Embed Size (px)
Citation preview
Bombay
Hig
h Court
1 CRWP NO.320/2005
IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.320 OF 2005
1. Shri Shivaji Pralhad Pankhule,
Age 35 years, OccuAuto Driverr/o Dhoksal,Post: Roshan NagarTaluka Badnapur,District Jalna.
2. Shri Jagannath Pralhad Pankhule,Age 30 years, Occu. Agriculturist,r/o Dhoksal,Post: Roshan Nagar,Taluka: Badnapur,District : Jalna.
...PETITIONERSVERSUS
1. The State of Maharashtra,through its Secretary,Home Department,Mantralaya,Mumbai 32
2. Superintendent of Police,C.I.D.Aurangabad.
3. Deputy Superintendentof Police, C.I.D.,Aurangabad.
(4. Hon'ble Minister,Home Department,Mantralaya,Mumbai 32)
(5. Shri Chaganraoji Bhujbal,At present: P.W.D. Minister,Mantralaya,Mumbai 32 )
::: Downloaded on - 11/06/2015 14:42:02 :::
Bombay
Hig
h Court
2 CRWP NO.320/2005
(Respondent nos. 4 & 5 are deleted as per Court's order dated 5.8.05).
6. Shri Sahebrao N.Kharat,Mahendra Lodge,Main Road,Ambad,District : Jalna.
7. Dr.Panditrao Dhanore,Age 55 years, Occ.r/o. Derga Yees, Laxmi Hospital,Kadrabad, Jalna, Tq. & Dist. Jalna.
8. Shri Lukas Gunaji Ghorpade,Age 40 years, Occu. Agriculturist,r/o Dhoksal,Post Roshan NagarTaluka Badnapur,District Jalna.
9. Shri Vishnu Sitaram Wagh,Age 35 years, Occu. Agriculturist,r/o Dhoksal,Post Roshan Nagar,Taluka Badnapur,District : Jalna.
10. Vishnu Gangaram Jadhav,Age 30 years, Occu. Agriculturist,r/o Shivaji Nagar, Railway Line,Jalna, Tq. & Dist. Jalna.
...RESPONDENTS...
Mr. V.D.Sapkal, Adv., for the appellant.Shri K.S.Patil, APP for respondent State (nos. 1 to 3).Respondent nos. 4 and 5 are deleted as per Court's order dt.5.8.2005.Respondent nos. 6 to 10 are served.
...
::: Downloaded on - 11/06/2015 14:42:02 :::
Bombay
Hig
h Court
3 CRWP NO.320/2005
CORAM: S.S.SHINDEAND
P.R.BORA, JJ.
DATE : July 23rd, 2014
***
Date of reserving the judgment:26/6/2014Date of pronouncing the judgment: 23/7/2014
***
JUDGMENT: (Per P.R.Bora, J.)
1. The present writ petition raises the
following questions:
(i) whether fresh investigation or re
investigation can be permitted under Section
173(8) of Code of Criminal Procedure, and
that too by the Magistrate. ?
(ii) whether the investigation of a crime
can be transferred under the orders of the
Minister. ?
(iii) under what circumstances the
investigation of a crime can be transferred
from one agency to another and it is whose
competence to transfer such investigation ?
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
4 CRWP NO.320/2005
2. Before adverting to the questions so
raised, we will have to look into the facts of
the present case which are thus in brief:
That, the petitioner no.1 had filed complaint
to Police Station, Badnapur, on 16.11.2002,
alleging that his brother, namely, Ramaprasad
Pankule has been murdered by respondent nos. 8 to
10. On such complaint lodged by him an offense
was registered against respondent nos. 8 to 10
and the investigation was carried out. After
completing the investigation, Police Station
Officer, Badnapur, on 9.12.2002, filed
chargesheet in the Court of second JMFC, Jalna,
against respondent nos. 8 to 10 for the offense
punishable under Section 302 read with Section 34
of IPC.
Though the chargesheet was filed, the case
was committed to the Sessions Court, and after
committal Sessions Case No.165 of 2002 was
registered, the trial was not proceeded further
but a supplementary chargesheet came to be filed
on 13.6.2005. It was filed by Deputy
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
5 CRWP NO.320/2005
Superintendent of Police, CID, Aurangabad. It is
the contention of the petitioners that only after
filing of such chargesheet, it was revealed to
them that the investigation in the said case was
transferred to State C.I.D. It is the further
case of the petitioners that on their further
inquiry, they came to know about the events that
happened in between.
As has been averred in the petition,
respondent nos. 6 and 7 had written a letter to
the learned Home Minister of the State of
Maharashtra who, at the relevant time, was also
the Deputy Chief Minister. It has to be stated
that, initially, the learned Minister was also
arrayed as respondent no.5, however,
subsequently, his name came to be deleted from
the array of the respondents in pursuance of the
order passed by this Court on 31st Jan., 2006.
The averments in the writ petition further
reveal that on receipt of such letter from
respondent nos. 6 and 7, the learned Minister
passed an order directing the Deputy Secretary,
Home, for conducting further enquiry as was
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
6 CRWP NO.320/2005
prayed by respondent nos. 6 and 7. Thereafter,
the Desk Officer in the office of the Home
Ministry of the State of Maharashtra vide his
letter dated 23.1.2003 communicated to the
Additional Director General of Police ( C.I.D.),
Mumbai, that investigation in the Crime referred
to in the letter dated 3.4.2012, written by
respondent no.6 to the learned Minister, be
conducted through the State C.I.D. and compliance
be reported. After receipt of such
communication, the consequent orders came to be
passed by the Police authorities whereby the
investigation was transferred to the State C.I.D.
On 30th July, 2003, the Dy.Superintendent of
Police C.I.D. ( State) preferred an application
under Section 173(8) of Cr.P.C. In aforesaid
C.R.No.162/2002 before Judicial Magistrate, First
Class, Jalna, seeking permission for
reinvestigation in the aforesaid crime. The said
application was allowed by the learned
Magistrate. The State C.I.D., accordingly,
carried out investigation and on 13.6.2005 filed
supplementary chargesheet in the said matter. On
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
7 CRWP NO.320/2005
the basis of the supplementary chargesheet so
submitted by the State C.I.D., Sessions Case
No.62/2005 has been registered. In the
supplementary chargesheet, the persons who have
been shown as accused are the witnesses in
Sessions Case No.165/2002 and the persons who
have been shown accused in Sessions Case
No.165/2002, have been shown as witnesses in
Sessions Case No.62/2005.
After having come to know the aforesaid facts
the petitioners filed the present petition,
raising the afore mentioned pleas and seeking
quashment of the subsequent investigation and the
supplementary chargesheet filed by the State
C.I.D. On 8th of June, 2006, this Court granted
Rule in the matter and also stayed the further
proceedings in Sessions Case No.165/2002 and
Sessions Case No.62 of 2005 till decision in the
present writ petition.
3. Shri V.D.Sapkal, the learned Counsel
appearing for the petitioners, submitted that the
petitioners have objected the acts of respondent
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
8 CRWP NO.320/2005
nos. 1 to 3 in relation to Crime No.162/2002,
registered at Police Station, Badnapur, on four
counts.
First that, under Section 173(8) of Code of
Criminal Procedure Code, what is permissible is
“further investigation”, and not “re
investigation”. Shri Sapkal submitted that the
petitioners have placed on record overwhelming
evidence showing that reinvestigation has been
done in the aforesaid Crime No.162/2002 and, in
any case, it cannot be permitted.
Second objection is that the JMFC, without
any power or authority permited reinvestigation
under Section 173(8) of Cr.P.C. in Crime
No.162/2002.
The third objection is that, though the
further investigation in any crime can be carried
out under the provisions of Section 173(8) of
Code of Criminal Procedure Code only by the same
investigating agency who has conducted the
initial investigation, in the instant case the
same has been carried out by C.I.D. ( State).
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
9 CRWP NO.320/2005
The fourth objection is that the then
learned Minister of Maharashtra, merely on a
complaint received to him from respondent no.6
took a decision to direct reinvestigation in
the aforesaid crime and transfered the
investigation to State C.I.D.
4. Learned Counsel Shri Sapkal, taking
us through the pleadings in the writ petition,
submitted that all above objections are
specifically raised in the petition with
necessary particulars and on the basis of
documentary evidence in that regard. Learned
Counsel first invited our attention to the letter
dated 3.12.2002, which is annexed as Exh.B with
the writ petition, written by respondent nos. 6
and 7 to the then Home Minister, who was also
Deputy Chief Minister of the State of Maharashtra
wherein they had prayed for a detailed enquiry
into the matter of the murder of Ramprasad
Pankhule by the State C.I.D.
Shri Sapkal then brought to our notice letter
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
10 CRWP NO.320/2005
dated 23rd Jan., 2003, written by the Desk Officer
in the Home Department, Mantralaya, Mumbai, to
the Additional Director General, C.I.D.,
Maharashtra State, Pune, which contains an order
for investigation of the crime referred to in the
aforesaid letter dated 3.12.2002 through the
State C.I.D.
Shri Sapkal, thereafter, invited our
attention to the application dated 30th July,
2003, submitted by the Deputy Superintendent of
Police, State C.I.D., to the IInd JMFC, Jalna,
seeking permission for reinvestigation in Crime
No.162/2002 registered at Badnapur Police
Station, for the offenses punishable under
Section 302 read with Section 34 of IPC. The
permission so sought was granted by the learned
Magistrate on the same day.
5. Respondent nos. 6 to 10 though have been
duly served did not seem to have appeared in the
matter. In such circumstances, no submissions
from these respondents are there on record.
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
11 CRWP NO.320/2005
Respondent nos. 1 to 3, however, have filed their
reply affidavit. As stated earlier, the names
of respondent nos. 4 and 5 were deleted from the
array of respondents in view of the order passed
by this Court.
6. In the reply affidavit, respondent nos.
1 to 3 have accepted the fact of the letter
written by respondent nos. 6 and 7 to the learned
Minister on 3.12.2002. It has also been admitted
that on receiving such letter, the learned
Minister has passed an order directing enquiry in
the allegations made in the said complaint. The
respondents have, however, denied that the
learned Minister had directed to transfer the
investigation in Crime No.162/2002 to the State
C.I.D. from the local Police. Respondents have
also admitted the filing of an application by
Deputy Superintendent of Police, State C.I.D.,
Aurangabad, to the Court of 2nd JMFC, Jalna, in
relation to the investigation in the Crime
No.162/2002 registered at Police Station,
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
12 CRWP NO.320/2005
Badnapur, however, it is their contention that
the permission for `further investigation' was
prayed for and not for reinvestigation.
7. In view of the facts as above, the
following points arise for our determination:
A) Whether IInd J.M.F.C., Jalna, was
having any power or authority to grant
permission to reinvestigate Crime No.162/2002
registered at Police Station, Badnapur, as
was sought by Dy.Superintendent of Police,
CID, by filing an application dated 30th of
July, 2003.
(B) When the local police has already
investigated into the crime and has filed the
chargesheet against respondent nos. 8 to 10,
for the offenses under Section 302 read with
Section 34 of IPC and on the basis of which
Sessions Case No. 165/2002 was registered,
what necessitated the reinvestigation.
C) Why for the subsequent reinvestigation
and / or subsequent investigation was
transferred to State CID when initial
investigation was done by the Local Police.
D) Whether the learned Minister was having
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
13 CRWP NO.320/2005
any power or authority to transfer the
investigation from Local Police to State CID
when local Police has already completed the
investigation and filed the chargesheet.
E) If it is the case of the respondents that
the learned Minister did not order the
investigation by the State CID then, who
ordered it, since there is no dispute that
the State CID has subsequently investigated
the matter and filed the chargesheet.
8. The petitioners have made several
allegations in respect of the investigation
subsequently done by the State C.I.D. It is
their case that the entire investigation done by
the State CID is tainted and was influenced by
respondent nos. 6 and 7. As has been stated
earlier, according to the petitioners, the
subsequent investigating agency has even shown
some different spot as the spot of occurrence. It
is their further case that many of the witnesses
whose statements are shown to have been recorded
by the State CID, have not been recorded and all
those persons have sworn affidavits contending
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
14 CRWP NO.320/2005
that their statements were never recorded by the
State CID. The petitioners have also alleged
that only with an intention to save respondent
nos. 8 to 10 from punishment, who have been shown
as accused in Sessions Case No.165/2002 filed on
the basis of initial investigation, that the re
investigation is shown to have been done and on
the basis of concocted evidence, the present
petitioners have been shown as an accused in the
supplementary chargesheet filed by the State CID.
All these facts are denied by the respondents in
their affidavit in reply. However, we do not
wish to enter into the said controversy and
indulge in making any observation as to
truthfulness in the allegations made by the
petitioners and denied by the respondents. Even
without going into such controversy, the legality
of the actions taken by the respondents can be
decided.
9. Section 173(8) of Cr.P.C. Reads as
under:
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
15 CRWP NO.320/2005
“173. Report of police officer on completion of investigation.
… … …
(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of’ subsection (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2).”
10. The plain reading of the aforesaid
provision shows that there is no bar for further
investigation even after filing of the report
under Section 173(2) of Cr.P.C. However, if the
further investigation is to be carried out after
filing of the report under Section 173(2) of the
Cr.P.C., the investigating officer has to bring
to the notice of the Magistrate cogent and
sufficient reasons therefor. He has to satisfy
the Magistrate that some evidence could not
become available when the initial investigation
was done and the report under Section 173(2) was
filed and further that the evidence which has
subsequently become available has material
bearing on the crime alleged.
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
16 CRWP NO.320/2005
Where the investigating officer obtains
further oral or documentary evidence after the
final report has been filed before the Court
under Section 173(2) of Code of Criminal
Procedure, it is the continuation of a previous
investigation and, therefore, is understood and
described as a `further investigation'. Scope
of such investigation is restricted to the
discovery of further oral and documentary
evidence. Its purpose is to bring the true
facts before the Court even if they are
discovered at the subsequent stage to the primary
investigation. Further investigation does not
have the effect of wiping out directly or
impliedly the initial investigation conducted by
the investigating agency.
11. Shri V.D.Sapkal, learned Counsel
appearing for the petitioner, to substantiate his
contention that no reinvestigation is permissible
under Section 173(8) of Cr.P.C., placed his
reliance on the judgment of the Hon'ble Supreme
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
17 CRWP NO.320/2005
Court in the case of Ramchandran Vs. R.Udhaykumar
& others ( 2008 AIR (SC) 3102). In the said
matter, the Hon'ble Madras High Court had, in an
application under Section 482 of Cr.P.C. directed
fresh investigation by CB (CID) which was being
investigated initially by the State Police. The
said order was challenged before the Hon'ble Apex
Court and while setting aside the said order,
the Hon'ble Supreme Court held that though the
Police has right to further investigate under
subsection 8 of Section 173 of Cr.P.C., no fresh
investigation or reinvestigation can be
permitted under the said Section.
In the aforesaid judgment, the Hon'ble
Supreme Court has referred to its earlier
judgment in the case of K.Chandrasekhar v. State
of Kerala and others ( 1998(5) SCC 223) and has
reproduced paragraph no.24 of the said judgment
which reads as under:
“24. The dictionary meaning of 'further' (when used as an adjective) is 'additional'; more; supplemental. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started abinitio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
18 CRWP NO.320/2005
inspiration from the fact that subsection (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports and not fresh report or reports regarding the 'further' evidence obtained during such investigation.”
In a very recent judgment reported at 2013
AIR SCW 220 ( Vinay Tyagi v. Irshad Ali alias
Deepak and others), the Honourable Supreme Court
has reiterated that under Section 173(8) of
Cr.P.C., the Magistrate cannot direct
reinvestigation or fresh investigation in the
case initiated on the basis of a Police report.
12. From the judgments discussed above, it
is quite clear that what is permissible under
Section 173(8) of Cr.P.C., is further
investigation and not the reinvestigation.
13. In the instant matter, the respondents
have come out with the case that they conducted
further investigation in Crime No.162/2002,
whereas it is the specific objection of the
petitioners that the respondents conducted
reinvestigation. It has to be, therefore,
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
19 CRWP NO.320/2005
examined from the available material on record
whether the investigation subsequently conducted
in C.R.No.162/2002, is `further investigation' or
`re'investigation'. On such examination, we
noticed overwhelming evidence showing that on the
strength of the order dated 30th July, 2003,
obtained from the J.M.F.C., Jalna, the State
C.I.D. has conducted reinvestigation in Crime
No.162/2002.
14. In the affidavit in reply filed on
behalf of respondent nos. 1 to 3, though an
attempt has been made to submit that the State
C.I.D. has conducted the further investigation
and not the reinvestigation, the same is liable
to be rejected at the threshold in view of the
overwhelming evidence on record. In the very
application stated to be filed under Section
173(8) of Code of Criminal Procedure, the
contention of the Deputy Superintendent of
Police, State CID, Aurangabad, who has filed the
said application, is that “it has become
necessary to conduct reinvestigation ”. Even the
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
20 CRWP NO.320/2005
wording used in the subject column in the said
application is, “An application seeking
permission for reinvestigation of Crime
No.162/2002 registered at Badnapur Police
Station.” In paragraph No.3 of the application,
it is further averred that the prosecution had
filed an application before the Sessions Court
seeking permission for “reinvestigation” under
Section 173(8), however, the Sessions Court
directed them to approach the Court of Magistrate
since the powers under Section 173(8) of Cr.P.C.
are vested in the Magistrate.
15. There is notable difference in
seeking permission for further investigation and
seeking permission for reinvestigation. The
application was filed seeking permission for re
investigation, and not further investigation. It
cannot be said that the word “reinvestigation”
has been inadvertently used. This is also not the
case of the respondents. Had it been the case, at
least in the main prayer clause, the words
“further investigation” would have appeared, and
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
21 CRWP NO.320/2005
not “reinvestigation”.
16. Learned Counsel for the petitioners
had invited our attention to the chargesheet
subsequently filed by the State (CID). Sub para
2 of para 15 of the chargesheet clearly mentions
that the reinvestigation was ordered by the State
through the C.I.D. It is further averred that
under Section 173(8) of Cr.P.C. the permission
was obtained for reinvestigation of the matter.
In such circumstances, the respondents may have
taken a plea that the application was moved
before the Court of 2nd JMFC, Jalna, seeking
permission for further investigation and further
that what was carried out by the State C.I.D. was
further investigation, the same cannot be
accepted. From the facts and circumstances
discussed hereinabove, it is established that
State CID conducted reinvestigation in Crime
No.162/2002.
17. Secondly, for the sake of arguments even
if it is accepted that the investigation
subsequently carried was not reinvestigation,
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
22 CRWP NO.320/2005
but further investigation, further question
arises, would it still sustain since the same
has been carried out by an agency other than the
agency who had carried out the initial
investigation. In the case of K.Chandrasekhar
(supra), relied upon by the petitioners, the
Hon'ble Apex Court has ruled that further
investigation under Section 173(8) of Cr.P.C. can
be conducted only by the investigating agency
which originally investigated the case.
18. In this regard, Shri Sapkal has also
placed reliance on the judgment of the Hon'ble
Kerala High Court in the case of Vijaykumar Vs.
Kamaruddin ( 1999 CRI.L.J. 1294). In that matter,
originally, Crime No.177/1992 was registered
against the petitioner in the said case and
others by Kattakada Police alleging offenses
punishable under Sections 379, 506 read with
Section 34 of IPC on the basis of the complaint
filed by the first respondent in the said matter.
A private complaint was also filed and
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
23 CRWP NO.320/2005
investigation was directed by the Magistrate
under Section 156 (3) of Cr.P.C. The Kattakada
Police after investigation filed a refer report
before the Magistrate's Court since the dispute
involved in the said case was of civil nature.
The Magistrate accepted the refer report after
giving notice to the complainant since no
objection was raised by him. Subsequently, the
complainant made a complaint before the Chief
Minister of Kerala who ordered the Director
General of Police to take necessary action and
investigation by CB CID i.e. the Special Squad.
The CB CID then investigated the matter and filed
chargesheet. When the aforesaid matter was
taken by the petitioner before the Kerala High
Court, it held that the State Government was
having no authority to direct a different
investigating agency i.e. the CB CID to conduct
further investigation in place of local Police
and, therefore, held, the reregistration of the
crime and further investigation by CB CID to be
illegal and unsustainable.
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
24 CRWP NO.320/2005
19. Shri Sapkal is relying upon one more
judgment of the Hon'ble Supreme Court in the case
of Rajesh and others Vs. Ramdeo and others ( 2001
ALL MR (Cri) 1943). In the said case, while the
investigation was on, the complainant approached
the High Court by filing a writ petition and the
High Court had taken the step of forming a panel
and directing them to examine the matter and on
the basis of the said panel report, had directed
further investigation by an agency other than the
local Police. In an appeal filed against the
said order, the Hon'ble Apex Court set aside the
said order observing that when the local Police
has already investigated the matter, if at all
any further investigation was to be carried out,
if any further material has become available, it
ought to have been carried only through the said
agency and not by any other agency. The Hon'ble
Supreme Court held the said order to be without
jurisdiction.
20. The Hon'ble Delhi High Court has also
taken a similar view in the case of Ajay Raj
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
25 CRWP NO.320/2005
Sharma vs. State (2001 CRI.L.J. 616) observing
that the Magistrate does not possess any power or
authority to transfer the investigation from one
agency to another.
21. In the instant case also, there is no
dispute that the initial investigation has been
done by the Local Police and it had also filed a
chargesheet on 9.12.2012 after completing the
investigation on the basis of which a sessions
case No. 165/2002 has been registered against
respondent nos. 8 to 10. It is also not in
dispute that the State CID has also subsequently
investigated the matter and has filed another
chargesheet on the basis of which Sessions Case
No.62/2005 has been registered wherein the
witnesses in the Sessions Case No.165/2002 have
been shown as the accused persons. In view of
the law laid down in the judgments referred to
above, it is evident that the subsequent
investigation carried out by State CID would not
sustain.
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
26 CRWP NO.320/2005
22. The next question arises as to under
whose orders the investigation was transferred to
State CID. In the affidavit in reply it is the
case of the respondents that the learned Minister
did not order investigation by the State CID, and
that he only directed an inquiry into the matter.
In view of the letter dated 23rd Jan., 2003,
written by the Desk Officer in the State Home
Ministry to the Additional Director General of
CID ( Crimes), Maharashtra State, Pune, it is
difficult to accept the above statement made by
respondent nos. 1 to 3 in their affidavit in
reply. The aforesaid letter dated 23rd Jan.,
2003, carries a clear averment that in respect of
the Crime referred to in the letter dated
3.12.2002, written by Shri Sahebrao Kharat i.e.
respondent no.6 to the Home Minister, the
Government has ordered the investigation by the
State C.I.D. We would like to reproduce the
contents of the said letter as it is in
vernacular, which are thus:
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
27 CRWP NO.320/2005
vfr&rkRdkG“ Exh.C / Page No.67
xksiuh;@rkRdkG
v-'kk-i-dz-,e;qvkj 0103@5@iksy&11
xg̀ foHkkx] ea=ky;] eqacbZ&400 032]
fnukad % 23 tkusokjh] 2003-
fn-y- jkf'koMs
d{k vf/kdkjh
fiz; egksn;]
Jh- jkeizlkn izYgkn ia[kqys ;kaP;k la'k;kLin eR̀;wckcr Jh- lkgscjko uk- [kjkr ;kauh ek- mieq[;ea=h ¼xg̀½ ;kauk mís'kwu fyghysY;k fnukad 3-12-2002 P;k i=kph izr lkscr tksMyh vkgs-
2- ;kckcr jkT; xqUgk vUosÔ.k foHkkxkekQZr rikl dj.;kr ;kok] vls 'kklukps vkns'k vkgsr- rjh vki.k dk;Zokgh d:u vgoky 'kklukl rkRdkG lknj djkok] gh fouarh-
vkiyk Lusgafdr]
lgh@& ¼fn-y- jkf'koMs½
CONFIDENTIALInward 43DATE : 11.2.2003BRANCH :----------
Jh v- d-̀ vxzoky]
vIij iksyhl egklapkyd]
xqUgs vUosÔ.k foHkkx] ¼xqUgs½s
egkjk"Vª jkT;] iw.ks- ”
In the aforesaid letter, when it is specifically
mentioned that there are orders from the
Government for investigation through the State
C.I.D., the contention in the affidavit in reply
that no such orders were issued by the learned
Minister, is difficult to be accepted.
Moreover, the documents filed on record by
the respondents themselves along with their
affidavit in reply, which are at Exh.R1 and
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
28 CRWP NO.320/2005
Exh.R2, reveal that there were orders from the
State Government in respect of investigation
through the State CID in the murder case of
Ramprasad Pankhule. The document at Exh.R1 is
the letter sent by D.K.Ramchandran, Additional
Director General (State CID), to the
Superintendent of Police, CID, Aurangabad. In
the said letter, there is reference of the
letter dated 23rd Jan., 2003. The Additional
Director General has directed the Superintendent
of Police, C.I.D., Aurangabad, to appoint an
investigating officer and to get completed the
investigation from him under his supervision and
to submit the report. After receipt of the said
letter, the Superintendent of Police, C.I.D.,
Aurangabad, has directed vide letter dated 28th
Feb., 2003, to Shri M.S.Nikam, Police Inspector,
CID, Aurangabad, to submit his report, whether or
not it would be proper to conduct the
investigation by the C.I.D. In the said letter
dated 28.2.2003 also, there is a reference of the
letter dated 23rd Jan., 2003.
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
29 CRWP NO.320/2005
In view of the aforesaid two letters, the
plea taken by respondent nos. 1 to 3 in their
affidavit in reply that the learned Minister has
not ordered investigation in the concerned crime
through the State C.I.D. appears unacceptable.
For the time being, even if the controversy as
to whether or not the learned Minister directed
the inquiry and / or investigation through the
State C.I.D. is kept aside, the fact remains that
the investigation in the said crime was conducted
by the State C.I.D. and the supplementary
chargesheet has been filed in the aforesaid crime
by the Deputy Superintendent of Police, State
C.I.D., on the basis of which Sessions Case
No.62/2005 has been registered.
Nextly, if this would be the case, as has
been pleaded by respondent nos. 1 to 3 in their
affidavit in reply that the learned Minister had
not ordered reinvestigation or further
investigation through the State C.I.D., it was
incumbent on their part to disclose as to how the
State CID took charge of the investigation in the
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
30 CRWP NO.320/2005
said crime.
Admittedly, no higher Court has passed an
order directing reinvestigation in the aforesaid
crime and transferring the same to the State
C.I.D. from the local Police. Thus, in no case,
the investigation carried by the C.I.D. can be
said to have any legal basis.
23. We have carefully gone through the
contents of the application dated 30.7.2003
submitted by the Dy.Superintendent of Police,
CID, Aurangabad, before the JMFC, Court No.2,
Jalna, seeking permission under Section 173(8) of
the Cr.P.C. For reinvestigation in Crime
No.162/2002. `Since the State has directed for
reinvestigation through the State CID, it has
become incumbent to reinvestigate the same' is
the only reason stated in the said application
seeking permission to reinvestigate the concerned
crime. In our opinion, this cannot be a ground
for seeking reinvestigation of a crime.
Seeking reinvestigation or fresh investigation
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
31 CRWP NO.320/2005
in any crime is a serious thing. As we have
stated earlier, unless some compelling reasons
are brought to the notice of the Court,
ordinarily, reinvestigation is not ordered and,
as elaborately discussed hereinbefore, the
Magistrate, certainly, does not possess any power
or authority to permit such reinvestigation.
However, in the instant case, it is quite evident
from the record that the learned Magistrate
mechanically, without any application of mind,
not even bothering to see whether he possesses
any power or authority to grant the prayer made
in the application, passed a two word order,
“Permission granted”.
24. In a very recent judgment in the
case of Vinay Tyagi V. Irshad Alias Deepak and
others ( 2013 AIR SCW 220 ), the Hon'ble Supreme
Court has ruled that for fresh investigation, re
investigation or denovo investigation, there has
to be a definite order of the Court. The order
of the Court, unmistakably, should state as to
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
32 CRWP NO.320/2005
whether the previous investigation, for reasons
to be recorded, is incapable of being acted upon.
The Hon'ble Supreme Court has, further, in
clear terms, clarified that neither the
investigating agency at it's own can conduct the
reinvestigation nor the Magistrate has any power
to order reinvestigation. The Honourable Supreme
Court has further said that it is only upon the
orders of the higher Courts, empowered to pass
such orders that, the fresh investigation or re
investigation can be conducted. The Apex Court
has further stated that in that event, the higher
Courts will have to pass a specific order with
regard to the fate of the investigation already
conducted and the report so filed before the
Court of learned Magistrate.
In the very same judgment, the Hon'ble Apex
Court has further held that unless the previous
investigation is ex facie found unfair, tainted,
mala fide and smacks of foul play, the Courts
would not direct the fresh or de novo
investigation by another independent
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
33 CRWP NO.320/2005
investigating agency. As observed by the Apex
Court, directing fresh investigation of a crime
by an independent investigating agency is a power
of wide plentitude and, therefore, it has to be
exercised sparingly. Unless the unfairness of
the investigation is such that it pricks the
judicial conscience of the Court, the Court
should be reluctant to interfere in such matters,
and in directing fresh investigation.
25. Facts involved in the present case, if
tested on the anvil of the observations made and
the law laid down by the Hon'ble Supreme Court in
the aforesaid judgment, there remains no doubt
that the actions of respondent nos. 1 to 3
subsequent to filing of the chargesheet in Crime
No.162/2002 on 9.12.2002, are wholly illegal and
unsustainable. When the chargesheet was already
filed, the learned Minister was not having any
right or authority to direct any further inquiry
or transfer the investigation to the State C.I.D.
We reiterate that though the respondent nos. 1 to
3 had attempted to make out a case that the
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
34 CRWP NO.320/2005
learned Minister had not directed the
investigation through the State C.I.D., the
material available on record is contrary to that.
The letter dated 23rd Jan., 2003, which has not
been denied or disputed, clearly suggests that
the investigation was transferred to C.I.D. under
the orders of the State. Moreover, as we have
earlier discussed, there is nothing on record as
to who then passed an order transferring
investigation to the State C.I.D., if not by the
learned Minister. Admittedly, no higher Court
has passed any such order. It has to be stated
that only in exceptional circumstances, the
superior Courts, in exercise of their
Constitutional powers, namely, under Articles 226
and 32 of the Constitution of India can direct
the State to get an offense investigated and or
further investigated by a different agency.
Nevertheless, the learned second JMFC, Jalna,
mechanically, and without application of mind,
granted the application dated 30th of July, 2003,
preferred by Dy. Superintendent of Police, State
CID, in Crime No.162/2002, seeking permission for
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
35 CRWP NO.320/2005
reinvestigation. We have already made
elaborate discussion in the earlier part of the
judgment that order so passed by the learned
Magistrate was palpably wrong and without
jurisdiction.
26. In view of the discussion made
hereinabove, we record our conclusions as
follows:
(I) No fresh investigation or reinvestigation
can be permitted under Section 173(8) of
Cr.P.C.
(II) Neither the Magistrate nor the learned
Minister possesses any power or authority
to direct reinvestigation in a crime.
(III) The power to order / direct re
investigation or de novo investigation
falls in the domain of higher Courts
exercising Constitutional powers under
Articles 226 and 32 of the Constitution of
India.
(IV) Reinvestigation can be ordered in
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
36 CRWP NO.320/2005
exceptional circumstances where the
investigation earlier conducted is ex
facie unfair, tainted, mala fide and
smacks of foul play.
27. Considering the facts and circumstances
in the instant case, in the light of the
conclusions recorded by us as above, it is
apparent that the then II nd JMFC, Jalna, was not
having any authority to grant permission for re
investigation in Crime No.162/2002 registered by
Police Station, Badnapur. In fact, no material
was placed before the learned Magistrate while
seeking permission from him to carry out
reinvestigation in the aforesaid crime. It was
the fact that local Police has already completed
the investigation in the aforesaid crime and has
also filed chargesheet before the same Court
against respondent nos. 8 to 10 for the offense
punishable under Section 302 read with Section 34
of IPC. It was also the fact that the same Court
has committed the said case to the Court of
Sessions whereupon Sessions Case No.165/2002 was
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
37 CRWP NO.320/2005
registered.
28. It was the duty of the Deputy
Superintendent of Police (CID) to disclose cogent
and sufficient reasons as to what has
necessitated reinvestigation in the aforesaid
crime. He was further duty bound to disclose,
what was the further evidence or facts revealed
to him after filing of the chargesheet and
whether said facts were having any material
bearing on the case of the prosecution already
filed. It was also required to be disclosed, why
such evidence could not become available at the
time when the earlier investigation was carried
out and completed. We reiterate that in the
application dated 30th of July, 2003, no such
reasons are cited and nothing has been disclosed.
29. We have already held that, “Government
has directed reinvestigation through C.I.D.”
cannot be a reason for seeking reinvestigation
in the crime. More worrying aspect is that, the
II nd JMFC, Jalna, also did not verify whether,
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
38 CRWP NO.320/2005
in an application under Section 173(8) of
Cr.P.C., reinvestigation can be permitted, and
overlooking the said aspect, and in complete
ignorance of the provisions of law, mechanically,
and without application of mind, allowed the
application by a two word order, “Permission
granted”.
30. We have elaborately discussed
hereinabove that the then learned Minister was
not authorized to direct the investigation
through C.I.D. Two aspects were involved;
first, even if further investigation was to be
done in the said crime, it could have been got
done only by the same investigating agency i.e.
the local Police which has carried out the
initial investigation, and in no case, it was
within his power to transfer the investigation to
C.I.D. Further, respondent nos. 1 to 3 have
taken all risk in taking a plea that the learned
Minister did not transfer the investigation to
C.I.D., meaning thereby that it was their own
decision and they suo motu got transferred the
::: Downloaded on - 11/06/2015 14:42:03 :::
Bombay
Hig
h Court
39 CRWP NO.320/2005
investigation to C.I.D. In sum and substance,
all subsequent actions are patently illegal and
unsustainable.
31. In the result,
The writ petition succeeds. The order
passed by the second JMFC, Jalna, on
30.7.2003, in Crime No.162/2002, thereby
permitting the State C.I.D. to carry out re
investigation in the aforesaid crime is set
aside and quashed. Consequently, the
subsequent investigation carried out by the
State C.I.D. on the strength of the said
order and the chargesheet filed by it on
13.6.2005 and the Sessions case registered on
that basis bearing Sessions case No.62/2005
also stands quashed and set aside. Rule made
absolute.
(P.R.BORA) (S.S.SHINDE)JUDGE JUDGE
...AGP/32005crwp
::: Downloaded on - 11/06/2015 14:42:03 :::
