Babubhai Jamnadas Patel vs State Of Gujarat & Ors

Special Criminal Application No.1855 of 2008 and 2

order dated 16th January, 2009, passed in Misc.

Application No.15014 of 2008 in the said

application. The order dated 5th December, 2008,

merely records the fact that the learned Government

Pleader and the Additional Public Prosecutor had

placed on record a copy of the order dated

1.12.2008 passed by the office of the Police

Commissioner intimating the Senior Police

Inspector, Sabarmati Police Station, that

investigation of Karanj Police Station, F.I.R.

No.254 of 2008, under Sections 420, 465, 466, 467

and 120-B of the Indian Penal Code, 1860, had been

handed over to the Assistant Commissioner of

Police, "C" Division, Ahmedabad City. By the said

order, the High Court also directed the Assistant

Commissioner of Police, "C" Division, Ahmedabad

City, to file a progress report of the

investigation undertaken in the aforesaid F.I.R.

dated 24th December, 2008. It was also indicated

that in the event final report was ready, the same 3

was not to be submitted without prior intimation to

Court.

3. On 23rd January, 2009, the learned Additional

Public Prosecutor placed an "Action Taken Report"

of even date before the Court. In the said report,

the officer concerned had stated that the

investigation was being conducted according to the

procedure followed. Based upon the said report,

the Additional Public Prosecutor was directed to

convey to the Officer present in the Court to

incorporate the details of the action taken by him

from the date of the receipt of the letter dated

5.12.2008 which, according to him, was received by

him on 12.12.2008. The learned Additional Public

Prosecutor was also directed to place on record

the steps taken by the Police Authorities in

respect of Item No.13 mentioned in the Action Taken

Report dated 11.11.2008 filed under the signature

of Shri M.P. Joshi, Senior Police Inspector, 4

Sabarmati Police Station, Ahmedabad City. The

matter was also adjourned till 30th January, 2009.

4. The said three orders are the subject matter of

the appeals under consideration.

5. The lands comprised in Block No.84 of Village

Ambali, Taluka Dascroi, were owned and occupied by

several persons, including the respondents herein.

According to the appellant, the original land

owners wanted to sell the lands to one Kalaji

Nathaji, who used to work as a broker in land

transactions. Kalaji Nathaji got in touch with the

appellant and informed him about the proposed

transfer of the lands in question. On receipt of

such information, the appellant expressed his

willingness to purchase the said lands. For the

purpose of changing the user of the land and to

arrange for the sale subject to such conversion,

Kalaji Nathaji prepared a Power of Attorney of the

original land owners in favour of the appellant and 5

several persons who were not made parties to the

said Deeds.

6. Upon execution of the said Power of Attorney, a

registered Sale Deed was executed for the undivided

share of the original land owners in favour of one

Godavariben Chunnilal Thakkar. It may be pointed

out that none of the shares belonging to the

respondents herein was sold by registered deeds of

sale. On the other hand, the land forming the

subject matter of the present proceeding was

included along with other plots of land in the

Draft Town Planning Scheme No. 212. According to

the appellant, various farmers joined hands for the

purpose of developing the property and they also

jointly applied to the Competent Authority and on

the basis thereof the lands in question were sold

to form F.P.No.63 and out of a total area of 74,764

sq.mts., 52,335 sq.mts. were allotted for the

aforesaid purpose.

6

7. On 18.10.2005, the Respondent No.2 and several

other persons executed a notarized Agreement for

Sale and a Supplementary Agreement in favour of the

appellant's son in respect of their undivided share

in the said lands. A joint Power of Attorney was

also executed in favour of another son of the

appellant. Soon, thereafter, construction work was

commenced on the said final plot as per the

sanctioned plans. According to the appellant, more

than three years after the date of commencement of

the construction, the respondents and several other

persons commenced various litigations against the

appellant.

8. On 14th May, 2008, various people, including

the Respondent No.2, filed Special Civil

Application No.7572 of 2008 before the High Court

in respect of civil disputes between the parties

and the matter is still pending. Thereafter, on 2nd

June, 2008, the State of Gujarat filed Special 7

Criminal Application No.1061 of 2008 before the

High Court for a writ in the nature of Mandamus for

a direction to the police authorities of Sarkhej

Police Station, Ahmedabad, to register the

complaint of the appellant under Section 154(3) of

the Criminal Procedure Code.

9. F.I.R.No.187 of 2008 having been lodged on 11th

August, 2008, the High Court disposed of the

Special Criminal Application filed by the

respondent on 12th August, 2008. Subsequently, on

25th September, 2008, the respondents filed Special

Criminal Application No.1855 of 2008 before the

High Court praying for transfer of F.I.R. No.187 of

2008, registered with Sarkhej Police Station,

Ahmedabad, to the Central Bureau of Investigation.

The said prayer was ultimately given up. The High

Court issued notice in the said writ petition and

directed the concerned Investigating Authority to

submit the Action Taken Report with respect to the 8

investigation carried out in respect of F.I.R.

No.187 of 2008 referred to hereinabove.

10. By virtue of various other orders passed in the

proceedings, the High Court asked for a status

report of the investigation conducted in the

matter. Subsequently, the F.I.R. in question came

to be transferred from Sarkhej Police Station to

the Sabarmati Police Station, Ahmedabad. Two days

thereafter, a prayer was made for transfer of the

investigation to the C.I.D. (Crime) which was asked

to submit periodical reports, so that the

investigation could remain under the control of the

High Court to dispel any impression that the

investigation was not being conducted properly by

the police authorities. On 14th November, 2008, the

Superintendent of Police, Ahmedabad (Rural), filed

an affidavit, but on the prayer made by the Public

Prosecutor, the matter was adjourned to enable him

to take instructions as to whether the affidavits 9

filed by the Superintendent of Police (Rural)

should be withdrawn or not.

11. On 5th December, 2008, the High Court passed

one of the impugned orders recording the fact that

both the learned Government Pleader and also the

learned Public Prosecutor were placing on record a

copy of the order dated 1st December, 2008, passed

by the Office of the Police Commissioner informing

the Senior Police Officer, Sabarmati Police

Station, that investigation of Karanj Police

Station C.I.R.No.254/2008 under Sections 420, 465,

466, 467 and 120-B of the Indian Penal Code had

been handed over to the Assistant Commissioner of

Police, `C' Division, Ahmedabad City. The High

Court directed the said officer to file a Progress

Report of the investigation in respect of the said

F.I.R. by 24th December, 2008. The investigating

authorities were also directed not to submit the 10

final report, if ready, without prior intimation to

the Court.

12. On 30th December, 2008, by an oral direction

given to the Public Prosecutor by the High Court,

the investigation was stayed till 17.1.2009. On

16th January, 2009, the High Court passed an order

directing the Investigating Officer that all

materials/documents that were felt to be of

importance in the case were to be collected and a

report to that effect was required to be filed on

the next date of hearing, i.e., 23.1.2009.

13. On 23.1.2009, the learned Additional Public

Prosecutor submitted the Action Taken Report of

even date. In that report, the Investigating

Officer, who was an officer of the rank of

Assistant Police Commissioner, `C' Division,

Ahmedabad City, narrated the steps taken till then

and what remained to be done by way of further

investigation in the matter. The Additional Public 11

Prosecutor was directed to convey to the

Investigating Officer who was present in the Court,

that steps should be taken to incorporate the

details of the action taken by him from the date of

receipt of letter dated 5.12.2008. The learned

Public Prosecutor was also directed to place on

record the steps taken by the police authorities

with a specific item in the Action Taken Report

dated 11.11.2008 filed under the signature of Mr.

M.B. Joshi, Senior Police Inspector, Sabarmati

Police Station, Ahmedabad City.

14. Appearing in support of the appeals, Mr. R.F.

Nariman, learned Senior Advocate, submitted that

from the orders dated 5.12.2008 and 23.01.2009,

passed by the Gujarat High Court, it would be

evident that the High Court had, in fact, taken

over the investigation by directing both the manner

and mode in which the investigation was to be

conducted and the course which such investigation 12

was required to take. It was submitted that the

impugned orders, together with the order dated

16.1.2009, would actually indicate that the High

Court wanted to retain control over the

investigation which has only served to hamper the

investigation and cause severe prejudice to the

appellant. Mr. Nariman submitted that on several

occasions, the affidavits filed by Investigating

Agency were rejected with directions to file fresh

affidavits causing a good deal of pressure on the

Investigating Agency. Reference was made to

various decisions of this Court, wherein a view had

been expressed that the High Court should not

direct the Investigating Agency to submit a report

in accordance with the Court's own views. Mr.

Nariman submitted that it had been categorically

observed that the High Court would be exceeding its

jurisdiction under Article 226 of the Constitution

of India in interfering with criminal investigation

in passing such orders.

13

15. In this regard, Mr. Nariman referred to the

decision of this Court in Director, Central Bureau

of Investigation & Ors. Vs. `Niyamavedi'

represented by its member K. Nandini, Advocate &

Ors. [(1995) 3 SCC 601], where the point urged by

Mr. Nariman was directly in issue. Considering the

Division Bench judgment of the Kerala High Court,

in which reference was made to the material

disclosed in the course of investigation, this

Court observed that having regard to the provisions

of Sections 162 and 172 of the Code of Criminal

Procedure, the Division Bench should have refrained

from disclosing in its order, material contained in

police diaries and statements, especially when the

investigation in the very case was in progress. It

was also observed that the High Court should also

have refrained from making any comments on the

manner in which the investigation was being 14

conducted by the Central Bureau of Investigation.

This Court went on to further observe as follows :

"Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and Courts should be wary of its possible consequences. We say no more."

16. Mr. Nariman submitted that the aforesaid

observation was sufficient to indicate that

investigation into an alleged offence is the

responsibility of the investigating agency which

should not be interfered with by the Courts, except

for compelling reasons.

17. Reference was also made to the decision of this

Court in M.C. Abraham & Anr. Vs. State of

Maharashtra & Ors. [(2003) 2 SCC 649], by which

several criminal appeals were disposed of on 20th 15

December, 2002. One of the issues which was

considered in the said appeals was whether the

Court had the power to direct the Investigating

Agency to submit a report in accordance with the

view taken by the Court. While considering the

provisions of Sections 156(3), 169, 173 and 190

Cr.P.C., this Court held that while investigation

is in progress, the Court cannot direct the

Investigating Agency to submit a report in accord

with the Court's own view. In the facts and

circumstances of the said case, this Court observed

that it was open to the Magistrate, to whom the

report is submitted by the Investigating Agency

after a full and complete investigation, to either

accept the same or to order a further inquiry. As

far as the High Court is concerned, it could give

directions for prompt investigation, but it could

not direct the Investigating Agency to submit a

report that is in accord with its views and that

would amount to unwarranted interference with the 16

investigation of the case by inhibiting the

exercise of statutory power by the Investigating

Agency. In the said case, this Court also set aside

the direction given by the High Court that not only

should the case be investigated, but a charge-sheet

must be submitted. This Court held that whether a

charge-sheet should be submitted or not was the

concern of the Investigating Agency and the High

Court had exceeded its jurisdiction in directing

the same to be filed.

18. Mr. Nariman urged that the same question, as

enumerated hereinabove, is also involved in

SLP(Crl.)No.888 of 2009.

19. Referring to the order of the High Court dated

21st October, 2008, Mr. Nariman urged that the same

would clearly demonstrate the manner in which the

investigation was being interfered with by the High

Court. Mr. Nariman submitted that the procedure

adopted by the High Court in dealing with the 17

matter was not contemplated under the provisions of

the Criminal Procedure Code and while setting aside

the order, the High Court should be requested to

refrain from doing any act or passing any order

which would have the effect of interfering with the

investigation.

20. In reply to Mr. Nariman's submissions, Mr.

Dushyant Dave, learned Senior Advocate appearing

for the respondents, submitted that the powers of

the High Court under Articles 226 and 227 of the

Constitution of India were sufficiently wide to

enable the High Court to direct a public authority

to perform its duties in accordance with law when

it is brought to its notice that the said functions

were not being discharged by the said public

authority.

21. Mr. Dave submitted that through judicial

pronouncements it has been well settled that

ordinarily the investigating authorities should be 18

left to perform their duties, as provided for under

the statute, but in the event, the said authority

failed to perform such duties, as they were

required to perform, the Courts could direct, the

investigating authorities to do so.

22. Mr. Dave referred to the decision of this Court

in S.N. Sharma vs. Bipen Kumar Tiwari & Ors.

[(1970) 1 SCC 653], which was a decision under the

old Code, wherein it was observed that though the

Code of Criminal Procedure gave to the police

unfettered power to investigate all cases where

they suspected that a cognizable offence had been

committed, in appropriate cases an aggrieved person

could always seek a remedy by invoking the power of

the High Court under Article 226 of the

Constitution under which, if the High Court was

convinced that the power of investigation had been

exercised by a police officer mala fide, the High

Court could always issue a writ of Mandamus to 19

restrain the police officer from misusing his

powers. Mr. Dave submitted that this Court has

uniformly held that the Courts should not normally

interfere with the investigative process unless it

was established that the investigating agency had

remained inactive for whatever reason.

23. Mr. Dave, then, referred to the decision of

this Court in Kashmeri Devi Vs. Delhi

Administration & Anr. [(1988) Supp. SCC 482],

wherein, since a charge-sheet had already been

submitted by the investigating agency, a direction

had to be given to the Magistrate to exercise his

powers under Section 173(8) Cr.P.C. to direct the

Central Bureau of Investigation to make a proper

and thorough investigation in an independent and

objective manner and to submit an additional

charge-sheet, if any, in accordance with law. Mr.

Dave pointed out that the said decision starts with

the observation that the case in hand was an 20

unfortunate case which tended to shake the

credibility of police investigation and undermined

the faith of the common man in the Delhi Police

which was supposed to protect the life and liberty

of the citizen and to maintain law and order.

24. Yet another decision of this Court referred to

by Mr. Dave in this regard is the decision in State

of Bihar & Anr. Vs. Ranchi Zila Samta Party & Anr.

[(1996) 3 SCC 682], where also directions were

given by the High Court for investigation by the

Central Bureau of Investigation which was upheld by

this Court with the further direction that the

investigation by the CBI would be under the over-

all control and supervision of the Chief Justice of

the High Court.

25. To further bolster his submissions, Mr. Dave

also referred to the decision of this Court in

Vineet Narain & Ors. Vs. Union of India & Anr.

[(1998) 1 SCC 226], popularly known as "Hawala 21

case", in which it was held that in the absence of

appropriate legislation and even executive orders

in matters of public interest and urgency, the

Supreme Court, in exercise of its powers under

Article 142 of the Constitution, can issue orders

and directions to fill the gap for enforcement of

fundamental rights and doing complete justice

between the parties.

26. Reference was also made to the decisions of

this Court in (1) State of W.B. & Ors. Vs. Nuruddin

Mallick & Ors. [(1998) 8 SCC 43]; (2) Nirmal Singh

Kahlon vs. State of Punjab & Ors. [(2009) 1 SCC

441]; (3) Gudalure M.J. Cherian & Ors. Vs. Union of

India & Ors. [(1992) 1 SCC 397]; and (4)

Comptroller and Auditor General of India, Gian

Prakash, New Delhi & Anr. Vs. K.S. Jagannathan &

Anr. [(1986) 2 SCC 679], wherein in the

circumstances of each case, this Court directed the

Central Bureau of Investigation to conduct fresh 22

investigation in order to do complete justice to

the parties.

27. Mr. Dave referred to various orders passed by

the Gujarat High Court in similar matters, wherein

similar orders were passed with regard to the

investigations and submissions of the Action Taken

Report, which have been annexed to the Special

Leave Petitions.

28. The State of Gujarat has chosen not to file any

affidavit, but has supported the submissions made

by Mr. Dave.

29. Responding to the decisions cited by Mr. Dave,

Mr. Nariman submitted that while in the decisions

cited by Mr. Dave certain special circumstances

existed, in which directions had to be given by the

High Court to the investigating agencies, there is

nothing extraordinary as to the facts of these 23

cases which necessitated the monitoring of the

cases by the High Court.

30. Mr. Nariman submitted that the dispute in the

present cases related to the allotment of houses in

the Shivalik (Ambali) Cooperative Housing Society

Limited and the dispute was of a purely civil

nature in respect of which suits were also pending

and did not require any such directions for the

purpose of investigation into the complaint made.

31. The area of dispute ultimately narrows down to

the question as to whether the Courts can monitor

investigations in respect of offences alleged to

have been committed when the investigation had

already been commenced by the investigating agency.

There is little doubt that normally investigation

of offences is the function of the investigating

agencies and the Courts do not ordinarily interfere

with the same. But, at the same time the High

Court is vested with such powers, though the same 24

are invoked only in cases where extraordinary facts

are involved, necessitating such monitoring by the

Courts.

32. In the circumstances, we are only required to

see whether such an extraordinary fact situation

exists in this case which warranted such a course

of action to be adopted by the High Court.

33. Though Mr. Nariman has in unequivocal terms

denied that such extraordinary circumstances exist

in this case, which requires monitoring by the High

Court, it cannot be denied that the progress of the

investigation has been tardy and slow. It is in

such circumstances that the investigation had to be

handed over to the Assistant Commissioner of

Police, `C' Division, Ahmedabad City, with a

further direction upon the said Assistant

Commissioner of Police to file a progress report of

the investigation undertaken in respect of the

First Information Report dated 24th December, 2008. 25

34. Having regard to the factual circumstances in

which the incident had occurred, the Court adopted

the procedure for keeping a watch over the

investigation in order to prevent a miscarriage of

justice.

35. In cases where it has been brought to the

notice of the Courts that investigation into an

offence was not being carried on in the manner in

which it should have been carried on, directions

have been given by the Courts to the investigating

agencies to conduct the investigation according to

certain guidelines, as otherwise the very purpose

of the investigation could become fruitless. The

decisions cited by Mr. Nariman do not militate

against the concept of the Court's power, where

necessary, to direct the authorities to conduct

themselves in a particular way. Once it is proved

that there are no other circumstances except those

which were projected, the need for such monitoring 26

diminished. However, there is nothing in the

decisions cited by Mr. Nariman to even remotely

suggest that if the investigation was being

stalled, for whatever reason, the Courts were

powerless to pass appropriate orders to ensure that

the investigation was proceeded with and justice

was done to the parties.

36. The said position has been reiterated in the

various decisions cited by Mr. Dave, particularly

in the case of Kashmeri Devi (supra), wherein a

direction had to be given to the Magistrate to

exercise powers under Section 173(8) Cr.P.C. to

direct the C.B.I. to make a proper and thorough

investigation in an independent and objective

manner and to submit an additional charge-sheet, if

any, in accordance with law.

37. The Courts, and in particular the High Courts

and the Supreme Court, are the sentinels of justice

and have been vested with extraordinary powers of 27

judicial review and supervision to ensure that the

rights of the citizens are duly protected. The

Courts have to maintain a constant vigil against

the inaction of the authorities in discharging

their duties and obligations in the interest of the

citizens for whom they exist. This Court, as also

the High Courts, have had to issue appropriate

writs and directions from time to time to ensure

that the authorities performed at least such duties

as they were required to perform under the various

statutes and orders passed by the administration.

As for example, in the instant case, the High Court

had to repeatedly intervene and pass orders to

ensure that the investigation was being conducted

diligently. Periodical status reports were required

in that regard. In fact, the High Court had to

direct the Additional Public Prosecutor to ask the

Investigating Officer to incorporate the details of

the action taken by him from the date of receipt of

the letter dated 5th December, 2008. There is little 28

doubt that only after the High Court began

monitoring the progress of the investigation that

the Investigating Authorities began to deal with

the matter with some amount of seriousness.

38. We are unable to agree with Mr. Nariman that

the High Court in the name of investigation

directed both the manner and mode in which the

investigation was to be conducted or the direction

in which the investigation was to proceed. It is

because of the tardy progress of the investigation

that the High Court had to step in at the instance

of the respondents herein. It was at the instance

of the State of Gujarat, which filed Special

Criminal Application No.1061 of 2008 on 2nd June,

2008, before the High Court, that a direction was

issued to the Investigating Authorities to register

the complaint on 11th August, 2008, by way of F.I.R.

No.187 of 2008.

29

39. The various decisions cited by Mr. Dave endorse

the view that when required not only could the High

Court or this Court direct the Investigating

Agencies to conduct the investigation in a fair and

unbiased manner, but that in exercise of its powers

under Article 142 of the Constitution, the Supreme

Court could also issue directions for enforcement

of fundamental rights and to ensure that complete

justice was done to the parties. In fact, in

Kashmere Devi's case (supra), this Court had

directed the Magistrate to exercise powers under

Section 173(8) Cr.P.C. to direct the C.B.I. to make

a proper and thorough investigation in an

independent and objective manner and to submit an

additional charge-sheet, if circumstances so

required, in accordance with law.

40. There is, therefore, no doubt that in

appropriate cases, the Courts may monitor an

investigation into an offence when it is satisfied 30

that either the investigation is not being

proceeded with or is being influenced by interested

persons.

41. We are, therefore, not inclined to interfere

with the orders of the High Court impugned in these

appeals and we direct the Investigating Authorities

to proceed in the manner indicated by the High

Court in its impugned orders. The appeals are,

accordingly, dismissed.

...................J (ALTAMAS KABIR)

...................J (CYRIAC JOSEPH)

New Delhi Dated: 02.09.2009.