IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ Jurisdiction Case No.37 of 2011 ========================================================== RANBIR SINGH SON OF SHRI KULDIP SINGH ALIAS KULDIP NARAIN SINGH, RESIDENT OF VILLAGE – JAAN MOHAMMADPUR, P.S. KAHALGOAN, P.S. KALGI GANJ, DISTRICT - BHAGALPUR Versus 1. THE STATE OF BIHAR THROUGH THE DIRECTOR GENERAL OF POLICE, BIHAR PATNA, OLD SECRETARIATE, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, OLD SECRETARIATE, GOVT. OF BIHAR, PATNA. ========================================================== For the Petitioner : MR. RAJENDRA PRASAD SINGH, SENIOR ADVOCATE MR. INDU BHUSHAN, ADVOCATE MR. OMKAR KUMAR, ADVOCATE For the State : MR. GOUTAM BOSE, ADDITIONAL ADVOCATE GENERAL NO. VIII MS. RATNA DAS, A.C TO ADDITIONAL ADVOCATE GENERAL N0. VIII. MR. ROHIT KUMAR, ADVOCATE For the Intervenor : MR. SANJEEV KUMAR, ADVOCATE. P R E S E N T ( HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA) Shailesh Kr. Sinha, J The petitioner is an accused in Kahalgoan P.S. Case No. 382 of 2008 for the alleged murder of the brother of the informant, prays for directing the respondent no. 2, the Director General of Police, Bihar Patna for taking over the investigation of the aforesaid police case from the District Police, Bhagalpur and handing over to Criminal Investigation Department (C.I.D.) of the State. In the above case, District police after investigation, recording the statement of the witnesses including the statement of the co-accused Haribol Jha under Section 164 of 2 the Code of Criminal Procedure (hereinafter referred to as the 'Code'), submitted the police report charge sheeting the petitioner showing him as an absconder and the warrant of arrest as also processes under Section 82 and 83 of the Code were issued against him. Petitioner through an Interlocutory Application No. 689 of 2011, prays for quashing the warrant of arrest issued against the petitioner including other accused persons by order dated 08.01.2010. Briefly the prosecution case as per the first information report lodged by one Akhileshwar Pandey, alleging that his younger brother, namely, Mukesh Kumar Pandey @ Guddu Pandey, (deceased), who was in the business of sale of sand and stone chips, informed his brother, namely, Sanjay Kumar Pandey on mobile in the night at about 9.30 p.m. that he is at the site of Mukhiya and would be returning within half an hour, however, the brother of the informant did not return and on the next morning, news about his murder was received. Thereafter, the aforesaid police case was lodged against unknown. During investigation, complicity of the petitioner and other accused 3 persons were found in the aforesaid case. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for the petitioner submits that the main grievance of the petitioner which necessitated the prayer for changing the investigating agency is that since the petitioner, the husband of the concerned Mukhiya, is being implicated in this case for ulterior purpose, as the informant are influential persons. It is further submitted that even though, there is no complicity of the petitioner in the said case police got the statement of the co-accused Haribol Jha recorded under section 164 of the Code and in the said statement, the co-accused implicated this petitioner as well in the alleged crime. Mr. Singh submits that the statement of the co-accused Haribol Jha under Section 164 of the Code is inadmissible since the investigation was already over and chargesheet was submitted and thereafter, charges were also framed against the said co-accused Haribol Jha and as such, after framing of the charges his statement under Section 164 of the Code could not have been recorded in law as the trial commenced. Notwithstanding the above, it is also submitted that except such statement of the co-accused, there is 4 absolutely no other material on the record suggesting the involvement of this petitioner in the alleged crime. The learned counsel submits that a public document or uncontroverted document should be look into at this stage. Reliance is placed on a decision of the Supreme Court in the case of Harsendra Kumar D Versus Rebatilata Koley as reported in 2011(3) PLJR 100 (SC). Accordingly, the investigation of the case deserves to be handed over to the Criminal Investigation Department (C.I.D.) of the State, as prayed for, and the warrant of arrest issued against the petitioner be also quashed as the same is issued in aid of investigation. Reliance is placed on the decision of the Apex Court in the case of State through CBI Versus Dawood Ibrahim Kaskar as reported in 1997 Supreme Court Cases (Cri) 636 (Paragraph – 22) as also the decision of this court reported in 2003(1) PLJR 350 in the case of Nalina Kant Agarwal Versus State of Bihar. Mr. Goutam Bose, learned Additional Advocate General No. VIII appearing for the State as also learned counsel for the informant vehemently opposed the prayer of the petitioner. It is submitted that prayer of the petitioner for grant of anticipatory bail was thrice rejected and instead of surrendering 5 in the court below, the petitioner is absconding and has filed the present writ application merely to delay the conclusion of the criminal proceeding against him. The court below issued the warrant of arrest on 8th of January 2011, thereupon the present writ application was filed on 11th of January 2011. It is further submitted that there is no irregularity/illegality in recording the statement of the co-accused Haribol Jha under Section 164 of the Code, as the petitioner is not appearing in the court below and as such, trial could not be commenced. It is further submitted that in terms of the provision of sub-section (8) of section 173 of the Code, the police is not precluded from making further investigation even after trial has commenced and witnesses examined. Reliance has been placed on the decision of the Apex Court in the case of Rama Chowdhary Versus State of Bihar as reported in 2009(6) SCC 346. Accordingly, it is submitted that in the premises of the fact and circumstances of the case, the writ petition deserves to be dismissed and petitioner should appear in the court below so that the trial may commence. Before considering the rival submissions, it would be fruitful to quote the extract provisions of 6 Section 164(1) and Sub-section (8) of Section 173 which are quoted below :- Section 164(1) “Recording of confession and statement – (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial : Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force”. Sub Section 8 of Section 173 “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such 7 investigation, the office in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” The issue as to on what stage statement/confession of an accused could be recorded under Section 164 of the Code is hotly contested. The submission of the petitioner that since investigation is complete and chargesheet submitted, as also charges framed against the co- accused, Haribol Jha (not against the petitioner) the statement of said Haribol Jha could not have been recorded. On the other hand, learned Additional Advocate General appearing for the State submits that this is not in dispute that in terms of provision of Sub-section (8) of Section 173, police is not precluded after submission of the chargesheet from making further investigation if material either oral 8 or documentary is made available and as such statement either under Sections 161 or 164 of the code can be recorded. It is also submitted that the co-accused, Haribol Jha, whose statement was recorded has not challenged the recording of his statement if at all there is any irregularity/illegality. Accordingly, it is submitted that writ application as also prayer for quashing the issuance of warrant of arrest deserves to be dismissed. The contention of the petitioner is that there is absolutely no material during investigation against the petitioner, except the statement of the co-accused, Haribol Jha under Section 164 of the Code whereas it has been denied and asserted that other witnesses have also given their statement suggesting the involvement of the petitioner. The alleged print out of the conversation on Mobile is neither a public document nor it can be said at this stage as to the same is uncontroverted. Moreover the same may be a matter to be appreciated during trial, if found relevant. The decision in the case reported in 2011 (3) PLJR 100 (SC) is on different fact where the resignation of one of the Director of the Company was not in issue when the cheque in question issued in connection with an offence under Section 138 of the Negotiable Instruments Act. The aforesaid decision as such, is of no help to the petitioner. In 9 the opinion of the court the issue as to whether there is any material/evidence against the accused persons or any of them is to be considered in the court below at the appropriate stage. Moreover, it is well settled in law that the statement of a person including the accused either under Sections 161 or 164 of the Code is not an evidence on which conviction could be maintained mainly as such stated. The statement is used to take the contradiction, if any, with evidence of the prosecution witnesses. It is not in dispute that the chargesheet has been submitted against the accused persons as also against the petitioner who has not appeared in the court below and as such warrant of arrest against him has been rightly issued. The decision relied in the case of Dawood Ibrahim (supra) and other cases for the proposal that warrant of arrest cannot be issued during investigation is not of any help to the petitioner. In the present case warrant of arrest and processes under Section 82 and 83 of the Code was issued to compel the petitioner who is evading his arrest to appear before court and not solely for production before police. The law is also well settled that it is always open to the persons against whom warrant of arrest or other processes are issued may appear 10 in the court and seek recall of the processes issued against him. Reference be made to the decision of Apex Court in the case of Vimlaben Vs. Vatsalaben as reported in (2008) 4 SCC 649 (paragraphs 32 and 33) Besides the above, the irregularity, even though seriously committed during the investigation will have no adverse effect on the chargesheet/order taking cognizance or trial. Reference be made in the case of Paramjit Singh @ Mithu Singh Versus State of Punjab, as reported in AIR 2008 Supreme Court 441 (paragraph -13). The relevant extract of paragraph -13 is quoted below :- “It is well settled that even a defect, if any, found in investigation, however, serious has no direct bearing on the competence or the procedure relating to the cognizance or the trial. A defect or procedural irregularity, if any, an investigation itself cannot vitiate and nullify the trial based on such erroneous investigation.” It is also well settled in law that the accused has no say who should be his investigating 11 agency. Reference be made to the decision of the Apex Court in the case of Central Bureau of Investigation and another Versus Rajesh Gandhi and another as reported in AIR 1997, Supreme Court 93 (paragraph -8). The Apex Court held as follows :- “The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with”. In the result, in view of discussions and the reasoning in the foregoing paragraphs, I do not find any merit in this writ application and the same is accordingly dismissed. The interim order stands vacated. Patna High Court The August 25th 2011 A.F.R/ Jagdish ( Shailesh Kumar Sinha, J.)