Manipur High Court
Dr. Akoijam Jhalajit Singh vs The Central Bureau Of ... on 24 February, 2021
Yumkh Digitally signed
by Yumkham
am Rother
Date: IN THE HIGH COURT OF MANIPUR
2021.02.26
Rother 13:40:58 +05'30' AT IMPHAL
Cril.Petn.No.6 of 2017
Dr. Akoijam Jhalajit Singh, aged about 53 years S/O AK Udhop
Singh of Thoubal Wangma Taba. P.O and P.S Thubal, Thoubal
District, Manipur presently residing at Moirangkhom Chingakham
Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.
....... Petitioner
- Versus -
The Central Bureau of Investigation (CBI) represented by the
Additional Superintendent of Police, CBI SC-II, New Delhi.
.... Respondent
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner/s : Mr S. Prabhakaran, Sr. Advocate,
Mr. Jayant Sut.
For the Respondent/s : Mr. W. Darakishwor, SR. PCCG
Date of hearing : 11.01.2021
Date of Judgment & Order : 24.02.2021
JUDGMENT & ORDER
(CAV)
[1] This criminal petition has been filed by the petitioner under
Section 482 Cr.P.C. seeking to set aside the order dated 14.2.2017
Cril.Pet. No.6 of 2017 Page 1
passed in Criminal Miscellaneous Case NO.25 of 2017, whereby learned
Sessions judge, Imphal West directed further investigation of RC 1 (S)
2010 IMPH and RC 2(S)2010 IMPH.
[2] The case of the petitioner is that on 23.7.2009 an
encounter took place at B.T. Road, Imphal in which two persons namely
Thokchom Rabina and Chungkham Sanjit Singh were killed and police
registered First Information Reports being FIR NO.75(7) 2009 on the file
of City PS and FIR NO.82(8) 2009 on the file of City PS under Section
302/34 IPC and section 27(3) Arms Act. Later on, on petition filed by the
mother of Chungkham Sanjit Singh, the Gauwahi High Court, Imphal
Bench transferred the investigation to CBI and the CBI registered the
case as RC 1(S)2010 IMPH and after investigation, the CBI filed the
charge sheet against nine accused.
[3] According to the petitioner, at the relevant time, the
petitioner was serving as Additional Superintendent of police, Imphal
West and he has been cited as prosecution witness and the petitioner has
fully co-operated with the CBI in the investigation and in the charge sheet
filed by the CBI, the petitioner was one of the witness among 254
witnesses to be examined as prosecution witnesses. Now the trial is
Cril.Pet. No.6 of 2017 Page 2
pending before the learned Sessions judge, Imphal West, where almost
90 prosecution witnesses have been examined.
[4] On 27.1.2016, the third accused namely Th. Herojit Singh
made a statement to the local daily that he killed Chungkham Sanjit Singh
as per the order of the then Additional Superintendent of police, the
petitioner herein. Immediately, the mother of the deceased Chungkham
Sanjit Singh filed representation to the Superintendent of Police, CBI,
Imphal Branch for further investigation. Since the CBI has not considered
the representation, the mother of the deceased Chungkham Sanjit Singh
filed W.P.NO.6 of 2016 before this court for a direction to CBI to make
further investigation. By an order dated 26.2.2016, the said writ petition
was dismissed as withdrawn.
[5] Thereafter, the third accused filed Criminal Miscellaneous
Case NO.20 of 2016 before the learned Sessions judge, Imphal West for
allowing him to make full true disclosure in connection to the killing of
Chungkham Sanjit Singh in a fake encounter on 23.7.2009 and by an
order dated 30.3.2016, the said petition was dismissed by the said Court.
The mother of Chungkham Sanjit Singh has also filed Criminal
Miscellaneous Case NO.25 of 2016 before the learned sessions judge in
Cril.Pet. No.6 of 2017 Page 3
Sessions Trial Case NO.7/2010/57/2015 for further investigation into the
case and by an order dated 30.3.2016, the said petition was also
dismissed.
[6] According to the petitioner, after almost a year of the
dismissal of Criminal Miscellaneous Case NO.25 of 2016, the CBI filed
application before the learned Sessions Judge seeking direction to make
a further investigation in the case under trial. By an order date 14.2.2017,
the learned Sessions Judge granted liberty to the CBI to proceed for
further investigation under Section 173(8) Cr.P.C. Challenging the same,
the petitioner has filed the present petition.
[7] MR.S. Prabakaran the learned senior counsel for the
petitioner submitted that the issue of further investigation has arisen only
after the third accused gave a statement in the media saying that he had
committed the crime as per the instruction of the petitioner was officiating
as Additional Superintendent of police, Imphal West. He would submit that
the said statement made by the third accused was without any supporting
or collaborating evidence and it was just a mere statement.
[8] The learned senior counsel further submitted that mere
statement of an accused is not enough to book another person as a co-
Cril.Pet. No.6 of 2017 Page 4
accused without any supporting evidence to support the same. Even for
the purpose of further investigation, there should be new evidence and as
per the Indian Evidence Act, affidavit sworn before an Oath Commissioner
cannot be taken as evidence.
[9] The learned senior counsel would submit that the learned
Sessions Judge dismissed the petition filed by the third accused to allow
him to record his statement under Section 164 Cr.P.C. before the
learned Sessions Judge regarding his confessional statement of
committing the crime at the instance of the petitioner. According to the
learned senior counsel, when the mother of the deceased filed an
application before the learned Sessions Judge to direct the CBI for
further investigation relying on the statement given by the third accused,
the same was opposed by the CBI stating that mere statement of the
third accused cannot be considered as evidence and there is no new
evidence which may compel the CBI for further investigation before
completing the trial of the case. Taking note of the submissions of the
CBI, the learned Sessions Judge dismissed the petition filed by the
mother of the deceased.
[10] The learned senior counsel next submitted that by allowing
the application of the CBI which only intimates the learned Sessions
Cril.Pet. No.6 of 2017 Page 5
Judge that CBI has started further investigation by relying on the said
statement of the third accused will amounts to reviewing the earlier
decision rendered by the learned Sessions Judge in the same matter.
[11] The learned senior counsel then submitted that the conduct
of the CBI dealing with the petitioner clearly shows that CBI wanted to
implicate him in the present case and the petitioner has not only been
summoned for recording his statement but to harass him by tainting his
image. Since the CBI has investigated the matter thoroughly by
collecting all evidences before filing the charge sheet and the charge
sheet has been filed against nearly eight police personnel, the act of the
CBI trying to implicate the petitioner is nothing but to harass with a
vindictive agenda to tarnish the image of the petitioner. Therefore, no
further investigation by the CBI is necessary and prayed for setting aside
the order of the learned Sessions Judge dated 14.2.2017 impugned in
this petition. In support of his submissions, the learned senior counsel
relied on the following decisions:
(1) Hari Charan Kurmi and Jogia Hajam V. State of Bihar, 1964 SCR (6)
(2) State of AP V. AS Peter, (2008) 2 SCC 383.
(3) Ashish Dixit and others V. State of UP and another, (2013) 4 SCC
Cril.Pet. No.6 of 2017 Page 6
(4) Vinay Tyagi V. Trshad Ali @ Deepak and others, (2013) 5 SCC 762.
(5) Mehsana Nagrik Sahkari Bank Limited V. Shreeji Cab Company and
others, (2014) 13 SCC 619.
(6) Dhariwal Industries Limited V. Kishore Wadhwani, (2016) 10 SCC
[12] Per contra, Mr. W. Darakishwor, Sr. PCCG, the learned
counsel for the respondent CBI submitted that the present petition is
premature, devoid of merits and in fact the present petition has been
filed by the petitioner with a view to evade the process of fair and
impartial further investigation which is being carried out on the basic of
fresh and new additional facts disclosed by the mother of the deceased
Chungkham Sanjit. He would submit that keeping in view of the
seriousness of the case and the new facts discovered, the further
investigation is necessary and the learned Sessions Judge has rightly
ordered further investigation under Section 173(8) Cr.P.C. He would
further submit that the investigation is the continuation of the earlier
investigation and it is neither fresh investigation nor re-investigation. The
petition filed by the CBI before the learned Sessions Judge on 14.2.2017
is in terms of Section 173(8) Cr.P.C. and also as per the procedure
prescribed.
Cril.Pet. No.6 of 2017 Page 7
[13] The learned counsel further submitted that pursuant to the
permission granted by the learned Sessions Judge dated 14.2.2017,
efforts were made by the CBI to examine the petitioner and after due
insistence, the petitioner appeared before the CBI for examination, but
he did not cooperate on one pretext or other and found to be evasive on
certain question put to him. Therefore, a fresh notice under Section 160
Cr.P.C. dated 15.2.2017 was served on the petitioner with a direction to
appear for formal examination, however, the petitioner has not appeared
and filed anticipatory bail application and the same was dismissed. He
would submit that the petitioner is deliberately raising doubts about the
motive of the CBI just with a view to cover up his own undesirable non-
cooperative conduct.
[14] The learned counsel then submitted that the acts and
behavior of the petitioner evading from giving his statement to the
investigating officer of the case become suspicious and the petitioner by
filing various criminal petitions in the court, he has been trying to evade
from cooperating in the further investigation of the case, thereby he is
acting like an accused. If such responsible police officer fails to
cooperate with the present case, how the principle of the criminal law
can be achieved and enforced to bring out the true culprit of the offence
Cril.Pet. No.6 of 2017 Page 8
in a speedy manner. Arguing so, the learned counsel for the CBI prays
to allow the investigating agency of the CBI to take the statement of the
petitioner and thus, prayed for dismissal of the present petition.
[15] This Court considered the submissions raised by the
learned counsel for the parties and perused the materials available on
record.
[16] The petitioner seeks to set aside the order of the learned
Sessions Judge impugned in this petition on the following grounds:
* Albeit under Section 173(8) Cr.P.C., the investigating office has enough
power to make further investigation in a situation where new
evidence/materials are discovered after submitting the charge sheet, but
not to misuse it for malafide design.
* When CBI has opposed in tooth and nail, the application of the accused
namely Thounaojam Herojit Singh for allowing him to make full true
disclosure in connection to the killing of Chungkham Sanjit Meitei and the
same was dismissed by the trial Court on 30.3.2016 then what are the new
evidences gathered by the CBI within a period of one year to make further
investigation in the present case were not stated.
* The most question required for consideration is, what is the value of a
statement given by an accused to media. As a matter of fact it is
inadmissible in the Evidence Act and even if his statement is recorded by
the CBI after seven years of submitting the charge sheet before the
Magistrate, the question which arises for consideration is what is the value
of a confessional statement given by the accused to the police. It is
Cril.Pet. No.6 of 2017 Page 9
inadmissible as per Section 25 of the Indian Evidence Act and when a
confessional statement of an accused is inadmissible against himself, how
can it be admissible against the other person.
* Even if the third accused Thounaojam Herajit Singh wants to make a
statement under Section 164 Cr.P.C. that cannot be recorded now because
statement under Section 164. Cr.P.C. can be recorded during the
investigation whereas the present case is under trial where almost 105
witness have already been examined so far.
* Even if the confessional statement of the third accused is recorded under
Section 164 Cr.P.C., it cannot be read against a person who is not facing a
joint trial.
[17] On the other hand, it is the say of the CBI that it is
prerogative of the investigating agency to continue further investigation,
if new facts happened to be developed either orally or documentary.
According to the CBI, it is very much clear from the plea raised by the
mother of the deceased that Chungkham Sanjit was killed owning to the
criminal intents of the charge sheeted accused. As such, by the order
impugned, the application of the CBI was allowed by the learned
Sessions Judge and there is no infirmity in it.
[18] Placing reliance upon the decisions of the honorable
Supreme Court in the cases of Vinay Tyagi V. Irshad Ali, (2013) 5 SCC
762 and Reeta Nag V. State of West Bengal and others, (2009) 13
Cril.Pet. No.6 of 2017 Page 10
SCR 276, MR. Darakishwor the learned counsel for the CBI submitted
that Section 173(8) of the Cr.P.C. clearly granted right to the
investigation agency to continue the further investigation and in the
instant case, the petitioner is still not an accused and he was only called
by the CBI for examination in connection with the development of new
facts during the course of the trial of the present case. As such the
behavior of the petitioner evading from giving his statement to the
investigating officer of the case become suspicious.
[19] It is settled law that notwithstanding that a Magistrate had
taken cognizance of the offence upon a police report submitted under
Section 173 of Cr.P.C., 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.
[20] From the plain reading of Section 173 Cr.P.C., It is evident
that after submission of police report under sub-section (2) on
completion of investigation, the police has a right of further investigation
under sub-section (8), but not investigation or re-investigation.
Cril.Pet. No.6 of 2017 Page 11
[21] In the instant case, earlier the mother of the deceased filed
an application before the learned Sessions Judge to direct the CBI for
further investigation relying on the very statement given by the third
accused which is now relied on by the CBI. The said application was
opposed by the CBI by saying that mere statement of the third accused
cannot be considered as evidence and there is no new evidence which
may compel the CBI for further investigation before completing the trial
of the case. Accepting the submission of the learned counsel for the
CBI, the learned Sessions Judge dismissed the application filed by the
mother of the deceased.
[22] On a perusal of the order dated 30.3.2016, it is seen that
the learned Sessions Judge recorded the submissions of the learned
counsel for the CBI in paragraph 4 as under:
"Ld. Counsel of CBI, Shri P.Ibomcha Singh, per con, has contended that
under section 173 Cr.P.C. the CBI has ample power to further
investigation a case if new facts are arises even after commencement of
trial but at present, the CBI is not in a position to initiate any step to the
question as to whether a further investigation into the case is necessary
or not, as any step taken up by CBI will cause prejudice since the
present petitioner filed writ petition before the honorable High Court as
well as before this Court Shri. P.Ibomcha Singh, Id. Counsel of CBI, has
further maintained that the alleged disclosure of the accused Herojit
Cril.Pet. No.6 of 2017 Page 12
Singh to the print and electronic media as well as on an affidavit sworn
before an Oath Commissioner cannot be taken as evidence in any
manner in the case as per Indian Evidence Act and in such situation, this
court cannot consider the alleged disclosure of the accused Herojit Singh
and further, this trial court has also no power under Section 173(8)
Cr.PC. to direct further investigation to the investigating agency after the
commencement of trial unless the investigating agency requested to do
so, nevertheless, the CBI is ready to obey whatever direction made by
the Court."
[23] Finally, after considering the submissions raised by the
respective counsel and also the case laws cited by the parties, the
learned Sessions Judge dismissed the application filed by the mother of
the deceased. The operative portion of the order read thus:
"25. In the result of the foregoing observations, I safely come to
the conclusion that a Magistrate or a trial Court, after the
commencement of trial, had no jurisdiction or power to direct
'further investigation' suo-motu or at the behest of the informant or
victim or any aggrieved person to the investigating agency but has
power to direct further investigation' if the investigating agency
move the Court as per the ratios laid down by the honorable
Supreme Court in catena of cases. Furthermore, the hand of this
court is completely tide even though I do feel that there is some
development or change circumstance in the factual position of the
case, which may need 'further investigation' since this court has to
follow only the provisions envisage in the code of Criminal
Cril.Pet. No.6 of 2017 Page 13
procedure, 1973 and having neither inherent nor constitutional
power. It is also pertinent to mention here that it is settled principle
of law as per the ratio laid down by the Honorable Supreme Court
in catena of cases that under Section 319 of Cr.P.C., if the trial
court appears from the evidence in the course of any inquiry into
or trial of that any person not being the accused has committed
any offence for which such person could be tried together with the
other accused, may proceed against such person for the offence
which he appears to have committed. I, therefore, examine all the
evidences given by the 75 witness so far examined before the
court, but none of witness whisper relating to the alleged
disclosure made by the accused, Th. Herojit Singh and thus, This
court up to this stage of investigation is not in a position to
exercise the power envisages under Section 319 of Cr.P.C.
Situated thus, the application filed by the mother of the deceased,
Ch. Sanjit Singh for directing the CBI to 'further investigation'
under section 173(8) Cr.P.C. is dismissed."
[24] The plea of the petitioner is that relying on the very same
statement of the third accused, now the CBI wants to further investigate
the case, which is impermissible in law and the learned Sessions Judge
has failed to take note of it.
[25] It appears that earlier the third accused also filed Criminal
Miscellaneous Case NO.20 of 2016 for allowing him to full and true
disclosure in connection to the killing of Chungkham Sanjit Meitei in a
Cril.Pet. No.6 of 2017 Page 14
fake encounter on 23.7.2009. By an order dated 30.3.2016, the learned
Sessions Judge, dismissed the said application by observation by
observing as under:
"11. On having synthetic perusal the procedures for trial
before a Court of Session mentioned in section 225 to 235 above, it
is crystal clear that after the commencement of trial the right of
accused to speak before the Court is at the stage of his
examination after completion of evidence of prosecution witness
mentioned in S.232 and the said examination shall be in
accordance with the provisions mentioned in S.313 Cr.P.C. In other
words, till the examination of the accused after the completion of
evidence of prosecution witness, the accused is not allowed to
speak or put any written statement. The stage of the trial is
examination of prosecution witness and thus, the accused, Th.
Herojit Singh has to wait till his turn for examination of himself
comes which shall be after the completion of prosecution
witnesses.
The case laws cited by the Id. Counsel, Shri Ibochouba Singh
are related with the further investigation and thus, not related with
the present application. Before the hearing of this application, the
accused, Th. Herojit Singh has requested before the court to say
something and he was permitted by this court and in that accused,
Th. Herojit Singh has stated before the court that he just wanted to
disclose the true facts of the case and he do not want further
investigation and thus, the desire of the accused, Th. Herojit Singh
is contrary to the submissions made by his counsel. Nevertheless,
Cril.Pet. No.6 of 2017 Page 15
the case laws cited by him, will be considered in connection with
the application filed by the mother of the deceased Ch. Sanjit Meitei
for further investigation, which is also heard by this court.
Furthermore, as regards the submission of Shri Khaidem Mani
Singh, Sr. Advocate for directing the Id. CJM/IW to record the
statement of the accused, Th. Herojit Singh under section 164
Cr.P.C., it is settled principle of law that recording of confessional
statement under section 164 Cr.P.C. shall be made during the
period of investigation only and it cannot be done after the
commencement of trial.
In the result of the foregoing observations, this court is not in
a position to allow the accused, Th. Herojit Singh to make any
disclosure whatever he wants at this stage of trial. He has to wait till
his examination under section 313 Cr.P.C."
[26] The perusal of the aforesaid two orders of the learned
Sessions Judge clearly show that none of the witnesses stated about
the alleged disclosure made by the third accused and any confessional
statement of the third accused under Section 164 Cr.P.C. after
commencement of trial cannot be taken into account. Admittedly, both
the orders have not been appealed by the aggrieved parties, Including
the CBI.
[27] Thus, it is clear that the very same investigating agency
who opposed the application of the mother of the deceased by making a
Cril.Pet. No.6 of 2017 Page 16
statement that though CBI has no ample power to further investigate a
case if new facts are arisen even after the commencement of trial but at
present, CBI is not in a position to initiate any step to the question as to
whether a further investigation into the case is necessary or not, as any
step taken by CBI will cause prejudice. But the very same investigating
agency after almost a period of one year is trying to start further
investigation in the given case without disclosing to the trial court what
are all the new facts or evidence discovered by the CBI during this
period of one year.
[28] In fact, in the application of the CBI seeking further
investigation, it has been stated as under:
"1.That a Case NO. RCI(S)2010-IMPH was registered in CBI. Imphal
Branch on 16.01.2010 u/s 302, 34 IPC & 27(3) Arms Act, 1959 as per
orders date 23.12.2009 of honorable Guwahati High Court, Imphal
bench passed in WP (Crl) NO.77/2009 filed by Smt. Taratombi Devi
transferring the investigation of FIR NO.82(8)/2009 of City PS, imphal
(W). In this FIR, it was alleged that on 23.07.2009, commandos of
Manipur police apprehended Chungkham Sanjit Meitei and kill him
arbitrarily at Maimum Pharmacy located at B.T. Road, Imphal.
2. That thereafter, a case NO.2(S)/2010 IMPH was registered in CBI,
Imphal Branch on 05.02.2010 u/s 302, 326, 307, 506 IPC section
17/20 of UA(P) Act & Section 25(1-B) of Arm Act on the request of
Govt. of Manipur transferring FIR No.75(7)/2009, City Police Station.
Cril.Pet. No.6 of 2017 Page 17
In this FIR, it was alleged that on 23.07.2009 while conducting frisking,
a youth whipped out a small arm and fired towards the police party
and he was shot dead at maimu Pharmacy, near Gambhir Singh
Shopping Arcade in a retaliatory firing.
3. That after completion of the investigation, a single charge-sheet for
commission of offences u/s 34, 218, 203, 302 IPC in the said two
cases was filed by CBI on 09.09.2010 in the Count of CLM, Imphl
against following 9 accused persons:
(i) Yumnam Munal Singh, Inspector, the then OC, City PS, Imphal
West.
(ii) Hijam Devendra Singh, the then Inspector of Police, Commando,
Bazar, Unit, Imphal West.
(iii) Thounaojam Herojit Singh, Head Constable, COD, Imphal West.
(iv) Ngangom Toyaima Singh, Rifleman, 8 th BN, Manipur Rifles.
(v) Wahengbam Bijoy Singh, Constable, COD, Imphal West.
(vi) Thokchom Jagat Singh, Havaldar, 8th BN, Manipur Rifles.
(vii) Md. Imran Khan, Rifleman, 5th IRB.
(viii) Oinam Keshor Singh, Head Cinstable, COD, Imphal West.
(ix) Makan Kanchung Chote, Constable, COD, Imphal West.
4. That the case is at the stage of prosecution evidence before this
Honorable Court and more than 86 Pws have been examined so far,
out of 254 cited witnesses.
5. That in the light of additional information received and additional
facts disclosed by Smt. Chungkham Taratombi Devi, mother of
deceased, it has, now, been decided by CBI to conduct further
investigation in this case.
PRAYER
Cril.Pet. No.6 of 2017 Page 18
In view of the additional facts and circumstance discussed above, it is
most humbly prayed that this intimation regarding further investigation
by CBI in terms of the provisions of section 173(8) Cr.P.C may kindly
be taken on record in the interest of justice."
[29] As stated supra, admittedly, no new facts or evidence was
discovered by the CBI so as to make further investigation in this matter.
In their application, the CBI stated that in the light of the additional
information received and additional facts disclosed by Smt. Chungkham
Taratombi Devi, mother of deceased, it has, now, been decided by CBI
to conduct further investigation in this case. The additional information
alleged to be discovered by the CBI is of the confession made by the
third accused during trial, but nothing more. While contesting the
application filed by the mother of the deceased, the CBI opposed her
plea that as per the Indian Evidence Act, the trial Court has no power to
considered the alleged disclosure of the third accused and the trial Court
has no power under Section 173(8) Cr.P.C. to direct further investigation
to the investigating agency after the commencement of trial unless the
investigating agency requested to do so. When such is the plea taken by
the CBI in the earlier point of time, they cannot at a later point of time
that too by relying upon the same statement of the third accused say
Cril.Pet. No.6 of 2017 Page 19
further investigation is required to be done in the instant case. Though
the CBI now requested the trial Court to further investigate in this case,
they have not given any new additional information and additional facts
discovered by them for further investigation into this matter.
[30] As rightly argued by the learned senior counsel for the
petitioner that since the CBI has investigated the matter thoroughly by
collecting all evidence before filing the charge sheet and the charge
sheet has been filed against nearly eight or nine police personnel, the
act of the CBI trying to implicate the petitioner is nothing but to harass
with a vindictive agenda to tarnish the image of the petitioner.
[31] The learned Sessions Judge, simply allowed the CBI to
proceed further investigation without disclosing the new discoveries and
the subsequent development warrants further investigation into this
matter. For better appreciation the order impugned dated 14.2.2017 is
extracted here under:
"This is an application under section 173(8) Cr.P.C. filed by the
above named applicant praying for allowing to initiate further
investigation of the above referred RC NO.1 and 2(S) 2010 IMPH.
Register it as Cril Misc Case.
I have perused the application as well as the case record. The case
is now at the stage of prosecution witness and so far, 90 PWs were
examined by the prosecution.
Cril.Pet. No.6 of 2017 Page 20
As per the ratio, laid down by the Honorable Supreme Court, the
Court has power to direct Further Investigation, if the investigating
agency move the court.
Hence the prayer for initiation of further investigation of the above
referred RCs is allowed.
The applicant, Vijay Kumar Shukla, Addi SP CBI is liberty to
proceed further investigation under section 173(8) of CrPC of the
above referred case.
Send a copy of this order to HOB, CBI ACB Imphal for information
Announced."
[32] As stated supra, in the impugned order, there is no
discussion qua the additional information and additional facts discovered
and/or received by the CBI. The only information received by the CBI is
the statement made by the third accused. There is no record produced
on record to show the additional facts disclosed by the mother of the
deceased.
[33] It is to be noted that by allowing the application of the CBI
which only intimates the learned Sessions Judge that CBI has stared
further investigation by only relying on the said statement of the third
accused will amounts to reviewing the earlier decision rendered by the
learned Sessions Judge. Further, as stated supra, the respondent in the
Cril.Pet. No.6 of 2017 Page 21
earlier application never challenged the earlier order of the learned
Sessions Judge Sessions Judge before the higher forum.
[34] The learned senior counsel for the petitioner submitted that
the CBI never filed any application under the provisions of Cr.P.C.
praying for permission for further investigation from the Sessions Court
and all that the CBI has done was just to intimate the Sessions Court
that the CBI has started further investigation. Hence, the affected parties
were not given any opportunity of being heard before proceeding with
the further investigation.
[35] Countering the argument of the learned counsel for the
petitioner, the learned counsel for the CBI submitted that further
investigation has been proceeded relying on the earlier statement of the
third accused, which was turned down by the learned Sessions Judge.
[36] In reply, MR.S.Prabhakaran the learned senior counsel for
the petitioner argued that even though Cr.P.C. has given the power to
the investigating agency for further investigation, in the present case, the
most important ingredient of further investigation i.e., new evidence
which was never recorded during the earlier investigation is completely
ignored in the present case. This Court finds some force in the
submissions made by the learned senior counsel for the petitioner.
Cril.Pet. No.6 of 2017 Page 22
Further, the approach adopted by the CBI is contrary to the criminal
jurisprudence.
[37] At the cost of repetition, it is recorded that after the
dismissal of the application for further investigation filed by the mother of
the deceased, the CBI remained silent for nearly a year by being
satisfied by the order of the learned Sessions Judge and the trial of the
case was proceeded further and almost 105 witness were examined on
the side of the prosecution.
[38] At this juncture, the learned senior counsel for the
petitioner submitted that the act of CBI trying to revive the process of
further investigation after a gap of nearly a year of the dismissal of the
earlier application filed by the mother of the deceased and immediately
after the change of guard in the political scenario in the State is an
attempt to politicalize the matter by ignoring the earlier decision
rendered by the learned Sessions Judge so as to make political
advantages out of the case.
[39] It is pertinent to note that pending Criminal Miscellaneous
Case NO.6 of 2017, the mother of the deceased filed Criminal
Miscellaneous Case NO.6 of 2018 seeking to implead her as respondent
NO.2 in Criminal Miscellaneous Case NO.6 of 2017. By an order dated
Cril.Pet. No.6 of 2017 Page 23
26.4.2019, the learned Sessions judge, dismissed the Criminal
Miscellaneous Case NO.6 of 2018. While dismissing Criminal
Miscellaneous case NO.6 of 2018, the learned Sessions Judge,
observed as under:
"It appears that earlier the petitioner has approached the Court
with a prayer for further investigation in S.T.NO.7 of 2010/57 of
2015 and the same were disposed of by the Court. As against
the order passed therein, the petitioner has not preferred any
appeal and the issue attained finality as far as the petitioner's
case is concerned. It also appears that neither the second
respondent nor the petitioner established any new evidence or
corroborated material particulars after the commencement of the
trial for any further investigation."
[40] Pursuant to the impugned order dated 14.02.2017, the CBI
issued notice under section 160 Cr.P.C. to the petitioner calling upon
him to appear before the Imphal office on 15.2.2017. The petitioner has
also appeared before the investigating officer of the CBI on 15.2.2017
and after due enquiry, the petitioner was issued with another notice
calling upon him to appear on 17.2.2017. Unfortunately, due to his ill-
health, the petitioner could not appear before the CBI and also
apprehending arrest, the petitioner has filed anticipatory bail petition and
the same was dismissed by the trial Court. The dismissal of the
Cril.Pet. No.6 of 2017 Page 24
anticipatory bail petition is in no way go against the petitioner in
considering his prayer now made in the instant petition.
[41] It is apposite to mention that investigation by the CBI in the
instant case after examination of nearly 105 witnesses is unwarranted.
Moreover, the additional information and additional facts alleged by the
CBI for further investigation is irrelevant to the trial of the case, as when
the said additional information i.e., the statement of the third accused
relied on by the mother of the deceased and for further investigation was
negative by the learned Sessions Judge and against which no appeal
was filed and the mother of the deceased and the CBI both allowed the
matter to attain finality. In such circumstances, based on the alleged
statement of the third accused, the CBI now cannot ask for further
investigation. If further investigation is permitted in this case, definitely, it
will alter the original version of the prosecution, as nearly 105 witnesses
were examined, which is inclusive of the petitioner as P.W.54. Since the
occurrence is of the year 2009 and till date, the Sessions Case has not
seen the light of the day, it is inappropriate to order further investigation
in this case. That apart, the statement of the third accused is of the year
2016, almost 5 and half years after the occurrence.
Cril.Pet. No.6 of 2017 Page 25
[42] Assuming that there is additional information gathered by
the CBI pending trial, the CBI cannot now seek for further investigation.
If such practice is allowed, the trial of the case will be delayed. It is
reiterated that only in order to protract the trial proceedings, the CBI has
filed the petition for further investigation and the learned Sessions
Judge, without considering the material fact, allowed the petition filed by
the CBI. In fact, the CBI has no right to seek for further investigation
based on the mere statement of the third accused which statement was
earlier opposed by the CBI. It is also the plea of the CBI in Criminal
Miscellaneous Case NO.6 of 2018 that no prejudice is likely to be
caused to any party by the ongoing trial.
[43] On a thorough analysis of the materials available on
record, it is seen that the CBI is subjecting the petitioner to
unnecessarily asking him to come to Delhi CBI office when everything
could be done at Imphal. In fact, the CBI examined the petitioner twice
on 14.2.2017 and 15.2.2017at its Imphal office. While so, the motive of
the CBI asking the petitioner to come to Delhi is not bonafide nor in the
interest of justice. Since the petitioner was examined as P.W. 54 on the
prosecution side, there is no necessity for the CBI to summon the
petitioner for examination based on the alleged statement of the third
Cril.Pet. No.6 of 2017 Page 26
accused. Any statement recorded by way of further investigation after
the trial commenced would definitely hit the evidence already recorded.
From the above discussion, this Court is of the view that no further
investigation is necessary in this case, as best part of investigation has
already been done by the CBI and based on which charge sheet was
filed and witnesses have been examined by the CBI.
[44] In the result,
(a) The criminal petition is allowed;
(b) The order dated 14.2.2017 passed by the learned
Sessions Judge, Imphal west in Criminal
Miscellaneous Case No.25 of 2017 is set aside.
(c) The learned Sessions Judge, Imphal West is
directed to proceed with the trial and decide the case
as expeditiously as possible.
(d) It is made clear that this Court has not dwelled
into the merits of the prosecution case in this order.
JUDGE
FR/NFR
John Kom
Cril.Pet. No.6 of 2017 Page 27
