Patna High Court
Usha Sharma vs The State Of Bihar Through Home ... on 12 December, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.130 of 2017
Arising Out of PS. Case No.-443 Year-2014 Thana- LAKHISARAI District- Lakhisarai
======================================================
Usha Sharma W/o Late Dr. Kumar Sharad Chandra, R/o Balika Vidyapeeth
Parisar, P.S.District- Lakhisarai.
... ... Petitioner
Versus
1. The State Of Bihar Through Home Secretary, Department Of Home, Bihar.
2. Director General of Police, Bihar.
3. Additional Director General, Criminal Investigation Department, Bihar.
4. Superintendent of Police, Criminal Investigation Department, Bihar.
All the above having correspondence-Old Secretariat, P.S.- Secretariat,
Patna-80001.
5. Superintendent of Police, District- Lakhisarai. PO and PS- Lakhisarai,
District- Lakhisarai.
6. Shambhu Saran Singh, S/o Late Rajeshwar Prasad Singh, R/o- Mohalla-
Bari Dargah, Purani Bazaar, PS and District- Lakhisarai.
7. Shyam Sunder Prasad, S/o Late Babu Dharamraj Prasad Singh, R/o- Punjabi
Mohalla, PS and District- Lakhisarai.
8. Rajendra Singhania, S/o Late Subhkaran Prasad Singhania, R/o Baro Durga
Asthan, Naya Bazaar, PS and District- Lakhisarai.
9. The Central Bureau of Investigation through its Director, New Delhi
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Amit Narayan, Advocate
Mr. Abhigyan Kumar, Advocate
Mr. Jeetendra Narayan, Advocate
For the State : Mr. Md. Nadeem Seraj, GP-5
For Resp. No. 6 : Mr. A.K. Thakur, Advocate
Mr. Dr. Anjani Prasad Singh, Advocate
For Resp. Nos. 7 & 8 : Mr. Ramakant Sharma, Senior Advocate
Mr. Sanjeev Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
Date : 12-12-2022
Heard learned counsel for the parties.
2. The present writ application has been filed questioning
the conduct of the Investigating Officer of the Criminal
Investigation Department, (hereinafter referred to as 'C.I.D.')
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Bihar in the matter of release of the accused on P.R. bond post
issuance of non-bailable warrant of arrest by the competent court
and the order of the Hon'ble Supreme Court in the Special Leave
to Appeal (Crl) No(s). 269-271/2015 (Usha Sharma versus
Shambhu Sharan Singh & Anr. Etc.Etc.) cancelling the privilege of
anticipatory bail granted to the private respondent nos. 6 to 8 by
the High Court of Judicature at Patna.
3. The petitioner has, while questioning the conduct of
the investigating agency in keeping the investigation of the case
pending for eight years, prayed for arrest of the respondent nos. 6
to 8 and also prayed for any other relief or reliefs for which the
petitioner is found entitled to under the law.
Brief facts of the case
4. The husband of the petitioner was shot dead while he
was sitting in the verandah of his residence and reading the
newspaper on 02.08.2014 at 6:45 A.M. at Lakhisarai. Petitioner is
the informant of the case who alleged that she heard sound of
firing and when she went to the verandah, she found that her
husband's head was injured with bullet and blood was oozing out
from his left eye and a young person with a pistol in his hand was
fleeing towards the main gate and another person was waiting
outside on a black motorcycle. She identified both of them.
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5. According to the petitioner, her husband was the
Secretary of the Balika Vidyapeeth. In August, 2009 one Anil
Sharma, MD Amrapali group had usurped the trust of Balika
Vidyapeeth with help of Rajendra Prasad Singhania (Respondent
No.8), Dr. Praveen Kumar Sinha, Shyam Sunder Prasad
(Respondent No.7) and Shambhu Sharan Singh (Respondent
No.6). Her husband was removed forcibly and thereafter a dispute
was going on between both the parties. She alleged that the income
of Balika Vidyapith were being usurped by opening a personal
account operated by Dr. Praveen Kumar Sinha and Dr. Shyam
Sunder Singh. To take over the control of the school one Smt.
Anita Singh was brought and given charge of the post of Principal.
The deceased was making complaint against the unlawful manner
in which the Balika Vidyapith was being run. She alleged that in
past also her residential house was attacked, damaged and firings
were made which were duly informed to the different authorities
by her husband.
6. The informant alleged that her husband was being
regularly threatened and being asked to leave Lakhisarai failing
which there will be dire consequences. Her husband had succeeded
from the Hon'ble High Court at Patna and his claim as Secretary
was found legal, on that basis the Government of Bihar had given
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recognition to the committee constituted by her husband. Her
husband had lodged case against the opening of personal account
in which the school money was deposited and in the said case the
accused persons were likely to be convicted.
It is, then alleged that her husband was having
threat to his life and in this regard he was told that the
accused persons may go to any extent to stop him. She
alleged that to take control over the entire land and
properties of the Balika Vidyapith, the accused persons
have hatched a conspiracy whereunder her husband has
been murdered. On 04.07.2014, to examine the complaint
made by the husband of the petitioner, a team of CBSE was
likely to visit to examine the illegalities and in order to stop
them the accused persons killed her husband.
7. On the basis of the fardbeyan of the petitioner
Lakhisarai P.S. Case No. 443 of 2014 was registered under Section
302, 34, 120B of the Indian Penal Code and Section 27 of the
Arms Act. The materials available on the record would reveal that
in course of investigation three persons were arrested, they were
put to T.I. Parade in which this petitioner identified the accused
who had fired upon her husband. About two and half months after
lodging of the F.I.R., the investigation of the case was handed over
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to the C.I.D. and one Sri Uday Prakash Singh, Dy.S.P., CID
received all the documents and the materials from the earlier
Investigating Officer. The Dy.S.P., C.I.D. took charge of the
investigation in the light of Memo No. 3442/CR dated 23.10.2014
and only seven days thereafter he filed chargesheet no. 596 dated
30.10.2014 against Dr. Praveen Kumar Sinha who was earlier
arrested, and charge-sheet No. 655 dated 06.11.2014 against
Raushan Kumar, son of Rajeshwari Singh and Raushan Kumar,
son of Ballam Singh.
8. Investigation of the case against all other accused were
kept pending. During this period on the request of the Investigating
Officer, the learned C.J.M., Lakhisarai had already directed for
issuance of non-bailable warrant against four accused persons
including respondent no. 8. It so happened that on 31.10.2014 even
as the I.O. had filed a chargesheet only against accused Dr.
Praveen Kumar Sinha but after going through the materials present
in the case diary the then learned C.J.M. Incharge while taking
cognizance of the offences held that there is a prima-facie case to
proceed against other accused persons also including these private
respondents and accordingly issued a non-bailable warrant for
their appearance.
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9. Since the chargesheet was not filed against the private
respondents and some other accused, they moved the Hon'ble
High Court challenging order taking cognizance and issuance of
non-bailable warrant against them. The private respondent nos. 6
to 8 had also challenged the order of the learned C.J.M. and on
finding that the investigation against them was still pending and
there was no chargesheet, the Hon'ble High Court took a view that
the order passed by the learned C.J.M. is liable to be set aside and
the case against the private respondents shall proceed after
submission of chargesheet.
Privilege of pre-arrest bail to the private respondents
by the Hon'ble High Court
10. The private respondents sought privilege of
anticipatory bail in Cr. Misc. No. 38299/2014, Cr. Misc. No.
42812/2014 and Cr. Misc. No. 45617/2014 respectively which
were allowed by a learned Judge of this Court but the petitioner
took the matter in appeal before the Hon'ble Apex Court giving
rise to Cr. Appeal No. 682-684/2016. The Hon'ble Supreme Court,
after taking note of the seriousness of the allegations, vide it's
order dated 22nd July, 2016 set-aside the order of this Court and
directed the private respondents to surrender themselves in the
concerned police station within four weeks' time. A copy of the
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order of the Hon'ble Supreme Court is enclosed as Annexure '6' to
the writ application.
First Direction to I.O. by S.P., C.I.D.
11. On 12.08.2016, the then Superintendent of Police (C)
wrote a letter (Annexure 'D') to the Investigating Officer giving
direction to the I.O. that if the private respondents surrender within
four weeks in terms of the direction of the Hon'ble Supreme Court
then their statement be recorded and they should be forwarded in
judicial custody.
Subsequent Direction to I.O. by S.P., C.I.D.
12. It reveals from the record that the same officer of the
CID wrote another letter as contained in Memo No. 1976 dated
19.08.2016 (Annexure D/1 to the counter affidavit of respondent
no. 2 to 4) to the I.O. saying that if the private respondents
surrender then their statements be recorded and if they do not
surrender then the department be informed. In the said letter, it was
further recorded that a decision as to accusation of these persons
are yet to be taken. Thus, Annexure 'D' was modified to the extent
that the earlier direction to forward the private respondents in
judicial custody stood deleted. It is this conduct of the
investigating agency which has been seriously questioned by the
learned counsel for the petitioner. His submission is that
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immediately after transfer of the case to the CID, the Officer-in-
Charge of the investigation of the case indulged in favouring the
accused persons and the private respondent nos. 6 to 8 are the
direct beneficiary of the favours shown by the investigating
agency. According to him, Annexure 'D/1' was written within
seven days after Annexure 'D'. No reason is available in the case
diary to show as to why despite the investigation being pending
since October, 2014, till August, 2016 a decision as to accusation
of Respondent nos. 6 to 8 was yet to be taken, what is stated in the
letter (Annexure 'D/1') are not recorded in the case diary.
13. Learned counsel submits that respondent nos. 6 to 8
along with some other accused were allegedly involved in criminal
conspiracy for the motives already indicated in the F.I.R., but the
C.I.D. did not investigate the conspiracy angle, in a hurry the
Dy.S.P. C.I.D. submitted a charge-sheet within seven days of
taking over the investigation against one of the prime accused
namely, Pravin Kumar Sinha against whom also there were
allegations of active participation in hatching the conspiracy.
Learned counsel submits that the charge-sheet was filed by the
CID and in course of trial of the said case the same Dy.S.P. CID
categorically stated that he had not made any investigation on the
allegation of conspiracy.
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14. Learned counsel submits that on a bare perusal of the
order of the Hon'ble Supreme Court (Annexure '6' to the writ
application) it would appear that the Hon'ble Supreme Court
categorically held that the High Court was wrong in granting
anticipatory bail to the accused - respondents at that stage without
considering such facts which have been stated before the Court.
The Hon'ble Supreme Court observed in it's order that the private
respondents are specifically named in the F.I.R. and two of them
were doubted by the husband of the informant during his life-time.
It is for this reason that the Hon'ble Supreme Court was of the
view that the private respondents do not deserve privilege of
anticipatory bail. The impugned order of the High Court was set-
aside with a direction to the private respondents to surrender
within four weeks' time in the police station. Learned counsel
submits that the four weeks' time granted by the Hon'ble Supreme
Court was going to expire on or about 19th of August, 2016. The
private respondents did not surrender until on the last day when the
four weeks' time was going to expire the same officer of the CID
came out with Annexure 'D/1' modifying his earlier memo no.
1976 dated 19.08.2016 issued to the I.O. Only thereafter the
Respondent Nos. 6 to 8 made their appearance before the I.O. to
complete a formality.
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Investigation Dumped- No effort by C.I.D.
15. Learned counsel further submits that this Court has
noticed in it's order dated 19.10.2016 that during the period ending
2016 to May 2019 the investigation of the case was dumped, the
case diary was found blank for two and half years and even
thereafter as nobody looked into the case diary during these
periods. This goes a long way to show that the C.I.D. was not at all
acting to bring out the truth.
16. It is only after getting themselves ensured by virtue of
the letter dated 19.08.2016 (Annexure D/1) that they would not be
arrested by the I.O., the private respondents are said to have gone
to the police station on 20.08.2016 and 21.08.2016 where their
statements were recorded and they were released by the I.O. on PR
Bond. No effort whatsoever was made to investigate the case on
the allegation of conspiracy.
17. Learned counsel further submits that the conduct of
the investigating agency may be further found from the fact that on
the one hand after taking charge of the investigation on 23.10.2014
the CID did not investigate into the allegation of conspiracy, in it's
letter written on 19.08.2016 (Annexure D/1) in a completely vague
word the Superintendent of Police (C) wrote that a decision as to
accusation of respondent nos. 6 to 8 are yet to be taken. During all
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these period of about two years no effort was made by the I.O. of
the case to interrogate the private respondents. No notice was
issued to them for their presence for purpose of recording of the
statements. What the Hon'ble Supreme Court did not permit, has
been allowed to happen by the officer-in-charge of the
investigation of the case with sole intention to confer benefits to
the Respondent Nos. 6 to 8. Even after releasing the private
respondents on PR bond the investigating agency remained sitting
idle and these aspects have been discussed by this Court in it's
order dated 18.10.2022 and 19.10.2022.
18. Learned counsel has relied upon the judgment of the
Hon'ble Supreme Court in the case of Amar Nath Chaubey Vs.
Union of India and others reported (2021) 11 SCC 804; State of
West Bengal and Ors. v. Committee for Protection of
Democratic Rights, West Bengal and Ors. reported in (2010) 3
SCC 571 and K.V. Rajendran v. Superintendent of Police,
CBCID South Zone, Chennai and Ors. reported in (2013) 12
SCC 480 to submit that in this case the very credibility of the
investigating agency is under cloud of doubts. One of the prime
accused Dr. Pravin Kumar Sinha has got advantage of the faulty
investigation and the admitted statement of the then Dy.S.P. C.I.D.
in course of trial that he had not investigated the case from
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conspiracy angle has led to the same by the learned trial court with
the end taking note of result of acquittal of the prime accused and
all this raise a reasonable belief in the mind of the petitioner that
the same fate is likely to happen in respect to the private
respondents as well if this case is not duly investigated by an
independent agency. It is submitted that in the present days
circumstance the only independent agency will be the Central
Bureau of Investigation (In short 'C.B.I.').
Stand of the CID
Admission of the C.I.D. - Investigation did not progress
19. In course of hearing of the case, apart from filing of a
counter affidavit, the Additional Director General, CID has himself
appeared with the records. This Court has recorded in it's order
dated 18.10.2022 and 19.10.2022 in detail the stand taken by the
C.I.D. in course of hearing. Those are being reiterated. The ADG,
C.I.D. has not come out with reasons apparent to justify writing of
Annexure D/1 by the then S.P. C.I.D. whereby within seven days
of the first letter dated 12.08.2016 (Annexure D) a direction was
issued to the I.O. in some vague words saying only that the
accusation against these private respondents are yet to be verified.
This Court has recorded in it's order dated 19.10.2022 that "the
ADG, C.I.D. has finally come out with stand that prima-facie such
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letters should not have gone to the I.O.. He has submitted that after
his taking over the charge of the department recently in September
2021, he has reviewed this case in July, 2022 and found that the
investigation of the case had not progressed since the year 2016.
He has submitted that in July, 2022 after reviewing the materials
on the record, it has transpired that on records there are sufficient
materials to proceed against private respondents nos. 6 to 8. This
is mentioned in his report submitted to this Court today in
paragraph 10(ix)."
Sufficient materials against the Private respondents.
20. In fact the ADG, C.I.D. has submitted in this Court
that he would call upon the earlier I.Os. to show cause to explain
as to why an appropriate action be not taken against them for
keeping the investigation pending so long. The ADG, C.I.D. has
submitted before this Court that once the Hon'ble Supreme Court
had cancelled the privilege of pre-arrest bail of the private
respondents and they were directed to surrender in the police
station, there being sufficient materials against them, the I.O. could
not have released them from the police station on their personal
bond and in this regard he will seek explanation from the erring
officials and shall take up this issue to it's logical end.
(emphasis supplied)
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21. In the hearing held on 07.12.2022, this Court has been
informed by learned G.P.-5 that the I.O. has obtained a non-bailable
warrant against Respondent nos. 6, 7 and 8 who are evading their arrest.
Steps are being taken to get process issued under Section 82 Cr.P.C. It is
further informed that after issuance of the letter dated 12.08.2016
(Annexure 'D') at the instance of the then S.P. (C) a fresh note was
initiated on 17.08.2016 by the Inspector suggesting
modification/amendment of the letter dated 12.08.2016. At this stage,
show cause notices have been issued to the then S.P. (C) and the I.Os.
and their explanation are under consideration.
Stand of the private respondents
22. The private respondents nos. 6 to 8 have filed their
respective counter affidavits. Their plea is the same and one. It is their
stand that they had complied with the direction of the Hon'ble Supreme
Court by surrendering in the police station. It is for this reason that the
miscellaneous petition filed by the petitioner in the Hon'ble Supreme
Court was dismissed as having become infructuous because the private
respondents had already surrendered in the police station in compliance
of the order of the Hon'ble Supreme Court.
23. It is further stated that even though initially on the
basis of the allegations made in the First Information Report I.O.
had filed requisition for issuance of warrant of arrest against the
FIR named accused persons but the learned CJM had not issued
warrant of arrest against respondent no. 6. they have narrated the
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story as to how the charge-sheet was filed on 30.10.2014 only
against one of the accused, the then learned CJM had taken
cognizance and issued warrant against all the other accused
persons but at the instance of the other accused persons against
whom the investigation was still pending and the charge-sheet had
not been filed the order taking cognizance as against them had
been set-aside by the Hon'ble High Court and it was held that the
matter shall proceed in accordance with law if and when charge-
sheet is filed.
24. In course of argument, on 19.10.2022, Mr. Ajay
Kumar Thakur, learned counsel for the private respondent no. 6
submitted that in every case it is not necessary to arrest all the
accused but after taking note of the stand of A.D.G, C.I.D. when
this court called upon the learned counsel to take a stand as to
whether after the cancellation of bail of private respondents by the
Hon'ble Supreme Court in the facts and circumstances of this case,
the I.O. of the case could have granted them the same privilege
from police station by taking a bond from them and can it be said
to be in exercise of their power under sub-section (2) of Section
437 Cr.P.C., Mr. Thakur, learned counsel very candidly submitted
that he will not argue on that and would not go to support such
action of the I.O. by any interpretation of law. The argument of Mr.
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Thakur, learned counsel was endorsed by Mr. Sanjeev Kumar
Singh, learned counsel for respondent no. 7 & 8 and these are
recorded by this Court.
25. Mr. Ramakant Sharma, learned senior counsel
assisted by Mr. Sanjeev Kumar Singh, learned Advocate appeared
on behalf of respondent nos. 7 & 8 and he has once again
submitted that he would not be able to legally support the action of
the I.O. at the instance of the then Superintendent of Police (CID)
in releasing the private respondents on PR bond and in the facts of
the present case such privilege could not have been granted when
the Hon'ble Supreme Court had categorically held that the
privilege of pre-arrest bail granted by the High Court was wrong.
In his submission, so far as these private respondents are
concerned, they cannot be said to be absconder because they had
surrendered and were released on PR bond. There is, however, no
plausible answer to the query posed by this Court that having
signed the bond to appear before the court as and when required
why at this stage when C.I.D. is looking for them they are not
putting their appearance in the court below.
26. In course of argument, learned senior counsel for the
respondent no. 7 & 8 did not dispute that after taking over the
charge of investigation, the CID did not go into the conspiracy
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angle which were the allegations based on the motive as alleged
and kept the investigation pending for eight years which cannot be
justified. So far as respondent nos. 7 & 8 are concerned, they are
agreeable to the transfer of investigation of the case to the Central
Bureau of Investigation. The stand of the respondent nos. 7 & 8
have been recorded by this Court in it's order dated 16.11.2022 and
07.12.2022.
27. Learned counsel for the respondent no. 6, has,
however, submitted that the investigation be allowed to be
completed by the CID. By filing an interlocutory application,
respondent no. 6 has sought modification of Paragraph '14' and
'15' of the order dated 19.10.2022 passed by this Court. Reliance
has been placed on the judgment of the Hon'ble Supreme Court in
the case of M. C. Abraham and another versus State of
Maharashtra and other reported in (2003) 2 SCC 649 to submit
that this Court need not issue a direction to the C.I.D. to arrest the
private respondents.
Consideration
28. Having heard learned counsel for the petitioner,
private respondents, learned GP-5 as also the ADG, C.I.D., Bihar,
this Court earlier passed two detail orders on 18.10.2022 and
19.10.2022. In its order dated 18.10.2022, this Court has noticed
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the conduct of the investigating agency and the manner in which
the investigation of the case has been kept pending for 8 years. In
the foundation of facts available in the writ application
complaining about the conduct of the C.I.D. in not investigating
the case for all these years, this Court has found that in the counter
affidavit of the CID, there is no whisper and/or an attempt to
explain the reasons for the huge and inordinate delay in conduct of
investigation in a murder case. This court, therefore, held that this
Court is required to examine the grievance of the petitioner as
regards her lost confidence in the Investigating Agency and as to
why for the purpose of proper and fair investigation, the case be
not handed over to an independent agency. The respondents were
called upon to make their submission accordingly.
29. In its order dated 19.10.2022, after hearing the
parties and A.D.G., C.I.D., this Court has recorded in paragraphs
'10' to '15' as under:-
"10. The case diary has been produced before this Court
and this Court is again not only disturbed on going
through the same but finds itself reaching to almost a
conclusion that the whole investigation of this case has
been dumped and since 2016 after releasing the private
respondents on personal bond without recording any
reason. No progress at all has been made in course of
investigation. The perusal of case diary reveals that in
paragraph '203' it is recorded that the statement of Dr.
Shyam Sundar Prasad has been recorded and as directed,
he has been allowed to go on personal bond. On whose
direction this has been done was a question before this
Court. This has been answered by the ADG, CID saying
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that it is Annexure 'D/1' to the counter affidavit of
respondent nos. 2 to 4 which has been written by the then
S.P., C.I.D. to the I.O. The further paragraphs would show
that it contains the statement of other accused as and when
they surrendered, got their statements recorded. In
paragraph '255', it has come that during this period, the
informant and her daughter had submitted an application
in the office of the Superintendent of Police, CID
requesting him to provide them security. What happened
on that application is not mentioned in the case diary.
11. The case diary is totally blank for the period ending
2016 to May 2019 meaning thereby that for two and half
years, nobody looked into the case diary. On 10.05.2019
and thereafter only some formal paragraphs were recorded
which have no significant bearing upon the investigation.
The case diary reveals that during 2019 to 2021 the I.O.
did not take any further step as if either there was nothing
more to be done on the point of investigation or the I.O.
had instruction not to take up the investigation. The
records speak for themselves.
12. On the point of transfer of a case to the Central Bureau
of Investigation, the law is well settled, it is not to be done
in a routine and mechanical manner. The parameters
required to be considered for transfer of an investigation
are such as a case where the transfer is required to instill
confidence in the investigation and where the allegations
are against the local police of connivance with the accused
persons then to provide credibility to the investigation and
to do complete justice and for enforcing the fundamental
rights such transfer may be ordered. Reference in this
regard may be made to the Constitution Bench judgment
of the Hon'ble Supreme Court in the case of State of West
Bengal and Ors. v. Committee for Protection of
Democratic Rights, West Bengal and Ors. reported in
(2010) 3 SCC 571 and K.V. Rajendran v.
Superintendent of Police, CBCID South Zone, Chennai
and Ors. reported in (2013) 12 SCC 480.
13. In the present case, this Court at this stage and subject
to further consideration of the submissions of the State
would record its prima-facie view that the petitioners seem
to be succeeding in impressing upon this Court that the
manner in which private respondent nos. 6 to 8 were let
off, no custodial interrogation was done despite the fact
that at one stage the I.O. had himself sought warrant of
arrest against them for custodial interrogation and then
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their anticipatory bail was canceled by the Hon'ble
Supreme Court and further the fact that the investigation
has thereafter been dumped and they have been allowed to
move freely which has resulted in influencing the
investigation and it has remained pending for over 8 years
and during this period the petitioner and her family has
suffered threat, it seems to be a case which requires
consideration for purpose of transfer to CBI.
14. Let the Central Bureau of Investigation through its
Director be added as party respondent no. 9 in course of
the day. Two copies of the brief be served upon Ms.
Nivedita Nirvikar, learned Standing Counsel who appears
for the CBI by 3rd November, 2022. Her name will appear
in the cause list.
15. The ADG, CID has ensured this Court that he will act
swiftly and without losing any time to take corrective
measures which would be including taking action against
the private respondent nos. 6 to 8 in accordance with law
and issuance of show cause to the erring officials. He shall
proceed to do that."
S.L.P. (Crl.) no. 10981 of 2022
30. The private respondent nos. 6 to 8 preferred a Special
Leave to Appeal (Crl.) No(s). 10981 of 2022 in the Hon'ble Supreme
Court praying for setting aside of the judgment and order dated
19.10.2022 passed in this case. The Hon'ble Supreme Court dismissed
the said special leave petition with liberty in the following terms:
"Upon hearing the counsel the Court made the following
ORDER
Learned Senior Counsel appearing for the petitioners
seeks leave to withdraw this Special Leave Petition with liberty to
file an application before the High Court where the matter is still
sub-judice.
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
The Special Leave Petition is dismissed as withdrawn
with liberty as prayed for."
31. After the aforesaid order of the Hon'ble Supreme Court,
respondent no. 6 has alone filed the application for modification of the
order dated 19.10.2022 specially paragraphs '14' and '15' but perusal
thereof would show that the application is based on a complete
misunderstanding of the order dated 19.10.2022 passed by this Court.
This application has been taken up together with the hearing of the writ
petition for final consideration.
Contentions of respondent no. 6 - answered
32. The first contention of respondent no. 6 is that a
direction to investigate the case from a particular angle or by a
particular agency in the midst of the ongoing investigation may invite
some inherent danger in taking away the right of an accused. The
another submission is that the direction to the ADG, C.I.D. to ensure
that he will act swiftly and without losing time to take corrective
measures which would be including taking action against respondent
nos. 6 to 8 in accordance with law would be unwarranted and the Court
cannot direct for the arrest of the accused persons. Reliance has been
placed on the judgment of the Hon'ble Supreme Court in the case of
M.C. Abraham (supra) respondent no. 6 has also stated in paragraph '8'
of his application that one of the accused Dr. Praveen Kumar Sinha who
was charged with the aid of Section 120B of the I.P.C. has already been
acquitted by the learned trial court. And the learned trial court has held
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
that the prosecution has failed to substantiate the charge under Section
120B of the IPC. This Court would refrain from making any
observation on the judgment of the learned trial court in the case of Dr.
Praveen Kumar Sinha. The submission of learned counsel for the
petitioner has also been taken note of by this Court but this is not an
appropriate proceeding to deal with the submission of either parties.
33. As regards the first contention, in course of argument,
Mr. Ajay Kumar Thakur, learned Advocate assisted by Mr. Anjani
Prasad Singh, learned Advocate for respondent no. 6 do not dispute that
in this case the FIR has been lodged under Section 302, 34, 120B of the
Indian Penal Code and Section 27 of the Arms Act, and the conspiracy
has been alleged in the FIR, therefore, the investigating agency is
obliged to go into that issue and for that purpose this Court need not
issue any direction. In fact, in its order dated 19.10.2022, this Court has
not directed the investigating agency to investigate the case from a
particular angle.
34. Learned counsel has himself filed a copy of the
judgment of the learned trial court in the case of Dr. Praveen Kumar
Sinha in which it has been recorded that the Dy.S.P., CID who was the
Investigating Officer of the case has stated that he had not made any
investigation on the allegation of conspiracy. Without going into any
discussion over the judgment of the learned trial court in the case of Dr.
Praveen Kumar Sinha, this Court finds that the first contention as
couched by and on behalf of Respondent no. 6 has no merit. An accused
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
has no right to choose an investigating agency of his choice and in an
appropriate case a constitutional court may direct transfer of the
investigation. Therefore, there is nothing wrong in Paragraph '14' in
directing to add C.B.I. as a party respondent no. 9.
35. The another submission of Respondent no. 6 is equally
misconceived. This Court has recorded the stand of A.D.G., C.I.D.
hereinabove. He had reviewed the case and took a definite stand before
this Court that there are sufficient materials to proceed against the
private respondents. The A.D.G., C.I.D. did not approve the action of
the then S.P. C.I.D. and I.O. in releasing the private respondents on P.R.
bond. Having said so, the A.D.G., C.I.D. ensured the Court that he will
act swiftly and take corrective measures. This stand of the A.D.G.,
C.I.D. has been thoroughly misconstrued by respondent no. 6 saying as
if this Court has issued a direction to the agency to arrest the private
respondents. The judgment of Hon'ble Supreme Court in M. C.
Abraham (supra) would not be applicable in present set of facts and
circumstances. In the said case, the High Court, having found no case
for anticipatory bail, had directed for arrest of the accused and
submission of chargesheet. The Hon'ble Supreme Court held that while
rejecting the application for pre-arrest bail, ordinarily no mandatory
order or directions for arrest be issued and such an aspect is required to
be left for the investigating agency.
36. This Court finds that there is no quarrel with the
aforesaid proposition.
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
37. The facts of the present case and the procedure adopted
by the 'C.I.D.' are to be carefully looked into. There is a categorical
stand of A.D.G., C.I.D. that there are sufficient materials to proceed
against the private respondents and in the nature of this case the I.O.
should not have released the private respondents.
38. So far as this Court is concerned, this Court is though
sitting in its extraordinary writ jurisdiction, still this Court has not
issued any independent direction to the C.I.D. to arrest the private
respondents. The Court has, of course, recorded how the two letters
were written one after another by the then C.I.D. whereafter only after
expiry of four weeks time granted by the Hon'ble Supreme Court the
private respondents appeared and were allowed to go on P.R. Bond,
thereafter the investigation was dumped. This Court has then recorded
the stand of A.D.G., C.I.D. as stated above. These are the circumstances
which speak against the manner in which the investigation of this case
has progressed so far. In result, this Court finds no merit in the
application preferred by Respondent No. 6.
Abnormal delay in completion of investigation
39. The petitioner in this case has prayed for a direction to
arrest the accused nos. 6 to 8 as a consequence of redressal of her
grievance against the conduct of the Investigating Agency as noticed
above. The C.I.D. has obtained warrant against them and this court has
been informed that appropriate steps in accordance with law is being
taken, therefore, this Court need not say anything more than that the
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
investigating agency must proceed to take all such steps which are
required in course of investigation and no discrimination may be made
on this score.
40. The petitioner has prayed for any other relief/reliefs to
which she may be entitled to under the law. To this Court, it appears that
there are sufficient foundation of facts in the writ application justifying
the grievance of the petitioner against the abnormal delay on the part of
C.I.D. in investigating into the allegations. It is in this background that
this writ application is to be considered. A delay of over 8 years in
conduct of investigation and the fact that the case diary has not at all
been written during the period 2016 to 2019 for about two and half
years and then from 2019 to 2021, the I.O. did not take any significant
step are only supporting the grievance of the petitioner against the
conduct of the Investigating Agency.
Duty of the Court if Police is not investigating a case properly:-
41. The Hon'ble Supreme Court has, in the case of Amar
Nath Chaubey Vs. Union of India and others reported (2021) 11
SCC 804 observed in paragraphs '11' and '12' as under:-
"11. The police has a statutory duty to investigate into any
crime in accordance with law as provided in the Code of
Criminal Procedure. Investigation is the exclusive privilege
and prerogative of the police which cannot be interfered
with. But if the police does not perform its statutory duty in
accordance with law or is remiss in the performance of its
duty, the court cannot abdicate its duties on the precocious
plea that investigation is the exclusive prerogative of the
police. Once the conscience of the court is satisfied, from
the materials on record, that the police has not investigated
properly or apparently is remiss in the investigation, the
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
court has a bounden constitutional obligation to ensure that
the investigation is conducted in accordance with law. If
the court gives any directions for that purpose within the
contours of the law, it cannot amount to interference with
investigation. A fair investigation is, but a necessary
concomitant of Articles 14 and 21 of the Constitution of
India and this Court has the bounden obligation to ensure
adherence by the police.
12. In Manohar Lal Sharma v. Union of India [Manohar
Lal Sharma v. Union of India, (2014) 2 SCC 532 : (2014) 4
SCC (Cri) 1] , this Court observed as follows : (SCC pp.
552-53 & 556, paras 24-26 & 39)
"24. In the criminal justice system the investigation of an
offence is the domain of the police. The power to
investigate into the cognizable offences by the police
officer is ordinarily not impinged by any fetters. However,
such power has to be exercised consistent with the
statutory provisions and for legitimate purpose. The courts
ordinarily do not interfere in the matters of investigation by
police, particularly, when the facts and circumstances do
not indicate that the investigating officer is not functioning
bona fide. In very exceptional cases, however, where the
court finds that the police officer has exercised his
investigatory powers in breach of the statutory provision
putting the personal liberty and/or the property of the
citizen in jeopardy by illegal and improper use of the
power or there is abuse of the investigatory power and
process by the police officer or the investigation by the
police is found to be not bona fide or the investigation is
tainted with animosity, the court may intervene to protect
the personal and/or property rights of the citizens.
25. Lord Denning [The Due Process of Law, First Indian
Reprint 1993, p. 102] has described the role of the police
thus:
'In safeguarding our freedoms, the police play a vital role.
Society for its defence needs a well-led, well-trained and
well-disciplined force of police whom it can trust : and
enough of them to be able to prevent crime before it
happens, or if it does happen, to detect it and bring the
accused to justice.
The police, of course, must act properly. They must obey
the rules of right conduct. They must not extort confessions
by threats or promises. They must not search a man's house
without authority. They must not use more force than the
occasion warrants.'
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
26. One of the responsibilities of the police is protection of
life, liberty and property of citizens. The investigation of
offences is one of the important duties the police has to
perform. The aim of investigation is ultimately to search
for truth and bring the offender to book.
39. ... In the rare and compelling circumstances referred to
above, the superior courts may monitor an investigation to
ensure that the investigating agency conducts the
investigation in a free, fair and time-bound manner without
any external interference."
Principles governing transfer of investigation to the C.B.I.
42. In the case of State of West Bengal and Ors. v.
Committee for Protection of Democratic Rights, West Bengal
and Ors. reported in (2010) 3 SCC 571; in paragraph '70' and
'71' the Hon'ble Supreme Court has held as under:-
"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.
71. In Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram
Arya31 this Court had said that an order directing an enquiry by CBI
should be passed only when the High Court, after considering the
material on record, comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by CBI or any
other similar agency. We respectfully concur with these observations."
31 [(2002) 5 SCC 521 : 2002 SCC (L&S) 775]
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
43. In the case of K.V. Rajendran v. Superintendent of
Police, CBCID South Zone, Chennai and Ors. reported in (2013)
12 SCC 480, the Hon'ble Supreme Court has reiterated the views
expressed in Committee for Protection of Democratic Rights
(Supra)., and observed in paragraph 15, 16 and 17 which are being
reproduced hereunder for a ready reference:
"15. In State of W.B. v. Committee for Protection of
Democratic Rights12 a Constitution Bench of this Court has
clarified that extraordinary power to transfer the
investigation from State investigating agency to any other
investigating agency must be exercised sparingly, cautiously
and in exceptional situations where it becomes necessary to
provide credibility and instil confidence in investigation or
where such an order may be necessary for doing complete
justice and enforcing the fundamental rights. (See also Ashok
Kumar Todi v. Kishwar Jahan13)
16. This Court in Sakiri Vasu V. State of U.P.14 held:
"31 .. .. this Court or the High Court has power under Article
136 or Article 226 to order investigation by CBI. That,
however, should be done only in some rare and exceptional
case, otherwise, CBI would be flooded with a large number
of cases and would find it impossible to properly investigate
all of them."
17. In view of the above, the law can be summarised to the
effect that the Court could exercise its constitutional powers
for transferring an investigation from the State investigating
agency to any other independent investigating agency like
CBI only in rare and exceptional cases. Such as where high
___________________________________________________________
12. (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401
13. (2011) 3 SCC 758 : (2011) 2 SCC (Cri) 75: AIR 2011 SC 1254
14. (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
officials of State authorities are involved, or the accusation
itself is against the top officials of the investigating agency
thereby allowing them to influence the investigation, and
further that it is so necessary to do justice and to instil
confidence in the investigation or where the investigation is
prima facie found to be tainted/biased."
Conduct of the S.P. (C) and I.Os.- Stand of A.D.G.-C.I.D.
44. In the given facts and circumstances of the case, which
have been discussed in detail hereinabove, the conduct of the
Investigating Agency is to be appreciated in the light of a categorical
stand of the ADG, C.I.D. saying that prima-facie the then
Superintendent of Police, C.I.D. should not have written the letter dated
19.08.2016 (Annexure 'D/1' to the counter affidavit). Even as the
C.I.D. has taken a stand at this stage otherwise, the facts remain that the
Hon'ble Supreme Court canceled the privilege of anticipatory bail,
despite there being sufficient material to proceed against the private
respondents, they were allowed to remain free on a P.R. bond. The
investigation of the case was virtually dumped, the case diary remained
gathering dust in the office of the C.I.D. as the I.O. of the case did not
touch the diary for years together. The stand of C.I.D. at this stage is
that there are ample materials against the private respondents to
proceed against them. This Court would have no hesitation in coming
to a conclusion that the C.I.D. has failed to perform its statutory duty to
conduct a free, fair and impartial investigation in this case. The fact that
neither after taking charge of the investigation on 23.10.2014 and
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
before releasing the private respondents on PR bond nor after releasing
them on PR bond any effort was made by the Investigating Officer to
proceed with the investigation on the allegations made in the FIR raises
a big question mark against the conduct of the Investigating Officer(s).
The ADG, C.I.D. has taken up this issue at his level and he is
examining the conduct of the then Investigating Officers and
Superintendent of Police, C.I.D. and has ensured this Court that he
would deal with this issue sternly and fix responsibility. This Court,
would, refrain itself, at this stage, from directing an inquiry into the
conduct of these officers by an another agency. The ADG, C.I.D. is
obliged to take up the issue seriously and proceed to examine and
inquire into the conduct of the then S.P., C.I.D. and the Investigating
Officer(s) on various aspects during these eight (8) years in the matter
of investigation of this case and bring it to a logical end within a
reasonable time. If ADG, C.I.D. would fail to do it within a reasonable
time, it will be open for the petitioner to bring it to the notice of this
Court for an appropriate direction.
(Reasons justifying transfer)
45. A proper, fair and impartial investigation is the heart and
soul of the criminal justice system. It has been recognised as a part of
fundamental right embodied under Article 21 of the Constitution of
India.
46. In this case, the petitioner is the widow of the deceased
who is looking for justice. She is fighting for this as the investigation
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
has been kept pending all these years and there are prima-facie
materials which justify her belief that the accused persons who are
perhaps highly influential persons have succeeded in keeping the
investigation pending at the end of C.I.D. so long without any progress.
Doubts have been raised against the conduct of the then S.P., C.I.D. and
the I.Os. and in support thereof circumstances have been shown,
therefore, to this Court it appears that it is a fit case in which an
investigation through an independent agency is a must. Situated, thus,
this Court is of the considered opinion that to instil confidence in the
investigation of the case and to do justice, the investigation is
necessarily required to be transferred to the C.B.I. (Respondent No.-9)
and this Court orders so accordingly.
47. Let the C.I.D. hand over the entire documents/materials
connected to this case to the C.B.I. (respondent no. 9) within two weeks
from today. The Director, C.B.I. shall depute competent investigating
officer(s) to conduct proper and fair investigation into the allegation,
submit a report in the learned court below and take all such steps which
are required to be taken in accordance with law. There is already a
delay of over 8 years in completion of investigation, hence this Court
expects some expeditious action on the part of the C.B.I.
48. Respondent nos. 7 and 8 have taken a stand that they
have no objection to the handing over of the investigation to the C.B.I.
The respondent no. 6 has, though, not consented for the same but this
Patna High Court CR. WJC No.130 of 2017 dt.12-12-2022
Court is of the opinion that an accused has no right to choose the
Investigation Agency.
49. It is made clear that this Court has not at all gone into
the merit of the allegations and no part of this order shall be taken as
any opinion of this Court on the merit of the accusation against the
private respondents. The investigation must be fair, proper, impartial
and independent.
50. The writ application as well as pending interlocutory
applications, if any, stand disposed of accordingly.
(Rajeev Ranjan Prasad, J)
Rajeev/vats-
AFR/NAFR AFR
CAV DATE 07.12.2022
Uploading Date 12.12.2022
Transmission Date 12.12.2022
