and the case has proceeded to
termination, the invalidity of the precedent
investigation does not vitiate the result,
unless miscarriage of justice has been
caused thereby."
It could thus be seen that this Court has held that the
cognizance and the trial cannot be set aside unless the
illegality in the investigation can be shown to have
brought about miscarriage of justice. It has been held
that the illegality may have a bearing on the question of
prejudice or miscarriage of justice but the invalidity of
the investigation has no relation to the competence of
the court.
111. Admittedly, in the present case the State Government
by the impugned Government Order has granted its consent and
accordingly, the Central Government also ordered for the extension
of the provisions of the DSPE Act by issuing a notification.
Therefore, the order passed by the State Government entrusting
the matter to CBI for further investigation, is in accordance with
law.
112. It is not in dispute that W.P. Nos.58183-184/2017 filed
before Dharwad Bench of High Court of Karnataka, seeking writ of
mandamus directing the investigation in respect of the information
dated 15.6.2016, registered as FIR No.135/2016, with Dharwad
Sub-Urban Police to be transferred and conducted by CBI, came to
be dismissed by the order dated 1.3.2019. The same has been
confirmed by the Hon'ble Supreme Court in SLP (Crl.) Nos.5760-
5761/2019 by the order dated 22.7.2019. It is also not in dispute
that after dismissal of the Writ Petition for entrustment of the
matter to CBI and confirmation of the same by the Hon'ble
Supreme Court, the brother of the deceased i.e., GurunathGouda,
had filed an application under Section 319 of the Code of Criminal
Procedure, seeking to include one Mr. Vinay Kulkarni and Mr.
Manjunath Basannavar, as additional accused in S.C. No. 50/2017,
pending on the file of the IV Addl. District & Sessions Judge,
Dharwad. The learned Sessions Judge on consideration of the said
application, has dismissed the same by the order dated 26.8.2019.
Against the said order, Criminal Petition No.101725/2019 has been
filed before this Court and same came to be dismissed as having
become infructuous, in view of the subsequent developments.
113. It is also relevant to state at this stage that an
application came to be filed by Mr. Gurunathagouda Goudar
(CW.19) under Section 195A of the Code of Criminal Procedure
praying to register the complaint and FIR and refer the matter to
Magistrate for investigation against the Police Officers i.e.,
Tulajappa Sulfi, Dy.SP. I.G. Office, Belgavi; Chandrashekar,
Dy.S.P., Dharwad; and Ex-Minister - Vinay Kulkarni, alleging that
they threatened the witness to give evidence favouring the
accused. The said application came to be rejected by the order
dated 9.1.2019. Against the said order, the Gurnathagouda,
brother of the deceased filed Criminal Appeal No.100045/2019
before the Dharwad Bench of High Court of Karnataka. The learned
Single Judge of this Court while allowing the appeal, has made an
observation, which reads as under:
"When such application is filed by CW.19 who is
charge sheet witness with the allegation of telephonic
conversation made with him and caused threat. The
said application is also filed through Public Prosecutor
and surprisingly, the Government is opposing the same
before this Court and the Court below by rejecting the
application washed of its hand on technicality and now
considered the application on merits and nothing is
discussed in the order regarding the substance of the
application and not passed the reasoned order and
hence, it requires the application has to be considered
afresh on merits and requires for reconsideration."
Accordingly, this Court set aside the order of rejection dated
9.1.2019 and directed the court below to consider the application
afresh in view of the observations made in the judgment and
dispose of the same on merits and not on technicality and proceed
in accordance with law. In pursuance of the same, the jurisdictional
Police filed the FIR and the same ended in filing the B report. That
is the subject matter of PCR 236/2019 pending before the Prl. Civil
judge, Dharwad for adjudication between the parties.
114. The Hon'ble Supreme Court in the case of Satishkumar
Nyalchand Shah v. State of Gujarat, reported in (2020)4 SCC 22
while considering the provisions of Sections 156(3) and 173(8) of
the Code of Criminal Procedure, has held that the power of the
Court to direct the police to conduct further investigation cannot
have any inhibition and at paragraphs 10, 11 and 12 of the
judgment, observed as under:
10. Having heard the learned counsel appearing on
behalf of the respective parties and the private
respondent herein, we are of the opinion that as such
no error has been committed by the High Court
dismissing the application submitted by the appellant
herein to implead him in the special criminal application
filed by the private respondent herein challenging the
order passed by the learned Chief Judicial Magistrate
rejecting his application for further investigation under
Section 173(8) CrPC with respect to one other accused,
namely, Shri Bhaumik against whom no charge-sheet
has been filed till date. Therefore, it is not at all
appreciable how the appellant against whom no relief is
sought for further investigation has any locus and/or
any say in the application for further investigation under
Section 173(8) CrPC. How he can be said to be a
necessary and a proper party. It is required to be noted
that, as such, even the proposed accused Shri Bhaumik
shall not have any say at this stage in an application
under Section 173(8) CrPC for further investigation, as
observed by this Court in W.N. Chadha [Union of India
v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993 SCC
(Cri) 1171] ; Narender G. Goel [Narender G. Goel v.
State of Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC
(Cri) 933] and Dinubhai Baghabhai Solanki [Dinubhai
Boghabhai Solanki v. State of Gujarat, (2014) 4 SCC
626 : (2014) 2 SCC (Cri) 384] . In Dinubhai Baghabhai
Solanki [Dinubhai Boghabhai Solanki v. State of
Gujarat, (2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384]
after considering another decision of this Court in Sri
Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P. [Sri Bhagwan
Samardha Sreepada Vallabha Venkata Vishwanandha
Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC
(Cri) 1047] , it is observed and held that there is
nothing in Section 173(8) CrPC to suggest that the
court is obliged to hear the accused before any direction
for further investigation is made. In Sri Bhagwan
Samardha [Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj v. State of A.P., (1999)
5 SCC 740 : 1999 SCC (Cri) 1047] , this Court in para
11 held as under : (Sri Bhagwan Samardha case [Sri
Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC
740 : 1999 SCC (Cri) 1047] , SCC p. 743)
"11. In such a situation the power of the court
to direct the police to conduct further
investigation cannot have any inhibition. There
is nothing in Section 173(8) to suggest that
the court is obliged to hear the accused before
any such direction is made. Casting of any
such obligation on the court would only result
in encumbering the court with the burden of
searching for all the potential accused to be
afforded with the opportunity of being heard.
As the law does not require it, we would not
burden the Magistrate with such an obligation."
11. Therefore, when the proposed accused against
whom the further investigation is sought, namely, Shri
Bhaumik is not required to be heard at this stage, there
is no question of hearing the appellant, one of the co-
accused against whom the charge-sheet is already filed
and the trial against whom is in progress and no relief
of further investigation is sought against him.
Therefore, the High Court is absolutely justified in
rejecting the application submitted by the appellant to
implead him as a party-respondent in the special
criminal application.
12. Now, so far as the reliance placed upon Rule 51 of
the Gujarat High Court Rules by the learned Senior
Advocate appearing on behalf of the appellant is
concerned, we are of the opinion that in the facts and
circumstances of the case, Rule 51 shall not have any
application for further investigation under Section
173(8) CrPC. Proceedings arising out of an application
under Section 173(8) CrPC cannot be equated with the
appeal or application against the order passed in
criminal case as stated in Rule 51. Therefore, Rule 51 of
the Gujarat High Court Rules has no application at all.
115. It is not in dispute that the Investigating Officer of the
2nd respondent/CBI, who conducted further investigation filed the
supplementary charge sheets against the accused persons to the
jurisdictional Magistrate, who took the cognizance of the offences as
stated in the supplementary charge sheets and committed the case
to the Sessions Court. It is also not in dispute that the learned
Sessions Judge framed the charge against the accused persons and
posted the matter for trial. Though the learned counsel for the
both the parties were heard at length on different dates, they were
unable to show how a miscarriage of justice has occurred in the
taking cognizance of the supplementary charge sheets filed by the
2nd respondent/CBI by the competent authority. A defect or
illegality in investigation, however serious, has no direct bearing on
the competence or the procedure relating to cognizance or trial. No
doubt a police report which result from an investigation as provided
under the provisions of Section 190 of the Code of Criminal
Procedure, is the material on which the cognizance was taken.
Admittedly the present petitioners have admitted the entrustment
of the matter to CBI for conducting further investigation. It is not in
dispute that the CBI filed the supplementary charge sheets and the
learned Magistrate has taken cognizance of the said supplementary
charge sheets. Admittedly, either filing of the supplementary charge
sheets or taking cognizance by the competent court, is not
challenged by the petitioners (accused persons) in the present writ
petitions. Therefore, the contention of learned counsel for the
petitioners that once the initial action is not in consonance with law,
all subsequent developments including filing of the supplementary
charge sheets after investigation by the CBI and taking cognizance
are invalid, cannot be accepted.
116. It is well settled that even if the investigation is not
conducted by the authorized officer, the trial is not vitiated unless
prejudice is shown. Our view is fortified by the dictum of the
Hon'ble Supreme Court in the case of R.A.H. Siguran v. Shankare
Gowda, reported in (2017)16 SCC 126, wherein at paragraphs 9
and 10 it is held as under:
9. In H.N. Rishbud v. State (UT of Delhi) [H.N. Rishbud
v. State (UT of Delhi), AIR 1955 SC 196 : (1955) 1 SCR
1150 : 1955 Cri LJ 526] the question considered by this
Court was whether after the court takes cognizance,
trial can be held to be vitiated merely on the ground
that investigation was invalid. Answering in the
negative, this Court held that if the plea of invalidity of
investigation is raised at sufficiently early stage, the
court, instead of taking cognizance, direct
reinvestigation by competent investigating officer. But,
after cognizance is taken, the trial cannot be quashed
for invalidity of investigation.
10. The observations in the said judgment are : (H.N.
Rishbud case [H.N. Rishbud v. State (UT of Delhi), AIR
1955 SC 196 : (1955) 1 SCR 1150 : 1955 Cri LJ 526] ,
AIR pp. 203-05, paras 9-10)
"9. The question then requires to be considered
whether and to what extent the trial which follows
such investigation is vitiated. Now, trial follows
cognizance and cognizance is preceded by
investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable
cases. But it does not necessarily follow that an
invalid investigation nullifies the cognizance or
trial based thereon. Here we are not concerned
with the effect of the breach of a mandatory
provision regulating the competence or procedure
of the Court as regards cognizance or trial. It is
only with reference to such a breach that the
question as to whether it constitutes an illegality
vitiating the proceedings or a mere irregularity
arises. A defect or illegality in investigation,
however serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police report which
results from an investigation is provided in
Section 190 of the Code of Criminal Procedure as
the material on which cognizance is taken. But it
cannot be maintained that a valid and legal police
report is the foundation of the jurisdiction of the
Court to take cognizance. Section 190 of the Code
of Criminal Procedure is one out of a group of
sections under the heading "Conditions requisite
for initiation of proceedings". The language of this
section is in marked contrast with that of the
other sections of the group under the same
heading i.e. Sections 193 and 195 to 199. These
latter sections regulate the competence of the
Court and bar its jurisdiction in certain cases
excepting in compliance therewith. But Section
190 does not. While no doubt, in one sense,
clauses (a), (b) and (c) of Section 190(1) are
conditions requisite for taking of cognizance, it is
not possible to say that cognizance on an invalid
police report is prohibited and is therefore a
nullity. Such an invalid report may still fall either
under clause (a) or (b) of Section 190(1),
(whether it is the one or the other we need not
pause to consider) and in any case cognizance so
taken is only in the nature of error in a
proceeding antecedent to the trial. To such a
situation Section 537 of the Code of Criminal
Procedure which is in the following terms is
attracted:
'Subject to the provisions hereinbefore contained,
no finding, sentence or order passed by a court of
competent jurisdiction shall be reversed or altered
on appeal or revision on account of any error,
omission or irregularity in the complaint,
summons, warrant, charge, proclamation, order,
judgment or other proceedings before or during
trial or in any enquiry or other proceedings under
this Code, unless such error, omission or
irregularity, has in fact occasioned a failure of
justice.'
If, therefore, cognizance is in fact taken, on a
police report vitiated by the breach of a
mandatory provision relating to investigation,
there can be no doubt that the result of the trial
which follows it cannot be set aside unless the
illegality in the investigation can be shown to
have brought about a miscarriage of justice. That
an illegality committed in the course of
investigation does not affect the competence and
the jurisdiction of the court for trial is well settled
as appears from the cases in Parbhu v. King
Emperor [Parbhu v. King Emperor, 1944 SCC
OnLine PC 1 : AIR 1944 PC 73] and Lumbhardar
Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC
OnLine PC 64 : AIR 1950 PC 26] These no doubt
relate to the illegality of arrest in the course of
investigation while we are concerned in the
present cases with the illegality with reference to
the machinery for the collection of the evidence.
This distinction may have a bearing on the
question of prejudice or miscarriage of justice, but
both the cases clearly show that invalidity of the
investigation has no relation to the competence of
the Court. We are, therefore, clearly, also, of the
opinion that where the cognizance of the case has
in fact been taken and the case has proceeded to
termination, the invalidity of the precedent
investigation does not vitiate the result, unless
miscarriage of justice has been caused thereby.
10. It does not follow, however, that the invalidity
of the investigation is to be completely ignored by
the Court during trial. When the breach of such a
mandatory provision is brought to the knowledge
of the Court at a sufficiently early stage, the
Court, while not declining cognizance, will have to
take the necessary steps to get the illegality cured
and the defect rectified, by ordering such
reinvestigation as the circumstances of an
individual case may call for. Such a course is not
altogether outside the contemplation of the
scheme of the Code as appears from Section 202
under which a Magistrate taking cognizance on a
complaint can order investigation by the police.
Nor can it be said that the adoption of such a
course is outside the scope of the inherent powers
of the Special Judge, who for purposes of
procedure at the trial is virtually in the position of
a Magistrate trying a warrant case. When the
attention of the Court is called to such an illegality
at a very early stage it would not be fair to the
accused not to obviate the prejudice that may
have been caused thereby, by appropriate orders,
at that stage but to leave him to the ultimate
remedy of waiting till the conclusion of the trial
and of discharging the somewhat difficult burden
under Section 537 of the Code of Criminal
Procedure of making out that such an error has in
fact occasioned a failure of justice. It is relevant
in this context to observe that even if the trial had
proceeded to conclusion and the accused had to
make out that there was in fact a failure of justice
as the result of such an error, Explanation to
Section 537 of the Code of Criminal Procedure
indicates that the fact of the objection having
been raised at an early stage of the proceeding is
a pertinent factor. To ignore the breach in such a
situation when brought to the notice of the Court
would be virtually to make a dead letter of the
peremptory provision which has been enacted on
grounds of public policy for the benefit of such an
accused. It is true that the peremptory provision
itself allows an officer of a lower rank to make the
investigation if permitted by the Magistrate. But
this is not any indication by the legislature that an
investigation by an officer of a lower rank without
such permission cannot be said to cause
prejudice. When a Magistrate is approached for
granting such permission he is expected to satisfy
himself that there are good and sufficient reasons
for authorising an officer of a lower rank to
conduct the investigation. The granting of such
permission is not to be treated by a Magistrate as
a mere matter of routine but it is an exercise of
his judicial discretion having regard to the policy
underlying it. In our opinion, therefore, when
such a breach is brought to the notice of the
Court at an early stage of the trial the Court will
have to consider the nature and extent of the
violation and pass appropriate orders for such
reinvestigation as may be called for, wholly or
partly, and by such officer as it considers
appropriate with reference to the requirements of
Section 5-A of the Act. It is in the light of the
above considerations that the validity or
otherwise of the objection as to the violation of
Section 5(4) of the Act has to be decided and the
course to be adopted in these proceedings,
determined."
117. It is alleged by the petitioners that there is a defect or
illegality committed by the CBI during the course of investigation.
A defect or illegality in investigation, however serious, has no direct
bearing on the competence or the procedure relating to cognizance
or trial. Admittedly in the present case, what is challenged is only
entrustment of the matter by the State government to CBI and
filing of FIR by the 2nd respondent/CBI. Admittedly, the filing of
charge sheets and taking cognizance of the charge sheets by the
jurisdictional competent Court, is not challenged. The competent
Court taken cognizance and case has been proceeded with and at
this stage, it is not open for this Court to interfere unless the
miscarriage of justice caused has been shown by the petitioners.
Our view is fortified by the judgment of the Hon'ble Supreme Court
in the case of Lumbhardar Zutshi and Another -vs- The Kind
reported in AIR 1950 Privy Council 26, wherein it is held as under:
"When leave to appeal was granted to the
appellants it was still an open question whether
sanction under s. 197 of the Criminal Procedure
Code was necessary before a public servant could
be prosecuted for an offence under s. 161 of the
Indian Penal Code. It has now been settled by
their Lordships' judgment in Gill v. The
King [(1948) L.R. 75 I.A. 41.] that sanction is not
necessary and accordingly the appellants cannot
succeed on the grounds of appeal set out in their
petitions for leave to appeal. Their counsel argued
this appeal on an entirely different ground which
is not even referred to in the judgments of the
High Court, although a preliminary objection
raising a somewhat similar point was taken
unsuccessfully before the Chief Presidency
Magistrate. Their Lordships would only be
prepared to allow such an argument in an
exceptional case. In the present case it was
argued that the new ground of appeal raised a
question of jurisdiction, and their Lordships
permitted the argument to proceed. The
argument was that the trial and conviction of the
appellants were void because the police
investigation which led up to the trial was
conducted illegally. This was a non-cognizable
case and s. 58(2) of the Bombay City Police Act,
1902, provides that no police officer shall
investigate a non-cognizable case without the
order of a Presidency Magistrate. There was an
order by the Chief Presidency Magistrate in this
case, but it was submitted that this order was
invalid because the magistrate was bound before
making such an order to comply with the
requirements of s. 202(1) of the Criminal
Procedure Code and he had not done so."
118. The illegality in investigation is curable under the
provisions of Section 460 of the Code of Criminal Procedure. The
invalidity of the precedent investigation, does not vitiate the result,
unless miscarriage of justice has been caused thereby, as held by
the Hon'ble Supreme Court in the case of Vinubhai Haribhai
Malaviya and others -vs- State of Gujarath and Another
reported in (2019)17 SCC, wherein at paragraph-29 it is held as
under:
29.Ram Lal Narang v. State (Delhi Admn.) [Ram Lal
Narang v. State (Delhi Admn.), (1979) 2 SCC 322 :
1979 SCC (Cri) 479] , is an early judgment which deals
with the power contained in Section 173(8) after a
charge-sheet is filed. This Court adverted to the Law
Commission Report and to a number of judgments
which recognised the right of the police to make
repeated investigations under the Code of Criminal
Procedure, 1898. It then quoted the early Supreme
Court judgment in H.N. Rishbud v. State of Delhi [H.N.
Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cri
LJ 526 : (1955) 1 SCR 1150] case as follows : (Ram Lal
Narang case [Ram Lal Narang v. State (Delhi Admn.),
(1979) 2 SCC 322 : 1979 SCC (Cri) 479] , SCC pp. 335-
36, para 17)
"17. In H.N. Rishbud v. State of Delhi [H.N.
Rishbud v. State of Delhi, AIR 1955 SC 196 :
1955 Cri LJ 526 : (1955) 1 SCR 1150] this Court
contemplated the possibility of further
investigation even after a court had taken
cognizance of the case. While noticing that a
police report resulting from an investigation was
provided in Section 190 CrPC as the material on
which cognizance was taken, it was pointed out
that it could not be maintained that a valid and
legal police report was the foundation of the
jurisdiction of the court to take cognizance. It was
held that where cognizance of the case had, in
fact, been taken and the case had proceeded to
termination, the invalidity of the precedent
investigation did not vitiate the result unless
miscarriage of justice had been caused thereby. It
was said that a defect or illegality in investigation,
however serious, had no direct bearing on the
competence of the procedure relating to
cognizance or trial. However, it was observed:
'It does not follow that the invalidity of the
investigation is to be completely ignored by a
court during trial. When the breach of such
mandatory provision is brought to the
knowledge of the court at a sufficiently early
stage, the court, while not declining
cognizance, will have to take the necessary
steps to get the illegality cured and the defect
rectified, by ordering such re-investigation as
the circumstances of an individual case may
call for.'
This decision is a clear authority for the view that
further investigation is not altogether ruled out
merely because cognizance of the case has been
taken by the court; defective investigation coming to
light during the course of a trial may be cured by a
further investigation, if circumstances permit it."
The Court then went on to hold : (SCC pp. 337-38,
paras 20-21)
"20. Anyone acquainted with the day-to-day
working of the criminal courts will be alive to the
practical necessity of the police possessing the
power to make further investigation and submit a
supplemental report. It is in the interests of both
the prosecution and the defence that the police
should have such power. It is easy to visualise a
case where fresh material may come to light
which would implicate persons not previously
accused or absolve persons already accused.
When it comes to the notice of the investigating
agency that a person already accused of an
offence has a good alibi, is it not the duty of that
agency to investigate the genuineness of the plea
of alibi and submit a report to the Magistrate?
After all the investigating agency has greater
resources at its command than a private
individual. Similarly, where the involvement of
persons who are not already accused comes to
the notice of the investigating agency, the
investigating agency cannot keep quiet and
refuse to investigate the fresh information. It is
their duty to investigate and submit a report to
the Magistrate upon the involvement of the other
persons. In either case, it is for the Magistrate to
decide upon his future course of action
depending upon the stage at which the case is
before him. If he has already taken cognizance of
the offence, but has not proceeded with the
enquiry or trial, he may direct the issue of
process to persons freshly discovered to be
involved and deal with all the accused in a single
enquiry or trial. If the case of which he has
previously taken cognizance has already
proceeded to some extent, he may take fresh
cognizance of the offence disclosed against the
newly involved accused and proceed with the
case as a separate case. What action a
Magistrate is to take in accordance with the
provisions of CrPC in such situations is a matter
best left to the discretion of the Magistrate. The
criticism that a further investigation by the police
would trench upon the proceeding before the
court is really not of very great substance, since
whatever the police may do, the final discretion
in regard to further action is with the Magistrate.
That the final word is with the Magistrate is
sufficient safeguard against any excessive use or
abuse of the power of the police to make further
investigation. We should not, however, be
understood to say that the police should ignore
the pendency of a proceeding before a court and
investigate every fresh fact that comes to light as
if no cognizance had been taken by the Court of
any offence. We think that in the interests of the
independence of the magistracy and the
judiciary, in the interests of the purity of the
administration of criminal justice and in the
interests of the comity of the various agencies
and institutions entrusted with different stages of
such administration, it would ordinarily be
desirable that the police should inform the court
and seek formal permission to make further
investigation when fresh facts come to light.
21. As observed by us earlier, there was no
provision in CrPC, 1898 which, expressly or by
necessary implication, barred the right of the
police to further investigate after cognizance of
the case had been taken by the Magistrate.
Neither Section 173 nor Section 190 lead us to
hold that the power of the police to further
investigate was exhausted by the Magistrate
taking cognizance of the offence. Practice,
convenience and preponderance of authority,
permitted repeated investigations on discovery of
fresh facts. In our view, notwithstanding that a
Magistrate had taken cognizance of the offence
upon a police report submitted under Section 173
of the 1898 Code, the right of the police to
further investigate was not exhausted and the
police could exercise such right as often as
necessary when fresh information came to light.
Where the police desired to make a further
investigation, the police could express their
regard and respect for the court by seeking its
formal permission to make further investigation."
119. It is to be noted that when the competent Court has
already taken the cognizance of the supplementary charge sheets
filed by CBI in pursuance of the impugned Government Order dated
6.9.2019 passed by the State Government entrusting the matter to
CBI for further investigation and the petitioners having not shown
as to how they are prejudiced by miscarriage of justice, the entire
proceedings cannot be said to be vitiated. Though it is a procedural
irregularity, such procedural irregularity is curable and it should
have been either brought to the notice of the concerned Magistrate
who took cognizance of the charge sheets or ought to have been
challenged before the appropriate forum. The same has not been
done. After cognizance has been taken by the learned Magistrate
and the case was committed to the court of sessions, now it is not
open for the petitioners to contend that in the event the very
entrustment of the matter by the State to CBI as per the
Government Order dated 6.9.2019 is held to be invalid, all
consequential procedures are invalid, in view of the final order
dated 11.8.2021 passed by the Hon'ble Supreme Court in SLP
(Criminal) 1348/2020.
120. At this stage, it is relevant to state that petitioners filed
these writ petitions challenging the Government Order dated
6.9.2019, in terms of which case relating to the murder of one
Yogesh Gowda, Member of Dharwad Zilla Panchayat was made over
by the State Government to the CBI. While issuing notice in said
writ petition, the learned Single Judge of this Court by the order
dated 21.11.2019, has granted interim stay of the operation of the
Government Order dated 6.9.2019. In effect, despite the matter
having been made over, the CBI could not go ahead with the
investigation. Being aggrieved, CBI filed SLP (Crl) 1348/2020
before the Hon'ble Supreme Court challenging the interim order
dated 21.11.2019 passed by this Court. By the order dated
20.2.2020, the Hon'ble Supreme Court issued notice in the SLP and
as an interim measure, directed that there would be stay of
operation of the order passed by this Court. Resultantly, the
investigation was conducted and carried out by CBI. The Hon'ble
Supreme Court also observed that after such investigation was
carried out, a Challan was filed by the CBI on 20.5.2020 adding
Accused Nos.7 to 14 in the array of accused. Cognizance in respect
of first challan filed by the CBI was taken 20.5.2020 itself.
Thereafter, further challans have been filed on behalf of the CBI
adding other accused persons. Ultimately, the SLP was disposed
off by the Hon'ble Supreme Court with certain observations by the
order dated 11.8.2021. In the said order, it is observed that the
interim order dated 20.2.2020 passed in the SLP shall continue to
operate.
121. As already stated supra, there are materials against the
accused persons including Accused NO.15 - Vinay Kulkarni in the
supplementary charge sheet filed after examining 88 witnesses and
considering more than 75 documents and now, the learned Judge
has taken cognizance and the matter is committed to the Court of
Sessions and the matter is posted for further trial. It is not open
to contend that the State has no jurisdiction to entrust the matter
to CBI and there cannot be further investigation and once the trial
commenced, there is no further investigation under the provisions
of Section 173(8) of the Code of Criminal Procedure, cannot be
accepted.
122. The Hon'ble Supreme Court while considering the
provisions of Section 482 of the Code of Criminal Procedure and
Article 226 of the Constitution of India, in the case of State of
Haryana v. Bhajan Lal reported in 1992 SC Crimes 426, has held
at paragraphs 102, 103 and 139 as under:
102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the
concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will
not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whim or caprice.
139. In the light of the above decisions of this Court,
we feel that the said observations made in the
impugned judgment are unwarranted and the historical
anecdote is out of context and inappropriate. We are
afraid if such a view is to be judicially accepted and
approved, then it will be tantamount to laying down an
alarming proposition that an incoming government
under all circumstances, should put its seal of approval
to all the commissions and omissions of the outgoing
government ignoring even glaring lapses and serious
misdeeds and the deleterious and destructive
consequences that may follow therefrom. Hence we are
constrained to express our disapproval since the text,
tenor and tone of the above observations leave us with
the feeling that such misplaced sympathy indicated
therein appears to have considerably weighed with the
learned Judges in taking the extreme step in quashing
the first information report. We do not like to make any
more comment except saying that as we have pointed
out in our exordial note, in our democratic polity where
the 'Rule of Law' reigns no one -- however highly placed
he may be -- can claim immunity, much less absolute
immunity from the Law, but he is always under the law.
123. In the present case, the allegations made in the first
information report, prima facie constitute cognizable offence and
make out a case against the accused persons. After investigation,
the Investigating Officer of the 2nd respondent/CBI filed
supplementary charge sheets and the competent Court took
cognizance of the supplementary charge sheets and the matter is
committed to the court of Sessions. The accused persons have not
made out an express legal bar engrafted in any of the provisions of
the Code to the institution and continuance of the proceedings in
Crime No.135/2016. The accused persons have also not made out
that a criminal proceeding is manifestly attended with mala fide
and/or the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge. In the absence of
any prejudice shown for continuation of the further investigation, it
is not open for the petitioners/accused persons to seek for quashing
the impugned Government Order dated 6.9.2019 and the FIR filed
by the CBI, on the ground that the State Government has no
power for entrusting the matter to CBI, that too after much water
has flown under the bridge culminating into further investigation,
recording the statements 88 witnesses, collection of more than 75
documents and filing of the supplementary charge sheets and
taking cognizance by the competent Court etc. On that ground also
the petitioners are not entitled for grant of any relief.
124. The Hon'ble Supreme Court while considering the
provisions of Section 482 of the Code of Criminal Procedure in the
case of Ganga Dhar Kalita v. State of Assam reported in (2015)
9 SCC 647, ha held at paragraph-11 as under:
11. Having considered the law laid down by this Court,
as above, and further considering the facts and
circumstances of the case and seriousness of the
allegations made against the accused, particularly that
one of the persons said to have executed the power of
attorney was minor, and another was away from India,
in our opinion, even if the civil suit was instituted by the
complainant, the High Court committed no error of law
in declining to interfere with the criminal proceedings
initiated against the appellant in the present case.
125. While considering the provisions of section 482 of the
Code of Criminal Procedure, similar view is taken by the Hon'ble
Supreme Court in the case of Rishipal Singh v. State of U.P.,
reported in (2014) 7 SCC 215, wherein at paragraphs 10 and 17 it
is held as under:
10. Before we deal with the respective contentions
advanced on either side, we deem it appropriate to
have a thorough look at Section 482 CrPC, which reads:
"482.Saving of inherent powers of High
Court.--Nothing in this Code shall be
deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice."
A bare perusal of Section 482 CrPC makes it crystal
clear that the object of exercise of power under this
section is to prevent abuse of process of court and to
secure ends of justice. There are no hard-and-fast rules
that can be laid down for the exercise of the
extraordinary jurisdiction, but exercising the same is an
exception, but not a rule of law. It is no doubt true that
there can be no straitjacket formula nor defined
parameters to enable a court to invoke or exercise its
inherent powers. It will always depend upon the facts
and circumstances of each case. The courts have to be
very circumspect while exercising jurisdiction under
Section 482 CrPC.
17. It is no doubt true that the courts have to be very
careful while exercising the power under Section 482
CrPC. At the same time we should not allow a litigant to
file vexatious complaints to otherwise settle their scores
by setting the criminal law into motion, which is a pure
abuse of process of law and it has to be interdicted at
the threshold. A clear reading of the complaint does not
make out any offence against the appellant Branch
Manager, much less the offences alleged under Sections
34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. We
are of the view that even assuming that the Branch
Manager has violated the instructions in the complaint
in letter and spirit, it all amounts to negligence in
discharging official work, at the maximum it can be said
that it is dereliction of duty.
126. In the present case, it is the allegation by the mother
and brother of the deceased that the Police Officers involved had
colluded with Accused No.15 and other accused persons and they
had conducted an improper and an unfair investigation and this had
resulted in a gross infringement of their fundamental rights.
Admittedly, in the present case, during the course of further
investigation by CBI, it has come to light that some of the Police
officials including previous Investigating Officer, are also found to
be involved in the case and are found to have taken gratification to
scuttle the investigation and they have been arrayed as Accused
Nos.19 and 20. Accused No.19 is the previous Investigating Officer
and Accused No.20 is the Supervisory Officer of Accused No.19.
Therefore, the Government is justified in entrusting the matter to
the CBI, an independent agency to conduct a fair trial and
investigation. When there is an improper investigation by state
police and high Police officials are involved, in order to do complete
justice, direction for investigation by an independent and
specialized agency like CBI, is warranted.
127. Our view is fortified by the judgment in the case of
Narmada Bai v. State of Gujarat, reported in (2011)5 SCC 79,
wherein the Hon'ble Supreme Court held at paragraphs 27, 59 63,
64 and 65 held as under:
27. Analysis as to Issue (A)
The first issue i.e. Issue (A) as in the case on hand also
arose in Rubabbuddin Sheikh [(2010) 2 SCC 200 :
(2010) 2 SCC (Cri) 1006] . The factual details therein
will be discussed in the later paragraphs. With regard to
the similar objection as to further investigation by CBI,
this Court considered the following cases:
(i) Vineet Narain v. Union of India [(1996) 2 SCC
199 : 1996 SCC (Cri) 264] ,
(ii) Union of India v. Sushil Kumar Modi [(1998) 8
SCC 661 : 1999 SCC (Cri) 84] ,
(iii) Rajiv Ranjan Singh 'Lalan' (8) v. Union of
India [(2006) 6 SCC 613 : (2006) 3 SCC (Cri)
125] ,
(iv) Hari Singh v. State of U.P. [(2006) 5 SCC 733
: (2006) 3 SCC (Cri) 63] ,
(v) Aleque Padamsee v. Union of India [(2007) 6
SCC 171 : (2007) 3 SCC (Cri) 1] ,
(vi) M.C. Mehta v. Union of India [(2008) 1 SCC
407 : (2008) 1 SCC (Cri) 216] ,
(vii) R.S. Sodhi v. State of U.P. [1994 Supp (1)
SCC 143 : 1994 SCC (Cri) 248] ,
(viii) Ramesh Kumari v. State (NCT of Delhi)
[(2006) 2 SCC 677 : (2006) 1 SCC (Cri) 678] ,
(ix) Kashmeri Devi v. Delhi Admn. [1988 Supp
SCC 482 : 1988 SCC (Cri) 864] ,
(x) Gudalure M.J. Cherian v. Union of India
[(1992) 1 SCC 397] , and
(xi) Punjab & Haryana High Court Bar Assn. v.
State of Punjab [(1994) 1 SCC 616 : 1994 SCC
(Cri) 455]
and concluded in paras 60-61 as under: (Rubabbuddin
Sheikh case [(2010) 2 SCC 200 : (2010) 2 SCC (Cri)
1006] , SCC pp. 216-17)
"60. Therefore, in view of our discussions made
hereinabove, it is difficult to accept the
contentions of Mr Rohatgi, learned Senior Counsel
appearing for the State of Gujarat that after the
charge-sheet is submitted in the court in the
criminal proceeding it was not open for this Court
or even for the High Court to direct investigation
of the case to be handed over to CBI or to any
independent agency. Therefore, it can safely be
concluded that in an appropriate case when the
court feels that the investigation by the police
authorities is not in the proper direction and in
order to do complete justice in the case and as
the high police officials are involved in the said
crime, it was always open to the court to hand
over the investigation to the independent agency
like CBI. It cannot be said that after the charge-
sheet is submitted, the court is not empowered,
in an appropriate case, to hand over the
investigation to an independent agency like CBI.
61. Keeping this discussion in mind, that is to say,
in an appropriate case, the court is empowered to
hand over the investigation to an independent
agency like CBI even when the charge-sheet has
been submitted, we now deal with the facts of this
case whether such investigation should be
transferred to the CBI Authorities or any other
independent agency in spite of the fact that the
charge-sheet has been submitted in court. On this
ground, we have carefully examined the eight
action-taken reports submitted by the State police
authorities before us and also the various
materials produced and the submissions of the
learned counsel for both the parties."
It is clear that in an appropriate case, particularly, when
the Court feels that the investigation by the State police
authorities is not in the proper direction as the high
police officials are involved, in order to do complete
justice, it is always open to the Court to hand over the
investigation to an independent and specialised agency
like CBI.
59. It is not in dispute that it is the age-old maxim that
justice must not only be done but must be seen to be
done. The fact that in the case of murder of an
associate of Tulsiram Prajapati, senior police officials
and a senior politician were accused may shake the
confidence of public in investigation conducted by the
State police. 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.
63. In both these decisions, this Court refrained from
expressing any opinion on the allegations made by
either side but thought it wise to have the incident
investigated by an independent agency like CBI so that
it may bear credibility. This Court felt that no matter
how faithfully and honestly the local police may carry
out the investigation, the same will lack credibility as
allegations were directed against them. This Court,
therefore, thought it both desirable and advisable and
in the interest of justice to entrust the investigation to
CBI so that it may complete the investigation at an
early date. It was clearly stated that in so ordering, no
reflection either on the local police or the State
Government was intended. This Court merely acted in
public interest.
64. The above decisions and the principles stated
therein have been referred to and followed by this Court
in Rubabbuddin Sheikh [(2010) 2 SCC 200 : (2010) 2
SCC (Cri) 1006] where also it was held that considering
the fact that the allegations have been levelled against
high-level police officers, despite the investigation made
by the police authorities of the State of Gujarat, ordered
investigation by CBI. Without entering into the
allegations levelled by either of the parties, we are of
the view that it would be prudent and advisable to
transfer the investigation to an independent agency. It
is trite law that the accused persons do not have a say
in the matter of appointment of an investigation
agency. The accused persons cannot choose as to which
investigation agency must investigate the alleged
offence committed by them.
65. In view of our discussions and submission of the
learned counsel on either side and keeping in mind the
earlier directions given by this Court, although, charge-
sheet has been filed by the State of Gujarat after a gap
of 3½ years after the incident, that too after
pronouncement of judgment in Rubabbuddin case
[(2010) 2 SCC 200 : (2010) 2 SCC (Cri) 1006] and
considering the nature of crime that has been allegedly
committed not by any third party but by the police
personnel of the State of Gujarat, we are satisfied that
the investigation conducted and concluded in the
present case by the State police cannot be accepted. In
view of various circumstances highlighted and in the
light of the involvement of police officials of the State of
Gujarat and police officers of two other States i.e.
Andhra Pradesh and Rajasthan, it would not be
desirable to allow the Gujarat State Police to continue
with the investigation, accordingly, to meet the ends of
justice and in the public interest, we feel that CBI
should be directed to take the investigation.
128. It is not in dispute that separation of powers is a part of
the basic structure of the Constitution, the "ordinary" executive
power of the State Government under Section 6 and 'extraordinary
judicial power' of the constitutional courts are mutually exclusive
and are not interdependent and there is no particular form to give
consent under Section 6 of Delhi Special Police Establishment Act as
held by the Supreme Court in the case of M. BALAKRIHNA REDDY -
vs- DIRECTOR, CENTRAL BUREAU OF INVESTIGATON, NEW DELHI
reported in (2008) 4 SCC 409, wherein at paragraph-71 it is held as
under:
71. A closer scrutiny of the relevant provisions of
the Delhi Act also add credence to the view which
we are inclined to take. Section 3 refers to
"notification" and requires the Central
Government to issue notification specifying
offences or class of offences to be investigated by
Special Police Establishment. Section 5 uses the
term "order" and enables the Central Government
to extend powers and jurisdiction of Special Police
Establishment to other areas not covered by the
Act. Section 6 which speaks of consent of the
State Government for the exercise of powers and
jurisdiction of the Special Establishment neither
refers to "notification" nor "order". It merely
requires consent of the State Government for the
application of the Delhi Act. Parliament, in our
considered opinion, advisedly and deliberately did
not specify the mode, method or manner for
granting consent though in two preceding sections
such mode was provided. If it intended that such
consent should be in a particular form, it would
certainly have provided the form as it was aware
of different forms of exercise of power. It,
therefore, depends on the facts of each case
whether the consent required by Section 6 of the
Delhi Act has or has not been given by the State
Government and no rule of universal application
can be laid down.
129. The parameters for exercise of both the distinct powers
of Government and Courts are naturally different and it is always
possible and permissible, that even after the constitutional court
declines to exercise its extraordinary judicial power holding that the
case does not involve circumstances which are rare or exceptional,
the State Government can exercise its ordinary executive powers
under section 6 of the Delhi Special Police Establishment Act, 1946
in granting consent and the Central Government can, thereafter
exercise its power by accepting the investigation entrusted to it by
the State Government. The said process is uninhibited by the
high prerogative judicial powers of entrustment of inquiry to CBI.
The same is independent and does not have any fetters with regard
to whether extraordinary judicial powers are not exercised as the
constitutional court did not find the matter to be extraordinary and
containing such facts which justify exercise of jurisdiction which is
to be exercised "cautiously, sparingly and under certain
circumstances only". The power of the State Government therefore
is not curtailed by such high standards.
130. As already supra, the mother and brother of the
deceased earlier filed W.P Nos.58183-184/2017 before this Court
making allegations against the Accused Nos.7 to 15, in particular
against Accused No.15, who was then the Minister of the State
Government. In that petition, Accused Nos.19 and 20, who are
Investigating Officer and Supervisory Officer of the Investigating
Officer filed objections on behalf of the State Government and
opposed the writ petition. The learned Single Judge of this Court
found that the petitioners therein have not made out a case to
exercise judicial powers for entrustment of the matter to CBI and
the accordingly, the said writ petition came to be dismissed and the
same has been confirmed by the Hon'ble Supreme Court.
XIII - Regarding Notes sheets of the original
Government record
131. We have gone through the original Government records,
which are made available by the Government Advocate. A careful
perusal of the note sheet in C.No.505227, HD 48 PCB 2016
maintained in the Home Department depicts that, in pursuance of
the letter received from the local M.P. addressed to the then Chief
Minister, in the matter relating to suspicious murder of Sri
Yogishguda, Zilla Panchayath member, Dharwad, the same was
forwarded to the opinion of DG & IGP, on 24.8.2016. Since opinion
was not received from DG & IGP, a reminder was also issued on
27.12.2016.
As per paragraph-8 of the order sheet, the report was
received from DG & IGP vide Acknowledgment No.17780/2017,
wherein it is stated that the Police Commissioner, Hubbali opined
that on the basis of the complaint lodged by Smt. Mallavva, wife of
the deceased Yogishgouda, six accused persons were arrested on
17.6.2016 and they were handed over to judicial custody on
20.6.2016 and therefore, question of handing over the matter to
the CBI would not arise at all. Accordingly, the matter was
referred to the higher authorities in the Government.
At paragraph-11 of the order sheet, the Deputy Secretary,
Home Department (Law & Order) and the Principal Secretary to the
Government (PCAS), Home Department, have opined that the
report of the DG & IGP has been received and the matter may be
closed.
At paragraph-23 of the order sheet, it is stated that one Smt.
Thungamma and Sri Gurunatha Gowda have filed Writ Petition
No.58183/2017 before the Dharwad Bench of High Court of
Karnataka, praying to hand over the further investigation in the
matter, to the CBI. After hearing at length, the writ petition came
to be dismissed by the order dated 1.3.2019, holding that since the
matter is pending adjudication before the trial Court, it is not proper
to hand over the investigation to the CBI.
At paragraph-30 of the order sheet, it is stated that before
the IV Additional District & Sessions Judge, Dharwad, the matter
has been posted to 26.8.2019 for orders on the application filed
under Section 319 of the Code of Criminal Procedure. Since the
Hon'ble High Court dismissed the writ petition holding that no
grounds made out to refer the matter to CBI, the Law Department
opined that the order passed by the Hon'ble High Court is
appealable order and hence, it is appropriate to take the opinion of
the Advocate General. Accordingly, the Principal Secretary to
Government, Law Department, by the order dated 30.08.2019,
forwarded the file for obtaining the opinion of the learned Advocate
General.
The learned Advocate General, State of Karnataka, in his
opinion dated 3.9.2019 has stated that right of investigation is a
statutory right under Section 156 Cr.PC and the power of further
investigation under Section 173(8) Cr.PC is also a statutory right.
On the question of law, it would be open for the State Government
to hand over the matter to CBI, if it is satisfied that the matter is to
be investigated by the CBI. The exercise of the power of
entrustment of the matter to CBI is an independent power to be
taken by the State Government. The fact that the Hon'ble Court
dismissed the writ petition, is not a bar for the State Government to
exercise its power.
Paragraph-39 of the order sheet depicts that on the basis of
the opinion of the learned Advocate General, on 4.9.2019, the file
was forwarded to be placed before the Hon'ble Home Minister and
the Hon'ble Chief Minister for necessary orders in the matter of
entrusting the case to CBI.
At paragraph Nos.41 and 42 of the order sheet, the Hon'ble
Home Minister and Hon'ble Chief Minister directed to entrust the
matter to CBI. Accordingly, draft Government Order was prepared
and placed for approval on 5.9.2019 and the same was approved
on 6.9.2019.
The Government records also depicts that Sri Rakesh Ranjan,
Inspector of Police, CBI: ACB, Bengaluru, addressed letter dated
21.01.2020 to the Additional Chief Secretary to Government, Home
Department, requesting to provide certified copy of the
representation submitted to State Government by Sri Gurunath
Gouda Ningana Gouda Goudar regarding conducting CBI
investigation in the matter of murder of his brother late Yogesh
Gouda, in Crime No.135/2016 dated 15.06.2016, of Sub Urban
Police Station, Dharwad. Accordingly, the same was furnished to
him.
The records maintained by the Government clearly depicts
that the representation of the complainant, request made by the
local M.P. for referring the matter to CBI, opinion of the learned
Advocate General and all other materials are considered by the
Government by applying its mind and after satisfying that further
investigation in Crime No.135/2016, registered for the offence
punishable under Section 302 of IPC in Dharwad Sub-Urban Police
Station, need to be handed over to the CBI, in order to meet the
ends of justice, the impugned Government Order dated 6.9.2019
came to be issued by order & in the name of the Governor of
Karnataka, which reads as under:
"PROCEEDINGS OF GOVERNMENT OF KARNATAKA
Subject: Entrusting the Investigation of Murder
Case of Sri Yogish Gowda, Member of
Zilla panchayat, Dharwad to Central
Bureau of Investigation.
Read: Note No. CS/642063/2019, dated:
13.08.2019 from Chief Secretary.
Preamble:
1. A Complaint was lodged in Dharwad Sub-Urban Police
Station vide Crime No.135/2016 u/s 302 of Indian Penal
Code regarding murder of Sri Yogish Gowda,
Member of Zilla Panchayat, Dharwad on 15.06.2016.
Investigation was carried out by Jurisdictional Police and
based on evidence collected during investigation a
Charge sheet has been submitted to Jurisdictional Court,
under C.C.No.964/2016 On 14.09.2016. The case is under
trial in District and Session Court, Dharwad vide
No. SC/0000050/2017.
2. Smt. Tungamma, w/o Yogish Gowda, approached
Hon'ble High Court, Dharwad Bench filing Writ Petition No.
58183/2017 to handover the case to CBl for investigation.
Hon'ble High Court in its order dated:01.03.2019 has
disposed off the above petition stating that as the case is
under trial in subordinate Court, there is no need to entrust
the case to CBI for further investigation.
3. The matter has been considered by Government in
consultation with learned Advocate General of Karnataka,
The power of further investigation is a statutory right under
section- 156 & 173(8) of Criminal Procedure Code, which is
also held to be an absolute right. Further, based on various
rulings of Hon'ble Supreme Court of India, the cases under
trial in subordinate court may also be entrusted to
CBI for further investigation. Hence exercise of the power of
entrustment of investigation to CBI is an independent power,
of the State Government. The fact that Hon'ble Court
dismissed the Writ Petition directing CBI enquiry is not a bar
for the State Government to exercise its power.
4. In view of the above, the government is satisfied that
further investigation of Crime No. 135/2016 u/s 302 of IPC
of Dharwad Sub-Urban Police Station, Dharwad need to be
handed over to Central Bureau of Investigation in order to
meet the ends of justice.
Hence the following order,
GOVERNMENT ORDER NO. HD 48 PCB 2016,
BENGALURU, DATED: 06/09/2019.
Government of Karnataka hereby accords sanction to
the Central Bureau of Investigation, under Section (6) of
Delhi Special Police Establishment Act, 1946 for further
investigation of Crime No. 135/2016 under section 302 of
Indian Penal Code lodged in Dharwad Sub-Urban Police
Station, Dharwad.
The concerned department officers/official/others shall
hand over data/information/records as and when required by
the Central Bureau of Investigation and co-operate in the
investigation.
The status report on the progress of the enquiry
investigation may be furnished to the State Government
periodically.
By Order & in the name of the
Governor of Karnataka
-Sd-
(B.S. SRINIVASA)
Deputy Secretary to Government,
Home Department, (Crimes)"
At paragraph-49 of the order sheet, orders are obtained for
intimating with regard to issuance of Government Order dated
6.9.2019 to the IV Addl. District & Sessions Judge, Dharwad, where
the matter is pending for trial.
132. No prejudice has been caused to the petitioners, for
the reason that they can certainly contest the veracity of the
documents and also cross-examine the additional witnesses sought
to be examined on behalf of the prosecution. It cannot be in dispute
that a fair trial envisages production of all relevant material
before the court for unearthing the truth of the matter and this
objective cannot be scuttled by taking a narrow view of the matter
at the instance of the accused. The petitioners are not put to any
prejudice by supplementary charge sheets and additional
documents produced. In the present case, the witnesses relevant
to such documents are permitted to be examined. Therefore, the
contention of the learned counsel for the petitioners that it amounts
to res judicata, in view of the earlier order passed by the learned
Single Judge of this Court, rejecting the request of the
complainants to refer the matter to CBI, cannot be accepted. It is
relevant to state at this stage that the said writ petition came to be
filed by mother and brother of the deceased during the pendency of
the trial and what was refused by the learned Single Judge of this
Court was only request to refer the matter to CBI based on the
material produced by the petitioners therein and the objections filed
by the State Government at the instance of the concerned
Investigating Officer and the Supervisory Officer of the
Investigating Officer. In fact, the said Investigating Officer and
Supervisory Officer of the Investigating Officer subsequently found
to be accused and they have been arrayed as Accused Nos.19 and
20 for taking illegal gratification and therefore, the State
Government passed sanction order to prosecute them, thereby it is
not the case of the petitioners that all the accused persons have
been acquitted and their rights have been decided on merits. The
provisions of section 173(8) of the Code of Criminal Procedure
envisages that nothing in the said 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-section 2
and 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). Therefore, in the peculiar facts and circumstances of
the present case and in view of the provisions of Section 173(8) of
the Code of Criminal Procedure, question of res judicata as alleged
by the counsel for the petitioners would not arise.
133. It is also not in dispute that the brother of the deceased
filed the application under Section 319 of the Code of Criminal
Procedure, which was rejected by the trial Court. That was the
subject matter of Criminal Petition No.101725/2019 filed before this
Court and the same was dismissed by this Court as having become
infructuous, in view of the subsequent developments. It is not
in dispute that the interim order dated 21.11.2019 passed by the
learned Single Judge of this Court was stayed by the Hon'ble
Supreme Court by the order dated 20.2.2020. Resultantly, the
investigation was conducted and carried out by the CBI. In fact,
the Investigating Officer of the 2nd respondent/CBI continued
further investigation, collected the evidence and filed the
supplementary charge sheets and the competent Court took the
cognizance and all the petitioners and others found to be accused
persons. The investigation done by the local Investigating Officers,
ignoring the relevant evidence on record and subsequently, they
themselves become Accused Nos.19 and 20 in the case. This
cannot be pleaded as bar for further investigation of Accused, in
view of rejection of the application by the learned Single Judge
under Section 319 of the Code of Criminal Procedure.
134. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of Hardeep Singh v. State of Punjab
reported in (2014) 3 SCC 92, wherein at paragraph -117.1, it is
held as under:
117.1. In Dharam Pal case [Dharam Pal v. State
of Haryana, (2014) 3 SCC 306 : AIR 2013 SC
3018] , the Constitution Bench has already held
that after committal, cognizance of an offence can
be taken against a person not named as an
accused but against whom materials are available
from the papers filed by the police after
completion of the investigation. Such cognizance
can be taken under Section 193 CrPC and the
Sessions Judge need not wait till "evidence" under
Section 319 CrPC becomes available for
summoning an additional accused.
135. Since the competent Court found the evidence collected
by the CBI to be enough to take cognizance and failure of justice or
prejudice is not even pleaded by the accused in the present writ
petitions, the only stage now left is to proceed with all post
cognizance stages as per the Code of Criminal Procedure.
136. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of H.N. Rishbud v. State of Delhi,
reported in (1955)1 SCR 1150, wherein at paragraph-9 it is held as
under:
9. The question then requires to be considered whether
and to what extent the trial which follows such
investigation is vitiated. Now, trial follows cognizance
and cognizance is preceded by investigation. This is
undoubtedly the basic scheme of the Code in respect of
cognizable cases. But it does not necessarily follow that
an invalid investigation nullifies the cognizance or trial
based thereon. Here we are not concerned with the
effect of the breach of a mandatory provision regulating
the competence or procedure of the Court as regards
cognizance or trial. It is only with reference to such a
breach that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere irregularity
arises. A defect or illegality in investigation, however
serious, has no direct bearing on the competence or the
procedure relating to cognizance or trial. No doubt a
police report which results from an investigation is
provided in Section 190 of the Code of Criminal
Procedure as the material on which cognizance is taken.
But it cannot be maintained that a valid and legal police
report is the foundation of the jurisdiction of the Court
to take cognizance. Section 190 of the Code of Criminal
Procedure is one out of a group of sections under the
heading "Conditions requisite for initiation of
proceedings". The language of this section is in marked
contrast with that of the other sections of the group
under the same heading i.e. Sections 193 and 195 to
199. These latter sections regulate the competence of
the Court and bar its jurisdiction in certain cases
excepting in compliance therewith. But Section 190
does not. While no doubt, in one sense, clauses (a), (b)
and (c) of Section 190(1) are conditions requisite for
taking of cognizance, it is not possible to say that
cognizance on an invalid police report is prohibited and
is therefore a nullity. Such an invalid report may still fall
either under clause (a) or (b) of Section 190(1),
(whether it is the one or the other we need not pause to
consider) and in any case cognizance so taken is only in
the nature of error in a proceeding antecedent to the
trial. To such a situation Section 537 of the Code of
Criminal Procedure which is in the following terms is
attracted:
"Subject to the provisions hereinbefore
contained, no finding, sentence or order
passed by a Court of competent jurisdiction
shall be reversed or altered on appeal or
revision on account of any error, omission
or irregularity in the complaint, summons,
warrant, charge, proclamation, order,
judgment or other proceedings before or
during trial or in any enquiry or other
proceedings under this Code, unless such
error, omission or irregularity, has in fact
occasioned a failure of justice."
If, therefore, cognizance is in fact taken, on a police
report vitiated by the breach of a mandatory provision
relating to investigation, there can be no doubt that the
result of the trial which follows it cannot be set aside
unless the illegality in the investigation can be shown to
have brought about a miscarriage of justice. That an
illegality committed in the course of investigation does
not affect the competence and the jurisdiction of the
Court for trial is well settled as appears from the cases
in Prabhu v. Emperor [AIR 1944 Privy Council 73] and
Lumbhardar Zutshi v. King [AIR 1950 Privy Council 26]
. These no doubt relate to the illegality of arrest in the
course of investigation while we are concerned in the
present cases with the illegality with reference to the
machinery for the collection of the evidence. This
distinction may have a bearing on the question of
prejudice or miscarriage of justice, but both the cases
clearly show that invalidity of the investigation has no
relation to the competence of the Court. We are,
therefore, clearly, also, of the opinion that where the
cognizance of the case has in fact been taken and the
case has proceeded to termination, the invalidity of the
precedent investigation does not vitiate the result,
unless miscarriage of justice has been caused thereby.
137. Our view is also fortified by the judgment of the Hon'ble
Supreme Court in the case of Sailendra Nath Bose v. State of
Bihar reported in (1968)3 SCR 563, wherein at paragraph-7 it is
held as under:
7. The object of the legislature in enacting Section 5-A
was to see that the investigation of offences punishable
under Sections 161, 165 or 165-A, IPC as well as those
under Section 5 of the Prevention of Corruption Act
should be done ordinarily by officers of the rank of
Deputy Superintendent or above No. doubt Section 5-A
also provides for an alternative procedure. An officer
below the rank of Deputy Superintendent can
investigate those offences if he obtains the previous
permission of a first-class Magistrate. The legislature
proceeded on the basis that except for good reasons the
Magistrate would not accord permission for officers
below the rank of a deputy superintendent to
investigate those offences. But exigencies of
administrative convenience may require that some of
those cases have to be investigated by officers below
the rank of Deputy Superintendents. For that reason it
was provided that' in such circumstances the permission
of a Magistrate of the first class should be obtained.
This Court has laid down in State of Madhya Pradesh v.
Mubarak Ali, that the statutory safeguards under
Section 5-A must strictly be complied with for they are
conceived in public interest and were provided as a
guarantee against frivolous and vexatious proceedings.
A Magistrate cannot surrender his discretion to a police
officer but must exercise it having regard to the
relevant material made available to him at the stage of
granting permission. He must also be satisfied that
there is reason owing to exigencies of the
administrative convenience to entrust a subordinate
officer with the investigation. It is further observed
therein that it is desirable that the order giving the
permission should ordinarily in the face of it disclose the
reasons for giving permission. The order giving
permission under Section 5-A in this case does not give
any reason. On the application submitted by PW 17 the
learned Magistrate merely ordered "Permission
granted". PW 17 did not mention in his application any
special reason for permitting him to investigate the case
unless we consider the statement in the application
"Today is the date fixed for issuing the fit certificate:
after receiving a bribe money of Rs 5 from him" as
impliedly a ground in, support of his application. It is
surprising that even after this Court pointed out the
significance of Section 5-A in several decisions there are
still some Magistrates and police officers who continue
to act in a casual manner. It is obvious that they are
ignorant of the decisions of this Court. But the legality
of the investigation held in this case does not appear to
have been challenged in the trial court. The charge
levelled against the appellant is established by
satisfactory evidence and therefore all that we have
now to see is whether the accused was prejudiced by
the fact that investigation of this case was made by an
officer below the rank of a Deputy Superintendent, as
laid down by this Court in Munnalal v. State of Uttar
Pradesh [AIR 1964 SC 28] and State of Uttar Pradesh v.
Bhagwant Kishore Joshi. No prejudice was pleaded
much less established. An illegality committed in the
course of an investigation does not affect the
competence and jurisdiction of the court for trial and
where cognisance of the case has in fact been taken
and the case has proceed to termination the invalidity
of the preceding investigation does not vitiate the result
unless the miscarriage of justice has been caused
thereby, see Rishbud and Inder Singh v. State of Delhi.
138. It is well settled that the accused/petitioners ares not
entitled to say what agency investigates him. The investigation by
CBI is permissible even after filing of charge sheet by the local
police as held by the Hon'ble Supreme Court in the case of CBI v.
Rajesh Gandhi reported in (1996) 11 SCC 253, wherein at
paragraph-8 it is held as under:
8. There is no merit in the pleas raised by the first
respondent either. The decision to investigate or the
decision on the agency which should investigate, does
not attract principles of natural justice. The accused
cannot have a say in who should investigate the
offences he is charged with. We also fail to see any
provision of law for recording reasons for such a
decision. The notification dated 2-6-1994 is issued by
the Government of Bihar (Police Department) by which
in exercise of powers under Section 6 of the Delhi
Special Police Establishment Act, 1946, Governor of
Bihar was pleased to consent and extend the power and
jurisdiction of the members of the Delhi Special Police
Establishment to the whole of the State of Bihar in
connection with investigation of the concerned Police
Station case No. 159 of 9-3-1993 in the District of
Dhanbad, under Sections 457, 436, 427, 201 and 120-
B, Penal Code, 1860 and conspiracy arising out of the
same and any other offence committed in course of the
same. The notification of 26-10-1994 is issued by the
Government of India, Ministry of Personnel in exercise
of the powers conferred by sub-section (1) of Section 5
read with Section 6 of the Delhi Special Police
Establishment Act, 1946 whereby the Central
Government with the consent of the State Government
of Bihar in their notification dated 2-6-1994 extended
the powers and jurisdiction of the members of the Delhi
Special Police Establishment to the whole of the State of
Bihar for investigation of offences under Sections 457,
436, 427/120-B and 201 IPC and Section 4 of the
Prevention of Damage to Public Property Act, 1984
registered at Dhanbad Police Station, Dhansar, Bihar in
their case No. 159 dated 9-3-1993 and any other
offences, attempts, abetment and conspiracy in relation
to or in connection with the said offence committed in
the course of the same transactions or arising out of the
same fact or facts in relation to the said case. There is
no provision in law under which, while granting consent
or extending the powers and jurisdiction of the Delhi
Special Police Establishment to the specified State and
to any specified case any reasons are required to be
recorded on the face of the notification. The learned
Single Judge of the Patna High Court was clearly in
error in holding so. If investigation by the local police is
not satisfactory, a further investigation is not precluded.
In the present case the material on record shows that
the investigation by the local police was not
satisfactory. In fact the local police had filed a final
report before the Chief Judicial Magistrate, Dhanbad.
The report, however, was pending and had not been
accepted when the Central Government with the
consent of the State Government issued the impugned
notification. As a result, the CBI has been directed to
further investigate the offences registered under the
said FIR with the consent of the State Government and
in accordance with law. Under Section 173(8) of the
CrPC 1973 also, there is an analogous provision for
further investigation in respect of an offence after a
report under sub-section (2) has been forwarded to the
Magistrate.
139. Admittedly in the present case, the complainants made
allegations against the police officer and during the course of the
trial, Public Prosecutor was changed/transferred. The allegations
made by the complainants against the Investigating Officer and
Supervisory Officer of the Investigating Officer and they have been
arrayed as Accused Nos.19 and 20 alleging that they are involved in
receipt of illegal gratification. This clearly depicts that the local
Police personnel have not conducted the investigation to unearth
the real truth in accordance with law and thereby they shielded the
real accused and filed the charge sheet against accused who
surrendered before them. Therefore, it would be desirable in the
larger interest to refer the matter to CBI.
140. Our view is fortified by the judgment of the Hon'ble
Supreme Court in the case of Rubabbuddin Sheikh v. State of
Gujarat, reported in (2010)2 SCC 200, wherein at paragraphs 53,
60 and 82, it is held as under:
53. It is an admitted position in the present case that
the accusations are directed against the local police
personnel in which the high police officials of the State
of Gujarat have been made the accused. Therefore, it
would be proper for the writ petitioner or even the
public to come forward to say that if the investigation
carried out by the police personnel of the State of
Gujarat is done, the writ petitioner and their family
members would be highly prejudiced and the
investigation would also not come to an end with proper
finding and if investigation is allowed to be carried out
by the local police authorities, we feel that all concerned
including the relatives of the deceased may feel that
investigation was not proper and in that circumstances
it would be fit and proper that the writ petitioner and
the relatives of the deceased should be assured that an
independent agency should look into the matter and
that would lend the final outcome of the investigation
credibility however faithfully the local police may carry
out the investigation, particularly when the gross
allegations have been made against the high police
officials of the State of Gujarat and for which some high
police officials have already been taken into custody.
60. Therefore, in view of our discussions made
hereinabove, it is difficult to accept the contentions of
Mr Rohatgi, learned Senior Counsel appearing for the
State of Gujarat that after the charge-sheet is
submitted in the court in the criminal proceeding it was
not open for this Court or even for the High Court to
direct investigation of the case to be handed over to
CBI or to any independent agency. Therefore, it can
safely be concluded that in an appropriate case when
the court feels that the investigation by the police
authorities is not in the proper direction and in order to
do complete justice in the case and as the high police
officials are involved in the said crime, it was always
open to the court to hand over the investigation to the
independent agency like CBI. It cannot be said that
after the charge-sheet is submitted, the court is not
empowered, in an appropriate case, to hand over the
investigation to an independent agency like CBI.
82. Accordingly, in the facts and circumstances even at
this stage the police authorities of the State are
directed to hand over the records of the present case to
the CBI Authorities within a fortnight from this date and
thereafter the CBI Authorities shall take up the
investigation and complete the same within six months
from the date of taking over the investigation from the
State police authorities. The CBI Authorities shall
investigate all aspects of the case relating to the killing
of Sohrabuddin and his wife Kausarbi including the
alleged possibility of a larger conspiracy. The report of
the CBI Authorities shall be filed in this Court when this
Court will pass further necessary orders in accordance
with the said report, if necessary. We expect that the
Police Authorities of Gujarat, Andhra Pradesh and
Rajasthan shall cooperate with the CBI Authorities in
conducting the investigation properly and in an
appropriate manner.
XIV - Regarding the dictums of the Hon'ble Apex Court under
Section 173(8) of the Code of Criminal Procedure
141. The Hon'ble Supreme Court while considering the
provisions of Section 173(8) of the Code of Criminal Procedure in
the case of Sri Bhagwan Samardha Sreepada Vallabha
Venkata Vishwanandha Maharaj v. State of A.P., reported in
(1999)5 SCC 740, held at paragraph-11 as under:
11. In such a situation the power of the court to direct
the police to conduct further investigation cannot have
any inhibition. There is nothing in Section 173(8) to
suggest that the court is obliged to hear the accused
before any such direction is made. Casting of any such
obligation on the court would only result in
encumbering the court with the burden of searching for
all the potential accused to be afforded with the
opportunity of being heard. As the law does not require
it, we would not burden the Magistrate with such an
obligation.
142. The Hon'ble Supreme Court in the case of Rama
Chaudhary v. State of Bihar, reported in (2009)6 SCC 346 while
considering the provisions of Section 173(8) of the Code of Criminal
Procedure held at paragraphs - 15 to 22 as under:
15. Among the other sub-sections, we are very much
concerned about sub-section (8) of Section 173 which
reads 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)."
A mere reading of the above provision makes it clear
that irrespective of the report under sub-section (2)
forwarded to the Magistrate, if the officer in charge of
the police station obtains further evidence, it is
incumbent on his part to forward the same to the
Magistrate with a further report with regard to such
evidence in the form prescribed. The abovesaid
provision also makes it clear that further investigation is
permissible, however, reinvestigation is prohibited.
16. The law does not mandate taking of prior
permission from the Magistrate for further investigation.
Carrying out a further investigation even after filing of
the charge-sheet is a statutory right of the police.
Reinvestigation without prior permission is prohibited.
On the other hand, further investigation is permissible.
17. From a plain reading of sub-section (2) and sub-
section (8) of Section 173, it is evident that even after
submission of the police report under sub-section (2) on
completion of the investigation, the police has a right to
"further" investigation under sub-section (8) of Section
173 but not "fresh investigation" or "reinvestigation".
The meaning of "further" is additional, more, or
supplemental. "Further" investigation, therefore, is the
continuation of the earlier investigation and not a fresh
investigation or reinvestigation to be started ab initio
wiping out the earlier investigation altogether.
18. Sub-section (8) of Section 173 clearly envisages
that on completion of further investigation, the
investigating agency has to forward to the Magistrate a
"further" report and not a fresh report regarding the
"further" evidence obtained during such investigation.
19. As observed in Hasanbhai Valibhai Qureshi v. State
of Gujarat [(2004) 5 SCC 347 : 2004 SCC (Cri) 1603]
the prime consideration for further investigation is to
arrive at the truth and do real and substantial justice.
The hands of the investigating agency for further
investigation should not be tied down on the ground of
mere delay. In other words
"[t]he mere fact that there may be further
delay in concluding the trial should not
stand in the way of further investigation if
that would help the court in arriving at the
truth and do real and substantial as well as
effective justice." (SCC p. 351, para 13)
20. If we consider the above legal principles, the order
dated 19-2-2008 of the trial court summoning the
witnesses named in the supplementary charge-sheet
cannot be faulted with.
21. It is true that after the enquiry and investigation,
charges were framed on 11-3-2004 and thereafter in
the course of the trial about 21 witnesses were
examined. In the meantime, the police submitted
supplementary charge-sheet with certain new materials
and on the basis of supplementary charge-sheet, the
prosecution filed an application on 12-1-2008 in the
pending Sessions Trial No. 63 of 2004 before the trial
court for summoning the persons named in the charge-
sheet for their examination as prosecution witnesses.
On a careful perusal of the application, the trial court by
an order dated 19-2-2008, allowed the same and has
summoned those witnesses named in the
supplementary charge-sheet.
22. The law does not mandate taking prior permission
from the Magistrate for further investigation. It is
settled law that carrying out further investigation even
after filing of the charge-sheet is a statutory right of the
police (vide K. Chandrasekhar v. State of Kerala
[(1998) 5 SCC 223 : 1998 SCC (Cri) 1291] ). The
material collected in further investigation cannot be
rejected only because it has been filed at the stage of
the trial. The facts and circumstances show that the
trial court is fully justified to summon witnesses
examined in the course of further investigation. It is
also clear from Section 231 CrPC that the prosecution is
entitled to produce any person as witness even though
such person is not named in the earlier charge-sheet.
143. The Hon'ble Supreme Court in the case of Dharam Pal
v. State of Haryana, reported in (2016)4 SCC 160 while
considering the provisions of Section 173(8) of the Code of Criminal
Procedure held that power of the Police Officer under Section
173(8) is unrestricted and that the Magistrate has no power to
interfere, but it would be appropriate on the part of the
Investigating Officer to inform the Court. In the said judgment, at
paragraph-21 it is held as under:
21. In this context, we may notice the statutory
scheme pertaining to investigation. Section 173 CrPC
empowers the police officer conducting investigation to
file a report on completion of the investigation with the
Magistrate empowered to take cognizance of the
offence. Section 173(8) CrPC empowers the officer-in-
charge to conduct further investigation even after filing
of a report under Section 173(2) CrPC if he obtains
further evidence, oral or documentary. Thus, the power
of the police officer under Section 173(8) CrPC is
unrestricted. Needless to say, the Magistrate has no
power to interfere but it would be appropriate on the
part of the investigating officer to inform the Court. It
has been so stated in Rama Chaudhary v. State of Bihar
[2009) 6 SCC 346 : (2009) 2 SCC (Cri) 1059] .
144. In the light of the law laid down by the Hon'ble
Supreme Court in the aforesaid judgments, the contention of
learned counsel for the petitioners that the impugned Government
Order issued by the State Government for re-investigation, cannot
be accepted and infact the impugned Government Order has been
issued for 'further investigation' only.
145. In pursuance of the order passed by the Hon'ble
Supreme Court, the 2nd respondent/ CBI further investigated the
matter and filed the supplementary charge sheets against additional
accused persons as there are overt acts against them. A criminal
trial is required to be fair to all the stake holders i.e, the accused,
the prosecution and the victim. The purpose of a criminal trial is to
ascertain the truth about the allegations levelled against the
accused persons and it is not just about over technicalities and
over-zealous protection of rights available to the accused. A
criminal trial is to be conducted in a fair manner and has to be
undertaken as an objective and unbiased search for the truth so
that justice is done to the stake holders i.e., the accused, the
prosecution and the victim, avoiding injustice in the process and
also in the interest of justice and in furtherance of search of truth
that such materials are placed before the learned Sessions Judge.
146. It is relevant to quote the words from the case of
JENNISON -vs- BAKER reported in 1972(1) All.ER.997, wherein it is
held that:
"the law should not be seen to sit by limply,
while those who defy it go free, and
those who seek its protection lose hope"
147. It is well settled that the trial should not be victim
centric, forgetting the valuable rights available to the accused, but,
when the relevant material becomes available in accordance with
law before the trial Court, the accused cannot be heard to say that
the same cannot be looked into for a fair trial. The administering
criminal justice is a two-end process, where guarding the ensured
rights of the accused under the Constitution is as imperative as
ensuring justice to the victim. Therefore, it becomes clear that a
fair trial envisages production of all relevant material before the
trial Court for discovering the truth of the matter. It is not as if the
petitioners/accused persons would be put to any prejudice if two
supplementary charge sheets and the additional documents are
examined by the Sessions Court in the present case and the
witnesses relevant to such documents are permitted to be
examined.
148. All the learned senior counsel for the petitioners heavily
relied upon the dictum of the Hon'ble Supreme Court in the
case of VINUBHAI HARIBHAI MALAVIYA AND OTHERS -vs-
STATE OF GUJARAT AND ANOTHER reported in (2019)17 SCC 1,
wherein the 3-Judge Bench of the Hon'ble Supreme Court held that
the Police Department has been armed with the power to further
investigate an offence even after a police report has been
forwarded to the Magistrate and quite obviously, this power
continues until the trial can be said to commence in a criminal case.
In paragraph-10 of the above judgment, the Hon'ble Supreme
Court raised a question of law, which reads as under:
10. The learned counsel for the petitioner, Ms Nitya
Ramakrishnan, did not raise any argument concerning
the merits of the case, however raised only the
following two arguments, firstly, that the trial court had
not given the petitioner a separate hearing while
awarding the sentence, in direct contravention of
Section 235(2) of the Code of Criminal Procedure (in
short "CrPC"), which provides for the right of pre-
sentencing hearing as affirmed by this Court in Bachan
Singh v. State of Punjab [Bachan Singh v. State of
Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and a
plethora of other decisions; and secondly, that the
award of the death sentence to the petitioner is
contrary to the ratio of the three-Judge Bench decision
of this Court in Shatrughan Chauhan v. Union of India
[Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1
: (2014) 2 SCC (Cri) 1] , followed in a four-Judge Bench
decision of this Court in Navneet Kaur v. State (NCT of
Delhi) [Navneet Kaur v. State (NCT of Delhi), (2014) 7
SCC 264 : (2014) 3 SCC (Cri) 24] , which held that the
execution of persons suffering from mental illness or
insanity violates Article 21 of the Indian Constitution
and that such mental illness or insanity would be a
supervening circumstance meriting commutation of the
death sentence to life imprisonment.
In paragraph-20 of the above judgment, the Hon'ble Supreme
has recorded a finding which reads as under:
20. The aforesaid ruling came to be questioned in
Dagdu v. State of Maharashtra [Dagdu v. State of
Maharashtra, (1977) 3 SCC 68 : 1977 SCC (Cri) 421] ,
wherein a similar question came before this Court. This
Court, while repelling the submission of the counsel for
the accused therein, who argued that the ratio in Santa
Singh case [Santa Singh v. State of Punjab, (1976) 4
SCC 190 : 1976 SCC (Cri) 546] mandated compulsory
remand of the case to the trial court, held as under :
(SCC p. 89, paras 79-80)
"79. But we are unable to read the judgment
inSanta Singh [Santa Singh v. State of
Punjab, (1976) 4 SCC 190 : 1976 SCC (Cri)
546] as laying down that the failure on the
part of the court, which convicts an accused,
to hear him on the question of sentence must
necessarily entail a remand to that court in
order to afford to the accused an opportunity
to be heard on the question of sentence. The
Court, on convicting an accused, must
unquestionably hear him on the question of
sentence. But if, for any reason, it omits to
do so and the accused makes a grievance of
it in the higher court, it would be open to that
court to remedy the breach by giving a
hearing to the accused on the question of
sentence. That opportunity has to be real and
effective, which means that the accused must
be permitted to adduce before the court all
the data which he desires to adduce on the
question of sentence. The accused may
exercise that right either by instructing his
counsel to make oral submissions to the court
or he may, on affidavit or otherwise, place in
writing before the court whatever he desires
to place before it on the question of
sentence. The Court may, in appropriate
cases, have to adjourn the matter in order to
give to the accused sufficient time to produce
the necessary data and to make his
contentions on the question of sentence.
That, perhaps, must inevitably happen where
the conviction is recorded for the first time by
a higher court.
80. Bhagwati, J. has observed in his
judgment that care ought to be taken to
ensure that the opportunity of a hearing on
the question of sentence is not abused and
turned into an instrument for unduly
protracting the proceedings."
At paragraphs 42 and 43 of the judgment, the Hon'ble
Supreme Court while considering the position of law in the context
of the said specific question raised, has held as under:
42. The trial court heard the petitioner on the aspect of
imposition of sentence separately, which is amply clear
from paras 79 to 87 of the judgment of the trial court.
Hence, based on the material on record we are satisfied
that the trial court has fully complied with the
requirement of Section 235(2) CrPC. While coming to its
conclusion, the court held that the aggravating
circumstances of the crime i.e. the magnitude and
manner of commission of the crime in the form of the
kidnapping, rape and murder of two minor girls,
outweighed the mitigating circumstances of the accused
i.e. the dependency of his aged mother on him, and his
young age. The court also gave weightage to the prior
convictions of the accused for the same kind of offence
i.e. for the offence of rape of a nine-year-old girl child
under Sections 376 and 506 IPC and Section 57 of the
Bombay Children Act, as well as for the kidnapping and
rape of a seven-year-old girl child under Sections 363
and 366 IPC. It may be noted here itself that in light of
his two prior convictions, the trial court also gave him
an opportunity to be heard on the question of Section
75 IPC, which pertains to enhance punishment for
certain offences under Chapter XII or XVII IPC after
previous conviction, but the factum of these convictions
was also not contested by the petitioner.
43. Before the High Court as well, further material was
brought on record by the petitioner regarding his
discharge in one case related to offences of the same
nature, which the Court found to not be in the nature of
a mitigating circumstance. The High Court was of the
opinion that the dependency of aged parents could also
not be considered as a mitigating circumstance to begin
with, and that the accused was not young enough for
his age to be considered as a mitigating circumstance.
The High Court noted the absence of any extreme
mental or emotional disturbance leading to the
commission of the offence, and observed that given the
past offending history of the accused, there was no
hope of his reform or rehabilitation. The Court also
noted the barbaric nature of the offence, inasmuch as
the petitioner had cold-bloodedly raped and murdered
two innocent and defenceless girls by abusing the faith
that they had reposed in him as their neighbour, and
concluded that he would pose a threat to society even if
released for the smallest period of time, and might
commit similar acts in the future. On this basis, the
High Court affirmed the death penalty awarded to the
accused.
149.. On careful perusal of the said judgment, it clearly
depicts that though reference was made to Section 173(8) of the
Code of Criminal Procedure, the Hon'ble Supreme Court proceeded
to consider the powers of the Magistrate after the final report
submitted. With due respect, the said case in no way assists the
case of the present petitioners/accused persons in the facts and
peculiar circumstances of the present case. In the present case, the
supplementary charge sheets were filed against additional accused
persons and infact the Investigating Officer has been arrayed as
Accused No.19 and Supervisory Officer of Investigating Officer has
been arrayed as Accused No.20, when the interim order dated
21.11.2019 passed in the writ petition No.51012/2019 has been
stayed by the Hon'ble Supreme Court in SLP by the order dated
20.2.2020. In fact in the case of Vinubhai Haribhai Malaviya case
stated supra, the Hon'ble Supreme Court though overruled
judgments in Amruthbhai Shambhubhai Patel - (2017)4 SCC 177;
Athul Rao - (2018)14 SCC 298; and Bikash Ranjan Rout - (2019)5
SCC 542, the dictum of the Hon'ble Supreme Court in the case of
Hasanbhai Valibhai Quereshi -vs- State of Gujarat reported in
(2004)5 SCC 347 and Rama Chaudhary -vs- State of Bihar reported
in (2009)6 SCC 346, were not overruled.
150. In the case of Hasanbhai Valibhai Quereshi -vs-
State of Gujarat reported in (2004)5 SCC 347, the Hon'ble
Supreme Court held that when defective investigation comes to
light during course of trial, it may be cured by further investigation
if circumstances so permitted. The mere fact that there may be
further delay in concluding the trial should not stand on the way of
further investigation if that would help the Court in arriving at the
truth and do real and substantial as well as effect justice. In the
said judgment, the Hon'ble Supreme Court held at paragraphs 11,
12 and 13 as under:
11. Coming to the question whether a further
investigation is warranted, the hands of the
investigating agency or the court should not be tied
down on the ground that further investigation may
delay the trial, as the ultimate object is to arrive at the
truth.
12. Sub-section (8) of Section 173 of the Code permits
further investigation, and even dehors any direction
from the court as such, it is open to the police to
conduct proper investigation, even after the court took
cognisance of any offence on the strength of a police
report earlier submitted. All the more so, if as in this
case, the Head of the Police Department also was not
satisfied of the propriety or the manner and nature of
investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979)
2 SCC 322 : 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it
was observed by this Court that further investigation is
not altogether ruled out merely because cognisance has
been taken by the court. When defective investigation
comes to light during course of trial, it may be cured by
further investigation, if circumstances so permitted. It
would ordinarily be desirable and all the more so in this
case, that the police should inform the court and seek
formal permission to make further investigation when
fresh facts come to light instead of being silent over the
matter keeping in view only the need for an early trial
since an effective trial for real or actual offences found
during course of proper investigation is as much
relevant, desirable and necessary as an expeditious
disposal of the matter by the courts. In view of the
aforesaid position in law, if there is necessity for further
investigation, the same can certainly be done as
prescribed by law. The mere fact that there may be
further delay in concluding the trial should not stand in
the way of further investigation if that would help the
court in arriving at the truth and do real and substantial
as well as effective justice. We make it clear that we
have not expressed any final opinion on the merits of
the case.
151. While considering the powers of the High Court under
Articles 226 and 227 of the Constitution of India, the Hon'ble
Supreme Court in the case of Ramesh Chandra Sankla vs. Vikram
Cement reported in (2008) 14 SCC 58 at paragraphs 19 and 98 has
held as under:
"19. Order of the Division Bench
In view of the above order passed by this Court,
intra-court appeals were filed by the Company.
The Division Bench of the High Court, as stated
above, disposed of the appeals by an order dated
31-10-2006. It was held by the Division Bench
that the writ petitions filed by the Company were
under Article 227 of the Constitution and the
learned Single Judge was exercising supervisory
jurisdiction and intra-court appeals were not
maintainable and were liable to be dismissed."
"98. From the above cases, it clearly transpires
that powers under Articles 226 and 227 are
discretionary and equitable and are required to be
exercised in the larger interest of justice. While
granting relief in favour of the applicant, the court
must take into account the balancing of interests
and equities. It can mould relief considering the
facts of the case. It can pass an appropriate order
which justice may demand and equities may
project. As observed by this Court in Shiv
Shankar Dal Mills v. State of Haryana [(1980) 2
SCC 437 : (1980) 1 SCR 1170] courts of equity
should go much further both to give and refuse
relief in furtherance of public interest. Granting or
withholding of relief may properly be dependent
upon considerations of justice, equity and good
conscience."
152. In view of the fact that subsequent investigation was
conducted in pursuance of the Government Order passed by the
State Government entrusting the matter to the CBI, filing of the
supplementary charge sheets and taking cognizance of the final
report submitted by the investigating officer by the Court after
application of mind and overt acts against the accused persons
particularly accused No.15, this is not a fit case to exercise
discretionary powers under Articles 226 and 227 of the Constitution
of India to interfere with the Government Order entrusting the
matter for further investigation by the CBI and on that ground also,
the writ petitions filed by the accused persons are liable to be
rejected.
153. Though the learned Senior Counsel for accused No.1
relied upon the dictum of the Hon'ble Supreme Court in the case of
State of Tamil Nadu -vs- State of Kerala and Another reported in
(2014) 12 SCC 696 with regard to separation of powers, wherein it
was held that the legislature cannot declare any decision of a court
of law to be void or of no effect. It can, however, pass an
amending Act to remedy the defects to the effect that the order
passed by the State Government entrusting the matter to the CBI is
indirectly nullifying the declaration made by this Court on earlier
occasion rejecting the writ petitions filed by the complainants for
entrusting the matter to CBI. Admittedly, during the course of trial,
P.W.58, who is the brother of the deceased, has specifically
deposed that the investigating officer has not conducted the trial in
a fair manner, thereby injustice has been caused to him and on the
request made by the complainant, the State Government thought it
fit to entrust the matter to the CBI to dig out the truth and in terms
of the provisions of Section 6 of the DSPE Act the investigation has
been completed by the Investigating Officer of the CBI during the
pendency of the appeal in SLP filed by the CBI before the Hon'ble
Supreme Court from 20th February, 2020 till 11.8.2021 and in the
meanwhile, the investigating officer has also filed three
supplementary charges and thereby the cognizance of the said
offences has been taken. Therefore, the said judgment relied upon
by the learned Senior Counsel for accused No.1 has no application
to the facts and circumstances of the present case.
154. Another judgment relied upon by the learned Senior
Counsel for accused No.1 is P. Sambamurthy and Others -vs- State
of Andhra Pradesh and Another reported in (1987)1 SCC 362 is
with regard to Government having no power to modify or annul the
order of the Court since it is violative of basic structure doctrine.
We have no quarrel with the law laid down by the Hon'ble Supreme
Court in the said case, but in the present case, the Government has
not modified or annulled the orders passed by this Court, but has
entrusted the matter to the CBI during the pendency of the trial for
further investigation as contemplated under Section 173(8) of the
Code of Criminal Procedure in order to unearth the truth and now
the investigating officer has filed supplementary charge sheets
against the accused persons particularly accused No.15 - the then
Minister; accused No.19, who was the local investigating officer
and accused No.20 - immediate Supervisory Officer of the local
police depicting their involvement in the crime in question and as
such, there was no proper and fair investigation conducted by the
investigating officer. Therefore, the said judgment has no
application to the facts and circumstances of the present case.
155. Another judgment relied upon by the learned Senior
Counsel for accused No.5 is State of Punjab -vs- Bhag Singh
reported in (2004)1 SCC 547 with regard to maintaining judicial
discipline to abide by declaration of law by this Court, cannot be
forsaken, under any pretext by any authority or Court, be it even
the Highest Court in a State, oblivious to Article 141 of the
Constitution of India, 1950. The proposition in the said case is in
consonance with Article 141 of the Constitution of India. Therefore,
any decision rendered by the Hon'ble Supreme Court under Article
141 of the Constitution of India is binding on the citizens including
the High Court and we have no quarrel with the same, but the facts
of the said case are entirely different and the said decision has no
application to the facts and circumstances of the present case.
156. With regard to reliance placed by the learned Senior
Counsel for accused No.5 in the case of State of West Bengal -vs-
Committee for Protection of Democratic Rights reported in (2010)
3 SCC 571 we have no quarrel with the laid down by the Hon'ble
Supreme Court holding that the High Courts or Supreme Court,
being the protectors of the civil liberties of the citizen, have not
only the power and jurisdiction, but also an obligation to protect the
fundamental rights guaranteed by Part III in general and under
Article 21 of the Constitution of India. Admittedly, in the present
case, the complainants though had filed writ petitions praying for
entrustment of the matter to the CBI, the same were dismissed by
the learned Single Judge of this Court for want of sufficient
material at the instance of the investigating officer, who is now
arraigned as accused No.19. Therefore, the said judgment has no
application to the facts and circumstances of the present case.
157. Another judgment relied upon by the learned Senior
Counsel for accused No.5 in the case of Kalabharati Advertising vs
Hemant Vimalnath Narichania & Ors reported in (2010)9 SCC 437
at paragraph-21 in respect to administrative law in general, the
Hon'ble Supreme Court has held that once the basis of a proceeding
is invalid, all consequential acts, action, orders would fall to the
ground automatically. The said judgment has no application to the
facts and circumstances of the present case, since in pursuance of
the impugned order passed by the State Government entrusting
the matter to the CBI, the CBI-2nd respondent has filed FIR and
after conducting further investigation, has filed supplementary
charge sheets before the competent Court and the competent Court
after application of mind has taken cognizance of the offences.
Admittedly, neither the supplementary charge sheets filed after due
investigation by the investigating officer of the CBI nor the
cognizance taken by the competent Court is not at challenged in the
present writ petitions. Therefore, the said judgment is of no help to
the petitioners' case.
158. The reliance placed by the learned Senior Counsel for
accused No.21 in the case of Pritam Singh And Another -vs- The
State Of Punjab reported in AIR 1956 SC 415 wherein the Hon'ble
Supreme Court has held that the effect of a verdict of acquittal
pronounced by a competent Court on a lawful charge and after a
lawful trial, is impermissible on the ground of res judicata.
Admittedly, in the present case, during the pendency of trial, a writ
petition came to be filed before this Court with a prayer to entrust
the matter to the CBI on the ground of improper investigation
which was not good to the real culprits and this Court dismissed the
writ petition holding that no such material was made by the
petitioners-complainants which was upheld by the Hon'ble Supreme
Court. As such, the case was adjudicated on merits of the case in
Crime No.135/2016. Merely because the prayer sought for in Writ
Petition Nos.58183-184/2017 which was for entrustment of the
matter to the other agency was rejected by the learned Single
Judge of this Court and confirmed by the Hon'ble Supreme Court,
that does not mean that, on the subsequent request made by the
complainants, the State Government should not exercise its
sovereign powers in the interest of justice in order to prevent abuse
of law. Therefore, the said judgment has no application to the facts
and circumstances of the present case.
159. In the case of Bhagat Ram vs State Of Rajasthan
reported in (1972) 2 SCC 466 particularly paragraph-13 relied upon
by the learned Senior Counsel for accused No.5 to the effect that
the principles of res judicata is also applicable to criminal
proceedings and it is not permissible in the subsequent stage of
the same proceedings or in some other subsequent proceedings
to convict a person for an offence in respect of which an order for
his acquittal has already been recorded. We have no quarrel with
the law laid down in the said case. But in the present case, it is not
the case of the accused persons that after completion of trial, they
were honourably acquitted and subsequently in the same
proceedings, the State Government wants to proceed with further
investigation against them. As such, the said case has no
application to the facts and circumstances of the present case.
160. Another judgment relied upon by the learned Senior
Counsel for the accused in the case of Khoday Distilleries Limited
(now known as khoday india limited) and Others vs. Sri
Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal
(under liquidation) represented by the Liquidator (2019) 4 SCC
376 particularly paragraphs-22 and 23 with regard to rule of law,
the law laid down in the said case is not applicable to the facts and
circumstances of the present case. So also the judgments relied by
the learned Senior Counsel for accused No.21 in the case of Union
of India vs. K.M. Shankarappa reported in (2001) 1 SCC 582
particularly paragraph-7 as well as State of Tamilandu vs. State of
Kerala and Another reported in (2014) 12 SCC 696 have no
application to the facts and circumstances of the present case.
161. Though the learned Senior Counsel for accused No.21
relied upon the dictum of the Hon'ble Supreme Court in the case of
Delhi International Airport Ltd vs International Lease Finance
reported in (2015)8 SCC 446 with regard to paragraph 23(72) to
the effect that the State Government has not followed the mandate
of the provisions of the First Schedule of the Karnataka Government
Business Transaction Rules, 1977 while passing the impugned
order. On careful perusal of the impugned order passed by the
State Government, the authorities of the State Government have
not only applied the procedure as contemplated, but also have
obtained approval from the Hon'ble Home Minister as well as the
Hon'ble Chief Minister and thereafter, His Excellency, the Governor
and have proceeded to issue the Government Notification. As such,
the same in accordance with law and also with the Karnataka
Government Business Transaction Rules, 1977. Therefore, the said
judgment has no application to the facts and circumstances of the
present case.
162. The learned Senior Counsel appearing for accused
Nos.21, 16 and 15 further relied upon the judgment of the Hon'ble
Supreme Court in the case of Vinay Tyagi vs. Irshad ali alias
Deepak and Others reported in (2013)5 SCC 762 particularly
paragraphs-22 and 23 with regard to further investigation where it
is held that there is no question of fresh investigation or re-
investigation or de nova investigation under the provisions of
Section 173(8) of the Code of Criminal Procedure. Admittedly, in
the present case, the entrustment of the case to the 2nd
respondent-CBI for "further investigation" was handed over by the
State Government by the impugned order dated 6.9.2019 only for
the purpose of further investigation and the same is permissible in
terms of the provisions of Section 173(8) of the Code of Criminal
Procedure, in view of the fact that, during the pendency of the trial,
it has come into light that some of the material witnesses-police
officials, including previous investigating officers, and documents
have been ignored by the investigating Officer and real culprits
have been left out. Admittedly, after investigation, the
supplementary charge sheets are already filed and the matter is
now posted for further trial. Therefore, the said judgment has no
application to the facts and circumstances of the present case.
163. All other judgments relied upon by the learned Senior
Counsel for the petitioners-accused are not at all applicable to the
facts and circumstances of the present case.
164. It is well settled that, if a prima facie case is made out,
disclosing the ingredients of the offences as alleged against the
accused, the Court cannot quash the criminal proceedings as
admittedly in the present case, when the trial is half way charge
sheets are filed by impleading the new accused persons, cognizance
of the offences already taken by the competent Court and now the
matter is being posted for further trial. Therefore, this Court
cannot quash the impugned order passed by the State Government
as well as the FIR culminating into filing of supplementary charge
sheets, taking of cognizance by the competent Court and that too
when the matter is now being posted for further trial in exercise of
powers under the provisions of Articles 226 and 227 of the
Constitution of India read with Section 482 Cr.P.C. Our view is
fortified by the dictum of the Hon'ble Supreme Court in the case of
Rajeev Kourav -vs- Baisahab and Others reported in 2020 SCC
Online SC 168 wherein at paragraph-8 it is held as under:
"8. It is no more res integra that exercise of
power under Section 482 CrPC to quash a criminal
proceeding is only when an allegation made in the
FIR or the charge-sheet constitutes the
ingredients of the offence/offences alleged.
Interference by the High Court under Section 482
CrPC is to prevent the abuse of process of any
court or otherwise to secure the ends of justice. It
is settled law that the evidence produced by the
accused in his defence cannot be looked into by
the court, except in very exceptional
circumstances, at the initial stage of the criminal
proceedings. It is trite law that the High Court
cannot embark upon the appreciation of evidence
while considering the petition filed under Section
482 CrPC for quashing criminal proceedings. It is
clear from the law laid down by this Court that if a
prima facie case is made out disclosing the
ingredients of the offence alleged against the
accused, the Court cannot quash a criminal
proceeding."
165. The Hon'ble Supreme Court while considering the powers
of the High Courts under the provisions of Section 482 Cr.P.C. in
the case of Kaptan Singh -vs- State of Utter Pradesh and Others
reported in 2021 SCC OnLine SC 580 at paragraphs 12, 13, 25 and
26 has held as under:
"12. It is submitted that as held by this Court in
the case of XYZ (Supra) when there are serious
triable allegations in complaint it is improper to
quash the FIR in exercise of inherent powers of
High Court under Section 482 Cr.P.C.
13. It is further submitted that the High Court has
failed to appreciate and consider that the civil
proceedings were initiated initially by Munni Devi
and thereafter the accused no. 2 filed the suit
only for permanent injunction and no suit for
specific performance has been filed. It is
submitted that as such there are very serious
allegations of forgery of the joint notarized
document dated 27.10.2010 by which the accused
have alleged to have given Rs. 25 lakhs to Munni
Devi. It is submitted that the High Court has
failed to appreciate and consider the fact that in
the present case there are two documents of the
very date i.e. 27.10.2010, one is registered one in
which the sale consideration is stated to be Rs. 25
lakhs and in another document of same date
dated 27.10.2010, the sale consideration is stated
to be Rs. 35 lakhs and it is stated that Rs. 25
lakhs have been paid to Munni Devi. It is
submitted that the payment of Rs. 25 lakhs and
even the existence of joint notarized agreement
dated 27.10.2010 is to be considered at the time
of trial. It is submitted that therefore, when there
are serious triable issues, the High Court is not
justified in quashing the criminal proceedings.
25. The High Court has failed to appreciate and
consider the fact that there are very serious
triable issues/allegations which are required to be
gone into and considered at the time of trial. The
High Court has lost sight of crucial aspects which
have emerged during the course of the
investigation. The High Court has failed to
appreciate and consider the fact that the
document i.e. a joint notarized affidavit of Mamta
Gupta - Accused No. 2 and Munni Devi under
which according to Accused no. 2 -Ms. Mamta
Gupta, Rs. 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed.
It is required to be noted that in the registered
agreement to sell dated 27.10.2010, the sale
consideration is stated to be Rs. 25 lakhs and with
no reference to payment of Rs. 25 lakhs to Ms.
Munni Devi and no reference to handing over the
possession. However, in the joint notarized
affidavit of the same date i.e., 27.10.2010 sale
consideration is stated to be Rs. 35 lakhs out of
which Rs. 25 lakhs is alleged to have been paid
and there is a reference to transfer of possession
to Accused No. 2. Whether Rs. 25 lakhs has been
paid or not the accused have to establish during
the trial, because the accused are relying upon
the said document and payment of Rs. 25 lakhs
as mentioned in the joint notarized affidavit dated
27.10.2010. It is also required to be considered
that the first agreement to sell in which Rs. 25
lakhs is stated to be sale consideration and there
is reference to the payment of Rs. 10 lakhs by
cheques. It is a registered document. The
aforesaid are all triable issues/allegations which
are required to be considered at the time of trial.
The High Court has failed to notice and/or
consider the material collected during the
investigation.
26. Now so far as the finding recorded by the
High Court that no case is made out for the
offence under Section 406 IPC is concerned, it is
to be noted that the High Court itself has noted
that the joint notarized affidavit dated 27.10.2010
is seriously disputed, however as per the High
Court the same is required to be considered in the
civil proceedings. There the High Court has
committed an error. Even the High Court has
failed to notice that another FIR has been lodged
against the accused for the offences under
Sections 467, 468, 471 IPC with respect to the
said alleged joint notarized affidavit. Even
according to the accused the possession was
handed over to them. However, when the
payment of Rs. 25 lakhs as mentioned in the joint
notarized affidavit is seriously disputed and even
one of the cheques out of 5 cheques each of Rs. 2
lakhs was dishonoured and according to the
accused they were handed over the possession
(which is seriously disputed) it can be said to be
entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence
under Section 406 IPC is premature and the
aforesaid aspect is to be considered during trial. It
is also required to be noted that the first suit was
filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too
for permanent injunction only. Nothing is on
record that any suit for specific performance has
been filed. Be that as it may, all the aforesaid
aspects are required to be considered at the time
of trial only. Therefore, the High Court has grossly
erred in quashing the criminal proceedings by
entering into the merits of the allegations as if the
High Court was exercising the appellate
jurisdiction and/or conducting the trial. The High
Court has exceeded its jurisdiction in quashing the
criminal proceedings in exercise of powers under
Section 482 Cr.P.C."
166. On meticulous consideration of all the pleadings,
objections and the arguments advanced by the learned Counsel for
the parties as well as the material on record, it clearly depicts that
the local investigating officers have not conducted the investigation
in a fair and proper manner to both victim as well as accused
persons, thereby some of the accused persons have been shielded
to escape from the clutches of law and the subsequent
supplementary charge sheets filed clearly illustrates that the very
investigating officers - accused Nos.19 and 20 have colluded with
accused persons by receiving gratification in order to dilute the
investigation and there are abundant material on record and overt
acts against the said accused persons. Now the matter is being
posted for further trial and the accused persons have to face the
trial. The petitioners-accused have not made out a case as to how
they are prejudiced by facing trial. Ultimately after trial, the truth
always prevails and hence, no injustice would be caused to the
accused persons in facing the trial. In the circumstances, this is not
a fit case where this Court can interfere with the impugned order
passed by the State Government in exercise of discretionary powers
under Articles 226 and 227 of the Constitution of India read with
Section 482 Cr.P.C. in entrusting the case to the 2nd respondent-
CBI for further investigation culminating into filing of FIR and
resultantly, the investigation is carried out by the investigating
officers of the 2nd respondent-CBI during the pendency of the
interim order of stay granted by the Hon'ble Supreme Court staying
operation of the learned Single Judge of this Court with effect from
20th February, 2020 till the disposal of the SLP on 11.8.2021 and
even after disposal of SLP, the Hon'ble Supreme Court has
continued the stay order to operate.
XIV - Conclusion
167. For the reasons stated above and in the light of the
principles enunciated in the judgments of the Hon'ble Supreme
Court stated supra, the points raised in these writ petitions are
answered as follows:
a) The 1st point raised in these writ petitions is
answered in the negative holding that the
petitioners - Accused Nos.1,5,15,16 and 21, in
these writ petitions have not made out a case to
quash the impugned Government Order bearing
No.HD 48 PCB 2016, Bengaluru, dated 6.9.2019,
by which sanction has been accorded to the
Central Bureau of Investigation, under Section
(6) of Delhi Special Police Establishment Act,
1946 for "further investigation" of Crime
No.135/2016 under Section 302 of IPC lodged in
Dharwad Sub-Urban Police Station, Dharwad, and
to quash the FIR dated 24.9.2019 made in
Bangalore/CBI/ACB/BLR 2019 RC 17(S)/2019, by
the Superintendent of Police, Central Bureau of
Investigation, in the facts and circumstances of
the present case.
b) The 2nd point is answered in the affirmative
holding that the Investigating Officer of the 2nd
respondent/CBI is empowered to proceed with the
investigation, in view of the interim order passed
by the Hon'ble Supreme Court dated 20.2.2020
in SLP (Criminal) No.1348/2020 (from 20.2.2020
to 11.8.2021) staying the operation of the order
passed by the learned Single Judge of this Court
dated 21.11.2019 made in W.P. No.51012/2019,
in the peculiar facts and circumstances of the
present case.
XV - Result
168. In view of the above, we pass the following order:
(i) Writ Petition No.51012/2019 filed by Accused
No.1 - Basavaraj Shivappa Muttagi;
Writ Petition No.52575/2019 filed by Accused
No. 5 - Vinayak;
Writ Petition No.15828/21 filed by Accused
No.15 - Vinay Kulkarni;
Writ Petition No.16088/21 filed by Accused No.16
- Chandrashekar Indi; AND
Writ Petition No.16081/21 filed by Accused No.21
- Somashekar,
are hereby dismissed as devoid of merits.
(ii) In view of dismissal of these writ petitions, the
impleading application filed in W.P.
No.51012/2019, is also disposed off.
(iii) The learned LXXXI Addl. City Civil and Sessions
Judge, Bengaluru (CCH 82), is hereby directed to
expedite the trial in SPl.C No.565/2021 (which
was earlier pending before the IV Addl. District &
Sessions Judge, Dharwad in S.C. No.50/2017),
without being influenced by any of the
observations made in this order, and proceed
strictly in accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
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