iHUt-e.. >. (s-^-7 ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.ICr.lNO. ?4/? /2010(S.B.) PETITIONER / • <A -• RESPONDENTS ....^' x^> ^:K/ - ^z^y ..^y ^^ ^:- y : 1 ' . \%-^ ^2. / ^4. ^ /6 Smt. Rekha Devi Singh W/o Late Devcharan Singh, aged about 40 years, R/o Hatele Daem, Jhariya, Police Station- Jhariya, Distt.- Dhanbad, (Jharakhand). VERSUS State of Chhattisgarh Through :- The Secretary, Department of Home and Police, Mantralaya, D.K.S. Bhawan, Raipur (C.G.) The Director General of Police, Raipur, Distt.-Raipur (C.G.). The Collector, Bilaspur , Distt.- Bilaspur (C.G.) The Inspector General of PoUce, Bilaspur, Distt.-Bilaspur (C.G.). The Police Superintendent, Bilaspur, Distt.-Bilaspur (C.G.). Police Station- Torava, Through- Station House Officer, Police Station- Torawa, Bilaspur, Distt.- Bilaspur (C.G.). ^ oo lco t^ K!w l^ &1 M |t0 |w ]§ Ig -j ./ ^. 'f^' ^isa^ ^^ "^l ^F^ •W-^HUB ) mOH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fCr.) No. 1415 of2010 PETITIONER : Smt.RekhaDeviSingh. VERSUS RESPONDENTS : State ofChhattisgarh& Others. 1^1 Post for pronouncement ofjudgment & orderon .^day ofNovember, 2010. satis^^. l'/lgnA rlge ^f^n- •~wi ^t< HIGHCOURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (Cr.) No. 1415 of2010 PETITIONER : Smt. Rekha Devi Singh. VERSUS RESPONDENTS : State ofChhattisgarh & Others. WRIT PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present; Smt. Renu Kochar, Advocate for the petitioner. Shri M.P.S.Bhatia, Dy. G.A. for the State/respondents. •M. (Delivered on 2Lt day of November, 2010) 1. By this petition, the petitioner seeks a writ in the nature ofmandamus directing the respoadents to investigate into the matter with regard to alleged murder of his husband or, in altemative, to set an enquiry either by the Central Bureau of Investigation or Crime Investigation Department or any other investigating agency for reinvestigating the matter. 2. The facts, in nutshell, as projected by the petitioner, are that petitioner is the wife of Late Devcharan Singh, who was murdered on 22.10.2008. He Was working with the Railway Department, as contractor. Devcharan Singh (in the affidavit and some other documents, the deceased person is named as Durga Charan Singh, and the petitioaer as wife ofDurga Charan Singh) died on receiving a gun shot injury in the chest which was allegedly fired by a short heighted person, when the deceased was in fi-ont of the Railway Construction Office campus alongwith one Surendra Smgh. The grievance of fhe petitionei is that the respondent authorities aie not conducting the investigation in a fair manner in respect of crime No. 347/2008, registered on account of murder of his husband, and crime No. 466/2008 registered in respect ofthefi in the house ofSiirendra Singh, where at the relevant point of time, the deceased was residing as tenant. 3. Smt. Kochar, learaed counsel appeanng for the petitioner would submit that the respondent authorities are trying to save the actual culprits and have falsely implicated Jai Prakash Singh, in the case. Even after making various representations and affidavits by the petitioner as well as brofher offhe deceased, Shivcharan Singh, before the respondent authorities, the respondent No. 6 has declined to seize the C.D. and other relevant matenals or to consider the representation/affidavit, which may be helpfal in identifying the actual culprits. The investigation ofthe respondent authorities appears to be doubtful as even the physical appearance of one offhe accused namely Mohammad AshrafAli, who is alleged to have fired gun shot on the deceased, does not match with what has been recorded in the F.I.R. which goes to show that the actual culprits are still out ofthe clutches of fhe mvestigating authorities. On the contrary, the respondent authorities are harassing the petitioner and have falsely implicated one Jai Prakash Singh, who is close relative ofthe deceased. "^ 4. On the other hand, Shri Bhatia, leamed Deputy Govemment Advocate appearing for the State/respondents would submit that the investigation conducted by the respondents is fair, just and proper. If the petitioner has any grievance with regard to the mvestigation made by the respondent-authorities, the petitioner ought to have approached the concemed magistrate under fhe provisions of the Criminal Procedure Code, 1973 as the Challan has already been filed before the Court ofJudicial Magistrate First Class, Bilaspur. Afier filing ofthe challan, ifany steps are required to be taken regarding investigation of the matter, the same can be done only after passing oftfae order by the concemed Magistrate. So far as implication of Jai Prakash Singh as accused in the case, is concemed, there is enough material on record to show that he was also one ofthe conspirators. 5. Heard leamed counsel appearing for fhe parties, perused the pleadings and documents appended thereto. 6. There is no quarrel that the High Court, being a sentinel ofjustice is vested with extraordinary power and jurisdiction under Article 226 of the Constitution oflndia to ensure that the fundamental, legal or other rights of the citizens are duly protected. This Court Uas jurisdiction to ensure that there has been a proper investigation. In rarest of the rare case, where process oflaw has not been duly followed in investigation and an error is apparent on the face ofit, the High Court may entertain to set the process right in exercise of its extraordinary jurisdiction. (See : Babubhai Jamnadas Patel v. State ofGujarat & Others ). ' (2009) 9 SCC 610 7. In the case on hand, admittedly, the investigation has been done and the charge sheet has been filed before the Judicial Magistrate,Fu-st Class. Thereafter, the matter has been committed to trial. Under the provisions ofsection 173(8) ofthe Code ofCriminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') the Magistrate is empowered to direct further investigation even after a report under sub-section (2) has been forwarded to the Magistrate and the Magistrate has taken eogaizance of the offence. Section 173(8) of the Cr.P.C. reads as under: "l73.(8) Nothing in this section shall be deemed to preclude farther investigation in respect of an offence after a report under sub-section (2) has been forwarded to fhe Magistrate and, where upon such investigation, the ofBcer in charge of the police station obtains farther evidence, oral or documentary, he shall forward to fhe Magistrate a farther 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 8. In the case on hand, it appears that the petitioner has not approached the Magistrate seeking further investigation on the basis ofallegations that fhe important evidences and statemeat alongwith matenals have been ignored by fhe investigatmg agency. 9. The State/respondents, in its afBdavit dated 7.7.2010 has submitted as under: "5. That, apart from that in the present case, after registration of first infomiation report lodged by one Surendra Singh in Crime No. 347/2008 for offence under Section 302, 120-B r/w 34 of the I.P.C. and Sections 25 and 27 ofthe Amis Act, fhe investigation was carried out against the accused ^^ S'Sife- persons and during the investigation it was found that with the conspiracy of co-accused i.e. Jai Prakash Singh @ Lallu Singh and other co-accused person i.e. one Mohd. Asarf Ali, who was shooter in the case, committed murder of the deceased Durgacharan Singh. The statements of all the witnesses were taken under Section 161 of the Cr.P.C. including the petitioner herself and thereafter the memorandum of accused persons was also recorded under Section 27 offhe Evidehce Act and the test identification parade was also held in which complainant Surendra Siagh had correctly identified Mohd. Asarf as a shooter who has killed Durgacharan Singh. The charge-sheet under Section 173 ofCr.P.C. was filed before the Judicial Magistrate First Class, Bilaspur (presiding over by Shri Narayan Singh) against Mohd. Asarf Ali showing Barmeshwar Pandey S/o Ramchandra Pandey, R/o Prabodhpur, P.S. Baliya (U.P.), Sajay Singh, S/o Bhuneshwar Prasad Singh, R/o Torwa Basti Bilaspur and Jai Prakash Singh @ Lallu Singh S/o Krishna Singh, R/o Kokati, P.S. Baliya (U.P.) showing them absconding. A copy of the fmal report is being filed as Annexure R/5. It is farther submitted that the said court has passed a committal order and sent the case to the leamed Sessions Judge, Bilaspur Chhattisgarh for trial and fhereafter the leamed Sessions Judge, Bilaspur has made over the case in the court of 8 Additional Sessions Judge, Bilaspur and said court has fcamed the chares against the accused after perusal of the case and material available on record on 16/03/2010. A copy of the order-sheet dated 16/03/2010 is being annexed herewith as Annexure R/6. Thereafter, the case was transferred to court of 9th Additional Sessions Judge (F.T.C.) Bilaspur for trial and now the case has been fixed for prosecution evidence and summons have also been issued to the prosecution witnesses. A copy of the order sheet dated 17.6.2010 issuing summons to fhe prosecution witness is being filed as Annexure R/7. There cannot be a writ petition maintainable under Article 226 ofthe Constitution oflndia. High Court cannot enter into question offacts in exercise ofits power under Article 226 and thereby assume role ofa fact finding forum." 'f /f':.^ '•i. o^ 0< w: lO.Smt. Kocbar relies on a decision ofDivision Bench ofthis Court in Sonalal Soni v. State of Chhattisgarh & Others , wherein when the trial was still pending, the Court directed the S.D.O.(P) to take farther investigation in exercise of its power under Article 226 of the Constitution of India, relying on a decision of the Supreme Court in Zahira Habibulla H. Sheikh v. State ofGujarat. 11. The facts in Zahira Habibullah H. Sheikh is entirely different as very special oircumstances where allegations were that the state administration was in hand in glove with the investigating agency and the allegations were against the senior state fanctionaries. In the case on hand, it does not fall within the category of rarest of the rare or exceptional case which necessitates direction for farther investigation by the High Court. If an application is made to the Magistrate concemed, the Magistrate has fall competence to examine the facts of the application, other documents produced before him, and offences and thereafter he may consider ordermg fiirther investigation. Thus, I am of the considered opinion that this Court, in exercise of its extraordinary power under Article 226 of the Constitution of India, would not take a diversion from well settled practice of approaching the Magistrate for further investigation m nomial circumstances, under the provisions ofsection 173(8) ofthe Cr.P.C. 12.In State of Bihar & Another v. P.P.Sharma, IAS & Another, tiie Supreme Court observed that it was repeatedly held that appreciation 12005 CRI.U. 4461 32004AIRSCW2325 4 1992 Supp (1) SCC 222 ^sy 7 of evidence was the function of the criminal court. The High Court under the cireumstances could not have assumed the jurisdiction and put an end to fhe process of investigation and trial, provided under the law. 13.In M.C.Abraham & Another v. State of Maharashtra & Others , the SupremeCourt held as under: "17. The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concemed to accept the report or to order further enqurry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to disagree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course ofinvestigation. 18. In the instant case the investigation is in progress.It is not necessary for us to comment on the tentative view ofthe mvestigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the Magistrate concemed. The Magisfrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these cireumstances to issue a direction that the case should not only be investigated, but a charge-sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside.." (2003)2 SCC649 •^^?" 6 /. 14.In Divine Retreat Centre v. State ofKerala & Others", the Supreme Court held as under: "41. It is altogether a different matter that the High Court in exercise ofits power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest ofthe rare case where a clear case of abuse of power and non-compliance with the provisions falling imder Chapter XII ofthe Code is cleariy made out requiring the interference ofthe High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observanceofprocess as provided for in the Code." 15. The Supreme Court, in Virender Prasad Singh v. Rajesh Bhardwaj & Others , a direction was made by the High Court for re-examination of the complete investigation, wherein the Supreme Coiirt observed that "an extremely unusual order passed by the High Court hasfallenfor consideration in the appeal which has been flled on behalf of the appellant/complainant Virender Prasad Singh". The Supreme Court having considered in all respects ofthe matter, observed as under: "19. Heavy reliance was placed on Rubabbuddin Sheikh v. State of Gujarat and others [2010 (2) SCC 200] :(2010) AIR SCW 722). However, we do not fmd any factual similarly. That was a case where the extreme step was taken by this Court, particularly, in view of the fact that the police officers who were investigating officers themselves came under the cloud because of the allegations against them. Such is not the position here. This is apart from the fact that factually we do not see any reason why the extreme step is required to be taken 6 (2008) 3 SCC 542 72010AIRSCW4902 \-^jSS"""~'^-^ l:i/ '^E ^ •issxass in this case even after the charge sheet has been filed. 20. This Court had taken that unusual course in Rubabbuddin Sheikh's case (cited supra), in the words ofthe Court: - i'n thefacts and circumstances ofthe present case and to do complete jtistice in the matter and to instillconfidence in thepublic mind Before this course was undertaken, the Court had found out factual discrepaacies apparent on the face m the eight Action Taken Reports and the chargeO-sheet it was also noted that the crime was committed by the police personnel themselves while investigation conducted was not at all satisfactory. We do not fmd ay such circumstance in the present case. We may also refer to fhe observations made in another ruling as Mithaibhai Pashabhai Patel & Anr. V. State of Gujarat [2009 (6) SCC 332] : (AIR 2009 SC (supp) 1658 : 2009 AIR SCW 3780). In paragraph 13 of the said decision, this Court has observed: "it is beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be fhat in a given situation a superior Court in exercise ofits Constitutional power, namely,under Article 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction." 21.The Court further referred a decision in Ramchandran v. R.Udhayakumar [2008 (5) SCC 413] : (AIR 2008 SC 3102 : 2008 AIR SCW 5469) and observed therein:- 'at this juncture, it would be necessary to take note ofsection 173 ofthe Code. Froma plain reading of the above section it is evident that after completion of investigation under sub-section (2) of section 173 of the Code, the police has right to fiirther investigate under sub-section (8), but no &esh investigation or re-investigation/" 22. The plea raised by the accused herein was not for further investigation under Section 173(8) but for re-investigation by some other agency. In the circumstances of this case, the accused had not justified his plea at all for re-investigation or fresh 1-< .Ra^^ %7 10 Amit investigation by another agency. On its own, the High Court did not go into that exercise to decide as to whether the investigation was required to be done by any other agency. It required help of DGP level officer and his opinion to decide whether the earlier investigation was done properly or not. WE are afraid that was not the task. To decideso was the task of the Court alone and no opinion could have been sought for, particularly in the circumstances of this case. Nothing seems to have been established which would justify calling for such opinion. However, we are not going into that question as we have already stated earlier. Once the charge-sheet was filed, ordinarily it could only be the power of the Court to decide upon its correctness or otherwise. 16.Thus, in view ofthe foregoing and having regard to the facts situation ofthe case, no order for re-investigation or further investigation can be passed by this Court, when, after completion of investigation, challan has been filed and trial is pendmg consideration before the Sessions Court. However, liberty is reserved to the petitioner to make appropriate applications under the provisions section 173(8) of the Cr.P.C. if so advised, and the Magistrate may thereafter consider all the facts on merits in accordance with law, and pass appropriate orders. 17.The observations, ifany, made hereinabove, shall notbe considered as opinion of this Court and the same shall not come in the way of Magistrate while considering the application, ^s aforestated, iffiled. IS.With the aforesaid observation and direction, the writ petition is dismissed. No order asto costs. ----—----—-———^w Sd/- i Satish K. Agnihotri - Judge ft 1*^ 1- i- •v