1 S.B.CIVIL WRIT PETITION NO. 4677/2006. (Sohan Lal Vs. State of Rajasthan ) Date of Order :: 26th August 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. K.S.Rathore, for the petitioner. Mr. B.L.Tiwari, Government Counsel. .... BY THE COURT: The petitioner, having filed a complaint (Annex.1) before the Additional Chief Judicial Magistrate, Jaitaran ('the Magistrate') that was referred by the Magistrate on 10.03.2006 for investigation, preferred this writ petition on 06.06.2006 stating the grievance that the matter was not being proceeded on the said complaint and so also the apprehension that the matter would not be fairly investigated; and prayed for the following reliefs:- ''a) by issuing a writ of mandamus or any other appropriate writ order or direction, the S.H.O. Jaitaran, respondent no.2 be directed to register FIR on the basis of the complaint (annex.1) in compliance of the order dated 10.03.2006 (annex.2) of the learned ACJM, Jaitaran, and further, b) by issuing again a writ of mandamus or any other appropriate writ, order or direction the case, after its registration at the Police Station Jaitaran, be entrusted to the CBI, New Delhi for its fair and impartial investigation.'' While this writ petition remained pending, certain events took place subsequently (as shall be referred hereafter) 2 whereby, ultimately, FIR No.163/2007 was registered at Police Station, Jaitaran on the said complaint but then, the police proceeded to state a negative final report on 22.10.2007. The petitioner, thereafter, prayed for amendment of the writ petition that was allowed by this Court on 12.03.2008 and, in the amended writ petition, the petitioner has prayed for the following reliefs:- ''(a) by issuing a writ of mandamus or any other appropriate writ, order or direction to the A.C.J.M. Jaitaran, he be directed to return the Final Negative Report No.82 dated 22.10.2007 (Annex.R/1) to the S.H.O. Police Station Jaitaran for fair and impartial investigation of the F.I.R. Case No.163 dated 7.6.2007 by the Central Bureau of Investigation. (b) Further by issuing a writ of mandamus or any other appropriate writ, order or direction the Central Bureau of Investigation New Delhi be directed to take change of the Investigation File and make a proper thorough and objective investigation of the above FIR case No.163/07 of the Police Station Jaitaran and after conclusion thereof submit a complete report to the court concerned i.e. the Court of ACJM Jaitaran.'' The grievance voiced and the submissions made on behalf of the petitioner in this writ petition are that the higher- ups and relevant persons including police officials being the accused persons in his complaint, the Rajasthan Police is not, and was never, expected to conduct a fair investigation in accord with law and, according to the petitioner, it is required in the interest of justice that the matter be got 3 investigated by the Central Bureau of Investigation ('CBI'). To examine the grievance as stated and submissions as made on behalf of the petitioner, it appears appropriate to refer briefly to the background facts as borne out from the material available on record. The petitioner filed the complaint (Annex.1) aforesaid with the submissions that he belongs to a down trodden class and started his career as a Teacher Gr.III and retired from the post of Additional Director in the Education Department; and referred to the position held by him as office bearer of various organisations and unions and stated himself having keenly been pursuing the matters for protection of the down-trodden classes. The petitioner alleged in the complaint (Annex. 1) that on 01.03.2005 at about 8:00 AM at village Bedkala, Tehsil Jaitaran, one Mohanlal Meghwal was murdered by the members of family of Jagirdars including Thakur Shiv Dan Singh, the accused No.1 as stated in the present complaint , his younger brother Thakur Dalel Singh and his elder son Kunwar Tikam Singh; and an FIR was lodged in relation to the incident by the elder brother of the victim at Police Station, Jaitaran. It was asserted that the said complainant, when he found that the police officers were not doing justice and were intending to protect the accused, informed the petitioner in that regard and when the petitioner reached the village Bedkala, several persons had already gathered in protest 4 against such brutal murder and they were motivated to present their case in a peaceful manner before the authorities. The petitioner further asserted that with the strong support of all sections of society, the police officers had to arrest the accused in the said Mohan Meghwal's murder case. Further, the petitioner referred to the family background and political history of the accused No.1 Shivdan Singh and also alleged that the accused No.2 Surendra Goyal, the sitting MLA, was in league with the accused No.1. The petitioner's allegation has been that to take revenge for leading agitations against him, the accused No.1 Thakur Shiv Dan Singh hatched a criminal conspiracy with the accused persons to entangle him in a false criminal case; that in furtherance of such conspiracy, on 21.08.2005, the accused No.10 Kishore reached the house of the petitioner with 5-7 persons on a motor bike and stared hurling abuses. According to the petitioner, the said persons attempted to trespass into the house and when his son Narendra pushed the accused No.10 Kishore out, he fell down and sustained a simple injury. Thereafter, the accused No.2 being a member of Legislative Assembly from Jaitaran was informed and as per telephonic talks, the accused No.8 Sunil Vishnoi, Station House Officer, Police Station, Jaitaran (SHO) was directed to register a case and the accused No.4 Dr. B.L.Patel was 5 asked to state a certificate showing simple injury to be a grievous one. The petitioner further pointed out that in relation to the incident in question, a case was registered (FIR No. 220/2005) under Sections 323, 341 and 504 IPC on 21.08.2005 and then, the accused No.4 Dr. B.L.Patel prepared the injury report in the fashion that injury on the head was referred for X-ray examination and then, the said doctor stated such injury on the person of accused No.10 to be a grievous one and dangerous to life and thereby, further an offence under Section 307 IPC was added in the case. The petitioner and his son presented themselves before the Chief Medical & Health Officer, Pali for constitution of Medical Board to examine the injuries on the person of accused No.10; however, the accused No.4 Dr. B.L.Patel got constituted the Medical Board comprising of the accused No.5, 6 and 7 Davendra Kumar, Anil Gehlot and Ramsukh Prajpat and they stated a report while supporting the report as stated by the accused No.4 Dr. B.L.Patel and further stated that the injuries be got examined from the Radiologist. The petitioner further alleged in the complaint that in the aforesaid circumstances, he presented himself before the accused No.3 Prabhu Dayal Sharma, Inspector General of Police, Jodhpur Range and asked for justice but the accused No.3, who, according to the petitioner, was already involved in the conspiracy, directed very next day filing of challan for 6 the offence under Section 307 IPC. The petitioner stated that because of such conspiracy, he was detained on 29.10.2005 and then was sent to judicial custody and was ultimately released on bail only by the order passed by this Court on 11.11.2005; that his son was arrested on 28.11.2005 and then, this Court directed constitution of Medical Board by the order dated 06.01.2006 and only when such a Board was constituted it was found that there was no bony injury on the person of the accused No.10; and that on the basis of such report, bail application of his son was accepted on 20.01.2006. The petitioner pointed out, thus, that he was detained for 14 days and his son was detained for 1 month and 24 days and that caused damage to their prestige. The petitioner, therefore, prayed for the proceedings against the accused under Section 3 (2) (i) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 195, 196, 197, 198, 342 and 344 read with Section 120-B IPC. The complaint aforesaid was filed before the Magistrate on 06.03.2006 and the learned Magistrate, by the order dated 10.03.2006, proceeded to forward the complaint to the concerned police officer for investigation. The matter thereafter took rather strange a turn inasmuch as the Station House Officer, Police Station, Jaitaran, instead of registering the case as per the order dated 10.03.2006, moved an application before the Magistrate with 7 the submissions that the matter as involved in FIR No.220/2005 was sub judice and the allegations as made in the present case by the complainant were essentially those related to the things forming part of evidence in the said case file of FIR No.220/2005. The SHO also submitted that the allegation as made in the complaint were rather cryptic and in any case, the allegations on the correctness or otherwise of the evidence relating to FIR No.220/2005 would be decided only during trial of the case initiated on the said FIR. Taking exception to the application so moved by the SHO, the petitioner came up before this Court in S.B.Civil Contempt Petition No.13/2006 with the submissions that such a motion by the SHO was uncalled for and it was submitted that on no ground,the SHO could have refused to register the FIR and could have refused to investigate into the matter. The petitioner claimed that the SHO has committed contempt of the subordinate Court by refusing to obey the Court's order. The said contempt petition was disposed of by this Court on 08.05.2006 (Annex.4). This Court noticed the fact that the Magistrate was yet to consider the application moved by the SHO and observed that mere moving of application by the SHO for reconsideration of the matter could not be said to be a willful disobedience of the Court's order. This Court further observed that even if the concerned SHO was wrong in his opinion in moving the application before the concerned 8 Court for recalling of the order, the same would not amount to disobedience of the Court's order. This Court, accordingly, rejected the contempt petition with the observations that the concerned Court should decide the application of the SHO expeditiously. Thereafter, the learned Magistrate proceeded to reject the application moved by the SHO by his order dated 19.07.2006 (Annex.5). The learned Magistrate observed that the order made under Section 156(3) Cr.P.C. was required to be complied with and there was no occasion to review the order already made; and found the application as moved by the SHO to be totally without substance. However, the order so passed by the Additional Chief Judicial Magistrate, Jaitaran on 19.07.2006 (Annex.5) was taken in revision by the State through Station House Officer, Jaitaran that came to be decided by the Additional Sessions Judge (Fast Track) No.1, Pali Headquarter Jaitaran on 10.11.2006 (Annex.9). The learned revisional Court referred to the facts and circumstances of the case and formed the opinion that the matter was essentially required to be tried and enquired into on the charge-sheet filed in relation to FIR No.220/2005 and therein, if the Court would come to the conclusion that any proceedings were requisite in relation to any evidence, necessary proceedings could be adopted per Section 195(1) (b) (i) Cr.P.C. and the complainant could also 9 move the application under Section 340 Cr.P.C. The learned revisional Court observed that on the basis of material available on record, no case for taking cognizance was made out and, therefore, proceeded to set aside the aforesaid orders dated 10.03.2006 and 19.07.2006 as passed by the Magistrate but with the observations that the complainant would be free to take up the proceedings after decision of the case instituted on the said FIR No.220/2005. Aggrieved by the said order dated 10.11.2006, the petitioner filed a criminal revision to this Court, being S.B. Criminal Revision No.1145/2006, on 28.11.2006. The petitioner also moved an application in this writ petition for its consideration alongwith the said revision petition and such an application was allowed on 07.02.2007. However, the said S.B. Criminal Revision Petition No.1145/2006 came to be decided and allowed by this Court on 31.05.2007 while this writ petition remained pending. In the order dated 31.05.2007, while allowing the revision petition as filed by the petitioner, this Court found the order dated 10.11.2006 as passed by the Additional Sessions Judge (Fast Track) No.1, Pali Headquarter Jaitaran to be not in accord with law. This Court was of opinion that once the Magistrate had passed the order under Section 156 (3) Cr.P.C., the State had no locus standi to adjudicate upon the same or to seek its review. This Court was also of opinion 10 that the SHO had no locus standi to file a revision petition in relation to the order in question and rather, it was required of the SHO to comply with the order passed under Section 156 (3) Cr.P.C. and he had only one option, that is, to register the case. This Court held that formation of opinion by the Magistrate could not be questioned by the police and, if for any reason, it would reach the conclusion in disagreement, that could be expressed only under Section 173 (1) Cr.P.C. after registering the case. This Court was also of the opinion that any attempt on the part of the SHO for review of the order would amount to police interference in the administration of justice. Thus, this Court allowed the revision petition and set aside the order dated 10.11.2006 as passed by the Additional Sessions Judge and restored the orders passed by the learned Magistrate on 19.07.2006 and 10.03.2006. After passing of the aforesaid order dated 31.05.2007, FIR No.163/2007 came to be registered at Police Station, Jaitaran and investigation was handed over to the CID (CB), Jaipur. The Investigating Officer, i.e., Dy. Superintendent of Police, CID (CB), Jaipur sent a notice on 28.06.2007 to the petitioner for producing his evidence but it was reported on the notice that the complainant (the petitioner) had gone out. It is not in dispute that the petitioner did move an application on 02.07.2007 before the Investigating Officer and stated that 11 the matter was pending before the Court for transfer of investigation to some other agency and he would be moving the High Court for stay of police investigation and, therefore, prayed that at least for a month, the matter be kept in abeyance. It is noteworthy that in this writ petition a stay application was indeed moved by the petitioner being S.B.Civil Stay Application No.111/2007 on 10.07.2007 with the prayer that further investigation in FIR No.163/2007 Police Station, Jaitaran (registered on his complaint and in pursuance to the orders aforesaid) be ordered to remain stayed as fair investigation was not expected from the Rajasthan Police. The matter was listed before the Court with reference to the said stay application on 10.09.2007 but was adjourned at the request of learned counsel for the petitioner; and then, it did not reach on 14.09.2007. Thereafter this writ petition was considered by the Court on 04.10.2007 and the petitioner submitted that though criminal case had been registered but then, influential persons like sitting MLA, Ex.MLA, higher officials of Rajasthan Police being involved, bias was likely to prevail and, therefore, the matter would require investigation by some other agency than the Rajasthan Police. Notices were ordered to be issued on 04.10.2007 in this writ petition and the matter remained pending for service. Name of respondent No.2 was 12 ordered to be deleted as requested by the petitioner on 02.01.2008. As noticed, the stay application was moved by the petitioner before this Court but no stay order was passed. Though in the writ petition, notices were ordered to be issued on 04.10.2007 and the matter remained pending for service and even fresh notices were ordered to be issued on 27.11.2007 but then, in the meantime, a final report was submitted before the said Additional Chief Judicial Magistrate, Jaitaran on 22.10.2007. From the records as placed for perusal by learned counsel for the respondents, it is noticed that in the said proceedings, the Magistrate has ordered issuance of notice to the complainant i.e., the present petitioner and the next date fixed in the matter is 30.08.2008. It has, of course, been pointed out that though earlier the challan was filed against the petitioner and his son in the aforesaid FIR No.220/2005 for the offences under Section 341, 323 and 307 IPC but then, the Additional Sessions Judge (Fast Track) No.1 Pali Headquarter Jaitaran by his order dated 20.08.2007 proceeded to discharge the petitioner and his son for the offences under Section 307 and 307/34 IPC particularly with the finding that the Medical Board constituted pursuant to the orders passed by this Court in its report found that all the injuries on the person of the said injured Kishore (accused No.10 in the petitioner's complaint) were 13 simple in nature and no case under Section 307 IPC was made out. The learned Additional Sessions Judge has, of course, found that there was material available on record to charge the accused persons in the said case (i.e., the petitioner and his son) for the offences under Section 341 and 323/34 IPC. It is also not in dispute that the order so passed by the Additional Sessions Judge on 20.08.2007 was attempted to be challenged in revision petition No.977/2007 and 1310/2007 respectively filed by the said injured Kishore Kumar and by the State and the said petitions were rejected while this Court again found with reference to the report of the Medical Board that when the opinion had categorically been that ''no evidence of bony injury is seen'', the learned Additional Sessions Judge did not commit any error in discharging the petitioner and his son from the charges under Section 307 and 307/34 IPC. Learned counsel for the petitioner has assailed the entire of the proceedings as adopted by the investigating agency in this matter and, with reference to the background aforesaid, asserted that right from beginning, the intention of the respondents had been to shield the accused and looking to the fact that accused persons are Ex-MLA, sitting MLA presently holding the office of a Minister in the Government, Inspector General of Police and the Medical Officers, fair investigation could never be expected from the Rajasthan 14 Police. Learned counsel submitted that the manner in which the entire matter was earlier sought to be avoided and then was sought to be hushed up by completing the investigation in only about 4 ½ months, it is clear that the intention on the part of the respondents has been to shield and protect the accused. Learned counsel particularly referred to the observations as made by this Court in the order dated 31.05.2007 on the conduct of the respondents and submitted that the entire so-called investigation was a farce and the complaint of the petitioner has been sought to be brushed aside in a wholly illegal manner. It has also been contended that when the petitioner had moved an application to the Investigating Officer to refrain from proceeding further in the matter, there was no justification for him to have concluded the investigation in a hurry. Learned counsel further pointed out that Investigating Officer has gone to the extent of carrying out investigation from the accused persons and on that basis formed its opinion though such a procedure was entirely impermissible in law. Learned counsel made a fervent appeal for consideration of the matter from the point of view that the petitioner has a complaint against the high-ups who have direct control over the Investigating Officers of Rajasthan Police, and looking to the gravity of the matter and the background facts, it is entirely necessary that investigation of the present case is handed over to the Central Bureau of 15 Investigation. Learned counsel has referred to and relied upon the decisions of the Hon'ble Supreme Court in the case of Kashmeri Devi Vs. Delhi Administration and another: AIR 1988 SC 1323 and Ramesh Kumari Vs. State (N.C.T. Of Delhi) and others: AIR 2006 SC 1322 Learned counsel for the respondents submitted in the first place that with filing of final report, no cause survives for the petitioner to agitate in this writ petition. Learned counsel further submitted that the petitioner could very well state his protest before the learned Magistrate by filing a proper protest petition and any grievance regarding investigation could definitely be placed before the Magistrate concerned. Learned counsel submitted that the Magistrate has every authority to consider correctness or validity of the investigation and could even order re-investigation and could issue such further orders as necessary and, therefore, it cannot be said that the petitioner has no remedy available in law. Learned counsel further contended that the allegations as attempted to be made by the petitioner in this writ petition are directed against the persons named as accused in the complaint filed by him but those accused persons have not been joined as parties to this writ petition and, therefore, no effective relief could be granted in the writ petition at the instance of the petitioner. Learned counsel submitted that the decisions relied upon by learned counsel for the petitioner would have 16 no application fundamentally for the reason that they proceed on their own facts and they relate to the matters examined in criminal side jurisdiction by the Hon'ble Supreme Court and not in the writ jurisdiction. Leaned counsel referred to and relied upon the decisions of the Hon'ble Supreme Court in the cases of Sakiri Vasu Vs. State of Uttar Pradesh & others: 2008 Cr.L.R. (SC) 62, Rajinder Singh Katoch Vs. Chandigarh Administration & others: 2008 CRI.L.J. 356, M.C.Mehta Vs. Union of India and others: 2008 CRI.L.J. 360, Shashikant Vs. Central Bureau of Investigation & others: AIR 2007 SC 351 and Divine Retreat Centre Vs. State of Kerala and others: AIR 2008 SC 1614. Having given a thoughtful consideration to the entire matter and having examined the material as placed on record and as placed for perusal during the course of submissions, this Court is clearly of opinion that the petitioner is not entitled to the reliefs as claimed. The entire of the submissions on behalf of the petitioner proceed on the assumption that because in the complaint in question, an Ex-MLA, a sitting MLA holding a Minister's office in the Government, and Inspector General of Police are the co-accused, Rajasthan Police cannot be trusted with fair investigation and, therefore, necessarily, the investigation is required to be conducted by CBI. This Court is clearly of opinion that it has not been laid down as an 17 invariable rule that for Ex-MLA, present MLA, Minister, or Inspector General of Police being named as accused, the investigation has to be conducted by CBI only. Evey case is required to be examined on its own facts and having regard to the fact situation of the present case and the surrounding circumstances, this Court is unable to find any cogent basis to conclude that the Investigating Officer would not have fairly conducted the investigation. Even the reference to the fact that the Investigating Officer chose to enquire from the accused themselves and the reference to the past events where attempts were made on behalf of the SHO of concerned Police Station to avoid investigation after the matter was referred under Section 156 (3) Cr.P.C. and taking up litigation instead, do not, when viewed in the light of surrounding circumstances, lead to a position that for such facts alone, an exceptional case for transferring the investigation is made out. The fact situation of this case makes it absolutely clear that while the petitioner and his son are accused in the criminal case registered on FIR No.220/2005, the allegation of the petitioner is that the persons named as accused in his complaint either created false evidence to enhance the gravity of charges against him and his son or acted in