SCR.A/1384/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1384 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = MITESH @ DILIP BABUBHAI PATANI - Applicant(s) Versus STATE OF GUJARAT & 6 - Respondent(s) ========================================= Appearance : MR YATIN OZA, SR. ADVOCATE with MR RAJESH K SAVJANI for Applicant(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2 - 5. MR YN RAVANI for Respondent(s) : 6, NOTICE SERVED for Respondent(s) : 7, ========================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 18/06/2008 ORAL JUDGMENT 1. By this application under Article 226 and 227 of the SCR.A/1384/2007 2/19 JUDGMENT Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (the Code) the petitioner seeks the followings reliefs: “(18) The petitioner therefore pray:- (A) Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or Direction in the nature of Mandamus transferring the investigation of First Information Report being I-CR. No. 60/70 registered with Umargaon Town Police Station Umargaon District Valsad to respondent No.6 herein. (B) Pending hearing and final disposal of this Special Criminal Application Hon’ble Court be pleased to direct the respondents to arrest the accused No.2 to 7 mentioned in being I-CR. No. 60/07 registered with Umargaon Town Police Station Umargaon District Valsad, (C) Be pleased to grant any other and further relief as think fit and proper in the facts and circumstances of the case and in the interest of justice.” 2. The factual background of the case is that the petitioner herein had lodged a complaint against one Vijay Radheshyam Agrawal and five other named persons and other unknown persons for the offences punishable under sections 302, 201 and 34 of the Indian Penal Code, 1860 and section 135 of the Bombay Police Act on 17th July SCR.A/1384/2007 3/19 JUDGMENT 2007, which came to be registered as a first information report vide Umargaon Police Station I Crime Register No.60/2007. The allegation in the compliant was to the effect that as the administration of the Bunglow had been taken over from him the accused No.1, nursing a grudge in that regard, as well as in respect of the construction of the building all the accused got together and with a view to achieve their common intention gave blows on the head of the deceased Rahul, aged 19 years, with sharp instruments, inflicting grievous injuries and causing his death and thereafter threw his body in the waters of Varoli river at Sanjan Umergaon road, thereby destroying the evidence. 3. Within a week thereafter, on 23rd July, 2007 the petitioner filed the present petition seeking the reliefs noted hereinabove. It is the case of the petitioner that the accused No.1 had in his presence disclosed to the respondents No.4 and 5 that all the accused had committed the murder, however, the respondents No.4 and 5 have not taken any action against the other accused. According to the petitioner the accused No.3 is the main culprit, however as the accused persons are powerful and influential people the police authorities, more particularly the respondents No.2, 3 and 4, that is the District Superintendent of Police, Valsad, the Deputy District Superintendent of Police, Valsad and the Police Sub-Inspector, Umargaon Town Police Station, respectively, had harassed his family members and threatened to kill them if the petitioner or his family members voiced any other grievance against the SCR.A/1384/2007 4/19 JUDGMENT department or the accused in connection with the brutal murder of Rahul alias Samir. According to the petitioner, he and his family members apprehend that no action will be taken against the accused in connection with the aforesaid offence, therefore, he has filed the present petition seeking transfer of investigation from the police department to the respondent No.6, Central Bureau of Investigation. 4. On 27th July, 2007 notice was issued in the matter. On 17th August, 2007 the petitioner filed an additional affidavit alleging that the post mortem report is fabricated, containing false statement of death and that the concerned doctor who is stated to have conducted the post-mortem examination has confessed that he has not performed any such post mortem on the body of the deceased. Thereafter by an order dated 24th August, 2007 the petitioner was permitted to join the Dr. M. A. Roy, the Medical Officer who had prepared the postmortem report as respondent No.7. The respondent No.7 was also directed to appear and produce all the medical papers and the post mortem report before the Court. On 15th October, 2007 the learned Senior Advocate appearing on behalf of the petitioner contended that there is a variance between the opinion regarding the cause of death rendered by the doctor in his certificate produced at Annexure-G to the compilation as compared to the one contained in the investigation papers at page 84 of the compilation. By an order of even date, the Court requested the learned Additional Public Prosecutor to keep the entire investigation papers available for the SCR.A/1384/2007 5/19 JUDGMENT Court’s perusal on the next date of hearing. 5. In response to the petition, the Police Inspector in-charge of Umargaon Town Police Station has filed an affidavit-in- reply dated 26th December, 2007 contending that the prayer for transfer of investigation would not survive in view of the fact that investigation has already been completed and charge sheet has been filed before the concerned Court. It is further submitted that if the petitioner is not satisfied with the investigation, the petitioner can file appropriate application for further investigation under section 173(8) of the Code and all contentions raised in the present petition can be raised before the concerned Court and the same can be considered by the said Court on merits, in accordance with law. It is further submitted that the investigation has been carried out properly and that entire evidence collected during the course of investigation points only at the accused No.1 and there is no evidence to book the other accused and therefore, they have not been arrested. 6. Dr. M.A. Roy, the Medical Officer who has prepared the Postmortem Report and issued the Cause of Death Certificate, has also filed an affidavit dated 26th December, 2007 clarifying the discrepancy between the cause of death stated in the Post-Mortem Report and the Cause of Death Certificate. 7. The petitioner has filed an affidavit in rejoinder to the affidavit filed by the Police Inspector, In-charge Umargaon SCR.A/1384/2007 6/19 JUDGMENT Town Police Station, enumerating several reasons based on the charge-sheet papers for seeking transfer of investigation. As regards the contention that as the investigation is already completed and charge sheet is submitted, the remedy available with the petitioner is by way of an application under section 173(8) of the Code before the concerned Court, it is stated that by the present petition the petitioner has prayed for transfer of investigation and for such relief the only remedy available to the petitioner is before this Court. 8. In response to the affidavit-in-reply filed by Dr. M.A. Roy, the petitioner has filed an affidavit in rejoinder denying the averments made in the said affidavit-in-reply. The petitioner has also annexed a report of Dr. Pradip B. Seju, Medical Expert expressing his opinion regarding the affidavit-in-reply filed by Dr. M.A.Roy and has placed strong reliance upon the same 9. The petitioner has also filed an affidavit dated 31st January, 2008 alleging irregularities in the investigation carried out by the investigating agency. 10.It appears that as the investigation and further proceedings pursuant to the first information report lodged by the petitioner had not been stayed, during the pendency of this petition the investigation was completed, charge sheet was filed and the matter was committed to the Court of Sessions, pursuant to which the trial has commenced. Due to pendency of the present petition, the learned Advocates for the parties had jointly SCR.A/1384/2007 7/19 JUDGMENT agreed to seek adjournments in the proceedings before the trial Court. 11.It is at this stage that the matter was taken up for hearing. 12.Mr. Yatin Oza learned Senior Advocate appearing with Mr. R.K. Savjani learned Advocate for the petitioner has with all vehemence at his command submitted that the accused named by the petitioner in the first information report were very influential and powerful persons and that the concerned police officers had blatantly stated that they would not take any action against them. Referring to the various documents annexed to the petition, it is submitted that the one Shri Bapat owned property situated an Umargaon in connection with which the accused No.3 had issued threats to kill him if he did not transfer the said property to him. That the said Shri Bapat had requested the Commissioner of Police, Rajkot to take necessary steps in that regard. That as the Commissioner of Police did not do the needful, Smt. Bapat requested the D.S.P. Valsad to provide her police protection so as to enable her to lodge a complaint before the Umargaon Police Station. However the said application was rejected. That the father of the petitioner, who is an advocate, was representing Shri Bapat in several cases and his grandson Rahul was working for Shri Bapat and looking after the property situated at Umargaon. The learned Senior Advocate has submitted that the accused No.1 Vijay Radheshyam Agrawal in connivance with the accused No.2 to 4, with a view to SCR.A/1384/2007 8/19 JUDGMENT take revenge, had hatched a conspiracy and killed Rahul in the early hours of 16th July, 2007. That the accused No.1 lodged a complaint regarding Rahul being missing, and the same was registered as Umargaon Police Station Janva Jog Entry No.11/07. That later on the body of Rahul was found, after which the petitioner lodged a first information report which came to be registered as Umargaon Police Station I Crime Register No.60/2007 on 17th July, 2007, against the accused named therein. It is argued that the police have arrested only the accused No.1 and no steps have been taken to arrest the remaining accused, as they were politically influential people. It is submitted that in the aforesaid circumstances the petitioner was constrained to approach this Court seeking transfer of investigation to the CBI. In support of his submissions, the learned Senior Advocate has placed reliance upon a decision of this Court in the case of Patel Lilabhai Ambalal v. Patel Kanubhai Mafatlal and others,1988 (2) GLR 1175 wherein this Court in the facts and circumstances of the said case had directed the police and State authorities to register the application dated 10.10.1987 made by the complainant as an FIR for the offence punishable under section 302 and other sections of the IPC and to transfer the investigation to CID (Crimes) of the State of Gujarat to be conducted by an officer of senior and high level. 13.The learned Senior Advocate has referred to the charge sheet papers and pointed out several discrepancies in the various panchnamas of the scene of offence, carried out at different stages, before and after registration of the SCR.A/1384/2007 9/19 JUDGMENT offence in question. The learned Senior Advocate has also vehemently assailed the post-mortem report prepared by Dr. Roy to submit that there are discrepancies in the postmortem report and the cause of death certificate and alleged that the postmortem report has been fabricated with a view to help the accused persons. This Court is of the view that any discussion on the nature and merits of the evidence collected by the investigating agency would have a direct effect on the final outcome of the trial, hence the Court refrains from elaborately discussing the discrepancies pointed out by the learned Senior Advocate. 14.At the outset it may be noted that the tendency of litigants to rush to the High Court at the earliest point of time without availing of the remedies available to them under the Code, at times adversely affects their own case. The present case is a classic example. 15.In the facts of the present case, almost immediately after the lodgment of the first information report, the petitioner has approached this Court praying for a writ of Mandamus directing transfer of the investigation to the CBI. It is a well recognised rule that no writ or order in the nature of a Mandamus would issue where there is no failure to perform a mandatory duty. As a general rule, an application seeking a writ of mandamus must be preceded by a distinct demand for performance of the duty, in order to give the party an opportunity to consider whether he should comply or not, and such demand must be shown to have been met by a refusal either by words SCR.A/1384/2007 10/19 JUDGMENT or conduct, so that the Court is satisfied that the party complained of is determined not to do what is demanded. (See S.I. Syndicate v Union of India, AIR 1975 SC 460). It is not even the case of the petitioner that he has approached any authority seeking transfer of investigation or so much as ventilating his grievance regarding the investigation not being carried out properly. The petitioner has directly approached this Court alleging irregularities in the investigation and has prayed to issue a writ of mandamus transferring the investigation to the CBI. In the case of Patel Lilabhai Ambalal (supra) the petitioner had approached the highest officer of the State, but there was no response. The Court was therefore, of the view that the remedies available under the Code could not be said to be of any effective purpose in the facts of the said case. Hence, the said decision does not lend any support to the case of the petitioner. 16.Besides after filing the present petition, the petitioner has intermittently pointed out discrepancies in the on going investigation. However, insofar as the proceedings pursuant to the investigation are concerned, the petitioner appears to have remained a mute spectator. In the meanwhile the charge sheet has been filed, presumably against the accused No.1 alone, but it appears that the petitioner has not bothered to raise any objection regarding deletion of/dropping of the other accused from the array of accused, before the concerned Magistrate. After submission of charge sheet, no grievance appears to have been raised before the learned SCR.A/1384/2007 11/19 JUDGMENT Magistrate regarding the alleged irregularities, nor has any application been made for further investigation under section 173 (8) of the Code. The learned Additional Public Prosecutor has contended that once the investigation is over and charge sheet is submitted the question of transferring the investigation would not arise and that the remedy available to the petitioner is by way of an application for further investigation. Admittedly, except for filing the present petition and voicing all his grievances before this Court, the petitioner has not chosen to avail of the remedies provided under the Code before the appropriate forum at the appropriate stage. Mr. Y.N. Oza, learned Senior Advocate appearing on behalf of the petitioner has however submitted that even at this stage of the proceedings it is permissible for this Court to transfer the investigation and/or direct further investigation by the CBI under section 173 (8) of the Code. In support of his submission the learned Senior Advocate has placed reliance upon the decision of the Supreme Court in the case of Gudalure M.J. Cherian and others v. Union of India and others, (1992) 1 SCC 397 which was in the nature of a public interest litigation, wherein the Court held that the investigation having been completed by the police and charge-sheet submitted to the court, it is not for the Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialized agency like the CBI. The Court observed that it was conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless – in a given situation, to do justice between the parties and to instill confidence in the public SCR.A/1384/2007 12/19 JUDGMENT mind – it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and independence of the agency. Reliance was also placed upon the decision of the Supreme Court in the case of Kashmeri Devi v. Delhi Administration and another, 1988 (Supp) SCC 482 which was a case of custodial death and the allegation was to the effect that partisan investigation was conducted with a view to shield the guilty policemen. The Supreme Court observed that the appellant therein had been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. In the said case as the charge sheet had already been submitted to the Magistrate, the Court directed the trial court before which the charge sheet had been submitted to exercise its powers under section 173(8) CrPC to direct the Central Bureau of investigation for proper and thorough investigation of the case. Reliance is also placed upon decision of this Court in the case of Mahendra P. Desai v. State of Gujarat and others, 1985 G.L.H. 873 wherein the revisional jurisdiction of this Court had been invoked against an order rejecting an application for further investigation under section 173(8) of the Code on the ground that further investigation is ruled out because cognizance of the case had been taken by the Court. This Court held that the order passed by the learned Magistrate was erroneous and directed the learned Magistrate to consider the application on merits with the observation that if he finds there is illegality in the investigation he will have power to direct further investigation. SCR.A/1384/2007 13/19 JUDGMENT 17.The Supreme Court in a recent decision in the case of Sakiri Vasu v. The State of Uttar Pradesh and others (2008) 2 SCC 409 has held as follows: “13.xxx. We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved persons feels is not proper, such person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. 14. Section 156(3) states: “156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.” The words ‘as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station. 15. Section 156(3) provides for check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. 16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence, the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554. 17.In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring proper investigation, and in SCR.A/1384/2007 14/19 JUDGMENT includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision. 25. We have elaborated the matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 CrPC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under section 154(3) and Section 36 CrPC before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or a petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has SCR.A/1384/2007 15/19 JUDGMENT not been done by the police. For this grievance, the remedy lies under Section 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. 30. It may be further mentioned that in view of Section 36 CrPC if a person is aggrieved that a proper investigation has not been made by the person in charge of the police station concerned, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer in charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI v. State of Rajasthan, (2001) 3 SCC 333, R.P. Kapur v. Sardar Pratap Singh Kairon, AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar v. A.C. Saldanha. 31. No doubt that Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it