Santosh Singh Rajawat vs The State Of Madhya Pradesh
2022 Latest Caselaw 9277 MP

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                             ON THE 11th OF JULY, 2022

                    WRIT PETITION No. 12572 of 2022

         Between:-
         SANTOSH SINGH RAJAWAT S/O LATE SHRI
         RAM SWAROOP SINGH , AGED ABOUT 50
         YEARS, NARAYAN VIHAR GOLEKA MANDIR P S
         GOLE KA MANDIR (MADHYA PRADESH)

                                                                .....PETITIONER
         (BY SHRI S.S. RAWAT, ADVOCATE )

         AND

1.       THE STATE OF MADHYA PRADESH PRINCIPAL
         SECRETARY VALLABH BHAWAN BHOPAL
         (MADHYA PRADESH)

2.       THE  SUPERINTDENT     OF  POLLICE DIST.
         GWALIOR DIST. GWLAIOR (MADHYA PRADESH)

3.       STATION HOUSE OFFICER POLICE STATION
         GOLE KA MANDIR GWALIOR, DIST. GWALIOR
         (MADHYA PRADESH)

4.       AYUSH SHARMA S/O SHRI HARIOM SHARMA
         NARAYAN VIHAR, GOLE KA MANDIR GWALIOR
         PS GOLE KA MANDIR (MADHYA PRADESH)

                                                             .....RESPONDENTS
         (BY SHRI P.S. RAGHUVANSHI, GOVERNMENT ADVOCATE)

      Th is petition coming on for hearing this day, th e court passed the
following:
                                     ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following relief:-

(1) That, the Hon'ble Court may kindly be

directed to decide the representation (Annexure P/1) and conducted the fair inquiry in the matter.

(2) That, other relief doing including cost ordered.

It is submitted by the counsel for the petitioner that petitioner has been falsely implicated in Crime No. 248/2022 registered at Police Station Gole Ka Mandir District Gwalior for the simple reason that at the time of commission of offence, he was not present at the spot and he was at his house and was busy for purchasing and function of Mahila Sangeet was going on at his house as the marriage of one Yogeshwar S/o Santosh was fixed.

Heard the counsel for petitioner.

Petitioner is the suspected accused in Crime No. 248/2022 registered at Police Station Gole Ka Mandir District Gwalior. The Supreme Court in the case of Romila Thapar v. Union of India, reported in (2018) 10 SCC 753 has held as under :

23. After having given our anxious consideration to the rival submissions and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named accused have approached this Court and have asked for being transposed as writ petitioners, the following broad points may arise for our consideration:

23.1. (i) Should the investigating agency be changed at the behest of the named five accused? 23.2. (ii) If the answer to Point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL?

23.3. (iii) If the answer to Questions (i) and/or

(ii) above, is in the affirmative, have the

petitioners made out a case for the relief of appointing Special Investigating Team or directing the court-monitored investigation by an independent investigating agency? 23.4. (iv) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) that he is an innocent and law abiding person?

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 investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus:

“64. … It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The Sitaram Banafar vs. State of MP and Ors. accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them.â€Â​

(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:

“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.â€Â​

(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:

“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 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.â€Â​

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.

The accused has no right to dictate the Investigating Officer to investigate the matter in a particular manner. Even this Court can not interfere in the investigation because it would amount to supervision which is not permissible under the law. The Hon'ble Supreme Court in the case of Manohar Lal Sharma Vs. Principal Secretary, reported in (2014) 2 SCC 532 has held that the Constitutional Court can merely monitor the investigation and can not supervise the same. Furthermore, plea of alibi is a defence which is required to be proved by the suspected accused by leading cogent and reliable evidence before the trial Court.

Under these circumstances, this Court is of the considered opinion that the petition sans merit and accordingly, is dismissed.

YOGENDR A OJHA 2022.07.1 2 16:19:35 +05'30' (G.S. AHLUWALIA) JUDGE ojha