HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.8679/2005 R.K. Dubey VERSES State of M.P. -------------------------------------------------------------------------------------------------- Shri Manoj Singh, Advocate for applicant. Shri Prabhat Singh, P.L. for the respondent/State. -------------------------------------------------------------------------------------------------- and M.Cr.C. No.1480/2007 State of Madhya Pradesh VERSES Babu and others -------------------------------------------------------------------------------------------------- Shri Prabhat Singh, P.L. for the applicant/State. Shri A.D. Mishra, Advocate for respondent No.2. Shri S.K. Tiwari, Advocate for respondents No.3 to 5. -------------------------------------------------------------------------------------------------- O R D E R 01/03/2011 1. These petitions have been arisen out of the same order, therefore, they are being disposed of by this common order. 2. M.Cr.C. No.8679/2005 has been filed by applicant R.K. Dubey, Investigating Officer of S.T. No.162/2005 against impugned order dated 21.09.2005, whereby learned Additional Sessions Judge has passed adverse remarks against him in the order dated 21.09.2005 without giving him proper opportunity of hearing. 3. M.Cr.C. No.1480/2007 has been filed by the State under Section 482 of Cr.P.C. because vide impugned order dated 21.09.2005 has stopped the further proceedings of S.T. No.162/2005 and directed State to re-investigate the matter through Central Bureau of Investigation. 4. The factual matrix of the case is that a marg intimation No.38/2005 was recorded at police station Multai and during investigation statement of various witnesses were recorded and thereafter a charge sheet was filed against four accused persons on the basis of circumstantial evidence and learned Additional Sessions Judge vide order dated 06.08.2005 framed charges against accused persons under Section 302 and 201 of I.P.C. 5. Learned Additional Sessions Judge recorded statement of 12 witnesses between 27.08.2005 and 09.06.2006 and vide impugned order dated 21.09.2005 stopped the further proceedings of the Sessions Trial and directed State Government for re-investigate in S.T. No.162/2005 because PW-9 Savitri in her statement has stated that she did not give any statement to the police (Investigating Officer) nor her statement was recorded during the course of the investigation. The learned Additional Sessions Judge held in the impugned order that there are substantial developments, contradictions and omissions in the statement of Savitri recorded by police under Section 161 of Cr.P.C. and recorded before the Court under Section 164 of Cr.P.C. 6. In background of the aforesaid fact, without giving any opportunity of hearing to Shri R.K. Dubey, Investigating Officer various remarks were passed against him. Aggrieved by the aforesaid adverse remarks M.Cr.C. No.8679/2005 has been filed by Investigating Officer Shri R.K. Dubey. 7. State has filed M.Cr.C. No.1480/2007 aggrieved by the impugned instructions given by Additional Sessions Judge where State has been ordered/directed to conduct further investigation through C.B.I. in S.T. No.162/2005. 8. I have heard both the counsel at length. 9. As far as M.Cr.C. No.8679/2005 filed by Investigating Officer R.K. Dubey is concerned, it is clear that no opportunity of hearing was 2 given by Presiding Officer before passing the impugned order. Hon'ble Apex Court has repeatedly held that it is the basic principle of natural justice that nobody should be condemned unheard and Apex Court has held in various judgments that before passing any structure against any person he should be given an opportunity of hearing and admittedly no opportunity of hearing was given by Presiding Officer to applicant R.K. Dubey before passing aforesaid structure, therefore, the impugned structure passed against applicant R.K. Dubey vide order dated 21.09.2005 is quashed. 10. As far as M.Cr.C. No.1480/2007 is concerned, Hon'ble Apex Court in 2001 (3) SCC 333 Central Bureau of Investigation through S.P., Jaipur vs. State of Rajasthan and another has specifically held thus: "14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to CBI to investigate in certain cases, (vide Kashmeri Devi v. Delhi Admn. and Maniyeri Madhavan v. Sub- Inspector of Police). A two-Judge Bench of this Court has by an order dated 10.03.1989, referred the question whether the High Court can order CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act." 11. Learned counsel for the State Shri Prabhat Singh has submitted that once charge sheet is filed the Sessions Judge cannot direct for further reinvestigation. Hon'ble Apex Court in Sakiri Basu (supra) at para 33 has observed thus:- "33. In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others Vs. Sahngoo Ram Arya and another, (2002) 5 SCC 521 (vide Para 6), this Court observed that although the High court has power to order a CBI inquiry, that power should only be exercised if the High 3 Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation." 12. Thus, in view of the aforesaid facts and lawlaid down by the Apex Court, the Additional Sessions Judge, Betul has no authority to direct State for C.B.I. investigation and impugned order for further reinvestigation by C.B.I. in S.T. No.162/2005 is also quashed. 13. In the result, both the petitions M.Cr.C. No.8679/2005 and M.Cr.C. No.1480/2007 are allowed. The court below is directed to proceed further in S.T. No.162/2005 pending before Additional Sessions Judge, Betul in accordance with the law. (S.C. Sinho) Judge psm 4 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.8679/2005 R.K. Dubey VERSES State of M.P. -------------------------------------------------------------------------------------------------- ORDER POST FOR : 01/03/2011 (S.C. SINHO) Judge 5 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. M.Cr.C. No.1480/2007 State of Madhya Pradesh VERSES Babu and others -------------------------------------------------------------------------------------------------- ORDER POST FOR : 01/03/2011 (S.C. SINHO) Judge 6