Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1294 OF 2023
(@ SLP (Crl) No. 4394/2021)
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)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the
Signature Not Verified
High Court of Allahabad in Criminal Misc.
Digitally signed by
Neetu Sachdeva
Date: 2023.04.28
16:27:27 IST
Reason:
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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