(^<s-" 1 -3^5 •<w^~f^ft-,i?« ^FT'i^^^;! BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (Cr) N0. l£6\ / 2010 PETITIONER ^^s^' ...s^^"' .^::i^^.^ \"- V- Suresh Prasad Mishra, S/o Suryabhan Prasad Mishra, aged about 59 years, R/o Village-Sevra, Pendra, Distt. Bilaspur Chhattisgarh VERSUS RESPONDENTS ^\ i83.^" : 1. State of Chhattisgarh Through - the Secretary, Home Department, Dau Kalyan Singh Bhawan, Raipur, Chhattisgarh. 2. Superintendent of Police Distt. Bilaspur Chhattisgarh 3. Mr. R.L. Bada Sub- Inspector, Police Thana-Pendra Distt. Bilaspur (C.G.) • 4. Central Investigating Beoro Through- I.G. C.B.I. Office Bhilai Durg Chhattisgarh WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. T____.^_:-.-.— vm HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (Crt N0. 1661 OF 2010 PETITIONER RESPONDENTS SuFesh Prasad Mishra Versus State of Chhattisgarh & Others lEtdi. Rj^i m ^. Postfor pronouncement oforderon .AS.'day ofSeptember, 2010 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (Cr) N0. 1661 OF 2010 PETmONER Suresh Prasad Mishra RESPONDENTS Versus State ofChhattisgarh & Others (Writ Petition under Article 226 of the Constitution of tndia) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri T.K.Tiwari, Advocate for the petitioner. Shri M.P.S.Bhatia, Dy. Govt. Advocate for the State. Shri Pankaj Shrivastava, Advocate for the respondent No.3. O R DE R (Delivered on ^J.'.3ay of September ,2010) 1. By this petition, the petitioner seeks a writ of mandamus directing the State respondents No. 1 & 2 to handover the case for investigation to Central'Bureau of Investigation (for short "the CBI") and further respondentNo.4/CBI, may be directed to submit its report. 2. The facts, in brief, necessary for consideration of this petition, are that on 8.8.2008, dead bpdies of Narmada Prasad Mishra (son of the petitioner) & Sharda Prasad Tiwari were found, a merg was recorded and FIR was also registered on 8.8.2008. After registration of FIR, matter was investigated. Thereafter, charge sheet was fited on 30.12.2009 against four accused persons namely; Prem Singh, S/o. Shambhu Singh Gond, Tribhuwan Singh, S/o. Heera Singh, Smt. Rajkumari, W/o. Prem Singh and Shivkumari, W/o. Tribhuwan Singh. Theceafter, the present writ petition was filed on 12.4.2010. 3. Shri Tiwari, learned counsel appearing for the petitioner, would submit that during investigation, the police dog had gone to the house of Vijay Yadav and thereafter Vijay Yadav was taken into custody. Ram Krishna Mishra @ Manju is the main conspirator in the present case and during investigation Ram Krishna Mishra and Vijay Yadav have been acquitted. Though.they have absconded from the ./<j7 ^/ 6. village and the petitioner has full belief that they were behind the murder of deceased Sharda Prasad Tiwari and Narmada Prasad Mishra. In the charge sheet, Ram Krishna Mishra & Vijay Yadav and their associates have not been made accused. Thus, the investigation was not fair and real offenders have been left scot-free. Thus, the present pefition, seeking independent investigation by the CBI. Learned counsel for the petitioner relies on a decision of the Supreme Court in Rubabuddin Sheikh v. State ofGujrat & Others in support of his contention that the investigation was not proper and police officers who had investigated the matter have acted under the influence of Vjjay Yadav and Ram Krishna Mishra. Learned counsel further relies on a decision of the Supreme Court in Parminder Kour v.State of U.P. & 0 efs2. On the other hand, Shri Bhatia, learned Deputy Government Advocate for State/respondent No, 1 & 2 and Shri Shrivastava, learned counsel appearing for the respondent No.3, would submit that during investigation, it was found that the deceased persons were having illicit relationship with the accused Smt. Rajkumari and they were trying to get illicit relation with her sister Shivkumari. This fact came to the knowledge of husband of Smt. Rajkumari. Thus, alleged Prem Singh along with three other accused persons have committed murder of the deceased. Seizure has been made on the basis of memorandum dated 3.11.2009 of aecused Tribhuwan Singh and Prem Singh. It has not come out in the investigation that Ram Krishna -Mishra @ Manju and Vijay Yadav have any role in the murder of the deceased. Accordingly, a charge sheet against them was not filed. It is further contended that the investigation was done 1 (2010) 2 SCC200 2 (2010)1 SCC322 \ T by the respondent No.3 with the help of Crime Branch and except the baseless and bald allegations, there is nothing substantial against the investigating officers. 7. Learned counsel would further submit that it is well settled principle of law that if a challan has been filed in the Court, that Court alone can decide for further investigation on examining the entire facts of the case. 8. Having heard learned counsel for the parties, perused the pleadings and the documents appended thereto, it is an admitted fact that the charge sheet has been filed. The Supreme Court in Virender Prasad Singh v. Rajesh Bhardwaj & Others held that "it was the task of the Court and it was the Court who would have decided the question of faimess offhe investigation". 9. The petitioner hasnot pointed out any material to establish that there was undue influence in the investigation. However, at this stage, when the charge sheet has been filed, there is no reason to consider the charges and other matters. The matter is pending trial before the competent criminal Court. No material has been placed to take a departure from the normal procedure under the provisions of the Criminal Procedure Code, 1973 (for short ' e Cr.P.C."). Under sub-section (8) of Section 173 of the Cr.P.C., there may be further investigation, butnotafresh investigation or re-investigation. 10. In Virender Prasad Singh (supra) a direction was made by the High Courtfor re-examination of the complete investigation, wherein the Supreme Court observed that "an extremely unusual order passed by the High Court has fallen for consideration in the appeal which has been filed on behalf of the appellant/complainant Virender 201 OAIRSCW 4902 Prasad Singh". The Supreme Court having considered in all respects of the matter, observed as under: "19. Heavy reliance was placed on Rubabbuddin Sheikh v. State of Gujarat & Ors. [2010 (2) SCC 200] : (2010 AIR SCW 722). However, we do not find any factual similahty. 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 in this case even afier the charge sheet has been filed. 20. This Court had taken that unusual course in Rubabbuddin Sheikh's case (cited supra), in the words oftheCourt:- "in the facts and circumstances of the present case and to do complete Justice in the matter and to instill confidence in thepublic mind." Before this course was undertaken, the Court had found out factual discrepancies apparent on the face in the eight Action Taken Reports and the charge 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 find any such circumstance in the present case. We may also refer to the observations made in another ruling reported as Mithabhai Pashabhai Patel & Anr. v. Stete of Gujarat [2009 (6) SCC 332] : (AIR 2009 SC (Supp) 1658 : 2009 AIR SCW 3780). In paragraph 13 of the sa/'d decision, this Court has observed:- "it is beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior Court in exercise of its Constitutional power, namely, under Articles 226 and 32 ofthe Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency.. Direction of a reinvestigation, however, ' being forbidden in law, no !tf-;s.». !• T 11. Superior Court would ordinarily issue such a direction." 21. The Court further referred a decision in Ramachandran v. R. Udhayakumar [2008 (5) SCC 413]: (AIR 2008 SC 3102 : 2008 AIR SCW 5469) , and observed therein:- "at thisjuncture it would be necessary to take note of Section 1 73 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub- section (2) of Section 1 73 of the Code, the police has n'ght to further investigate under sub-section (8), but not fresh 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 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 decide so was the task ofthe Court alone and no opinion could have been sought for, particularly, in the circumstances of this case. Nothing seems to have been establishedWhich 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." In Kedar Narayan Parida & Others v. State of Orissa & Another , relied on by the learned counsel for the petitioner, a directipn was issued in the peculiar facts and Gircumstances of the case to prevent injustice by the High Court when on account of the intervention of 2010AIRSCW459 i0_ _- ^ influential person, the supervisory role of the Additional Superintendent of Police was also negated and the same resulted in an attempt to shield some of the accused persons, direction of the High Court was upheld by the Supreme Court. 12. In the case on hand, except mere statement that Ram Krishna Mishra was influential person, no other material has been placed to hold that this case is unusual from normal cases. It has also not been established that there was any influence from any person on the police officers investigating the matter. The prayer of the petitioner for investigation by the Central Bureau of Investigation cannot be granted on the basis of aforestated materials, as investigation has been done by the police, charge sheet has been filed and the case is pending consideration. 13. Thus, without expressing any opinion on the merits of the case, 1 refraining from going into details of the case, as the case is pending trial before the Court, the petition is dismissed. However, liberty is reserved to the petitioner to take recourse to provisions of law, as avaitable to him before the Court, where the matter is pendingtrial, if so advised. i -—-.- 14. There shall be no order asto costs. ! Sd/- Satish K. Agnihotri Judge ashok