Keshav Raj @ Avinash Tiwary vs The State Of Bihar Through The ...
2023 Latest Caselaw 1202 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.1202 of 2022
        Arising Out of PS. Case No.-263 Year-2021 Thana- MAHARAJGANJ District- Siwan
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Keshav Raj @ Avinash Tiwary S/O- Raj Shwami @ Kaushal Kishore Tiwari R/V- Kishori Kunj Ashram, Yamuna Nagar, Panni Ghat Chauraha, Parikrama Marg P.S. - Mathura, U.P

... ... Petitioner/s Versus

1. The state of Bihar through the Chief Secretary, Government of Bihar, Patna

2. The D.G.P., Bihar, Patna

3. The Superintendent of Police, Siwan

4. The S.D.P.O. Siwan

5. The S.H.O. Maharajganj P.S.- Maharajganj, Dist- Siwan

6. Dewata Devi W/O- Kaushal KIshore Tiwari R/V- Pasnauli Thana Road P.S.-

Maharajganj Dist- Siwan

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Chandra Mohan Jha, Adv. For the State : Mr. Sanjay Paras, Ac to Gp4 For the O.P. No. 6 : Mrs. Archana Sinha Shahi, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN ORAL JUDGMENT Date : 28-03-2023

Heard learned counsel for the petitioner, learned

counsel for the O.P. No. 6 and learned counsel for the State.

The petitioner seeks further investigation in this

matter on the ground for response on the application for

production of C.C.T.V. footage vide order dated 14.12.2021 on

which, no action has been taken by the concerned I.O. He fairly

submits further that ignoring the said direction, the case

proceeded and chargesheet has been filed in this case. The

petitioner has filed discharge petition which has been rejected, Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

against which quashing is pending before the Hon'ble High

Court. By way of this criminal writ petition, petitioner wants to

secure the compliance of order dated 14.12.2021.

This Court is of the view that such compliance is

not possible at this stage but in the light of recent decision of

Hon'ble Supreme Court of India, in the case of Anant Thanur

Karmuse Vs. The State of Maharashtra & Ors. Reported in

2023 LiveLaw (SC) 136 Criminal Appeal No. 13 of 2023,

February 24, 2023, Hon'ble Supreme Court has pleased to hold

in paragraph nos. 12.1, 12.2 and 12.3 and paragraph 13, which

are as follows:

"12.1 It is required to be noted that in the

present case, the allegations in the FIR, right

from very beginning, were against the accused

No. 13, who at the relevant time was the sitting

Cabinet Minister occupying the high position.

Even at the relevant time, when the State Police

investigated the FIR bearing No. 120 of 2020,

in the first chargesheet and the second

chargesheet did not name the accused No. 13.

Even the investigation was also conducted in a

perfunctory manner. The real investigation Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

started only after the intervention of the High

Court and after passing various orders in the

present proceedings by the High Court. The

allegations in the FIR were very serious

including the misuse of powers by the sitting

Cabinet Minister and of abducting, kidnapping

and beating the complainant. The appellant -

original writ petitioner filed the Criminal Writ

Petition before the Bombay High Court on

17.04.2020 praying the investigation in FIR

Nos. 119 of 2020 and 120 of 2020 to be

transferred to 12 an independent investigating

agency and for sanction under Section 197

Cr.P.C. for investigation and prosecution of

public servants. On 23.04.2020, the High Court

passed interim order that the CCTV footage

and other evidences collected shall be

protected and kept in the safe custody of the

Chief Judicial Magistrate, Thane. During the

period 06.04.2020 to 29.05.2020, the State

police recorded the statement of 23 witnesses

including the accused No. 13. The statement of Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

the main accused was taken as a witness. The

real investigation started thereafter. The first

chargesheet came to be filed against accused

Nos. 1 to 10 on 07.12.2020. The accused No.

13 - the then sitting Minister against whom the

serious allegations were made, even named in

the FIR, was not chargesheeted. Even the

relevant material evidences were collected in

the form of CDR, mobile phones etc. after the

High Court intervened and passed various

interim orders. The supplementary chargesheet

came to be filed against accused Nos. 11 and

12 on 28.07.2021. The accused No. 13 was not

even chargesheeted in the supplementary

chargesheet. The charges came to be framed

against accused Nos. 1 to 12 on 28.08.2021.

Only thereafter the supplementary chargesheet

came to be filed against the accused No. 13 on

05.03.2022.

12.2 It can be seen from the aforesaid that

there was no proper investigation by the State

investigating agency at the relevant time and Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

even the material evidences were also not

collected. At the cost of repetition, it is

observed that during the pendency of the writ

petition before the High Court and pursuant to

the various orders passed by the High Court,

the State investigating agency were compelled

to investigate in the matter and belatedly the

accused No. 13 was chargesheeted in the

month of March, 2022. Even according to the

State investigating agency, still the further

investigation is required on certain aspects.

Some of the illustrations/ instances which

required further investigation are narrated in

paragraph 4 of the counter affidavit filed on

behalf of the respondent Nos. 1 to 3. Elaborate

reasons and on what further investigation is

required has not been stated on the

apprehension that if the same is disclosed at

this stage, it may frustrate the very purpose of

the investigation/ further investigation.

12.3 Be that as it may, even according to the

State investigating agency, the further Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

investigation is required. As observed and held

by this Court in the aforesaid decisions, the

victim has a fundamental right of fair

investigation and fair trial. Therefore, mere

filing of the chargesheet and framing of the

charges cannot be an impediment in ordering

further investigation/ re-investigation/ de novo

investigation, if the facts so warrant.

13. Now, so far as the submission on behalf of

the accused that earlier the State through

learned AG opposed the writ petition and

submitted that there was a fair investigation

and now with the change in power, the State

agency has changed its stand is concerned, the

Courts are not concerned with the stand taken

by the State at the relevant time and now.

Suffice it to say that at the relevant time when

the State police agency took a particular stand,

accused No. 13 was in power and sitting

Minister. The facts narrated hereinabove would

suggest the manner in which the earlier

investigation was carried out and that the Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

accused No. 13 was only chargesheeted in the

second supplementary charge sheet in the

month of March, 2022 and not prior to that

when the first charge sheet was filed, the

supplementary chargesheet was filed and even

when the charges against the other accused

were framed. The endeavor of the Court should

be to have the fair investigation and fair trial

only. Therefore, in the facts and circumstances

of the case narrated hereinabove, we are of the

opinion that a case is made out for further

investigation and the State 13 agency may be

permitted to conduct a further investigation

and to bring on record the further material,

which may be in the furtherance of fair

investigation and fair trial. The High Court has

committed a very serious error in not ordering

and/or permitting the State police agency to

further investigate into the FIR bearing Nos.

119 and 120 of 2020. The High Court has not

considered the relevant aspects narrated

hereinabove and therefore interference of this Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

Court is warranted."

Counsel for the State submits that no interference is

possible in the investigation when chargesheet has already been

filed and charge has been framed.

Counsel for the O.P. No. 6 vehemently opposes the

prayer of the petitioner.

Upon hearing the parties, this Court is of the

opinion that the petitioner may file his representation before the

Superintendent of Police, Siwan in the light of order passed in

Surendra Singh Vs. The State of Bihar & Ors. in Cr. WJC.

No. 153 of 2017 and analogous cases decided on 09.09.2022

directly or through his counsel within four weeks'. The

Superintendent of Police, Siwan shall decide the representation

in the light of the judgment made in Surendra Singh Vs. The

State of Bihar & Ors. in Cr. WJC. No. 153 of 2017 and

analogous cases decided on 09.09.2022.

At the time of deciding the said representation, the

Hon'ble Supreme Court's order may be considered by the

Superintendent of Police, Siwan that mere filing of the

chargesheet and framing of the charges cannot be an

impediment in ordering further investigation/ re-investigation/

de novo investigation, if the facts so warrant, as the victim has a Patna High Court CR. WJC No.1202 of 2022 dt.28-03-2023

fundamental right of fair investigation and fair trial.

This Court aspects from the high officials of police

(Superintendent of Police, Siwan) that he shall look into this

matter seriously and do the needful within a fixed period of

time.

With the aforesaid direction, the present criminal

writ application stands disposed off.

(Dr. Anshuman, J.) sadique/-

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