Virender Prasad Singh vs Rajesh Bhardwaj & Ors

"Reportable "

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1526 OF 2010 (Arising out of SLP (Crl.) 4979 of 2010)

Virender Prasad Singh .... Appellant

Versus

Rajesh Bhardwaj & Ors. .... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. An extremely unusual order passed by the High Court

has fallen for consideration in this appeal which has

been filed on behalf of the appellant/complainant

Virender Prasad Singh. The said order was passed on the

basis of a petition filed by the respondent No.

1/accused Rajesh Bhardwaj who is facing the charges of

very serious offences like provided under Sections 302,

201 and 120 B of the Indian Penal Code (hereinafter

referred to as "IPC" for short). By the impugned order, 2

the learned Judge of the High Court has issued certain

directions, whereby he has directed the re-examination

of the completed investigation by an officer of the rank

of Director General of Police (DGP). An extremely

unusual course has been taken, whereby the counsel for

the respondent No. 1/accused, who had filed the petition

under Section 482 before the High Court, was asked to

give a proposal of three names of the police officers of

the DGP rank for examining the records of the completed

investigation, wherein even the charge sheet was already

filed. Similar choice seems to have been given even to

the counsel for the appellant/informant to suggest some

names. The appellant/informant (respondent before the

High Court) did not choose to give any name, with the

result that the High Court went on to select one Mr.

Manoj Nath, an IPS of 1973 Batch for assistance in the

matter. The High Court observed:-

"This Court requests Mr. Manoj Nath to examine all the records of the case in detail and submit his report to this Court preferably within a period of one month with his clear opinion as to (i) whether investigation of the case is complete from all angles and case is fit to be tried on the basis of materials and report placed on record by the Investigating Officer only or (ii) whether there are some loopholes and lacunae in the investigation which necessitates further or fresh investigation of the case and if necessary by a more experienced and specialized agency, and/or (iii) what further steps, if any, are required to be taken in the 3

case in the ends of justice, so that the guilty may not escape and the innocent may not suffer due to laches on the part of officers of the State. For consideration of Mr. Nath, parties are directed to make available the documents and materials which they have placed on record in the form of a properly indexed paper book within two weeks. This Court expects from Mr. Nath that he will not get swayed away by any opinion of any officer or agency which may be available on record and shall completely ignore the pleadings of the parties. He will examine the documents and evidence of the witnesses available on record and form his independent opinion in the matter. If necessary, under the authority of this Court, he may requisition any other documents and material connected with the case, in original or in the form of its carbon copy, from any other source or authority and upon his requisition, the same shall be made available to him by all concerned, default of which shall be treated as contempt of this Court."

In the last paragraph of its order, the High Court

held:-

"Till 21st June, 2010, the Court concerned shall not take any further steps in the proceeding arising out of Arrah Rail GRP Case No. 73 of 2007."

The concerned criminal case was initiated by a First

Information Report registered on 6.12.2007. It is an

admitted position that the investigation had been

completed and the police was going to submit the charge

sheet dated 18.6.2009, but before that, the mother of

the respondent No. 1/accused filed Crl. WJC No. 394 of

2009 before the High Court. In this petition, the

prayer was for re-investigation of the matter by another

agency. Eventually, the mother of the respondent No.

1/accused died and the respondent No. 1/accused was 4

substituted for her, and it is only on that basis that

the order has been passed.

3. The First Information Report refers to the

incident which took place on 30.11.2007, according to

which at 10 p.m. on that day, the accused went to the

house of the deceased Sonu, the daughter of the

appellant/complainant and left with the deceased on his

motorcycle in presence of the witnesses. Since the

deceased did not return home, the family members started

searching for both. It has come on record that

subsequently at about 12.30 a.m., the deceased Sonu had

talked to her mother's sister Dr. Anita and informed her

that she was with the accused and would come back after

getting married with him. On the very next day i.e. on

1.12.2007, at 7.15 a.m., the family members of the

deceased were informed by the Railway Police that the

dead body of the girl is lying on the side of the

Railway track at Karisath Railway Station and her Mobile

set bearing No. 9304915589 was also lying there. The

complainant's brother Dr. Sanjeev reached the Railway

Station and identified the body of the deceased. The

deceased had injuries on her head and a portion of her

leg was cut. Inquest Panchnama was executed by the 5

Railway Police and the dead body was sent for

postmortem. At this time, the complainant/father of the

deceased was out of station. After he returned home, he

was informed about the deceased having been taken by the

respondent No. 1/accused at night on 30.11.2007. On

6.12.2007, a written complaint was filed. It was

disclosed in the said complaint that the deceased was in

love with Rajesh Bhardwaj, (respondent No. 1/accused)

and wanted to get married with him and was persuading

him for the last six months for marriage; However, the

accused wanted to get rid of her, as he was having an

affair with some other girl and it was due to this

reason that the accused committed the murder of the

deceased and threw her dead body near the Railway track

at Karisath Railway Station, with the intention to

create a false impression that the deceased had died in

an accident. The Railway Police registered the case as

GRP Case No. 73 of 2007 for offences punishable under

Sections 364, 302, 201 and 120B IPC. An application for

orders under Section 438 of the Criminal Procedure Code

(Cr.P.C.) was moved by the respondent No. 1/accused

before the Sessions Court, Arrah, which was dismissed by

the Court vide order dated 18.3.2008. Needless to

mention that the respondent No. 1/accused was not in the 6

custody of the police till then. He has not been

arrested even till date. Be that as it may, on finding

that the accused was absconding, a proclamation under

Section 82 Cr.P.C. was issued on 20.3.2008 by the

Judicial Magistrate. It was also pasted on the

residence of the respondent No. 1/accused on 27.3.2008.

The respondent No. 1/accused, after about four months

i.e. on 1.7.2008, moved a petition before the High Court

for the same relief under Section 438, which was

registered as Criminal Misc. No. 33158 of 2008. That

was dismissed by the High Court vide order dated

1.7.2008. The respondent No. 1/accused did not stop

there and moved to this Court by way of a Special Leave

Petition (Crl.) No. 5140 of 2008. It came before this

Court on 28.7.2008 and this Court dismissed the same.

However, it was observed that:-

"If the petitioner surrender before the concerned Court and move for bail, the Court would do well to dispose of the application on the day it is presented."

Needless to mention that the respondent No.

1/accused never surrendered. On 6.4.2009, one more

petition came to be filed before the High Court being

Cr. WJC No. 352 of 2008, wherein the High Court was

pleased to direct the Magistrate to dispose of the 7

objection petition filed by the complainant after

hearing both the parties and it was directed that till

then the issuance of process of attachment under Section

83 Cr.P.C. would remain stayed. Very strangely, in this

order, the High Court observed:-

"the parents of the accused, would endeavour and do all within their prowess to prevail upon and persuade, their son Rajesh Bhardwaj to surrender before the court of law as his anticipatory bail has been rejected up to the Hon'ble Apex Court."

4. On 15.5.2009, another petition being Crl. WJC No.

394 of 2009 came to be filed before the High Court by

the mother of the accused. On that date, the

investigation was in progress, but the final report had

not been submitted by the police. It was expressed in

this petition that the investigation was being

influenced from the complainant's side and there was a

prayer for direction to the State Government to get the

case investigated by an independent investigating agency

such as Central Bureau of Investigation. On 18.6.2009,

police came to the conclusion that the offences alleged

against the accused were committed by him and,

therefore, the charge sheet came to be filed for the

offences punishable under Sections 302, 201 and 120 B

IPC.

8

5. Needless to mention that the respondent No.

1/accused was still not arrested nor did he ever bother

to appear before the Magistrate.

6. On 25.6.2009, after the charge sheet was filed, the

father of the accused moved an application before the

learned Judicial Magistrate, Arrah, saying that he did

not have faith in the said Court and wanted to move a

petition for transfer of this case before the District

Judge, Arrah, and, therefore, the proceedings of the

case be stayed. All this was probably done as the

Magistrate had already initiated the proceedings under

Sections 82 and 83 Cr.P.C., finding that the accused was

absconding. The Magistrate took the view that the

father of the accused had no locus standi to file the

said application and also came to the conclusion that

there appeared to be good reasons for proceeding against

the accused. The Magistrate, therefore, took cognizance

of the offences. Then again, for some inexplicable

reasons, nothing happened for five months and again on

10.11.2009, an application was moved before the Sessions

Judge, Bhojpur, Arrah for an order under Section 438

Cr.P.C. for anticipatory bail. The learned Sessions

Judge noticed that the respondent No. 1/accused was 9

already asked by this Court to surrender before the

court below and move the bail application. It was also

noted that the respondent No. 1/accused thereafter never

bothered to appear though more than one year's time had

elapsed. On that reasoning, the application was

dismissed. Undaunted by this dismissal, the respondent

No. 1/accused moved another application being Crl. Misc.

Application No. 41823 of 2009 before the High Court on

21.12.2009, i.e. after more than one month of the

dismissal of the earlier bail application. It was

contended before the High Court that the charge sheet

was filed only for the offences punishable under Section

306 IPC and not under Sections 302, 201 and 120 B IPC.

A very novel statement was made that his father's kidney

had failed and that the accused was going to donate the

kidney and he should be granted provisional anticipatory

bail. What flabbergasts us is that on this broad plea,

the High Court granted eight months' provisional

anticipatory bail to the respondent No. 1/accused. Very

strangely, all this was on the backdrop of the rejection

of all the applications made by the accused under

Section 438 Cr.P.C. before all the Courts including this

Court. Again, to say that we are surprised by this

order, would be an under-statement. We also did not 10

understand as to why eight months' time was required by

the accused and granted by the High Court for donating

the kidney. The respondent No. 1/accused again moved an

application on 13.1.2010, stating that there was a

typing error in the order dated 21.12.2009 passed by the

High Court where he was wrongly described as Rakesh

Bhardwaj instead of Rajesh Bhardwaj. It was also

submitted that the charge sheet was filed under Sections

302, 201 and 120 B IPC and not under Section 306 IPC as

was represented to the High Court. The matter then

pended for another four months and came for hearing only

on 4.5.2010. However, by that time, Dr. Vijay Laxmi,

the mother of the respondent No. 1/accused had already

expired. After her death, the respondent No. 1/accused

was substituted in her place. It was during the course

of arguments on Misc. Application No. 41823 of 2009 that

the subject of the investigation not being properly

done, cropped up, and it was urged that the matter

should be re-investigated, though it was informed to the

Court that the charge sheet was already filed about

eight months prior to this date and the matter was also

committed to the Court of Sessions for trial. The High

Court ultimately passed the impugned order. The case

was then fixed for hearing before the High Court on 11

21.6.2010 as the first case in the list. However, the

trial has been stayed and the High Court has gone to the

extent of selecting a new investigating officer.

7. Shri U.U. Lalit, learned Senior Counsel appearing

on behalf of the appellant/complainant pointed out that

this case is nothing, but travesty of criminal justice

and it amounts to total abuse of the process of law.

The learned Senior Counsel pointed out that though an

offence punishable under Section 302 was registered as

back as on 6.12.2007, still even after two and half

years, the respondent No. 1/accused has not been

arrested. The learned Senior Counsel pointed out that

even now, the period of eight months which would

ordinarily have ended in August, is extended by the High

Court by one month. The learned Senior Counsel pointed

out that there was no justification, whatsoever, to find

out any fault in the investigation and indeed the order

of the High Court is wholly silent on the aspect of

necessity of transferring the investigation or to do a

de novo investigation. According to the learned Senior

Counsel, the reasons, if any given in the order of the

High Court, are wholly irrelevant. The learned Senior

Counsel suggested that very unusual and disturbing 12

orders have been passed by the High Court in this case,

such as granting the provisional bail for eight months

on the spacious ground that the accused had to donate

his kidney to his father. According to the learned

Senior Counsel, the sole objective on the part of the

accused has been to hoodwink the process of law to avoid

his arrest.

8. As against this, Shri P.S. Mishra and Shri A.

Sharan, learned Senior Counsel appearing on behalf of

the respondents supported the order of the High Court

and contended that the whole investigation was bad and

tainted in this case, since the investigating officers

were influenced by the informant who was a senior

officer in Railways, as also by order of a Minister in

the Cabinet of Bihar Government. The learned Senior

Counsel appearing on behalf of the respondents stated

that there was nothing wrong in ordering the

investigation by other agency even after the charge

sheet was filed and for this proposition, the learned

Senior Counsel heavily relied on the decision in

Rubabbuddin Sheikh v. State of Gujarat & Ors. [2010 (2)

SCC 200].

13

9. It is on the backdrop of these rival contentions

that it has to be seen that whether the impugned order

is justified or not.

10. The basic contention of Shri Lalit, learned Senior

Counsel appearing on behalf of the appellant is that

there is a total absence of reasons in the impugned

order of the High Court whereby the High Court has

directed the change of investigating agency. The

learned Senior Counsel pointed out that nothing has been

shown either from the charge sheet which is already

filed against the accused or from any other circumstance

which justified the change of the investigating agency.

11. A glance at the impugned order suggests that the

criticism is quite justified. The Learned Single Judge

referred to the report of the Superintendent of Police

dated 27.3.2008 wherein it was allegedly found that the

investigation was not properly done and it required to

be further investigated by the investigating officer

from the angles reported in the supervision report. A

letter dated 29.4.2008 by the IG of Police to the

Additional DG is also referred to wherein it was

suggested that the father of the deceased had raised

objections to the supervision report of the SP, 14

Railways. Lastly, the Learned Judge has referred to the

supervision report of the Dy. SP,CID dated 04.06.2008

wherein it was allegedly mentioned that the

investigation was lacking on some counts and this was

probably on account of the fact that the investigation

was influenced by the father-in-law of the informant.

The Learned Judge has also referred to the further

argument that there could have been no motive on the

part of the accused to murder the girl who was in love

with him. The circumstance is also referred to that

father of the accused who was a Senior Advocate

practicing in the same Court had also consented to the

said marriage between the accused and the deceased. The

Learned Judge has also taken stock of the argument that

the girl herself had written a letter expressing that

she apprehended danger from her family members, meaning

the family members of the informant. We must, however,

express that the Learned Judge has not given any

findings on these arguments. The Learned Judge has not

referred to the arguments on behalf of the informant and

has expressed that there was a counter affidavit on

behalf of the informant.

15

12. A very strange course thereafter seems to have been

taken by the Court (in view of the voluminous documents

produced on record by both the parties). The Court

observed:-

"this Court considers it appropriate to take assistance by getting the matter examined by a senior police official of the rank of DGP to put the controversy, as to whether proper investigation has been done in the case or not, at rest. Therefore, this Court suggested to each of the Learned Counsel for the parties to propose three names of DGP rank officers of the State for this Court to extend request to anyone of them to assist this Court by examining all the documents and records connected with the case and submit his view to this Court for consideration."

13. We are extremely surprised by this course

undertaken. Firstly, we don't know on what basis would

the parties have suggested the names of the police

officers of the DGP rank. Secondly, we also don't

understand as to in what manner would the opinion

expressed by any such officer have been relevant in the

decision as to whether the investigation was proper or

not. It was the task of the Court and it was the Court

who would have decided the question of the fairness of

the investigation. The High Court proceeded, though

this course was not acceptable to the complainant's

party, and considered the arguments on behalf of the

complainant. Unfortunately, we don't see any findings 16

recorded or any active consideration of the questions

raised by the informant/ complainant. It was suggested

by the appellant/complainant that there was another

supervision report of the SP dated 30.4.2009 which

supported the filing of the charge sheet and it was in

pursuance of that report that the charge sheet came to

be filed. The complainant had also urged that the so-

called earlier supervision report dated 27.3.2008 was a

concocted document. The learned Senior Counsel

appearing on behalf of the appellant/complainant

challenged the genuineness of the document and contended

that it was fabricated. The complainant went to the

extent of saying that the father of the accused who was

a Senior Advocate of the Court was trying to influence

the investigation and in fact even the report of the

Forensic Science Laboratory regarding the handwriting

and the genuineness of the letter of the deceased was

not genuine. Ultimately, it was urged before the High

Court that at the stage, particularly, after the charge

sheet was already filed, the High Court would not be

justified in interfering under Section 482, Cr.P.C. The

only reason that we find for the unusual course that the

High Court has taken is that there was no supervision

report at the instance of the DIG of Police or Inspector 17

General, Railway or DGP. The High Court has recorded a

finding:-

"thus, it is clear that the case has been supervised till now only by the officers up to the rank of SP and none else. Even the said report of the CID is also by an officer below the rank of SP (CID)."

14. Thus, the High Court went only on the consideration

that there was no supervision report of a particular

level of DIG, IG or DGP of Police.

15. It is only on the basis of that reason that the

High Court wanted to get the assistance of DGP level

police officer to advise it on the correctness or

otherwise of the investigation. The High Court went on

to record:-

"however, at this stage, in view of the submissions advanced by Mr. Madhup on behalf of the informant, this Court is all the more convinced that, to put the controversy at rest once for all, matter should be examined by any officer of the rank of DGP so that this Court may get assistance from an experienced senior police officer of the highest rank to come to some conclusion with regard to merits of this application, if at all it is required to be done at the final stage of hearing."

It is then that the High Court went on to select one

Manoj Nath and gave him the task of forming his opinion

in respect of:-

"(i) whether investigation of the case is complete from all angles and the case is to be tried on the basis of 18

materials and report placed on record by the investigating officer only or;

(ii) whether there are some loopholes and lacunae in the investigation which necessitates further or fresh investigation of the case and if necessary by a more experienced and specialized agency, and/or;

(iii) what further steps, if any, are required to be taken in the case in the ends of justice, so that the guilty may not escape and the innocent may not suffer due to laches on the part of the officers of the State."

We really fail to understand as to under what provision

the High Court acted, more particularly, when the charge

sheet has already been filed. We are not on the

question of the High Court seeking opinion of the DGP.

In our opinion, such a course was not necessary unless

the High Court had examined the charge sheet which was

filed and recorded its findings that the investigation

was not properly conducted or it required further

investigation under Section 173 (8), Cr.P.C. The High

Court has not even looked into the charge sheet nor has

it examined the same.

16. It is also extremely surprising that the respondent

No. 1/accused should have moved the High Court instead

of moving the Sessions Judge before whom the matter was

pending after all cognizance was taken by the Magistrate

on the basis of the charge sheet. Thereafter he also

proceeded to commit the matter for trial by the Sessions 19

Judge and the matter was pending before the Sessions

Judge. Under such circumstance, we completely fail to

understand the propriety of the accused moving the High

Court, firstly through his mother and secondly himself,

more particularly, under Section 482, Cr.P.C. instead of

going before Sessions Judge where the prosecution was

pending and claiming further investigation under Section

173(8) Cr.P.C.

17. The High Court has not even considered the question

of its own jurisdiction in the matter by conveniently

observing that it is a matter which is to be considered

at the stage of final hearing of the case. Therefore,

it is clear that the High Court has not applied its mind

also and had pushed the matter up to 21.6.2010 for

receiving the opinion from the DGP. In our opinion, all

this was not permissible nor was it warranted.

18. The High Court should have seen through the

incessant efforts on the part of the respondent No.

1/accused to stall the proceedings one way or the other

and to avoid arrest. It was way back in 2008 that the

anticipatory bail application was rejected by this Court

and yet the accused has remained outside without being

arrested. Again the investigation against him is 20

complete, the charge sheet has been filed for offence

committed by him, and still he has managed to remain

out. In fact, the lack of bona fides on the part of the

accused should have put the High Court on guard. A

Section 482 application on the plea that the

investigation is not proper at the instance of the

accused who does not choose to even appear before the

Sessions Judge before whom the matter is pending, should

immediately have put the High Court on guard before

entertaining the petition which has no bona fides

whatsoever. Be that as it may, we desist from saying

anything about the quality of investigation, necessity

of further investigation or the necessity of the further

investigation at the hands of some other agency,

particularly, in view of the fact that the charge sheet

has already been filed in this matter and at least

nothing was shown before us or before the High Court

suggesting that there was a necessity of any further

investigation, additional investigation or investigation

by some other agency. Merely, because there appeared to

be no supervision of the DIG level or IG level officer,

the High court could not have simply called for the

opinion of DGP without recording any finding on any

justification. We do not see any justification 21

whatsoever nor was anything shown to us. We will,

therefore, not go into that question, but the stance of

the High Court in issuing direction not to take any

further step in the proceedings arising out of Arrah

Rail G.R.P. Case No. 73/2007 till 21.6.2010 is wholly

unwarranted.

19. Heavy reliance was placed on Rubabbuddin Sheikh v.

State of Gujarat & Ors. [2010 (2) SCC 200]. However, we

do not find any factual similarity. 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 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 of

the Court:-

"`in the facts and circumstances of the present case and to do complete justice in the matter and to instill confidence in the public mind."

22 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. State of Gujarat

[2009 (6) SCC 332]. 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 that in a given situation a superior Court in exercise of its Constitutional power, namely, under Articles 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 reinvestigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction."

21. The Court further referred a decision in

Ramachandran v. R. Udhayakumar [2008 (5) SCC 413] and

observed therein:-

"at this juncture it would be necessary to take note of Section 173 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 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation."

23 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 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.

23. We are not at all impressed by the Section 482

application firstly filed by the mother of the

respondent No. 1/accused and then by the respondent No. 24

1/accused himself. We do not see any reason why the

High Court should have entertained such application at

all, particularly, in view of the complete lack of bona

fides on the part of the respondent No. 1/accused. That

application was, therefore, liable to be dismissed

straightaway. Since technically the matter is still

pending before the High Court, we only issue a direction

to the High Court to dismiss the same. The impugned

order of the High Court is set aside and, therefore,

this appeal succeeds. The Sessions Judge before whom

the matter is pending shall proceed with it in

accordance with law.

...................................J. [V.S. Sirpurkar]

...................................J. [Cyriac Joseph] August 16, 2010;

New Delhi.