Madhya Pradesh High Court

Girand Prasad Sharma vs The State Of Madhya Pradesh on 23 April, 2022

Author: Gurpal Singh Ahluwalia

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        THE HIGH COURT OF MADHYA PRADESH
                   MCRC-19417-2022
Girand Prasad Sharma and another Vs. State of MP and another

Gwalior, Dated: 23.04.2022

      Shri Anand Purohit, Counsel for the applicants.

      Smt. Anjali Gyanani, Counsel for the State.

      This application under Section 482 of CrPC has been filed

seeking a direction to the respondents to conduct a fair and impartial

investigation in Crime No.209/2021 registered at Police Station Raun

District Bhind for offence under Sections 323, 504, 325 of IPC.

It is submitted by the counsel for the applicants that since the

complainant had succeeded in getting false medical certificate

prepared from the hospital, therefore, he had approached the

Collector, Bhind, Superintendent of Police, Bhind as well as

Commissioner, Chambal Division, Morena. The Additional

Commissioner, Chambal Division, Morena by his letter dated

13.09.2021 forwarded a complaint to the Collector as well as

Superintendent of Police, Bhind with a direction to conduct an

enquiry and inform his office immediately. It is further submitted that

even otherwise, it is clear that the FIR in question was lodged by way

of counterblast.

Heard the learned counsel for the applicants.

Shri Anand Purohit was directed to argue on the authority of

Additional Commissioner, Chambal Division, Morena in writing a

letter dated 13.09.2021 to the Collector, Bhind as well as

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another

Superintendent of Police, Bhind. However, Shri Purohit was unable

to justify the jurisdiction of the Additional Commissioner, Chambal

Division, Morena in writing the said letter to the Superintendent of

Police, Bhind.

The Additional Commissioner, Chambal Division, Morena

does not enjoy any power under the provision of CrPC. He has no

business whatsoever to interfere in the investigation. The Additional

Commissioner, Chambal Division, Morena cannot be said to be a

senior police officer. Therefore, it is clear that the letter dated

13.09.2021 written by Additional Commissioner thereby directing the

Superintendent of Police to look into the complaint made by the

applicants is without jurisdiction and thus it is a nullity.

So far as the right of accused to seek free, fair and impartial

investigation is concerned, this Court is of the considered opinion

that such right does not exist in favour of the accused persons.

The Supreme Court in the case of Romila Thapar and others

vs. Union of India and others reported in (2018) 10 SCC 753 has

held as under:-

"24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another

investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus: (SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."

(emphasis supplied)

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

(emphasis supplied)

26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: (SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment.

In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another

entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."

27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.

28. Be that as it may, it will be useful to advert to the exposition in State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, West Bengal and Ors.13 In paragraph 70 of the said decision, the Constitution Bench observed thus:

"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 13 (2010) 3 SCC 571 38 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 the 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

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another

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 the 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."

29. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. 39 Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above) - regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A16 to A20) has been seriously disputed by the Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another

any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. Admittedly, the named accused have already resorted to legal 40 remedies before the jurisdictional Court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the Court for obtaining remand by the Police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.

30. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation....................."

This Court in the case of Prabal Dogra vs. Superintendent of

Police, Gwalior and State of M.P. by order dated 30.11.2017

passed in M.Cr.C.No.10446/2017 has held that the accused has no

say in the matter of investigation.

Since the applicants, who have been arrayed as an accused in

the impugned FIR, have no right to seek a direction from this Court

for conducting the investigation in a particular manner and even

otherwise, in the light of the judgments passed by the Supreme Court

in the case of Manohar Lal Sharma Vs. Principal Secretary

reported in AIR 2014 SC 666, this Court cannot supervise the

investigation, this Court is of the considered opinion that prayer

THE HIGH COURT OF MADHYA PRADESH MCRC-19417-2022 Girand Prasad Sharma and another Vs. State of MP and another