Bohatie Devi (Dead) vs The State Of Uttar Pradesh

Bohatie Devi (Dead) Through LR ...Appellant(s)

Versus

The State of Uttar Pradesh & Ors...Respondent(s)

With CRIMINAL APPEAL NO. 1295 OF 2023 (@ SLP (Crl) No. 7708/2021)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the

impugned judgment and order passed by the Signature Not Verified Digitally signed by Neetu Sachdeva High Court of Allahabad in Criminal Misc. Date: 2023.04.28 16:27:27 IST Reason: Page 1 of 26 Writ Petition No. 7093/2019, by which, the

High Court has dismissed the said writ

petition preferred by the appellant herein –

mother of the deceased – Satyveer alias Kallu,

in which, the appellant challenged order

dated 13.02.2019 passed by the Secretary

(Home), State of UP, Lucknow, whereby he

ordered for further investigation by CBCID of

Case Crime No. 1069/2014, the original writ

petitioner has preferred the present appeal.

2. The facts leading to the present appeal in a

nutshell are as under: -

2.1 That son of the appellant – Satyaveer @ Kallu

was murdered by un-known persons. An FIR

was lodged by the informant Sanjeev son-in-

law of the appellant against Smt. Anju and

two un-known persons. The investigation was

Page 2 of 26 carried out by the Inspector of Police, Baraut,

District Baghpat who submitted chargesheet

on 01.03.2015 against two persons of which

cognizance was taken by the learned

Magistrate on 31.03.2015. That thereafter, on

the complaint/application by the appellant,

the investigation was handed over to the

District Crime Branch. A supplementary

chargesheet was filed on 02.12.2016 against

one Ashwani Kumar – respondent No. 8

herein (son of respondent No. 9 herein) and

Smt. Anju - respondent No. 11 herein. The

learned Magistrate took cognizance of the

same on 21.12.2016. That thereafter,

respondent No. 8, namely, Ashwani Kumar

filed the quashing petition before the High

Court for quashing of the entire criminal

proceedings of Case No. 7626/2016

Page 3 of 26 originating out of Case Crime No. 1069/2014

as well as for quashing of the chargesheet

dated 02.12.2016. The said application came

to be dismissed by the High Court on

05.07.2017. Being aggrieved of order dated

05.07.2017, respondent No. 8 – Ashwani

Kumar approached this Court by way of

Special Leave Petition (Crl) No. 599/2017

which was dismissed by this Court on

24.08.2018. This Court also vacated the

interim protection granted to respondent No.

8 vide order dated 15.09.2017. The learned

CJM, Baghpat issued non-bailable warrant

against respondent No. 8 vide order dated

08.09.2018. That thereafter and after non-

bailable warrant was issued against

respondent No. 8 herein, mother of Ashwani

Kumar – accused moved an application dated

Page 4 of 26 23.01.2019 to the Secretary (Home), State of

Uttar Pradesh for transferring the

investigation to CBCID, inter-alia, on the

ground that respondent No. 8 has been

arraigned as accused on the basis of

statements of two witnesses who in fact were

in the Jail and therefore, their statements

cannot be believed. That by order dated

13.02.2019, Secretary (Home) State of U.P.,

Lucknow, ordered further investigation by

CBCID. The order passed by the Secretary

(Home) transferring investigation to CBCID

was impugned before the High Court by way

of present petition. By the impugned

judgment and order the High Court has

dismissed the writ petition by observing that

further investigation was ordered after

intimation to the learned Magistrate and

Page 5 of 26 therefore, there is no infirmity in the order

passed by the Secretary (Home) directing

further investigation. The impugned judgment

and order passed by the High Court is the

subject matter of present appeal.

3. Ms. Vibha Datta Makhija, learned Senior

Advocate has appeared on behalf of the

appellant and Shri S. Nagamuthu and Shri

Rameshwar Singh Malik, learned Senior

Advocates have appeared on behalf of

respondent Nos. 8 and 11. Shri Anand Sanjay

M. Nuli, learned counsel has appeared on

behalf of the intervenor.

4. Ms. Makhija, learned Senior Advocate

appearing on behalf of the appellant has

vehemently submitted that the order passed

by the Secretary (Home) transferring the

Page 6 of 26 investigation to CBCID is absolutely illegal

and contrary to the provisions of the Code of

Criminal Procedure (Cr.PC).

4.1 It is submitted that in the present case after

thorough investigation by the investigating

agency of the State, respondent Nos. 8 and 11

were chargesheeted. It is submitted that once

chargesheeted thereafter, at the instance of

mother of one of the accused, the Secretary

(Home) could not have transferred the

investigation.

4.2 It is vehemently submitted that such an order

of transfer of investigation by the Secretary

(Home) and that too at the instance of mother

of one of the accused, is un-known to law and

is not permissible at all.

Page 7 of 26 4.3 It is further submitted by Ms. Makhija,

learned Senior Advocate that in fact, the

grounds on which the investigation was

sought to be transferred can be said to be the

defences on behalf of the accused which are

required to be considered at the time of trial.

It is submitted that as such by passing the

order of transfer of investigation to CBCID

and the subsequent investigation by CBCID

virtually acquits the accused who are

chargesheeted in the supplementary

chargesheet and would tantamount to nullify

the chargesheet against respondent Nos. 8

and 11, which as such is not permissible.

4.4 It is further submitted by Ms. Makhija,

learned Senior Advocate appearing on behalf

of the appellant that in fact it is not a case of

Page 8 of 26 further investigation but it is a case of

reinvestigation and therefore, for

reinvestigation the prior approval of the

Magistrate is must. It is submitted that in the

present case, the Secretary (Home) first took

a decision and passed the order to transfer

the investigation to CBCID and thereafter, the

IO only intimated the learned Magistrate

about transfer of investigation, which cannot

be said to be following due procedure as

required by law, more particularly, Section

173(8) of the Cr.PC.

4.5 It is further submitted that even on facts also,

the High Court has materially erred in

observing that the order directing further

investigation was passed with the

concurrence of the concerned Magistrate. It is

Page 9 of 26 submitted that even learned counsel for

respondent No. 8 was wrong in making the

submission before the High Court that the

order passed by the Secretary (Home) of

further investigation was passed after taking

leave of the Magistrate competent to do so. It

is submitted that nothing is on record that

any leave was sought and granted by the

learned Magistrate. It is submitted that what

is there on record is only the intimation to the

learned Magistrate and nothing more than

that.

4.6 It is further submitted that the High Court

has not properly appreciated and considered

the fact that respondent Nos. 8 and 11 were

chargesheeted pursuant to supplementary

chargesheet dated 02.12.2016 of which the

Page 10 of 26 learned Magistrate took cognizance on

21.12.2016 and that thereafter, respondent

No. 8 prayed for quashing of the entire

criminal proceedings including the

chargesheet and respondent No. 8 failed up to

this Court and only thereafter, when the non-

bailable warrant was issued, on his behalf an

application was moved for transfer of

investigation. It is submitted that once the

chargesheet was filed and even the quashing

petition came to be dismissed up to this

Court, thereafter, it was not open for the

accused or on his behalf to move an

application for further

investigation/reinvestigation.

4.7 Making the above submissions, it is prayed to

allow the present appeal and quash and set

Page 11 of 26 aside the order passed by the Secretary

(Home) transferring the investigation to

CBCID.

5. While opposing the present appeal Shri

Ardhendumauli Kumar Prasad, learned AAG

appearing on behalf of the State has

vehemently submitted that having being

satisfied that a case is made out for further

investigation and to do the complete justice to

the parties including the accused, no error

has been committed by the Secretary (Home)

in ordering further investigation by CBCID. It

is submitted that the order passed by the

Secretary (Home) being the head of the

department was on administrative side and

thereafter, the concerned IO intimated to the

learned Magistrate about transfer of

Page 12 of 26 investigation/further investigation which is

the requirement under the law.

5.1 While opposing the present appeal, Shri S.

Nagamuthu and Shri Rameshwar Singh

Malik, learned Senior Advocates appearing on

behalf of respondent Nos. 8 and 11 have

vehemently submitted that fair investigation

is the right of the accused as well as the

victim. It is submitted that Section 173(8) of

Cr.PC permits/authorises the investigating

officer (IO) to further investigate the case for

which the permission of learned Magistrate is

not required. It is submitted that under

Section 173(8) of Cr.PC, it is the right of IO

for further investigation. Reliance is placed on

the decision of this Court in the case of State

Page 13 of 26 of Andhra Pradesh Vs. A.S. Peter (2008) 2

SCC 383 (para 9).

5.2 It is submitted that as observed and held in

the case of Ram Lal Narang Vs. State (Delhi

Administration) (1979) 2 SCC 322, in the

interest of both the prosecution and the

defence, the Police should have the power to

make further investigation and submit a

supplemental report.

5.3 It is further submitted by learned senior

counsel appearing on behalf of the accused

that in the present case even, further

investigation was carried out by the District

Crime Branch (other than the IO of the

concerned Police Station) which was on the

application/complaint by the appellant and

respondent Nos. 8 and 11 came to be

Page 14 of 26 chargesheeted pursuant to the

supplementary chargesheet. It is submitted

that thereafter, when further investigation

has been ordered by CBCID on the

application of mother of the accused

thereafter it is not open for the appellant to

make a grievance that further investigation

cannot be ordered by another agency –

CBCID.

5.4 It is further submitted by learned senior

counsel appearing on behalf of the accused

that even as per Section 173(3) read with

Section 158 of Cr.PC, the investigation by

another agency is permissible.

5.5 It is further submitted by Shri Nagamuthu,

learned Senior Advocate appearing on behalf

of respondent No. 8 that after the

Page 15 of 26 investigation by CBCID as ordered, a further

report shall be submitted before the learned

Magistrate and thereafter, there shall be three

reports before the learned Magistrate, one on

the basis of chargesheet, second on the basis

of supplementary chargesheet and third on

the basis of further investigation by CBCID

and thereafter, it is ultimately for the learned

Magistrate to consider the reports. It is

submitted that therefore, let the third report

also be considered by the learned Magistrate

and therefore, the impugned order may not

be interfered with by this Court.

6. Heard learned counsel appearing on behalf of

the respective parties at length. We have also

heard Shri Anand S. Nuli, learned counsel

appearing on behalf of the intervenor.

Page 16 of 26

7. At the outset, it is required to be noted that

respondent Nos. 8 and 11 as such have been

chargesheeted for the offence under Sections

302 and 120B of the IPC of which the

cognizance has been taken by the learned

Magistrate on 21.12.2016. That thereafter,

respondent No. 8 as such moved the

quashing petition before the High Court for

quashing the entire criminal proceedings

including the chargesheet/supplementary

chargesheet. The High Court dismissed the

quashing petition. Therefore, the accused

must have taken all the defences which might

have been available to him while considering

quashing petition including the ground on

which now further

investigation/reinvestigation is ordered by

Page 17 of 26 another agency, namely, CBCID. It is required

to be noted that thereafter, respondent No. 8

approached this Court and the Special Leave

Petition came to be dismissed by this Court

and the interim protection in favour of

respondent No. 8 came to be vacated. That

thereafter, non-bailable warrant was issued

against respondent No. 8 and only thereafter,

mother of respondent No. 8 – accused moved

an application before the Secretary (Home) for

further investigation and he transferred the

investigation to CBCID, inter-alia, on the

ground that the so-called eye witnesses of the

murder were not the eye witnesses. The

request of the mother of accused has been

accepted by the Secretary (Home) and the

investigation was transferred to another

agency, namely, CBCID despite the fact that

Page 18 of 26 after the first chargesheet, the investigation

was handed over to the District Crime Branch

to further investigate the case and they filed

the supplementary chargesheet in which

respondent Nos. 8 and 11 were even

chargesheeted. Therefore, as such it is not a

case of further investigation, but is a case of

reinvestigation by another agency. The order

passed by the Secretary (Home) transferring

the investigation/ordering further

investigation by another agency and that too,

on the basis of the application/complaint

submitted by mother of the accused is un-

known to law.

7.1 There cannot be any dispute that even after

the chargesheet is filed, it is the right of the

investigating officer to further investigate in

Page 19 of 26 respect of offence even after a report under

sub-section (2) of Section 173 of Cr.PC

forwarded to a Magistrate and as observed

and held by this Court the prior approval of

the Magistrate is not required. However, as

per the settled position of law, so far as the

reinvestigation is concerned, the prior

permission/approval of the Magistrate is

required. In the present case, the Secretary

(Home) has passed an order for further

investigation by CBCID and thereafter, the

CBCID has sent the intimation to the learned

Magistrate. No prior approval/permission as

observed by the High Court has been

accorded by the learned Magistrate. The High

Court in the impugned judgment and order

has observed that the further investigation is

ordered with the concurrence of the

Page 20 of 26 Magistrate, which is factually incorrect. What

is on record is only an intimation to the

learned Magistrate which in any case cannot

be said to be concurrence of the learned

Magistrate.

7.2 In any case, as it is a case of reinvestigation,

the same is not permissible and that too by

another agency without the prior permission

of the learned Magistrate even while

exercising the powers under Section 173(8) of

the Cr.PC. Under what authority of law, the

Secretary (Home) has transferred the

investigation to another agency and/or

ordered further investigation by another

agency is not pointed out and that too at the

instance of the accused on the grounds which

as such can be said to be the defences of the

Page 21 of 26 accused which are required to be considered

at the time of trial. The case on behalf of the

accused that as the Secretary (Home) is the

head of the department and the further

investigation was ordered by another agency

on administrative side and therefore, the

Secretary (Home) is justified in ordering

further investigation by CBCID cannot be

accepted. So far as the investigation is

concerned under the scheme of the Cr.PC,

the Police Officer of the concerned Police

Station, who is the investigating officer, has

to investigate/further investigate the case

under the supervision of Superintendent of

Police. So far as the Secretary (Home) is

concerned, he does not come into picture at

all. If such powers are given to the Secretary

(Home) in that case any accused who is

Page 22 of 26 already chargesheeted may approach the

Secretary (Home) and may get an order of

further investigation or reinvestigation by

another agency and obtain the fresh report

nullifying the earlier chargesheet and get

himself discharged. If the accused is

aggrieved by the chargesheet in that case, the

remedy available to him would be either to file

the quashing petition under Section 482 of

Cr.PC and/or to move an appropriate

application for discharge before the learned

Magistrate and it is for the High Court and/or

the learned Magistrate as the case may be, to

quash criminal proceedings or discharge the

accused. The Secretary (Home) and/or any

accused who is already chargesheeted cannot

be permitted to circumvent such provision. It

is to be noted that in the present case,

Page 23 of 26 respondent No. 8 – accused earlier did file the

quashing petition, but failed.

7.3 Now, so far as the submission on behalf of

the accused relying upon Section 173(3) of

Cr.PC is concerned, it provides how to

submit/send a report to the Magistrate and

who shall send the report to the Magistrate. It

provides that where a superior officer of

police has been appointed under Section 158,

the report, shall be submitted through that

officer, and he may, pending the orders of the

Magistrate, direct the officer in charge of the

police station to make further investigation.

Therefore, Section 173(3) read with Section

158 does not permit the Secretary (Home) to

order for further investigation/reinvestigation

by another agency, other than the officer in

Page 24 of 26 charge of the concerned Police Station and/or

his superior officer.

8. In view of the above and for the reasons

stated above, the present appeal succeeds.

The impugned judgment and order passed by

the High Court is hereby quashed and set

aside. Consequently, order dated 13.02.2019

passed by the Secretary (Home) impugned

before the High Court, by which, the

Secretary (Home), State of U.P., Lucknow

ordered for reinvestigation by CBCID of Case

Crime No. 1069/2014 under Sections 302

and 120B of IPC, Police Station Baraut,

District, is hereby quashed and set aside.

Consequently, further investigation

/reinvestigation by the CBCID is also hereby

quashed and set aside. However, it is

Page 25 of 26 observed that all the defences which may be

available to the accused are to be considered

by the learned Trial Court at the time of trial.

Present appeal is accordingly allowed.

As we have allowed Criminal Appeal

arising out of SLP (Crl.) No. 4394/2021 filed

by the mother of the deceased (now dead

through LR), connected Criminal Appeal

arising out of SLP (Crl.) No. 7708/2021 filed

by original accused Nos. 6 and 7 against

issuance of non-bailable warrants against

them stands dismissed.

………………………………….J. [M.R. SHAH] ………………………………….J. [C.T. RAVIKUMAR] NEW DELHI;

APRIL 28, 2023

Page 26 of 26