c^ IN THE HIGH COURT OF JUNCATURE AT BILASPUR WRIT PETITION N0. •t76_2> /2002 PETmONER Sonalal Soni, S/oLateShri KishanLal Soni, aged 58 years, Oceupation- Photographer, R/o Mahamaya Ward, Mungsli. _ -VERSUS- RESPONDENTS t V. ''^3l^"..5f .•••?y .••**11 .<^¥?-<" ^•'^c^^^<"' 2. 3. 11>C State ofChhattiggarh through Secretary ofHome, D.K.S. Bliavan, Raipur. Director General ofPoliee, Chhattisgarh, Raipur. Inspector General ofPolics, Bilaspur Range, Bilaspur. Superintendsnt ofPoliee, - Biiaspur. Station House Officer, Polics Station Mungeli, District Bilaspur. WRIT UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA 10R ISSUANCE Q? A SUITABLE WMT. ORDERS OR DIRECTION. ?^ 1. y"^^^ ^€^^ '•/'..'ff -^" 'y. ¥. ''6. j lii*«sfi Mftgt» %»ttW»Aged atoaut ^ ysara, am •f Shrt Kahencea Stagfa, fsicient a< K«iulegupa» Muaseli» dstt. Bllaspua {Ghhat't488a3cb)< /!Bil •Itas ASRU, ag®<tabeut 2§years san •f Shsei Ki.s&ar* Tantwl,&» restatent et ta frmat 9t Simyday«»iEaiawan, Mw*sell» IXstt. Bltaqpur (G.6.) Vistett rrasael H«y«,ag<d abeut 38 yea$s s®•< Sh»i Sugsaev Nayee, resicieot a{ BaiicBbhatha, MtngeXi, filstt. ailaspur (Chha-tttsgarii). ^ Sl.NB* 6 t«8 a»«fft psesent An jadiGtid euato^r at pXcentTal Jail, OtasptiUf. p':.' ft-f :^ '•^Jllie re^Bndent No. 6 t»e ar»psspss parties, as ^' 1 they are ebarsad fax •ftanca ptaBishable Ste-ttan ^ ) 302/34 af 2?®femce they are Ifflpltadect a» ?',- Bespeindent?, tfaiug^ ns raUof i? s»ught •galnst <; ^ ' than. KS o^ v BIOH COOTiT OF JUDIGATOTiB AT Bn.^UtPOR. aHHATTISSARH flDinsion BBMCHI Bl. SMtJPeUUon »o.1763 pf 3002 SoiialalSom - Versus - State of Chhattisgarh and others B s^ lBtf;:|^ BB RiiEl' ttSKi Bit llit IN!. 3'i: :'. Es£ .'.i ^. •' 111 !W1 •I !Ml!n'.i ORDBR FOR COWmDBRATION —r^ Sd/- HOBF'BLB 8HRI JUSTICB V.K. SmOVJUSTAVA Sd//- V.K.Shrivastava Judge P08T FaRORDtat Oir l8TH MARCW 3005 Sd/- L.C. Bhadoo judge •l-... •'•^s —» ..•'.;.i>~»—l HIGHGOXJRT OF JTODICATUSE AT BI&ASPUR. CHHATTI8SAKB TO-it Petitton So.1763 of 2002 Sunalal Soni - Versus - StateofCUha.ttisgarh aud others Present:- Mr. P.K.C. TKwari, Sr. Advocate with Mr. Sudhir Verma,Advocate: Mr, P.K Venna, Addl. Advocate Mr. KA. Aasari, Sr. Adwocate wifh Mr. N.P. Kela, Adwocate: For fhe peUtioner. For respondents No. Ito 5. For respondents No.6 to 8. DIVI8IOH BEBCB*; - HOBT'BLE SHRI L.C. ^^IADOO AHD HOrmA SHMV.K.EKHM'VAS'MWA. A». ORDBR (Passed ou 18th March, 20051 ThefoUowuW order ofthe Courtwas ddmered bv £.C. Ehadoo. J:- 1. The pedtioner has preferred this writ petition under Article 226/227 of thc Constitution of India being dissatisfied & a^riewed by unfair Mivest^ation conducted by respondent No.5 ia Criatc No.87/3002 reglstered at Pollce Station Muagdl in respect of luarder ofhis son nanidy Soniesh Kiuuar Soni. 2. Brieffacts leading to fiting offhis writ pedticai are that the petiticuer aad his soa Soxaesh Soru were eagaged ia. the busiaess af video shootii^ and photography. They were runait^; tbe shop at Mui^ieli. The pedtioner's son was also dmag tbe business of nuuring taxi. On 9.3.2002 main accused /ychilesh Sir^jh Thakur eagaged the taxi of Somesh Soni foz the purpose of Uis niarriage and he also cng^ed SoniesU Soni for photography & videography. Ori ttot day in between 12.00 Noon and 1.00 p.m. when Somesh Kiunar Soai •demanded taoney for purdiasc of diesel &r his taxi frMa accused Akhttesh Singh Thakur, that aanoyed AKhilesh Singh and at fhat very monient, he took gun fircan his companicai and flred a staot on 1111 |l ]1 Pflige ^ of 13 .); the head of Soniesh Soni, as a result of vrbsph Romcsih Sani tfiedjaL the spot. Report of the uicideat was lo^ed t^a^^g'sassf^gjwe at the PoUce Station Muxigdi. The poUce after registeriaag the case under Crixue No.87/2002 took up the iavest^ation, aad afta- campletipn of mvestigation filed charge sbeet on 10.6.2002 against Aldulesh Singh, Anfl alias Annu aad Wshnu Prsaad Nai for cotiunission of offeace punishable under Secsdan ®)3read with Section 34 ofthe I.P.C. 3. The case Of the petitioner^is that after ]s3Siny of his son, AkhUesh Sit^i aad his associates, who were preseat on the spat, with a view to suppress the ewldence created anarchy on the spot aad competted fhe shopkeepers of the shops sltuated around the place ofincufent, to close the ahops and to ran away. The pedtioner's further caseis fhat at the time of iacideat Somesh Soiai was covering the said ceremony fhrough his video caiuera, wliereas one of his associates was covering same through still photography and in the •<Adeo shooting the iacident has beea recorded up to stagewhea Aldifleafa Singh took Uie 12 bwe gun and fired at Suinesh Spni. This mformation was given to the tovcstigatmg Qffieer, he coUectcd fhe videocassettealso but did ntit prepared the Panchaana for thesaine and same has not been tendered into ewidence in the trial court duru^ the proceedmgs. The pedtioner's further case is that in connection with 14 other cases r^istered agaiast Som^couunuiaty relating to fhe iacident happeacd atter tfae murdcr of Samesh 8om., the statements of the witnesses were recordcd. Alth<n.igh_thsse persons were eyewitnesses to the incident of inurder of Suxnesh Sonl, but their statements have npt beea recorded ia Criai« No.87/02 relattt^ to fhe murder of Sflmesh Soai. Theareafter, the poUce instead of coIIectiB^ the cogeat evldence started faarasslr^; the family niembers of the peUtioner by rqpistering case againstjbtan, which aUeged to have been taken place after fhe murder of Sum&h Sonl. The. petitioner sent various letters (Anne?nu-e P-3) to the respondeats'^uthoritics for not coaducting fair jnvestigation of the murder of Saaiesh Soni, and fnr not coDecte^; eatire euideaice . avaBable ia cottncction with the xaurder of SHitie&h Soal. Tberefore, it has beea prayed that aitire record be called for aad it be directed - fhat mvest^ation may be handed avex to an uidependent agency ^^:^^: :^ Ukc CID or CBI or In the altematjve thc police nay bedirerted to collect the eatjre-euideace available on the record'toconnectionwith fhe murder of SSinesh Soni. L -1. 4. Retum has been ffled on behalf of the State in which it has been meationed that it is mcorrect to say that fau- investigation faas iiot beea conducted ia the matter aad it has also beea dealed that witaesses to the iaeident havis aot been examiued. It has further been meationed in the retum that videocassette in question has been taken into possession ^nd same has been ffled aloag wifh the charge sheet befiM'e fhe trial court. 5. Rejoinder to the petitiMi has toeen filcd on toAaIf of the petitioaer In which it has beea meationed that it is evideut from fhe statements of Saadeq) Paadey & Hemant Oajpal, which was recorded in Grimc No.88/02 registered at P.S. Mut^ieli, tfiat fhey were ttie eyewitnesses to fhe mcideat, but eveu thea their statements were not recorded ia Crune Wo.87/2002. Apart from that fiwe ether persons namely Nflesh Snni, Yuwaj SwandEar, RaiasfaanlEar Rathore, Sunil Rafhore & Manoj Rathdre were also eyewltacsses to the iucideat but poUce has not recordcd tlieir statements. Affidavits of these persons statmg fhat they were tfae cyewitnesses of the incideat are Annexures P-5 to P-9. ti^ 6. I have heard Bffr. P.K.C. Tiwari.Sr. Adwcatc^ith Mr.Sudhir Venaa, Advocate for the petltioner; Mr. P.K. Verma, .Addittoaal Advocate Oeueral for the State/respondeuts No.l to 5; and Bfe. KA. AiKari, Sr. Advocatewifh Mr.N.P. Kda, Advocate for respoadeats No.6 to 8. 7. Leamed counsel for the petitiouer argued that the jxnBestigatii^g officer had not recorded the evideuce ofabove 07 persons in spite of request made by these persons, it is evident from Qw video reeording that sonie of the perswis, wto were Che eyewitnesses to fhe iucident and appessed in the video cassett^ also, evea thetr statements were not recordcd by fii®prosecution, therefore, a fair and impartial iavestigation was not eonducted by fhe mvesMgatiag agency. In fhe circuaistances, fhe Court should direct thc iaVratigating ^ency to conduct the inwestigatiwi from .these -t 1-ijir'ii :)aji!-tt:T1';' -\\ Pdje 4 of t5 witnesses and to includc fheaa in the Ust of witnessea, as they havc not beea examined and inchided ia the Ust ofwlta&ses. K (r- » » 8. On fhe ofher band.Ieamed Addltlonal Adwocate General fer tte State argued fhat It 1s not correct to say fhat the edAdence of the eyewltaesses were not recorded and so far as fh.c witnesses naiady Nflesh Soni, Yuvraj SwaNikar, Ranishaakar Rafhore, Siuul Rathore & Mancg Rafhore are conccmed, last three wltnesses are resideuts of Cham.pa, there was no occasion for fbsaa. to be raaaia present on fhe spot. These fiwe 'pasous hawe never approached fhe uivestigating officer far recordmg of fhdr euideace. As far as Sandeep Paadcy & Hemant Oajpal are conca'ned, even fliough ftere is rcference in fhieir statements recorded uader Section 161 of Cr.P.C. m CrimeNo.88/02 that they were present in tfae ThAur Complex ia a couiputer oeater situated near the place of incideat and they hawe fiu-ther stated that after exchange of soaa.e wards between Siunesh Soiri & AkhB.esh Siagh Thakur, SuntCTh Soai dled oa account of bullet injuxy .fired by Alddlesli Sixi^i, but readirig of fhese statements do not make it dear that fhey were eyewitaesses to the iacideat. Moreovca-, they have ffled fhe affidavlts pn 5.1.3003, whereas the iacident took place on 9.3.2002, thaefore, the fiUng of afBdavit after such along gap makestheir presence doubtfaL •?-< 9. Ur. KA, Aasari, leamed Sr. Coiinsel for rcspondaits No.6 to 8 argued fhat there »nothn^ on record whidi shows ibaL dfher ti»e petitioner or the witaesses aiade represeatatinn 01 approached the luvestigatmg Officer disclosu^ that ihsy werc eyewltBesses of fhe incident and thdr statements should be recorded. He terfher subauts that this writ pefcltion has been filed oiily to dday flie trial, as evidence of aU the witaesses have already bcen isswded but on account of stay granted by fhis Court fhe trial is iK»tproccedmg. i?^![l!t"r-na^ lO.However Mr. P.K. Verma, leamed Addltlonal AdwBcate Qeaeral aad Mr. KA. Ansari, leamed Senior Advocatc subnutted that so far as the recording of statanent of Saudeep Paudey & Hem.ant Oajpal is concemed, fhey have no objection if fhc iavesygation is ooitductSd _ froin these persons r^ardtr^; thdr wltnessmg tb.e inurdCT of SomeshSoni by accused persons. r ^s ") Pnge5ofl5 Ijlllllil'i ll.Hawxtg heard leamed counsd for the parties, we'-ti.avB perused the entire record. At this stage it wouldbe profitable ifwe bavea glaacc over the rdevaat prcwisions of fhe Code of Cruainal Rrocedure, 1973, which deals wlth the power ofiavcstigation of Police, aad also to have look nato the law as laid down by fhe Hon'ble Apex Court. Section 2 (h) of Cr.P.C. deGnes that "tnyestigatian" mdudes aU the proceedmgs iinder this Code for the coUectioa ofeuidaice eonducted by a police ofBcer or by any person who is aufhorized by a Maglstrate in this behaU^ Section 161 of Cr.P.C. faUs under Chapter-XH, whlch deals with the mfanaation to the police and their powers to iavestigate. This Section envisages tfaat competait police officer ruay exaniine oratty any person supposed to be acquaiated wifh the facts and cn''cuinstances of flie case, whereas sub-section (3) of Section 161 ofCr.P.C. envlsages fhat "ojfflcer inay recbwe in writing any statement made to himtttthe ccwrse ofan exansna^on tatder ttas section; and if he does so, he shaB mafce a sepanite cOTd true recordoffhe statemenf ofeachsuehpersatwhose statement he records'. Therefore, a sfatement by a witness t6 ttie police ofBcer during uivest^iatioiLmay be reduced Idto writu^!. However, it is not obUgatory on fhe part of the poUce oScer to record any statemeirt m.ade to bim. He m.ay do so if he feds it necessEay. What is eujoined by fhe Sectton is a trufhful disclosure liy ftK pcrson who is examlned. Section 173 (8) ofCr.P.C. whlch fdls uader Chapter-XH envisages fhat "nothing in thfe secfion ShaU foe deemed to pfectuele flvther uwe^igatwri in re^pect ofmi ojgfence afler a repoft vndBr sub- aectum. (2) has been fonparded to the Afagistntte and, whereupon such uwe^gatwn, fhe officer wt <dwirge0f the pa w ataSion obtcwis ftattier evidence, ored or documentaiy, he ^wtU forward to the Magiatfate ajiwther repori. or reports regariSng sudtevidenoe infhe form preacribed; ccnd the pmuiaons of sub-aectwns (2) to (6) shcS, as fiir as foay be, a/y/ly in relatwn to such refiort w reports as they apply in reWion to a report Jbrwarded under sub-sectian. (2)." Therefore, sub-section (8) of Sectton 173 of Cr.P.C. jM"cs«a-Ibes that fh.e police ofBcer is not precluded from. coadudiag fiuther - investigation in respect of an ofifeuce eveu after the rqiort under sub-section (2) has beea forwarded to the M^isteate afker com,pletion of the eadence. As such, eveu rfter fillt% tfae diarge ^^E^^'^^^ MCatawuMmiaua n: Page6;oflS sheet under the above provisions the police can furthca- investigate iato the inatter, Jh this connection ffae Hon'ble Apex Court in the matter of State of fiarrana V«. Bhalaalal reported m ABg_|^4; Supreme Court 604 ia pazaycapb. No.62 obserwed that: ".., investigation of aa offeBce is the fidd cxclusiwdy rescrvcd for the poUce officers whose powers iu that fidd are unfettered so loug as the power to mvesti^te into the cogmzable offeaces is l^itimately exerdsed in strict compUance with fhe pr<nttsiotrii faltu^ uuder Chaptcr XII of the Code" and the Courts arc not justified in obUteratmg the track of investigatioa when the iuvestigatiaig ag^icies are well within fheir l^al bounds as afor&-m.enti(»ied. Indeed, a noticeable feature of fhe scheane i.iader Ghapter XIVoftheCode is that a Magistrate is kept in the picture at all st^es of fhe police invcstigatioa but he is not auliiarfced to interfere with the actual mvestigatioia or to direct ttie police how that iavest^ation is to be conducted. "BtA ifa poKce ofScer tfVtnswesaesthe dnswnscribed_Sumts and wwmveilu cmd iUeoaflu eaeensises WLS bmestiaalWu eowefs m. brecwh of gfw stafutow prowaon causuig seriovs otieiwSce to itse Dersatiat libertu and eSso propertu of a ctfizen, Wen fhe Ccmrt on beaui appnxtched bu the oersmt a.esrieved'Kir the redress of atw anetMuwe has fo consicfer fhe nafure aruSextent of fhe btea.ch and oass aiwroDtiate srders_as_nwai t» coutted for withovt leavww the (^zawtQ tfeeJngrcu of rwKce ecftetons since hvman d'an&w is a dear uetbie_Qf our Ccwistifution. jNeals no anphasis tfaatno orie can demand absolute munuiuty ewsa ifhe ia wrong and claun unquestionable right aad uiiliinlted powers exercisable up to uufiathomable cosmos. Any recogmtiaa ofpowerwiUbe taitamouat to recognition of^TOvme Power' wliich no authontsr oa earfh caa enjoy." l2.In the matter ofOm Prakfwli IIantne aad anothT 'VJB. State ©ellil Adtnn,^ reported in AIR 1979 Siyreme Gourt 1791 the Hon'ble Apex Court has hdd that "jwtheruwe^igtOwn is not altogether mted ovt nserely becauae coyussance heis been taken by the Gourt. Wten Sefac^ve mvestigatwn comesto fhe Ucftit during the oaurae oftrial & may be cwed byjurOier»we^.gatiaFt,if<drcuMstaneessopermttted It woidd ordinarily be desirable aadinore so, In thls case that pdice should inform the court aad seek fonaal pennission to make furttier uivestigation whea fresh facts come to light instead ofbdng dlent over fhe matter keeping in vien? onlyfhe need for an early triat riace an effecthre trial for real and actual offences found diM-ing course of proper iuvestigation is as much relevant, desuable aad necessary as PageT'oftS II £1 fili ilp an expedltious disposal of the inatter by fhe Coiirts and if there is necessity for further niiviestfgation the same certaaaly be doae as prescribed by law. The inere fact that there niaybefurfher delay.in concluding fhe trial should not staad on fhe way of fttrther iovestigation if fhat would hdp thecourt in arriving at fhe thifh aad do real and substantial as weB as eSfective justioe.' In the matter <sf Ha«aabhai Valibhal Oureahi VB. State of &ularot and othen reported in 2004 AIR SCW 2063 whfle interpretmg sub-section (8) of Section 173 of Cr.P.C. the Hon'ble Apex Court hdd thA "Sub- section (8) o/Sectton 173''ofthe Code pemuts ftather irwestigatmn, and even dehors any ctifection from the CSourt as such, it is open to the poVce to conduct pfoper itwes^igatian, even afler the Covft toofc coyiissanee ofany qgfence on the stren^h of a poliee report eaiUer ^' submitted. ; 13.111erefore, iu viewr of the provisions of sub-seotioa (8) of Section 173 of Cr.P.C. aad law laid down by the Hon'ble Apex Court in the above inatters, it is dear that evea after filing (rf charge sheet aad taldt^ coguizance of aa offence by the Magistratc the pollce 1s aot preduded from conducting further iavestigation provided where it has been foiuid that investigation was defectxve and fi-edte fects coiae to fhe Ught, and some iaiportaat aspects have beea left out, wtuch were not noticed at the time of nivestigation or the uivestigation officer has not conducted fhe in»est^ati<m ia a fair manaer or deUberati^ or by mistake or juiowit^ly has left outto coUect the material evideace iu fhe niatter wbich is naportant and relevaat wlth tfae concemed cume. 14.In view of above legal position and law laid dowa by the Hon'lde Apex Court, if fhis Court reaches to the CMiclusioa that the mvestigating officer has fafled to coUect fhe material eaduice and investigation was not fair aad proper then definitely, Uus Coiut is entitled to mvoke its esdra ordinary jurisdiction under Article 226 <rf fhe Constitution of India, and a direction can be issued for furfha' mvestigation. As has been held by the Hon'ble Apex Court in the matter of Zahira Hablbulla H. Sheikh and anotlier Vs. Stote of Guiarat aad othen reported in 2004 AUl 8CW 2328 w PageS^flS "it wiB. not be correcl to aay that it is ordy the aceused wfto must be fairty dedl with. 'Ihal woidd'-be ttaning Nelaon's eyes to the needs ofihe aixa^y atktrge and thevictltnsorfheirfamilymembeTSWwlrelatives. Bach one has a in&tttU right to fee <feaU with fcdriy in a crimuud tnal. Derwd ofa fair ttwl is as much ayustice fo the accuaedasis to the viotim, eaul the scxsety. Fcdr tridl obvuwsly wotild mean a tiial before anirrypailvd Jitdge, a fair pmsecutor mid atmosphefe of jwSdal catm. Fcdr trial meansa tnal inwhudtlrias orprefwSce far or agcanst the aocused, the wifnesaes, or the cavse forced to yve false evidence Owt ateo woidd nat rsaxiSl inafiurtrial. The failuie ofhears matericil loitrwsses is certaiidy ilemal offsir^ricd" If we look into tbe facts of the preseat case, a bare perusal of fhe statemeats of Sandeep Pandey & Hemant Oajpal record«l under Scction 161 of Cr.P.C. in Crime Wo.88/02 shows fhat they have clearly stated that at the tune of iucadent both were sitting in the saiae complex iu a couiputer center, where the incidentjiappened, and they hame furfher stated that after the laurder of SQitBesh Soni toy accuscd AKhflesh Singti Thakur by a gun diot, the^ faxnity members and other coKUauiu.ty maabers of deceased SaniSh Soai becoiae furious and started creatuag 'HaUa-guUa' and breateing shops. Therefore, fhese persoas were present oa tfae spot. In tfae circumstaaces, fhe itivestigating cfficer ought to have examined them or coaiducted mvestigation_^om fhem about thdr witaessiag the coinmission of miirder of Sd&iesU Soni by Akhflesh' Singh aaid others, At ttus stage, as argued by lcai-ned Additional Advocate Geua'al for fhe State we are not requlred fe metieulously ataaalne the merits and demed,t? of thdr ewdcace, siuaply we hawe to see whether fbiey^'VWS'prea^at on the scene aud if thdr presence is proved then the itnrestigatirig ofBcer was required to conduct itwestigation fram ftiem as per the provisions of Section 161 of Cr.P.C, and ou^it to have made a note in the case diary of the ease, but fhere is nofhing on recwd to show Chat imrestigatlon was conducted froai these witnesses. 15As far as fhe ofher five persons i.c. Hilesh Scail, yuvraj Swamlcar, Ramshankar Rathore, Sunfl Rafhore & Manoj Rathore, who have filed fheir affidawits fhat th^ Wcre present on the Bcatc aad they were not exanuned by thc mvestigatiag officer is coaceraed, CVCB HMSiK.iu •iiiii^ii; BS 1 fi^; y^: aiw ^ Pag? 9 of IS fhough objection has been raised by leamed cpuasd for the accused persons aud leamed Additional AdvDcate General €hat fbey have ffled fhe affidavits after tenmonfhs l.c. on 5.1.2003 aadwhcreas-the incident occiu-red on 9.3.2002, aud fhis petiti&n was filed on 28.8.2002, charge sheet was already flled on 10.6,2002, therefere, they were not the eyewitnesses to the iacidenl^and that last fhrce witnesscs are fhe resideats of Champa fherefore, they eould not havc witnessed the crixne. In our eonsidered opiniaa, again at tlus stage gomng to such minute detail aud to examinethe correctuess of fhe stand takea by fhese witncsses is not requjred whea they are claimiag eyewitncsses, aUegatioas in the petition has bcen leveBed that the investlgation was nOt conducted in afair maaner, witaesses were riot exammed and further case of fhe petitfoner is that even wheu fhe iacident took place fhe stffl pliotog-aphy & videogp-aphy was an, photos were beic^j tafcen fhrough still photography and 'videography. Thc submisslon of leamed couaset for the pedtioner fhat persons who were visible in ttie videography, wfaich was bdug videogTaphcd at the time of ai<adent, the investigatmg ofBeer oug^it to havc conducted itwestigation from fhcm caxmot be said to be wlthout basis because in the incident (he best eddcace awsulablc was fhe photographs and videography in which everythtng was beuag recorded. The tmrest^attr^ officer oug^it to have gone through fhe photographs aad videography in order to asca'tain the preseace of eyewitnesses and should have examined tfaose persoaas. In view of the above fact also we are of the opirilon that fhe invcstigation carmot be sald to be conducted in a fair and traxisparent manner. Thercfore, the grievaace ralsed by fhe petitioner in ttus writ petttion requlres serious consideratimi. Moreovcr, it is a vay serious offen.cc ofmurder wfaere the investigatit^; ayen.cy was required to ianucst^ate into the luatter ia au efficient, effective aud falr aianner. Therrfore, when fiirther investigation in any case is auperatnre, and bi ttus case as Saudeep Pandqr & Qajpal have to be examined aad fhe uwestigating officer ia further required to scan fhrough the videography and photographs in order to find out eyewitnesses, then investigation from the abdve five persons can a3st> be doae. Qf course, in order to ascataia correct poaitiau, the invertigatlag officer can keep ia mind fhe points raised by leamed coiuisd for the State and learued counsel for accused persons, and should v^Essswaiasaaw^ PagelOoflS vv investigate as to whether these persons had wttnessed the criine or not. Looldng to fhe facts and circumstaaces of th&present case, it would not be fair and reasonable for us to rgect fhe prayer witnesscs oa technical ground. 16As ineationed in ttie petition, evcn £heinwestigatir^ agency faBed to prepare seizure niemo of the vldeooassette and eveu fhat videoGassette has not beeu teudered into ewideace. Jfit is so, then It wffl amouat to fsaluxe^ to discharge its duty on fhe part of the prosecution. !h .^- ^ IT.Learaed counsd for the accused persons reUed upaa the decision of fhe Honlale Apex Court In the matter af Satvajit Kinerjee and othew VB. Stote of W.B. and othera reDorted in (200811 SuDrenie Court Cases 115 and argued that on fhe basis of this decislon the writ pedtion of the pcdtioner deserved to be disxnlssed. But in our opioion looldng into ttie facts and circi^g»,stqnfies of the case the abovc decision ofthe HonWe Apeac Court l*/ao fldp to the accuaed persons because m fhat case the Court was considering the situation after recordtE^ acquittal toy thc trial court after iuU trial. The Hon'ble Apex Court has held fhat ia aU fhe cu'cumstances fhe High Court can ask for retrial and that can be done accordtt^ to thc cstabUshed principlea^aud direction for retrial should not tee inade ia aB or ewary cases where acqulttal of accused is feir waat of adequate or rdiable euidcac^aud that can b8 ordered onty in extra ordinary situation where the trial being found to bea farce and a inock trial. s? l!tli;l! I8.In fhis case, trial is stiU pending, as after fiting of this writ petition, . fhis Court vidc order dated 22.13.20020rdered tUat tnal may be contuwed feut ew'dence rfiflfl not be ctosed tintQ Jwther orders?. Thesrefore, in view of tbis order the trial is stUl pending audiffi.trtlieF mvestigation is ordered iu •wcw of the provisfam of sub-sectiaa (8) of Section 173 ofCr.P.C, that is not going to causeseriou's prejudice to the accused persaus. -€ PageltoflS i s. I9.In the resutt, weare of fhe considered opinion that the writ petitlon of the petitioner deserves to be aUowed and aecordin^ty, it is aUowed. The S.D.O.