IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.555 of 2007 HARKHIT KAMAT Versus THE STATE OF BIHAR & ORS With CR. WJC No.103 of 2008 BRAJ KISHORE BHANDARI Versus STATE OF BIHAR & ORS 6 10.9.2008 Heard counsel for the petitioner and the State as well as learned counsel appearing on behalf of Respondent no.8 of Cr.W.J.C.No.555 of 2007, who is also petitioner in Cr.W.J.C.No.103 of 2008. As the both the cases arise out of the same offence, as such they are being heard together and are being disposed of by this common order. The petitioner in Cr.W.J.C.No.555 of 2007, is the informant of Arer (Benipatti) P.S. Case No. 88 of 2003 registered under sections 302, and other allied sections of the Penal Code. The petitioner in Cr.W.J.C.No.103 of 2008. who is respondent no.8 in Cr.W.J.C.No.555 of 2007, is own brother of the informant of Benipatti P.S.Case No.87 of 2003, which was lodged in connection with murder of his another browner Nawal Kishore Bhandari in the morning at 6 A.M. on 2.5.2003. The case of the petitioner in Cr.W.J.C.No.555 of 2007 is to the effect that respondent no.8 along with his family members and others killed two persons on their side. The police has submitted charge sheet on 1.10.2007 and cognizance has also been taken against the accused persons. It is his further case that the though - 2 - Superintendent of Police, Madhubani has directed for arrest of the accused persons and subsequently warrant has also been issued by the court for their arrest, still the respondent police personnel are not arresting them. It is submitted that processes under sections 82 and 83 Cr.P.C. has also been issued. Further more some of the accused persons in the case are also involved in another case between the parties. It is submitted that in such situation the I.G. Police, Darbhanga Zone ought not to have stayed the direction issued by the Superintendent of Police, Madhubani for arresting the accused person. In other words, learned counsel submits that by staying the direction of the Superintendent of Police, Madhubani to arrest the accused persons, the I.G. Police, Darbhanga Zone has circumspected the warrant and other processes issued by the court. Learned counsel for respondent no.8 in Cr.W.J.C.No.555 of 2007 and petitioner in Cr.W.J.C.No.103 of 2008 submits that the F.I.R. lodged by the petitioner does not disclose the true occurrence. He submits that the petitioner of Cr.W.J.C.No.555 of 2007 and others killed his brother Nawal Kishore Bhandari in the morning of 2.5.2003, for which another brother of his, namely Keshav Narayan Bhandari lodged Benipatti P.S.Case No.87 of 2003, under section 302 and other allied sections of the Penal Code. He submits that respondent no.8 is a respectful person and also head of department of Philosophy in one of the constituent colleges of L.N.Mishra University. In the aforesaid F.I.R. it is alleged that the accused persons namely petitioner in Cr.W.J.C.No.555 of 2007 and others killed his - 3 - brother and when the villagers chased them, then the aforesaid persons themselves killed two of their family members. He further submits that in order to save themselves the petitioner Harkhit Kamat lodged a false case implicating respondents 8 and others in Benipatti P.S.Case No. 88 of 2003. He further submits that Bettipatti P.S.Case No.88 of 2003 was duly supervised by the S.D.P.O. Benipatti and his submitted his report dated 9.6.2003 contained in Annexure-B to his counter affidavit. In the aforesaid report, the S.D.P.O. stated that the deceased Nawal Kishore Bhandari and some unknown villagers are responsible for killing of the family members of Harkhit Kamat in Benipatti P.S.Case No.88 of 2003, and did not find the involvement of respondent no.8 and his other family members in the case. Learned counsel for respondent no.8 submits that the Superintendent of Police, Madhubani without making spot verification as required under Rule 49 of the Bihar Police Manual submitted vague report stating that the deceased Nawal Kishore Bhandari and some unknown villagers are responsible for killing the persons named in Benipatti P.S. Case No.88 of 2003. He submits that the Superintendent of Police, Madhubani issued a direction for arrest of the accused persons, including respondent no.8 and others. He further submits that the I.G., Darbhanga Zone, himself made detailed supervision of the occurrence and in view of the materials coming before him, issued direction for further investigation of the case under section 173(8) Cr.P.C. He found that the supervision made by the Superintendent of Police is deficient and not in terms of Rule 49 of the Bihar Police - 4 - Manual and as such stayed the order of the Superintendent of Police directing the arrest of respondent no.8. It is further case of respondent no.8 that superior police officials are also competent to give direction for further investigation under section 173(8) Cr.P.C. The Investigating Officer of the case is obliged to make further investigation pursuant to such order of superior police officials. Relying upon decisions of this court in the case of Neel Kamal Singh Vs State of Bihar, 2004(4) P.L.J.R.723 and in the case of Gupteshwar Prasad Vs State of Bihar, 2004(2) P.L.J.R.428 he submits that submission of charge sheet or even taking of cognizance will not be a bar for taking up further investigation under section 173(8) Cr.P.C. He further relies upon a decision of the Hon’ble Apex Court in the case of Hasanbhai Valibhai Qureshi Vs State of Gujrat & Ors, 2004(3) P.L.J.R.(SC) 287. So far as right of police to make further investigation under section 173(8) Cr.P.C. is concerned, there cannot be any denial of the same. Even after submission of charge sheet or even after taking of cognizance the Investigating Officer would be in his right to make further investigation in terms of section 173(8) Cr.P.C. The Investigating Officer is also obliged to make further investigation if there is direction of superior police official in terms of Rule 49 of the Bihar Police Manual. In case further report is submitted pursuant to the investigation under section 173(8) Cr.P.C. the learned court in seisin of the case will proceed in terms of the directions made in the case of - 5 - Ram Lal Narang Vs State (Delhi Admn.), 1979 SC 1791. Now coming back to the case of the petitioner his main grievance is that in spite of submission of charge sheet and issuance of warrant of arrest and processes, the respondent police officials are not arresting the accused persons. It is submitted that once warrant of arrest and process of proclamation and attachment are issued under sections 82 and 83 Cr.P.C., no police officer or executive authority can directly or indirectly pass an order circumspecting the effect of such order. This court finds that the I.G.Police Darbhanga Zone has passed an order staying the order of the Superintendent of Police, Madhubani whereby latter has issued direction for arrest of accused persons. This court is of the view that though the direction issued by the I.G. Police may not have intended to stifle the effect of order of the Magistrate issuing warrant of arrest, but in reality it does circumspect such order of the Magistrate. Though I.G.Police, Darbhanga Zone stayed the order of the Superintendent of Police, Madhubani in respect of arrest of accused persons accrues to be, may be unknowingly, in teeth of the order of court, passed in terms of sections 73, 82 and 83 of Cr. P.C. which is not permissible in law. If the Police subsequently finds that the warrant if so obtained was not based on proper materials or subsequent materials coming to the fore point towards innocence of accused the appropriate course would have been to file an appropriate application before the Magistrate or court in seisin of the case. As long as the warrant or the - 6 - KHAN processes issued by the Magistrate under sections 82 and 83 Cr.P.C. remains in operation the same cannot be circumvented by any direct or indirect order of an Executive or Administrative authority. In this respect, learned counsel for the petitioner has rightly relied upon a decision in the case of Lakshmi Shankar Prasad Vs State of Bihar & Ors, reported in 1999(3) P.L.J.R. 654. The Police officials must ensure execution of warrant against accused persons and take steps for apprehending them. However, it would be open to the Police Officials to make further investigation in terms of section 173(8) Cr.P.C. as directed by the I.G.Police, Darbhanga Zone. It is made clear that as the charge sheet has already been submitted and cognizance has already been taken in the case, it is desirable that further investigation in the case be completed expeditiously preferably within a period of two months from the date of receipt/production of a copy of this order, and forward the report to the court concerned in seisin of the matter. With the aforesaid observations and direction, both the writ petitions stand disposed of. (S.P.Singh,J)