Madhya Pradesh High Court
Yogesh Singh Bhadoriya vs The State Of Madhya Pradesh on 15 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15th OF MAY, 2025
WRIT PETITION No. 12471 of 2025
YOGESH SINGH BHADORIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Brijendra Singh Gour - Advocate for petitioner.
Shri S.S. Kushwaha - Government Advocate for State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs:-
"(i) It is, therefore, most humbly prayed that this petition filed on behalf of
the petitioner may kindly be allowed and pleased to direct thé respondents
to conduct the fair and impartial investigation of FIR registered by Police
Station Dehat, District Bhind at Crime No.526/2024 for offence under
Sections 115(2), 296, 51(3), 126(2), 3(5) OF BNS, 2023 and under
Sections 3(1)(r), 3(1)(s) and 3(2)(va) of SC/ST ACT, in the interest of
justice.
Any other relief which this Hon'ble Court deems fit in the facts and
circumstances of the case same may kindly be granted to the petitioner."
2 . An FIR has been registered against the petitioner and petitioner is
seeking fair and impartial investigation.
3. The moot question for consideration is as to whether application on
behalf of accused for conducting investigation in a particular manner is
maintainable or not?
4 . The Supreme Court in the case of Romila Thapar and others vs.
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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 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
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
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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 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. 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 organization 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 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
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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....................."
5. The Supreme Court in the case of Dinubhai Boghabhai Solanki v.
State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
"50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993
SCC (Cri) 1171] , the High Court had quashed and set aside the order passed by the
Special Judge in charge of CBI
matters issuing the order rogatory, on the application of a named accused in the FIR,
Mr W.N. Chadha. The High Court held that the order issuing letter rogatory was
passed inbreach of principles of natural justice. In appeal, this Court held as follows:
(SCC pp. 290-91 & 293, paras 89, 92 & 98)
"89. Applying the above principle, it may be held that when the investigating
officer is not deciding any matter except collecting the materials for ascertaining
whether a prima facie case is made out or not and a full enquiry in case of filing
a report under Section 173(2) follows in a trial before the Court or Tribunal
pursuant to the filing of the report, it cannot be said that at that stage rule of audi
alteram partem superimposes an obligation to issue a prior notice and hear the
accused which the statute does not expressly recognise. The question is not
whether audi alteram partem is implicit, but whether the occasion for its
attraction exists at all.
***
92 More so, the accused has no right to have any say as regards the manner and
method of investigation. Save under certain exceptions under the entire scheme
of the Code, the accused has no participation as a matter of right during the
course of the investigation of a case instituted on a police report till the
investigation culminates in filing of a final report under Section 173(2) of the
Code or in a proceeding instituted otherwise than on a police report till the
process is issued under Section 204 of the Code, as the case may be. Even in
cases where cognizance of an offence is taken on a complaint notwithstanding
that the said offence is triable by a Magistrate or triable exclusively by the Court
of Sessions, the accused has no right to have participation till the process is
issued. In case the issue of process is postponed as contemplated under Section
202 of the Code, the accused may attend the subsequent inquiry but cannot
participate. There are various judicial pronouncements to this effect but we feel
that it is not necessary to recapitulate those decisions. At the same time, we
would like to point out that there are certain provisions under the Code
empowering the Magistrate to give an opportunity of being heard under certain
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specified circumstances.
***
98. If prior notice and an opportunity of hearing are to be given to an accused in
every criminal case before taking any action against him, such a procedure
would frustrate the proceedings, obstruct the taking of prompt action as law
demands, defeat the ends of justice and make the provisions of law relating to
the investigation lifeless, absurd and self defeating. Further, the scheme of the
relevant statutory provisions relating to the procedure of investigation does not
attract such a course in the absence of any statutory obligation to the contrary."
These observations make it abundantly clear that it would not be necessary to give an
opportunity of hearing to the proposed accused as a matter of course. The Court
cautioned that if prior notice and an
opportunity of hearing have to be given in every criminal case before taking any
action against the accused person, it would frustrate the entire objective of an
effective investigation. In the present case, the appellant was not even an accused at
the time when the impugned order was passed by the High Court. Finger of suspicion
had been pointed at the appellant by independent witnesses as well as by the grieved
father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 : 1997 SCC
(Cri) 88] , this Court again reiterated the law as follows: (SCC pp. 256- 57, para 8)
"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. ... 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, 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) 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."
The aforesaid observations would clearly support the course adopted by the High
Court in this matter. We have earlier noticed that the High Court had initially directed
that the investigation be carried under the supervision of the Special Commissioner of
Police, Crime Branch, of the rank of the Additional Director General of Police. It was
only when the High Court was of the opinion that even further investigation was not
impartial, it was transferred to CBI.
52. Again 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 observed as follows: (SCC pp.742-43, paras 10-11)
"10. Power of the police to conduct further investigation, after laying final
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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] . 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.
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."
These observations also make it clear that there was no obligation for the High Court
to either hear or to make the appellant a party to the proceedings before directing that
the investigation be conducted by CBI.
53. We had earlier noticed that the High Court had come to the prima facie conclusion
that the investigation conducted by the police was with the motive to give a clean chit
to the appellant, in spite of the statements made by the independent witnesses as well
as the allegations made by the father of the deceased. The legal position has been
reiterated by this Court in Narender G. Goel [Narender G. Goel v. State of
Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, paras 11-
13)
"11. It is well settled that the accused has no right to be heard at the stage of
investigation. The prosecution will however have to prove its case at the trial
when the accused will have full opportunity to rebut/question the validity and
authenticity of the prosecution case. 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] this Court observed: (SCC p. 743,
para 11)
'11. ... 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.'
12. The accused can certainly avail himself of an opportunity to cross-examine
and/or otherwise controvert the authenticity, admissibility or legal significance
of material evidence gathered in the course of further investigations. Further in
light of the views expressed by the investigating officer in his affidavit before
the High Court, it is apparent that the investigating authorities would inevitably
have conducted further investigation with the aid of CFS under Section 173(8)
of the Code.
13. We are of the view that what is the evidentiary value can be tested during
the trial. At this juncture it would not be proper to interfere in the matter."
6. Furthermore,the Supreme Court in the Case of Manohar Lal Sharma
Vs. Principal Secretary and others, reported in (2014) 2 SCC 532 has held as
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under:-
"38. The monitoring of investigations/inquiries by the Court is intended to
ensure that proper progress takes place without directing or channelling
the mode or manner of investigation. The whole idea is to retain public
confidence in the impartial inquiry/investigation into the alleged crime;
that inquiry/investigation into every accusation is made on a reasonable
basis irrespective of the position and status of that person and the
inquiry/investigation is taken to the logical conclusion in accordance with
law. The monitoring by the Court aims to lend credence to the
inquiry/investigation being conducted by CBI as premier investigating
agency and to eliminate any impression of bias, lack of fairness and
objectivity therein.
39. However, the investigation/inquiry monitored by the court does not
mean that the court supervises such investigation/inquiry. To supervise
would mean to observe and direct the execution of a task whereas to
monitor would only mean to maintain surveillance. The concern and
interest of the court in such "Court-directed" or "Court- monitored" cases
is that there is no undue delay in the investigation, and the investigation is
conducted in a free and fair manner with no external interference. In such
a process, the people acquainted with facts and circumstances of the case
would also have a sense of security and they would cooperate with the
investigation given that the superior courts are seized of the matter. We
find that in some cases, the expression "Courtmonitored" has been
interchangeably used with "Court-supervised investigation" Once the court
supervises an investigation, there is hardly anything left in the trial. Under
the Code, the investigating officer is only to form an opinion and it is for
the court to ultimately try the case based on the opinion formed by the
investigating officer and see whether any offence has been made out. If a
superior court supervises the investigation and thus facilitates the
formulation of such opinion in the form of a report under Section 173(2) of
the Code, it will be difficult if not impossible for the trial court to not be
influenced or bound by such opinion. Then trial becomes a farce.
Therefore, supervision of investigation by any court is a contradiction in
terms. The Code does not envisage such a procedure, and it cannot either.
In the rare and compelling circumstances referred to above, the superior
courts may monitor an investigation to ensure that the investigating
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agency conducts the investigation in a free, fair and time-bound manner
without any external interference."
7. Therefore, it is clear that even if this Court directs the Investigating
Agency to investigate the matter in a particular manner, then it would fall
within the category of supervision which is not permissible under the law.
8 . Since the petitioner who is an accused in FIR has no say in the
manner of investigation and cannot seek investigation in a particular manner,
coupled with the fact that this Court cannot supervise the investigation,
accordingly, no case is made out warranting interference. Petition fails and is
hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
